2402380 (Refugee) - [2024] ARTA 584

2402380 (REFUGEE) [2024] ARTA 584 (30 OCTOBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs

Tribunal Number: 2402380
Tribunal:General Member M Bailey
Date:30 October 2024

Place:Brisbane
Decision:The Tribunal affirms the decision under review.

Statement made on 30 October 2024 at 4:59pm
CATCHWORDS
REFUGEE – Protection Visa – Papua New Guinea – victim of domestic violence – fears serious harm from ex-husband – significant discrepancies in the applicant’s evidence – relationship with another man in Australia – delay in applying for protection in Australia – credibility concerns – decision under review affirmed

LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 5, 65, 359, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS

On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs (the delegate) on 19 January 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 21 August 2023. The delegate refused to grant the visa on the basis that the applicant does not engage Australia’s protection obligations under the refugee or complementary protection criteria in s 36(2)(a) and s 36(2)(aa) of the Act. The applicant provided a copy of the delegate’s refusal decision to the Tribunal as part of the review application.
The applicant appeared before the Tribunal on 28 October 2024 by video conference to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pidgin (PNG) and English languages.
BACKGROUND
The applicant, a [age]-year-old female, last arrived in Australia on [date] May 2023 on a visitor (subclass 600) visa. As outlined in the delegate’s refusal decision, she had previously travelled to Australia as the holder of a visitor visa between [date] February 2023 and [date] May 2023.
As part of her protection visa application, the applicant provided a copy of her current Papua New Guinea (PNG) passport and her National Identity Card. The delegate accepted that the applicant is a citizen of PNG and there is no information before me to the contrary. I find that the applicant is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2402380 (Refugee)

Details

AGLC: 2402380 (Refugee) [2024] ARTA 584
Case: [2024] ARTA 584
Decision Date: 30 October 2024

CaseChat Overview and Summary

The applicant, a citizen of Papua New Guinea (PNG), appeared before the Tribunal on 28 October 2024, presenting her case via video conference with the assistance of an interpreter. She sought a protection visa, claiming to have fled PNG due to abuse by her former partner, [Mr A], and fearing serious harm if she were to return. The Tribunal was required to determine whether the applicant met the criteria for a protection visa under Australian law, specifically if she had protection obligations under the refugee or complementary protection criteria in s 36(2)(a) and s 36(2)(aa) of the Act.

The legal issues revolved around the applicant’s credibility and the consistency of her claims. The Tribunal had to assess whether her evidence was sufficiently credible to meet the required standard for protection obligations. This involved examining the discrepancies and inconsistencies in her statements, her relationships, and the timing of her application. The Tribunal also considered the impact of her post-natal depression on her ability to provide a coherent account. Given the significant discrepancies and omissions in her evidence, the Tribunal found that the applicant’s claims were not credible enough to warrant a protection visa.

The Tribunal affirmed the delegate's decision to refuse the application for a protection visa. It concluded that the applicant’s claims were undermined by significant inconsistencies and the lack of substantiation. The Tribunal accepted that the applicant was experiencing post-natal depression, but this did not sufficiently mitigate the credibility concerns. The Tribunal also noted that the applicant had a supportive family in PNG who could potentially provide her with protection if she returned.

No orders were made as the Tribunal affirmed the delegate’s decision.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The applicant appeared before the Tribunal on 28 October 2024 by video conference to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pidgin (PNG) and English languages.BACKGROUND The applicant, a [age]-year-old female, last arrived in Australia on [date] May 2023 on a visitor (subclass 600) visa. As outlined in the delegate’s refusal decision, she had previously travelled to Australia as the holder of a visitor visa between [date] February 2023 and [date] May 2023. As part of her protection visa application, the applicant provided a copy of her current Papua New Guinea (PNG) passport and her National Identity Card. The delegate accepted that the applicant is a citizen of PNG and there is no information before me to the contrary. I find that the applicant is a citizen of PNG, and that PNG is her receiving country for the purposes of assessing her claims for protection. Evidence before the DepartmentProtection visa application The applicant received assistance with her protection visa application from the Refugee and Immigration Legal Service (RAILS). A summary of relevant biographical information from the protection visa application is below: i.She was born and resided in Port Moresby. Her religion is Lutheran.ii.Her relationship status is ‘Separated’ and her ex-spouse is [Mr A] who currently resides in PNG.iii.She has a daughter (name provided) born in [year] who is currently residing in Port Moresby.iv.Her mother’s name is [Ms B] and her father’s name is [Mr C]. She has 2 younger brothers (names and dates of birth provided).v.From birth until 16 June 2018, she resided at an address in [address]. Between 17 June 2018 and 21 January 2023, she resided at an address in [Suburb 1], Port Moresby. Between 22 January 2023 and 12 February 2023, she resided at an address in [Suburb 2], Port Moresby.vi.She attended high school in Port Moresby between February 2016 and October 2017.vii.She operated a [stall] in [Suburb 1], Port Moresby, between March 2018 and January 2023. Regarding her claims for protection, she stated (in summary):i.She left PNG to escape her abusive partner, [Mr A]. Their relationship began in 2016. He started to abuse her in [2018], while they lived together in Port Moresby. ii.[Mr A] was physically and sexually violent toward her. Every weekend, he would go out drinking, bring other women back to the house and force her to have group sex. If she refused, he would beat her or force her into sexual acts. iii.In 2020 she went to the police at [Suburb 2]. The did not help her and told her to sort it out herself. She asked her family, who live in [Town 1], for help but they told her that it was a family matter and to return to her partner. They told her that she had given up school for this life and had to accept it. She cannot call her family as they do not have phones. She made contact with them via her uncle [Mr D] when he was travelling to [Town 1] and he told her of their response. He told her that her family don’t want to hear from her again.iv.She left [Mr A] in January 2023 and stayed for a few weeks at [Suburb 2]. She feared for her life and had no-one to help her. She travelled to Australia in February 2023 on a visitor visa. While in Australia she was told by a church member that she could remain and seek safety but she could not cope with leaving her daughter in PNG. v.She returned briefly to PNG in May 2023 and went to [Mr A]’s house to see her daughter. [Mr A] was violent toward her and did not allow her to see her daughter. She returned to Australia on [date] May 2023 to seek protection. vi.If she returns to PNG she fears that [Mr A] will physically or sexually abuse her and that she may contract HIV/AIDS from being forced into group sex. If she does not return to live with [Mr A], she would have nowhere to go as her parents will not accept her. She fears that she would be homeless in Port Moresby which would be dangerous for a woman.

Evidence

Evidence Before The Court

As part of her protection visa application, the applicant provided a copy of her current Papua New Guinea (PNG) passport and her National Identity Card. The delegate accepted that the applicant is a citizen of PNG and there is no information before me to the contrary. I find that the applicant is a citizen of PNG, and that PNG is her receiving country for the purposes of assessing her claims for protection. Evidence before the DepartmentProtection visa application The applicant received assistance with her protection visa application from the Refugee and Immigration Legal Service (RAILS). A summary of relevant biographical information from the protection visa application is below: i.She was born and resided in Port Moresby. Her religion is Lutheran.ii.Her relationship status is ‘Separated’ and her ex-spouse is [Mr A] who currently resides in PNG.iii.She has a daughter (name provided) born in [year] who is currently residing in Port Moresby.iv.Her mother’s name is [Ms B] and her father’s name is [Mr C]. She has 2 younger brothers (names and dates of birth provided).v.From birth until 16 June 2018, she resided at an address in [address]. Between 17 June 2018 and 21 January 2023, she resided at an address in [Suburb 1], Port Moresby. Between 22 January 2023 and 12 February 2023, she resided at an address in [Suburb 2], Port Moresby.vi.She attended high school in Port Moresby between February 2016 and October 2017.vii.She operated a [stall] in [Suburb 1], Port Moresby, between March 2018 and January 2023. Regarding her claims for protection, she stated (in summary):i.She left PNG to escape her abusive partner, [Mr A]. Their relationship began in 2016. He started to abuse her in [2018], while they lived together in Port Moresby. ii.[Mr A] was physically and sexually violent toward her. Every weekend, he would go out drinking, bring other women back to the house and force her to have group sex. If she refused, he would beat her or force her into sexual acts. iii.In 2020 she went to the police at [Suburb 2]. The did not help her and told her to sort it out herself. She asked her family, who live in [Town 1], for help but they told her that it was a family matter and to return to her partner. They told her that she had given up school for this life and had to accept it. She cannot call her family as they do not have phones. She made contact with them via her uncle [Mr D] when he was travelling to [Town 1] and he told her of their response. He told her that her family don’t want to hear from her again.iv.She left [Mr A] in January 2023 and stayed for a few weeks at [Suburb 2]. She feared for her life and had no-one to help her. She travelled to Australia in February 2023 on a visitor visa. While in Australia she was told by a church member that she could remain and seek safety but she could not cope with leaving her daughter in PNG. v.She returned briefly to PNG in May 2023 and went to [Mr A]’s house to see her daughter. [Mr A] was violent toward her and did not allow her to see her daughter. She returned to Australia on [date] May 2023 to seek protection. vi.If she returns to PNG she fears that [Mr A] will physically or sexually abuse her and that she may contract HIV/AIDS from being forced into group sex. If she does not return to live with [Mr A], she would have nowhere to go as her parents will not accept her. She fears that she would be homeless in Port Moresby which would be dangerous for a woman.

Decision

Reasons for decision

The applicant attended an interview with the Department on 9 November 2023, accompanied by a representative from RAILS. Relevant evidence from the interview, as outlined in the delegate’s refusal decision, is summarised below:She is currently in a relationship with a man from PNG who is residing in Australia on a student visa. He is the father of the child with whom she is currently pregnant.i. ii.Her uncle, [Mr E], is her father’s brother who lives in Port Moresby. He made the arrangements for her visitor visa application. Asked whether she saw the application, she stated no. When it was raised by the delegate that her signature is on the family composition form, she responded that she saw this form but did not realise that her uncle would be attaching it to the application. She reiterated that she does not know why her uncle included incorrect details regarding her family composition in the visitor visa application. iii.Asked whether she had a birth certificate, the applicant responded that she applied for one in 2018 but only received a National Identification Card, not a birth certificate. iv.Asked whether she had a birth certificate or other identity documents for her daughter, or any photos of her daughter, the applicant responded no. Asked whether she was legally married to [Mr A], she stated no.v.Asked why she ceased operating her [stall] in December 2022, she responded that she was planning to escape from [Mr A]. She confirmed that when she left his house in January 2023, she did not take her daughter with her. She planned to stay at her friend’s house for a few days and return for her daughter. However, when [Mr A] realised she had escaped, he hid their daughter from her.vi.Asked why, if she had planned to leave [Mr A] from December 2022, she did not arrange to bring her daughter with her and collect relevant documents, the applicant stated that she was unsure she would be able to seek help in Australia and feared that [Mr A] would search for them. Delegate’s decision The delegate did not accept the applicant’s family composition as claimed in her protection visa application and found that her parents were as stated in her visitor visa application. The delegate did not accept that the applicant was in a relationship with [Mr A] in PNG, nor that they had a child together. As such, the delegate did not accept the claimed abuse from [Mr A] as credible. The delegate accepted that the applicant was pregnant and in a relationship with a man in Australia. However, the delegate found that she had a supportive family in Port Moresby, who had assisted her with her visitor visa application to Australia and would not be without male protection if she were to return to PNG. Evidence before the TribunalPre-hearing evidence Prior to the Tribunal hearing the applicant submitted copies of several photos (discussed below), together with the following documents:i.Two letters dated 1 August 2024 from a doctor at [a clinic]. One of these letters states that the applicant has been attending the clinic since March 2024 and has discussed her biological daughter in PNG. The author confirms that the applicant’s documented obstetric history includes the delivery of a daughter in PNG. The other letter requests that consideration be given to the applicant’s mental state at her Tribunal hearing as she has been experiencing post-natal depression which is likely to affect her concentration, memory and ability to respond under pressure.ii.Letter dated 12 September 2024 from a doctor at the [clinic] stating that the applicant has experienced post-natal depression since the birth of her son on [date]. This is likely to impact on her memory and concentration at the Tribunal hearing and a request is made for this to be taken into consideration.iii.Letter dated 18 September 2024 from a Counsellor [Organisation 1] confirming that the applicant has been attending perinatal counselling since the birth of her son in Australia, during which she has spoken about experiencing domestic violence and grief due to the separation from her minor daughter in PNG. Oral evidence at hearing

Ratio Decidendi

Legal Principle Established

The issue in this case is whether the applicant engages Australia’s protection obligations under the refugee or complementary protection criteria in s 36(2)(a) and s 36(2)(aa) of the Act. For the following reasons, I have concluded that the decision under review should be affirmed.Criteria for protection visa and mandatory considerations The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class. Relevant provisions of the Act are extracted in the attachment to this decision. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the Department’s ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.Factual findings In determining whether an applicant engages protection obligations, it is necessary to make findings of fact on relevant matters which may involve an assessment of the credibility of the applicant’s claims. I have had regard to the Tribunal’s Guidelines on the Assessment of Credibility and accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[1][1] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at pages 43–44; SZLVZ v MIAC [2008] FCA 1816 at [25] As detailed below, I have significant concerns with key aspects of the applicant’s claims. There are various inconsistencies, omissions, and implausible aspects in the applicant’s account. Having regard to the overall consistency and coherence of the applicant’s account and the nature and extent of these concerns, I am satisfied that in totality they significantly undermine the credibility of her claims. I have taken into account the applicant’s responses to concerns raised and the information from the [clinic] letters regarding her mental health following the birth of her son in June 2024. I accept that she has a young baby and has been diagnosed with post-natal depression which may impact on her concentration and memory. I also accept that the father of her child ended their relationship shortly after the birth and this has caused distress for the applicant. However, I do not consider these factors to sufficiently address my significant credibility concerns outlined below.