2406296 (Refugee) - [2024] AATA 4429

2406296 (Refugee) [2024] AATA 4429 (1 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Jennifer Nugent
CASE NUMBER:  2406296
COUNTRY OF REFERENCE:                   Papua New Guinea
MEMBER:Don Smyth
DATE:1 October 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.

Statement made on 01 October 2024 at 6:30pm
CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – particular social group – persons accused of sorcery – tribal violence – sorcery accusation related violence – kidnapping – physical assault – fear of killing – internal relocation – state protection – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
SZLVZ v MIAC [2008] FCA 1816
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
BACKGROUND

It has been claimed that each of the applicants is a citizen of Papua New Guinea (PNG). PNG passports have been provided with respect to each of the applicants. I accept that the applicants are all nationals of PNG.
The applicants applied for protection visas on 13 October 2023. On 13 March 2024, a delegate of the Minister for Home Affairs (the Minister) made a decision to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act). This is a review of that decision.
It has been claimed that the first named applicant is the father of the other applicants. Birth certificates have been provided for each of the applicants. Having regard to the documentary evidence, I accept that the first named applicant is the father of the other applicants. For convenience, I will refer to the first named applicant as ‘the applicant’ and to the other four applicants as ‘the applicant children’.
The applicant appeared before the Tribunal to give evidence and present arguments. Having regard to the age of the applicant children, I accept that they were not in a position to give evidence themselves. In these circumstances, the applicant gave evidence on behalf of himself and each of the applicant children. He appeared before the Tribunal at an initial hearing on 10 July 2024 and then at resumed hearings on 15 August 2024 and 17 September 2024. I have considered carefully the applicant’s oral evidence across his three appearances before the Tribunal. Aspects of his oral evidence are discussed in my reasons, below. I took oral evidence from 2 additional witnesses, namely [Pastor A] and [Witness A], and have had regard to this evidence also. The Tribunal hearings were conducted with the assistance of an interpreter in the Tok Pisin and English languages.
The applicants were represented in relation to…

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 2406296 (Refugee)

Details

AGLC: 2406296 (Refugee) [2024] AATA 4429
Case: [2024] AATA 4429
Decision Date: 1 October 2024

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a person and their children. The applicants claimed to fear persecution in Papua New Guinea due to accusations of sorcery, which had led to tribal violence, kidnapping, and physical assault. The decision was made by Don Smyth, a Member of the Tribunal.

The primary legal issues before the Tribunal were whether the applicants met the criteria for a protection visa under section 36(2)(a) of the *Migration Act 1958* (Cth) as refugees, or alternatively, under section 36(2)(aa) as persons facing significant harm as a necessary and foreseeable consequence of removal to Papua New Guinea. This involved considering the definition of a refugee, the meaning of "well-founded fear of persecution," and the concept of "significant harm," including whether internal relocation was a viable option or if effective state protection was available.

The Tribunal considered the applicant's claims and evidence, acknowledging some inconsistencies but ultimately giving the applicant the benefit of the doubt. The Tribunal found that the available evidence did not suggest the applicants had a right to enter and reside in any third country. The Tribunal remitted the matter for reconsideration with a direction that the applicants satisfy the criteria under section 36(2)(a) of the *Migration Act*.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicants were represented in relation to the review. The representative attended the Tribunal hearings.SUMMARY OF CLAIMS AND EVIDENCEProtection Visa Application According to information provided in his protection visa application, the applicant was born in Port Moresby in [specified year]. He married [in] February 2012. The application included the applicant’s four children, [names and dates of birth]. As noted above, I will refer to these applicants as ‘the applicant children’. The applicant identified his spouse / de facto partner as [Partner A], born in Lae in [year]. He gave a contact address for his wife in Port Moresby and indicated that he had contact with his wife. The applicant indicated that he had lived at addresses in Port Moresby (including an address in [Town 1]) [until] September 2023. The applicant indicated that he had completed his schooling in Port Moresby between [specified years] before completing a [Qualification 1] between [specified years]. The applicant did not provide details of past employment in the protection visa application, although he did subsequently detail his employment in a statutory declaration (as summarised below). The application indicated that the [older] children had attended primary school until October 2023. The applicant gave his ethnic group as Pacific Islander and his religion as Baptist. The applicant indicated that he had received a visitor visa valid for 3 months in Australia. He indicated that he and the applicant children had arrived in Australia as visitors [in] September 2023. The applicant set out written claims in his protection visa application and in a supplementary statement (headed ‘Background’). In summary, he referred to an accident on [a day in] June 2019 in which a truck driver, [Driver A], from [Village 1] in [District 1], Eastern Highlands was killed. He described [Driver A’s] status as [connected to] a chief in the district and indicated that his death had led to conflict between two tribes in the Eastern Highlands provinces. He described the consequences of the fighting. The applicant made claims to the effect that [Driver A’s] family did not accept the death and attributed the accident to sorcery. He referred to a female relative of [Driver A] performing a ritual, identifying five innocent men and naming one person as the sponsor who funded the others to perform the sorcery. The applicant stated that he was accused of giving funds to the four men to do the sorcery. The applicant described harm experienced in PNG. In summary, he stated that he was dragged, bashed and physically abused. He claimed to have witnessed the killing of 3 other people who were accused of involvement. The applicant described his village experiencing harm and his family feeling unsafe because they were the ones targeted. He referred to being targeted because it was claimed that he sponsored the killing of the chief’s [associate] and claimed that his wife and children were most at risk. The applicant described having tried to get help at the police station but said that they could not do much. He described going to the Family and Sexual Violent [sic] Unit to get support but said all they could do was record the issues and say to come back to the police if it happened to them.

Decision

Reasons for decision

On the available evidence, there is no suggestion that any of the applicants would have a right to enter and reside in any third country such that s 36(3) would apply.DECISION The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.Don SmythMemberATTACHMENT - Extract from Migration Act 19585 (1) Interpretation…cruel or inhuman treatment or punishment means an act or omission by which:(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;but does not include an act or omission:(c) that is not inconsistent with Article 7 of the Covenant; or(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:(a) that is not inconsistent with Article 7 of the Covenant; or(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:(a) for the purpose of obtaining from the person or from a third person information or a confession; or(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or(c) for the purpose of intimidating or coercing the person or a third person; or(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…receiving country, in relation to a non-citizen, means:(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.…5H Meaning of refugee(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.Note: For the meaning of well-founded fear of persecution, see section 5J.…5J Meaning of well-founded fear of persecution(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and(c) the real chance of persecution relates to all areas of a receiving country.Note: For membership of a particular social group, see sections 5K and 5L.(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.Note: For effective protection measures, see section 5LA.(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or(b) conceal an innate or immutable characteristic of the person; or(c) without limiting paragraph (a) or (b), require the person to do any of the following:(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;(ii)conceal his or her true race, ethnicity, nationality or country of origin;(iii)alter his or her political beliefs or conceal his or her true political beliefs;(iv)conceal a physical, psychological or intellectual disability;(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and(b) the persecution must involve serious harm to the person; and(c) the persecution must involve systematic and discriminatory conduct.(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:(a) a threat to the person’s life or liberty;(b) significant physical harassment of the person;(c) significant physical ill‑treatment of the person;(d) significant economic hardship that threatens the person’s capacity to subsist;(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.5K Membership of a particular social group consisting of familyFor the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and(b) disregard any fear of persecution, or any persecution, that:(i)the first person has ever experienced; or(ii)any other member or former member (whether alive or dead) of the family has ever experienced;where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.Note: Section 5G may be relevant for determining family relationships for the purposes of this section.5L Membership of a particular social group other than familyFor the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:(a) a characteristic is shared by each member of the group; and(b) the person shares, or is perceived as sharing, the characteristic; and(c) any of the following apply:(i)the characteristic is an innate or immutable characteristic;(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;(iii)the characteristic distinguishes the group from society; and(d) the characteristic is not a fear of persecution.5LA Effective protection measures(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:(a) protection against persecution could be provided to the person by:(i)the relevant State; or(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:(a) the person can access the protection; and(b) the protection is durable; and(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.…36 Protection visas – criteria provided for by this Act…(2)A criterion for a protection visa is that the applicant for the visa is:(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (a); and(ii)holds a protection visa of the same class as that applied for by the applicant; or(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (aa); and(ii)holds a protection visa of the same class as that applied for by the applicant.(2A)A non‑citizen will suffer significant harm if:(a) the non‑citizen will be arbitrarily deprived of his or her life; or(b) the death penalty will be carried out on the non‑citizen; or(c) the non‑citizen will be subjected to torture; or(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or(e) the non‑citizen will be subjected to degrading treatment or punishment.(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.…

Ratio Decidendi

Legal Principle Established

If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.Mandatory considerations In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCEFactual Findings I have carefully considered all of the available evidence in this matter. I am conscious that the applicant has given an account of his claims across multiple written statements, as well as a Departmental interview and three appearances before the Tribunal. There is now also a significant volume of documentary evidence and submissions. I have also taken oral evidence from 2 witnesses. My factual findings are based on a careful consideration and weighing of this evidence in its entirety. There are aspects of the evidence that have caused me some concern with respect to the credibility of elements of the applicant’s claims. However, for reasons outlined below and having regard to the entirety of the evidence, I consider that it is appropriate in this case to give the applicant the benefit of the doubt notwithstanding that there are some matters that have caused me concern. In making my findings, I am conscious also that the applicant claims to be a survivor of torture and trauma. While I am willing to accept that he is on a waiting list to receive services from [Agency 1], there is nothing in the evidence before me to indicate that he was not fit to give evidence to the Tribunal. I have had regard to the Migration and Refugee Division Guidelines on Vulnerable Persons and the psychological effects of traumatic experiences, as referred to for instance at paragraphs 92 and 93 of those Guidelines. The broad nature of the applicant’s claims has remained consistent over time notwithstanding that there have been inconsistencies in some aspects of the evidence as discussed below. The applicant gave detailed evidence about his claims at the hearing. Again the broad scope of his claims and evidence, and the basis for his claimed fear, was consistent with his earlier written and oral evidence. He provided a considerable level of detail in relation to these claims across the course of 3 appearances before the Tribunal.