ABV17 v Minister for Immigration

[2017] FCCA 2839

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABV17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2839

Catchwords:
MIGRATION – Claim for Protection visa on the grounds that the applicant was considered to be a sorcerer – where the applicant’s sister’s brother-in-law was granted a Protection visa on the grounds that he had a well-founded fear of persecution as a perceived sorcerer in PNG – illogical findings of fact regarding harm suffered by the applicant’s son – applicant’s claim misconstrued or misunderstood because of finding – jurisdictional error established – proceeding remitted for rehearing.

Legislation:

Migration Act 1958 (Cth)

Cases cited:

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] 185 CLR 259

Applicant: ABV17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 22 of 2017

Judgment of: Judge McNab

Hearing date: 7 November 2017

Date of Last Submission: 7 November 2017

Delivered at: Melbourne

Delivered on: 24 November 2017

REPRESENTATION

The Applicant in person

Counsel for the Respondents: Ms Stone

Solicitors for the Respondents: DLA Piper

ORDERS

1. A writ of certiorari issue, quashing the decision of the Second Respondent dated 9 December 2016.

2. A writ of mandamus issue directed to the Second Respondent requiring it to re-determine the application according to law.

3. The First Respondent pay the Applicant’s costs to be agreed or assessed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 22 of 2017

ABV17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By way of an application filed on 6 January 2017, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 9 December 2016 (‘the Tribunal decision’). The Tribunal affirmed a decision of the delegate of the first respondent not to grant the Applicant a Safe Haven Enterprise (Subclass 790) visa.

2. The applicant lists three grounds of review:

   1. I was not given a fair hearing.

   2. The AAT made a mistake.

   3. Victoria Legal Aid are assessing my case and I will provide, an amend application at a later time.

3. No particulars have been provided by the applicant as to how the Tribunal erred. Notwithstanding the broad nature of the grounds raised and particulars provided, the Court has reviewed the decision for the purpose of determining whether there is a ground or grounds that have not been articulated by the unrepresented Applicant.   

Factual Background

1. The applicant is a citizen of Papua New Guinea (PNG).

2. On 7 October 2015 she arrived in Australia on a visitor visa with her sister R, her sister’s sister in law E, her sister’s brother in law J and aunt A.

3. On 6 May 2016, the applicant applied for a Safe Haven Enterprise (subclass 790) visa. She was interviewed in respect of her claims on 10 May 2016.

4. The applicant claimed to fear harm in PNG for the following reasons:

   a)The applicant had lived  in Port Moresby with her sister R, her husband A and their children since about 2004. The applicant has 4 children: two biological and two adopted aged 21,17,7 and 3. The three youngest children continue to reside in Port Moresby with A, his children and A’s  mother.

   b)The applicant’s sister’s brother in law J and sister in law E were blamed for the death of two tribal leaders through the use of sorcery in the Simbu province in mid-2015. J and E fled Simbu province and lived in the home with R, A and the applicant in Port Moresby.

   c)The applicant claimed to fear harm from members of the Dinga tribe. She claimed that since her arrival in Australia her adult son J ( aged 21)  was attacked by people from the Dinga tribe as revenge for the death of the 2 tribal leaders in Simbu because he is regarded as A’s son.

   d)The applicant claimed that she and other family members were seen by their own community as harbouring sorcerers, and claimed that this caused them to be harassed and threatened and accused of being sorcerers themselves.

   e)She claimed that she was at greater risk as a woman without a husband; and

   f)She claimed that she had personally been labelled a witch in 2014 following the death of a girl in her community.

5. In her written submission dated 19 May 2016, it was submitted that the applicant had a well-founded fear of persecution on return to PNG due to her membership of the particular social groups of ‘women from PNG’; ‘separated/divorced women from PNG’; and ‘women from PNG perceived to be sorcerers’.

6. On 23 August 2016, a delegate of the first respondent refused the application.

7. On 31 August 2016, the applicant applied to the Tribunal for review of the delegate’s decision, which she attended on 20 October 2016.

8. On 9 December 2016, the Tribunal affirmed the decision under review.

Tribunal Decision

1. The Tribunal accepted that the applicant was a separated woman from Port Moresby with four children. It accepted that she and her children had lived with her sister, her sister’s family, and her mother and aunt in Port Moresby since 2004. The Tribunal also accepted that her sister’s brother in law J and her sister’s sister in law E lived with her from approximately May 2015 until October 2015 and from approximately July 2015 respectively at [24].

2. The Tribunal accepted the applicant’s account as to events that led to J and E fleeing Simbu province because they were accused of causing the death of two Dinga tribe leaders using sorcery. In making such a finding, it relied largely on J’s evidence which it regarded as credible, the Tribunal to accepted his claims in his (separate) review application.

3. At [24], the Tribunal distinguished the applicant’s circumstances from J’s, noting:

   …whilst the Tribunal accepted that the applicant is related to J by marriage, J stayed in her home when he escaped from Simbu province and her claims stem from the sorcery matters related to J (and E) for the reasons that follow the Tribunal does not accept that the applicant was ever labelled a sorcerer in PNG in relation to J (or E) or for any other reason, nor threatened or harmed as a result and therefore finds remote the chance that she would be on return.

4. The Tribunal did not accept that the applicant was labelled a sorcerer in the past in PNG nor threatened either directly or indirectly by Dinga tribesmen as a suspected sorcerer because she helped accommodate J and E from Simbu Province, or for any other reason. The Tribunal did not accept that relatives of the deceased tribal leaders from Simbu province visited her home in Port Moresby on three occasions. The Tribunal noted at paragraph [25]:

   a) The Tribunal found the applicant’s oral evidence about the alleged visits to their house in Port Moresby by relatives of NK and PL vague and jumbled. For instance, she told the Tribunal that on three occasions their relatives came to the house and screamed for the witches. However she was vague about who was at home each time, for instance, and was not able to differentiate circumstances between the three visits, even though she claims she witnessed the visits from her mother’s shop nearby. The applicant’s evidence was also inconsistent with her sister’s (R’s) oral evidence to the Tribunal in her case, who told the Tribunal that these Dinga tribesmen never visited their house, as discussed with the applicant pursuant to s. 424AA of the Act at the Tribunal hearing. In response the applicant explained that R was not there during the alleged visits by Dinga tribesmen. However even if that was the case the Tribunal would expect R to have heard subsequently that Dinga tribesmen had visited her house on three occasions, particularly given the applicant’s oral evidence that on one occasion her husband was home.

   b) As well, the Tribunal found the applicant vague and somewhat evasive when asked at hearing specifically how she had been labelled a sorcerer and when she first realised she had been labelled. She did not answer the question and instead replied that as a single mother ‘they’ blame her. When asked if she was blamed or had just assumed this would happen, the applicant replied that some men told her she was one of them however when pressed for details, she was unable to state when or where this happened, nor who specifically told her she was “one of them’. Instead she raised, for the first time, a claim that she had been accused of the death of a girl in her community in 2014 through witchcraft, as discussed above. When asked why she did not mention this information before, the applicant said she did not think to include it in her application because it was something that had happened beforehand. The Tribunal is not persuaded by this explanation, particularly given an accusation of sorcery in the past is directly relevant to her core protection claims. Given the late introduction of this claim the Tribunal does not accept that the applicant was accused of practising sorcery following the death of a young girl in Port Moresby in 2014.   

5. The Tribunal accepted that there was some risk to the applicant on return to PNG because she was related to J and he stayed in her house. The Tribunal accepted that as an in-law to J, she could be considered a member of the particular social group of J’s family. The Tribunal also accepted that her risk may be increased by virtue of being a single woman, single mother and separated/divorced woman.[1] However, the Tribunal did not accept her claims that she was labelled a sorcerer in the past, and did not accept that any family members had been threatened or harmed by Dinga tribesman or the wider community because J and E were accused of sorcery, despite remaining in the same house in Port Moresby. The Tribunal concluded at paragraph [26]:

   For these reasons the Tribunal considers remote the chance that the applicant would be labelled a sorcerer on return to Port Moresby and seriously harmed as a result by Dinga tribesmen, the community or the wider population because she is related to J by marriage, he stayed in her home when he escaped from Simbu province and because J has been accused as a sorcerer in Simbu province, or as a member of a particular social group of J’s family, even when taking into account that she is a single mother and a separated/divorced woman. The applicant’s fears of persecution on this basis are not well founded.

   [1] Tribunal decision [26].

6. The Tribunal expressed concern that the applicant was unable to adequately explain why she was labelled a sorcerer in relation to the above matters, and in particular why her mother, who also accommodated J and E was not. The Tribunal cited country information indicating that women in PNG are often the victims of sorcery-related violence. However it was not satisfied by the applicant’s explanation at the hearing as to why her mother would not be a target, namely because she is ‘a very strong and outspoken woman in her church, stands for her rights and therefore they would not touch her’.[2]

   [2] Ibid [27].

7. The Tribunal found that nothing had happened to the applicant or to the other women in her household who were allegedly labelled sorcerers from May to October 2015, after J started living with them.

8. The Tribunal was not satisfied that the applicant’s family members who remained in PNG had been harmed in relation to the claimed sorcery accusations. The Tribunal accepted that the applicant’s son was attacked in October 2015 in Port Moresby but did not accept that the attackers were Dinga tribesmen or in any way linked with the events in the Simbu province.[3]

   [3] Tribunal decision [29].

9. The Tribunal also did not accept that there was a real risk that the applicant would suffer significant harm as a necessary and foreseeable consequence of the applicant being removed from Australia to PNG.

Consideration

1. An issue arising in this case and one that the Court raised with counsel appearing on behalf the respondent was that the Court was concerned with the possibility of inconsistency arising between the decision given by the Tribunal in relation to the applicant’s brother in law J and the decision in this matter by the same Tribunal member.

2. In the decision regarding J,[4] the Tribunal held that J was a person in respect of whom Australia owed protection obligations under section 36(2)(a) of the Act.

   [4] Court book 167 – 180.

3. In reaching this decision the Tribunal held:

   (a) J is a member of the Nilmol clan of the Dinga tribe who originates from Simbu Province. It accepts he left there in May 2015 following the death of a local councillor…and went to Port Moresby where he stayed with his brother and his family until he departed PNG in October 2015. It accepts that a former governor of Simbu province…died in July 2015 whilst the applicant was in Port Moresby as claimed.[5]

   (b) J faces a well-founded fear of persecution for reason of his membership of a particular social group of “perceived sorcerers in PNG” by Dinga tribe members in Simbu province.[6]

   (c) J lived in Port Moresby for about four months (from May to October 2015) and was not harmed after fleeing sorcery-related violence in Simbu Province, which may indicate that he was not of interest to family members of the deceased tribal leaders (and others) outside that province….The Tribunal has accepted that the threat from Dinga tribe members who have accused him of sorcery continues, and notes country information referred to above indicates that people from Simbu province, for example, who have moved elsewhere in PNG have exported their beliefs about sorcery to their new homes.[7]

   [5] Tribunal decision dated 29 November 2016 [24].

   [6] Tribunal decision dated 29 November 2016 [54].

   [7] Ibid [56].

4. The difficulty for the Court is that the Tribunal held that J was under continued threat from Dinga tribesman whilst he continued to reside in Port Moresby with the applicant but held that the applicant was not under threat although she was living in the same house as J. I respectfully suggest there is an element of illogicality involved in finding that a person accused of harbouring a sorcerer who is regarded as responsible for the death of two tribal leaders would not herself be at risk of serious harm. This is particularly the case where the Tribunal has found that J is under continued threat from people from the Simbu province.

5. A further matter of concern to the Court is that the finding by the Tribunal that the applicant’s 21-year-old son was attacked in October 2015 in Port Moresby and suffered serious facial injuries but did not accept that his assailants were Dinga  tribesman or in any way linked to the events in Simbu province.

6. One basis of that finding was that the applicant had claimed that her son was attacked because she was accused of witchcraft whereas at the hearing before the Tribunal the applicant had said that she left her children behind because they would not do anything to them because children are not accused of witchcraft and not at risk. The difficulty with this finding is that although the 21-year-old who was injured was the applicant’s child at the time of the alleged attack, he was not a child in the sense that it was clearly used by the applicant, that being a young person as opposed to 21-year-old man.

7. In the Court’s view, this aspect of the decision involves an element of illogicality as that expression is used in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 per Crennan and Bell JJ at [130]. The finding that it was unlikely that the applicant’s son was attacked as a result of his connections to sorcery because he was a child and the applicant had stated that children are generally not the target of accusations of witchcraft is illogical and unreasonable having regard to the fact that he was 21 years old when he was attacked. By misconstruing or misunderstanding the applicant’s evidence the Tribunal has failed to properly consider an important aspect of the applicant’s claims.

8. The issue for the Court is whether that error is jurisdictional in nature. In my view it is, having regard to the importance of the particular evidence in relation to the applicant’s son’s injury and the treatment of that evidence.

9. In Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [113], Roberson J stated in relation to misconstruing or misunderstanding a claim:

   In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1, referred to in MZXSA v Minister for Immigration and Citizenship (2010) 117 ALD 441, [2010] FCAFC 123 at [83], the Full Court discussed extensively errors of fact and jurisdictional error in the Tribunal. The Court said at [63] that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error was tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. I do not regard that decision as stating or attempting to state exhaustively the circumstances in which error may or does go to jurisdiction.

10. In circumstances where the Tribunal has not accepted’s claims in relation to the treatment meted out to her son J, and where those claims were important as a claim and as part of the Tribunal’s reasons for not accepting the Applicant’s claims, the error in this case is jurisdictional in nature.

11. I accept that there are other reasons why the tribunal did not accept that the applicant was regarded as a sorcerer or at risk and the court is mindful not to engage in merits review. (See Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] 185 CLR 259 at 272).

12. However, in this matter, the non-acceptance of the applicant’s claim in relation to her 21-year-old son being attacked by Dinga tribes people because of his perceived association with sorcerers was illogical and unreasonable for the reasons state given that claim formed an important part of the applicant’s claims to be entitled to a Protection visa.

13. In the circumstances I order that the decision of the Tribunal be quashed and the matter be remitted for rehearing according to law.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate: 

Date:  24 November 2017