APE16 v Minister for Immigration and Border Protection

[2018] FCCA 2094

FEDERAL CIRCUIT COURT OF AUSTRALIA

APE16 v MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR [2018] FCCA 2094

Catchwords:
MIGRATION – Administrative Appeals Tribunal – protection (class XA) visa – extension of time – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Migration Amendment (Complementary Protection) Act 2011 (Cth)

Migration Legislation Amendment Act (No 1) 1998 (Cth)

Cases cited:

CSO15 v Minister for Immigration and Border Protection [2018] FCAFC 14
Minister for Immigration and Border Protection v SZSCA & Anor [2014] HCA 45
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
NBTK v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; 228 CLR 294
SZBYR & Anor v Minister for Immigration and citizenship & Anor [2007] HCA 26
SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235
SZQEN v Minister for Immigration and Citizenship [2012] FCA 387; 202 FCR 514
SZQPY v Minister for Immigration and Border Protection [2013] FCA 1133

Applicant: APE16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 557 of 2016

Judgment of: Judge Mercuri

Hearing date: 22 March 2018

Date of Last Submission: 22 March 2018

Delivered at: Melbourne

Delivered on: 24 August 2018

REPRESENTATION

Counsel for the applicant: Mr M Albert

Solicitors for the applicant: Asylum Seeker Resource Centre

Counsel for the respondents: Mr B Petrie

Solicitors for the respondents: Sparke Helmore

ORDERS

1. The application for an extension of time under section 477(2) of the Migration Act 1958 be granted.

2. The application filed on 21 March 2016 and amended on 7 March 2018 be dismissed.

3. The applicant pay the first respondent’s costs in a sum to be fixed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 557 of 2016

APE16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

Introduction and background

1. This is an application for judicial review of the decision of the Administrative Appeals Tribunal (“the tribunal”) made on 13 November 2015. The tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (“the Minister”), not to grant the applicant’s application for a protection (class XA) visa under section 65 of the Migration Act 1958 (Cth) (“the Act”).

2. The applicant is a citizen of Papua New Guinea (“PNG”) and arrived in Australia on a visitor’s visa on 31 March 2009. That visa expired on 30 June 2009, at which time the applicant became an unlawful non-citizen. The applicant applied for a protection visa on 8 November 2010, which was later deemed to be invalid (“2010 protection visa application”).[1] 

   [1] Court book pages 16 to 18.

3. The applicant made a further application for a protection visa on

   
   

   22 March 2011.[2] That application was refused by a delegate of the Minister on 9 June 2011[3], and the tribunal affirmed the delegate’s decision on 31 October 2011.[4] The applicant did not seek judicial review of that decision.

   [2] Court book pages 19 to 50.

   [3] Court book pages 56 to 69.

   [4] Court book pages 88 to 113.

4. As a result of the Migration Amendment (Complementary Protection) Act 2011 (Cth), section 36(2)(aa) of the Act was enacted. Following this amendment and the decision in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235 (“SZGIZ”)[5],

   
   

   non-citizens such as the applicant who had previously been denied a protection visa were able to apply for a further protection visa on the basis of section 36(2)(aa) of the Act. Section 48A of the Act precluded any such application from seeking to re-agitate a fresh claim under the refugee criterion contained in section 36(2)(a).

   [5] SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235 at [32] and [47] per Allsop CJ, Buchanan and Griffiths JJ.

5. The applicant applied for a protection visa on 5 August 2013.[6] The application was supported by a statutory declaration made by the applicant on 5 August 2013. 

   [6] Court book pages 114 to 187.

6. As stated, for the reasons discussed in SZGIZ, this application was limited to a claim under the complementary protection regime in section 36(2)(aa) alone.

Extension of time

1. Section 477 of the Act requires that an application to this court for a remedy under section 476 must be made within 35 days of the decision in respect of which judicial review is sought. In this case, the decision was made on 13 November 2015 and the application was not filed until 21 March 2016, outside the 35 day time limit. Consequently, the applicant also sought an extension of time pursuant to section 477(2) of the Act.

2. At the hearing before me, counsel for the Minister indicated that the Minister did not oppose the application for an extension of time. The matter therefore proceeded on its merits.[7]

   [7] Transcript page 3 at line 5.

3. In the absence of any opposition to the granting of an extension of time, and having regard to the reasons provided by the applicant for the extension of time set out in the applicant’s affidavit affirmed

   
   

   18 March 2016, I am satisfied that it is in the interests of the administration of justice for an extension to be granted and make an order to that effect.

The applicant’s claims

1. The applicant claimed:

   a)she was born in Mount Hagen in the central Highlands of the main island of PNG on 16 March 1982;

   b)in 2000, war broke out in Mount Hagen between neighbouring tribes whilst she continued to live in Mount Hagen until 2001 when she was raped by members of the Kimbin Rami Tribe who threatened to kill her if she told anyone;

   c)as a result of the rape, the applicant could not have children;

   d)she was diagnosed with a mental disorder about six months after the rape;

   e)in 2001, the applicant moved to Port Moresby where she lived until she came to Australia in 2009;

   f)in 2008, the applicant married her husband who was abusive towards her from early in their relationship;

   g)the applicant and her husband came to Australia in 2009 on a visitor’s visa;

   h)the applicant has had ongoing heart issues since 2011 and has had heart surgery two times but continues to suffer heart problems;

   i)

   the applicant’s husband took her to the hospital on

   
   

   28 May 2013 for her second heart operation, but did not return to pick her up after she was released following that surgery and the applicant stated that she has not seen her husband since then;

   j)on 18 June 2013, the applicant received a threatening text message from her husband which said:

   Useless arsehole woman thanks for making me fall into your problems as I got trapped for six solid years. Making risk my life. Now you enjoy freedom here and I’m on my way back home but remember one fine day you will come to PNG and that time I’ll make sure you will feel the pain and suffering like other ladies feel. Enjoy;[8]

   k)the applicant provided country information which concerned a woman from Mount Hagen who had been ‘brutally mutilated and murdered’ by persons hired by the woman’s former husband;

   l)the applicant claimed that she feared that her husband would attack her and further stated that if she returned to PNG, she would have to live in either Port Moresby or Mount Hagen and that her husband could easily find her as it is a small place and they know the same people;

   m)the applicant claimed to fear both her husband and his family and stated that there was no one to protect her either in Mount Hagen or in Port Moresby and that she would only be able to protect herself from her husband if she remained in Australia;

   n)she claimed that if she lived in Mount Hagen she would have to live with her parents and they could not protect her as they are very old and frail;

   o)she added that the police are unlikely to provide protection as domestic violence is not investigated by police in PNG, as it is considered a family matter; and  

   p)the applicant also claimed that she has continued to experience health problems following the second operation in 2013 and has also been diagnosed with severe mental health issues stemming from her experiences in PNG; is engaged with a psychologist in Australia and that if she was to return to PNG she would not be able to continue to get the medical and psychological care she needs. 

   [8] Court book page 187 and page 253 at paragraph [17].

The tribunal’s reasons

1. After setting out the applicant’s claims and the material submitted by the applicant in support of her application, the tribunal addressed some inconsistencies between the applicant’s current application and the 2010 protection visa application. 

2. The tribunal put these and other inconsistencies to the applicant but were unsatisfied with her response. The tribunal concluded that the applicant’s failure to make some of the claims she now pressed in her 2010 protection visa application “could undermine the applicant’s credibility regarding her claims…”[9]

   [9] First respondent’s outline of submissions filed 16 March 2018 at paragraph [10].

3. The tribunal noted a number of inconsistencies in the evidence which the applicant provided at different times in relation to the alleged rape. The tribunal put these inconsistencies to the applicant as required by section 424AA of the Act. Even allowing for the trauma and confusion which would occur following a rape, the tribunal concluded that:

   …the many inconsistencies in the evidence concerning the circumstances of the rape and medical treatment received after it cast doubt on the credibility of the applicant’s claims to have been raped.[10]

   [10] Court book page 257 at paragraph [41].

4. Further, as required by section 424AA of the Act, the tribunal also put to the applicant apparent inconsistencies in her evidence regarding whether the Kimbin Rami Tribe had come to Port Moresby while she was living there.

5. The tribunal concluded that there were significant inconsistencies in that evidence which “go to the applicant’s credibility as to whether the Kimbin Rami Tribe were looking for the applicant or threatening or harming her in Port Moresby.”[11]

   [11] Court book page 257 at paragraph [44].

6. After identifying the applicant’s evidence in relation to her husband and the violence he had subjected her to during their relationship, the tribunal, as required by section 424AA, put to the applicant the movement record from the Department of Immigration which indicated that the applicant’s husband had not left Australia and despite remaining here, he had taken no action to contact, threaten or harm the applicant since allegedly sending her a threatening text message in June 2013 (some two years earlier).[12]

   [12] Court book page 257 to 258 at paragraphs [45] to [51].

7. The tribunal addressed the applicant’s concerns regarding the potential for her to have to repay her ‘bride price’ in circumstances where she did not have the means to repay it, although it was noted that the applicant did not assert that the husband’s family had sought the repayment of the ‘bride price’ from her family in PNG.[13]

   [13] Court book page 258 at paragraph [52].

8. The tribunal then addressed the concerns raised by the applicant regarding her fears arising from the alleged tribal warfare if she were to live in Port Moresby[14] and relevantly noted “that in Port Moresby she would be closer to necessary medical care. The applicant said that she would have to return to Mt Hagan (sic).”[15]

   [14] Court book page 258 at paragraph [53] to page 259 at paragraphs [54] to [57].

   [15] Court book page 259 at paragraph [56].

9. The tribunal also addressed relevant factors relating to:

   a)the applicant’s delay in seeking a protection visa;[16]

   b)whether the applicant had more general concerns about being a woman in PNG;[17] and

   c)the applicant’s current medical condition and the need for intention as a key element of any claim of ‘significant harm’ under the complementary protection criteria.[18]

   [16] Court book page 259 at paragraph [58].

   [17] Court book page 259 at paragraph [59].

   [18] Court book page 260 at paragraphs [60] to [61].

10. The tribunal made the following findings and assessments:

    a)the tribunal had significant concerns about the applicant’s credibility, particularly arising from her failure to refer to the alleged rape and her fear of harm due to tribal wars in the 2010 protection visa application;[19]

    [19] Court book page 260 at paragraph [63].

    b)the tribunal was not satisfied that the applicant was a witness of truth in relation to the alleged rape or in relation to her fears of harm from the Kimbin Rami Tribe or being monitored by them either in Mount Hagen or in Port Moresby;[20]

    [20] Court book page 260 at paragraph [65].

    c)the tribunal accepted that the applicant had been diagnosed with post-traumatic stress disorder, depression and anxiety, but went on to find that this diagnosis did not overcome many of the difficulties in the applicant’s evidence, nor was it satisfied that this diagnosis was necessarily evidence of the alleged rape and pursuit by the Kimbin Rami Tribe;[21]

    [21] Court book page 260 at paragraph [66] and page 261 at paragraphs [67] to [68].

    d)

    the tribunal concluded that the applicant effectively had two

    
    ‘home areas’

    , her village in Mount Hagen and Port Moresby and relevantly stated:

    The applicant has variously claimed that she would live either in Mt Hagan (sic) or Port Moresby should she return to Fiji. The applicant’s (sic) has expressed concern that she could not live in Port Moresby due to being at risk of harm from her husband, the expense, and the fact that she could not get a job, notwithstanding that it is closer to medical facilities.  In relation to the former, the Tribunal is not satisfied that the applicant is at a real risk of significant harm from her husband in PNG as discussed below.[22]

    [22] Court book page 261 at paragraph [68].

    Given her medical conditions, she will have a strong incentive to remain in Port Moresby to access medical treatment.[23]

    [23] Court book page 261 at paragraph [70].

    e)after discussing some of the possible difficulties that the applicant might have if she moved to Port Moresby, the tribunal concluded that whilst it was prepared to accept:

    …for the purposes of this decision that there was a real risk of significant harm to the applicant in Mt Hagan (sic) as a result of tribal violence… as the Tribunal is of the view that the applicant has two home areas, the Tribunal is also of the view that the applicant would be able to live in her second area of Port Moresby without a real risk of significant harm.  The Tribunal is not satisfied, based on the independent evidence, that there is a real risk that tribal warfare in
    Mt Hagan (sic) would follow her to Port Moresby.[24]

    [24] Court book page 261 at paragraph [72].

    f)the tribunal then went on to consider the applicant’s claim that she feared harm from her husband should she return to PNG and concluded that it was not satisfied that the:

    …applicant’s husband poses a real risk in PNG of physically harming the applicant, forcing her to be with him as his wife, or cause her any form of significant harm as defined in the Act. The Tribunal does not consider that the pain that the applicant would feel if she wants to go back to her husband, but be rejected, constitutes significant harm for the purposes of the Act.[25]

    g)the tribunal considered the applicant’s claim that her husband or his family would harm her or seek repayment of the bride price and concluded that this was entirely speculative;[26]

    h)the tribunal acknowledged that violence against women in PNG is prevalent and that domestic violence is rarely addressed, but noted that not every woman in PNG faces a real risk of significant harm because she is a woman; rather, the woman’s individual profile must be considered. For the reasons previously discussed, the tribunal was not satisfied that the applicant had any particular attribute or profile which “put(s) her at a real risk of significant harm because she is a woman should she return to PNG”;[27]

    i)in considering the applicant’s health concerns, the tribunal was not satisfied that there was a real risk of the applicant suffering significant harm as defined, as a result of the standard of the PNG health system;[28] and

    j)

    finally, the tribunal was not satisfied that any increased difficulties to the applicant’s life as a result of a move from Australia back to PNG would not otherwise fall within the definition of

    
    

    ‘significant harm’ for the purposes of the Act.[29]

    [25] Court book page 261 at paragraph [73] to [74] and page 262 at paragraphs [75] to [80]. 

    [26] Court book page 262 at paragraph [81].

    [27] Court book page 263 at paragraph [83].

    [28] Court book page 263 at paragraph [84] to [86].

    [29] Court book page 263 at paragraph [87].

11. The tribunal therefore was not satisfied that there were substantial grounds to believe that as a necessary and foreseeable consequence of the applicant being removed from Australia to PNG, there was a real risk that she would suffer significant harm for any of the claimed reasons ‘or for any other reason’.[30]

    [30] Court book page 264 at paragraph [88].

Ground one

1. The first ground of review in the application filed on 21 March 2016 and amended on 7 March 2018 is:

   The Tribunal erred by making its decision in breach of s 424A of the Migration Act 1958 (Cth), namely by failing to invite the applicant to comment on or respond to the claim that her specific medical condition provided her with a ‘strong incentive to remain in Port Moresby to access medical treatment’.[31]

   [31] Applicant’s amended application filed 7 March 2018 on page 3 at paragraph [1] under ‘grounds for review’.

2. Section 424A of the Act relevantly provides:

   (1)Subject to subsection (2A) and (3), the Tribunal must:

   (a)give the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review; and

   (b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

   (c)invite the applicant to comment on or respond to it.

   (2)…

   (3)This section does not apply to information:

   (a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

   (b)that the applicant gave for the purpose of the application for review;  or

   (c)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department;

   ...

3. It was argued on behalf of the applicant that at no point were clear particulars put to her that her medical condition provided her with
   “a strong incentive to remain in Port Moresby”.[32] As is correctly pointed out by the applicant, the purpose of section 424A is to ensure that:

   …the claimant is fully informed of information adverse to his or her case (in the manner described by the section) so that investigation may be made, and steps may be taken, somehow, if possible, to meet it.[33]

   [32] Applicant’s amended application filed 7 March 2018 on page 3 at paragraph [1] entitled ‘grounds of application’.

   [33] NBTK v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419 at paragraph [39].

1. It was submitted on behalf of the applicant that this failure is more than a mere academic breach. Rather, the failure to put this ‘information’ to the applicant meant that she was not provided with the opportunity to submit country information about the world-leading medical facilities and hospital in Goroka, just 180 kilometres away from

   
   

   Mount Hagen.[34]

   [34] Applicant’s written submissions filed 7 March 2018 on page 4 at paragraph [19] and the reference referred to therein.

2. The applicant referred to SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; 228 CLR 294[35] as support for the proposition that a decision made following a breach of section 424A is invalid.[36] 

   [35] [2005] HCA 24; 228 CLR 294.

   [36] SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; 228 CLR 294 at [74] per McHugh J.

3. The Minister referred the court to the High Court decision in

   
   SZBYR & Anor v Minister for Immigration and Citizenship & Anor

   [2007] HCA 26 (“SZBYR”). As noted in SZBYR, section 424A was inserted into the Act by the Migration Legislation Amendment Act
   (No 1) 1998 (Cth).

4. Division 4 of Part 7 of the Act in which section 424A is found commences with section 422B which relevantly provides that the Division is “taken to be an exhaustive statement of the requirements of natural justice hearing rule in relation to matters it deals with.” As noted by the High Court in SZBYR, “the decision in SAAP concerned the Act as it stood before the insertion of s 422B”[37]

   [37] SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [11] and the references referred to therein.

5. It was submitted on behalf of the Minister that this ground fails, principally because the comment in the tribunal decision that the applicant’s medical condition provided a strong incentive for her to remain in Port Moresby is not ‘information’ for the purposes of

   
   

   section 424A; rather, it simply formed part of the tribunal’s thought process and did not need to be put to the applicant for comment.[38]

   [38] SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18].

6. The term ‘information’ is not defined in the Act or the Regulations.

7. However, as noted by the majority, Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ in SZBYR:

   Section 424A does not require notice to be given of every matter the tribunal might think relevant to the decision under review.  Rather, the Tribunal’s obligation is limited to the written provision of “particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.” What then, was the ‘information’ that the appellants say the Tribunal should have provided’?

   …

   … Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word “information”:

   “does not encompass the tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc”.

   If the contrary were true, s424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. ... [39]

   [39] SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at paragraph [18].

8. I agree with the Minister’s submissions in this regard. There are two aspects to the statement in paragraph 70 of the tribunal’s decision record on which this ground is based. That is:

   a)the state of the applicant’s medical conditions; and

   b)that this gave rise to a strong incentive for the applicant to remain in Port Moresby.

9. The applicant herself provided information about the state of her medical conditions. The reference to this providing a ‘strong incentive’ for her to remain in Port Moresby, is, on a fair reading of the tribunal’s reasons, a reference to the tribunal’s “subjective appraisals, thought processes or determinations”[40]. It is not information within the meaning of that term in section 424A of the Act.

   [40] SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at paragraph [18].

10. This is particularly so when one looks at the tribunal’s reasoning as a whole. For example:

    a)the tribunal, in considering the applicant’s ability to live safely in Port Moresby without risk of attack from the Kimbin Rami Tribe, noted that the applicant had lived safely in Port Moresby for many years before coming to Australia;[41]

    b)the tribunal noted that:

    The applicant has variously claimed that she would live either in Mt Hagan (sic) or Port Moresby should she return to Fiji (sic). The applicant’s has (sic) expressed concern that she could not live in Port Moresby due to being at risk of harm from her husband, the expense, and the fact that she could not get a job, notwithstanding that it is closer to medical facilities…(emphasis added)[42]

    c)the tribunal went on to discuss the applicant’s prospects of finding work in Port Moresby;[43] and

    d)the tribunal concluded that the applicant had two ‘home areas’ and stated that she “would be able to live in her second area of Port Moresby…”[44]

    [41] Court book page 261 at paragraph [68].

    [42] Court book page 261 at paragraph [69].

    [43] Court book page 261 at paragraph [71].

    [44] Court book page 261 at paragraph [72]

11. It is in this context that the tribunal makes the comment upon which the applicant relies in this ground.[45] When read in context,

    
    

    I find that the reference to the applicant having ‘a strong incentive’ to stay in Port Moresby to access medical treatment is simply a reflection of the tribunal’s thought process and does not constitute ‘information’ for the purposes of section 424A.

    [45] Court book page 261 at paragraph [70].

12. For this reason, ground one is not made out.

Ground two

1. The second ground of review in the application filed on 21 March 2016 and amended on 7 March 2018 is:

   The Tribunal erred by failing to take into account a relevant consideration or failed to ask the right question, namely whether the real risk of mental (not physical) harm occasioned by the husband’s threat to ‘make sure [the Applicant on return to PNG] will feel the pain and suffering like other ladies feel’ could amount to significant harm for the purposes of s 36(2)(aa) of the Act.[46]

   [46] Applicant’s amended application filed 7 March 2018 page 3 at paragraph [2] entitled grounds for application.

2. Section 36 of the Act relevantly provides:

   (1A) An applicant for a protection visa must satisfy:

   (a)     both of the criteria in subsections (1B) and (1C); and

   (b)     at least one of the criteria in subsection (2).

3. As stated above, the applicant’s current claim was for a protection visa on the basis of the criteria in section 36(2)(aa) of the Act, which is in the following terms.

   (2)A criterion for a protection visa is that the applicant for the visa is:

   …

   (aa) 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 the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm;…

4. Section 36(2A) and (2B) of the Act relevantly provide:

   A non-citizen will suffer significant harm if:

   …

   (c)the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

   …

   (emphasis added)

5. The term ‘cruel or inhuman treatment or punishment’ is in turn defined as “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 Convention; or

   (d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.”[47]

   [47] Migration Act 1958 (Cth), s 5.

6. Having regard to the above provisions, it is common ground between the parties that mental pain and suffering as well as physical pain and suffering, if intentionally inflicted, can constitute cruel and inhumane punishment for the purposes of the complementary protection afforded by section 36(2)(aa) of the Act. The issue between the parties is whether the tribunal dealt with this claim.

7. It was submitted on behalf of the applicant that the tribunal only considered possible physical harm to the applicant and not the potential or actual mental harm caused by the text message the applicant received from her husband in June 2013. 

8. Counsel for the applicant referred to the text message which she says she received from her husband in 2013 which was “a blatant threat from a person who has been abusive to this applicant before.”[48] It was further submitted on behalf of the applicant that the threat contained in that text message remains current and that given her mental vulnerabilities, the tribunal failed to acknowledge that mental harm or threats can amount to significant harm and, to that extent, failed to apply the statutory criteria. 

   [48] Transcript page 11 at lines 39 to 40.

9. It was also said on behalf of the applicant that as the threat in the text message did not limit itself to a threat that the husband himself would inflict any harm, the fact that the husband had not returned to PNG was irrelevant. The applicant pointed to the country information (both that dealing with general violence towards women in PNG and the specific information about a woman who was murdered in Mount Hagen by someone engaged by her former husband) which she provided to the tribunal and which the tribunal accepted. Notwithstanding that the applicant’s claim for protection clearly gave rise to a claim of mental harm as well as physical harm, it was submitted on behalf of the applicant that the tribunal confined its analysis to physical harm. 

10. In response, it was argued for the Minister that the tribunal did in fact consider both physical and mental harm in considering whether the applicant met the criteria for a protection visa based on Australia’s complementary protection obligations. In particular, counsel for the Minister referred to paragraph 77 and 79 of the tribunal’s reasons.[49]

    [49] Court book page 262 at paragraphs [77] and [79].

11. In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”), the majority considered the role of a reviewing court in a judicial review application. In this context, the majority, in considering the reasoning of the court below, said:

    …the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.

    These propositions are well settled.  They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status, must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision (footnotes excluded).[50]

    [50] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30].

12. In Wu Shan Liang, his Honour Justice Kirby set out a series of principles which should guide a judge conducting judicial review of an administrative decision maker’s reasons. In particular, he said:

    The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law.[51]

    [51] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [57].

13. I find that the tribunal did in fact consider whether the applicant would be subjected to physical or mental harm in the context of determining whether the applicant satisfied the criteria in section 36(2)(aa) of the Act. So much is evident from a fair reading of the tribunal’s reasons.[52] In particular, the tribunal relevantly stated:

    … The Tribunal has some suspicion over the authenticity of the text message claimed to be sent by the applicant’s husband in June 2013, given credibility issues with the applicant’s evidence already identified and her admitted fabrication of other documents…[53]

    [52] See court book page 261 commencing at paragraph [75].

    [53] Court book pages 261 and 262 at paragraph [74].

14. The tribunal went on to say:

    The applicant has indicated that her husband would feel constrained in taking adverse action against the applicant in Australia, due to the superior justice system in Australia that he would not feel so constrained about in PNG.  The Tribunal considers that if the husband were inclined to act in a way to cause significant harm to the applicant if they were both in PNG, that he would have done more in the more than two years they have been living apart in Australia than send one abusive text message, notwithstanding a more efficient police and justice system in Australia (emphasis added).[54]

    [54] Court book page 262 at paragraph [77].

15. Finally the tribunal stated:

    The Tribunal is not satisfied, given all the evidence, that the applicant’s husband poses a real risk in PNG, of physically harming the applicant, forcing her to be with his as his wife, or cause her any form of significant harm as defined in the Act… (emphasis added).[55]

    [55] Court book page 262 at paragraph [79].

16. Reading the tribunal’s reasons fairly, I find that it is apparent that the tribunal in fact did consider whether the applicant was at risk of ‘cruel and inhumane treatment or punishment’ as defined and in doing so had regard to both mental and physical harm. The express reference to a distinction between ‘physical harm’ and “any form of significant harm”[56] makes this clear.[57] 

    [56] Migration Act 1958 (Cth), s 5.

    [57] Court book page 262 at paragraph [79].

17. For these reasons, ground two is not made out.

Ground three

1. The third ground of review in the application filed on 21 March 2016 and amended on 7 March 2018 is:

   The Tribunal erred by asking the wrong question when it determined the Applicant’s claims to protection against Port Moresby, in circumstances where it failed to determine where the Applicant was ‘likely to return’.[58]

   [58] Applicant’s amended application filed 7 March 2018 page 3 at paragraph [2] entitled ‘grounds for application’.

2. The applicant argued that by focusing on the fact that the applicant had two ‘home areas’ within PNG, it failed to properly address the actual question required, namely where the applicant was likely to return to and in so doing, the tribunal fell into error.

3. The applicant told the tribunal that she was not likely to return to

   
   

   Port Moresby because she did not have any family there, no employment prospects and no means to afford to live there on top of the risks of harm from her husband’s threats which could more readily be carried out in Port Moresby.[59]

   [59] Applicant’s written submissions filed 7 March 2018 page 4 at paragraphs [29] to [31] and the reference referred to therein.

4. It was argued on behalf of the applicant that as a result of the recent

   
   

   Full Court of the Federal Court decision in CSO15 v Minister for Immigration and Border Protection [2018] FCAFC 14 (“CSO15”), the tribunal’s failure to ask the correct question means that it has failed in its statutory task.[60]

   [60] CSO15 v Minister for Immigration and Border Protection [2018] FCAFC 14 at [42].

5. It was submitted on behalf of the Minister that this is not the correct application of the principles arising from the decision in CSO15. Rather it was submitted that in this case, the tribunal found that the applicant had two ‘home areas’, Mount Hagen and Port Moresby and the tribunal made a finding of fact that the applicant would return to Port Moresby.[61]

   [61] Court book page 261 at paragraphs [69] to [72].

6. It was submitted that in reaching this conclusion, the tribunal undertook the required fact intensive exercise. It was further submitted on behalf of the Minister that the mere fact that the applicant said that she would not return to Port Moresby was not evidence of an error on the tribunal’s part.[62]

   [62] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 535; 35 ALD 1; (1994) 52 FCR 437 at [451] per Beaumont J.

7. In CSO15, the court considered a claim that:

   …the Tribunal was obliged, in order lawfully to discharge or complete its statutory task, to make a finding about the place, or places, to which the appellant would return…the identification of each place of return raised on the material before the Tribunal was, the appellant contends, critical to the Tribunal’s task.[63]

   [63] CSO15 v Minister for Immigration and Border Protection [2018] FCAFC 14 at [19].

8. The context in which CSO15 was decided and which is also relevant in this case, is the fact that considering the complementary protection criteria, to the extent that it requires an assessment of risk of harm:

   …require(s) the decision-maker to engage in a predictive and therefore somewhat speculative task about what is likely to happen to a person in the reasonably foreseeable future on return to his or her country of nationality…[64]

   [64] CSO15 v Minister for Immigration and Border Protection [2018] FCAFC 14 at [23] and the authorities referred to therein.

9. The conclusions reached by the court in CSO15 which were relied upon by the applicant must be considered in context. The discussion which culminates with those conclusions involves the court posing the following question:

   There remains to consider… the appellant’s submissions about the error which would be committed by decision-makers if they used (as the Tribunal here did) the term “home region” or “home area”.  This argument is based on what the appellant submits were differences of approach emerging from Kenny J in
   

   [65] CSO15 v Minister for Immigration and Border Protection [2018] FCAFC 14 at [33].

   SZQPY v Minister for Immigration and Border Protection [2013] FCA 1133; Yates J in SZQEN v Minister for Immigration and Citizenship [2012] FCA 387; 202 FCR 514 and the majority, but especially Gageler J in SZSCA.[65]

10. As noted by the court after considering each of those cases:

    In summary, we do not accept there are any differences in principle expressed in these three decisions, and the use of the term “home area” or “home region” in a decision-maker’s reasons is not immediately suggestive of any error.  However, as Kenny J observed in SZQPY, some caution is needed by decision-makers in their fact finding, to ensure that they do address the correct question.[66]

    [66] CSO15 v Minister for Immigration and Border Protection [2018] FCAFC 14 at [41].

11. It is in this context that the court said:

    The correct question is: to where will an applicant return, or be returned? Identifying a place which may have, in the past, been a person’s “home area” or “home region”, may assist in answering that question.  But it is not, in and of itself, the answer to the question which must be asked for the statutory task to be lawfully performed. Ascertaining a person’s former “home area” or “home region” may be an important step along the way in a decision maker’s fact finding, but it is not the end of the task … once a decision-maker has identified a region or place to which it is likely a person will return, an assessment of the risks a person might face on return to that place or region may, in some factual circumstances, require consideration of what is reasonable and practicable in terms of how that person will live and work in that place (emphasis added).[67]

    [67] CSO15 v Minister for Immigration and Border Protection [2018] FCAFC 14 at [42].

1. Importantly, the court stated:

   If a decision-maker finds the place to which an individual is likely to return is one where the individual’s fear of persecution is well-founded, or where the individual faces a real risk of significant harm, then the decision-maker should determine whether there are any other places to which the individual is likely to return and then engage in the same fact finding.[68]

   [68] CSO15 v Minister for Immigration and Border Protection [2018] FCAFC 14 at [46].

2. That is the very exercise which the tribunal engaged in in this case. Having concluded on the evidence before it that the applicant had a connection to two different places within PNG, being Mount Hagen and Port Moresby, the tribunal conducted a fact intensive exercise to assess whether the applicant faced a real risk of significant harm in relation to each of them.  The tribunal found that the applicant had two ‘home areas’ for the purposes of its assessment.[69]  It also acknowledged that the applicant ‘has expressed concerns that she could not live in Port Moresby’, because of her fears of risk from her husband, the expense and her inability to find work. 

   [69] Court book page 261 at paragraph [69].

3. The tribunal then assessed both Port Moresby and Mount Hagen and accepted, for the purposes of its decision that the applicant would face a real risk of significant harm in Mount Hagen ‘as a result of tribal violence’.  It is in the context of this finding of fact which the tribunal then went on to consider whether the applicant faced a real risk of significant harm in Port Moresby and concluded that she does not. 

4. The fact that the applicant told the tribunal that she would not return to Port Moresby is not determinative. The applicant’s evidence such as it is, was a matter for the tribunal to determine. 

5. In undertaking this fact intensive exercise, the tribunal has discharged its statutory obligation. I find that the tribunal asked itself the correct question and applied the correct test. 

6. For these reasons, ground three is not made out.

Conclusion

1. As none of the above grounds have been made out, the applicant’s application must be dismissed and the applicant ordered to pay the first respondent’s costs in a sum to be fixed.

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Judge Mercuri.

Date: 24 August 2018