APE16 v Minister for Immigration and Border Protection

This decision concerned an application by APE16 against the Minister for Immigration and Border Protection. The applicant sought judicial review of a decision made by the Refugee Review Tribunal.

The central legal issue before the court was whether the Refugee Review Tribunal had correctly applied the statutory test when assessing the risk of significant harm to the applicant upon return to Papua New Guinea. Specifically, the court considered the proper approach to identifying a place of return and assessing the risks associated with that location.

The court affirmed that the correct question for a decision-maker is "to where will an applicant return, or be returned?". While identifying a person's "home area" or "home region" may assist in answering this question, it is not the sole determinant. The decision-maker must undertake a fact-intensive exercise to assess the risks in any identified place of return. In this instance, the Tribunal considered both Mount Hagen and Port Moresby as potential places of return for the applicant. It found a real risk of significant harm in Mount Hagen due to tribal violence but concluded that the applicant did not face such a risk in Port Moresby, despite the applicant's stated concerns about returning there. The court found that the Tribunal had discharged its statutory obligation by asking the correct question and applying the correct test.