ASX19 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1352
•25 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ASX19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1352
File number: MLG 505 of 2019 Judgment of: JUDGE GOSTENCNIK Date of judgment: 25 August 2025 Catchwords: MIGRATION – protection (class XA) (subclass 866) visa – judicial review – review of decision of the (then) Administrative Appeals Tribunal (Tribunal) – where Minister’s delegate refused to grant applicant a visa – where Tribunal affirmed delegate’s decision – whether Tribunal’s decision was illogical, irrational or unreasonable – Tribunal’s decision attended by jurisdictional error – writ of certiorari issued – writ of mandamus issued Legislation: Freedom of Information Act 1982 (Cth)
Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 91R(1)(a), 91R(1)(b), 91R(1)(c), 359A, 424A
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) sch 2, div 2, pt 1, item 3
Migration Regulations 1994 (Cth) sch 2, cl 866.221(2)
Cases cited: Applicant WAEE v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCAFC 184, 236 FCR 593
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3, 289 FCR 21
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12, 280 CLR 321
Minister for Immigration and Border Protection v Eden [2016] FCAFC 28, 240 FCR 158
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11, 237 FCR 1
Minister for Immigration and Citizenship v Li [2013] HCA 18, 249 CLR 332
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, 240 CLR 611
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1, 231 FCR 437
Division: Division 2 General Federal Law Number of paragraphs: 92 Date of last submission/s: 2 July 2025 Date of hearing: 18 June 2025 Place: Melbourne Counsel for the Applicant: Mr A Krohn Solicitors for the Applicant: Wotton Kearney Counsel for the First Respondent: Mr K Sypott Solicitors for the First Respondent: Mills Oakley Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 505 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ASX19
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GOSTENCNIK
DATE OF ORDER:
25 AUGUST 2025
THE COURT ORDERS THAT:
1.A writ of certiorari issue to quash the decision of the Administrative Appeals Tribunal (AAT) made on 12 February 2019 in Case No 1622049.
2.A writ of mandamus issue directed to the second respondent requiring it to determine, according to law, the application for review made to the AAT in Case No 1622049.
3.The first respondent pay the applicant’s costs fixed in the sum of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Gostencnik
INTRODUCTION
In December 2016, a delegate of the (then) Minister for Immigration and Border Protection refused the applicant a Protection (Class XA) (Subclass 866) visa. The former Administrative Appeals Tribunal (Tribunal) affirmed that decision in February 2019. The applicant now applies for judicial review of the Tribunal’s decision.
For the reasons explained below, I consider the Tribunal’s decision is attended by jurisdictional error. Accordingly, the decision will be quashed and the review application remitted to the second respondent for it to determine according to law.
BACKGROUND
The applicant is a national of Papua New Guinea who arrived in Australia on 25 October 2013 as the holder of a Tourist (TR-676) visa. On 29 November 2013, the applicant applied for a Protection (Class XA) visa, with the assistance of a solicitor.
That application was accompanied by the applicant’s statutory declaration dated 18 November 2013 which set out the applicant’s claims for protection. In short, the applicant claimed to fear serious physical and psychological abuse by her husband (a man named Joachim) in Papua New Guinea and to have been severely beaten by her husband on multiple occasions. The applicant claimed she fled her home country and was unable to bring her children with her to Australia.
The (then) Department of Immigration and Border Protection acknowledged receipt of the application by letter dated 2 December 2013. By letter dated 30 January 2015, the Department invited the applicant to attend an interview scheduled for 25 February 2015 to discuss her visa application and protection claims and enclosed a factsheet titled ‘Important Information About Your Protection Visa Interview’ which briefly set out the applicable criteria for assessing whether a person is a refugee under the Migration Act 1958 (Cth) (Act).[1] That letter also requested the applicant provide documentary evidence in relation to her identity, nationality or citizenship, to the Department.
[1]Unless otherwise specified or the context otherwise requires, any reference to the Act is a reference to the Act as it was then in force.
On 28 April 2015, the applicant’s solicitor wrote to the Department, the effect of which was to make submissions regarding the applicant’s protection claims. The letter asserted that the applicant had suffered grave harm in her home country which constituted persecution, and that the persecution she suffered was due to her membership of a particular social group, being women in Papua New Guinea. The letter enclosed correspondence and medical records from Port Moresby Hospital, and a discharge summary dated April 2003 showing that the applicant had been admitted to that hospital and received treatment for injuries inflicted by her husband. The letter also enclosed extracts from Port Moresby police records showing complaints made by the applicant in December 2012 relating to assaults by her husband.
On 2 November 2016, the Department wrote to the applicant, notifying her that it had identified adverse information pertaining to the visa application. The notification of relevant information is relevantly reproduced below:
Relationship with Sebastian Mambu
You claimed during your Protection visa interview that Sebastian Mambu, a neighbour who lived next door, helped you with your Australian Visitor visa application by falsely claiming that he was your husband. When questioned about the assistance provided to you by Sebastian Mambu, you did not disclose that he accompanied you to Australia. When asked if anyone helped you leave PNG, you replied that no one helped you.
However, information obtained by the department is not consistent with these claims, and suggests that Sebastian Mambu was your partner, as claimed in the Visitor visa application.
*Departmental records indicate that Sebastian Mambu travelled with you to Australia.
*It appears that Sebastian Mambu visited you in Australia. According to information he has provided, he intended to reside at Gray Street St Kilda during his visit to Australia during May 2016. Your address from May 2016 was Grey Street St Kilda.
*Sebastian Mambu recorded you as the emergency contact person during his visits to Australia during 2012 to 2014.
*Information suggests that you and Sebastian Mambu have a child in common. You listed Sedrick Gahekave, date of birth 2/2/2000 as your child. Sebastian Mambu has claimed that he has a son named Shedrick Mambu, date of birth 2/2/2000.
Arrival in Australia
During the Protection visa interview you claimed that you had no plans about what you would do in Australia, apart from getting away from your husband. You stated that you arrived in Cairns, and then travelled to Melbourne because it was far from PNG. You also stated that there was no other reason you travelled to Melbourne.
Information on your Passenger Arrival Card is not consistent with this claim. On your Passenger Arrival Card, you wrote your address in Australia as 375 Springvale Road, Tatura, 3616, Vic, Mel. This appears to be a rural property in Victoria.
Anonymous allegation
An allegation has been made claiming that you paid a person to tell you how to be a refugee.
The source also stated that your husband left you for another woman.
The letter invited the applicant to comment on this information, noting that any response must be received by the Department within 28 days from receipt of the letter. On 30 November 2016, the applicant’s lawyers provided the Department with a letter in response to the adverse information. The letter explained that:
·the applicant and Mr Mambu travelled to Australia on the same flight, but that Mr Mambu travelled to Australia for work purposes;
·the applicant was fearful Mr Mambu would face issues if she disclosed that they had travelled to Australia on the same flight, that he did not assist her on the flight, and that they had no contact since arrival in Australia;
·that her daughter in Papua New Guinea had made contact with her, advising that Mr Mambu wanted to visit the applicant in Australia, and that he had asked for her address, and the applicant believes that he listed her address as an emergency contact because he did not have any other contacts in Australia or because he intended to visit her;
·her son Sedrick and Mr Mambu’s son “Sedrick” (sic) are not the same person;
·she did not have an address in Australia to record on the incoming passenger card, but the person seated beside her on the flight to Australia volunteered to list their address on the applicant’s incoming passenger card. The applicant had panicked and did not want to be viewed with suspicion by the authorities for not having an address;
·the anonymous allegations may have been made by her estranged husband, but that it was impossible to meaningfully comment on the veracity of the source without further information or detail.
On 12 December 2016, the applicant’s solicitor provided the Department with further information in relation to the application on behalf of the applicant. The applicant stated that on 8 December 2016, she had been contacted by Mr Mambu via her daughter’s telephone. He told the applicant that he was attempting to travel to Australia but had been informed that the authorities in Australia were “interested in him”. Mr Mambu threatened the applicant and her children who remain in Papua New Guinea, and she feared harm from Mr Mambu if she returned to Papua New Guinea.
On 15 December 2016, a delegate of the Minister refused the applicant a Protection visa. The applicant was notified of the refusal decision by letter of even date, sent to the applicant by post to her solicitor. The letter explained that the application was refused because the delegate was not satisfied that the applicant was a person in respect of whom Australia had protection obligations, and enclosed a copy of the delegate’s decision record. The decision record records the delegate’s consideration of the applicant’s claims and evidence and the delegate’s findings in relation thereto.
The delegate was not satisfied that the applicant’s evidence in relation to her protection claims and visa application was credible. In particular, the delegate highlighted various inconsistent information and the lack of quality evidence provided by the applicant about her circumstances, and considered that “the applicant’s willingness to provide false information casts serious doubt on her credibility”. The delegate did not accept the applicant’s responses as truthful and formed the view that the claims, together with various supporting documents, were fabricated or embellished. The delegate was concerned that the applicant had given false testimony about: her claims to have suffered harm; her relationship with her husband; her delay in leaving Papua New Guinea; her relationship with Mr Mambu; circumstances surrounding her visitor visa application; her family composition; and her travel to and arrival in Australia.
The delegate noted that the applicant’s evidence given during her interview was not consistent with her claims, and did not address various concerns the delegate had in relation to the above matters. In particular, the applicant was asked to explain why Mr Mambu’s name appeared on her visitor visa, to which the applicant replied that he had assisted her to obtain the visa by falsely claiming that he was her husband. The delegate noted that the applicant maintained her claim that no one helped her to travel to Australia, notwithstanding Mr Mambu was on the same flight. The delegate also noted the applicant’s inconsistent claims about the number of her children, noting that two of her ‘children’ were not the applicant’s biological children.
The delegate was otherwise satisfied that if the applicant feared harm, it was due to her membership of a particular social group, being women in Papua New Guinea, thereby satisfying the requirement in s 91R(1)(a) of the Act. The delegate also accepted that the harm feared by the applicant amounted to serious harm and systematic and discriminatory conduct within the meaning of ss 91R(1)(b) and (c). Notwithstanding, the delegate was not satisfied that the applicant’s claims were credible, and was not therefore satisfied that she faced any real chance of suffering serious harm. Therefore, the applicant could not meet the requirements of s 36(2)(a) of the Act or cl 866.221(2) of Sch 2 to the Migration Regulations 1994 (Cth) (Regulations).[2] The delegate similarly found that the applicant did not have a real chance of being subject to significant harm, and did not attract the operation of the complementary protection provisions in s 36(2)(aa) of the Act.
[2] Unless otherwise specified or the context otherwise requires, any reference to the Regulations is a reference to the Regulations as they were then in force.
TRIBUNAL PROCEEDING
On 21 December 2016, the applicant applied to the Tribunal for review of the delegate’s decision with the assistance of a solicitor. The Tribunal acknowledged receipt of the application by letter on 22 December 2016, enclosing an ‘Information for review applicants’ factsheet and informing the applicant that if she wished to provide any further information for the Tribunal to consider, she ought do so as soon as possible.
On 15 February 2017, the applicant made a request to the Tribunal under the Freedom of Information Act 1982 (Cth) for records held by the Tribunal in relation to the applicant. The Tribunal acknowledged receipt of that request by letter dated 21 February 2017, enclosing a copy of documents held which were relevant to the request.
On 27 July 2018, the Tribunal invited the applicant to attend a hearing scheduled for 31 August 2018 to give evidence and present arguments relating to the issues in her case. A letter accompanying the invitation requested the applicant provide the Tribunal with written submissions setting out her claims, together with any witness statements in support of those claims, by 24 August 2018. The invitation letter asked the applicant to complete and return the enclosed ‘Response to hearing invitation form’ and further enclosed an ‘Information about hearings – MR Division’ factsheet.
By her solicitors, the applicant provided the Tribunal with written submissions on 24 August 2018. Those submissions indicated that the applicant continued to rely on her “statement of claim” provided to the Department in support of her original application. In summary, the applicant’s claims advanced in her submissions were:
·she departed her home country (Papua New Guinea) in 2013 without her husband’s knowledge, and her children remained in Papua New Guinea;
·her claims fall within the scope of the 1951 Refugee Convention and 1967 Protocol to that convention (Convention) and bore a sufficient Convention nexus by reason of her membership of a particular social group, that particular social group being women from Papua New Guinea;
·she was subjected to years of ongoing abuse and sexual assault at the hands of her then husband, she lived in fear of her husband for the entirety of their relationship, and that the country information supported this claim;
·she was forcibly married at the age of 15 years, and suffered ongoing abuse at the hands of her husband until 2013 for the duration of that marriage, that her husband became seriously violent in 2001 following the birth of her child, that her husband married a second woman around that time, and that the applicant was unhappy about her husband marrying a second woman, but was powerless to do anything to stop the marriage;
·any time she raised her concerns or grievances with her husband, he would become physically violent;
·on multiple occasions she suffered extremely serious harm at the hands of her husband and was hospitalised. She tried to escape on multiple occasions, but each time was caught and forcibly returned to her husband;
·despite the serious issues faced by the applicant and other women in her community, women broadly and the applicant specifically were unable to seek assistance from the authorities due to their gender. The applicant attempted to seek protection from the authorities on multiple occasions, but on each occasion the police did nothing more than temporarily detain the applicant’s husband.
The submissions also advanced contentions about the delegate’s decision, which in substance were that:
·there were a number of issues which ought to have been taken into account in properly assessing the applicant’s credibility, including her lack of familiarity with the immigration process, her limited formal education, the fact that she had suffered ongoing mistreatment and a life of trauma, and that these issues would impede her ability to think clearly and to precisely articulate her protection claims. Those issues were not taken into account by the delegate, and the applicant’s testimony regarding mistreatment at the hands of her husband were consistent with the country information;
·the applicant never knowingly misled the department in relation to her evidence about Mr Mambu, particularly in relation to her evidence about her visitor visa;
·Mr Mambu had, as a friend, assisted the applicant escape from her husband, and that she was unaware of the exact steps taken by Mr Mambu in relation to her visitor visa, including that his name appeared on the visa grant, until she received the visa;
·the applicant’s evidence in relation to her family composition was consistent and that the information she had provided ought to have addressed the delegate’s concerns. Any confusion in relation to the composition of her family stemmed from the applicant’s lack of familiarity with the Australian system and terminology and her uncertainty and emotional distress when applying for the visa. Further, the applicant submitted that it was customary in Papua New Guinea to care for children who are not one’s own biological children, and that those children are customarily considered members of the family;
·she knew Mr Mambu travelled out of Papua New Guinea on the same flight as her, but that he did not provide any assistance to her on that flight;
·one of the applicant’s children bore a similar name to one of Mr Mambu’s children, but that the applicant’s child and Mr Mambu’s child were different persons;
·it was reasonable in the circumstances for the applicant not to know particulars about her husband’s life, their relationship being characterised by emotional and physical abuse, and that her husband did not tell her details of his life;
·any delay in leaving Papua New Guinea after being granted the visitor visa was due to the extreme difficulty she faced in fleeing her country. She struggled to leave behind her children;
·the applicant’s information provided about being assisted by strangers upon arrival to Australia was true and correct, and the difficulty in obtaining information relating to the strangers who assisted her is attributable to the language barrier she faced;
·Mr Mambu recording the applicant’s address in his incoming passenger card was due to the applicant’s daughter providing that address to him, and that she has not seen Mr Mambu since her arrival in Australia;
·the medical and documentary evidence provided in support of the applicant’s injuries was genuine, and that any errors or perceived deficiencies in quality are the result of the relative lack of formal processes in keeping healthcare records in Papua New Guinea.
The submissions also addressed the applicant’s satisfaction of the legal criteria for grant of a protection visa, contending that:
·the applicant’s fear of harm was sufficiently grave to constitute persecution;
·the claims fall under the Convention’s ambit for reason of membership of a particular social group;
·the applicant’s fears were well-founded within the meaning of the Convention, and that contention is supported by the country information;
·there was a severe lack of effective state protection available to the applicant.
Finally, the submissions addressed the issue of complementary protection, contending that the applicant feared and faced a real and foreseeable risk of significant harm arising from arbitrary deprivation of life, torture, and degrading treatment or punishment, thereby satisfying the relevant sections of the Act and attracting the operation of the complementary protection regime.
On 31 August 2018, the applicant attended a hearing before the Tribunal with the assistance of her solicitor. The hearing was adjourned part-heard on that day, and scheduled to resume on 4 October 2018, which was later postponed to 11 October 2018. The applicant attended the resumed hearing on 11 October 2018 with her solicitor and was assisted by a Pidgin interpreter. At that hearing, the applicant provided the Tribunal with a psychological report prepared by a psychologist and psychotherapist from the Asylum Seeker Resource Centre dated 2 October 2017.
On 9 November 2018, the Tribunal wrote to the applicant inviting her to comment on information received in relation to the application for review. The letter disclosed that the Tribunal was in possession of four distinct sets of information which may be relevant to determining the applicant’s review application, and may form a reason or part of the reason/s for deciding the review.
First, that a third party had told the Department, inter alia, that the applicant had paid someone to tell her how to be a refugee. The letter explained that the information was relevant to the application for review of the delegate’s decision because it may lead the Tribunal to conclude that the applicant had not been truthful in her evidence and claims. The Tribunal stated that the level of detail about the personal characteristics and circumstances of the applicant contained in the information may lead it to afford the information greater weight in determining the review.
Second, that the Department file contains a range of documents which may indicate that the applicant and Mr Mambu were, or are still, in a relationship. The information included that the Department system showed the applicant’s visitor visa was accompanied by a note which recorded the applicant was “travelling to Australia for holidays with spouse, trip funded by spouse who is employed with Air Niugini”. The Tribunal explained that this may cast doubt on the applicant’s claim to have been in a relationship with her husband up to the time she left Papua New Guinea, and whether she would be harmed by Joachim on return.
Third, that the Department held seven incoming passenger cards for Mr Mambu from his various trips to Australia from 2012 to 2016, in which he variously listed the applicant as either his emergency contact in Papua New Guinea, or where his address in Australia was similar to the address of the applicant in Australia. The Tribunal indicated that this information may lead it to consider that the applicant was then, or had been, in a relationship with Mr Mambu from at least 2012, and may cast doubt on whether she had been in a relationship with Joachim up until the time she left Papua New Guinea.
Fourth, that Mr Mambu’s visa application, made in 2016, lists his son, one “Sheddrick” Mambu, with a date of birth 2/2/2000. The Tribunal note that Sheddrick’s date of birth was the same as the applicant’s son, named Sedrick. The Tribunal explained that this information may lead it to consider that the applicant’s son and Mr Mambu’s son are the same person, and that therefore the applicant’s credibility in relation to her claims about family composition, and her claims to fear harm from her husband upon return, were inconsistent and could not be accepted.
The Tribunal requested the applicant provide it with her comments or response to the information by 23 November 2018.
On 23 November 2018, the applicant’s solicitor wrote to the Tribunal setting out the applicant’s response to each set of information. As to the first set of information, the applicant submitted that the information was false, and that all the information she had provided to the Department and the Tribunal was true and correct. The applicant submitted that it was likely and plausible that her husband or one of his associates had given the information to the Department to impede her application for a protection visa. The applicant pointed out that the details provided in the information were not overtly personal, that her husband could have come to know her address through her contact with her children, and that a negative inference as to her credibility should not be drawn. Regarding the second set of information, the applicant reiterated her contention that she was never in a relationship with Mr Mambu, but that he was her friend in Papua New Guinea and lent her assistance to flee her husband and leave Papua New Guinea. As to the third set of information, the applicant advised the Tribunal that she was unsure why Mr Mambu would have listed her as his emergency contact in Papua New Guinea before she left that country, denied ever having been in a relationship with Mr Mambu, and submitted that she had not been in contact with Mr Mambu since she arrived in Australia. She reiterated her belief that Mr Mambu had obtained her address from her daughter. To the fourth set of information, the applicant repeated her previous submissions that her son Sedrick and Mr Mambu’s son Sheddrick are not the same person. She maintained that she had never been in a relationship with Mr Mambu and that they did not have any children together.
The applicant also submitted that she had provided detailed evidence with respect to her relationship with her husband, whom she was forced to marry at the age of fifteen, and that throughout her marriage she faced ongoing abuse and serious harm. The applicant’s submission noted that the psychologist report which she provided outlined that she was fearful of her past, and indicated she was suffering from memory loss, sleeplessness, nightmares, anxiety and depression. This, the applicant contended, indicated that she had suffered past trauma.
On 12 February 2019, the Tribunal affirmed the delegate’s decision. The applicant was notified of the Tribunal’s decision by letter dated 13 February 2019, which enclosed a copy of the Tribunal’s Statement of Decision and Reasons (Decision).
TRIBUNAL’S DECISION AND REASONS
The Decision commences with a short summary of the applicant’s circumstances and relevant procedural history at [1]–[4], before recounting the applicant’s claims at [6]–[19] and turning to consider those claims at [20]–[71]. The Tribunal noted at [4] that the issue for it to determine was “whether the applicant ha[d] a well-founded fear of persecution if she returns to Papua New Guinea, or there is a real risk she will suffer significant harm if returned there,” and that based on that assessment, the Tribunal decided to affirm the delegate’s decision.
Summarising the applicant’s evidence, the Tribunal records that:
(a)the applicant was forcibly married to her husband when she was 15 years old in 1985, following her husband sexually assaulting her. Her husband had paid 1500 kina and 5 pigs as a ‘bride price’ in relation to their marriage. She claimed in her visa application to have seven children: Decision at [6];
(b)the serious violence against her started when her husband married his second wife in 2001. She began to raise complaints that he may be at risk of transmitting HIV to her, and he became violent towards her: at [7];
(c)her husband was a gambler and a drinker, he was not supportive of his family, and she raised income for the family through working where she could, along with her two eldest children: at [8];
(d)there were many occasions she felt seriously threatened by her husband, including: in 2003 where he kicked her, as a result of which she required surgery; in 2010 when he kicked her in the face; in 2011 where he stabbed her in the head with a knife; and in 2013 where he threatened to kill her with a knife: at [9];
(e)she sought assistance from the Police on three occasions, and if her husband was arrested, each time he was released shortly thereafter. That she twice fled her family home to stay with friends to escape from her husband, and that she fled Papua New Guinea without her husband’s knowledge: at [10]–[11];
(f)she had provided medical evidence indicating that she sought medical treatment in 2003, and a police report relating to an incident in December 2012: at [12];
(g)the applicant was interviewed by the Department, and was subsequently notified that the Department had information from her visitor visa, incoming passenger card, the passenger cards of Mr Mambu, and an anonymous ‘dob-in’ letter which did not support her claims indicating that:
(i)the applicant had been untruthful about her relationship with Mr Mambu and that he was in fact her partner;
(ii)that she had an address in Australia;
(iii)that she had paid a person to tell her how to be a refugee in Australia; and
(iv)that her husband had left her to be with another woman: at [13]–[14];
(h)the applicant responded to these allegations stating that:
(i)she was not in a relationship with Mr Mambu and to the extent her documents indicated such, this was only for the purpose of assisting her to flee her husband;
(ii)she had recorded her address on arrival in Australia as the address of the person seated next to her on the flight, but she did not reside there;
(iii)she could not comment on the anonymous allegation and it ought be given no weight: at [15];
(i)the applicant spoke to Mr Mambu in December 2016, during which conversation he threatened her and her family, and he told her that he wanted to travel to Australia but had been informed the Australian authorities were interested in him: at [16];
(j)after the hearing, the applicant was sent a letter under s 424A of the Act, and had responded to that letter via her representative: at [17].
The Tribunal next turned to assess the applicant’s credibility at [20] of the Decision, noting the relevant authorities and principles in relation to assessing credibility at [20]–[22], and reciting the factors which the Tribunal considered in making its credibility assessment at [23]. The Tribunal was not satisfied that the applicant’s circumstances explained the “very significant” problems with her evidence: at [23].
The Tribunal noted its issues about the credibility of the applicant’s evidence at [24] and set out its assessment of that evidence in the paragraphs following. Dealing first with the applicant’s relationship with Mr Mambu, the Tribunal largely set out the information it had put to the applicant by letter: Decision at [25]–[28], which included the “large amount of information” which was said to “strongly support” the view that the applicant was in a relationship with Mr Mambu at the time of her departure from Papua New Guinea and for a significant time prior to her departure. The Tribunal noted the applicant’s visitor visa recorded a statement that the applicant was “travelling to Australia for holidays with spouse, trip funded by spouse who is employed with Air Niugini. Intended period of travel 10 March 2013 – 17 March 2013.”: at [27]. The Tribunal also noted the incoming passenger cards of Mr Mambu recording the applicant as an emergency contact, the first of which was dated 6 January 2012, and the passenger cards which post-dated the applicant’s arrival in Australia whereupon Mr Mambu had recorded an address similar to (but not identical to) the applicant’s Australian address as his address in Australia: at [27]–[28]. The Tribunal noted at [29] that it put to the applicant at the hearing and again in a s 424A letter that the applicant was in a relationship with Mr Mambu and that she had not been truthful about being in a continuing relationship with her husband until she left Papua New Guinea. The Tribunal also noted the issue of Mr Mambu’s son listed in his visa application in 2016, bearing the same date of birth, and a name that was similar, but not identical, to the name of one of the applicant’s sons: at [30]–[31].
The Decision records the applicant’s responses to this information, first recounting her response to the delegate: Decision at [32], then her response to the Tribunal’s request for information on 24 August 2018: at [33], and finally her response at the hearing: at [34]. The Tribunal noted at [34] that after the hearing, the applicant was sent a s 359A letter, and that her response to that letter was in substantially similar terms to the responses previously provided: at [36].
During the hearing, the applicant told the Tribunal that:
(a)she was not aware that, and did not know why, Mr Mambu had used her details on his incoming passenger cards;
(b)Mr Mambu had obtained her address in Australia from her daughter but had not contacted her at that address;
(c)Mr Mambu was a good friend but she was never in a relationship with him: Decision at [35].
At [37], the Tribunal notes that it had “carefully considered the responses of the applicant” but that the responses did not address the concerns that had been raised with the applicant. The Tribunal continued at [38]—noting that the applicant’s explanations in relation to her visitor visa and Mr Mambu were “problematic”. The Tribunal did not accept that Mr Mambu was not assisting the applicant on the flight, and did not accept the applicant’s explanation as to why she did not disclose this, being that she did not want to “cause issues for him”. The Tribunal found that the applicant chose not to disclose the fact that she and Mr Mambu travelled to Australia on the same flight because that would raise more questions about their relationship: Decision at [38].
At [39] the Tribunal set out the “issue of most concern” being that Mr Mambu had, on several occasions on his incoming passenger cards, variously recorded the applicant as his emergency contact and then used her address in Australia as his Australian address. The Tribunal found that the circumstances and the lack of evidence to the contrary was “highly suggestive” that the applicant and Mr Mambu were in a relationship: Decision at [39].
The Tribunal also recorded its finding that it was improbable the applicant and Mr Mambu had two children with similar names born on the same day, notwithstanding the applicant’s contention that Sedrick is a very common name in Papua New Guinea: Decision at [40].
On the basis of the above, the Tribunal expressed “profound doubts” about the credibility of the applicant: Decision at [41], and those doubts “cut across” her claims to have suffered harm from her husband.
The Tribunal discussed the applicant’s account regarding her children from [42]–[44], noting she originally claimed to have seven children, later clarifying that she had five biological children and two children who were not biologically related. The Tribunal records that it put to the applicant that she may have been attempting to obscure that Sedrick, her son, was also Mr Mambu’s son, by claiming that Sedrick was adopted. The Tribunal noted further that the applicant’s statutory declaration recorded she had seven children with her husband: Decision at [43]. The Tribunal was not persuaded by any of the applicant’s explanations concerning her children and considered it was likely that Mr Mambu was the father of at least one of the applicant’s children: at [44].
As to the documents provided by the applicant to establish she had received medical treatment in relation to assaults by her husband and that she had made a police report in relation to at least one assault, the Tribunal noted its concerns about inconsistencies, and that it did not accept the applicant’s explanations in that regard: Decision at [45]–[48]. The Tribunal instead found that the applicant had provided “non-genuine” documents: at [49].
The Tribunal concluded that the applicant had not adequately explained the inconsistencies or deficiencies in her claims, and that those inconsistencies went to the heart of her claims. The Tribunal ultimately found that the applicant had not been a “witness of truth”: Decision at [50].
At [52], on the basis of the Tribunal’s findings in relation to the applicant’s general credibility, the Tribunal made the following findings:
The applicant has been in a relationship with Sebastian Mambu from at least 2000, when the applicant, I find, had a child, Sedrick, with Sebastian Mambu. I find that the applicant was in a relationship with Sebastian from 2000 until at least 2014, when he put her as an emergency contact and probably to 2016, when I find his nomination of Gray st St Kilda as an address he intended to stay on his passenger card was a reference to the residence of the applicant at the time of Grey st. St Kilda.
On this basis, and given my general credibility findings, I do not accept that the applicant was married to or in a relationship with Joachim. I do not accept that she has suffered harm from Joachim at any time. As above, I have placed no weight on the discharge summary or letter from the hospital, nor on the police report, and given my general credibility findings, I place no weight on the evidence of the applicant.
I do not accept that the applicant was forcibly married to Joachim when she was 15. I do not accept that he sexually assaulted her. I do not accept that he committed any violence against her, or that this became serious in 2001 and persisted from that time until 2013 when he threatened her. I do not accept that Joachim kicked her very hard and she had to have surgery in 2003, that in 2010 he kicked her in the face several times, or that in 2011 he stabbed her in the head with a knife. I do not accept that the applicant sought help from the police to protect her against Joachim at any time. I do not accept that the applicant has stayed with a friend in Madang to escape Joachim’s violence.
Next the Tribunal assessed whether the applicant had a well-founded fear of persecution if returned to Papua New Guinea. The Decision records that in line with its credibility findings, the Tribunal did not accept any of the applicant’s claims: Decision at [57]. Having rejected the applicant’s claims, the Tribunal went on to find that:
(1)the applicant could return home to Papua New Guinea and live there and resume her relationship with Mr Mambu: at [60];
(2)the applicant could live with Mr Mambu: at [60], or be supported by her children: at [61];
(3)the situation for women in Papua New Guinea was difficult: at [62], but that notwithstanding, the applicant could return to her home and would not face a real chance of harm for any of the reasons identified or for any other reason: at [65];
(4)the applicant could find employment, and that she would enjoy the support of her children and Mr Mambu upon her return: at [66]–[67];
(5)there was not a real chance she would be harmed by Joachim: at [67].
The Tribunal similarly found that there was no real risk that the applicant would suffer significant harm upon return to Papua New Guinea: Decision at [71]. Accordingly, the Tribunal concluded that the applicant did not satisfy the refugee criterion in ss 36(2)(a) or (aa) of the Act, and the decision under review was affirmed.
CONSIDERATION
By her further amended application the applicant sets out four grounds contending the Tribunal fell into jurisdictional error as follows:
1.The Administrative Appeals Tribunal (“the Tribunal”) fell into jurisdictional error in that it did not consider or failed to properly consider relevant considerations including claims, integers of claims and material questions of fact squarely arising on the review by the Tribunal.
Particulars
Applicant’s claims to have suffered rape and violence by her husband
(a) A letter from a psychologist, dated 2 October 2017 and marked as handed to the Tribunal at hearing on 11 October 2018, stated that the Applicant was raped at the age of 14 (sic) by the man to whom she was shortly afterwards married. Although the Tribunal said it had carefully considered this letter (CB 189, Decision [23]), the Tribunal made no enquiry about this of the Applicant at the Tribunal hearing and made no finding on whether the Applicant had been raped at a young age by the man to whom she was later married.
(b) Further, the Applicant claimed to have been married at fifteen years of age to the husband whom she said was later violent to her. (Statement in support of application for protection visa, CB 30, [1].)
(c) In the circumstances set out in Particulars (a) and (b), the question whether she had been raped was relevant to the assessment of her credibility and to the assessment of her claims about her marriage and the history of violence in her marriage.
Claims to have attempted suicide three times
(d)The Applicant claimed in her application for the visa that on three occasions, because of her misery in her marriage, she attempted suicide (Statement in support of application for protection visa, CB 30, [4]), but the Tribunal made no finding about these claims. (Cf. CB 189, Decision [23])
Whether the Applicant’s children could support her and would be willing to do so
(e) The Tribunal found that the Applicant’s children could support her and that she could live with them, if she were to return to her country but not live with Sebastian (CB 196, [61]) The Tribunal did not properly consider as required by law if they could and would be willing to support and house her, over 7 years since she left them without notice in Papua New Guinea.
Letter accusing Applicant of fabricating her claims for protection
(f) There was an allegation in writing that the Applicant had fabricated her claims. The Tribunal in a letter dated 9 November 2018 (“the letter”) put this to the Applicant for comment:
“It said that you paid someone to tell you how to be a refugee that you are claiming your husband was violent towards you and your children and seeking protection on those grounds. The source states that your husband left you for another woman, that you have tattoos on your hand and a badly broken nose.” (CB 175)
(g)The Applicant’s then representative replied on 23 November 2018 and submitted that no adverse weight should be put on the letter;
“Given these matters, we respectfully submit that a negative inference in relation to the applicant’s credibility should not be drawn from the dob-in, especially given it is anonymous and the person who made the dob-in may have done so to be vindictive to our client. “ (CB 180)
(h) Despite the circumstances set out in Particulars (f) and (g) to this Ground, the Tribunal made no finding about the letter or its contents. It neither said that it had ignored the contents of the letter, nor did it make a finding about which (if any) parts of the letter it accepted as truthful or reliable, including the letter’s reference to the Applicant’s “husband” which reference supported her claim to be married, but these were material questions arising on the review by the Tribunal.
2.The Tribunal fell into jurisdictional error in that it erred in interpreting or applying the law.
Particulars
Not making findings
(a) Further or in the alternative to the Particulars to Ground 1, the Tribunal did not make findings on material questions of fact necessary to its review under sections 412 and 414 of the Migration Act 1958 (“the Act”) of the decision by the Minister’s delegate.
Not making inquiries about corroborative documents
(b) The Tribunal had a copy of a medical report from a hospital (CB 79-81, noted by the delegate at CB 105), and of a report to a police station (CB 81, noted by the delegate at CB105), both in Papua New Guinea. The Tribunal rejected them as non-genuine documents of no weight, without any inquiry of the apparent authors. (CB 194, [45]-[49])
(c) The Tribunal did not make inquiries under section 424A of the Act about the authenticity of the ostensibly corroborative documents mentioned in Particular (b) to this Ground, but it rejected them as non-genuine documents and deserving no weight, because of internal inconsistencies and because of information about the prevalence of fraudulent documents in Papua New Guinea.
Doubt about finding – “real chance”
(d) The Tribunal said, “Even if [the Applicant] could not cohabit with Sebastian on return…” (CB 196, Decision [61]), which suggests that this was a material question of fact in the Tribunal’s mind, and indicates an element of doubt by the Tribunal about its earlier finding that,
“I find that the applicant can return to Port Moresby and live there. I find that she could return either to live with Sebastian and resume their relationship – there being no information before me that he would harm her…” (CB 196, [60])
(e) The finding by the Tribunal that the Applicant was not owed protection, despite the element of doubt in the Tribunal’s findings set out in Particular (d) to this Ground, shows that the Tribunal was not correctly interpreting or applying the terms “well-founded fear”, “real chance” and “real risk” in sections 5H, 5J, 36(2)(a) and 36(2)(aa) of the Act.
(f) In breach of section 425 of the Act, the Tribunal did not give the Applicant the opportunity to know that it was an issue on the review whether she had ever been married to the man she said was her husband.
3. The Tribunal fell into jurisdictional error in that there was a reasonable apprehension that it was biased or did not have an open mind.
Particulars
(a)Further or in the alternative to Particulars (f), (g) and (h) to Ground 1, and by reason of the matters set out in those Particulars, there was a reasonable apprehension that the Tribunal was biased or did not have an open mind.
4. The Tribunal fell into jurisdictional error in that it did not have a logically probative basis for findings or was otherwise legally unreasonable.
Particulars
Rejection of corroborative evidence and claims without making inquiries
(a) Further or in the alternative to Particulars (b) and (c) to Ground 2, the Tribunal was legally unreasonable to have rejected the corroborative documents referred to in those particulars as non-genuine and of no weight, and the claims which they ostensibly supported, without making inquiries of the ostensible authors or issuing authorities. (CB 79-81; 194, [45]-[49])
Rejection of claim to have been married to the man the Applicant claimed
(b) The Tribunal’s finding that, “The applicant has been in a relationship with Sebastian Mambu from at least 2000, when the applicant, I find, had a child ... with Sebastian Mambu. I find that the applicant was in a relationship with Sebastian from 2000 until at least 2014…” (CB 195, [52]) was based on the paternity of the child. This was not a logical foundation for the proposition that the Applicant was never married to another man, not (sic) that she had not continued cohabiting with her husband up to 2013. (CB 195, [52])
Rejection of claim to have been assaulted
(c) Further or in the alternative to particulars (a) to (d) to Ground 1, the Tribunal rejected the claim that the Applicant had been assaulted by her husband, (CB 195, [52]) on the basis of its findings on the Applicant’s general credibility, and about the documents, the relationship with Sebastian and the paternity of her children, but without any discrete consideration of the circumstantial claims of the assaults (described by the Tribunal at CB 195 [52]) and injuries, and the three attempts at suicide.
Finding that the Applicant’s children could support her
(d) Further or in the alternative to Particular (e) to Ground 1, the Tribunal referred to no evidence for its finding that the Applicant’s children could support her and that she could live with them, if she were to return to her country but not live with Sebastian. (CB 196, [61]) The Tribunal did not properly consider if they would be willing to support and house her, over 7 years since she left them without notice in Papua New Guinea.
(e) Further or in the alternative to Particular (e) to Ground 1 and particular (d) to this Ground, there was no reference by the Tribunal to any evidence for its finding that the support of the Applicant’s children would allow her to return and live in reasonable safety, (CB 197, [66]) despite the level of risk noted by the Tribunal in Port Moresby, especially to a single woman. (CB 196, [64]).
There is some overlap in the grounds, and for reasons which will shortly become apparent, I have found it unnecessary to deal with them all.
Ground 1
By ground 1 the applicant contends the Tribunal did not consider or failed to properly consider certain of the applicant’s claims. The basis of this contention is set out in the particulars.
Particulars (a), (b) and (c)
By particulars (a), (b) and (c) the applicant says the Tribunal failed to consider or make a finding in relation to her claim that she had been raped at age 15 by her then future husband, and that her husband was violent towards her. The applicant says in substance the Tribunal failed to take a letter from a psychologist, dated 2 October 2017, in which “it was clearly stated that the Applicant was raped at the age of [15] by the man to whom she was shortly afterwards married”, into account. The applicant contends that despite the Decision recording that the Tribunal took “account of and carefully considered” the report, it made no enquiry during the hearing about this of the applicant, and it made no finding about whether the applicant had been raped at a young age by the man she later married, as she had claimed. The applicant contends that the Tribunal’s findings rejecting the applicant’s credibility: Decision at [41], and claimed marriage: at [52], were not independent findings or findings of greater generality which subsumed or rendered unnecessary a finding on the claim to have been raped. The applicant says that consideration of the claim of rape was required to inform the ultimate finding on the credibility of the applicant and the specific claims about her marriage and history of violence in her marriage.
The first respondent says that the applicant’s complaints in particulars (a), (b) and (c) are baseless. The first respondent says the Tribunal was aware of the applicant’s rape claim and claims of Joachim’s violence to which she was subjected, but the Tribunal rejected these claims because it rejected the factual premise on which they were based, namely that the applicant had been married to or in a relationship with Joachim.
As a Full Court of the Federal Court of Australia observed in Applicant WAEE v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCAFC 184, 236 FCR 593, an inference that the Tribunal failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons, but where the Tribunal’s reasons are otherwise comprehensive and the issue has at least been identified at some point, such an inference should not too readily be drawn: at [47]. It may be unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. But where there is an issue raised by the evidence advanced by an applicant and contentions made by the applicant, and that issue, if resolved one way, would be dispositive of the Tribunal's review, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
It is uncontroversial that the Tribunal was aware and noted that the applicant claimed to have been sexually assaulted by Joachim at the age of 15 and then forced to marry him: Decision at [6] and that she had been subjected to sexual and physical abuse at the hands of her husband since their marriage: at [1]. The Tribunal also referred to the psychologist’s letter: at [23], noting that it had “carefully” considered the letter but ultimately gave the applicant’s statements recorded in the letter little weight in establishing her claims, because “much of [the] letter includes reporting on statements the applicant [had] made and…these are all generated by the applicant”. It did not, expressly, make any finding that the applicant had been raped in 1985 when aged 15 years by Joachim as she claimed, independently of its rejection of some of the applicant’s other claims. However, the Tribunal considered: the applicant’s relationship with Mr Mambu: at [25]–[41], concluding she had been in a relationship with him from at least 2000: at [52]; the paternity of her son Sedrick: at [42]–[44], concluding he was not adopted as claimed and that Sedrick was her biological child fathered by Mr Mambu: at [52]; the authenticity of a discharge summary from Port Moresby General Hospital, a letter said to be from a registrar of that hospital, and a copy of a police report book entry provided by the applicant to support some of her claims: at [45]–[48], concluding that in providing these documents, the applicant had provided non-genuine documents: at [49]; and that “the applicant has not been credible in her evidence and claims and that [the Tribunal could not] rely on her claims and evidence as being based in fact . . . the applicant, in the process of making her protection claims, has not been a witness of truth”: at [50].
Based on these findings, the Tribunal did not accept that the applicant: was married to or in a relationship with Joachim; had suffered harm from Joachim at any time; or was forcibly married to Joachim when she was 15: Decision at [52]. The Tribunal also did not accept that Joachim sexually assaulted the applicant; committed any violence against her; or that Joachim’s violence towards the applicant became serious in 2001 and persisted from that time until 2013: at [52].
The Tribunal did not engage specifically with any of the applicant’s claims of sexual assault and physical violence by Joachim towards her, in the sense that it did not make individual findings about each instance alleged. It is evident from the Tribunal’s reasons that this was because, having rejected that the applicant was ever in a relationship with or married to Joachim, and finding that she was not a truthful witness for the reasons it gave, the Tribunal did not believe her claims – so rejected them, and specifically rejected the claim that Joachim sexually assaulted her. The Tribunal did not accept that he sexually assaulted the applicant nor that “she has suffered harm from Joachim at any time”. The Tribunal said that given its credibility findings, it placed no weight on the applicant’s evidence: Decision at [52].
The factual premise upon which the applicant’s claims rested had been rejected. First, the Tribunal rejected the factual claim that the applicant had been forced to marry Joachim at the age of 15 years: Decision at [52]. The applicant had claimed she had been forced to marry Joachim when she was 15 years old, in 1985 after Joachim sexually assaulted her. Second, the Tribunal did not accept that the applicant was married to or in a relationship with Joachim: at [52]. A finding about the applicant’s claim of rape at age 15 seems to me also to be subsumed in findings of greater generality—the Tribunal did not accept that Joachim sexually assaulted her, committed any violence against her or that she had suffered harm from Joachim at any time: at [52].
In these circumstances the Tribunal did not need to engage further with any of the evidence explicitly about instances in which Joachim was said to have physically or sexually assaulted the applicant. The Tribunal was entitled to rely on the findings discussed above to bolster the credibility findings, and its complete rejection of the applicant’s evidence on the basis she was not a witness of truth.
I will later deal with whether some of the Tribunal’s findings and reasoning described above were legally reasonable, logical and rational, but for present purposes for the reasons explained, particulars (a), (b) and (c) of ground 1 do not disclose jurisdictional error and fail.
Particular (d)
Here the applicant contends the Tribunal made no findings about her claims to have attempted suicide on three occasions, and that this assessment was a necessary part of the Tribunal’s task in order for it to be able to make findings on the material questions whether the applicant had been married to the man she claimed was her husband, and how she was treated by him. The applicant notes that the Tribunal accepted she suffered from depression and panic attacks and was previously, although not now, suicidal, but did not make findings about the claimed suicide attempts and the reasons said to have led the applicant to make the attempts. The applicant says that these were material questions of fact which were integers or parts of an integer of the applicant’s claims for protection which, if accepted, may well have affected the determination of the applicant’s general credibility, and her claims about her marriage.
There is little doubt the applicant claimed attempting suicide on three occasions after her “husband began to beat [her]”. The accompanying statutory declaration to the applicant’s protection visa application set out the following:
4.When my husband began to beat me, this made me even more depressed and on three occasions I felt so hopeless that I tried to commit suicide. The first time I tried to poison myself by drinking chloroquin (a quinine solution). My eldest son saw what I was doing, stopped me and made me drink milk to counteract the effects. Fortunately, I was able to recover. The second time I tried to commit suicide by hanging myself. My neighbours saw what I was doing and they cut the rope before I lost consciousness. The last time I tried to commit suicide by overdosing on quinine. I woke up in hospital. It transpired that one of my husband’s cousins had come to visit and found me unconscious and took me to hospital.
As already noted, the Tribunal found that the applicant had never been in a relationship with nor married to Joachim, and that she had been in a relationship with Mr Mambu since 2000. The Tribunal also did not accept the applicant had suffered harm from Joachim at any time or that Joachim committed any violence against her, or that Joachim’s violence towards the applicant became serious in 2001, and persisted from that time until 2013. The applicant’s claim that she became “depressed and on three occasions [she] felt so hopeless that [she] tried to commit suicide” was said to have occurred after the applicant’s “husband began to beat [her]”. Plainly, the factual premise upon which the applicant’s claimed suicide attempts rested had been rejected by the Tribunal and it was not necessary for the Tribunal to consider whether the applicant had attempted suicide and, if so, whether those attempts were responsive to any conduct of Joachim. I note that the Tribunal accepted that the applicant was previously suicidal. Particular (d) of ground 1 does not disclose jurisdictional error and fails.
Particular (e)
By this particular, the applicant contends that although the Tribunal found that if the applicant returned to her country but did not live with Mr Mambu, the applicant’s children could support her and that she could live with them, it did not properly consider whether the children could and would be willing to support and house the applicant, given it had been over seven years since she left them without notice in Papua New Guinea. The applicant says she referred at her hearing to the circumstances why the children could not, but the Tribunal did not engage with these circumstances.
The Tribunal’s finding that the applicant’s children would assist her and provide her with some degree of security was based on country information about “wantokism”, a PNG system of social kinship, welfare and mutual obligation based on PNG’s traditional tribal-based society: Decision at [61], [64], [66]–[67]. The first respondent says that it was open to the Tribunal to find based on that information that the applicant’s children could support her and that she could live with them.
During the hearing before the Tribunal, the applicant gave the following evidence about the circumstances of her children and explained why she could not live with them:
MEMBER (M): And are your children adults now? Is that true?
APPLICANT (APP): Yes.
M: And so are they living with their father?
INTERPRETER (INT): She said the kids live by themselves and they look after themselves. He didn’t want to look after them, so she was the main carer for them when she was in the country but she left them.
M: Sorry, they all live in Papua New Guinea? Sorry, they all live in Port Moresby?
APP: Yes.
M: And where do they live in Port Moresby?
INT: So there are two locations. Their daughter, their older girl, the daughter lives at…and the little ones,…Port is another (inaudible).
M: Okay. So could you return and live in either of those places with your children?
INT: She said she can’t live with them because the older girl is married now and lives with her husband and the younger ones, where they’re at, they go back and forth to check or visit him.
M: Sorry who goes back and forth?
INT: The kids’ father.
M: Okay. So when you say younger ones, I think you’re (sic) oldest daughter is 24? Is that right? Sorry, no 34, Thirty-four years old?
INT: The older son is around 31…
M: So according – sorry, what did the Applicant say Madam Interpreter?
Int: Member, she asks you are referencing to the daughter, are you referring to the age that she is down on the paper or you mean you are asking here now what the daughter’s age is now?
M: So here it says that Chinung was born in 1984.
INT: She said that’s wrong date.
M: Mm. So how old is Chinung?
INT: She would be about 30.
M: Okay. And Adam’s (sic) around 30 as well?
INT: Okay so Adam, the son would be 31, 30.
M: Okay. And Shirley is, how old is she?
APP: 28, 29.
INT: Okay so she would be around that age, 28 or 29.
M: And Cassandra?
APP: Him 21.
M: And Joachim Junior?
APP: Him 16.
M: 16 okay. So apart from Joachim Junior they are all adults? So would you be able to return and live with your older children and not be harmed by your husband?
INT: She said no.
M: Why not?
INT: She said all the boys married and lives with their in-laws and their father goes and visits him, and they stay more with him and brings up issues with his wife, about her.
M: Sorry, about who?
INT: His wife, meaning about the client. Of their mother.
M: Right okay. But, I mean you children would not let your husband harm you would they?
INT: She said the kids have gone through abuse them, from their father and he has like hit them with items or things that gave them, left them scars or whatever so they have experienced enough abuse from their own father. She doesn’t want to put them through that again.
The applicant’s evidence was in substance that her children could not or would not assist her if she returned to Papua New Guinea because they were scarred from their father’s abuse, that he remained in contact with the children to some extent so that both she and the children would be unsafe if she were to reconnect with them, and she did not want to put her children through abuse again. But as the first respondent correctly pointed out, the factual premise on which that evidence was based—that the applicant was married to Joachim who was violent towards her and abused her, was rejected. And as the Tribunal rejected the premise, it was not necessary for the Tribunal to engage with the applicant’s evidence about why she could not live with the children if she returned. Having rejected the factual premise, I agree with the first respondent that it was open for the Tribunal to consider the available country information about the particularly close ties that tribal groups have through “wantokism”, and to conclude that the applicant’s children as her family members will be able to look after her and provide her with some measure of security. Consequently, particular (e) of ground 1 does not disclose jurisdictional error and fails.
Particulars (f), (g) and (h)
By particulars 1(f), (g) and (h), the applicant argues that the Tribunal failed to make a finding about an anonymous letter containing allegations about the applicant. It is to be recalled that the Tribunal wrote to the applicant by letter dated 9 November 2018 asking her to comment on the letter. The Tribunal told the applicant that the anonymous letter said that “[she] paid someone to tell [her] how to be a refugee that [she was] claiming [her] husband was violent towards [her] and [her] children and seeking protection on those grounds. The source states that [her] husband left [her] for another woman, that [she had] tattoos on [her] hand and a badly broken nose”. On 23 November 2018, the applicant’s solicitor replied, submitting that no negative inference in relation to the applicant’s credibility should be drawn from the letter, “especially given it is anonymous and the person who made the dob-in may have done so to be vindictive to” the applicant.
The Tribunal refers to the letter in the Decision: at [14]–[15] and inferentially at [19], but it makes no further reference to the letter. It may reasonably be inferred that the Tribunal did not further mention the letter because it did not consider it to be material, because no findings are made about it and none of the Tribunal’s findings rely on the anonymous letter. And although it may have been prudent for the Tribunal to have mentioned and dismissed the letter and its contents, or to have accepted the applicant’s submission about it, that it did not do so, without more, does not disclose error. The applicant also contends that the letter may have a particular importance because of its reference to the applicant’s husband having left her for another woman, as corroborating the applicant’s claim of being married to Joachim. The applicant submitted to the Tribunal that the information in the letter should not be considered to adversely affect the applicant’s credibility because the author remained anonymous and may be vindictive. The applicant does not explain in the circumstances how the Tribunal could have accepted an anonymous allegation that the applicant’s husband had left her for another woman, while rejecting the allegation from the same anonymous source that the applicant had paid someone to tell her how to be a refugee by claiming her husband was violent towards her. In the circumstances, no jurisdictional error is disclosed by particulars 1(f), (g) and (h).
It is convenient next to consider ground 4 alleging illogical or irrational findings and legal unreasonableness.
Ground 4
By ground 4 the applicant says that the Tribunal’s decision is legally unreasonable. She contends the Tribunal made findings without any logical foundation, or which were plainly illogical. This is so on several bases. First, because the Tribunal unreasonably rejected the corroborative documents (a copy of a medical report from a hospital and a report to a police station, both said to be in Papua New Guinea) as not genuine, and the claims which the documents were said to support, without making inquiries of the ostensible authors. Second, because there was no logical foundation for the Tribunal’s conclusion that the applicant was never married to Joachim, and did not suffer harm at his hands on the basis of its finding that the applicant was in a relationship with Mr Mambu since at least 2000, that she had a child with Mr Mambu, and that she was in that relationship until about 2014. Third, the Tribunal’s rejection of the applicant’s claims of assault, attempted suicide and injuries supported by ostensible hospital and police records and a psychological report – was legally unreasonable. Fourth, the Tribunal’s finding that the applicant could live with her children if returned to Papua New Guinea was legally unreasonable because it referred to no evidence in support, and failed to consider whether her family would be willing to support her and house her.
The first respondent says that this ground largely reframes earlier grounds under the banner of legal unreasonableness and should be rejected.
Legal unreasonableness concerns the lawful exercise of power, and the absence of legal unreasonableness is an essential element of lawful decision-making by an administrative body: Minister for Immigration and Border Protection v Eden [2016] FCAFC 28, 240 FCR 158 at [58]. Determining whether a decision is vitiated for legal unreasonableness is supervisory and does not involve the Court reviewing the merits of the decision under the guise of an evaluation of the decision’s reasonableness, or substituting its own view for that of the decision-maker: Minister for Immigration and Citizenship v Li [2013] HCA 18, 249 CLR 332 at [66]; Eden at [59]. Where, as here, reasons for the decision are available, the reasons are likely to provide the focus for the evaluation of whether the decision is legally unreasonable. Where the reasons provide an evident and intelligible justification for the decision, it is unlikely that the decision could be legally unreasonable. Legal unreasonableness may be identified in a review by concentrating on the outcome of the exercise of a power by the Tribunal, where one cannot identify how the decision was arrived at or where the exercise of power lacks an evident and intelligible justification. Legal unreasonableness may also be identified by examining the reasoning process by which the Tribunal arrived at the exercise of power and through which a recognised specie of jurisdictional error is shown: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1, 231 FCR 437 at [44]–[47]; Eden at [64]; Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3, 289 FCR 21 at [30].
Importantly, as the Full Court in Eden at [65] observed:
. . . the evaluation of whether a decision is legally unreasonable should not be approached by way of the application of particular definitions, fixed formulae, categorisations or verbal descriptions. The concept of legal unreasonableness is not amenable to rigidly defined categorisation or precise textural formulary: Stretton at [2] and [10] (Allsop CJ) and [62] (Griffiths J). That said, the consideration of whether a decision is legally unreasonable may be assisted by reference to descriptive expressions that have been used in previous cases to describe the particular qualities of decisions that exceed the limits and boundaries of statutory power. A number of those cases, and the descriptive expressions used in them, are referred to in Li and in the judgment of Allsop CJ in Stretton (at [5]). The expressions that have been utilised include decisions which are “plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification”, and “obviously disproportionate”. It must be emphasised again, however, that the task is not an a priori definitional exercise. Nor does it involve a “checklist” exercise: Singh at 445[42]. Rather, it involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes.
Here, the applicant’s complaint is, inter alia, about the reasoning in which the Tribunal engaged to make the impugned finding that she was not married to or in a relationship with Joachim and that he did not sexually assault the applicant and was never violent towards her. Illogicality, irrationality or legal unreasonableness in the reasons for an administrative decision may establish jurisdictional error. For example, jurisdictional error may arise if the decision or finding is not open on the evidence or if there is no logical connection between the evidence and the inference or conclusion drawn or factual finding made. Making a finding on a fact or issue by drawing an inference or a conclusion which lacks a logical connection with the evidence might also establish jurisdictional error. But a decision, conclusion or finding will not involve jurisdictional error if a reasonable decision-maker could make that decision or finding or reach that conclusion on the same material: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, 240 CLR 611 at [130]–[132] and [135] per Crennan and Bell JJ and at [78] per Heydon J. The question is whether a decision-maker could reasonably come to the conclusion reached: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11, 237 FCR 1 at [21]. And if the conclusion is one on which reasonable minds can differ, it will not be legally illogical, irrational or unreasonable: Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [45].
Moreover, not every lapse of logic will give rise to jurisdictional error and a court should be slow, although not unwilling, to interfere in an appropriate case: SZMDS at [130]. Characterising a decision or finding as legally unreasonable is one not easily made: Djokovic at [33]. And illogicality or irrationality as a foundation for such a characterisation will involve establishing that the decision or finding is so lacking a rational or logical foundation that the decision or finding was one that no rational or logical decision-maker could reach: Djokovic at [34].
In rejecting that the applicant had been in a relationship with or married to Joachim, the Tribunal relied on its findings that:
·the applicant has been in a relationship with Mr Mambu since at least 2000 until at least 2014, and probably to 2016; and
·in 2000 the applicant had a child, Sedrick, with Mr Mambu,
and its general credit findings: Decision at [52].
In concluding that the applicant had been in a relationship with Mr Mambu from at least 2000 until 2014, and probably to 2016, the Tribunal relied on the following matters:
·when the applicant arrived in Australia on a visitor visa, the visa application stated that she was travelling to Australia for holidays with her spouse: Decision at [27];
·the applicant and Mr Mambu were on the same flight when the applicant travelled to Australia: at [38];
·Mr Mambu had completed seven incoming passenger cards between January 2012 and May 2016, and that on four cards completed in January and February 2012, and April and August 2013 he listed the applicant as an emergency contact with what appeared to be PNG mobile numbers as a contact address: at [28]; and
·in Mr Mambu’s visa application made on 6 April 2016, he listed a son, not travelling with him to Australia, named Sheddrick Mambu, and a birth date of 02/02/2000. The applicant’s protection visa application stated that she had a son - Sedrick Gahekave - born 02/02/2000. The applicant subsequently claimed Sedrick Gahekave was an adopted son: at [30].
The Tribunal reasoned that the applicant’s details appearing on Mr Mambu’s incoming passenger cards over a period, including the period she was in PNG and then in Australia, seemed to very clearly demonstrate that their relationship was more significant than the applicant had maintained. Considered together, the matters (in the dot points above) led the Tribunal to find that the applicant was Mr Mambu’s partner at least since 2012 and very probably as early as 2000, when Sedrick was born: Decision at [41].
The Tribunal’s credibility assessment as it affected the applicant’s claims to have been forced to marry Joachim, to have been raped, and during the marriage to have been subjected to violence, was based on the following reasoning:
41. Considered fairly, the first concern discussed above may have been explained as the applicant has sought to and it may have been appropriate to give her the benefit of the doubt. But the applicant’s details on the passenger cards of Sebastian, over such a period of time, and including the period she was in PNG and then in Australia, seems to me to very clearly demonstrate that their relationship is more significant than the applicant has maintained. Considered together, the matters above lead me to find that the applicant was the partner of Sebastian at least since 2012 and very probably as early as 2000, when Sedrick was born. This is because I do not find her explanations for any of the above matters at all convincing, and taken together the information on the Department file is sufficient to establish that there is a relationship between them. It also leads me to have profound doubts about the credibility of the applicant because this appears to cut across her claims to have been in a relationship with, and abused, assaulted and threatened by Joachim up until 2013, but also because the applicant has, I find, not disclosed her relationship with Sebastian to the Department or Tribunal. This leads me to find the applicant is not credible in giving her evidence, because as above I have found that she has disclosed information in a limited way to try and obscure the real situation, or has chosen not to disclose information.
(emphasis added)
That the Tribunal considered the applicant had knowingly provided “non genuine documents” also played a part in the Tribunal’s credibility assessment, as is evident from the following passage:
49. Having carefully considered the documents, I find that the irregularities identified, when read with the independent country information from DFAT, lead me to find that these are not genuine documents and I place no weight on them in establishing or assisting the applicant to establish her claims. Given they were given to the Department by the applicant I also find that the provision of these documents leads me to have further concerns about the applicant’s credibility because, I find, she has provided non-genuine documents.
The Tribunal’s assessment that the applicant and Mr Mambu were in a relationship since at least 2000, that Sedrick was their biological child, that the applicant was not truthful about these matters, and that the applicant deliberately provided non-genuine documents relating to a hospital attendance and police report, led the Tribunal to conclude:
50.. . . the applicant has not been credible in her evidence and claims and that I cannot rely on her claims and evidence as being based in fact. I find that the applicant, in the process of making her protection claims, has not been a witness of truth.
51.The difficulty for the applicant is that, in denying the relationship with Sebastian, which appears on the information before me to be very clearly established, she has not been able to discuss the true state of affairs, which might, despite the relationship with Sebastian, have led to a basis for making a claim for protection. With her refusal to engage with what strongly appears to be the facts – that she has been in a relationship with Sebastian, I am forced to make findings on the basis of what is before me that I can discern is more objectively established.
I agree with the applicant that the Tribunal’s chain of reasoning does not provide a logical or rational foundation for concluding that the applicant was never in a relationship with Joachim. The applicant may have been in a relationship with Mr Mambu since 2000 and they may have had a child together in 2000, but that does not logically bear upon an assessment of the applicant’s claim that, 15 years earlier in 1985, she was raped by Joachim and forced to marry him. It is not a logical foundation for concluding that the violence to which the applicant claimed to have been subjected at the hands of Joachim did not happen. The applicant claimed that she had five children with Joachim in that time. Chronologically, the fifth was claimed to be Sedrick: Court Book (CB) 5, CB30 at [3]. The applicant claimed a sixth child with Joachim in 2002: CB5, CB31 at [6] and a seventh child with Joachim in 2004: CB5. The Tribunal had before it the applicant’s claim of seven children, and putting to one side the paternity of Sedrick and the progeny of another of her children claimed during the visa application process to have been adopted, no finding is made about the remaining five children. The applicant claimed, relevantly that all four children born before Sedrick were Joachim’s, as was Joachim Junior (born in 2002). From which relationship did these children come? The Tribunal plainly accepted that the applicant had some children apart from Sedrick, having concluded that the applicant’s children could support her and she could live with them if she returned to her home country. But the Tribunal does not engage with this obvious contradiction as it relates to its finding that the applicant and Joachim were never in a relationship.
It is to be remembered that the applicant had claimed she had been subjected to violence from Joachim throughout their relationship. The Tribunal had knowledge of the above claim. For example, in the submissions prepared by the applicant’s former lawyers, it was submitted that:
It is evident from the applicant’s consistent testimony that she was subjected to years of ongoing abuse and sexual assault at the hands of her husband at the time. Moreover, the applicant instructs she was she was (sic) subjected to serious abuse both physical and sexual for the entirety of her relationship with her husband
(emphasis added)
But there is no logical or rational foundation provided by the Tribunal’s finding as to the applicant’s relationship with Mr Mambu for its conclusion that the applicant was not raped or assaulted during the marriage in the 15-year period between 1985 and 2000.
Furthermore, as the Tribunal relied on its conclusion that the applicant deliberately provided non-genuine documents relating to a hospital attendance and police report, to:
·reject the applicant’s evidence and claims, because she was not “credible in her evidence and claims and [the Tribunal could not] rely on her claims and evidence as being based in fact”; and
·to conclude the applicant was never in a relationship with Joachim and that he never sexually assaulted or was violent with her,
the Tribunal’s decision to reject the impugned documents as non-genuine, without first making inquiries of the ostensible authors or issuing authorities, was legally unreasonable in the circumstances discussed below.
It may be accepted that the Tribunal was under no duty to make the applicant’s case for her, nor to inquire beyond the materials the applicant adduced: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 at [43].
But a failure by the Tribunal to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review, or otherwise manifest itself as jurisdictional error, for example that the failure to make the inquiry was so unreasonable as to support a finding that the Tribunal's decision was infected by jurisdictional error: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25]–[26].
The documents here at issue were said to be copies of a medical report from a hospital and a report to a police station, both in Papua New Guinea. As already noted, the Tribunal rejected the documents as not genuine, moreover, it concluded the applicant knew the documents were not genuine and provided them to the Department nonetheless, and this negatively affected the Tribunal’s credibility assessment of the applicant.
Given the serious negative consequences for the applicant’s credibility in concluding the applicant knowingly provided non-genuine documents to the Department, I agree with the applicant that it would have been a simple inquiry, easily made, to have at least contacted the hospital and asked if the medical report was genuine, and the facts in the report about the hospital admission of the applicant were correct. The covering letter from the hospital contains a telephone number, a facsimile number, and email details through which contact could have been attempted. I agree with the applicant that it would have been a simple matter for the Tribunal to have verified the report and its details by contacting the hospital. Making inquiries about the copy of the police report is more problematic because it contains no contact details and no official mark of the authority of its issue. Inquiries to verify this document would not have been as simple as those involved in verifying the hospital record. Nonetheless, inquiries would not have been difficult to make since the report contained the name of the police station at which the report was said to have been made, the date on which it was made, and the name and rank of the police officer to whom the report was made.
In the circumstances, the rejection of the documents as non-genuine, and relying on that fact to make an adverse credibility finding, without making the relatively simple inquiries to verify the authenticity of the impugned documents, was legally unreasonable. The conclusion subsumes the argument advanced in particulars (b) and (c) of ground 2. For these reasons, ground 4 establishes jurisdictional error.
In the circumstances it is unnecessary to consider the remainder of the grounds the applicant advanced, as for the reasons just explained, the Tribunal’s decision is affected by error which is material, in the sense that there is a realistic possibility that the decision the Tribunal made in factcould have been different if the error had not occurred: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12, 280 CLR 321 at [7].
DISPOSITION
As the Tribunal’s decision is attended by jurisdictional error, the decision is quashed and the application Case No 1622049 is to be remitted to the second respondent for it to determine the review according to law.
The first respondent is to pay the applicant’s costs fixed in the sum of $8,371.30, that amount being the amount sought and the scale amount under the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Sch 2, Pt 2, Div 1, item 3 for a migration matter concluded at final hearing.
I certify that the preceding ninety-two (92) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik. Associate:
Dated: 25 August 2025
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