CDW21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FedCFamC2G 277

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

CDW21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 277

File number(s):	SYG 1304 of 2021
Judgment of:	JUDGE MANOUSARIDIS
Date of judgment:	19 November 2021
Catchwords:	MIGRATION – application for remedies under s 476 of the Migration Act 1958 (Cth) in relation to decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant a Protection visa – whether Tribunal failed to consider claims or material that was before it – whether Tribunal took into account irrelevant matters – application dismissed
Legislation:	Migration Act 1958 (Cth), ss 36(2)(a), 36(2)(aa), 476
Division:	Division 2 General Federal Law
Number of paragraphs:	30
Date of hearing:	10 November 2021
Place:	Sydney
The Applicant:	Appeared in person, by video
Counsel for the First Respondent:	Mr T Reilly, by video
Solicitor for the First Respondent:	Mills Oakley

ORDERS

SYG 1304 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CDW21

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE MANOUSARIDIS
DATE OF ORDER:	19 NOVEMBER 2021

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant pay the first respondent’s costs set in the amount of $6,100.

THE COURT NOTES THAT:

3.These are orders of the Federal Circuit and Family Court of Australia (Division 2).

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

1. The applicant applies for remedies in relation to a decision made by the second respondent (Tribunal) affirming a decision made by a delegate of the first respondent (Minister) not to grant the applicant a Protection (subclass 866) visa (Protection visa).

   CLAIMS FOR PROTECTION

2. In his form of application the applicant claimed as follows:[1]

   (a)During the election of 2012 the applicant was threatened with dangerous weapons such as “bush, knifes [sic] and guns” because the applicant was involved in the election. Homes were destroyed, people were injured; there was a political crisis that led to death; and politicians use young men like the applicant to force other people to vote.

   (b)If the applicant returns to his country he will die because he was involved in the elections of 2012 and, during his involvement, his community lost their properties, and some people were injured. As a result the applicant was moved out of his village.

   (c)When the applicant was at home, a group of boys, who were putting masks on their faces, marched straight into the applicant’s house. The applicant “went out” but was shot in the back to “finish off” his life. The applicant reported the incident to the police and another organisation (or organisations), but the applicant received no response.

   [1] CB37-39

3. The applicant stated his claims in fuller form in a statement dated 26 March 2019, where he stated as follows:[2]

   [2] CB73

   (a)The applicant was born in West Papua New Guinea, and he moved to Papua New Guinea (PNG) when he was 7 years old.

   (b)The applicant is an ethnic islander, and a Seventh Day Adventist.

   (c)The applicant was adopted by parents who had a number of biological children. The applicant’s adoptive siblings physically and psychologically abused the applicant.

   (d)In the general election of 2012 the applicant supported an independent candidate as a local member. The applicant was a campaign manager; he distributed the candidate’s photos, organised the fuel; and provided fruit and vegetables to the candidate and his supporters. The independent candidate won the election, which meant the sitting member lost his seat.

   (e)Late one night, at around 2:00 am, the applicant received a call from his friend informing the applicant that supporters of the sitting member were on their way to the applicant’s house to kill him. The applicant left his home, and ran away to a nearby hill where he slept.

   (f)At around 4:00 am on the same night, the applicant woke up and he could see from the hill a fire, and saw “they had burned my house and my properties”. The applicant could see men whose faces were painted black and carrying weapons. The men shot the applicant in the back, but he escaped.

   (g)The men not only destroyed the applicant’s property; but also the properties of other people within the community who had supported the winning candidate. The men also destroyed the property of the applicant’s family.

   (h)The applicant escaped from one village to another village. The applicant’s friend informed him that the “boys” were looking for the applicant. 

   (i)The applicant reported all this to the police, but they asked the applicant for a bribe and they did not do anything.

   (j)The applicant then went to the “charity people to see if they could look after” the applicant, but they could not afford it.

   (k)The applicant decided to leave PNG. He arrived in Australia at the end of 2012, but the applicant returned to PNG in early 2013 because he did not know how to apply for a protection visa.

   (l)The applicant remained in PNG for approximately 2 years in another province of PNG. After two years “they came and tried to kill” the applicant again. The applicant travelled again to Australia in 2015. The applicant stayed in Australia for 2.5 months, but again returned to PNG because his visa was due to expire. The applicant did not know anything about protection visas.

   (m)The applicant moved to a different area, but the applicant continued to have problems. “These people came looking” for the applicant again, so he decided to leave PNG again, which he did in around July 2016.

   (n)The applicant fears he will be killed or seriously harmed if he returns to PNG, and he will be unable to relocate.

4. The applicant was interviewed by the delegate on 28 January 2020 (delegate interview), and by letter dated 10 February 2020 the applicant’s lawyer addressed a number of issues the delegate raised with the applicant during the interview.[3]

   [3] CB107

   TRIBUNAL’S REASONS

5. The Tribunal found or accepted the following:

   (a)The applicant is from the region in PNG he claims he is from, and that he was adopted into a large family; the applicant had a difficult childhood; and the applicant worked as a subsistence farmer and, for a time, as a primary teacher.[4]

   (b)The applicant and his family are from a particular tribe (Tribe A); and like so many members of Tribe A, the applicant and his family supported a particular candidate (Candidate) in the 2012 elections against the incumbent who was from a different tribe; there was significant violence during the election; the applicant was involved in managing the campaign in his village and in trying to force people to vote for the Candidate, and was injured in fighting at one of the polling booths; and that properties in the area were burnt after the election.[5]

   (c)There may have been hostility towards the applicant from opposition supporters due to the applicant’s being a local village campaign manager for the Candidate, and the applicant’s having been involved in fighting at the electoral booth.[6]

   [4] CB343, [86]

   [5] CB343, [87]

   [6] CB345, [92]

6. The Tribunal was not satisfied, however, that masked men burnt the applicant’s family home, or shot the applicant, or that the applicant had to hide from the masked men; nor was the Tribunal satisfied the applicant was held primarily responsible for the property damage in the village, or the applicant was targeted by villagers for payback.[7] The Tribunal relied on the following matters:

   (a)The applicant’s evidence about the masked men and the incidents after the election was inconsistent to the extent that the Tribunal was unable to accept the applicant had any direct experience of the incidents the applicant claimed occurred. The Tribunal referred to the applicant claiming in his written statement that he had been shot at around 4:00 am one night, but the applicant did not so claim during the delegate interview. Further, in his evidence before the Tribunal the applicant said the incident took place the day after polling, and he said that he was at home when he looked out the window and saw boys with painted faces arriving, in response to which the applicant and his family members ran away up a hill, and, when the applicant looked down, he saw his house was burnt down.[8]

   (b)The applicant’s evidence about what happened after the election was inconsistent.[9]

   (i)In his statement the applicant said he had to move around from village to village after the attack; in the delegate interview the applicant repeated this, stating that he moved from place to place, to his uncle’s house, and around the community, and that the church supported him; and before the Tribunal the applicant said he lived with a pastor in the village, then went to his mother’s place in a particular place; and in his form of application the applicant said he lived at one address being at a different place.[10]

   (ii)In his statement the applicant said he returned in 2013 to a different province of PNG, and that “they came and tried to kill” the applicant at that province after two years and, for that reason, he arranged to return to Australia; in the delegate interview the applicant said he lived with his parents from 2013 to 2015, where the applicant worked on the family farm and at a primary school; in the post interview submissions the applicant said that after the election he helped his parents build a new house at a place that was some distance from their original house, the applicant stayed there until 2013 when he returned to his original village to live with church members, in July 2014 he returned to live with his parents at their new home; before the Tribunal the applicant said the applicant and his family lived in different houses.[11]

   (c)The Tribunal found the applicant returned to his home region in 2012, and that the applicant worked at his home region between 2012 and 2015. The Tribunal relied on the evidence that is most contemporaneous to the event in question. That included the information the applicant provided in his application form that he lived in his home area, and worked on the family farm and at a local primary school between 2012 and 2015.[12] The applicant was not harmed by villagers during this time, which indicated the applicant was not being targeted by villagers; and while there may have been hostility from individuals involved in the 2012 election, the Tribunal was not satisfied the applicant was targeted for revenge.[13]

   [7] CB345, [93]

   [8] CB345-346, [95]-[96]

   [9] CB346, [99]

   [10] CB346, [99]

   [11] CB346, [100]

   [12] CB347, [102]

   [13] CB347, [104]

7. Given these findings the Tribunal made the following additional findings:

   (a)The Tribunal was not satisfied the applicant has a genuine fear of serious harm for reasons of his political opinion or ethnicity, although he may have concerns about returning to PNG given difficulties in his childhood. The Tribunal said that, in reaching this conclusion, it took into consideration the applicant’s having returned to live in the region, his taking so long to apply for protection in Australia, and he requested to return to PNG in 2017.[14]

   (b)The Tribunal was not satisfied the applicant faces a real chance of serious harm.[15] In addition to repeating the findings it already made, the Tribunal referred to the DFAT Country Information Report Papua New Guinea, dated 10 February 2017. The Tribunal referred to “[w]antokism”, being the name given to the custom of retaliation or payback between members of social groups such as a family, clan, or tribe, where entire clans or tribes can be required to retaliate against perceived wrongs committed against fellow clan members.[16] The Tribunal noted that conflict in the applicant’s region has been greatly reduced since 2014.[17] The Tribunal concluded this part of its reasons as follows:[18]

   The Tribunal is not satisfied therefore that there is a real chance of serious harm if the applicant were to return to [his] area given this more peaceful environment created by the peace agreement and little evidence of conflict in his specific area. Further as discussed, the Tribunal does not accept that the applicant was harmed or being targeted following the election in 2012, or that he has been targeted since when he was living in PNG, and his family has not been harmed and are still living there. The Tribunal has also taken into consideration that despite the electoral violence, the applicant’s evidence was that in his area people generally get on although there is some separation between the tribes. The Tribunal is sympathetic to the applicant’s position in that he may feel vulnerable returning to his region, given an unhappy childhood, as described in the psycho-social report and his testimony to the Tribunal, and the fact that he has not lived there since 2015/16. However, the Tribunal is not satisfied there is a real chance of serious harm, in the sense of a substantial and non-remote chance, even taking into consideration his vulnerabilities, and noting also that he has remarked on a close relationship with his mother.

   (c)The Tribunal was not satisfied the applicant has a well-founded fear of persecution on the basis of his criminal conviction in Australia,[19] or because of the level of violence in PNG.[20]

   (d)The Tribunal was not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to PNG there is a real risk of significant harm.[21]

   [14] CB349, [112]; [115]

   [15] CB350, [119]

   [16] CB351, [123]

   [17] CB352, [126]

   [18] CB353, [129]

   [19] CB354, [132]

   [20] CB354, [134]

   [21] CB355, [141]

   GROUNDS OF APPLICATION

8. The applicant, who is not legally represented, relies on the following grounds contained in the application (errors in original):

   1.The Assistant Minister's decision is legally unreasonable

   2.The Assistant Minister took into account an irrelevant consideration, that is, that the Assistant Minister considers that the persons who commit serious crimes should expert to forfeit the right of remining in Austrralia.

   3 The minister didn't consider to the fact that Pay Back Killing in Papua New Guinea is very dangerous. If I hide or relocate elsewhere in New Guinea dosen't mean that I will be safe.

   4 Minister didn't consider what has been happened during the election period. Where I was heavily involved resulting lost of properties and even lives were lost.My tribes man didn't allowed me to entre into my village until I meet the demand,which I can't afford.

9. At the hearing before me the applicant made submissions without specifically referring to the grounds and then he made submissions in relation to each of the grounds stated in the application after I read each ground aloud. (In these reasons I will assume that “Minister” and “Assistant Minister” in the grounds of application are intended to refer to the Tribunal.)

   Submissions made without specific reference to grounds of application

10. At the hearing before me the applicant said that if he returns to PNG he will suffer a lot of pain, especially under the payback system; the Tribunal did not look at the payback system; it will be difficult to relocate because there are diverse cultures in PNG; he will have to pay everything that had been lost due to property damage; the Tribunal did not consider the fact there is an election next year, and that “they will still come to attack” him; and the Tribunal did not place itself in the applicant’s shoes.

11. I do not accept the applicant’s submission that the Tribunal failed to consider the payback system. The Tribunal referred to this system when considering country information about PNG, noting that “Wantokism and the custom of retaliation or payback is prevalent in rural and urban areas”.[22] The Tribunal considered that information on the basis of the findings it made in relation to the applicant’s particular claims. That is, the Tribunal considered that information on the basis of its findings that it did not accept the applicant’s claims that masked men burnt his family home, or that the applicant had been shot, or that the applicant had to hide from the masked men; or that the applicant was held primarily responsible for the property damage in the village, or that the applicant was targeted by villagers for payback.[23] Further, the Tribunal considered the payback system and other country information to assess the extent of conflict in the applicant’s area, and the Tribunal found that conflict in the applicant’s area has been greatly reduced since 2014.[24]

    [22] CB351, [123]

    [23] CB345, [93]

    [24] CB352, [126]

12. It is true the Tribunal did not specifically refer to their being an election “next year”. The Tribunal did, however, consider the risk of electoral violence. The Tribunal accepted there was still election-based violence notwithstanding a general peace agreement, and there could still be animosity between individuals.[25] The Tribunal noted, however, it was unable to locate any recent articles on violence in the applicant’s area;[26] and it further noted that, despite the electoral violence, the applicant’s evidence was that in his area people generally get on, although there is some separation between the tribes.[27]

    [25] CB353, [128]

    [26] CB353, [128]

    [27] CB353, [129]

13. I take the applicant’s submission that the Tribunal did not place itself in the applicant’s shoes as a submission that the Tribunal did not understand the evidence the applicant submitted. I would not accept that submission. The Tribunal set out the applicant’s evidence, considered it, and for reasons that were reasonably open to it, accepted some of the applicant’s evidence, and did not accept other parts of the applicant’s evidence; and it assessed the risk of harm the applicant faced on returning to PNG on the basis of the findings it made.

14. The remaining submissions the applicant made without reference to the grounds of application go no further than the merits of the applicant’s claims for protection.

15. For these reasons, the submissions the applicant made at the hearing before me that did not specifically address the grounds of application do not disclose any jurisdictional error by the Tribunal.

    Ground 1

16. Ground 1 claims the Tribunal’s decision is legally unreasonable. The ground does not identify the facts and matters on which the claim is based. For that reason alone, ground 1 fails. In any event, as should be apparent from my summary of the Tribunal’s reasons, the Tribunal considered the applicant’s claims, and gave intelligible justifications for accepting and not accepting particular factual claims the applicant made, and for determining, on the basis of its findings, whether the applicant met the criteria provided for by s 36(2)(a) and s 36(2)(aa) of the Act.

17. In relation to ground 1 the applicant submitted the Tribunal might have based its decision on his criminal record; and the applicant wants another chance. The Tribunal does refer to the applicant having been convicted of a criminal offence as a consequence of which his visa was cancelled;[28] and the Tribunal considered whether his criminal conviction gave rise to a real risk of harm if he were to return to PNG. There is nothing in the Tribunal’s reasons, however, that could suggest the Tribunal took the applicant’s criminal conviction into account other than when considering whether such conviction gives rise to a well-founded fear of persecution, or a real risk of significant harm.

    [28] CB333, [3]

1. Ground 1, therefore, fails.

   Ground 2

2. Ground 2 claims the Tribunal took into account the view that persons who commit serious crimes should expect to forfeit the right to remain in Australia. There is nothing in the Tribunal’s reasons to suggest it took into account any such matter.

3. In relation to ground 2 the applicant submitted that his conviction was his first conviction; he has rehabilitated and adopted a positive lifestyle; he is trying to get back into society; and people usually get a second chance. These are not matters that are relevant to the grounds on which the Tribunal affirmed the delegate’s decision not to grant the applicant a Protection visa.

4. Ground 2 also fails.

   Ground 3

5. This ground claims the Tribunal did not consider that payback killing in PNG is very dangerous, and the applicant will not be safe if he hides or relocates. In support of this ground the applicant repeated the substance of what I have already noted the applicant submitted in relation to the payback system.

6. As I have already concluded, the Tribunal did consider the payback system, and assessed its significance having regard to the applicant’s claims the Tribunal accepted and did not accept. Further, the Tribunal did not make any finding that the applicant could relocate. The Tribunal assessed the risk of harm to the applicant on the basis that the applicant would return to his home area.

7. Ground 3, too, fails.

   Ground 4

8. This ground claims the Tribunal did not consider what happened during the election period and the claims the applicant made about what occurred to him during or as a consequence of the election. That is incorrect. The Tribunal considered the applicant’s claims about the election, and what had occurred to him. It accepted some, but rejected other, aspects of the applicant’s claims.

9. In relation to ground 4 the applicant submitted the Tribunal said the applicant’s claims are “made up stories”, and the Tribunal did not believe the applicant. The applicant submitted he told the truth. Although the Tribunal did not find the applicant made up his claims, the Tribunal did not accept central elements of his claims. The Tribunal was not bound to accept the applicant’s claims; and to the extent the Tribunal did not accept those claims, it relied on evidence and reasons on which it was entitled to rely in not accepting those claims.

10. Ground 4 also fails.

    DISPOSITION AND COSTS

11. I propose to order that the application be dismissed.

12. The Minister applies for costs, and that I should fix those costs in the amount of $6,100. The applicant said he does not have any money. An inability to pay costs is usually not an adequate reason for not making an order for costs in favour of a successful party. I am satisfied in the circumstances of this case that the applicant should pay the Minister’s costs, and that $6,100 is a fair indemnity of the costs the Minister has incurred in successfully resisting the application. I propose, therefore, to order that the applicant pay the Minister’s costs set in the amount of $6,100.

13. I will also note that the orders I propose to make are orders of the Federal Circuit and Family Court of Australia (Division 2). That is necessary because the seal of this Court that will be affixed to the orders I propose to make only includes the words “Federal Circuit and Family Court of Australia”. The Federal Circuit and Family Court of Australia Act 2021 (Cth) does not constitute or continue any court by the name of the “Federal Circuit and Family Court of Australia”.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.

Associate:

Dated:       19 November 2021