FEDERAL COURT OF AUSTRALIA

APE16 v Minister for Home Affairs [2020] FCAFC 93

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    Paragraphs 2 and 3 of the order of the Federal Circuit Court of Australia made on 24 August 2018, by which the appellant’s application to that Court was dismissed with costs, be set aside, and in lieu thereof it be ordered that –

(a)    a writ of certiorari issue to the Administrative Appeals Tribunal quashing its decision dated 13 November 2015, by which the refusal of the applicant’s application to the Minister for a protection visa was affirmed;

(b)    a writ of mandamus issue directed to the Tribunal requiring it to determine the applicant’s application for review according to law; and

(c)    the first respondent pay the applicant’s costs of the proceeding.

3.    The first respondent pay the appellant’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    The appellant is a citizen of Papua New Guinea (PNG). She appeals a decision of the Federal Circuit Court of Australia which dismissed her application for judicial review of a decision of the Administrative Appeals Tribunal. The Tribunal had affirmed a decision of a delegate of the Minister under s 65 of the Migration Act 1958 (Cth) to refuse the appellant’s application for a protection (class XA) visa.

Background

2    The appellant arrived in Australia on 31 March 2009 on a visitor’s visa which expired on 30 June 2009, at which time she became an unlawful non-citizen.

3    The appellant made an initial application for a protection visa on 8 November 2010. That application was determined to be invalid.

4    On 22 March 2011, the appellant made a second application for a protection visa. The second application was made on the ground that the appellant was a person in respect of whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol, which was the criterion that was at that time provided for by s 36(2)(a) of the Act. The second application was refused by a delegate of the Minister on 9 June 2011. The appellant sought review of that decision by the Refugee Review Tribunal, which affirmed the delegate’s decision on 31 October 2011.

5    The Migration Amendment (Complementary Protection) Act 2011 (Cth) (2011 amending Act) inserted s 36(2)(aa) of the Migration Act which, as the title of the amending Act indicates, contains complementary grounds for protection. Section 36(2)(aa) commenced operation on 24 March 2012.

6    In SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; 212 FCR 235, the Full Court held that an applicant who had been refused a protection visa prior to the insertion of s 36(2)(aa) was not precluded by s 48A of the Act from making a further application relying on the new criterion, as the further application did not rely upon the same criterion as the earlier application.

7    On 5 August 2013, following the decision in SZGIZ, the appellant made a third application for a protection visa. The third application was supported by a statutory declaration made by the appellant on 5 August 2013 and was limited to a claim in reliance on the complementary protection criteria in s 36(2)(aa) of the Migration Act. By her third application, the appellant made the following claims –

(1)    she was born in Mount Hagen in PNG on 16 March 1982;

(2)    in 2000, war broke out in Mount Hagen between neighbouring tribes;

(3)    in 2001, she was raped by members of the Kimbin Rami Tribe who threatened to kill her if she told anyone;

(4)    as a result of the rape, the appellant could not have children;

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

(6)    after the rape in 2001, the appellant moved to Port Moresby where she lived until she came to Australia in 2009;

(7)    while in Port Moresby, she was watched by men from the Kimbin Rami Tribe and did not feel safe;

(8)    in 2008, the appellant married her husband, who was abusive towards her from an early point in their relationship;

(9)    the appellant and her husband came to Australia in 2009 on a visitor’s visa;

(10)    the appellant has had ongoing heart issues since 2011, has had heart surgery on two occasions, and continues to suffer heart problems;

(11)    the appellant’s husband took her to the hospital on 28 May 2013 for a second heart operation, but did not return to pick her up after she was released following that surgery, and she has not seen her husband since then;

(12)    on 18 June 2013, the appellant received a threatening text message from her husband which stated –

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

(13)    the appellant had not spoken to her husband since receiving the message, and did not know if her husband was still in Australia, or if he had returned to PNG;

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

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

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

(17)    the appellant claimed that if she lived in Mount Hagen she would have to live with her parents and they could not protect her as they were very old and frail;

(18)    the appellant added that the police were unlikely to provide protection, as domestic violence is not investigated by the police in PNG, as it is considered a family matter;

(19)    the appellant also claimed that she had continued to experience health problems following her second heart operation in 2013, and had also been diagnosed with severe mental health issues stemming from her experiences in PNG; and

(20)    the appellant claimed that she had engaged a psychologist in Australia and that if she was to return to PNG, she would not be able to continue to get the medical and psychological care that she needed.

8    The appellant’s application was accompanied by a number of supporting medical records, letters from medical practitioners and other health professionals, and a photograph of the text message referred to above. In addition, the Tribunal referred to information provided by the appellant to a delegate of the Minister during an interview on 9 April 2014. That information included that –

(1)    the appellant’s husband went back to PNG and she thought that he would mistreat her if she returned; and

(2)    the appellant’s husband would claim that he paid for her with a “bride price” to her parents and that she is his property.

9    The appellant’s third application was refused by a delegate of the Minister on 25 June 2014.

The application to the Tribunal

10    The appellant sought review of the delegate’s decision by the Refugee Review Tribunal. From 1 July 2015, the proceeding before the Refugee Review Tribunal was taken to be a proceeding in the Migration and Refugee Division of the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth), Schedule 9, item 15AB(2).

11    The Tribunal conducted two hearings. An initial hearing occurred on 28 May 2015, following which the member who had constituted the Tribunal ceased to be a member of the Tribunal. The Tribunal was then reconstituted by a different member who conducted a second hearing on 5 November 2015. The appellant appeared before the Tribunal on both occasions to give evidence and to present arguments. In its written statement of reasons, the Tribunal stated that the second member appraised himself of the relevant files, including those relating to the first invalid visa application, and listened to the recording of the first hearing that had taken place on 28 May 2015.

12    One of the issues that is relevant to the grounds of appeal is the place in PNG to which the appellant would return. During the course of the hearing before the Tribunal on 5 November 2015, the following exchange took place –

Member:    I know you’ve said you’re not going to go back to PNG, but if you did, where do you think you’d live?

Applicant:    I haven’t got relatives in Moresby.

Member:    So would you go back to Mount Hagen?

Applicant:    If I’ve got to go back, I’ll go back to my village.

Member:    So I know you’ve got medical issues, particularly with your heart, so you would be closer to medical treatment in Port Moresby?

Applicant:    It’s hard for me [•] here you’ve got the best treatment. If I go to Moresby, there’s no one to help me.

Member:    Well, you would have access to medical facilities in PNG. I accept that they might not be as good as here.

Applicant:    I come from a family that hasn’t got any money.

…

Applicant:    They are all old. If I have to go to a hospital and find money, who’s going to be able to help me?

13    The Tribunal member then referred to country information, and stated that it suggested that tribal conflicts in PNG were generally localised, with the consequence that if there was a dispute in a particular area, it was not going to follow someone to Port Moresby. The transcript of the hearing then records the following exchange (verbatim) –

Member:    … So, that was suggested if there is a fear of this tribe, that you’d be safer in Port Moresby.

Applicant:    Yeah, but if I go to Moresby, where do I stay? I haven’t got any relatives there.

Member:    Well, you could get a job.

Applicant:    I am not an educated woman. I haven’t got knowledge that would allow me to get work.

Member:    Well, there are plenty of jobs that don’t need significant education.

Applicant:    In Moresby nowadays, if people work, they will stay in the house, but where would I stay? If I go back, I have to go to my village.

14    In its written reasons the Tribunal stated that there were a number of inconsistencies in documents that the appellant had provided, in the information recorded by the Refugee Review Tribunal in its decision concerning the second visa application, and in evidence that the appellant gave to the Tribunal. The inconsistencies related to the time and circumstances of the alleged rape, and the appellant’s claims about consequential medical treatment. The Tribunal stated that it put these inconsistencies to the appellant at the second hearing as required by s 424AA of the Act. The Tribunal stated that whilst it acknowledged the understandable trauma and confusion that would occur following a rape, it was concerned about what it described as the significant lack of consistency in the appellant’s evidence. The Tribunal stated at [41] that it was of the view that –

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

15    The Tribunal stated that it also put to the appellant apparent inconsistencies in the information and her evidence and her husband’s evidence before the Refugee Review Tribunal in her valid second visa application regarding whether the Kimbin Rami Tribe had come to Port Moresby while she was living there. The Tribunal stated at [44] that there were significant inconsistencies in that evidence which “go to the [appellant’s] credibility as to whether the Kimbin Rami Tribe were looking for the [appellant] or threatening or harming her in Port Moresby.”

16    After identifying the appellant’s evidence in relation to her husband and the violence to which he had subjected her during their relationship, the Tribunal stated that it put to the appellant the movement record from the Department of Immigration which indicated that the appellant’s husband had not left Australia, and that despite remaining here, he had taken no action to contact, threaten, or harm the appellant since allegedly sending her the threatening text message in June 2013. The appellant responded by saying that both she and her husband had changed their mobile telephone numbers, but then said that only her husband had changed his mobile number. The Tribunal recorded that the appellant stated that she did not know whether her husband was still in Australia.

17    The Tribunal addressed the appellant’s concerns regarding the potential for her to have to repay a “bride price” (see [8(2)] above) in circumstances where she did not have the means to repay it. It was put to the appellant that she was simply guessing as to what her husband’s family may do, which the appellant denied.

18    The Tribunal then addressed the concerns raised by the appellant regarding her fears arising from the alleged tribal warfare if she were to live in Port Moresby, noting inconsistencies in the evidence to which the Tribunal had earlier referred. The Tribunal stated that it put the substance of independent country information to the appellant. That information included reference by the Refugee Review Tribunal in its decision on the second application to reports from February 2008 and October 2004 of incidents of tribal violence in Port Moresby that indicated that they normally arose from animosities triggered there, rather than as a result of incidents occurring on tribal lands. The Tribunal stated that no additional independent information was before the Tribunal that would suggest the likelihood of tribal violence in the appellant’s village following her to Port Moresby. Relevantly, the Tribunal stated at [56] –

When the Tribunal put to the [appellant] that this [the substance of the independent information] would suggest that there is little risk of from [sic] the Kimbin Rami Tribe should she live in Port Moresby, the [appellant] indicated that she would have nowhere to live in Port Moresby. She indicated that she would not be able to get a job as she is not educated. The Tribunal noted that there are many jobs available that require little education. The Tribunal pointed out to the [appellant] that in Port Moresby she would be closer to necessary medical care. The [appellant] said that she would have to return to Mt [Hagen].

19    The Tribunal also referred to –

(1)    the appellant’s delay in seeking a protection visa;

(2)    whether the appellant had more general concerns about being a woman in PNG; and

(3)    the appellant’s current medical condition and the need for intention as a key element of any claim of “significant harm” under the complementary protection criteria.

20    The Tribunal’s conclusions are summarised as follows –

(1)    the Tribunal had significant concerns about the appellant’s credibility, particularly arising from her failure to refer to the alleged rape and her fear of harm due to tribal wars in her 2010 protection visa application;

(2)    the Tribunal was not satisfied that the appellant was a witness of truth in relation to the alleged rape or in relation to her fears of harm from the Kimbin Rami Tribe or being monitored by them either in Mount Hagen or in Port Moresby;

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

(4)    the Tribunal concluded that the appellant effectively had two ‘home areas’: her village in Mount Hagen, and Port Moresby, and relevantly stated at [69]-[70] –

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

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

(5)    after discussing some of the possible difficulties that the appellant might have if she moved to Port Moresby, the Tribunal concluded at [72] that it was prepared to accept for the purpose of its decision that there was a real risk of significant harm to the appellant in Mt Hagen as a result of tribal violence, but that the appellant would be able to live in Port Moresby without a real risk of significant harm;

(6)    the Tribunal then went on to consider the appellant’s claim that she feared harm from her husband should she return to PNG and concluded at [79] –

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

(7)    the Tribunal considered the appellant’s claim that her husband or his family would harm her or seek repayment of the “bride price” and concluded that this was entirely speculative, and stated that on the evidence it was not satisfied that the appellant’s husband’s family posed a real risk of causing her physical harm;

(8)    the Tribunal acknowledged that violence against women in PNG is prevalent and that domestic violence was rarely addressed, but stated that independent evidence did not establish that every woman in PNG faced a real risk of significant harm because she is a woman;

(9)    the Tribunal stated that the appellant’s individual profile needed to be considered, in respect of which it was not satisfied that the applicant had been raped or was the subject of ongoing attention from the Kimbin Rami Tribe, and was not satisfied that the applicant was at a real risk of significant harm from her husband or her husband’s family;

(10)    in considering the appellant’s health concerns, the Tribunal was not satisfied that there was a real risk of the appellant suffering significant harm as defined, as a result of the standard of the PNG health system; and

(11)    finally, the Tribunal was not satisfied that any increased difficulties to the appellant’s life as a result of a move from Australia back to PNG would not otherwise fall within the definition of “significant harm” for the purposes of the Act.

21    The Tribunal was therefore not satisfied that there were substantial grounds to believe that as a necessary and foreseeable consequence of the appellant being removed from Australia to PNG, there was a real risk that she would suffer significant harm for any of the claimed reasons, or for any other reason.

The application to the Federal Circuit Court

22    By an amended application filed in the Federal Circuit Court, the appellant sought judicial review of the Tribunal’s decision, relying upon three grounds –

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

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

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

23    The primary judge rejected the three grounds of review. The grounds of appeal to this Court substantially correspond to the grounds of review that were rejected by the primary judge.

The grounds of appeal

24    The notice of appeal raises the following three grounds of appeal –

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

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

3.    The Federal Circuit Court erred by failing to conclude that the Tribunal erred by asking the wrong question when it determined the [Appellant’s] claims to protection against [sic] Port Moresby, in circumstances where it:

a.    failed to determine where the [Appellant] was ‘likely to return’; and/or

b.    applied a ‘home area’ test.

The parties’ submissions

Ground 1 – appellant’s submissions

25    Section 424A of the Migration Act provides, subject to some exceptions and qualifications, that in conducting a review of a decision to refuse to grant a protection visa, the Tribunal must –

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

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

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

26    The appellant submitted that the Tribunal’s statement that the appellant would not return to Mt Hagen, but would go instead to Port Moresby, as “given her medical conditions, she will have a strong incentive to remain in Port Moresby to access medical treatment” (see [20(4)] above), was “information” for the purposes of s 424A of the Migration Act, as it concerned medical treatment for the appellant’s medical condition. Specifically, it fitted the description of “information” given in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [28] (Bell, Gageler and Keane JJ), being “knowledge of facts or circumstances relating to material or documentation of an evidentiary nature”, citing SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 8 ALJR 1190 at [18] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ), which in turn cited VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; 236 FCR 549 at [24] (Finn and Stone JJ). The appellant submitted that embedded within the Tribunal’s finding at [69]-[70] was an evaluation of the existence and quality of medical treatment available to the appellant in Port Moresby to treat her cardiac and psychological conditions, and a comparison with the quality of treatment available to the appellant elsewhere in PNG. The appellant submitted that there could be no finding that there was an incentive to remain in Port Moresby without making the underlying comparison.

27    Given the centrality of the Tribunal’s finding that the appellant’s medical conditions would provide a “strong incentive” for the appellant to remain in Port Moresby, the appellant submitted that a breach of s 424A of the Migration Act would constitute jurisdictional error, citing SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; 228 CLR 294 at [74] (McHugh J).

28    The appellant also submitted that she had previously provided the Tribunal with country information regarding the existence of the Mt Hagen General Hospital, and the Tribunal’s failure to raise this information with the appellant denied her the opportunity to put country information before the Tribunal concerning facilities for medical treatment in and near Mt Hagen, and that the Tribunal’s failure to comply with s 424A of the Act in the manner alleged was therefore material.

Ground 1 – Minister’s submissions

29    The Minister submitted that the Tribunal did not contravene s 424A of the Migration Act, because the “strong incentive” to which the Tribunal referred at [70] of its written statement was a finding made by the Tribunal, and was not “information” for the purposes of s 424A. The Minister submitted that such a finding formed part of the Tribunal’s thought process, and that it did not need to be put to the appellant as required by s 424A of the Migration Act, citing SZBYR v Minister for Immigration [2007] HCA 26; 235 ALR 609 at [18] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ), as it was not “information” for the purposes of the section.

30    The Minister submitted that to the extent that the Tribunal relied on “information” regarding the availability of medical treatment in Port Moresby, because the information was not specifically about the appellant or any other person, it was excluded by s 424A(3)(a) of the Migration Act.

31    The Minister also submitted that information that medical services were available in Port Moresby was provided to the Tribunal by the appellant, and for that reason also, it did not engage s 424A(1). The Minister relied on s 424A(3)(b), which provides that the section does not apply to information that the applicant gave for the purpose of the application for review, and on s 424A(3)(ba) which provides that the section does not apply to information that the applicant gave during the process that led to the decision under review, other than information provided by the applicant orally to the Department. The Minister submitted that the transcript of the Tribunal hearing on 15 November 2015 to which we referred at [12] above showed that the Tribunal suggested to the appellant that medical services were available to her in Port Moresby, which the appellant accepted.

32    Finally, the Minister submitted that the Tribunal’s finding that the appellant would return to Port Moresby was due to a variety of reasons, not her medical conditions alone. These other reasons included that: (a) she had lived in Port Moresby between 2000 and 2009; (b) she would not be subject to harm from her husband while in PNG; (c) she would be able to find work and support herself in Port Moresby; (d) there was no real risk that tribal warfare would follow her to Port Moresby; and (e) she would not attract adverse attention from the Kimbin Rambi Tribe in Port Moresby.

Ground 2 – appellant’s submissions

33    In support of ground 2, the appellant submitted that the Tribunal failed to consider whether the appellant’s husband’s threatening text message, to which we referred at [7(12)] above, could give rise to a real risk that the appellant would suffer “significant harm” in the nature of mental harm, thereby engaging s 36(2)(aa) of the Migration Act. It was submitted that in circumstances where the Tribunal accepted the appellant to be mentally vulnerable, where there had been a recent history in PNG of women being killed by organised attackers engaged by their former husbands, and where there was a personal history of violence in the appellant’s relationship, the threat itself could give rise to mental harm by reason of its objective basis and imminence on arrival back in PNG.

34    The appellant submitted that the Tribunal’s reasons did not disclose any consideration of the risk of mental harm, and submitted that the primary judge had been in error in finding otherwise. The appellant submitted that the primary judge had been in error in holding at [50]-[52] that references in the Tribunal’s reasons to “significant harm” showed that the Tribunal had considered whether the appellant was at risk of both mental and physical harm. The appellant submitted that the Tribunal should have considered whether the husband could cause mental harm without being physically present, because his threat to the appellant was “to make sure” that the appellant would feel pain and suffering.

Ground 2 – Minister’s submissions

35    The Minister accepted that mental pain and suffering, if intentionally inflicted, could constitute “significant harm” for the purposes of s 36(2A) of the Migration Act. However, the Minister submitted that the Tribunal had dealt with this claim. The Minister relied on the Tribunal’s statement at [77] that, “if the husband were inclined to act in a way to cause significant harm to the [appellant] if they were both in PNG, that he would have done more in the more than two years they have been living apart in Australia than send one abusive text message…”. The Minister relied on the Tribunal’s statement at [79] that it was not satisfied that the appellant’s husband posed a “real risk, in PNG, of physically harming the applicant…or cause her any form of significant harm as defined in the Act.” The Minister submitted that by juxtaposing “physical harm” with “any form of significant harm as defined in the Act”, the Tribunal had considered forms of harm other than physical harm, and that the Tribunal had accordingly rejected the notion that the appellant faced any harm from her husband in the future, whether physical or mental.

36    The Minister also submitted that the appellant’s claim regarding the mental harm that she alleged that she would suffer rested on the factual premise that she would receive further threats from her husband, and the Tribunal had rejected this suggestion. Accordingly, there was no need for the Tribunal to consider expressly the question of mental harm, as a factual premise on which this claim was made had been rejected by the Tribunal. Further, the Minister submitted that the Tribunal’s finding that s 36(2)(aa) was not engaged by the appellant was reinforced by the Tribunal’s finding that the appellant’s husband had not left Australia and that it could not be maintained that the appellant would be harmed by the threatening conduct of her husband in circumstances where he was in Australia, and that the threat would logically diminish in the event the appellant returned to PNG.

Ground 3 – appellant’s submissions

37    As to ground 3(a), the appellant submitted that the Tribunal erred by failing to undertake an assessment to determine the place where the appellant was likely to return, which issue was the subject of CSO15 v Minister for Immigration and Border Protection [2018] FCAFC 14; 260 FCR 134 at [42]. The appellant submitted that the Tribunal found that the appellant had two “home areas”, and that in the passages that we have set out under [12] above, that the Tribunal had questioned the appellant about to where she would return in PNG. In response, the appellant stated that she would go back to her village, which is to be understood as her village in the Mt Hagen area. The appellant submitted that the Tribunal did not address the question where the appellant was likely to return before addressing whether there was a risk of significant harm. The appellant submitted that the primary judge erred at [66]-[69] in holding that because the Tribunal had found that the appellant had two “home areas”, and had assessed that there was not a real risk of significant harm in Port Moresby, the Tribunal had discharged its statutory review function.

38    As to ground 3(b), the appellant submitted that it was an error to substitute an enquiry as to the identification of an applicant’s “home area” for an enquiry as to where the appellant was likely to return, and whether relocation to another area was reasonable, which was the relevant and necessary enquiry. In support of this submission, the appellant relied on CRI028 v Republic of Nauru [2018] HCA 24; 92 ALJR 568 at [45]-[47], to which we shall return.

Ground 3 – Minister’s submissions

39    As to ground 3(a), the Minister submitted that the question of where an applicant would return was a question of fact for the decision-maker, and that it was permissible for the decision-maker to identify a place as a person’s “home area” in determining where an individual was likely to return: CSO15 at [37], [42] and [48]. The Minister submitted that the Tribunal found that the appellant had two likely “home areas”, and when the written statement of the Tribunal’s reasons is read fairly, found that the appellant would likely return to Port Moresby. The Minister submitted that the Tribunal was not required to accept the appellant’s evidence that she would return to Mt Hagen.

40    As to ground 3(b), the first respondent submitted that this ground had not been relied on before the primary judge, but did not oppose leave being given to the appellant to raise it, as CRI028 v Republic of Nauru on which the appellant relied was decided after the hearing below had concluded. The Minister submitted that there was no error by the Tribunal in the way that it approached the issues before it. The Tribunal found that there was a real risk of significant harm to the appellant in Mt Hagen, and then considered whether it would be reasonable for the appellant to relocate to Port Moresby, and found that it would be reasonable for her to do so. The Minister submitted that the mere finding by the Tribunal that the appellant had two “home areas” did not in itself amount to legal error.

Consideration

Ground 3

41    We shall consider Ground 3 first, which concerns whether the Tribunal was in error in failing to identify to what place the appellant was likely to return, and if she was likely to return to her village in the Mt Hagen area, to consider whether relocation to Port Moresby was reasonable.

42    As a result of the circumstances that we mentioned at the outset at [3] to [6], the appellant’s claims only sought to invoke the complementary protection criterion under s 36(2)(aa) of the Migration Act. Section 36(2)(aa) was introduced to give effect to Australia’s non-refoulement obligations under the International Covenant on Civil and Political Rights, the Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty, the Convention on the Rights of the Child, and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: see, SZTAL v Minister for Immigration [2017] HCA 34; 262 CLR 362 at [1] (Kiefel CJ, Nettle and Gordon JJ), [43] (Gageler J), and [69]-[79] (Edelman J). Section 36 of the Migration Act relevantly provides –

36    Protection visas – criteria provided for by this Act

….

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

…

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; …

…

43    The phrase “significant harm” in s 36(2)(aa) is given content by s 36(2A), which provides –

(2A)    A non-citizen will suffer significant harm if:

(a)    the non-citizen will be arbitrarily deprived of his or her life; or

(b)    the death penalty will be carried out on the non-citizen; or

(c)    the non-citizen will be subjected to torture; or

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

(e)    the non-citizen will be subjected to degrading treatment or punishment.

44    However, s 36(2A) is qualified by s 36(2B), which provides –

(2B)    However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)    it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or

(b)    the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or

(c)    the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

45    At [69], the Tribunal stated that it considered that the appellant had two home areas: (1) her village, Mt Hagen, in the Western Highlands where she had grown up; and (2) Port Moresby, where she lived from about 2000 until 2009. The Tribunal stated at [70] that the appellant would have a strong incentive to remain in Port Moresby to access medical treatment.

46    At [72], the Tribunal accepted that there was a real risk of significant harm to the appellant should she return to Mt Hagen, but relied on its finding that the appellant had two “home areas”, and stated that the appellant would be able to live in Port Moresby without the risk of significant harm –

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

47    The concept of a “home area” has been used in authorities in connection with the principle of internal relocation: SZQEN v Minister for Immigration and Citizenship [2012] FCA 387; 202 FCR 514 at [34]-[35] (Yates J); SZQPY v Minister for Immigration and Border Protection [2013] FCA 1133 at [81]-[82] (Kenny J); CSO15 v Minister for Immigration and Border Protection [2018] FCAFC 14; 260 FCR 134 at [33]-[48] (Tracey, Mortimer and Moshinsky JJ). The internal relocation principle is applicable to the Convention definition of “refugee”. That definition had been drawn into Australian law by s 36(2)(a) of the Migration Act until its repeal and replacement by the Migration and Maritime Powers Legislation Amendment (Resolving the Legacy Caseload) Act 2014 (Cth). Under the internal relocation principle, “a person is not a refugee within the meaning of the Convention if he could avail himself of the real protection of his country of nationality by relocating to another part of that country”: Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; 254 CLR 317 at [21] (French CJ, Hayne, Kiefel and Keane JJ). That is because, “[i]f a person could have relocated to a place within his own country where he could have no well-founded fear of persecution, and where he could reasonably be expected to relocate, then the person is outside the country of his nationality because he has chosen to leave it and seek asylum in another country. He is not outside his country owing to a well-founded fear of persecution for a Convention reason. The person is not, within the Convention definition, a refugee”: SZSCA at [23]. See also: SZATV v Minister for Immigration and Citizenship [2007] HCA 40; 233 CLR 18 at [11]-[22] (Gummow, Hayne and Crennan JJ).

48    In this case, we are not concerned directly with the Convention principle of internal relocation, but with the terms of s 36(2)(aa), (2A), and (2B) of the Act. Nonetheless, the text of those provisions is to be construed in context, and consistently with legislative purpose: SZTAL at [14] (Kiefel CJ, Nettle and Gordon JJ); see also the observations of Allsop CJ in FCS17 v Minister for Home Affairs [2020] FCAFC 68 at [2] and [7]. The purpose of s 36(2)(aa) is to give effect to Australia’s international non-refoulement obligations. Apart from the references to the relevant Conventions in the Explanatory Memorandum to the 2011 Bill, there is textual support for this purpose in s 36(2)(aa) itself, because it refers to “protection obligations”. Section 36(2B)(a) of the Act may therefore be taken to be informed by, and to give effect to, a principle akin to the principle of internal relocation, which was well-established at the time of the 2011 amending Act.

49    The complementary protection criterion in s 36(2)(aa) of the Act will be engaged where the Minister has substantial grounds for believing that there is a real risk of significant harm as a “necessary and foreseeable consequence” of the non-citizen being removed from Australia. One of the factual issues to which s 36(2)(aa) directs attention is the place to which the non-citizen will likely return upon being removed from Australia. The identification of one or more “home areas” may assist the decision-maker in undertaking that factual enquiry: CSO15 at [37]. But as the Full Court in CSO15 went on to explain at [42] –

The correct question is: to where will an applicant return, or be returned? Identifying a place which may have, in the past, been a person’s “home area” or “home region”, may assist in answering that question. But it is not, in and of itself, the answer to the question which must be asked for the statutory task to be lawfully performed. That is because under both Art 1A and the complementary protection regime, what is to be examined is the place to which a person will be returned, and what risks a person faces on return to that place. At least one location within a country of nationality must be identified for this task to be undertaken. Ascertaining a person’s former “home area” or “home region” may be an important step along the way in a decision-maker’s fact finding, but it is not the end of the task. …

50    The Full Court in CSO15 identified that an enquiry by a decision-maker as to the likely place of return may not, depending upon the circumstances of the non-citizen, be confined to one place. At [46], the Court stated –

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

51    The above passages in CSO15 do not mandate an enquiry as to “home areas” but to places where the individual is likely to return. The point eloquently made by the Full Court in CSO15 at [42] is that an enquiry seeking to identify a “home area” should not take the place of, or distort, the enquiry required by the statute, which is to identify the place to which the non-citizen is likely to return: see also, Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286 at [92] (Hayne and Heydon JJ). A similar point was made by the High Court exercising original jurisdiction under s 5(2) of the Nauru (High Court Appeals) Act 1976 (Cth) in CRI028 v The Republic of Nauru [2018] HCA 24; 92 ALJR 568. In CRI028, the Court was concerned with the Refugees Convention, as amended by the Refugees Protocol, which were applicable in Nauru under s 3 of the Refugees Convention Act 2010 (Nr) for the purposes of determining whether a person was a refugee. A Tribunal had accepted that the appellant had a well-founded fear of persecution in one of two “home areas”. However, it proceeded on the basis that, “where a person has more than one home area, the decision maker is not required to assess whether or not it is reasonable to relocate from one area to the other, merely whether the person has a well-founded fear of persecution in each of the home areas”. The High Court allowed the appeal from the Supreme Court of Nauru, which had rejected a challenge to the Tribunal’s decision. At [43]-[47], Gordon and Edelman JJ (Bell J at [1] agreeing) stated –

43.    In this Court, Nauru accepted – contrary to the express reasoning of the Tribunal – that characterising K District as a “home area” did not remove the need for the Tribunal to consider whether relocation to K District was reasonable in the manner described earlier.

44.    Nauru was correct not to endorse the approach expressly taken by the Tribunal. It was unhelpful and distracting for the Tribunal (and thus the Supreme Court) to focus on whether K District was a “home area” and to treat that label as eliminating the need to consider the reasonableness of the proposed relocation.

45.    The concept of a “home area” or a “home region” is not derived from the Refugees Convention. These terms have been used from time to time in judicial reasoning. There is nothing inherently objectionable or remarkable about their use in that context. But their sole function is as concise descriptors, which may be convenient in considering whether a person could reasonably be expected to relocate from one area in the country of their nationality to another. These terms do not displace the relevant and necessary inquiry. And there is no basis in the text or the purposes of the Refugees Convention to treat such descriptors as though they were terms in a statute to which meaning can and must be given. The decision of the Federal Court of Australia in SZQEN v Minister for Immigration and Citizenship [2012] FCA 387; 202 FCR 514 at 523 [38] should not be followed to the extent that it suggests otherwise.

46.    Indeed, the fact that it is not uncommon for a person to have lived in more than one place in a country (whether by reason of displacement or otherwise) or, for that matter, to have no identifiable “home area”, reinforces that the concept of a “home area” may not only be a distraction but be inapposite.

47.    Where a person has established a well-founded fear of persecution in their country of nationality, a question may arise as to whether there is a place within that country to which the person could reasonably relocate (being an aspect of the ultimate question of whether the person was outside their country of nationality owing to a well-founded fear of persecution). In seeking to answer that question, it is neither helpful nor correct to interpolate or substitute a free-standing concept of a “home area”, and to purport to make factual findings about whether a particular area is or is not such an area cf CRI028 [2017] NRSC 32 at [36]. That approach may lead to legal error.

[Emphasis and citations added.]

52    In the present case, the Tribunal did not direct attention to the place where the appellant was likely to return, but used as a starting point its assessment that the appellant had two “home areas”, namely her village in the Mt Hagen area, and Port Moresby. As the evidence of the appellant to which we have referred at [12]-[13] above demonstrates, the appellant told the Tribunal that she would return to her village, and would not return to Port Moresby. The Tribunal did not address that evidence, and made no finding as to where in PNG the appellant was likely to return. The Tribunal’s finding at [70] that, given her medical conditions, the appellant would “have a strong incentive to remain in Port Moresby to access medical treatment” did not address the correct issue.

53    If, upon addressing the correct issue, the Tribunal had accepted the appellant’s evidence, and had made a finding that the appellant was likely to return to her village in Mt Hagen, then in light of its acceptance that there was a real risk there of significant harm to the appellant as a result of tribal violence, the Tribunal was required to address the issue raised by s 36(2B)(a) of the Act, namely whether it would be reasonable for the appellant to relocate to another area of PNG where there would not be a real risk of significant harm. The Tribunal did not address that issue. The Tribunal appears instead to have addressed the question whether there was a risk of serious harm in Port Moresby, which is only one element of the inquiry: see, MZACX v Minister for Immigration and Border Protection [2016] FCA 1212 at [35] (Kenny J). The Tribunal also appears to have addressed some of the impediments that the appellant might face if she were to live there, but the Tribunal did not in terms, or in substance, address the question whether it would be reasonable for the appellant to relocate to Port Moresby. That question “involves a comparison between the circumstances or conditions that prevail in the person’s existing area of residence and those circumstances or conditions that prevail in the other identified area, with a view to assessing the impact of the relocation on the person”: CRI028 at [25] (Gordon and Edelman JJ), citing SZSCA at [30] (French CJ, Hayne, Kiefel and Keane JJ). And what is reasonable “must depend upon the particular circumstances of the applicant … and the impact upon that person of relocation of the place of residence within the country of nationality”: SZATV at [24] (Gummow, Hayne and Crennan JJ). The appellant advanced a number of matters relevant to her circumstances which the Tribunal was required to consider alone and in combination within that framework of enquiry, including, but not necessarily limited to, the presence of her physical and mental health issues, the absence of any family or other support in Port Moresby, and the absence of financial means.

54    The failure by the Tribunal to address the correct statutory issues was a failure to discharge its statutory function. Assuming materiality is relevant in this context, there must have been a realistic possibility that, had the Tribunal addressed the correct questions, there would have been a different outcome. Accordingly, the Tribunal’s error is jurisdictional: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [45] (Bell, Gageler and Keane JJ).

55    For the above reasons, Ground 3 is established.

Remaining issues - Grounds 1 and 2

56    The dispositive effect of the appellant’s success on Ground 3 makes it unnecessary for us to consider grounds 1 and 2: Boensch v Pascoe [2019] HCA 49; 375 ALR 15 at [7]-[8] (Kiefel CJ, Gageler and Keane JJ). However, there was much force in the appellant’s submissions that necessarily implicit in the Tribunal’s finding at [70], that the appellant would have a strong incentive to remain in Port Moresby to access medical treatment, was reliance by the Tribunal on undisclosed information that addressed the comparative quality of medical facilities in Port Moresby with those in or around Mt Hagen. We also consider that there was some force in the appellant’s submissions that within the claims that she advanced was a claim that she was liable to suffer mental harm upon return to PNG and that the Tribunal did not give consideration to that claim: see NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 at [60]-[63] (Black CJ, French and Selway JJ).

Conclusion

57    The appeal will be allowed with costs. The relevant orders of the Federal Circuit Court will be set aside, and in lieu it will be ordered that constitutional writs of certiorari and mandamus issue to the Tribunal.

Associate:    

Dated:    27 May 2020