1318993 (Refugee) - [2015] AATA 3250

1318993 (Refugee) [2015] AATA 3250 (7 August 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1318993
COUNTRY OF REFERENCE:                  Pakistan
MEMBER:Michelle Grau
DATE:7 August 2015
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 07 August 2015 at 4:07pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).The applicant who claims to be a citizen of Pakistan, applied for the visa [in] December 2012 and the delegate refused to grant the visa [in] December 2013. He applied for review on 16 December 2013 and it was constituted to this tribunal on 11 February 2015.
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class. The relevant law is at attachment A.
In summary, the applicant, a Turi, Shia from Parachinar claimed he received threatening phone calls, letters to convert to Sunni and escaped an attack in 2012. His claims his brother, uncle and cousins have been injured or killed. His siblings, nieces and nephews have ceased attending work or school because of attacks. The applicant claims it is not safe to relocate anywhere in Pakistan as he will be targeted and suffer harm from militant groups and Sunnis as a Turi, Shia, Pashtun, attending the mosque and processions. He may also face harm from other Shias and Hazaras as Pashtun, Turi Shia or being internally displaced and because of identity based violence.
The applicant appeared before the Tribunal on 5 May 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto and English languages. The applicant was represented in relation to the review by his registered migration agent who attended the hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this case are
a.Is the applicant credible?
b.Does Australia have protection obligations under the Refugee Convention?
c.Does Australia have protection obligations under the complementary protection criterion?
The tribunal has considered the material held on department and tribunal files, including the applicant’s statements,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1318993 (Refugee)

Details

AGLC: 1318993 (Refugee) [2015] AATA 3250
Case: [2015] AATA 3250
Decision Date: 7 August 2015

CaseChat Overview and Summary

The matter before the court involved an applicant seeking refugee status in Australia. The applicant alleged persecution due to his Shia Muslim faith and threats from Sunni extremist groups. The case was heard by a tribunal that evaluated the applicant's claims and evidence, considering the credibility of the applicant and whether Australia had protection obligations under the Refugee Convention and complementary protection criterion.

The central issues the tribunal needed to decide were the credibility of the applicant's claims, the existence of protection obligations under the Refugee Convention, and whether Australia had complementary protection obligations. The tribunal examined the applicant's statements, documents, and submissions, alongside relevant country information, to assess these issues.

The tribunal found that the applicant's claims were largely credible. It noted the consistency of the applicant's statements and the corroborating evidence of threats and attacks against Shia Muslims in Pakistan. The tribunal also concluded that Australia had protection obligations under both the Refugee Convention and the complementary protection criterion due to the applicant's well-founded fear of persecution based on his religion.

The tribunal ordered that the applicant be granted a protection visa, recognizing his eligibility for refugee status in Australia.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant appeared before the Tribunal on 5 May 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto and English languages. The applicant was represented in relation to the review by his registered migration agent who attended the hearing. CONSIDERATION OF CLAIMS AND EVIDENCE The issues in this case are a.Is the applicant credible?b.Does Australia have protection obligations under the Refugee Convention?c.Does Australia have protection obligations under the complementary protection criterion? The tribunal has considered the material held on department and tribunal files, including the applicant’s statements, documents and agent’s submissions and country information. A number of pre and post hearing submissions were provided also, which have been considered (up to 2 August 2015 submission). According to his application the applicant had [stated years] of education, completed high school in [year]; completed [tertiary qualifications] and commenced [a postgraduate course] and was employed as a [occupation]. In his December 2012 statement the applicant claimed: a.Although he was born in [location] his family originate from Parachinar, Kurram Agency. His father was an [occupation] and travelled and worked a lot in different places. They moved to Peshawar in 1988 and lived in [location] for most of his life in a majority Sunni area.b.His older brother was attacked by members of Sepahi Shaba in 1994 and stabbed; another relative was shot and seriously injured as well. In 1993 his uncle was shot and killed by members of a Sunni tribe.c.Sunni Muslims made fun of his religion and insulted the Shia mosque he attended. It has become worse and dangerous to pry at the Shia mosques.d.He received threatening phone calls on his mobile in January 2012 to kill him if he did not renounce Shia Islam. He thought it was a prank by his friends. The [February] 2012 caller identified himself as a member of Lashkari Jangevi and gave him a week to convert to Sunni Islam.e.[In] February 2012 when we went to a government office to get an id card, two men got out of their car, pointed guns at him, and fired shots at him. He escaped into a culvert and got to a police station and lodged a complaint. They assured him they would do everything to arrest them.f.He stayed in his house and was afraid to continue his study or work. So he fled Pakistan in May 2012.g.He fears he will be killed by several Taliban groups because he is Shia Muslim and by members of Lashkari Jangevi who threatened to kill him if he did not convert to Sunni Islam and join the Jihad. In summary, the applicant’s 2014 statement claimed he was not highly educated but did his exams privately and could not continue his education and it is not possible to get a great job because everyone has a master’s degree. Even if he gets a good job he will be targeted as an educated Shia. His domicile ID is from Parachinar as his father is from there, even though the applicant lived in Peshawar. He could not remember every detail of the attack because of fear. The current PM is connected with the Saudis and works with the SSP and LeJ and the state does not support Shias. His family received threat letters after he left and many people who received the letters have been killed. There is no safe place in Pakistan for Shias. His cousin was deported from [Country 1] and upon arrival in Pakistan was arrested, tortured and imprisoned until a bribe was paid. Two of his cousins were wounded in an attack [in] July 2013 and there is video showing him.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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