1403217 (Refugee) - [2015] AATA 3236

1403217 (Refugee) [2015] AATA 3236 (24 July 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1403217
COUNTRY OF REFERENCE:                  Pakistan
MEMBER:Michelle Grau
DATE:24 July 2015
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Statement made on 24 July 2015 at 2:30pm

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] February 2014. He applied for review on 20 February 2014 and it was constituted to this tribunal on 15 April 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.
The applicant appeared before the Tribunal on 7 July 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 by telephone.
CONSIDERATION OF CLAIMS AND EVIDENCE
In summary, the applicant, a Turi, Shia Pashtun from Parachinar claimed he feared kidnap and ransom from the Taliban. His brother was kidnapped by the Taliban in 2008 when returning home from [another country] and released after payment of a ransom. In February 2008 he was injured in a bomb blast. The applicant claimed in January 2012 when visiting Peshawar people came to his [residence] asking for him and he believes they were Taliban. So he went to Islamabad for 5 days and returned home. In April 2012 he fled Pakistan. He fears he will be kidnapped by the Taliban because he comes from a wealthy family in the Parachinar area and is also a Shia from Parachinar and regardless of where he moves he will be targeted by the Taliban because he is Shia from a wealthy family in Parachinar.
At hearing the applicant added he fears…

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 1403217 (Refugee)

Details

AGLC: 1403217 (Refugee) [2015] AATA 3236
Case: [2015] AATA 3236
Decision Date: 24 July 2015

CaseChat Overview and Summary

In the case before the Tribunal, the applicant, a Turi, Shia Pashtun from Parachinar, claimed he was at risk of being kidnapped and held for ransom by the Taliban. The applicant's brother was kidnapped by the Taliban in 2008, and he himself was injured in a bomb blast in the same year. The applicant fled Pakistan in April 2012 due to the fear that he would be targeted by the Taliban because of his wealth, ethnicity, and religious beliefs. The applicant's migration agent argued that it would be unreasonable for the applicant to relocate within Pakistan, particularly to Lahore, due to difficulties in finding a new job and the challenges of relocating with a family.

The legal issues for the Tribunal to determine were whether the applicant had a well-founded fear of persecution if he returned to Pakistan and whether there were substantial grounds for believing there was a real risk to the applicant. The Tribunal considered the evidence provided by the applicant, including his personal experiences and the circumstances in Parachinar, which was marked by violence and persecution of Shia Muslims by the Taliban. The Tribunal also took into account the applicant's claims of being well-known and wealthy, which would make him a target for the Taliban regardless of where he relocated within Pakistan.

The Tribunal concluded that the matter should be remitted for reconsideration, noting that the initial decision did not adequately address the applicant's specific circumstances, including the evidence of the Taliban's targeting of Shia Muslims from Parachinar and the applicant's personal experiences of violence and persecution. The Tribunal highlighted the importance of a thorough assessment of the applicant's claims and the need for a detailed consideration of the risks he would face if he returned to Pakistan. The Tribunal's decision to remit the matter for reconsideration ensures that the applicant's claims are properly assessed and that his rights are protected under Australian law.

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 7 July 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 by telephone. CONSIDERATION OF CLAIMS AND EVIDENCE In summary, the applicant, a Turi, Shia Pashtun from Parachinar claimed he feared kidnap and ransom from the Taliban. His brother was kidnapped by the Taliban in 2008 when returning home from [another country] and released after payment of a ransom. In February 2008 he was injured in a bomb blast. The applicant claimed in January 2012 when visiting Peshawar people came to his [residence] asking for him and he believes they were Taliban. So he went to Islamabad for 5 days and returned home. In April 2012 he fled Pakistan. He fears he will be kidnapped by the Taliban because he comes from a wealthy family in the Parachinar area and is also a Shia from Parachinar and regardless of where he moves he will be targeted by the Taliban because he is Shia from a wealthy family in Parachinar. At hearing the applicant added he fears harm because of his ethnicity, belief, religion and appearance, accent and a Turi Shia from Parachinar. He claimed he is different from others as he is well known in his home town and will be identified by Sunnis from his home area who have relocated to other areas in Pakistan. He also claimed he is a totally different person now and adopted the Australian way of life and he is from a fundamentalist Turi community from Parachinar and has changed his way of life and appearance and will suffer persecution from his home area. He claimed it is not safe to relocate anywhere in Pakistan because he will be targeted as a Shia, Turi from Parachinar and he is different as he is well known and wealthy. No one would rent a house to him, he could not get a job and his children would not be educated. He has [a number of] children aged [age range] years old and a wife. His children often are not able to attend school due to violence. His wife remains indoors and is not able to leave the home for her safety. They have some farm land which they draw an income and also provides some money from his work in Australia at [a company]. In Pakistan he was also a [occupation] and sold [products] to make a profit and had some savings. At hearing the agent submitted the applicant was a national of Pakistan and not of a city or Lahore so it is unreasonable for him to relocate to Lahore. It would be difficult for him to relocate to find a new job in a new town with a family. The issues for determination are:a.Does the applicant have a well-founded fear of persecution in the reasonably foreseeable future if he returns to Pakistan?b.Are there substantial grounds for believing there is a real risk the applicant?FINDINGS AND REASONS For the following reasons, the Tribunal has concluded that matter should be remitted for reconsideration.2008 Brother kidnap and bomb blast

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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