1412479 (Refugee) - [2016] AATA 4414

1412479 (Refugee) [2016] AATA 4414 (22 August 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1412479
COUNTRY OF REFERENCE:                  Pakistan
MEMBER:Sydelle Muling
DATE:22 August 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 22 August 2016 at 11:35am

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 claim to be citizens of Pakistan, first lodged a protection visa application [in] August 2010 which was refused [in] November 2010 (the first delegate’s decision). The applicant sought review by the Tribunal, differently constituted (the first Tribunal) and the first delegate’s decision was affirmed on 23 March 2012. The applicant sought judicial review at the then Federal Magistrate’s Court and the judicial review was finalised in favour of the Minister.
The applicant lodged an application for a further protection visa on the basis of complementary protection [in] May 2013. The second delegate (the delegate) refused to grant the visa [in] June 2014.
The applicant appeared before the Tribunal on 29 April 2016 and 26 July 2016 to give evidence and present arguments.
RELEVANT LAW
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 effect of SZGIZ and its relevance to this review
Section 48A imposes a bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen has made an application for a protection visa which has been refused. In SZGIZ v MIAC [2013] FCAFC 71, 3 July 2013 (`SZGIZ’), the Full Federal Court confined the effect of s.48A to the making of a further application which duplicated the same essential criterion for the grant of the visa as in the earlier unsuccessful application. For example, the Court found that s.48A did not prevent a non-citizen who had made a valid application on the basis of the refugee criterion in s.36(2)(a) from making a further application on the basis of the complementary protection criterion in s.36(2)(aa) whilst…

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.

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Details

AGLC: 1412479 (Refugee) [2016] AATA 4414
Case: [2016] AATA 4414
Decision Date: 22 August 2016

CaseChat Overview and Summary

This matter concerned an application for review of a decision made by the Refugee Review Tribunal (RRT) regarding a protection visa application. The applicant, a citizen of Pakistan, claimed he feared persecution by the Taliban upon return to his home country due to reasons including adopting Western culture, changing his religion, refusing demands for money, and refusing to join them for jihad. He also asserted that Pakistani authorities could not protect him, citing the failure to protect prominent figures.

The RRT was required to determine whether the applicant had established a well-founded fear of persecution for a Convention reason, specifically a change of religion, and whether Pakistan was the applicant's "receiving country" for the purposes of section 36(2)(aa) of the Act. The Tribunal was also obliged to consider relevant policy guidelines and country information assessments.

The Tribunal found that while the applicant claimed to have converted to Christianity, his evidence did not support this assertion. The applicant's inability to recall the names or denominations of churches he claimed to have attended, despite attending them for extended periods, rendered his claim of conversion implausible. Consequently, the RRT concluded that the applicant had not established a well-founded fear of persecution based on a change of religion. The Tribunal accepted that Pakistan was the applicant's receiving country.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCE In the protection visa application the applicant claimed he left Pakistan to study in Australia. In response to the question, have you experienced harm in that country?, the applicant stated no. He claimed he fears if he returns to Pakistan the Taliban will kill him for a number of reasons – adopting western culture or promoting; changing religion; doing things which is against the religion and refusing their demands for money and to return to Pakistan and join them and fight “or do jihad” against Americans and NATO forces. The applicant claimed that the authorities in Pakistan cannot protect him as they have failed to give security to the well-known people of the country such as Benazir Bhutto and so many other people. To be eligible to get security a person has to be a well-known national figure such as a politician or a famous personality. On the basis of the applicant’s evidence to the Tribunal and his Pakistani passport which was presented at the hearing, the Tribunal finds that the applicant is a citizen of Pakistan. As the Tribunal has found that the applicant is a national of Pakistan, the Tribunal finds that Pakistan is the applicant’s ‘receiving country’ for the purposes of s.36(2)(aa).Conversion or change of religion As discussed above, the applicant claimed in his protection visa application that one of the reasons he believes the Taliban will harm him on his return to Pakistan is because he has changed his religion. While the applicant claimed in the hearing that he has converted to Christianity, the Tribunal does not accept that he has done so. The applicant’s evidence was that he has not been baptised a Christian despite being interested in Christianity since 2009. Further, when asked if there was a particular denomination of Christianity that he practises, the applicant stated no. His evidence was that he went to two different churches, one in [Location 1] and the other in front of [Location 2]. Despite claiming to have attended the church at [Location 1] for a year he did not know the name or denomination of this church. Similarly, while frequenting the church opposite [Location 2], the applicant initially claimed that he did not know that name of this church. He subsequently claimed that it was [name] something and that it was a Catholic church. However, as the Tribunal put to the applicant in the hearing, the church opposite [Location 2] is [name] and it is an Anglican church. The Tribunal finds it implausible that if the applicant attended these churches as he claimed, that he would not be able to recall their names or what Christian denomination they were, even if it has been three and half to four years since he attended any church, he has many things on his mind and he did not talk to anyone when he allegedly attended these churches, as he claimed in the hearing.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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