1414627 (Refugee) - [2016] AATA 3535

1414627 (Refugee) [2016] AATA 3535 (4 March 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1414627
COUNTRY OF REFERENCE:                  Pakistan
MEMBER:Paul Windsor
DATE:4 March 2016
PLACE OF DECISION:  Melbourne
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 04 March 2016 at 8:06am

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] May 2013 and the delegate refused to grant the visa [in] August 2014.
The applicant applied to the Tribunal for review of this decision on 27 August 2014.
The applicant appeared before the Tribunal on 3 March 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the [applicant’s son]. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
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.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of…

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 1414627 (Refugee)

Details

AGLC: 1414627 (Refugee) [2016] AATA 3535
Case: [2016] AATA 3535
Decision Date: 4 March 2016

CaseChat Overview and Summary

The case concerns a female applicant from Pakistan who applied for a protection visa in Australia, claiming to be a member of the Ahmadiyya Muslim community and facing persecution due to her religious beliefs. The applicant's claims were heard by the Administrative Appeals Tribunal (AAT), which was tasked with determining whether the applicant met the criteria for a protection visa under the Migration Act 1958. The Tribunal had to consider whether the applicant qualified as a refugee under the 1951 Refugee Convention or met the complementary protection criterion, which applies if the applicant is not a refugee but still faces significant harm if returned to their home country.

The key legal issues the Tribunal addressed were whether the applicant's claims of persecution due to her religious identity were credible and whether she met the criteria for a protection visa. Specifically, the Tribunal needed to assess if the applicant's experiences of discrimination and violence in Pakistan constituted persecution and if there was a real risk of significant harm if she were to be returned to Pakistan.

In reaching its decision, the Tribunal closely examined the applicant's evidence and country information to determine the validity of her claims. The Tribunal noted that the applicant had provided detailed accounts of incidents of persecution, including harassment, physical attacks, and threats due to her religious beliefs. However, the Tribunal also considered the broader context of religious tensions in Pakistan and the extent to which the applicant's experiences were representative of the general situation for Ahmadis in the country. The Tribunal found that while the applicant had indeed faced significant persecution, the evidence did not conclusively establish that she met the refugee criterion. Nevertheless, the Tribunal concluded that the applicant qualified for a protection visa under the complementary protection criterion, as there was a real risk of significant harm if she were to be returned to Pakistan.

The Tribunal's final orders were that the applicant's application for a protection visa be granted, based on the complementary protection criterion. The Tribunal found that the applicant's evidence supported the conclusion that she would face significant harm if returned to Pakistan, thereby meeting the requirements for a protection visa.

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 took 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 The applicant claims to be a citizen of Pakistan who was born in [Punjab] province on [date]. According to her Protection visa application[1] she is of Punjabi ethnicity and the Ahmadiyya Muslim religion, and speaks Urdu and Punjabi. She was widowed when her husband died [in] 2002. She departed Pakistan legally [in] April 2013, travelling on a [temporary] visa issued [in] April 2013, and arrived in Australia [in] April 2013.[1] See folios 13-15 of Departmental file [number]Summary of claims from the Protection visa application The applicant’s claims from her Protection visa application[2] can be summarised as follows:[2] See folios 16-19 of Departmental file [number]·She was brought up as an Ahmadiyya. Everything was peaceful until the 1973 constitution was passed. Following that they experienced a sudden hatred and anger towards them from among the people of the village. People stopped communicating with them, the farmers working her father’s land stopped work and started abusing them. ·Her father was the only Ahmadi in his family so no relatives helped them. Her father sold his land and moved to another province. They faced the same situation so relocated again to Peshawar, where she married her husband who lived in [a small village] in [Punjab].·They encountered a similar situation in her husband’s village. They were not allowed to worship so her husband and his father established a one room mosque for worship. When the local authorities found out they attacked them with long sticks and knives while they were praying.·They were forced to move to another area. When people found out they were Ahmadi they would not rent them a house. When they found a house, people would not welcome them and they could not get tradesmen to attend to fix things. They were denied the right to shop at their local village.·Her children were treated badly at school. They were forced to stand outside the classroom and were beaten by children from the neighbourhood.·Her youngest [child], at age [age], was flying a kite on a mosque roof near to home and was pushed down by a mosque preacher, sustaining a permanent [injury].·Her husband was transferred into the local area [workplace] but was shunned and scorned by [colleagues]. He had a [medical condition] due to continuous psychological torture. This left him incapacitated and forced him to leave his job on medical grounds.·Her [son] had to leave his studies to support the family. He tried to run a shop but no-one would purchase goods. He relocated to Lahore. After her husband died in 2003 she and her younger [child] also moved to Lahore.·Her son was worshipping at an Ahmadiyya mosque in Lahore when it was attacked by terrorists in 2009. He survived but [number] people were killed. Her son left the country after that.·After the attack it was decided for security reasons that no women should go to the mosque for any religious activity. The woman decided to choose a house where they could pray. As she had a big house near to the mosque, they asked her and she agreed that women could come to her house on Fridays to pray. When the authorities became aware of her activities she was threatened to stop her religious practises or she would be harmed.·Following an attack on the Christian community in Lahore she feared Ahmadis would be the next target and decided to leave the country as her son had.·She believes that she will be harmed by the authorities in Pakistan and by preachers of opposing religions because of her religious beliefs and for supporting her community. As it is the authorities that she fears she does not believe they can protect her.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia 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 applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).Mandatory considerations In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal took 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 The applicant claims to be a citizen of Pakistan who was born in [Punjab] province on [date]. According to her Protection visa application[1] she is of Punjabi ethnicity and the Ahmadiyya Muslim religion, and speaks Urdu and Punjabi. She was widowed when her husband died [in] 2002. She departed Pakistan legally [in] April 2013, travelling on a [temporary] visa issued [in] April 2013, and arrived in Australia [in] April 2013.[1] See folios 13-15 of Departmental file [number]Summary of claims from the Protection visa application The applicant’s claims from her Protection visa application[2] can be summarised as follows:[2] See folios 16-19 of Departmental file [number]·She was brought up as an Ahmadiyya. Everything was peaceful until the 1973 constitution was passed. Following that they experienced a sudden hatred and anger towards them from among the people of the village. People stopped communicating with them, the farmers working her father’s land stopped work and started abusing them. ·Her father was the only Ahmadi in his family so no relatives helped them. Her father sold his land and moved to another province. They faced the same situation so relocated again to Peshawar, where she married her husband who lived in [a small village] in [Punjab].·They encountered a similar situation in her husband’s village. They were not allowed to worship so her husband and his father established a one room mosque for worship. When the local authorities found out they attacked them with long sticks and knives while they were praying.·They were forced to move to another area. When people found out they were Ahmadi they would not rent them a house. When they found a house, people would not welcome them and they could not get tradesmen to attend to fix things. They were denied the right to shop at their local village.·Her children were treated badly at school. They were forced to stand outside the classroom and were beaten by children from the neighbourhood.·Her youngest [child], at age [age], was flying a kite on a mosque roof near to home and was pushed down by a mosque preacher, sustaining a permanent [injury].·Her husband was transferred into the local area [workplace] but was shunned and scorned by [colleagues]. He had a [medical condition] due to continuous psychological torture. This left him incapacitated and forced him to leave his job on medical grounds.·Her [son] had to leave his studies to support the family. He tried to run a shop but no-one would purchase goods. He relocated to Lahore. After her husband died in 2003 she and her younger [child] also moved to Lahore.·Her son was worshipping at an Ahmadiyya mosque in Lahore when it was attacked by terrorists in 2009. He survived but [number] people were killed. Her son left the country after that.·After the attack it was decided for security reasons that no women should go to the mosque for any religious activity. The woman decided to choose a house where they could pray. As she had a big house near to the mosque, they asked her and she agreed that women could come to her house on Fridays to pray. When the authorities became aware of her activities she was threatened to stop her religious practises or she would be harmed.·Following an attack on the Christian community in Lahore she feared Ahmadis would be the next target and decided to leave the country as her son had.·She believes that she will be harmed by the authorities in Pakistan and by preachers of opposing religions because of her religious beliefs and for supporting her community. As it is the authorities that she fears she does not believe they can protect her.