1415051 (Refugee)

[2015] AATA 3281

1415051 (Refugee) [2015] AATA 3281 (10 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1415051

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Susan Pinto

DATE:10 August 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 10 August 2015 at 4:59pm

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

1. The applicant is a citizen of Pakistan. He is from Shakargarh in the Punjab province. He arrived in Australia [in] May 2013 on a Subclass 600 visa granted [in] April 2013. The applicant is [married] with one child. His wife and child remain in Pakistan. The applicant’s other family members are also in Pakistan.

2. The applicant applied to the Department of Immigration for the Protection visa [in] August 2013. The applicant claimed that although he was born into a family of Sunni Muslims he converted to the Shia Muslim branch of Islam in 2011. He claims that as a result of his conversion he was threatened and attacked, causing him to flee Pakistan for Australia.

3. The delegate of the Minister for Immigration refused to grant the visa [in] August 2014. The delegate found that the applicant’s evidence during the interview was “vague and unconvincing” and there were “major disparities” in the applicant’s evidence relating to an assault he claimed occurred due to his conversion. 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).

4. A summary of the relevant law is set out in in an attachment to this decision. The issues in this review are whether the applicant has a well founded fear of persecution in Pakistan for one or more of the five reasons set out in the Refugees Convention and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm. The Tribunal must consider, therefore, whether the applicant has a well founded fear of persecution because of his conversion to Shia Islam and, if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia there is a real risk he will suffer significant harm for this reason.

   CLAIMS AND EVIDENCE

   Application to the Department

5. When lodging the application to the Department, the applicant indicated that he speaks, reads and writes Urdu and English and he speaks and reads Punjabi. The applicant has one [child]. His wife and child remain in Pakistan. The applicant’s parents and siblings are also residing in Pakistan. The applicant stated that he was married in Shakargarh, Pakistan [in] April 2010. The applicant indicated that he obtained [tertiary qualifications] in Pakistan. His highest qualification, [was] completed at [a university in Lahore]. The applicant stated on the application form that prior to his arrival in Australia he was an Internee at [Bank 1] in Narowal, Pakistan from August 2012 to February 2013. The applicant indicated that prior to that time he was an Accountant and Project Partner for [Company 2] from January 2005 to February 2013.

6. In a statement provided in support of the application, the applicant states that he is married and has [siblings]. He states that he completed qualifications in Pakistan and worked as an Accountant and Marketing Manager for [Company 2] for seven years from 2005 to 2012. The applicant states that he was born into a Sunni Muslim community but when he “got more knowledge of Islam” he started believing in Shia Islam and following it. The applicant states that he had two best friends, [who] were strong believers of the Shia school of thought. The applicant states that his friends used to take him to [an] Imambargah for Shia religious meetings and he was so impressed by them that he converted to the Shia faith in February 2011. The applicant states that he became an active member of the Shia community in Shakargarh and began openly attending gatherings and processions. The Shia elders were very happy with him and they gave him membership of the management of the Imambargah. His relative and Sunni friends became very upset and annoyed with him and “hot talks” were going on every day and life became very difficult. The applicant is a strong believer that everyone has the right to make choices regarding their religion.

7. One day, [Mr A], who is the Sunni [senior official] of their area, met the applicant on his way back from the Imam Bargah and tried to convince him to leave the Shia group and convert back to Sunni Islam but the applicant did not agree. As a result, he was threatened and tortured by [Mr A]’s group. One day in March 2013 they took him to [Mr A]’s place and tied him up with ropes and beat him harshly. Their demand was that he leaves the Shia religion. He kept saying that he believes in free choice. The applicant was beaten for five hours and he was then left alone and he thought he was going to die. However, some of his Shia friends located him and took him to the hospital. He remained in the [hospital] for a month. He called the Police at the [Police] Station and lodged a First Information Report (FIR). After the applicant informed the police he began getting threatening telephone calls from [Mr A]’s group. They told him that he had converted to Shia and he is liable for death in Islam because he is a non-Muslim. The applicant’s relatives were against him due to his conversion and advised him to leave Pakistan to save his life. [Mr A] is a group of bad people in the sense that they believe in extra judicial punishment. The applicant applied for a Visitor visa for Pakistan [in] April 2013 which was granted [in] April 2013 and he left Pakistan [in] May 2013.

8. The applicant provided documents in support of the application, including a First Information Report, lodged [in] March 2013, stating that certain people made speeches and “public emotional” against Ahal-e-Sunat Jamat causing injuries to the applicant. The applicant also provided an Affidavit from his father stating that his son has “adopt Sector Jafaria” in February 2011 and people from Sector Ahl-eSunnat Wal Jammat threatened him many times for dire consequences and made attempts to take his life “but he luckily saved”. He also provided a Hospital Discharge card from [a] Hospital Shakargarh stating that the applicant was admitted to hospital [in] March 2013 and discharged [in] March 2013. The applicant also provided a statement from a Medical Officer of the hospital stating that the applicant was injured and was in a critical condition.

9. The applicant also provided a statement from [a] member of the Syed Qalandar Hussain Jafari, dated [in] June 2012, titled ‘[title]’ stating that the applicant was attending the Shia counsel and is a permanent member of the Shia community and he met [Mr A, of], the Sunni Community who told him he would kill him if he did not leave the Shia community. He also gave him threats that he would create problems for him but the applicant refused to leave the Shia community “because this is “fundamental rights. A further document stating that the applicant was given a membership card of the Imambargah [in] September 2011 and he joined the Shia community in February 2011 was provided. A membership card was also provided.

10. The applicant was interviewed by the delegate [in] January 2014. The Tribunal has listened to the CD Rom recording of the interview and is satisfied that it is an accurate summary.

    Application for review

11. When lodging the application to the Tribunal, the applicant provided a copy of the delegate’s decision record.

12. The representative subsequently provided a submission to the Tribunal addressing the issues raised in the delegate’s decision record. Copies of documents provided to the Department were also provided to the Tribunal.

13. The applicant appeared before the Tribunal on 5 August 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages. The applicant was represented in relation to the review by his registered migration agent.

    CONSIDERATION OF CLAIMS AND EVDIENCE

    Does the applicant have a well founded fear of persecution for one or more of the five reasons set out in the Refugees Convention?

14. As indicated above, the applicant has claimed that he fears harm in Pakistan because he has converted from the Sunni branch of Islam to the Shia branch. Having considered all of the evidence, the Tribunal does not accept that the applicant has converted to the Shia sect and considers that he has fabricated the entirety of his claims to have suffered harm and to fear harm in Pakistan. The Tribunal considers that the applicant’s evidence as to his employment was confused and inconsistent, which raises concerns that he has not provided a truthful account of his circumstances. As stated above, the delegate found the applicant’s evidence in relation to his conversion to be “vague and unconvincing”. Having listened to the recording of the interview, the Tribunal also considers that the applicant’s evidence as to his conversion was unconvincing. He similarly failed to satisfy the Tribunal during the hearing that he has genuinely converted to the Shia faith. The Tribunal further considers that the applicant’s evidence during the hearing as to the assault he claimed occurred in 2013 was inconsistent with aspects of his claims in his written statement.  The Tribunal’s consideration of the applicant’s claims and evidence follows.

    The applicant’s employment

15. The Tribunal firstly has concerns that the applicant has not provided at truthful account of his employment in Pakistan. As stated above, the applicant indicated on the application form that his employment was for [Bank 1] from August 2012 to February 2013. He indicated that prior to that time he had been employed for [Company 2] from 2005 to 2012. He also stated in his statement to the Department that prior to his arrival in Australia he was employed for [Company 2] for seven years. Although not included on the application form, the applicant told the delegate that he had lived and worked in [Country 3] and he subsequently provided a “notification of Incorrect Answers” form in relation to this issue. When asked at the hearing about his employment and previous travel, the applicant confirmed that he worked in [Country 3] and he stated that after he finished his university qualifications he stayed in Pakistan for a short time and then travelled to [Country 3] to work. The applicant told the Tribunal that when he returned to Pakistan he worked at [Company 2] for approximately four and a half years. When asked where he worked after that time, the applicant stated that he was unemployed for about six months. The applicant also stated that prior to his employment with [Company 2] he had worked in a bank as a trainee. The applicant confirmed that he worked in the bank after returning from [Country 3] and he had also worked there in year 12 and again after his [university] degree. When asked whether he had worked at [Company 2] until he came to Australia, the applicant stated that he finished work when he made the application for the visa to come to Australia, which was in March 2013.

16. When the Tribunal advised the applicant that there were discrepancies in relation to his employment and the application form indicates that he had worked at [Bank 1] more recently, he stated that he had taken holidays when he married in 2010 and travelled around Pakistan and he also had done training for the bank so he would go there after work and help his friends. When the Tribunal advised the applicant that it had doubts he would be help his friends at a bank where they were employed, the applicant stated that he is telling the truth and all of the documents he has provided are genuine. Prior to the hearing, the applicant’s representative submitted that the applicant did not agree that the documents he provided were false and he obtained his visa by providing genuine documents in relation to his employment.

17. The Tribunal does not have any evidence before it in relation to the documents the applicant provided regarding his employment for his Visitor visa application and makes no adverse findings in relation to this issue. However, the Tribunal has considerable concerns about the applicant’s evidence regarding his employment and considers that it was vague, evasive and inconsistent. The Tribunal does not accept that the applicant was working in a bank helping his friends and considers that he manufactured that evidence during the hearing in an attempt to overcome the inconsistencies raised by the Tribunal in relation to his employment. The Tribunal does not accept that the applicant’s employment history, which indicates that he essentially worked for two different employers in Pakistan, is complicated and considers his inconsistent evidence as to when he worked for [Bank 1], the length of time he worked for [Company 2] and when he ceased that employment is due to the fact that the applicant has not been truthful to the Tribunal about his employment. The Tribunal acknowledges that the applicant’s employment is not directly relevant to his claims for protection. However, the Tribunal has concerns that the applicant has deliberately attempted to provide untruthful evidence about his employment in an attempt to present a different account of his circumstances in Pakistan, and has done so in an attempt to establish claims for protection. The Tribunal considers that the applicant’s willingness to fabricate evidence in relation to this issue casts considerable doubts on his overall credibility.

    Claims of conversion and past harm

18. Importantly, the Tribunal also considers that the applicant’s evidence as to his conversion to the Shia branch of Islam was vague and unpersuasive. When asked at the Tribunal hearing when he decided to convert to the Shia faith, the applicant stated that it was in 2012 and he would go to their Imambargah in 2010 or 2011 with some of his Shia friends. The applicant stated that he was impressed with their religion and he had gone to their Imambargah when he was [younger] but he was immature at that time. The applicant then decided to attend when he was older when asked by some friends. When asked why he again decided to begin attending a Shia mosque, the applicant stated that anybody can change their religion and he decided he should change. In response to the Tribunal’s comments that it agrees anyone can change their religion, but that he was being asked why he decided to do so, the applicant stated that he did not know anything about their religion and when he began studying it he was impressed and liked it. When asked if he could be more specific about what he liked about it, the applicant referred to the Majlises[1] and stated that he also thought that Shias had been blamed for bomb blasts and they should not have been blamed. When asked again for further details about what it was that impressed him about the Shia faith, the applicant stated that when he went to their mosques he realised that they say the truth and they respect and worship from the heart.

    [1] Among the Shia community, the term Majlis means a gathering to remember Ahl al-Bayt and in particular Husayn ibn Ali (Wikipedia, the free Encyclopedia).

19. The Tribunal queried whether he is aware of the situation for Shias in Pakistan. The applicant indicated he had difficulty understanding the Tribunal’s question and stated that many people are now converting. The Tribunal advised the applicant that it was asking about the difficulties Shias are currently having in Pakistan. The applicant stated that the situation is getting better and the number of Shias is increasing. When asked about the situation for Shias in places such as the Federally Administered Tribunal Areas (FATA) or Khyber Pakhtunkhwa, the applicant stated that they are in the majority in those areas. The Tribunal commented that he appears to know very little about the situation for Shias in Pakistan who are considered,  particularly by extremist groups, to be infidels, and that there have been a huge number of attacks on Shias in various parts of Pakistan, the applicant indicated that he “kept an eye” on things.  The Tribunal queried whether he considered those issues before he converted, the applicant stated that he did think about it and he “kept an eye on these thing” when he converted. When asked again whether he could recall when he converted, the applicant stated that he cannot remember. When asked if it was before or after his marriage, the applicant stated that it was after his marriage and it was approximately 10 months later. When the Tribunal queried why he was able to previously recall that he had converted in 2010, the applicant stated that he was married in 2010 and he had said he converted after that time which is correct.

20. It was submitted by the representative, in relation to the delegate’s findings regarding the applicant’s religious conversion, that his friends took him to the Shia Imambargah and he frequently visited it and it had a positive impact on the applicant’s mind. He then “embarked on this spiritual journey which totally transformed him to a new person” and he considers himself more enlightened, moderate, humanist and “in right direction”.

21. The Tribunal has considered the submissions and the applicant’s claims and evidence relating to his conversion. In considering this issue, the Tribunal accepts that the hearing is a stressful process and in such a situation it is difficult for an applicant to articulate particular aspects of his or her religious beliefs. However, the Tribunal considers that the applicant’s evidence as to his conversion was particularly unpersuasive. Thus, whilst the Tribunal accepts that after some prompting the applicant was able to recall that he converted after his marriage, his initial evidence as to when he converted was vague and he was unable to recall his claim in his statement that he had converted in February 2011. The applicant’s conversion to the Shia faith is integral to his claims and the Tribunal considers his inability to recall when he converted is indicative of the fact that this claim has been fabricated. Second, although the applicant was given numerous opportunities during the hearing to expand on his reasons for converting to the Shia faith, his evidence regarding his reasons for doing so was vague and unpersuasive. The applicant is a well-educated man, yet he was unable to expand on his reasons for his conversion beyond cursory statements which did not indicate he was speaking from genuine experience, and instead indicated he was attempting to manufacture evidence in relation to this issue. Additionally, as indicated above, he did not appear to appreciate the seriousness of the situation facing Shias in Pakistan or to have any views on this issue. Indeed, his comments in relation to the significant number of attacks on Shias throughout several parts of Pakistan appeared apathetic. As discussed at the hearing, the evidence indicates that there have been a huge number of attacks against Shias in various parts of Pakistan.[2] The Tribunal considers that a genuine convert from Sunni to Shia would be have some views on the atrocities committed by Sunni extremist groups against Shias. However, the applicant’s evidence does not indicate he had given this genuine consideration. Nor does his evidence indicate that he has genuinely considered the effect that his conversion would have on his own safety or his family.

    [2] See for example, DFAT 2015, Thematic Report: Shias in Pakistan, 14 April, which reports on the risk of persecution that Shias in Pakistan face from Sunni extremist groups which have the stated objective of targeting Shias. These groups have been responsible for attacks against Shia pilgrims, shrines, mosques, Imambargahs, vehicles carrying members of the Shia community, prayer leaders and religious party activists.

1. The Tribunal further considers that the applicant’s evidence as to the practise of his faith was similarly unpersuasive. The applicant was asked during the hearing how he practised his Shia faith following his conversion. The applicant stated that they made him a leader of the Imambargah and he would go to meetings and would try to tell people about the Shia faith. He would also arrange food and organise meetings at the Majalis. When asked what would happen at the Majalis, the applicant stated that they would talk about God and Shia Islam and how previous Shia scholars spread the religion. They would also talk about the differences in their religion. When asked if he could explain the differences in the religion and what they talked about in terms of this issue, the applicant stated that they would try to impress people and tell them about the differences between their religion and Sunni beliefs. When asked again if he could be more specific about the differences and what he told people, the applicant stated that they would just tell them that Sunnis are not doing “right” and they should look at their own history.

2. The Tribunal considers that the applicant’s evidence as to the differences between the Shia faith and Sunni beliefs was limited. The Tribunal considers that someone who had decided whilst in his late 20s, having been born and brought up as a Sunni, to convert to a religion for which many thousands had been killed, would be able to articulate in a considerably more detailed fashion the importance of the religious principles and the way in which the religion differed from his previous religion. The Tribunal considers that the evidence in relation to this issue is indicative of the fact that the applicant has not converted from the Sunni sect of Islam to the Shia sect.

3. Furthermore and importantly, the Tribunal also considers that the applicant’s evidence as to his religious practise whilst he has been in Australia is indicative of the fact that he has not converted and has no genuine interest or understanding in the Shia faith. When asked at the Tribunal hearing about his involvement in the Shia religious community in Australia, the applicant stated that he has been living in [a certain city] and there are no mosques and he has had difficulty being involved in the Shia community in Australia. When asked whether any of the people whom he lives with are Shia, the applicant stated that one of the people is Shia, but he is a student and is busy with his studies. The applicant also stated that he is worried about intolerance against Shias even in Australia but he will “gradually” increase his involvement in the Shia community. When asked whether he has attended Muharram since he has been in Australia the applicant stated that he has not, but he intends to practice the Shia faith in Australia and he is aware he can do it freely.

4. The Tribunal does not accept that the applicant’s explanation for why he has had no involvement in the Shia community in Australia. The applicant has claimed, as stated above, that he is willing to risk his own safety and isolate himself from his family and friends in Pakistan due to his conversion. However, despite this, he has not had any involvement in the Shia community in Australia. The Tribunal accepts that the applicant lives in [a certain city]. The Tribunal does not accept that he was fearful of attending a Shia Imambargah in Australia. The Tribunal is drawn to the conclusion that the applicant has had no involvement in the Shia community in Australia, despite his arrival several months ago, because he has not genuinely converted to the Shia faith and he is, in fact, of the Sunni religion.

5. In addition to the above, the applicant’s account of his assault in Pakistan was inconsistent with his written claims. As indicated above, in his written claims, the applicant stated that in March 2013 he was taken to [Mr A]’s place and tortured and tied up with ropes. He was then left alone and some of his Shia friends located him and took him to the hospital. When asked at the Tribunal hearing about this incident, the applicant could not recall when he was beaten, but thought it was about two months before he came to Australia and it was outside the Jamat where the Sunni group’s meetings are held. The applicant stated that father was telephoned by some Shia friends and the applicant was taken to the hospital in ambulance and his father attended the hospital. When advised during the hearing that his account is different from in his statement, the applicant stated that [Mr A] is normally at that place and is part of the group. In relation to the discrepancies in the applicant’s claims regarding the physical assault, the representative had submitted prior to the hearing  that when the attack occurred, the applicant lost consciousness and it is difficult for him to remember exactly what happened and it was his father who later recounted the details of the assault.

6. The Tribunal does not accept the applicant’s explanation for the inconsistencies in relation to the assault. The Tribunal does not accept that the applicant would be unable to recall whether his father or some Shia friends took him to the hospital. The Tribunal has also found above that the applicant’s claims as to his conversion was unsatisfactory and not consistent with someone who is committed to their faith such that they are willing to convert to a religion which would put him and his family at considerable risk. The Tribunal has also found that the applicant’s evidence as to his lack of any involvement in the Shia faith in Australia is similarly inconsistent with his claims to be committed to that faith. The Tribunal does not accept that the applicant has converted to the Shia faith. The Tribunal does not accept that the applicant had any involvement with the Shia faith such that he was involved in the Shia Imambargah or that he was assaulted or harmed at any time due to his conversion. The Tribunal does not accept that the applicant’s father has been receiving threatening telephone calls due to the applicant’s conversion. Nor does the Tribunal accept that the applicant’s wife is angry with him or they have separated due to his conversion or that his father had told him he should not return to Pakistan for this reason.

7. The Tribunal has had regard to the submissions in relation to the documents that the applicant has provided and the representative’s comments that the documents can be verified, and the applicant’s claims that they are “100 per cent true” and he can provide any further documents the Tribunal requires. However, the Tribunal does not accept that The Tribunal does not accept that any further inquiries regarding the documents are warranted or appropriate. The Tribunal does not accept that the documents provided by the applicant, including the First Information report; hospital records; letters from the Shia mosque and “Shia counsel”; or the membership card from the Shia mosque are genuine and/or that they contain truthful information. As discussed during the hearing, fraudulent documents are readily available in Pakistan.[3]

   The applicant’s claims regarding his return to Pakistan

   [3] See report by the Department of Foreign Affairs and Trade which states, in its advice of August 2009, that the prevalence of false documents in Pakistan is high. The Immigration and Refugee Board of Canada (IRBC) also noted in November 2010 that there is a high incidence of fraudulent documents in Pakistan.

8. The Tribunal has had regard to the applicant’s claims regarding the harm he will suffer in the future. The applicant has stated that he fears returning to Pakistan because he cannot practise his faith freely in Pakistan and he and his wife are practically separated as when he told her after he obtained his visa that he had converted, she was angry with him. The applicant has also claimed that his father has also told him not to return to Pakistan and he will be killed. The Tribunal has also had regard to the evidence provided the representative in relation to sectarian and religiously motivated violence against Shia Muslims in Pakistan.

9. The Tribunal accepts the independent evidence that violence against Shias occurs with frequency throughout Pakistan. However, the Tribunal does not accept that the applicant has ever been the victim of religious or sectarian violence. This is because the Tribunal does not accept that the applicant has converted from the Sunni branch of Islam to the Shia branch of Islam. The Tribunal does not accept that the applicant is now or has ever been a Shia or that he will become a Shia in the future. As stated above, the Tribunal does not accept that the applicant has ever been harmed in Pakistan for reasons of his religion or that there is a real chance that as a Sunni Muslim, the majority religious sect in Pakistan,[4] that there is a real chance he will suffer serious harm if he returns to Pakistan now or in the reasonably foreseeable future. The applicant has not made any claims regarding the generalised violence that occurs in various parts of Pakistan. The Tribunal accepts that the security situation is unstable in various parts of Pakistan, but is not satisfied that there is a real chance that the applicant will suffer harm for this reason if he returns to Pakistan.

   [4] Sunnis represent about 75 per cent of the population and Shias 20 per cent of the population. Other minorities, including Christians, Hindus and Ahmadis account for the remaining five per cent of the population (see Department of Foreign Affairs and Trade 2015, Country Report: Pakistan, 14 April.

10. The Tribunal is not satisfied, therefore, that there is a real chance that the applicant will be harmed for reasons of his religion, imputed religious beliefs, political opinion, imputed political opinion or for any other Convention reason if he returns to Pakistan now or in the reasonably foreseeable future. Accordingly, the Tribunal is not satisfied, having regard to all the evidence, that the applicant has a well founded fear of persecution for any other Convention reason if he returns to Pakistan now or in the reasonably foreseeable future.

    Are there substantial grounds for believing as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, that there is a real risk he will suffer significant harm?

11. The Tribunal has not accepted that the applicant will suffer serious harm in Pakistan.  Similarly and for the reasons set out above, the Tribunal is also not satisfied, for the purposes of the Complementary Protection provisions, that the applicant will suffer significant harm if he is removed from Australia to Pakistan. Therefore, the Tribunal is not satisfied that there is any evidence that the applicant will suffer significant harm, which includes arbitrary deprivation of life, the death penalty torture, cruel or inhuman treatment or punishment, and degrading treatment of punishment, for any reason upon his return to Pakistan. The Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Pakistan, that there is a real risk that he will suffer significant harm.

    CONCLUSIONS

12. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a) or (aa) for the Protection visa. It follows that he is unable to satisfy the criterion in s.36(2)(b) or (c). As he does not satisfy the criteria for a Protection visa, he cannot be granted the visa.

    DECISION

13. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Susan Pinto
    Member

    
    

    ATTACHMENT - RELEVANT LAW

14. In accordance with section 65 of the Migration Act 1958 (the Act), the Minister may only grant a visa if the Minister is satisfied that the criteria prescribed for that visa by the Act and the Migration Regulations 1994 (the Regulations) have been satisfied. The criteria for the grant of a Protection visa are set out in section 36 of the Act and Part 866 of Schedule 2 to the Regulations. Subsection 36(2) of the Act provides that:

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

    (a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

    (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; or

    (b)a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)a non citizen in Australia who is a member of the same family unit as a non citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.’

    Refugee criterion

15. Subsection 5(1) of the Act defines the ‘Refugees Convention’ for the purposes of the Act as ‘the Convention relating to the Status of Refugees done at Geneva on 28 July 1951’ and the ‘Refugees Protocol’ as ‘the Protocol relating to the Status of Refugees done at New York on 31 January 1967’.  Australia is a party to the Convention and the Protocol and therefore generally speaking has protection obligations to persons defined as refugees for the purposes of those international instruments.

16. Article 1A(2) of the Convention as amended by the Protocol relevantly defines a ‘refugee’ as a 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 that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.’

17. The definition contains four key elements.  First, the applicant must be outside his or her country of nationality.  Secondly, the applicant must fear ‘persecution’.  Subsection 91R(1) of the Act states that, in order to come within the definition in Article 1A(2), the persecution which a person fears must involve ‘serious harm’ to the person and ‘systematic and discriminatory conduct’.  Subsection 91R(2) states that ‘serious harm’ includes a reference to any of the following:

    (a)a threat to the person’s life or liberty;

    (b)significant physical harassment of the person;

    (c)significant physical ill-treatment of the person;

    (d)significant economic hardship that threatens the person’s capacity to subsist;

    (e)denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    Complementary protection criterion

18. An applicant for a protection visa who does not meet the refugee criterion in paragraph 36(2)(a) of the Act may nevertheless meet the complementary protection criterion in paragraph 36(2)(aa) of the Act, set out above.  A person will suffer ‘significant harm’ if they will be arbitrarily deprived of their life, if the death penalty will be carried out on them or if they will be subjected to ‘torture’ or to ‘cruel or inhuman treatment or punishment’ or to ‘degrading treatment or punishment’.  The expressions ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are further defined in subsection 5(1) of the Act.

    Ministerial direction

19. In accordance with Ministerial Direction No. 56, made under section 499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration and Citizenship - ‘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.