1418482 (Refugee) - [2016] AATA 4020

1418482 (Refugee) [2016] AATA 4020 (14 June 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1418482
COUNTRY OF REFERENCE:                  Pakistan
MEMBER:Susan Pinto
DATE:14 June 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 14 June 2016 at 10:15am

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

The applicant is a citizen of Pakistan who is aged in his [age range]. He was granted a [temporary] visa [in] October 2010. He arrived in Australia on that visa [in] March 2011. He first applied to the Department of Immigration for a Protection visa [in] June 2011. The application was refused by the Department [in] March 2012 and the delegate’s decision was affirmed by the Refugee Review Tribunal (RRT) on 17 August 2012.
Following the decision in SZGIZ v Minister v Minister for Immigration and Citizenship (2013) 212 FCR 235 and SZRNJ v Minister for Immigration [2014] FCCA 782 (see below), the applicant was able to make a further application for a Protection visa [in] January 2014. In the current application, the applicant claimed that he was charged in relation to [specific crime] and the case is ongoing. He claims he was harmed whilst in prison awaiting bail and he will suffer similar harm in prison if he returns to Pakistan.
The delegate of the Minister for Immigration refused to grant the visa [in] October 2014. The delegate stated that the applicant was able to depart Pakistan without any difficulty and he renewed his passport whilst in Australia. The delegate found that the harm the applicant feared did not fall within the Refugees Convention. This is an application for review of the decision made by the 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 delegate assessed the applicant against only the Refugees Convention. For the reasons discussed below, the Tribunal has assessed the applicant only against the Complementary Protection provisions.
RELEVANT LAW
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] FCAFC71, 3 July 2013, the Full Federal 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 provisions in s.36(2)(aa) whilst he or she remained in the migration zone. According to SZGIZ, a person who had previously applied for and been refused…

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 1418482 (Refugee)

Details

AGLC: 1418482 (Refugee) [2016] AATA 4020
Case: [2016] AATA 4020
Decision Date: 14 June 2016

CaseChat Overview and Summary

This decision concerned an application for a Protection visa by a non-citizen from Pakistan. The applicant's claim for complementary protection under section 36(2)(aa) of the Migration Act 1958 was based on allegations of mistreatment and trauma experienced during a period of detention in Pakistan. The applicant asserted that he was arrested and imprisoned for approximately one month due to alleged association with a crime, was assaulted after his arrest, and found the experience degrading.

The primary legal issue before the Tribunal was whether the applicant satisfied the criteria for a Protection visa, specifically the complementary protection limb under section 36(2)(aa). This required the Tribunal to be satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant's removal from Australia to Pakistan, there was a real risk that he would suffer "significant harm." Significant harm was defined to include arbitrary deprivation of life, the death penalty, torture, or cruel, inhuman, or degrading treatment or punishment.

The Tribunal considered the applicant's submissions regarding his detention and alleged mistreatment. However, it found no suggestion that the applicant satisfied section 36(2) on the basis of being a family member of a person who held a protection visa. Consequently, the Tribunal concluded that the applicant did not meet the criteria for the grant of a Protection visa. The decision of the Department not to grant the applicant a Protection visa was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Complementary Protection provisions (see attachment for the full text of these provisions) in s.36(2)(aa) essentially require that the applicant is a non citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because there are 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’. Significant harm is defined in s.36(2A) of the Act to include that the non citizen will be arbitrarily deprived of his or her life; the death penalty will be carried out on the non-citizen; the non citizen will be subjected to cruel or inhuman treatment or punishment; or the non citizen will be subjected to degrading treatment or punishment. 'Cruel or inhuman treatment or punishment', 'degrading treatment or punishment', and 'torture', are further defined in s.5(1) of the Act.CLAIMS AND EVIDENCEApplication to the Department When lodging the application to the Department, the applicant provided a passport from the Islamic Republic of Pakistan, issued [in] 2007. The applicant indicated that he is from the Punjab province and that he speaks, reads and writes Urdu and Punjabi. The applicant indicated that between June 2001 and his departure from Pakistan in 2011 he resided in Rawalpindi. He indicated that he had [number] years of education and was employed as a businessman for [a named company] prior to his departure. The applicant stated on the application form that his parents and [specified siblings] live in Pakistan. He has [siblings] in Australia and [another] in [another country]. The applicant indicated that he was married in Australia, but had since separated. In response to questions on the application form as to why he left Pakistan, the representative stated that the applicant has not previously applied for Complementary Protection and his claims are based on the real risk that he will suffer significant harm. It is submitted that the applicant now “asserts that he was detained and imprisoned as a result of an alleged civil offence, and he has been traumatised by such experience”. In response to a question as to why he cannot obtain protection from the authorities in his country, the representative submitted that the applicant was mistreated whilst in custody in circumstances not previously presented. In a submission, dated [in] August 2014, the representative submits that the applicant was arrested in circumstances unrelated to political activity. The applicant was arrested in his [business] and detained at [a specified prison] for approximately a month. The reason for his imprisonment was his alleged association with [a crime] on [a service]. He was detained with [number] other friends. He was eventually bailed and “was cleared during 2010”. He found the month in prison traumatic and claims he was assaulted after his arrest. He was “looking at a sentence of three to ten years for [a specified] crime but was found not guilty”. The representative submits that the applicant has been traumatised by his month in prison and has suffered degrading treatment and he realises how arbitrary his position is if he returns to Pakistan.

Decision

Reasons for decision

There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).DECISION The Tribunal affirms the decision not to grant the applicant a Protection visa.Susan PintoMemberATTACHMENT - RELEVANT LAW 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.’Complementary protection criterion The Complementary Protection criterion is set out in paragraph 36(2)(aa) of the Act. 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.

Ratio Decidendi

Legal Principle Established

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