1504210 (Refugee)

[2016] AATA 4657

1504210 (Refugee) [2016] AATA 4657 (4 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1504210

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Nicole Burns

DATE:4 November 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 November 2016 at 4:56pm

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. 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).

2. The applicant who claims to be a citizen of Pakistan, applied for the visa [in] November 2013 and the delegate refused to grant the visa [in] March 2015.

3. The issues is this review are whether the applicant has a well-founded fear of being persecuted 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 his receiving country of Pakistan, there is a real risk he will suffer significant harm.  A summary of the relevant law is attached.

4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.  As the Tribunal was satisfied that the applicant met the relevant criterion based on the evidence before it in relation to this and a related case, including medical evidence provided (discussed further below), a Tribunal hearing was not necessary. 

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. On the basis of a copy of the applicant’s Pakistani passport on the Departmental file and the fact the delegate had no issues with the applicant’s claimed identity and country of nationality, the Tribunal accepts the applicant is a Pakistani national and has assessed his protection claims accordingly.

6. According to information on the Departmental file, the applicant, [an age] year old male from [Village 1], [Subdivision 1], Swat District, Khyber Pakhtunkhwa (KPK), Pakistan, seeks to invoke Australia’s protection obligations because he fears serious harm at the hands of the Taliban on return to Swat for a number of reasons. These include his refusal to join the Taliban and because of his and his father’s membership of a local peace committee.  The applicant claimed to have been threatened and harmed by the Taliban in the past in Swat (including being kidnapped in February 2009), as had his father and [Relative A].  He claimed his family were specifically targeted by the Taliban, considered dissenters given his father had allowed his sister to attend school, had lived in [Country 1] for a long time, and his [Relative A] had spoken out against the Taliban.

7. On 5 August 2016 the Tribunal made a decision[1] that the applicant’s father ([Mr A]) faces a real chance of persecution if he returns to Pakistan in the reasonably foreseeable future, for the Convention reason of his political opinion after considering the evidence before it in that case, including oral evidence provided by the applicants’’ parents and [Relative A] at a Tribunal hearing on 2 June 2016.  In that case the Tribunal found the applicant’s father to be a credible witness and accepted his claims, including that the applicant had been kidnapped by the Taliban in February 2009, held for three days, and during that time beaten and tortured.  In this case the Tribunal therefore finds that the applicant, who it accepts is the son of [Mr A], faces a real chance of serious harm on return to Swat, KPK as a member of a particular social group of his father’s family.  As the Tribunal found the applicant’s father faces a well-founded fear of persecution for a Convention reason, the Tribunal in this case is not compelled to disregard that fear of persecution in relation to the applicant, as per s. 91S of the Act.

   [1] AAT No. [File number]

8. Having accepted that the applicant has a well-founded fear of persecution in [Village 1], Swat District and Khyber Pakhtunkhwa, the Tribunal must consider whether the well-founded fear of persecution extends to the country as whole, and if not, whether it would be reasonable for the applicant to relocate to a part of Pakistan where he does not have a well-founded fear of persecution.    

9. In SZATV v MIAC (2007) 233 CLR 18 the High Court endorsed the proposition that a person will not be excluded from refugee status merely because he or she could have sought refuge in another part of the same country, if under all the circumstances it would not be reasonable to expect him or her to do so. The Court further held at [24] that what is reasonable, in the sense of practicable, must depend on the particular circumstances of the applicant and the impact upon that person of relocating within their country. As Kirby J stated at [97], the supposed possibility of relocation will not detract from a “well-founded fear of persecution” where any such relocation would, in all the circumstances, be unreasonable.

10. The Tribunal is satisfied that the applicant, as a citizen of Pakistan, has the right to relocate within Pakistan.  The range of factors which may be relevant in any particular case to the question of whether relocation is reasonably available will be largely determined by the case sought to be made out by an applicant.[2] 

    [2] Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 443; per Whitlam J at 453.

11. In a written submission provided to the Tribunal the representative argues that it is both unsafe and unreasonable to expect the applicant to relocate because of his poor mental health.  Medical evidence provided to the Tribunal in the form of reports from the applicant’s treating psychiatrist[3] and psychologist[4] indicate that the applicant has been receiving treatment for [two conditions] since August 2014 in the form of [specified] medications as well as therapy.  His psychologist indicated that in addition to [the two conditions already mentioned], the applicant has also been diagnosed with [two further conditions] and requires ongoing weekly [treatment] to treat his wide range of symptoms.  She states, among other things, that the applicant continues to suffer from the effects of past [circumstances].  In their reports to the Tribunal both professionals indicated that, in their opinion, the applicant’s current mental health problems would significantly worsen on return to Pakistan without family support.  On this latter point the Tribunal notes, and accepts, the applicant’s father’s evidence (as set out in AAT No. [file number]) that the entire applicant’s immediate family members reside in Australia, except for one [relative] who currently lives in [Country 2]. 

    [3] Dated [in] October 016

    [4] Dated [in] October 2016

12. The Tribunal notes that concerns about the applicant’s mental health problems were first raised at the visa application stage in a submission[5] from the applicant’s then representative to the Department who, among other things, noted that the applicant had been seeing a psychiatrist. 

    [5] Undated

13. Based on this medical evidence the Tribunal accepts the applicant has ongoing mental health problems that will impact on his ability to relocate, including his ability to find employment and housing. Given his mental health problems, which have been described by his psychologist as significant, the Tribunal considers it would be very difficult for the applicant to secure work and re-establish his life outside Swat Valley where he has no family or social supports.  In addition to problems his family members experienced in the past in Swat, the Tribunal has also accepted that the applicant was kidnapped and held by the Taliban for a few days in 2009 and during this time beaten and tortured, which has resulted in a considerable degree of trauma and fear, and possibly contributed to the applicant’s serious mental health problems.

14. For these reasons, the Tribunal does not consider it would be reasonable to expect the applicant to relocate himself to another part of Pakistan where he has no family or social supports, to escape the harm he fears in Swat and Khyber Pakhtunkhwa.

15. Having regard to the above, the Tribunal finds that the applicant faces a real chance of persecution if he returns to Pakistan in the reasonably foreseeable future, for the Convention reason of his membership of a particular social group of his father’s family. For all of these reasons the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

    CONCLUSION

16. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

    DECISION

17. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

    Nicole Burns
    Member

    
    

    Attachment – Summary of 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.

    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 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.

    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’).

    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.