1512096 (Refugee) - [2017] AATA 1197

1512096 (Refugee) [2017] AATA 1197 (25 June 2017)
CORRIGENDUM
DIVISION:Migration & Refugee Division
CASE NUMBER:  1512096
DIBP REFERENCE(S):  CLF2014/56644
COUNTRY OF REFERENCE:                  Pakistan
MEMBER:Rea Hearn-Mackinnon
DATE OF DECISION:  25 June 2017

DATE CORRIGENDUM
SIGNED:  3 August 2017
PLACE OF DECISION:  Melbourne
AMENDMENT:  The following corrections are made to the decision:

The words ‘25 June 2016’ on the front page of the Decision Record should be replaced with ’25 June 2017’.

Denis Dragovic,
Senior Member

DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1512096
COUNTRY OF REFERENCE:                  Pakistan
MEMBER:Rea Hearn Mackinnon
DATE:25 June 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 25 June 2017 at 4:11pm

CATCHWORDS
Refugee – Protection visa – Pakistan – Religion – Atheist – Rejection of Islam – Un-Islamic lifestyle
LEGISLATION
Migration Act 1958, s 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Prakash v MIMA [2001] FCA 57

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] April 2014 and the delegate refused to grant the visa [in] August 2015.
The applicant appeared before the Tribunal on 2 February 2017 to give evidence and present arguments.
CONSIDERATION OF CLAIMS AND EVIDENCE
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…

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 1512096 (Refugee)

Details

AGLC: 1512096 (Refugee) [2017] AATA 1197
Case: [2017] AATA 1197
Decision Date: 25 June 2016

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant seeking a protection visa, who claimed to be a national of Pakistan. The applicant asserted that he would face harm in Pakistan due to his rejection of Islam and his adoption of an "un-Islamic lifestyle," which included behaviours such as drinking, fornicating, and eating pork. He had limited contact with his family in Australia and Pakistan, as they disapproved of his lifestyle and behaviour.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958 (Cth), which requires the applicant to be a non-citizen in respect of whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees (as amended by its 1967 Protocol). This involved determining if the applicant had a well-founded fear of being persecuted for reasons of religion, as defined by Article 1A(2) of the Convention. The Tribunal also considered, as an alternative, the complementary protection criterion under section 36(2)(aa) of the Act.

The Tribunal applied the principles of the Refugees Convention and relevant Ministerial Directions, including policy guidelines and country information. It considered the applicant's evidence regarding his rejection of Islam and his lifestyle, and the potential consequences of his return to Pakistan. The Tribunal was satisfied that the applicant was a person in respect of whom Australia had protection obligations under the Refugees Convention.

Consequently, the Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies the criterion set out in section 36(2)(a) of the Migration Act.

Orders

Orders of the court

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Background

Background to the litigation

The issue in this case is whether the applicant will be harmed in Pakistan because he has rejected Islam. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.Background and nationality The applicant, who uses the name [name] in Australia, was born on [date] in Rawalpindi in Punjab province. He is an ethnic Punjabi. He has provided a copy of his Pakistan passport and other identity documents and the Tribunal is satisfied he is a national of Pakistan. The applicant’s mother has been deceased for some years. His father, who passed away [in] February 2016, was [an occupation] in [a government agency]. He retired in 1992 or1993. He has [siblings]. [Details of siblings deleted]. The applicant completed a [qualification] in Islamabad in 2006/7. He arrived in Australia [in] February 2008 on a student visa. In Australia, he has completed [various courses]. He was granted a Temporary Skilled Graduate visa [in] March 2011 on the basis of his nominated [occupation]. This visa expired [in] April 2014. He has held several jobs in [Australia]. The applicant claims he has not been able to work for some time because he has become very anxious about his visa. He can’t sleep and is drinking and gambling on poker machines. He is suffering psychological problems and was seeing a psychologist at [a certain organisation] but [that organisation] would not book any more appointments. He doesn’t know why. It might be because he was homeless about a year and a half ago and slept on their verandah. He is not seeing a doctor now because it is difficult as he is awake all night and sleeps all day and his Medicare has expired. He is still depressed and doesn’t want to go out. He feels his brain is frozen completely. He told the Tribunal he had just been evicted from his [accommodation] because he couldn’t pay the rent. He asked Tribunal staff for food and was given packets of biscuits which he ate during the hearing. He subsequently informed the Tribunal he had become homeless again.Relationship with family The applicant claims he has limited contact with sister in [Australia]. She called him a couple of days ago and this was their first contact since his father died. He told her he was injured in [an] incident [and] she was concerned about him and has phoned him a few times since then. He claims he has not visited her since being in Australia as her husband is a rigid Muslim and sees him as a Satan because he does things which are not permitted such as drinking, fornicating and eating pork. His sister’s marriage was arranged. She wears a hijab and also disapproves his behaviour and her [child] attends an Islamic school. He never tells his sister his problems. She knows he has applied for protection and told him he should return to Pakistan. The applicant claims he has not had contact with his [siblings] in Pakistan since his father’s death either because they don’t approve of his behaviour. He [one sibling] has also cut him off because he told her she had not looked after their father [properly]. He is not in contact with [a sibling who is overseas].

Evidence

Evidence Before The Court

The applicant appeared before the Tribunal on 2 February 2017 to give evidence and present arguments. CONSIDERATION OF CLAIMS AND EVIDENCE 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. The issue in this case is whether the applicant will be harmed in Pakistan because he has rejected Islam. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.Background and nationality

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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