1512208 (Refugee) - [2016] AATA 3242

1512208 (Refugee) [2016] AATA 3242 (3 February 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1512208
COUNTRY OF REFERENCE:                  Pakistan
MEMBER:Glen Cranwell
DATE:3 February 2016
PLACE OF DECISION:  Brisbane
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 03 February 2016 at 12:46pm

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] January 2013 and the delegate refused to grant the visa [in] May 2014.
The applicant appeared before the Tribunal on 3 February 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto and English languages.
The applicant was represented in relation to the review by his registered migration agent.
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.
Refugee criterion
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.
Sections…

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 1512208 (Refugee)

Details

AGLC: 1512208 (Refugee) [2016] AATA 3242
Case: [2016] AATA 3242
Decision Date: 3 February 2016

CaseChat Overview and Summary

The case before the Tribunal involves an applicant, a Pakistani national, who has applied for a Protection visa under the Migration Act. The applicant claims to be a Shi'a Muslim of the Turi tribe from Parachinar, Pakistan. The Tribunal must decide whether the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. The central legal issues are whether the applicant meets the criteria for a refugee under the Convention and whether returning to Pakistan would pose a real risk of persecution or serious harm.

The Tribunal examined the evidence provided by the applicant, including a statutory declaration, a record of an entry interview, personal documents, and various reports. The applicant detailed the violent conflict in Parachinar involving the Taliban, highlighting the targeting of Shi'a Turi people, including bombings, shootings, and kidnappings. The applicant also described personal experiences of harassment, threats, and extortion by the Taliban, and emphasised the lack of protection from the Pakistani government. The Tribunal noted the applicant's fear of returning to Pakistan due to the ongoing persecution and the risk of being targeted for their religious and tribal identity.

In its decision, the Tribunal concluded that the applicant’s evidence sufficiently demonstrated that they would face persecution if returned to Pakistan. The Tribunal found that the applicant’s fear of being targeted by the Taliban due to their Shi'a and Turi identity is well-founded. The Tribunal emphasised the lack of protection from the Pakistani government and the ongoing violence in Parachinar, which creates a real risk of serious harm if the applicant were to return. Consequently, the Tribunal was satisfied that the applicant meets the criteria for refugee status under the Convention.

The Tribunal remitted the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act, recognising the applicant’s eligibility for a Protection visa on the basis of their refugee status. This decision underscores the importance of individual circumstances in determining refugee status and the need for a thorough assessment of the risks faced by applicants upon return to their home country.

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 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.CONSIDERATION OF CLAIMS AND EVIDENCE The Tribunal has before it the Department’s file relating to the applicant. The Tribunal has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources. This material includes:·application for protection visa;·statutory declaration of the applicant dated [in] December 2012;·record of entry interview;·copies of the applicant’s passport, police clearance certificate, birth certificate, character certificate, education certificates and identification card;·recording of interview with delegate;·statement of applicant dated 29 April 2015;·representative’s submissions dated 30 April 2015;·bundle of newspaper and other reports;·representative’s submissions dated 25 January 2016;·copy of the applicant’s identity card. The applicant claims to be a Pakistani national. Based on the copy of his passport, the Tribunal finds that Pakistan is his country of nationality for the purposes of the Convention and also his receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act. The applicant’s claims are summarised in his statutory declaration provided to the Department:I make this Statutory Declaration in support of my application for a Protection visa. I am [an age] year old citizen of Pakistan. I am a Shi'a Muslim. I am a Pashtun of the Turi tribeI was born in Parachinar and lived there my entire life except for a period of 2 and a half years when I went to study in Parachinar [Peshawar]. My family continues to live in Peshawar [Parachinar]. My father passed away in [year] of a [medical condition].There is a war in Parachinar. It started in 2007. The Taliban wanted to use Parachinar as a safe haven for themselves and so that they could travel easily between Afghanistan and Pakistan. The Shi'a Turi people in Parachinar refused to allow the Taliban to take over and we have been trying to defend our city and ourselves since this time.The Taliban hate Turi people. They know that we are against them and they think we are criminals because we will not support them and because they think we are kafir. The Taliban want to kill all Turi Shi'a people.I have never been employed. I have studied since I was about 7 years old and have been able to complete my [course]. When I finished college I went to live in Peshawar in order to complete my [further course] between about [year] and [year].Peshawar was very dangerous. There were many Shi'a students captured by the Taliban and never seen again. Living there was like being in detention. It was not safe to leave the hostel and so I did not go out unless I had to.Because of the war the road out of Parachinar is very dangerous. There is only one main road and it goes to Peshawar. It has been blockaded by the Taliban. It is very dangerous for Turi Shi'a people on the road as we are targeted and killed by the Taliban. The Taliban murder Shi'a people and throw acid into the faces of Shi'a female students who travel on the road. You never know if your life will be taken.When I was Peshawar I travelled back once a year to visit my family. The first time the trip took about 15 hours because I had to travel using a government convoy. This was very frightening. I was abused by people on the road for being Shi'a and I was terrified that we would be attacked as other government convoys have been.In about July 2010 I was travelling home back from Peshawar. The road was blocked by the Taliban and so I was forced to travel through Afghanistan. When I was near [an Afghan town] I was captured by the Taliban with about three car loads of people. I think there were about [number] people who were captured. I was held by the Taliban for about 5 hours. They verbally abused me and called me swear words. They said I was not a true Muslim. They terrified me by firing their guns into the air. I was finally released when I paid them 50,000 rupees as they demanded. 444In about 2011 when I was [in] Peshawar I was given a UNHCR Ration Card. The Ration Card is usually given to people who do not havee homes and are displaced however the government labelled Parachinar as war [affected] area and so people from Parachinar were able to obtain a Ration Card as well. Once a month I would go the Ration Centre to collect food and groceries. On the second time I went to the Ration Centre some people who looked liked Taliban stopped me as I was going back to my hostel at the [college]. They threatened me. They called me a Shi'a `kafir' which means infidel. They said you are from Parachinar and you are not Muslim. They said that if I dared to return to the Ration Centre they would kidnap me and kill me. I was terrified and never went back.I returned to Parachinar after I finished my study in [year].The situation in Parachinar is very violent. There are many bombings, shootings and kidnappings. Shi'a people cannot practice our religion freely and without fear. Every time we go to the mosque especially for Muharram, we are expecting to be killed by another attack.Because the Taliban have control over the only main road in and out of Parachinar and so there is a shortage of food and other essentials like medical supplies. My family and I could not move outside of Parachinar safely in order to obtain food and medicine or medical treatment. The areas surrounding Parachinar are under Taliban control. The Taliban attack people who are trying to bring supplies into Parachinar. Shi'a and Turi people in Parachinar are very isolated and are denied the basic things we need in order to survive.On about [a date in] February 2012 there was a bomb blast which happened in Parachinar city in Khar Bazaar. I was very close to the blast however I was lucky and I was not injured. I went to help people who were injured. There were many people who had lost limbs. There were people without hands and legs. There was a lot of blood and screaming. This incident affected me very badly as I was only a few seconds away from being hurt badly or killed. I have not been able to stop thinking about this. I realised that if I stayed in Pakistan any longer I would be killed.If I am forced to return to Parachinar I have no doubt that I would be killed. Shi'a and Turi people are being targeted in bomb blasts and shootings. If I was forced to return I could not practice my religion without fear of being killed. I recently practiced Muharram in Melbourne and this has been the first time in my life that I have been able to do this without fear of being killed.I could not move freely if I was sent back. I could not move outside without risking my life. I could not access adequate food or medication and I could not travel safely outside of Parachinar in order to get medical treatment. Parachinar is a small agency and not all essential services are available there. I have studied for most of my life. The Taliban regularly kidnap and kill students. They do not like people being educated unless it is in one of the Taliban's religious schools. The Taliban in particular do not like Shi'a Turi people being educated. The Taliban know we are against them and think that we support the west. They think that schools are western and so they attack educated people and students because they see us as traitors.The goverment of Pakistan has shown that they cannot protect me. They have not done anything to protect Shi'a and Turi people and there is nothing to say that this situation will change. Even during the last Ashura ceremony there were many bomb blasts throughout Pakistan attacking Shi'a people. The government could not do anything to stop this.I cannot relocate anywhere in Pakistan including Islamabad. I am Shi'a. This will not change if I am in Parachinar, Islamabad, Karachi or anywhere in Pakistan. Shi'a people are targeted, attacked and killed everywhere in Pakistan. For me the situation is worse because I am Turi. Everyone knows that we are against the Taliban and we have been labelled as traitors. We have been linked to the west for this reason. As a Turi person, I am hated by the Taliban and their supporters more than other Shi'a people. My name shows that I am Shi'a. My accent and my identity card show that I am from Parachinar. It will be easy for anyone in Pakistan to know that I am Turi Shi'a from Parachinar and I am scared I will be at risk of being hurt and killed for this reason anywhere in Pakistan.I cannot move anywhere where there are not many Shi'a people however these are the areas that are being targeted by the Taliban and other anti Shi'a groups. As soon as Shi'a people flee to one area and make a community there, that area is targeted. There is therefore nowhere I could live safely.The security situation throughout Pakistan is very bad. Even in Islamabad where the government is meant to be in control, they are being attacked by the insurgents. There is no area in Afghanistan which is safe for me to relocate to.I have never been employed. I do not know how I would find work. I do not have any family outside of Parachinar and I have no familiarity with Pakistan outside of Parachinar and Peshawar. I will have no one to protect or support me and I do not know the country at all. Turi and Shi'a people find it difficult to obtain work and housing. People do not want to assist us. I will need to show my identity card in order find work and a house and I will be recognised as Shi'a Turi. We are discriminated against throughout Pakistan and this will make it more difficult for me to be able to survive.For the reasons I have explained, I respectfully ask that Australia provide me with protection.[bracketed portions are handwritten additions appearing on original document]

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.Glen CranwellMember

Ratio Decidendi

Legal Principle Established

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