1515694 (Refugee) [2019] AATA 6778 (26 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1515694
COUNTRY OF REFERENCE: Pakistan
MEMBER:Dr Colin Huntly
DATE:26 September 2019
PLACE OF DECISION: Perth
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 26 September 2019 at 11:03am
CATCHWORDS REFUGEE – protection visa – Pakistan – religion – Shia minority – ethnicity – Pashtun tribe – educated professional – attacks and threats by extremist groups – adverse information – decision under review remitted
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 and Border Protection 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 on 28 July 2014 and the delegate refused to grant the visa on 5 November 2015.
This matter was initially constituted to Member Goodier. The applicant appeared before the Tribunal (as previously constituted) on 10 February 2017.
On the non-reappointment of Member Goodier to the Tribunal, the review application was ultimately reconstituted to Member Huntly, who held an initial hearing on re-constitution on 3 April 2018. This hearing was adjourned pending applicant submissions. The resumed hearing was ultimately held on 26 August 2019. The applicant attended all hearings with the assistance of his successive nominated migration agents, to give evidence and present arguments. The Tribunal was assisted in the conduct of the hearings by an interpreter in the Pashto and English languages.
Country of reference
According to the delegate’s decision record, the applicant’s movement record and the applicant’s Departmental file, the applicant arrived in Australia [in] February 2014 as the holder of a [temporary] visa. On 25 July 2014, the applicant applied for a Protection visa. The Tribunal has had regard to the Departmental files upon which its finding as to the applicant’s identity was made, in particular, the “BiometricIdentification Test: Legislative script-Adult” declaration of an authorised officer dated 28 August 2014.
On the basis of the above evidence, the Tribunal…
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.
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AGLC
1515694 (Refugee) [2019] AATA 6778
Case
[2019] AATA 6778
Decision Date
CaseChat Overview and Summary
The Administrative Appeals Tribunal considered the case of a Pakistani national seeking a protection visa. The applicant, who identified as a Shia Pashtun and an educated professional, claimed to have faced attacks and threats from extremist groups in Pakistan. The Tribunal was tasked with reviewing a previous decision concerning the applicant's eligibility for protection.
The central legal issue before the Tribunal was whether the applicant had established a well-founded fear of persecution for a Convention reason, specifically on the grounds of religion or membership of a particular social group, given the prevailing security situation in Pakistan. This required the Tribunal to assess the country information regarding the prevalence of terrorism, the effectiveness of counter-terrorism operations, and the specific risks faced by individuals belonging to minority religious or ethnic groups.
The Tribunal's reasoning involved a detailed examination of country information, including reports on Pakistan's security operations such as Zarb-e-Azb and Radd-ul-Fasaad, and the National Action Plan (NAP). While acknowledging that these operations had led to a reduction in overall terrorist attacks and an increased sense of security in some areas, the Tribunal also noted that specific groups, including the TTP and ISIL, remained active and posed a threat. The Tribunal's decision to remit the matter indicated that the previous assessment of the applicant's claims in light of this country information was insufficient.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The Tribunal further notes the following extract of country information:[6][6]DFAT Country Information Report Pakistan (20 February 2019) at 19.Security Operations 2.75.The Pakistan armed forces have launched several security operations in Pakistan due to terrorism and the volatile security environment. Operation Zarb-e-Azb commenced in June 2014 and targeted terrorist groups, including the TTP, in North Waziristan (NWA), former FATA. Zarb-e-Azb spread to other parts of the former FATA and Khyber Pakhtunkhwa, and involved the Rangers, a paramilitary security force, and intelligence operations in Balochistan and Karachi to target terrorist, separatist and criminal groups. 2.76.In December 2014, the APS attack led to the NAP, which, together with Operation Zarb-e-Azb, formed a civil-military effort to combat terrorist, separatist and criminal groups across Pakistan. The NAP ended Pakistan’s unofficial moratorium on the death penalty, established military courts to try suspected militants, targeted sources of finance for militant organisations, took measures to restrict hate speech, and committed to policy reforms, particularly in the former FATA. In 2018, the Government announced its second National Security Policy, and the Ministry of Interior is reportedly preparing NAP-2. 2.77.Observers credit Operation Zarb-e-Azb, its successor Radd-ul-Fasaad, and the NAP with a significant reduction in the number of violent and terrorism related attacks in Pakistan. In 2018, up to 262 reported terrorist attacks killed 595 people. This is a significant decrease from 2013, when the terrorist death toll included 3,000 civilians and 676 security force personnel.2.78.In February 2017, the military announced Operation Radd-ul-Fasaad to succeed Operation Zarb-e-Azb in response to a series of separate attacks between 13 and 16 February 2017 across Lahore, Quetta, and Sehwan, which killed at least 100 people and left several hundred injured(JuA’s Ghazni Campaign). Radd-ul-Fassad expanded the role of the military in counter-terrorism operations in Punjab. In July 2017, the military launched operation Khyber-IV in the Rajgal Valley, targeting Lashkar-e-Islam, Jammatul Ahrar (JuA) and the TTP. Khyber-IV also targeted ISIL connections across the border with Afghanistan’s Nangarhar province. 2.79.Local observers, including officials, in Khyber Pakhtunkhwa also reported a trend of increased security, a reduction in reported killings, and reduced fear within the community in 2018. Residents of Peshawar reported an increased sense of security in the evenings due to the enhanced military presence. 2.80.In the lead up to the 2018 election (May to July), 19 terrorist attacks targeted political leaders, workers and election gatherings, rallies and offices, an 87 per cent decrease from the 148 attacks recorded prior to the 2013 elections (March to May). Nevertheless, the lethality increased, with 215 deaths perpetrated by ISIL and the TTP during the 2018 election campaign, compared to 179 deaths perpetrated by nationalist groups, the Taliban and other groups in 2013. Incidents of election related political violence declined from 80 incidents in 2013 (March to May) to 13 in 2018 (May to July).