1604429 (Refugee)

[2019] AATA 1122

1604429 (Refugee) [2019] AATA 1122 (13 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1604429/1604430 (combined)

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Nora Lamont

DATE:13 May 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and

(ii)that the other applicants satisfy s.36(2)(b)(i) ) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 13 May 2019 at 8:49am

CATCHWORDS
REFUGEE – protection visa – Pakistan – social group – Burki ethnicity – health worker – polio vaccinator – religion – Sunni Muslim – well-founded fear of persecution from Taliban – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 91, 499
Migration Regulations 1994 (Cth), Schedule 2

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 and Border Protection to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2.    The applicants who claim to be citizens of Pakistan applied for the visas on 15 April 2014 and the delegate refused to grant the visas on 23 March 2016.

3.    The applicants appeared before the Tribunal on 22 October 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto (Pakistan) and Urdu and English languages.

4.    The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

5.    This is a combined decision with AAT file 1604430 who is the wife of this applicant AAT File 1604429. The Tribunal did combine the two cases and reach one decision on both applications.

CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. 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).

8.    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.

Complementary Protection criterion

9. 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’).

1. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or 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.

2. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

   Section 499 Ministerial Direction

3. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of 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

4. The issue in this case is whether Australia has protection obligations in respect of the applicant.  For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

5. The applicant was born on [date] in [Town 1] South Waziristan Pakistan. He is a member of the Burki tribe and is a Sunni Muslim. He is married with a wife and small child. The applicant arrived in Australia [in] March 2013 on a [temporary] visa. He applied for a protection visa on 15 April 2014.

6. Based on a copy of the passport of the applicant, which was provided to the Department and to the Tribunal, the applicant’s oral and written evidence and in the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a citizen of Pakistan and assessed his claims against that country. There is nothing before the Tribunal to indicate that the applicant has a right to enter and reside in a safe third country.

   Claims

   16.      The applicant’s detailed written claims as summarised by the delegate in their decision record are as follows: [1]

   [1] CLF[number]

   ·The applicant said that he is a member of a minority tribe (Burki) and the Taliban (who are from the Meshud tribe) ‘do not spare’ them.

   ·In 2007, the applicant and his family had to flee their area in South Waziristan by foot because they were told to leave by the Pakistani Army who had commenced a military campaign against the Taliban and foreign fighters in their area.

   ·After three days walking they arrived in [District 1] where they stayed with relatives and then moved to stay with other relatives in [City 1]. Then, they moved to Karachi.

   ·In November 2011, the applicant began working for the [polio] vaccination campaign as he wanted to use his education for the benefit of humanity and nobody wanted to work in ‘this area’ at the time due to fear of the Taliban.

   ·The applicant later managed to obtain this work for his spouse and they travelled to many areas off the Khyber Agency to give vaccinations to children.

   ·After the applicant was promoted to [a certain position] and became more active people began finding out about the work he was doing.

   ·The Khyber Agency people who found out that he was from Waziristan and told the Taliban in Waziristan and Karachi that he was giving vaccinations.

   ·In August 2012, the applicant began receiving threats from the Taliban through elders and over the telephone. The applicant’s spouse received threat letters.

   ·At first they spoke to him politely asking him to leave work and then they became harsher as he continued his work. The applicant’s family started pressuring him to stop when they too received threats.

   ·In December 2012, the applicant was forced to quit his job. The reason for this was because his best friend [Mr A] who worked with the applicant was killed at a shop near to where he had earlier met with the applicant. As other polio workers had been killed and the applicant’s profile was increasing he thought that he too could be killed

   ·In December 2012, the applicant was forced to live in different areas in order to escape the Taliban who he knew would pursue him.

   ·The applicant escaped the country in March 2013.

   ·The applicant’s spouse also received threats due to the same work.

   ·The applicant could not attend the birth of their child because of the fear he holds (although his spouse had significant health complications).

   ·The applicant believes that the Taliban will kill him if he returns because he has not followed ‘their views and their way of life’ and instead has taken part in the polio vaccinations program and his time spent abroad in Australia will confirm their beliefs that he supports the west.

   ·The applicant believes that the Taliban think that ‘Westerners have called’ him to Australia and that he supports the West.

   ·The Taliban are also personally against the applicant because his father gave his spouse’s father [an amount of money] instead of a maximum 70,000 Rupees. Through their community the Taliban discovered this and called the applicant to [City 2]. The applicant did not go as he was afraid. After he left for Australia the Taliban called and blamed him for the overpayment. They will immediately find, abduct and kill him if he returns to Pakistan.

   Tribunal Hearing

   17.      At the Tribunal hearing the applicant said he was from a tribal area in South Waziristan and has [siblings] who are living in Karachi. His father died in 2018 and his mother is living with his [relative] in [South] Waziristan as she has to get her husband’s pension and is required to live there.

   18.      When the applicant was in year [grade] in [year], the Taliban started a conflict with the government and the government told the applicant’s family and everyone in the tribal area to get out and flee. They had to flee on foot and they could not take anything with them. They stopped at a few locations and ended their journey in Karachi.

   19.      Once they were in Karachi they rented a house. The applicant’s father continued to get paid even though he was not working as he worked for the government and the schools were closed in his home area. From 2007 until 2011 the applicant was [studying]. In 2011 he got a job with [an agency] part time providing polio vaccinations and [other] assistance.

   20.      The applicant explained that his brother was targeted at the shops for being a Burki and he was killed in 2003. The people living around them were Mehsuds. The Mehsud people were taking over their land and killing Burki’s. Two other Burkis were killed in other shops and two (along with his brother) were killed in another retail shop. He had been doing the shopping when he was killed. He was only [a certain age]. There was no police in their area so his father could not do anything about it. There was a local system that was in place but they could not do anything.

   21.      The Burki people had been in the area for thousands of years and they had their own customs and language and they were discriminated against by the Mehsuds. A clan of Mehsuds captured land and took it by force in 1990. The dispute is still going on in the area. The area is still closed they do not have a home there anymore as the Taliban took over.

   22.      In Karachi the Taliban was there but they were not visible as they were in his home area. However, the applicant said that Burkis were targeted everywhere including in Karachi. The culture and language of the Burki people was present in Karachi and this made them a target of the Taliban. When the applicant was married in 2012 his father gave his wife’s family [an amount of money] instead of the maximum 70,000 Rupees that the Taliban mandated and then the Taliban started calling him and saying he had broken their law and he was in a lot of trouble. The Tribunal asked the applicant how it was that the Taliban knew he had given [an amount of money] instead of 70,000 Rupees which was what the Taliban mandated. They have a strong network of informers the applicant replied. The applicant said that there were a lot of people at the wedding and they would have known about the dowry and anyone of them could have told the Taliban. The Tribunal asked why not just stick to the 70,000 Rupees? The applicant said they don’t want to be told by the Taliban what to do. They don’t want to follow their rules.

   23.      The Taliban in Karachi was controlling everyone and they were trying to impose their will on everyone in the neighbourhoods in Karachi. Sometimes they would post letters; they abducted people and asked for ransoms. In 2012-2013 the Taliban was in complete control and after that the military took some control but the Burki people are afraid of the Taliban and would not go to the police. The Taliban called him several times and asked him to come to Sharia court and answer to the dowry incident but he refused and he left his home.

   24.      His father knew a man named [Mr B] and he was doing good things in the community and he suggested he get the applicant a job working in with the polio vaccinations. The applicant then began casual work whilst at school going on vaccination campaigns. His work was in poorer areas around Karachi. He was working as a vaccinator and he was finding internally displaced people and giving vaccinations. In total he worked [a number of] days a month, they would map the area then go in and vaccinate. He was helping with whatever they needed.

   25.      The applicant’s wife was working with the vaccinations as well. They went to Khyber Pakhtunkhwa and worked with other agencies as [well]. The Taliban found out he was working doing vaccinations and they started ringing him on the phone telling him to stop doing this type of work. The Tribunal noted that they had a letter from the polio vaccinators indicating that the applicant did work as a polio vaccinator; he was able to get it through a friend where as previously he could not get the letter to give to the Department as it was too dangerous.[2] His wife was also threatened by the Taliban as working as polio vaccinators was seen as anti-Islamic and part of a western conspiracy.

   [2] AAT Folio page 122

   26.      The applicant relayed that one of his friends [Mr A] who was a vaccinator was killed when he left the applicants home. He was riding a motorbike and he was shot.

   27.      The applicant was working as a polio vaccinator for around 12 months and then he decided to come to Australia on a [temporary] visa. He had to leave his home area and was living with friends and family as he was being targeted by the Taliban.

   Findings

   28.      The applicant has provided a statutory declaration and a submission from the applicant’s representative. The Tribunal relied on the written material and the oral evidence provided by the applicant and his representative in making the decision that the application should be remitted.

   29.      Accordingly, the Tribunal accepts the following claims made by the applicant:

   ·The applicant is a Burki from South Waziristan who was driven from his home by the Taliban and ongoing warfare in his home region in 2007 and he was displaced to Karachi.

   ·The applicant’s brother was killed by the Taliban when he was [age]

   ·The applicant was employed as a casual polio vaccinator and worked [a number of] days a month providing [support] as well as vaccinations.

   ·That the applicant’s wife also provided polio vaccinations.

   ·That the Taliban targeted the applicant for providing polio vaccinations.

   ·That the Taliban targeted the applicant for his wedding dowry

   ·That the Taliban targeted the applicant for being a Burki.

   ·That the Taliban targeted the applicant for his wedding dowry

   ·Given these findings, the Tribunal has gone on to consider if the applicant faces a well-founded fear of persecution on return to Pakistan.

   Membership of a particular social group

   30.      The Tribunal finds that the applicant is a member of a particular social group under the Refugee Convention:

   ·Polio vaccinator in Pakistan /Polio vaccinator of Burki ethnicity/Polio vaccinator from South Waziristan

   31.      DFAT reports that non-government health workers face a moderate risk of violence from militant groups, and whilst attacks can occur anywhere in Pakistan attacks are more common where security is worse, including Khyber Pakhtunkhwa, the former FATA and Balochistan.[3]

   Further, DFAT states

   ‘Pakistan is one of three countries in the world where endemic transmission of wild poliovirus continues to occur, and the poor security environment across the country affects health workers: targeted killings of polio health workers is common (international media estimates at least 70 polio workers were killed between 2011-2015 alone) and continued in 2018.[4]

   [3] DFAT Country Information Report Pakistan 20 February 2019 page 47.

   [4] DFAT Country Information Report Pakistan 20 February 2019 page 12

   32.      The applicant was sufficiently able to relay to the Tribunal his background working as a polio vaccinator and how he came to get the position as well as how his wife came to be working also as a polio vaccinator. The Tribunal accepts that the applicant and his wife were both working as polio vaccinators and as such they were both threatened by the Taliban. As recently as April 2019 polio vaccinators were continuing to be killed whilst out working in Pakistan.[5]

   [5] NY Times Polio Vaccinator Shot and Killed in Pakistan 25 April 2019 nytimes.com

   33.      The question then before the Tribunal is will the applicant face a real chance of serious harm based on his membership of the particular social group Polio vaccinator in Pakistan/ polio vaccinator of Burki ethnicity/polio vaccinator from South Waziristan. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

   34.      Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

   35.      For the reasons that follow the Tribunal finds that the applicant faces a well-founded fear of persecution from the Taliban in Pakistan as a member of the above social groups.

   36. The applicant has been repeatedly persecuted by the Taliban since 2007 and for several reasons. First it was being forced from his home area due to the Taliban, being targeted for providing polio vaccinations, and for his wedding dowry. The applicant received consistent threats and phone calls from the Taliban whilst in Karachi. The persecution the applicant suffered was uncontrollable by the authorities in Pakistan and the government was unable to protect the applicant from this persecution. Therefore, the Tribunal finds, that applicant is persecuted as a member of a particular social group and therefore satisfies the criterion set out in s.36(2)(a).

   State Protection

   37.      With respect to state protection, the Tribunal notes that DFAT reports:

   ‘Pakistan’s legal framework provides for state protection of people’s property, lives, places of worship and religious beliefs. However, DFAT assesses that state protection in Pakistan is limited due to resource shortages, corruption, socio-economic factors at the individual level, and political will.[6]

   Given the above findings, the Tribunal finds that the applicant will not be afforded state protection.

   Relocation

   [6] DFAT Country Information Report Pakistan 20 February 2019 page 62

   38.      The Tribunal is also not satisfied that the applicant and his family can safely relocate to another part of Pakistan to escape the harm and fear they face in their home areas of South Waziristan and Karachi.

   Conclusion

   39.      For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations. Therefore the first named applicant satisfies the criterion set out in s.36(2)(a).

   40.      The Tribunal is satisfied that the other applicants are persons in respect of whom Australia has protection obligations for the purposes of s.36(2)(a). The Tribunal is satisfied that the applicant’s wife and child are members of the same family unit as the first named applicant for the purposes of s.36(2)(b)(i).

   41.      As such, the fate of their application depends on the outcome of the first named applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa are met.

   42.      The Tribunal remits the matter for reconsideration with the following directions:

   a.that the first named applicant satisfies s.36(2)(a) of the Migration Act; and

   b.that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

   Nora Lamont

   
   

   Member