1606607 (Refugee)

1606607 (Refugee) [2017] AATA 2871 (13 November 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1606607
COUNTRY OF REFERENCE:                  Tajikistan
MEMBER:Christopher Smolicz
DATE:13 November 2017
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.
Statement made on 13 November 2017 at 2:26pm

CATCHWORDS
Refugee – Protection Visa – Tajikistan – Religion – Baha’i adherents – Interfaith marriage – Fear of persecution – Islamic fundamentalism – Forced divorce – Forced conversion to Islam – Lack of serious harm
LEGISLATION
Migration Act 1958, ss 5(1), 91R, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIBP v WZAPN [2015] HCA 22
WZARV v MIBP (2015) 254 CLR 610
SCAT v MIMIA [2003] FCAFC80
MIAC v SZQRB (2013) 210 FCR 505
MIAC v SZQRB [2013] HCATrans 323
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 applicants Protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants who claim to be citizens of Tajikistan, applied for the visas [in] October 2014 and the delegate refused to grant the visas [in] April 2016.
The applicants appeared before the Tribunal on 10 October 2016 to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Russian and English languages.
The applicants were represented in relation to the review by their registered migration agent.
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.
Issue in this matter is whether the applicants meet the refugee criteria or come within Australia complementary obligations because
· they are followers of the Baha’i faith who fear religious persecution in Tajikistan
· the first named applicant (the applicant) fears harm in Tajikistan from her husband’s Islamic family who do not approve of her marriage or her Baha’i religion.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant is a married [age] year old woman. She obtained [qualifications] in Tajikistan and is a [occupation].
She travelled to Australia with her son (the second named applicant) who is [age] years old. The applicants were born in [Tajikistan]. They travelled to Australia as holders of passports issued by the Republic of Tajikistan. They arrived in Australia [in] 2014 as holders of [temporary visas]. Their visas were valid to [a time in 2015]. The applicant travelled to Australia to visit her [relative] who is an Australian citizen.
Prior to arriving in Australia the applicant was living in [City 1, in Country 1] for 12 years with her husband and two [children]. Her husband and [their other child] did not travel to Australia.
The applicant and her husband have been working for [various companies] in [City 1]. The second named applicant attended [school] in [City 1]. The applicant’s [other child] ([name]) remained in [Country 1] with [Mr A] [to focus on their studies].
The applicant met her husband ([Mr A]) at [location] in Tajikistan. [Mr A]’s family follow the Muslim faith and did not approve of their relationship because the applicant was a follower of the Baha’i faith. They married in 1996 and in 1998 [Mr A] converted to the Baha’i faith. [Mr A’s] father had passed and away and his mother reluctantly agreed to support the marriage. [Mr A’s] [siblings] were opposed to the marriage.
The applicant completed an “Application for an applicant who wishes to submit their own claims for protection” (form C) in which she detailed her claims. The second named applicant completed an “Application for a member of the family unit” (form D) who does not have their own claims for protection but is included in the application. The agent confirmed at the hearing the second named applicant was relying on his mother’s claims for protection. The Tribunal notes, however that at the hearing the second named applicant raised claims relating to religious persecution based on his fear of harm due to the rise of Islamic fundamentalists in Tajikistan. He also claimed that his [relatives] in Tajikistan were influenced by Islamic fundamentalism. The migration agent also claimed that the second named applicant would be unable to live in Tajikistan because he left the country [at a young age]. The Tribunal has considered these claims below.
Summary of substantive claims
The applicant left Tajikistan in 2002 with her [various family members including] her husband and [children] and travelled to [Country 1] for the following reasons:
First, the Baha’i community living in Tajikistan were being persecuted by the Islamic fundamentalists. In support of this evidence the Tribunal was referred to media reports confirming the death of members of the Baha’i community who were killed because of their religious beliefs in 1999 and 2001.
Secondly, Baha’i people of [Country 2 descent] were being spied and followed, including the applicant and her family.
Thirdly, her husband’s family are Muslim. [Mr A has a number of siblings] who were opposed to the marriage and the Baha’i religion. Her husband does not want to argue with his [siblings]. [A number] of the [the siblings] have travelled to [City 1], where they create conflict in the family and attempt to set her [children] against the Baha’i faith.
At the hearing the applicant provided a detailed account of the background circumstances which lead her and her family to flee Tajikistan. The applicant said that on 3 December 2001, a member of the Baha’i community (Mosadegh Afshin Shokoufeh) was killed in Tajikistan. The applicant said that [he] was a member of the local Baha’i community. The applicant said that when she found out about the murder she [details of reaction].
She met women [who] had witnesses the murder. The women told her what had happened and described the offender but did not want to get involved out of fear. The women asked the applicant not to disclose her identity to the police. The applicant said she went to the police and reported what she had heard. [Details deleted].
The Tribunal asked the applicant to explain how her account of an incident which occurred about 17 years ago is relevant to her fear of returning to Tajikistan. The applicant said that the incident is not connected in any way with her fear of returning to Tajikistan now but it is an explanation of why she left Tajikistan and travelled to [Country 1] in 2002.
The applicant said that members of the Baha’i community can now live freely in Tajikistan but she does not want to return because her husband’s family have radical views and there are fundamentalist Muslims in society.
The applicant said that [Mr A]’s [siblings] threatened to separate her family and take the children. They want [Mr A] to divorce her.
The applicant claims she has experienced harm in Tajikistani in the form of moral threat. [Mr A]’s [siblings] disrespected her dignity, insulted her with offensive words in the presence of her [children]. The applicant said that she tried to explain the Baha’i faith to her husband’s [siblings] but they would not listen and did not understand.
In her statement of claims the applicant declared that her husband’s [siblings strictly adhere to traditional Islamic customs] and have attempted to make her [wear] the hijab. They want her children to have an Islamic education and live according to Islamic law and have a Muslim marriage. The applicant is worried about her children and does not want them to live in a conflict situation if they return to Tajikistan.
The Tribunal questioned the applicant about her Baha’i faith. The applicant said that there is a small Baha’i following in Tajikistan. Her grandfather originated from [Country 2] and was a Baha’i follower. Her mother converted when she married.
The applicant said that once the Soviet occupation ended in Tajikistan [about 1991] the Baha’i followers were able to engage in their religious beliefs. The applicant said that in 1992 she was able to travel to [Country 3] to study the Baha’i faith. In 1994 she travelled to [Country 4] with a Baha’i [group] to take part in “Pioneering” which involved introducing the Baha’i faith to other [countries] in accordance with plans developed by the Universal House of Justice, in Haifa, Israel.
The applicant said that she and her son participate in Baha’i meetings in [Australia] and are well integrated into the Baha’i community.
The Tribunal questioned the applicant if people of the Baha’i faith experience persecution in Tajikistan. The applicant declared that Baha’is in Tajikistan are now able to live freely and, can take part in regular religious activities. The reason she does not want to return to Tajikistan is because she fears the attacks from [Mr A]’s relatives. She fears her children will be deprived of growing up in the Baha’i spirit if they return to Tajikistan.
The Tribunal asked the applicant if she was able to practice her Baha’i faith in [Country 1]. The applicant said she personally has not experienced any persecution in [Country 1] because of her Baha’i faith. Her children were able to attend Baha’i classes, activities and meetings in [Country 1].
At the hearing the Tribunal referred the applicants to the country information which was referred to in the delegate’s decision. The information states that while Tajikistan severely restricts religious freedom and there has been anecdotal evidence of religious minorities being criticised about their practise, Baha’is are able to freely practice their faith in Tajikistan.
The Tribunal noted that the delegate was not able to locate any country information to indicate that Baha’is experience religious persecution such as the events which occurred in 1999 and 2001. The Tribunal noted that country information reports suggest that fundamentalist Muslims are being targeted by the Tajikistan authorities and not people of the Baha’i faith. The applicants did not dispute the country information. The applicants confirmed that they do not fear the authorities in Tajikistan and they would continue to practice their Baha’i faith if they returned.
The Tribunal asked the applicant to provide an example of the serious harm she experienced from her husband’s family. The applicant said that her husband’s family would denigrate her faith in front her friends and neighbours. She said this happened in Tajikistan before 2002. The applicant said that she and her family have never been physically threatened by her husband’s family. She only experienced moral threats. She has never had to call the police. She does not fear physical violence.
The Tribunal noted that her husband’s family had visited her when she was living in [Country 1]. The applicant said that some of her husband’s [siblings] and their children had stayed with her on [a number of] occasions when they would visit [Country 1]. The applicant said that her husband was expected to host his [siblings].
The Tribunal again asked the applicant to explain what she fears her husband’s family would do to her if she returned to Tajikistan in the future. The applicant said there are only [a number of siblings] now and she was afraid that they would force her to divorce her husband.
The applicant said that she did not want to return to Tajikistan because there was no one left. The Tribunal asked the applicant if she would have the support of the Baha’i community in Tajikistan. The applicant agreed that the Baha’i community would be able to provide her with assistance. After further questioning the applicant said that her husband has since returned back to live in Tajikistan. The applicant said that after she departed [City 1] it was too expensive for her husband to live alone in [City 1] alone so he travelled to [another country] and then returned to Tajikistan.
The Tribunal questioned the second applicant about his fears of returning to Tajikistan.
The second named applicant said he fears that if the current government were no longer in power and there was no support from Russia, fundamentalist Muslims could take over and make life difficult for Baha’i people. The second named applicant said that he currently does not fear persecution in Tajikistan because of his Baha’i faith. He confirmed that the current authorities don’t pose a threat to the Baha’i community and are pursuing fundamentalist Muslims. He was aware for example that Muslim females were prevented from wearing hijabs.
The second named applicant said that since he has arrived in Australia he has been able more deeply and openly engage with his Baha’i faith. He claims Tajikistan is a majority Muslim country and he feels that there is societal discrimination. For example, the second named applicant said that he has little in common with his [relatives] in Tajikistan because they are supporters of the fundamentalist Islam. He does not fear his [relatives] and they have come to visit him in [City 1].
The second name applicant said he travelled back to Tajikistan on a few occasions for [a relative’s] funeral and for a medical procedure.
The Tribunal referred the applicants to written submissions prepared by their migration agent dated 21 September 2017 where claims were made about honour killings in Muslim families and a fear of harm due to apostasy in Tajikistan. Both applicants confirmed that the submissions about honour killings and apostasy made by their agent were not relevant to their claims and should not have formed part of the submissions to the Tribunal.
Findings
The Tribunal finds that the applicants travelled to Australia on passports issued by the Republic of Tajikistan. The Tribunal accepts that the applicants’ [Country 1] visas have since expired. The Tribunal finds the applicants do not have an existing right to enter or reside in a safe third country including [Country 1]: s.36(3).
The Tribunal finds that the applicants are citizens of Tajikistan and Tajikistan is the country of nationality for the purpose of the refugee criteria and the receiving country for the purpose of assessment of their complementary protection claims.
The Tribunal accepts that they are followers of the Baha’i faith. The Tribunal has however considered the applicants’ claims and does not accept that there is a real chance / real risk that they will face serious harm or significant harm if they return to Tajikistan in the reasonably foreseeable future.
The Tribunal accepts that in the period 1999 to 2001 there were targeted killings of Baha’i community leaders in Tajikistan and the Baha’i community did experienced persecution based on their religious beliefs.[1]
[1]Baha’is in Tajikistan killed for their beliefs. Baha’i World News Service, 5 March 2002 >
The Tribunal accepts the applicant’s claims [regarding] one of the Baha’i community members (Mosadegh Afshin Shokoufeh) who was killed in October 2001 because of his religious beliefs.^[2]The Tribunal accepts that in 2002 the applicant and her family traveled to [Country 1] because they feared religious persecution in Tajikistan. The Tribunal finds that the applicants subsequently lived and worked in [Country 1] from 2002 to 2014 where they were able to freely practice their faith.
[2] >
Country information referred to in the delegate’s decision confirms that Tajikistan severely restricts religious freedom and there has been an anecdotal evidence of religious minorities being criticized about their practices.[3] The delegate found however that Baha’is are able to freely practice their faith. The delegate could not locate any country information to indicate that Baha’is are experiencing religious persecution such as the events which occurred in 1999 to 2001. The delegate noted that the Tajikistan authorities are determined to eliminate outward displays of dangerous, imported aspects of Islam.[4] The delegate had regard to the country information and concluded that if the applicant was to return to Tajikistan she would have no restrictions enforced on her by authorities and could continue to practice as a Baha’i. The Tribunal discussed the country information with the applicants at the hearing. The applicants did not dispute the information.
[3] 2014 Report on International Religious Freedom Tajikistan US Department of State, 14 October 2014
[4] “As Tajikistan Limits Islam, Does it risk Destabilisation?” Radio Free Europe/Radio Liberty (RFE/RL) 1 December 2015 >
The Tribunal has had regard to the following more recent information on Religious Freedom in Tajikistan prepared by the US Department of State and finds that it is consistent with the information referred to in the delegate’s decision:
The constitution says religious organizations shall be separate from the state and “shall not interfere in state affairs.” An amendment to the constitution, passed in May, bans political parties based on religion. The law restricts Islamic prayer to specific locations, regulates the registration and location of mosques, and prohibits persons under 18 from participating in public religious activities. The government Committee on Religious Affairs (CRA) controls all aspects of religious life, including approving registration of religious associations, construction of houses of worship, participation of children in religious education, and the dissemination of religious literature. The government continued to take measures to prevent individuals from joining or participating in what it considered to be “extremist” organizations, arresting or detaining over 100 persons, primarily for membership in banned religious groups, including Salafis, the Muslim Brotherhood, the Islamic Movement of Uzbekistan, Ansarrullah, Jindullah, ISIS, and Hizb ut-Tahrir. Officials continued to prevent minority religious groups, including Jehovah’s Witnesses, from registering their organizations. Domestic and international nongovernmental organizations (NGOs) stated both registered and unregistered religious organizations continued to be subject to police raids, surveillance, and forced closures. Government bodies continued to harass Jehovah’s Witnesses. Hanafi Sunni mosques continued to enforce a religious edict prohibiting women from praying at mosques. The government continued to install surveillance cameras and metal detectors in mosques for the stated purpose of monitoring potential “religious extremist” activity. Human rights activists asserted authorities sought to “establish total control of Muslim activity” in the country.[5]
[5] Tajikistan 2016, International Religious Freedom Report p1 type="1">
The USDOS confirms that there is a small practising Baha’i community in Tajikistan. The Tribunal notes that the report makes no reference to any persecution faced by the Baha’i community in Tajikistan.
The Tribunal has also had regard to information contained on the Baha’i Community website which confirms that the Baha’i faith was first established in Tajikistan early in the last century. The Tribunal has had regard to the website and finds the Baha’i community is active and well integrated into Tajikistan society and there are no reports of persecution as is evident in other countries such as Iran.[6]
[6] cf Situation of Baha’is in Iran, Baha’i International Community >
The applicants confirmed that they will continue to practice their Baha’i faith when they return to Tajikistan. As stated above the applicants also confirmed at the hearing that the Baha’i community in Tajikistan is not currently persecuted and they are able to participate in regular activities.
The Tribunal has had regard to the country information and finds that if the applicants return to Tajikistan in the reasonable foreseeable future they will be able to freely practice their Baha’i faith without fear of persecution.
Fear of fundamentalist Islam
Next, the Tribunal has considered the claims that people in Tajikistan are becoming drawn to a more extreme and fanatical worship of Islam and the applicants fear that the Islamic fundamentalists may target the Baha’i community in Tajikistan in the future.
The Tribunal has had regard to country information detailed above and finds that the Tajik authorities have taken extreme measures to establish total control of Muslim activity in Tajikistan in an attempt to prevent the spread of extremist Islam. The government has banned religious groups, including Salafis, the Muslim Brotherhood, the Islamic Movement of Uzbekistan, Ansarrullah, Jindullah, ISIS, and Hizb ut-Tahrir. Tajik authorities have targeted women for wearing hijabs and men with beards. USDOS reported “The government continued to take measures to prevent individuals from joining or participating in what it considered to be “extremist” organizations. The government arrested or detained over 100 persons as “extremists,” primarily individuals it suspected of supporting Salafi ideas.”[7]
[7] Ibid p7
The Tribunal was unable to locate any evidence that supports the claim that fundamentalist Islamists are currently targeting people of the Baha’i faith in Tajikistan. The Tribunal has had regard to the country information and is not satisfied that there is a real chance that the applicants will be targeted by Islamic fundamentalists in Tajikistan because of their religious beliefs.
The applicants have not claimed that they would be denied police protection in Tajikistan because of their religious beliefs. The Tribunal could not locate any country information that the authorities in Tajikistan would withhold protection to the applicants because of their Baha’i faith.
Looking into the reasonably foreseeable future, the Tribunal is not satisfied that there is a real chance that the applicants will face persecution from Tajik authorities because they are followers of the Baha’i faith.
Looking into the reasonably foreseeable future the Tribunal is not satisfied that there is a real chance that the applicants will face persecution in Tajikistan from Islamic fundamentalists because of their Baha’i faith.
The Tribunal finds that the applicants’ fear of persecution because their religion is not well-founded.
Fear of [Mr A]’s family
The applicant’s central claim is that she fears persecution from her husband’s family in Tajikistan because they do not approve of her marriage because she and her husband and children are followers of the Baha’i religion. The applicant fears that her husband’s family will force her to divorce and break up her family and take away her children and convert them to Islam.
The Tribunal finds that harm from non-state agents ([Mr A]’s family) may amount to persecution for a Convention reason if the motivation of the non-State actors is Convention-related. The Tribunal finds that religion is the essential and significant reason for persecution feared by the applicant.
The next, the Tribunal has considered whether the persecution feared by the applicant amounts to serious harm. Section 91R(2) sets out a non-exhaustive list of the type and level of harm that will meet the serious harm test. These provisions do not define ‘serious harm’ but provide instances of the serious harm referred to in s.91R(1)(b) by way of an aid to their application.[8] The following are listed as instances of ‘serious harm’:
(a)       a threat to the person’s life or liberty;
(b)       significant physical harassment of the person;
(c)       significant physical ill-treatment of the person;
(d)       significant economic hardship that threatens the person’s capacity to subsist;
(e)       denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)        denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity            to subsist.
[8]          MIBP v WZAPN; WZARV v MIBP (2015) 254 CLR 610 per French CJ, Kiefel, Bell and Keane JJ at [48], Gageler J agreeing..
The Tribunal also notes that in certain circumstances discriminatory treatment can in give rise to psychological harm sufficient to amount to ‘serious harm’.[9]
[9] SCAT vMIMIA [2003] FCAFC80
The Tribunal finds that the applicant, her husband and her [children] have never been physically threatened or harmed by [Mr A]’s family which includes the [siblings and their children]. The Tribunal finds that the applicants did not claim to fear significant physical harm or significant physical ill-treatment from [Mr A]’s family in Tajikistan.
As detailed above the Tribunal questioned the applicant about the harm she experienced from her husband’s family. The applicant said that she and her family have never been physically threatened by her husband’s family. She only experienced moral threats. She has never had to call the police. She does not fear physical violence. The applicant was only able to refer the Tribunal to an instance in 2002 in Tajikistan when her husband’s family would denigrate her faith in front her friends and neighbours.
As discussed with the applicant at the hearing, the Tribunal finds that the applicant married her husband in 1996. [Mr A]’s mother approved of the wedding. [Mr A] converted to the Baha’i faith and the applicant and her husband have had two children together. The children have been brought up in the Baha’i faith. The applicant and her husband have now been married for about 20 years and the applicant continue to be supported by her husband. The applicant’s husband continues to follow the Baha’i faith. The Tribunal also notes that [Mr A] has since voluntarily returned to Tajikistan.
The Tribunal finds that since 2002 [Mr A]’s [siblings] and their children have visited the applicant and stayed in her home on a number of occasions in [Country 1]. The Tribunal finds the fact that [Mr A]’s family have resided with the applicants in [City 1] is inconsistent with the claim that the applicant’s fears serious harm from [Mr A]’s family.
The Tribunal finds that despite the applicant’s claims that her husband’s [siblings] disapprove of her faith and want to break up her family and force her children to convert to Islam this has had little impact on her relationship with her husband and her religious practice. Having considered the evidence the Tribunal is not satisfied that [Mr A]’s family will force or pressure the applicant to divorce her husband and break up her family and take away her children and convert them to Islam.
While the Tribunal accepts that the applicant may have experienced some instances of harassment and discrimination from [Mr A]’s family in the past the Tribunal is not satisfied in all the circumstances that this treatment amounts to serious harm. In making this finding the Tribunal has considered the applicant’s claim that she felt moral harm (psychological harm) from [Mr A’s] family. Having considered the applicant’s evidence detailed above the Tribunal does not accept the psychological harm was at a level or threshold to amount to serious harm.
The Tribunal has also considered the second named applicant’s claim that he does not share his [relative’s] views about fundamentalist Islam. When questioned about his relationship with his [relatives] the second named applicant explained that he has been brought up and educated differently to his [relatives]. He has never been threatened or harassed by his [relatives]. He has never discussed his religious beliefs with his [relatives] and was not even sure if they knew he was a follower of the Baha’i faith.
Looking to the reasonably foreseeable future the Tribunal is not satisfied that there is a real chance the applicants would face serious harm from [Mr A]’s family in Tajikistan because of their Baha’i religious beliefs.
Capacity to subsist in Tajikistan
The Tribunal accepts that the applicants left Tajikistan in 2002 and the second named applicant was about [age] years old at the time. It was submitted that the applicants have no immediate family members in Tajikistan and have no property or place to live. The Tribunal accepts the second named applicant will initially find it difficult to integrate into Tajik society because he left Tajikistan at a young age and has attended English language school in [Country 1] for [a number of] years.
The Tribunal however found the second named applicant to be a confident, well-spoken and intelligent young man. The second named applicant said that he had returned to Tajikistan on about [number] occasions since he departed in 2002. The Tribunal finds that the second named applicant has grown up with his parents and would be familiar with Tajik culture and tradition.
The Tribunal finds that the second named applicant has successfully completed his schooling in [Country 1]. He is fluent in Russian and English languages. Significantly, the Tribunal notes that [Mr A] has now returned to Tajikistan and the family will be reunited if the applicants return to Tajikistan. As discussed at the hearing the Tribunal finds the applicants will be able to rely on the Baha’i community to provide them with assistance while they find employment and accommodation.
The Tribunal also finds that the applicant is a well-educated woman who has obtained [qualifications] in Tajikistan. She has been working as [occupation] in [City 1] for many years. Since coming to Australia she has studied and worked in [a different occupation].
The Tribunal is not satisfied that there is a real chance the applicants will face any serious harm such as being denied a capacity to subsist because of their religious beliefs or any other reason if they return to Tajikistan in the reasonably foreseeable future. The Tribunal finds that the applicants’ fear of serious harm because they will not be able to subsist, integrate into society, find employment and housing is not well-founded.
Complementary protection criteria
The Tribunal has also considered the application of s.36(2)(aa) to the applicants’ circumstances. In this regard, the Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Tajikistan, there is a real risk they will suffer significant harm.
‘The threshold for the ‘real risk’ element in the complementary protection criterion in s.36(2)(aa) is the same as that for the ‘real chance’ test in the refugee criterion in s.36(2)(a).[10]
[10]        MIAC v SZQRB (2013) 210 FCR 505 (special leave to appeal from this judgment was refused: MIAC v SZQRB [2013] HCATrans 323, 13 December 2013).
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.
As discussed above the Tribunal accepts that the applicant has been harassed and pressured by [Mr A]’s family because of her marriage and because of her faith. The Tribunal also accepts that the second named applicant does not share his [relatives'] views about fundamentalist Islam. As discussed above the Tribunal finds that the applicants have not experienced any serious harm or significant harm from [Mr A]’s family in the past. [Mr A’s] [siblings] and their children have visited the applicants and lived with them in [Country 1]. The applicant’s husband has now voluntarily returned to live in Tajikistan.
Looking to the reasonably foreseeable future, the Tribunal does not accept that the applicants will suffer significant harm from [Mr A]’s family in Tajikistan because of their Baha’i faith or any other reason. Having considered the applicants’ personal circumstances, the Tribunal is not satisfied that the authorities would withhold protection to the applicants from [Mr A]’s family or Islamic fundamentalists in Tajikistan. There is no evidence to support the claim that the applicants’ will be prevented from practicing their Baha’i faith in Tajikistan.
The Tribunal is also not satisfied that the discrimination and moral pressure the applicant fears from [Mr A]’s family in Tajikistan would give rise to psychosocial harm sufficient to reach the degree of ‘extreme humiliation which is unreasonable’ for the purpose of degrading treatment or punishment.
In conclusion, having regard to the findings of the facts above in response to specific claims made by the applicants, the Tribunal does not accept there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Tajikistan there is a real risk they will suffer significant harm.
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants Protection visas.
Christopher Smolicz
Member

[2017] AATA 2871

13 November 2017

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction