1608296 (Refugee)

[2019] AATA 6791

1608296 (Refugee) [2019] AATA 6791 (19 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1608296

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Luke Hardy

DATE:19 November 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

NB: This decision includes a referral to the Minister in relation to s.417 of the Act.

Statement made on 19 November 2019 at 12:08pm

CATCHWORDS
REFUGEE – protection visa – Pakistan – complementary protection – compassionate grounds – hardship to wife and child – 11 year stay in Australia – abandoned initial claim to fear harm from Taliban – Ministerial intervention requested – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 48A, 65, 351, 417, 438, 501J
Migration Amendment (Complementary Protection) Act 2011 (Cth)
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIAC v SZQRB [2013] FCAFC 33
MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; 243 FCR 1; 155 ALD 98
SZGIZ v MIAC (2013) 212 FCR 235

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 applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, Mr [A], is a citizen of Pakistan. He comes from Battagram district in Khyber Pakhtunkhwa (KPK) Province. He arrived in Australia on a [temporary] visa [in] January 2008. He lodged a protection visa application on 30 January 2011 and this was refused by a delegate of the Minister on 29 April 2011. The former Refugee Review Tribunal affirmed that decision on 16 September 2011. Mr [A] sought, unsuccessfully, judicial review of that Tribunal’s decision.

3. From 24 March 2012, the Migration Amendment (Complementary Protection) Act 2011 amended the Migration Act 1958 to introduce a new criterion to allow for the grant of a Protection visa in situations that engage complementary protection obligations. Since then, protection visa applicants have first been assessed to determine if they are refugees under the Refugees Convention and relevant Australian law. If they are not found to be refugees, their claims have then been considered under complementary protection criteria.

4. Mr [A] lodged a second protection visa application on 15 October 2012, seeking consideration of his claims a complementary protection claims, but that application was, at least initially, deemed invalid on the grounds that s.48A of the Act imposes a bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen has made an application for a protection visa which has been refused.

5. Meanwhile, the Full Federal Court in SZGIZ v MIAC (2013) 212 FCR 235 held at [38] that the operation of s.48A, as it stood at the time of this visa application, is confined to the making of a further application for a protection visa which duplicates an earlier unsuccessful application for a protection visa, in the sense that both applications raise the same essential criterion for the grant of a protection visa.

6. In light of SZGIZ, Mr [A]’s second protection visa application was deemed valid. However, a delegate of the Minister refused to grant the visa on 20 May 2016. Mr [A] then sought merits review by this Tribunal.

7. The delegate purported to determine the application on refugee grounds as well as on complementary protection grounds. Applying the reasoning in SZGIZ v MIAC (2013) 212 FCR 235, the Tribunal finds that it does not have power to consider the Refugee Convention criterion in s.36(2)(a), and has proceeded on the basis that it can only consider the Mr [A]’s claims under the complementary protection provisions in s.36(2)(aa) of the Act.

8. Mr [A] appeared before the Tribunal on 14 November 2019 to give evidence and present arguments. He is represented in relation to the review by a registered migration agent who attended the Tribunal hearing.

9. An interpreter in the Pashto-English medium was on hand but his assistance was not required as Mr [A] communicated adeptly in English.

10. At the beginning of the hearing, I mentioned to Mr [A] and his migration agent that an officer of the former Immigration Department had placed a s.438(1) non-disclosure certificate in his Immigration file, to protect from disclosure to anyone a number of folioed documents in that file. I drew attention to the fact that the certificate describes the covered documents as “internal working” documents, including minutes and checklists, and that, in view of this, the certificate and its non-disclosure orders are invalid.[1] I assured Mr [A] and his adviser that none of the material covered by the certificate had any significance to the matter before me and that I would not rely on it in this decision. Both Mr [A] and his adviser indicated that they were happy with this.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    [1] MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; 243 FCR 1; 155 ALD 98

    The issues

11. The main issue in this case is whether, on accepted facts, Mr [A] is entitled to complementary protection in Australia.

12. For the following reasons, I have concluded that the decision under review should be affirmed.

    Claims

13. Mr [A]’s refugee claims related to experiences he and his family had had, particularly in and around 2007 during the period when the Taliban was seizing control of his home district and other parts of KPK province. At the primary stage of the current application for complementary protection, Mr [A]’s case also related to fear of being harmed by the Taliban. The delegate assessing the second protection visa application relied on independent country information in finding that the Pakistani authorities had already made significant progress in taking back KPK province and in concluding that, in any event, relocation to a city outside of that province, say, to Lahore, Karachi or Islamabad, to name just three, would be safe, practicable and reasonable.

14. Mr [A]’s circumstances in Australia have evidently evolved since the more recent primary decision. He married Ms [B] [in] December 2017. Ms [B] became an Australian citizen [in] September 2019. Also, Mr [A] and Ms [B] now have a daughter [Child 1], born on [date]. [Child 1] is an Australian citizen by birth.

15. In a submission to the Tribunal dated 7 November 2019, Mr [A]’s migration agent disclosed that Mr [A] now seeks Ministerial intervention on humanitarian and compassionate grounds in view of the harm and hardship that his Australian wife and child would suffer were he to be required to return to Pakistan and await completion of partner visa formalities.

16. At the hearing, I asked Mr [A] and his adviser if the content of the 7 November 2019 submission meant that he, Mr [A], was abandoning his claims to complementary protection under s.36(2)(aa) of the Act. The response from both was that he was.

17. Mr [A] referred to the fact that the new Pakistani government had made substantial progress in restoring law and order to KPK province, since the time of his second protection visa application and the delegate’s decision in 2016, and that although conditions were not perfect in KPK province they seemed currently to be stable. Generally, he indicated here that the risk of significant harm was not such as could reasonably be regarded now or in the reasonably foreseeable future as “real”. He also indicated here that he would be able to “obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm”: ref. s.36(2B)(b) of the Act.

18. In further discussion, Mr [A] appeared to acknowledge that he would not necessarily need to go back to KPK province for the duration of processing a sponsorship by his Australian wife to re-join her and their Australian child. In this way, he apparently conceded that “it would be reasonable” for him “to relocate to an area of the country where there would not be a real risk that [he] will suffer significant harm”: ref. s.36(2B)(a) of the Act.

19. Mr [A] also said his Australian wife Ms [B] had been unwell and slow to recover from giving birth to their Australian daughter [Child 1], who was at the time of hearing only [number] weeks old. I was referred to evidence in the Tribunal file of Mr [A] being the sole income provider to the family at this time. Essentially, it was argued that he alone was in a position to earn income and pay the rent for his family by being permitted to continue working in his current occupation. I was also referred to evidence of [Child 1], though generally healthy, having nevertheless required treatment since birth for [a medical condition].

20. Mr [A]’s adviser informed me that, upon having made relevant enquiries with the Department, he had been told that the waiting time in Pakistan for processing of a partner visa can be well in excess of one year. I could see no reason to doubt this information. Mr [A] indicated that this year or more would be a critical time for his Australian child and her mother, his Australian wife, and that the disruption of his departing Australia and having to find a source of income in Pakistan would be unreasonably onerous upon them and harmful to them. Relevantly, the adviser’s submission refers me to Articles 3.1 and 9 of the Convention on the Rights of the Child. The submission also draws attention to Mr [A] having lived and contributed to society in Australia for over eleven years.

    Findings in relation to s.36(2)(aa) of the Act

21. A person is entitled to protection under s.36(2)(aa) if there are 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.

22. Relevantly, s.36(2)(aa) refers to a "real risk" of an applicant suffering significant harm. The "real risk" test imposes the same standard as the "real chance" test applicable to the assessment of "well-founded fear" in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).

23. "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 his or her 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.

24. Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.

25. Essentially, all three of these definitions require that there be an intention to inflict harm by some act or omission. Torture does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Cruel or inhuman treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Degrading treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR.

26. 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.

27. As Mr [A] is a citizen of Pakistan, the "receiving country" in this case is Pakistan.

28. Significant to this case is the position Mr [A] declared early in the Tribunal about no longer relying on the refugee and complementary protection claims in his 15 October 2011 application, preferring to abandon his complementary protection claims to seek Ministerial consideration under s.417. He has identified hardship for his Australian wife and child as an issue for the Minister’s consideration. I have also considered the hardship factors to which Mr [A] has referred and, for clarity, none of the hardship for his wife or child or himself, as describes by him in his protection visa application as it now stands, can reasonably be regarded as rising to significant harm for the purposes of ss. 5(1) and 36(2A) of the Act.

29. For this reason, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that Mr [A] will suffer significant harm.

30. Accordingly I am not satisfied that Mr [A] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

    Other findings

31. There is no suggestion that Mr [A] satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, he does not satisfy the criterion in s.36(2).

    REFERRAL TO THE MINISTER WITH REGARD TO S.417 OF THE ACT

32. As noted, Mr [A] has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.417 of the Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

33. The public interest issues identified in this matter are the interests of Mr [A]’s Australian wife, Ms [B], and their newborn Australian daughter, [Child 1].

34. In particular, Mr [A] draws attention to:

    ·     Circumstances that may bring Australia's obligations under the Convention on the Rights of the Child (CROC) into consideration, particularly the obligation that the best interests of the child [in this case, Mr [A]’s Australian child, [Child 1]] be given primary consideration;

    ·     Strong compassionate grounds relating to harm or hardship to an Australian family [being Mr [A]’s Australian wife and child]; and

    ·     The length of time the person [Mr [A]] has been present in Australia [being over eleven years].

35. The Tribunal has considered Mr [A]’s case and the ministerial guidelines relating to the discretionary power set out in departmental policy “Minister’s guidelines on ministerial powers (s351, s417 and s501J)” and will refer the matter to the Department.

    DECISION

36. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Luke Hardy
    Member

    
    

    ATTACHMENT A

    RELEVANT LAW

37. 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.

38. 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).

39. 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.

40. 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’).

41. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments 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.