1610942 (Refugee)

Case [2018] AATA 1213

1610942 (Refugee) [2018] AATA 1213 (14 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1610942

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Michael Judd

DATE:14 February 2018

PLACE OF DECISION:  Perth

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 Applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named Applicant.

CATCHWORDS
Refugee – Protection visa – Pakistan – Religion – Muslim and Hindu – Social group – Involved in love marriage – Maher and Chaudhary caste – Islamic men who married Hindu women – Islamic men who shamed family – Victim of attempted shooting – Fear of forced marriage – Fear of assault and threats from family – Returnees to Pakistan

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 91R, 91S, 499
Migration Regulations 1994, r 1.12, Schedule 2

CASES
Abebe v The Commonwealth of Australia (1999) 197 CLR 510,
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198,
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445,
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559,
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437,
SAAD v MIMIA [2003] FCAFC 65
Selliah v MIMIA [1999] FCA 615
Selvadurai v MIEA & Anor (1994) 34 ALD 347,
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76

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 to refuse to grant the Applicants protection visas under s.65 of the Migration Act 1958 (the Act).

  2. [First named applicant] is the primary Applicant in this matter.  [Second named applicant] is an Applicant on the basis of being a member of [the first named applicant’s] family unit, having made no independent claims of her own to the department.  For convenience, the Applicants will be referred to as ‘primary Applicant’ and ‘secondary Applicant’ throughout this decision.

  3. The primary Applicant claims to be a citizen of Pakistan and the secondary Applicant claims to be a citizen of [Country 1]. The applications were made [in] August 2014 and the delegate refused to grant the visas [in] June 2016.

  4. The delegate…

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Details
AGLC
1610942 (Refugee) [2018] AATA 1213
Case
[2018] AATA 1213
Decision Date

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a national of Pakistan. The applicant claimed to fear persecution in Pakistan due to his religion and membership of particular social groups. The decision was made by the Tribunal.

The Tribunal was required to determine whether the primary applicant had a well-founded fear of persecution for reasons of religion and membership of particular social groups, and whether such persecution would involve serious harm. It also had to consider whether it would be safe and reasonable for the applicant to relocate within Pakistan and whether he could obtain protection from Pakistani authorities.

The Tribunal was satisfied that the primary applicant had a well-founded fear of persecution involving serious harm in Pakistan in the reasonably foreseeable future, and that relocation within Pakistan or obtaining protection from Pakistani authorities would not be a viable option. The Tribunal remitted the matter for reconsideration, directing that the primary applicant satisfies section 36(2)(a) of the Act, and the secondary applicant satisfies section 36(2)(b)(i) of the Migration Act on the basis of their family unit membership.

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

In the circumstances the Tribunal is satisfied that the primary applicant has a well-founded fear of being persecuted for reasons of religion and membership of particular social groups for the purposes of Article 1 of the Refugees Convention. CONCLUSIONS In this matter, the Tribunal finds that: a. The primary applicant is a national of Pakistan and non-citizen in Australia; b. The primary applicant is outside his country of nationality;c. The Primary applicant has a well-founded fear of persecution involving serious harm in Pakistan in the reasonably foreseeable future;d. It would neither be safe nor reasonable for the primary applicant to relocate to another area of Pakistan;e. The primary applicant could not obtain from an authority of Pakistan protection such that there would not be a real risk of suffering serious harm; and The Tribunal remits the matter for reconsideration with the following directions: a.That the primary Applicant satisfies section 36(2)(a) of the Act; andb.that the secondary Applicant satisfies s.36(2)(b) (i) of the Migration Act, on the basis of membership of the same family unit as the primary Applicant. Michael JuddMember

Ratio Decidendi

Legal Principle Established

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