1611350 (Refugee)

Case [2018] AATA 432

1611350 (Refugee) [2018] AATA 432 (23 January 2018)

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  1611350

COUNTRY OF REFERENCE:  Pakistan

MEMBER:  Michael Judd

DATE:  23 January 2018

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 23 January 2018 at 12:17pm

CATCHWORDS
Refugee – Protection visa – Pakistan – Race – Ethnic Awan – Particular social group – Family members of wealthy business people – Kidnapping for ransom – Extremist groups – Extortion – Access to health care – Internal relocation

LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J-5LA, 36, 65, 499
Migration Regulations 1994 Schedule 2

CASES
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Chan v MIEA (1989) 169 CLR 389
Chand v Minister for Immigration and Ethnic Affairs (1997) FCA 1198
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Singh (1997) 72 FCR 288
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 Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Ibrahim (2000) HCA 55
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Sujeendran Sivalingam v Minister for Immigration and Ethnic Affairs, (unreported, 17 September 1998)
SZTOO v MIBP [2015] FCCA 1631

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 (the Minister) [in] July 2016 to refuse to grant the three applicants protection visas under s.65 of the Migration Act 1958 (the Act).

  2. The primary applicant is [name] (the primary applicant); the secondary applicants are [name] (husband) and [name] (child), who the Tribunal accepts are members of the same family unit as the primary applicant.

  3. The applicants, whom the Tribunal accepts are all citizens of Pakistan, applied for the visas [in] January 2015. The delegate refused to grant the visas on the basis that the applicants are not persons in respect of whom Australia has protection obligations as outlined in ss.36(2)(a) or (aa) of the Act; are not members of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the primary applicant.

  4. More specifically, it is apparent to the Tribunal…

Continue reading 1611350 (Refugee)

Sign in free to access the full text

Details
AGLC
1611350 (Refugee) [2018] AATA 432
Case
[2018] AATA 432
Decision Date

CaseChat Overview and Summary

This case concerned protection visa applications made by a primary applicant and her family members. The applicants, who are citizens of Pakistan and belong to the Awan ethnic group, claimed they feared persecution in Pakistan due to their family's association with a wealthy businessman who had allegedly been kidnapped for ransom by extremist groups. They contended that they were at risk of extortion and violence, and that internal relocation within Pakistan would not provide safety.

The Tribunal was required to determine whether the applicants qualified for protection under sections 36(2)(a) or (aa) of the Migration Act 1958 (Cth), or if they were family members of a person in respect of whom Australia owed protection obligations. Central to this determination was the assessment of the applicants' credibility, particularly concerning the alleged kidnapping of the primary applicant's father and the subsequent threats to the family. The Tribunal also had to consider the general country information regarding kidnappings and extortion in Pakistan, and whether internal relocation offered a viable alternative.

The Tribunal applied established principles regarding the assessment of asylum claims, acknowledging the inherent difficulties faced by applicants and the need for a sensitive and reasonable approach. While noting inconsistencies between the primary applicant's statutory declaration and her interview statements regarding her father's continued employment after the kidnapping, the Tribunal found that the applicants' accounts of events were generally consistent. Crucially, although the delegate had doubts about the father's kidnapping, the Tribunal could not be confident that the claims were untrue and therefore accepted that the father may have been kidnapped by the Taliban. The Tribunal also noted that country information supported a peak in kidnappings around 2013, with a substantial drop by 2015, and that wealthy individuals were opportunistic targets.

The Tribunal concluded that the decision under review should be affirmed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Nevertheless, there is no rule that a decision-maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies.[8] Nor is there a rule that a decision-maker must hold a ‘positive state of disbelief’ before making an adverse credibility assessment in a refugee case. However, if the Tribunal has ‘no real doubt’ that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong.[9] In addition, if the Tribunal makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true.[10] The Tribunal is also mindful of the observations of Gummow and Hayne JJ in Abebe v The Commonwealth of Australia:the fact that an Applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an Applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.[11] [8] Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9.[9] Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 per Sackville J (with whom North J agreed) at 241.[10] See MIMA v Rajalingam (1999) 93 FCR 220.[11] (1999) 197 CLR 510 at [191].CONSIDERATION OF CLAIMS AND EVIDENCE The key matters for determination by the Tribunal in this matter are whether the applicants are persons in respect of whom Australia has protection obligations as outlined in ss.36(2)(a) or (aa) of the Act or are members of the same family unit as a non-citizen in respect of whom the Tribunal is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CLAIMS ARISING FROM THE PROTECTION VISA APPLICATIONS TO THE DEPARTMENT The claims of the primary applicant are outlined within a signed statutory declaration declared at [City 1] [in] December 2014 located at folio pages 163 to 170 of departmental file [number]. There are no independent written claims of the secondary applicants located on the departmental file. Within the statutory declaration the primary applicant confirmed she had been born in Karachi on [date] and that she is a citizen of Pakistan. She confirmed that she did not have any right to reside in any other country. Her father’s name is [name] and her mother’s name is [name]. She has [specified siblings] who currently live in Pakistan. She married the [secondary applicant] [in] November 2011 in Abbottabad, KPK, Pakistan. The secondary applicant [named] is the only child of the relationship and was born in [City 1].

Decision

Reasons for decision

In concluding her statutory declaration, she claimed she was still afraid to return to Pakistan and that she would become a victim of ‘the militants oppressive techniques’ in the same way they did to her father. She said her father is lucky to be alive but that if it happened to her she may not be as successful. She claims that she left Pakistan in fear for her life and that she is thankful to Australia for the protection it has afforded so far. She also claimed that she came to Australia as soon as her visa was granted and she was able to travel.INTERVIEWS WITH THE DEPARTMENT AND THE DECISION RECORD The applicants attended for interview with the Department [in] June 2016. The applicant’s migration agent provided submissions on 20 February 2015 and post-interview submissions on 23 June 2016, both of which the Tribunal has read and has taken into consideration. At interview the primary applicant claimed her father had said he was being held in [a specified area in] Balochistan with four others who had also been kidnapped. The applicant’s husband stated that the threats were from criminal gangs rather than the Taliban, whilst the primary applicant was more certain that the group was the TTP. The primary applicant stated that after the return of her father, her family moved to [Town 3] in Karachi and that her father had retired. The Tribunal notes that in her statutory declaration the primary applicant had stated that her father had continued working for a period following the kidnapping. The primary applicant told the Department at interview that her brother had taken over her father’s business but worked from home unless he needed to meet clients. The applicant’s husband stated that as at the time of interview [in] June 2016 there had not been threats for a year or so. At the interview the applicant’s migration agent showed the delegate footage which purported to show the primary applicant’s father pleading for his life whilst subject to capture by the TTP. The Tribunal notes that the delegate gave no weight to the footage as the authenticity could not be verified. The Tribunal also notes that the delegate was not able to fully verify the authenticity of copies of what were purported to be Pakistan police documents provided by the applicant. The Tribunal has viewed copies of documents provided to the Tribunal by the migration agent in submissions on 21 March 2017, being colour copies of [Town 3] entry passes for the applicant’s father and a copy of a Sindh Pakistan driving license, also in his name. Colour photos of the father were endorsed on the document copies. The Tribunal is satisfied that the male person depicted in the photos is the same elderly male depicted in the two videos as purportedly taken by the captors between February and April 2014. The decision record (at page 6) indicates that, notwithstanding that the applicant and her husband were interviewed separately, their accounts of events were considered to be fairly consistent. The Tribunal notes that the delegate considered that the primary applicant appeared generally distressed when recalling her father’s kidnapping. The Tribunal notes reference in the decision record to the effect that whilst a search of sources did not reveal information as to the specific kidnapping incident involving the primary applicant’s father, it was acknowledged that country information was supportive of there having been a rapid growth in the number of kidnappings to a peak in about 2013 and a substantial drop in about 2015. The Tribunal notes that most of these kidnappings were motivated by ransom and that the primary targets were wealthy individuals who were being targeted on an opportunistic basis. The Tribunal also notes that whilst the delegate had doubts as to whether the applicant’s father was in fact kidnapped, it could not be said with confidence that the claims were completely untrue. As such, the delegate accepted that the applicant’s father may have been kidnapped by the Taliban.

Ratio Decidendi

Legal Principle Established

The infant [child] of the relationship, [named], was born in [Australia] on [date]. The Tribunal accepts that the child applicant holds citizenship and nationality of Pakistan and not of Australia, notwithstanding that [the birth was] in this country. [The child] belongs to the [specified] ethnic group and [their] religion is Sunni Islam. The child applicant has never been to Pakistan and has no affinity to any particular area.MIGRATION DETAILS [In] June 2012 the primary applicant was granted a student (dependent) [visa] whilst still resident in Pakistan. The primary applicant arrived into Australia from Pakistan [in] March 2013. [In] March 2014 she became subject to a bridging visa A which ceased [in] March 2015. [In] January 2015 the primary applicant lodged the protection visa application and a bridging visa C was granted. The bridging visa C ceased [in] March 2015; [later in] March 2015 another bridging visa C was granted. She remains subject to this bridging visa. The secondary applicant entered Australia initially [in] December 2009, he entered into [City 1], and was subject to a student visa. He returned to Pakistan twice in 2011 and once in 2013 (folio page 136). The Tribunal notes that the secondary applicant arrived into Australia over three years prior to the primary applicant, who arrived into Australia [in] March 2013.ASSESSMENT OF CREDIBILITY The Tribunal’s task of fact-finding involves an assessment of an applicant’s credibility. In this context, the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions.[1] In these and other decisions, the courts have made it clear that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility.[1] See, for example: 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, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan, Foster J stated that ‘care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.’[2] Numerous decisions have endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[2] (1996) 40 ALD 445 at 482.