1614343 (Refugee)

Case [2020] AATA 778

1614343 (Refugee) [2020] AATA 778 (11 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1614343

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Jason Pennell

DATE:11 March 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 11 March 2020 at 4.36pm

CATCHWORDS

REFUGEE – Protection visa – Pakistan – Sunni Muslim man – association with an Ahmadi – land dispute – a person who suffers from a mental illness in Pakistan – vague evidence – health care accessible in home country – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 91, 499

Migration Regulations 1994, Schedule 2

CASES

Chan v MIEA (1989) 169 CLR 225
MIEA v Guo (1997) 191 CLR 559 at 596
Prasad v MIEA (1985) 6 FCR 155

Kopalapillai v MIMA (1998) 86 FCR 547

WAKZ v MIMIA [2005] FCA 1065

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 on 17 August 2016 to refuse to grant the visa applicants Protection (Class XA) Subclass 866 visas under s.65 of the Migration Act 1958 (the Act).

  2. The visa applicants applied for the visas on 7 August 2014. The delegate refused to grant them a visa on the basis that each applicant, respectively, is not a person in respect of whom Australia owes protection obligations as outlined in s.36(2)(a) or s.36(2)(aa).

  3. The applicants appeared before the Tribunal on 10 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Ms [A] (the second applicant and the primary applicant’s wife) and Mr [B]. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

  4. The second applicant, Ms [A], the third applicant, Ms [C], and the fourth applicant, Mr [D], have no protection claims of their own and will be considered as a member of the same family unit under s.36(2)(b) of the Act.

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

  6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    RELEVANT LAW

  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…

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AGLC
1614343 (Refugee) [2020] AATA 778
Case
[2020] AATA 778
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the protection visa application of a Pakistani Sunni Muslim man. The applicant claimed he feared persecution in Pakistan due to his association with an Ahmadi individual and a land dispute, as well as concerns about his mental health. The Tribunal was required to assess whether the applicant met the criteria for a protection visa under s.36(2)(a) or s.36(2)(aa) of the Act, taking into account relevant Ministerial Directions, Complementary Protection Guidelines, Refugee Law Guidelines, and country information assessments.

The Tribunal's reasoning focused on the applicant's credibility and the sufficiency of the evidence presented. While acknowledging the applicant's stated fears, the Tribunal found the evidence regarding his association with an Ahmadi and the land dispute to be vague. Furthermore, concerning the applicant's mental health claims, the Tribunal considered the available country information which suggested that healthcare was accessible in Pakistan. Ultimately, the Tribunal concluded that there were significant credibility concerns with the applicant's claims and that the evidence did not establish a well-founded fear of persecution.

Consequently, the Tribunal affirmed the decision under review, meaning the applicant's protection visa application was not successful.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal is required to take account of Complementary Protection Guidelines and 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.CLAIMS AND EVIDENCE The issue in this case is whether the first-named applicant (herein ‘the applicant’) meets the criteria set out in either of s.36(2)(a) or s.36(2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Identity and country of reference The applicant claims that he was born on [date] in Kasur, Pakistan. The applicant provided a certified copy of his passport,[6] issued [2010], to the Department that confirms the applicant’s evidence as to his date and place of birth. In addition the applicant provided the Department with personal and financial documentation, including qualification documents from educational institutions,[7] which provide details of the applicant’s identity that are consistent with his passport. There is no evidence to suggest that he has a right to enter and reside, whether temporarily or permanently, in any other country. [6] Department [File] [7] Op Cit @ ff.83-95 Accordingly, the Tribunal finds that the applicant is a citizen of Pakistan and that as such his protection claims will be assessed against Pakistan as the country of reference and ‘receiving country’ respectively. Migration history Between 2002 and 2012 the applicant made multiple trips from Pakistan to various [countries]. The applicant’s evidence was that he made the trips as a tourist. His evidence to the department was that he travelled to [Country 1] to visit family. The applicant first arrived in Australia [in] November 2011 as the holder of a [temporary] visa and departed [in] December 2011. The applicant then arrived back in Australia [in] August 2013 and departed [in] September 2013 on another [temporary] visa. The applicant then arrived for the final time [in] July 2014 on the same [temporary] visa. The applicant’s dependants accompanied him on the final two trips. The applicant lodged his protection visa application on 8 August 2014 and was granted a bridging visa, on which he currently remains in Australia.Supporting documentation In support of his application, the applicant provided the following documentation: (a)Form 866B – applicant’s Application for Protection visa (including the applicant’s statement attached).[8][8] ibid @ f.14(b)Forms 886 (x3) - Applications for a member of the family unit in relation to the second, third and fourth applicants. (c)Certified copies of all applicants’ passports.[9] [9] ibid @ ff.31-43(d)Two letters dated [December] 2010 from [Employer 1] confirming Ms [A]’s [employment] with [them] from [September] 2003 to [December] 2010.[10] [10] ibid @ ff.45-46(e)Letter dated [May] 2011 from [Employer 2] confirming Ms [A]’s [employment] commenced with [Employer 2] [in] December 2010, upon the merger of [Employer 2] and [Employer 1], and concluded [in] February 2011.[11] [11] ibid @ ff.47(f)Undated Document entitled ‘Application for Registration of Case against the Unknown Persons’ (English translation dated 12/10/2012).[12][12] ibid @ f.50; AAT File No 1614343 @ f.90(g)Undated Document entitled ‘Application for Registration of Case against the Unknown Persons’ (Notary Stamped 30 June 2014).[13] [13] ibid @ f.52; AAT File No 1614343 @ f.91(h)Document entitled ‘Open Katchery of Inspector General of Police, Punjab, Lahore’ (dated [date] October 2012).[14] [14] ibid @ f.55(i)Statement by the applicant dated 19 September 2012 (English translation dated 18 September 2012).[15][15] ibid @ f.58(j)Statement by the applicant dated [September] 2012.[16][16] ibid @ f.60(k)Statement by the applicant (Notary Stamped 30 June 2014).[17][17] ibid @ f.69; AAT File No 1614343 @ f.88(l)Affidavit of [Mr E] dated 11 October 2018.[18][18] AAT File No 1614343 @ f.125(m)Document dated [date] February 2012 entitled ‘Application for Registration of Case against the Unknown Persons.’[19][19] ibid @ f.62(n)Document dated [date] September 2012 entitled ‘Application for Registration of Case against the Unknown Persons.’[20][20] AAT File No 1614343 @ f.95(o)Document dated [date] September 2012 entitled ‘Application for Registration of Case against the Unknown Persons.’[21][21] AAT File No 1614343 @ f.94(p)Letter dated [date] October 2010 [entitled] ‘Ban on Display of Licensed Weapons.’[22][22] ibid @ f.63; AAT File No 1614343 @ f.85(q)Undated Letter by Applicant entitled ‘Request for Issuance of Weapon carrying permit for Self Defense.’[23][23] ibid @ f.64; AAT File No 1614343 @ f.85(r)Preliminary Information Report dated 20 February 2013.[24][24] ibid @ f.67, AAT File No 1614343 @ f.87(s)Preliminary Information Report dated 17 September 2012.[25][25] ibid @ f.71(t)Preliminary Information Report dated 15 October 2012.[26][26] AAT File No 1614343 @ f.89(u)Show Cause Notice dated 31 July 2013.[27][27] ibid @ f.72; AAT File No 1614343 @ f. 74 & f.124(v)Document entitled ‘Human Rights Case No [Application] by [Mr F]’ dated [August] 2013.[28][28] ibid @ f.73; AAT File No 1614343 @ f.79(w)Document entitled ‘Human Rights Case No [Application] by [Mr F]’ dated [August] 2013.[29][29] ibid @ f.75; AAT File No 1614343 @ f.75(x)Document entitled ‘Human Rights Case No [Application] by [Mr F]’ dated [August] 2013.[30][30] ibid @ f.76; AAT File No 1614343 @ f.75(y)Document entitled ‘Human Rights Case No [Application] by [Mr F]’ dated [August] 2013.[31][31] ibid @ f.77; AAT File No 1614343 @ f.76(z)Document entitled ‘Human Rights Case No [Application] by [Mr F]’ dated [August] 2013.[32][32] ibid @ f.80; AAT File No 1614343 @ f.77(aa)Document entitled ‘Human Rights Case No [Application] by [Mr F]’ dated [July] 2013.[33][33] ibid @ f.82; AAT File No 1614343 @ f.80 & 78(bb)Application to [a court] dated [date] October 2013.[34][34] ibid @ f.83; AAT File No 1614343 @ f.80(cc)Document entitled ‘Board of Intermediate & Secondary Education, Lahore’ in relation to the [applicant].[35][35] ibid @ f.84(dd)[A] University Certificate, [degree] dated [date] June 2009.[36] [36] ibid @ f.85(ee)[University 1], [a Degree] dated [date] June 2006.[37] [37] ibid @ f.86(ff)[University 1], [a Degree] dated [date] August 2005.[38] [38] ibid @ f.86(gg)Document entitled ‘Board of Intermediate & Secondary Education, Lahore’ dated [date] April 1991.[39][39] ibid @ f.87(hh)[University 1] Result Intimation Card dated 4 January 2003[40][40] ibid @ f.88(ii)[Training] and Development Certificate dated September 2003.[41][41] ibid @ f.89(jj)Documents entitled ‘Board of Intermediate & Secondary Education, Lahore’ in relation to [Ms A].[42][42] ibid @ f.91-92(kk)Marriage Registration Certificate dated [2013].[43] [43] ibid @ f. 93(ll)Birth Certificate Ms [C] dated [date].[44][44] ibid @ f. 94(mm)Birth Certificate Mr [D] dated [date].[45][45] ibid @ f. 94(nn)Document entitled ‘Request for Redressal of Grievance’ dated [May] 2013.[46] [46] ibid @ f. 98; AAT File No 1614343 @ f. 82(oo)Press Clippings from [a] Newspaper ‘Pakistan’ dated [date] May 2013.[47] [47] ibid @ f. 100; AAT File No 1614343 @ f. 83(pp)Document from the Office of the Senior Member Inspection Team Lahore High Court, Lahore, dated [date] April 2013.[48] [48] ibid @ f. 101(qq)Document entitled ‘Request for Redressal of Grievance’ dated [April] 2013.[49] [49] ibid @ f. 103; AAT File No 1614343 @ f. 84(rr)Standard Chartered Transaction History for [name deleted].[50][50] ibid @ f. 107(ss)Bank [Online] Statement Account for [Mr F] &/or [a named person].[51] [51] ibid @ f. 109(tt)Applicants’ travel history[52] (uu)Copies of applicants passports.[53] (vv)Suit for Specific Performance of Contract.[54] (ww)Document of Special Power of Attorney.[55](xx)Affidavit of [Mr B] dated 13 March 2017.[56](yy)Affidavit of [Mr E] dated 11 October 2018.[57](zz)Report by [a] Psychological and Assessment Services dated [September] 2018.[58](aaa)Transcript of Protection Visa Interview dated 21 July 2016.[59](bbb)[Business 1] Financial statements.[60] (ccc)Newspaper article, [deleted], dated [December] 2018[61][52] ibid @ f. 111[53] ibid @ f. 112-166[54] ibid @ f. 100[55] ibid @ f. 98[56] AAT File No 1614343 @ f. 68-66[57] ibid @ 125[58] ibid @ f.122[59] ibid @ f.114.[60] ibid @f72-69[61] ibid @ f.128The applicant’s claims

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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