1619336 (Refugee)

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1619336 (Refugee) [2020] AATA 6192 (5 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1619336

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Dr Colin Huntly

DATE:5 August 2020

PLACE OF DECISION:  Perth

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

Statement made on 05 August 2020 at 7:45am

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth), s 33

Migration Act 1958 (Cth), ss 5AAA, 36, 65, 499

Migration Regulations 1994 (Cth), Schedule 2

CASES

Abebe v The Commonwealth of Australia (1999) 197 CLR 510
BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184
CQG15 v MIBP [2016] FCAFC 146
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
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
SZLGP v MIC [2008] FCA 1198
SZSHV v MIBP [2014] FCA 253

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 applicants protection visas under s.65 of the Migration Act 1958 (the Act).

  2. The applicants, who claim to be citizens of Pakistan, applied for a protection visa on 16 October 2014.  This application was refused by a delegate of the Minister on 27 October 2016.  The applicants seek review of that decision by this Tribunal.

    Applicant migration history

  3. Applicant 1 first entered Australia on [date] August 2011, travelling on a [Student] visa.

  4. Applicant 1 was subsequently granted a further [Student] visa on 10 September 2012.

  5. Applicant 1 departed Australia on [date] January 2013 and returned to Pakistan.  He arrived back in Australia on [date] March 2013.

  6. Applicant 2 arrived in Australia on [date] May 2014 as a dependent spouse on Applicant 1’s [Student] visa.

  7. Applicant 1 again departed Australia on [date] February 2014 and returned to Pakistan.  He arrived back in Australia on [date] April 2014.

  8. As indicated above, Applicant 1 applied for a protection visa on 16 October 2014 on behalf of the family unit.

  9. On [date], Applicant 3 was born in Australia and subsequently added to the application.

    Proceedings before the Tribunal

  10. The applicants appeared before the Tribunal at two hearings (held over three dates), to give evidence and present arguments.  The first hearing held in person on 23 September 2019 was adjourned (to allow Applicant 1 to obtain a copy of his application documents from the Department by means of an FOI application).  This hearing was resumed by telephone on 31 March 2020 but was concluded shortly thereafter because Applicant 2 appeared to have no…

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Details
Case
[2020] AATA 6192
Decision Date

CaseChat Overview and Summary

The applicants, citizens of Pakistan, sought review of a delegate's decision to refuse their protection visa application. The primary claims for protection were based on Applicant 1's alleged past political involvement with the Pakistan People's Party (PPP) and subsequent harassment from agents associated with the Pakistan Muslim League Nawaz Party (PML), particularly around election periods. Applicant 2 and Applicant 3, the parties' child, advanced no independent claims for protection.

The Tribunal was required to determine whether the applicants had established a well-founded fear of persecution for a Convention reason, or a real risk of significant harm, upon return to Pakistan. This involved assessing the credibility and consistency of the applicants' claims, particularly in light of Applicant 1's stated political engagement, his subsequent prolonged period in Australia before applying for protection, and his returns to Pakistan. The Tribunal also considered the delegate's findings and the evidence presented during two hearings.

The Tribunal found the applicants' claims to be unreasonably vague, internally inconsistent, and lacking in credibility. It noted that Applicant 1 had delayed seeking protection in Australia for over three years after his initial arrival, during which time he had also returned to Pakistan on two occasions. Furthermore, Applicant 1 had not disclosed his reasons for seeking protection to his spouse for a significant period. The Tribunal concluded that this conduct was inconsistent with a genuine subjective fear of persecution. Consequently, the Tribunal was not satisfied that the applicants faced a real chance of serious harm for a Convention reason, nor a real risk of significant harm, upon return to Pakistan.

The Tribunal affirmed the delegate's decision to refuse the protection visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

In light of the findings I have made below, it has not been necessary to make findings pursuant to s.36(3) of the Act relating to third country protection.WHAT IS THE BACKGROUND OF THIS APPLICATION?Introduction The applicants are citizens of Pakistan. According to their Protection application Form 866C declaration, prior to arriving in Australia, Applicant 1 and Applicant 2 resided exclusively in the State of Punjab, primarily in and around the city of Gujranwala.Principal claims The claims for protection (as per a statement attached to the original Protection application Form 866C declaration), are not particularised and are somewhat difficult to discern. The delegate appears to have addressed this lack of clarity in the claims for protection by enumerating paraphrased aspects of the attached statement at pp.4-5 of the record of decision. The original claims for protection may be summarised as follows:The Pakistan People’s Party (PPP) is the party of former President Benazir Bhutto;President Bhutto was democratically succeeded by President Nawaz Sharif in 1997 but he was deposed in a military coup in 1999. Former President Bhutto was eventually assassinated at a political rally December 2007 prior to an election which resulted in the return to power (briefly) of the PPP at a national level. Pakistan politics has been characterised by instability and violence.Gujranwala is a stronghold of support for the opposition Pakistan Muslim League Nawaz Party (PML).Partisans acting in support of the major parties in Pakistan participate in acts of politically motivated violence, particularly around election periods.While an undergraduate, Applicant 1 was a student member of the PPP student wing, and held numerous roles in his local branch. Prior to 2005, Applicant 1 was politically engaged. In or around 1999, the applicant was briefly arrested and detained during a political protest.After graduation, the applicant was briefly a full member of the PPP.During his period of employment in Pakistan between 2006 and 2010 the applicant experienced harassment and intimidation from agents of harm associated with the PML, particularly at election times, as were other memers of the applicant’s extended family. It is potentially of significance that the majority of the applicant’s claims for protection relate to events which occurred prior to his original arrival in Australia on [date] May 2011. During his protection visa interview on 31 May 2016 the applicant stated that he had not been physically harmed for the essential and significant reason of his political involvement in Pakistan prior to leaving. The delegate expressed dissatisfaction with the applicant’s level of knowledge and detail in describing his previous involvement with the PPP in Pakistan during the Protection visa interview.[1] I further note that the delegate raised concerns about the applicant’s repeated returns to Pakistan and his delay in seeking protection in Australia in that these facts are not necessarily consistent with a well-founded fear of persecution in Pakistan.[2]Subsidiary claims[1]Record of Decision at (9)–(10).[2]At (10)–(11).

Evidence

Evidence Before The Court

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.CONSIDERATION OF CLAIMS AND EVIDENCEHearingsFirst hearing Early in the first hearing with the Tribunal on 23 September 2019, it became apparent that the applicants lacked a copy of any documents relating to their application for protection. After advising the applicants that they could obtain a copy of these documents from the Department by means of a freedom of information (FOI) application, the hearing was adjourned to allow the applicants an opportunity to do this. As discussed above, the first hearing was resumed by telephone on 31 March 2020. Shortly after proceedings commenced, it became apparent that Applicant 2 was not aware that a hearing had been scheduled or that she might be required to give evidence. After explaining why the circumstances were unacceptable and providing guidance about how the next hearing would be conducted, the hearing was concluded.Second hearing I exercised my discretion to hold the telephonic second hearing via MS Teams. The hearing was held during the COVID-19 pandemic. I determined that it was reasonable to hold a hearing in this manner, having regard to the nature of this matter and the individual circumstances of the applicants. In making these alternative arrangements, I had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted remotely. I was also mindful of the fact that two adjournments were previously given in proceedings; firstly, for a period of six months to allow the applicants to lodge an FOI application with the Department for access to their protection application documents; and, second due to uncertainty about Applicant 2 not having knowledge of the calling of the resumption of the first hearing. I am satisfied that the applicants were given a fair opportunity to give evidence and present arguments in the format which was utilised. I was able to interact with the applicants and maintain appropriate communication throughout the proceedings. In addition, the applicants were assisted, as required, by an interpreter fluent in the Urdu and English languages.Claims At the second and final hearing, I took the applicants through their claims for protection. As discussed above, I confirmed with Applicant 2 that she had no claims for protection other than those advanced by Applicant 1 on behalf of the family unit. I further sought clarification from both Applicant 1 and Applicant 2, separately, about the claims for protection advanced by Applicant 3, being the natural child of both Applicant 1 and Applicant 2.

Decision

Reasons for decision

In a written decision dated 27 October 2016, a delegate of the Minister refused to grant the applicants a protection visa. The delegate summarised their reasons for refusing to grant the visa as follows:I note my findings above, where I have found the applicant was not a youth leader with the PPP was rather a supporter of the PPP nor did I accept he was involved in any protests in 2008. I also did not find the applicant will become an active supporter if he returns to Pakistan. I also had concerns regarding the delay in the applicant’s lodgement of his protection claims and his return to Pakistan without being directed by the authorities. In light of all of the above, I do not find the applicant’s fear of harm is not well-founded [sic]. I also find the applicant will not face a real chance of being persecuted for refugee Convention reason upon return to Pakistan. [3][3]At [24]–[25].Tribunal decision in summary I have considered the applicants’ claims in detail, including interviewing the applicants at two hearings. I note that the delegate failed to adequately address possible subsidiary claims of both Applicant 2 an Applicant 3. The applicants’ claims (and the evidence provided in support of those claims) was unreasonably vague, internally inconsistent and lacking in credibility in material respects. Nothing in the evidence presented to the Tribunal by Applicant 1 suggests that the delegate’s conclusions relating to the applicant’s claims for protection were made unreasonably. Indeed, the evidence provided at the hearings by applicant 1 raises further credibility questions in addition to those identified, reasonably, by the delegate in the record of decision. Despite claiming to have begun fearing persecution in Pakistan for the essential and significant reason of refugee protection grounds no later than 2008, Applicant 1 delayed seeking protection in Australia between his arrival in this country on[date] August 2011 and his application for protection on 16 October 2014. During this period, he applied for a second student visa and then ceased complying with the requirements of the visa on 8 July 2017. Applicant 1 offered no reasonable explanation for this delay. Further, despite his stated fear of persecution in Pakistan since 2008 Applicant 1 subsequently returned to that country on 2 occasions. He also failed to disclose his reasons for seeking protection in Australia to his new spouse for approximately 18 months, and then only after she had departed Pakistan for an unfamiliar country. This conduct on the part of Applicant 1 is not consistent with an applicant holding genuinely subjective fear of persecution in a country. I also note that, by the applicant’s own evidence, he has taken no interest in any form of politics since the birth of his daughter, Applicant 3. Based on these considerations and findings, I do not accept that the applicants face a real chance of serious harm in Pakistan for the purposes of s.36(2)(a) of the Act for the essential or significant reason of any of the criteria in Article 1A(a) of the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (the refugee criteria). Also, given the foregoing facts, I am not satisfied that the applicants face a real risk of significant harm on return to Pakistan now or in the reasonably foreseeable future for the purposes of s.36(2)(aa) of the Act.

Ratio Decidendi

Legal Principle Established

The applicants, who claim to be citizens of Pakistan, applied for a protection visa on 16 October 2014. This application was refused by a delegate of the Minister on 27 October 2016. The applicants seek review of that decision by this Tribunal.Applicant migration history Applicant 1 first entered Australia on [date] August 2011, travelling on a [Student] visa. Applicant 1 was subsequently granted a further [Student] visa on 10 September 2012. Applicant 1 departed Australia on [date] January 2013 and returned to Pakistan. He arrived back in Australia on [date] March 2013. Applicant 2 arrived in Australia on [date] May 2014 as a dependent spouse on Applicant 1’s [Student] visa. Applicant 1 again departed Australia on [date] February 2014 and returned to Pakistan. He arrived back in Australia on [date] April 2014. As indicated above, Applicant 1 applied for a protection visa on 16 October 2014 on behalf of the family unit. On [date], Applicant 3 was born in Australia and subsequently added to the application.Proceedings before the Tribunal The applicants appeared before the Tribunal at two hearings (held over three dates), to give evidence and present arguments. The first hearing held in person on 23 September 2019 was adjourned (to allow Applicant 1 to obtain a copy of his application documents from the Department by means of an FOI application). This hearing was resumed by telephone on 31 March 2020 but was concluded shortly thereafter because Applicant 2 appeared to have no knowledge of the hearing having been arranged. After giving both applicants a warning about the importance of participating freely and fully in the next hearing, the hearing was concluded. The second and final hearing with the applicants was held on 23 July 2020. The Tribunal hearings were conducted with the assistance of interpreters in the Urdu and English languages. The applicants were not represented by a registered migration agent in proceedings before the Tribunal.Identity and receiving country Applicants 1 and 2 provided a copy of their identity documents to the Department with the original application for protection. There is no reason to doubt the validity of these documents. I have reviewed this information and, as indicated above, have had the opportunity to interview the applicants on three occasions. I have viewed the birth certificate of Applicant 3 and I am satisfied that she is the natural child of Applicant 1 and Applicant 2. I have also viewed a copy of the biometric data contained within the Passport of Applicant 3. According to this document (issued [in] 2019) Applicant 3 is a citizen of Pakistan. Based on the information before me, I find that all applicants are citizens of Pakistan, which is also the receiving country for the purposes of the refugee and complementary assessments. In light of the findings I have made below, it has not been necessary to make findings pursuant to s.36(3) of the Act relating to third country protection.WHAT IS THE BACKGROUND OF THIS APPLICATION?Introduction