1620482 (Refugee)

Case [2020] AATA 3820

1620482 (Refugee) [2020] AATA 3820 (10 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1620482

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Dr Colin Huntly

DATE:10 September 2020

PLACE OF DECISION:  Perth

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

Statement made on 10 September 2020 at 1:34pm

CATCHWORDS

REFUGEE – protection visa – fear of harm from extremist group as former medical program worker – threatening letters and phone calls, and kidnapping attempt – request for recusal due to apprehension of bias – credibility – inconsistent and changing claims and evidence – low-level, short-term, casual work – no reports to police or village committee – travel to third country and return – authenticity of documents – country information about document fraud and government security operations – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5AAA, 5J(1), 36(2)(a), (aa), (2B)(b), (c), 65, 423A

Migration Regulations 1994 (Cth), Schedule 2

CASES

A v MIMA [1999] FCA 116

BBK15 v MIBP [2016] FCA 680

Chan v MIEA (1989) 169 CLR 225

Dimitropoulos v ASIC [2019] AATA 1350

MIMA v Haji Ibrahim (2000) 204 CLR 1

MIMA v Khawar (2002) 210 CLR 1

Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429

MZAAJ v MIBP [2015] FCA 478

SZSPT v MIBP [2014] FCA 1245

SZTEQ v MIBP [2015] FCAFC 39

SZTES v MIBP [2014] FCCA 1765

VSAI v MIMIA [2004] FCA 1602

WZATX v MI [2019] FCCA 2576

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 dependants.

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 on 7 November 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

    Applicant migration history

  2. The applicant first entered Australia [in] April 2015, travelling on a [Student] visa.  This visa was eventually cancelled on 20 November 2015 due to the applicant not commencing his studies in Australia.

  3. On 24 June 2015 the applicant applied for a protection visa.  This application was refused by a delegate of the then Minister for Immigration and Border Protection by written decision dated 7 November 2016.  The applicant seeks review of this decision by this Tribunal.

    Proceedings before the Tribunal

  4. The applicant appeared before the Tribunal to give evidence and present arguments on three occasions, namely, in person at the Perth registry on 21 January 2020 and 9 March 2020, and by video-conference using the MS Teams facility on 22 July 2020. 

  5. The applicant was not represented in this application by a registered migration agent.  The Tribunal was assisted in the hearings by the services of an interpreter fluent in both…

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AGLC
1620482 (Refugee) [2020] AATA 3820
Case
[2020] AATA 3820
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review of a delegate's decision to refuse the applicant a protection visa. The applicant, a Pakistani national, claimed to fear persecution from the Taliban due to his past work as a casual polio eradication worker. The delegate had previously refused the visa, finding the applicant's claims regarding threats from the Taliban and his employment history not credible. The applicant sought review of this decision before the Tribunal.

The primary legal issue before the Tribunal was whether the applicant had established a well-founded fear of persecution or serious harm in Pakistan, thereby engaging Australia's protection obligations under the Migration Act 1958. This required the Tribunal to assess the credibility of the applicant's claims, including the authenticity of supporting documents and the consistency of his evidence regarding threats, his employment, and his actions in response to alleged danger. The Tribunal also considered whether the general security situation in Pakistan would engage Australia's complementary protection obligations.

The Tribunal affirmed the delegate's decision to refuse the protection visa, albeit for different reasons. The Tribunal made numerous adverse credibility findings against the applicant. These findings were based on the applicant's inconsistent and changing statements, the lack of authenticity of submitted documents, and his conduct which was inconsistent with a genuine fear of harm. Specifically, the Tribunal noted issues with the authenticity of a doctor's letter, the World Health Organisation logo on another document, and the applicant's failure to report threats or take credible steps to protect himself or seek asylum when allegedly in danger. The Tribunal concluded that the applicant did not face a real chance of serious harm in Pakistan now or in the foreseeable future from any agent of harm, and therefore did not meet the criteria for either refugee or complementary protection.

Orders

Orders of the court

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Background

Background to the litigation

In light of the findings 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 applicant originates from [a] village in the district of Malakand, Khyber Pakhtunkhwa Province, Pakistan. He seeks protection in Australia under s.36(2)(a) of the Act, and claims to hold a well-founded fear of persecution in Pakistan now and for the foreseeable future for the essential and significant reason of his being threatened with death by the Taliban in Pakistan (TTP) due to his profile as a paid casual polio eradication worker assisting NGO campaigns between May and December 2013 in the region around his home village. Although not expressly raised by the applicant I have also considered the question as to whether the security situation in Pakistan generally is such that the applicant would engage Australia’s complementary protection obligations.Delegate’s decision In a written decision dated 7 November 2016, a delegate of the Minister refused to grant the applicant a protection visa. The delegate summarised his reasons for refusing to grant the visa as follows:[1]In combination to the unusual timing of the letters, that they would be directed at someone with the profile of the applicant, his behaviour in Pakistan, contradictory employment evidence and that he would involve for more than one campaign, I do not accept that he was or Is being threatened by the TTP. Although I accept he was a polio worker at some point In the past, considering he has not been involved in any such employment since 2013, I also do not accept he is of interest to any groups in Pakistan on that basis.[1]Delegate decision record, 7 November 2016, at (8).Tribunal decision in summary After considering the application for protection afresh, I have concluded, for different reasons, that the decision should be affirmed. In particular, I have made a number of adverse findings relating to the credibility of the applicant’s core claims for protection. As is discussed in detail below, in part my findings have been made due to certain corroborating evidence that the applicant has adduced. Some of this evidence was unsatisfactory in its terms, some was inexplicably illogical and some has been deprived of persuasive force because of the existence of inconsistent statements made by the applicant. I have considered the applicant’s claims for protection under the refugee criteria at s.36(2)(a) of the Act individually and then cumulatively and I find that the applicant does not face a real chance of serious harm in Pakistan now or for the foreseeable future from any agent of harm for any reason. I have further considered the applicant’s claims for protection under the complementary protection criteria, individually and then cumulatively and I find that the applicant does not face a real chance of serious harm in Pakistan now or for the foreseeable future from any agent of harm for any reason.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In a written decision dated 7 November 2016, a delegate of the Minister refused to grant the applicant a protection visa. The delegate summarised his reasons for refusing to grant the visa as follows:[1]In combination to the unusual timing of the letters, that they would be directed at someone with the profile of the applicant, his behaviour in Pakistan, contradictory employment evidence and that he would involve for more than one campaign, I do not accept that he was or Is being threatened by the TTP. Although I accept he was a polio worker at some point In the past, considering he has not been involved in any such employment since 2013, I also do not accept he is of interest to any groups in Pakistan on that basis.[1]Delegate decision record, 7 November 2016, at (8).Tribunal decision in summary After considering the application for protection afresh, I have concluded, for different reasons, that the decision should be affirmed. In particular, I have made a number of adverse findings relating to the credibility of the applicant’s core claims for protection. As is discussed in detail below, in part my findings have been made due to certain corroborating evidence that the applicant has adduced. Some of this evidence was unsatisfactory in its terms, some was inexplicably illogical and some has been deprived of persuasive force because of the existence of inconsistent statements made by the applicant. I have considered the applicant’s claims for protection under the refugee criteria at s.36(2)(a) of the Act individually and then cumulatively and I find that the applicant does not face a real chance of serious harm in Pakistan now or for the foreseeable future from any agent of harm for any reason. I have further considered the applicant’s claims for protection under the complementary protection criteria, individually and then cumulatively and I find that the applicant does not face a real chance of serious harm in Pakistan now or for the foreseeable future from any agent of harm for any reason. I have also considered the applicant’s potential implied claim to hold a well-founded fear of harm in Pakistan for the essential and significant reason of generalised acts of violence perpetrated by agents of harm including, but not limited to the Taliban in Pakistan, various non-ideological criminal thugs and other non-state actors. I have concluded that this potential implied claim does not give rise to protection obligations in Australia under either s.36(a) or s.36(aa) of the Act due to the lack of particularity of the harm that is required by these statutory provisions.Proceedings The applicant appeared before the Tribunal as presently constituted to give evidence and present arguments on three occasions: firstly, in person on 21 January 2020 then on 9 March 2020 and by video-conference using MS Teams on 22 July 2020 due to the COVID-19 restrictions. All hearings were held with the assistance of interpreters fluent in the Pashto and English languages.

Ratio Decidendi

Legal Principle Established

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 7 November 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).Applicant migration history The applicant first entered Australia [in] April 2015, travelling on a [Student] visa. This visa was eventually cancelled on 20 November 2015 due to the applicant not commencing his studies in Australia. On 24 June 2015 the applicant applied for a protection visa. This application was refused by a delegate of the then Minister for Immigration and Border Protection by written decision dated 7 November 2016. The applicant seeks review of this decision by this Tribunal. Proceedings before the Tribunal The applicant appeared before the Tribunal to give evidence and present arguments on three occasions, namely, in person at the Perth registry on 21 January 2020 and 9 March 2020, and by video-conference using the MS Teams facility on 22 July 2020. The applicant was not represented in this application by a registered migration agent. The Tribunal was assisted in the hearings by the services of an interpreter fluent in both the English and Pashto languages.Identity and receiving country The applicant provided a copy of his Pakistan passport to the Department with his application for protection. I have no reason to doubt the validity of this document. I have reviewed this passport and, as indicated above, have had the opportunity to interview the applicant on three occasions. Based on the information before me, I find that the applicant is a citizen of Pakistan, which is also the receiving country for the purposes of the refugee and complementary assessments. In light of the findings 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 applicant originates from [a] village in the district of Malakand, Khyber Pakhtunkhwa Province, Pakistan. He seeks protection in Australia under s.36(2)(a) of the Act, and claims to hold a well-founded fear of persecution in Pakistan now and for the foreseeable future for the essential and significant reason of his being threatened with death by the Taliban in Pakistan (TTP) due to his profile as a paid casual polio eradication worker assisting NGO campaigns between May and December 2013 in the region around his home village. Although not expressly raised by the applicant I have also considered the question as to whether the security situation in Pakistan generally is such that the applicant would engage Australia’s complementary protection obligations.Delegate’s decision In a written decision dated 7 November 2016, a delegate of the Minister refused to grant the applicant a protection visa. The delegate summarised his reasons for refusing to grant the visa as follows:[1]In combination to the unusual timing of the letters, that they would be directed at someone with the profile of the applicant, his behaviour in Pakistan, contradictory employment evidence and that he would involve for more than one campaign, I do not accept that he was or Is being threatened by the TTP. Although I accept he was a polio worker at some point In the past, considering he has not been involved in any such employment since 2013, I also do not accept he is of interest to any groups in Pakistan on that basis.[1]Delegate decision record, 7 November 2016, at (8).Tribunal decision in summary