1700423 (Refugee) - [2020] AATA 1140

1700423 (Refugee) [2020] AATA 1140 (17 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1700423
COUNTRY OF REFERENCE:                  Pakistan
MEMBER:Paul Millar
DATE:17 January 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 17 January 2020 at 4:38pm

CATCHWORDS
REFUGEE – protection visa – Pakistan – religion – Shia – race – Pashtun – Turi tribe – Imamia Organisation member – attacks by Taliban – refusal to cooperate with Taliban demands – fear of kidnapping – threatening phone calls – family’s return to home village – restrictions on media reporting – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5H, 5J – 5LA, 36, 65
Migration Regulations 1994, Schedule 2
CASES
DFE16 v MIBP [2017] FCCA 308
DFE16 v MIBP [2018] FCAFC 177
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 22 December 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act). The applicant, who the Tribunal finds to be a citizen of Pakistan, applied for the visa on 14 September 2015.[1] The applicant appeared before the Tribunal on 13 December 2019 to give evidence and present arguments in relation to the issues arising in the review. The Tribunal hearing was conducted with the assistance of a Pashto speaking interpreter. The applicant was represented in relation to the review by his registered migration agent who attended the hearing.
[1] The Tribunal's finding on citizenship is based on copies of pages from the applicant's Pakistan passport which he produced at the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
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 because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1700423 (Refugee)

Details

AGLC: 1700423 (Refugee) [2020] AATA 1140
Case: [2020] AATA 1140
Decision Date: 17 January 2020

CaseChat Overview and Summary

This matter concerned an application for review of a decision to refuse a protection visa. The applicant, a Turi Shia man from Parachinar, claimed he feared persecution due to his religious and tribal affiliation, and his family's refusal to cooperate with the Taliban. The Administrative Appeals Tribunal (AAT) had concerns about the applicant's credibility, particularly regarding inconsistencies in his account of a Taliban attack on his family home and a related attack on another community leader's home.

The primary legal issue before the court was whether the applicant met the criteria for a protection visa, specifically whether he had established a well-founded fear of persecution based on his race, religion, or membership of a particular social group, or alternatively, whether he met the criteria for complementary protection. This involved assessing the applicant's credibility and the objective country information regarding the risk of harm to individuals of his background in Pakistan.

The court considered the applicant's evidence, including his statements to the Department and the Tribunal, and his statutory declarations. The AAT had identified discrepancies in the applicant's account of the 2007 Taliban attack, including the number of rockets fired and the simultaneous attack on another individual's home. The court noted that if a person does not meet the refugee criterion under s.36(2)(a) of the Act, they may still qualify for a visa if they meet the complementary protection criterion under s.36(2)(aa), which requires a real risk of significant harm as a necessary and foreseeable consequence of removal from Australia. The AAT was required to consider relevant guidelines and country information in making its determination.

The decision under review was affirmed.

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 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 (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCE According to his evidence to the Department and the Tribunal, the applicant claims protection on the ground that he is an educated Turi Shia from Parachinar whose uncle is a high profile community leader.[2] The Tribunal holds concerns about the applicant’s credibility. Before discussing them, it is necessary to recite the applicant’s evidence at the Tribunal hearing relating to his protection claims.The applicant’s evidence at the hearing[2] The applicant's evidence to the Department and the Tribunal comprises the contents of the protection visa application forms; his statutory declarations made on 15 April 2016 and 4 December 2019; his evidence at his interview with the delegate for which the Tribunal was provided with a written record and his evidence at the Tribunal hearing. The Tribunal had access to the Department file relating to the application made by the applicant for a student visa to come to Australia. The materials on that file are not relevant to the grounds on which this review has been determined. The applicant is [an age]-year-old Turi Shia man from the village of X, Parachinar in the Kurram Agency, Khyber Pakhtunkhwa province. In April 2007, the Taliban attacked the applicant’s family home. When asked how that attack was made, the applicant said that prior to April 2007 the Taliban had made a request of the Turi tribe which was not accepted. The applicant said that his uncle was a ‘malik’, being a leader or elder of the community and this was why they attacked the family home. When again asked how that was done, the applicant said that his family had a huge [house] and the Taliban launched rockets at it. He said that one rocket was ‘launched’ inside the house, then two launched at one side of the house and two rockets launched at the other side. The applicant said that his family home was situated in the mountains near the border with Afghanistan and he believes that the Taliban launched rockets from there. The Tribunal put to the applicant that in his statutory declaration made on 15 April 2016, he said that the Taliban attacked ‘[Village 1]’ leaving [number] people dead. In response, the applicant said that while there was an attack on his family home, at the same time, the Taliban also launched an attack on the house of [Leader A] whom the applicant said was a famous person in [Group 1] to which the applicant’s uncle also belonged. He said that the village of [Village 1], where that person’s house was located, was in a different area from the applicant’s native village of X. The Tribunal asked the applicant whether he was claiming that, on the same day, the Taliban launched the attack on his family home and the home of [Leader A]. He said that this person’s home was attacked because the request made by the Taliban to the Turi community was refused by [Group 1]. In the attack on his family home, his uncle’s [relative] was killed. In the attack on [Leader A’s] home, that person’s grandson or son was killed.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B). Mandatory considerations 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 (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCE According to his evidence to the Department and the Tribunal, the applicant claims protection on the ground that he is an educated Turi Shia from Parachinar whose uncle is a high profile community leader.[2] The Tribunal holds concerns about the applicant’s credibility. Before discussing them, it is necessary to recite the applicant’s evidence at the Tribunal hearing relating to his protection claims.The applicant’s evidence at the hearing[2] The applicant's evidence to the Department and the Tribunal comprises the contents of the protection visa application forms; his statutory declarations made on 15 April 2016 and 4 December 2019; his evidence at his interview with the delegate for which the Tribunal was provided with a written record and his evidence at the Tribunal hearing. The Tribunal had access to the Department file relating to the application made by the applicant for a student visa to come to Australia. The materials on that file are not relevant to the grounds on which this review has been determined. The applicant is [an age]-year-old Turi Shia man from the village of X, Parachinar in the Kurram Agency, Khyber Pakhtunkhwa province. In April 2007, the Taliban attacked the applicant’s family home. When asked how that attack was made, the applicant said that prior to April 2007 the Taliban had made a request of the Turi tribe which was not accepted. The applicant said that his uncle was a ‘malik’, being a leader or elder of the community and this was why they attacked the family home. When again asked how that was done, the applicant said that his family had a huge [house] and the Taliban launched rockets at it. He said that one rocket was ‘launched’ inside the house, then two launched at one side of the house and two rockets launched at the other side.