1701354 (Refugee) - [2020] AATA 2003

1701354 (Refugee) [2020] AATA 2003 (24 February 2020)

DECISION RECORD

DIVISION: Migration & Refugee Division

CASE NUMBER: 1701354

COUNTRY OF REFERENCE: Pakistan

MEMBER: Dr Colin Huntly

DATE AND TIME OF

ORAL DECISION AND REASONS: 24 February 2020 at 11:35 am (WA time)

DATE OF WRITTEN RECORD: 15 May 2020

PLACE OF DECISION: Perth

DECISION: The Tribunal remits the decision under review

with the direction that the applicant satisfies s.36(2)(a) of the Act.

Statement made on 15 May 2020 at 9:57am

CATCHWORDS
REFUGEE – protection visa – Pakistan – particular social group – former Muslims and imputed apostates embracing and advocating for secular humanist ideologies in Pakistan – delay in seeking protection – voluntary return to Pakistan – blasphemy laws in Pakistan – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5L, 5LA, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
Appellant S395/2002 v MICA [2003] HCA 71; 216 CLR 473
Croome v Tasmania [1997] 191 CLR 119
MIAC v SZONJ [2011] FCAFC 85
MIMA v Kandasamy [2000] FCA 67
MIMA v Khawar (2002) 210 CLR 1
MIMA v Respondents S152/2003 (2004) 222 CLR 1
MMM v MIMA (1998) 90 FCR 324

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.

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 16 December 2016 to refuse to grant the applicant a protection visa under the Migration Act 1958 (the Act).
At the hearing on 24 February 2020 the Tribunal made an oral decision and gave an oral statement of decision and reasons.
STATEMENT OF DECISION AND REASONS
Attached to this statement is a corrected transcript of the reasons for decision delivered at the hearing on 24 February 2020.
DECISION
The Tribunal remits the decision under review with the direction that the applicant satisfies s.36(2)(a) of the Act.
Dr Colin Huntly
Member

Corrected Transcript

ORAL DECISION OF MEMBER HUNTLY [11:03 AM]
MEMBER: This is an oral decision with reasons delivered to the applicant in person.
INTRODUCTION

The criteria for a protection visa are set out in s.36 of the Act in Sch.2 to the Migration Regulations 1994. The applicant must either be a person in respect of whom Australia has protection obligations under the refugee criterion or on complementary protection grounds. Where relevant the Tribunal has taken into account the policy guidelines prepared by the Department on refugee law and complementary protection, together with any country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) in accordance with Ministerial Direction No.84.
PROCEDURAL BACKGROUND
The applicant appeared before the Tribunal on two occasions to give evidence and present arguments. Firstly, on 4 February 2020 and then on 24 February 2020.
The applicant was not represented in this…

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 1701354 (Refugee)

Details

AGLC: 1701354 (Refugee) [2020] AATA 2003
Case: [2020] AATA 2003
Decision Date: 15 May 2020

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a citizen of Pakistan. The applicant claimed he would face harm from his family if returned to Pakistan due to his abandonment of Islam and embrace of secular humanist ideologies, which he stated made him an atheist. The application was initially refused by a delegate of the Minister, and the applicant sought review by the Tribunal.

The Tribunal was required to determine whether the applicant met the criteria for a protection visa under section 36 of the Act, specifically whether he was a person in respect of whom Australia had protection obligations. This involved assessing the credibility of his claims regarding his atheism, the potential for harm from his family and society in Pakistan due to these beliefs, and considering factors such as his voluntary return to Pakistan in 2014 and the delay in lodging his protection visa application. The Tribunal also had to consider the implications of Pakistan's blasphemy laws in relation to the applicant's stated beliefs.

The Tribunal found that the applicant was a citizen of Pakistan and that Pakistan was his receiving country. While the applicant had initially agreed to proceed on the basis of the information before the Tribunal, the Member indicated that further discussion was needed regarding the applicant's claims of atheism, the credibility of his fear of harm, the circumstances of his failure to complete his student visa, and the significant delay in applying for protection. Ultimately, the Tribunal remitted the decision under review with a direction that the applicant satisfied section 36(2)(a) of the Act.

Orders

Orders of the court

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Background

Background to the litigation

The criteria for a protection visa are set out in s.36 of the Act in Sch.2 to the Migration Regulations 1994. The applicant must either be a person in respect of whom Australia has protection obligations under the refugee criterion or on complementary protection grounds. Where relevant the Tribunal has taken into account the policy guidelines prepared by the Department on refugee law and complementary protection, together with any country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) in accordance with Ministerial Direction No.84.PROCEDURAL BACKGROUND The applicant appeared before the Tribunal on two occasions to give evidence and present arguments. Firstly, on 4 February 2020 and then on 24 February 2020. The applicant was not represented in this application by a registered migration agent and these hearings were held in the English language.MIGRATION HISTORY According to his movement record the applicant arrived in Australia [in] August 2012 travelling on [a] Student Visa. [In] January 2014 the applicant departed Australia and returned to Pakistan. He returned to Australia [in] March 2014 and, [in] March 2016, his student visa ceased. [Later in] March 2016 a visitor visa was granted to the applicant and on 30 March 2016 that visitor visa ceased. On 18 May 2016 the applicant lodged an application for a protection visa. That application for a protection visa was refused by a delegate of the Minister on 16 December 2016. The applicant applies to this Tribunal for a review of that decision.IDENTITY The applicant claims to be a citizen of Pakistan and has provided copies of his passport to the Department with this application. On the basis of the evidence before it the Tribunal finds the applicant is a citizen of Pakistan, which is also his receiving country for the purposes of the refugee and complementary protection assessments. There is no evidence before the Tribunal to suggest that the applicant has a right to enter and reside in a third country for the purposes of s.36(3) of the Act.APPLICANT CLAIMS First hearing At the first hearing, I explained to you what documents I had in my possession. I asked you if there was any information in those documents that should be changed. You said ‘No’. I asked you if there was anything you would like to add to your claims for protection and you said ‘No’. I asked you if you were happy for me to proceed on the basis of the information I had before me and you said ‘Yes’. Also at the first hearing, I read to you the summary of your protection claims that appears in the delegate’s record of decision at Part 4, which states:· The applicant claims that after coming to Australia he became fed up with all religions and found peace in being an atheist.· The applicant claims that he will be harmed by his family members who would kill him on account of becoming an atheist. You agreed that this was a fair and accurate summary of your claims for protection as made in your original application for protection.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Attached to this statement is a corrected transcript of the reasons for decision delivered at the hearing on 24 February 2020.DECISION The Tribunal remits the decision under review with the direction that the applicant satisfies s.36(2)(a) of the Act.Dr Colin Huntly Member The criteria for a protection visa are set out in s.36 of the Act in Sch.2 to the Migration Regulations 1994. The applicant must either be a person in respect of whom Australia has protection obligations under the refugee criterion or on complementary protection grounds. Where relevant the Tribunal has taken into account the policy guidelines prepared by the Department on refugee law and complementary protection, together with any country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) in accordance with Ministerial Direction No.84.PROCEDURAL BACKGROUND The applicant appeared before the Tribunal on two occasions to give evidence and present arguments. Firstly, on 4 February 2020 and then on 24 February 2020. The applicant was not represented in this application by a registered migration agent and these hearings were held in the English language.MIGRATION HISTORY According to his movement record the applicant arrived in Australia [in] August 2012 travelling on [a] Student Visa. [In] January 2014 the applicant departed Australia and returned to Pakistan. He returned to Australia [in] March 2014 and, [in] March 2016, his student visa ceased. [Later in] March 2016 a visitor visa was granted to the applicant and on 30 March 2016 that visitor visa ceased. On 18 May 2016 the applicant lodged an application for a protection visa. That application for a protection visa was refused by a delegate of the Minister on 16 December 2016. The applicant applies to this Tribunal for a review of that decision.IDENTITY The applicant claims to be a citizen of Pakistan and has provided copies of his passport to the Department with this application. On the basis of the evidence before it the Tribunal finds the applicant is a citizen of Pakistan, which is also his receiving country for the purposes of the refugee and complementary protection assessments. There is no evidence before the Tribunal to suggest that the applicant has a right to enter and reside in a third country for the purposes of s.36(3) of the Act.APPLICANT CLAIMS First hearing At the first hearing, I explained to you what documents I had in my possession. I asked you if there was any information in those documents that should be changed. You said ‘No’. I asked you if there was anything you would like to add to your claims for protection and you said ‘No’. I asked you if you were happy for me to proceed on the basis of the information I had before me and you said ‘Yes’. Also at the first hearing, I read to you the summary of your protection claims that appears in the delegate’s record of decision at Part 4, which states:· The applicant claims that after coming to Australia he became fed up with all religions and found peace in being an atheist.· The applicant claims that he will be harmed by his family members who would kill him on account of becoming an atheist.

Ratio Decidendi

Legal Principle Established

The applicant was not represented in this application by a registered migration agent and these hearings were held in the English language.MIGRATION HISTORY According to his movement record the applicant arrived in Australia [in] August 2012 travelling on [a] Student Visa. [In] January 2014 the applicant departed Australia and returned to Pakistan. He returned to Australia [in] March 2014 and, [in] March 2016, his student visa ceased. [Later in] March 2016 a visitor visa was granted to the applicant and on 30 March 2016 that visitor visa ceased. On 18 May 2016 the applicant lodged an application for a protection visa. That application for a protection visa was refused by a delegate of the Minister on 16 December 2016. The applicant applies to this Tribunal for a review of that decision.IDENTITY The applicant claims to be a citizen of Pakistan and has provided copies of his passport to the Department with this application. On the basis of the evidence before it the Tribunal finds the applicant is a citizen of Pakistan, which is also his receiving country for the purposes of the refugee and complementary protection assessments. There is no evidence before the Tribunal to suggest that the applicant has a right to enter and reside in a third country for the purposes of s.36(3) of the Act.APPLICANT CLAIMS First hearing At the first hearing, I explained to you what documents I had in my possession. I asked you if there was any information in those documents that should be changed. You said ‘No’. I asked you if there was anything you would like to add to your claims for protection and you said ‘No’. I asked you if you were happy for me to proceed on the basis of the information I had before me and you said ‘Yes’. Also at the first hearing, I read to you the summary of your protection claims that appears in the delegate’s record of decision at Part 4, which states:· The applicant claims that after coming to Australia he became fed up with all religions and found peace in being an atheist.· The applicant claims that he will be harmed by his family members who would kill him on account of becoming an atheist. You agreed that this was a fair and accurate summary of your claims for protection as made in your original application for protection. I discussed with you the fact that the delegate had not accepted that your claim to be an atheist was credible and that, on this basis, you were refused a protection visa. I indicated at this first hearing that we would need to discuss what you mean by your claims to be an atheist, and also the fact that your return to Pakistan voluntarily in 2014 tended to undermine your claims to fear persecution in that country. We also discussed the fact that I would need to be satisfied about circumstances relating to your failure to complete your student visa through to satisfaction, in terms of graduating from a degree; and, you would need to also explain why you have taken so long – between 2012 and 2016 – before applying for protection.