1703045 (Refugee)

Case [2017] AATA 1046

1703045 (Refugee) [2017] AATA 1046 (8 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1703045

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Susan Pinto

DATE:8 June 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 08 June 2017 at 2:38pm

CATCHWORDS

Refugee – Cancellation – Protection visa – Pakistan – Religion – Ahmadi Muslim – False information – Kidnapping claims – Official discrimination – No State protection – Relocation not possible

LEGISLATION
Migration Act 1958, ss 5, 5J, 36(2)(a), 48, 91WA, 97, 98, 99, 100, 101, 102, 103, 104, 105, 107, 108(a), 109, 116, 128, 134B, 140, 197C, 198, 418, 499
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload Act 2014, Schedule 5, s 2

Migration Regulations 1994, r 2.41

CASES

Abebe v The Commonwealth (1999) 197 CLR 611

BGM16 v MIBP [2017] FCAFC 72

Chen v MIBP [2014] FCCA 497

COT15 v MIBP (No.1) [2015] FCAFC 190

MIAC v Khadgi (2010) 190 FCR 248

MIMA v Teoh (1994) 183 CLR 273

S395/2002 v MIMA (2003) 216 CLR 473

Suleyman v MIMA [2000] FCA 610

Tien v MIMA (1998) 89 FCR 80

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.

INTRODUCTION

  1. The applicant is a citizen of Pakistan. She was born in Punjab state in Pakistan on [date]. She has claimed that her religion is Ahmadi Muslim. She arrived in Australia on a [temporary] visa in early August 2013.

  2. The applicant made an application to the Department of Immigration for a Subclass 866 (Protection) visa [in] August 2013. She was interviewed by the delegate of the Minister for Immigration [in] November 2013. The applicant made several claims relating to her fear of harm on the basis of her religion, including that her husband had been injured during an attack on Ahmadis and her son was kidnapped. The delegate did not accept that the applicant’s son was kidnapped, but accepted that she is of the Ahmadi faith and there was a real chance that she would be persecuted on the basis of her religion. The delegate found, therefore, that the applicant had a well founded fear of persecution for one of the five reasons set out in the Refugees Convention, and she was owed protection obligations. The applicant was granted a Protection visa [in] January 2014.

  3. Following the grant of the Protection visa, the applicant’s [husband] lodged an application for a Subclass 100 (Partner) visa in [City 1]. Their [children], [named], were included in the application as dependents of [the applicant's husband]. The applicant’s husband and son were interviewed in [City 1] [in] March 2015 in relation to the Partner visa applications.

  4. The delegate of the Minister…

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1703045 (Refugee) [2017] AATA 1046
Case
[2017] AATA 1046
Decision Date

CaseChat Overview and Summary

This matter concerned an application to review a decision to cancel the applicant's Subclass 866 (Protection) visa. The applicant, an Ahmadi Muslim from Pakistan, had her visa cancelled on the grounds that she had failed to comply with provisions of the *Migration Act 1958* (Cth) requiring the provision of correct information in her visa application and passenger card. The applicant contended that she had provided truthful information and that her fears of persecution in Pakistan were genuine.

The primary legal issue before the court was whether the applicant had failed to comply with the relevant sections of the *Migration Act 1958* (Cth) concerning the provision of correct information, and if so, whether her visa should be cancelled. This involved assessing the veracity of her claims regarding persecution as an Ahmadi Muslim in Pakistan, including allegations of business disruption, family attacks, and the kidnapping of her son, in light of the delegate's findings of inconsistencies and fabricated claims.

The court considered the applicant's evidence, including her claims of religious persecution, her involvement in the Ahmadiyya community, and the alleged attacks on her business and family. The delegate had accepted that the applicant was a genuine Ahmadi Muslim and that she was unable to practice her religion freely in Pakistan due to fear of serious harm, with her fears being consistent with independent human rights reports. However, the delegate found the applicant's evidence regarding the ransacking of her business and the attack on her family to be vague and unconvincing, and concluded that her claims about her son's kidnapping were fabricated to strengthen her refugee claim. Despite these credibility concerns regarding specific events, the delegate ultimately found that the applicant appeared genuinely fearful of persecution for reasons of her religion and that there were no inconsistencies in her claims related to the practice of her religion.

The Tribunal set aside the delegate's decision to cancel the applicant's visa and substituted a decision not to cancel her Subclass 866 (Protection) visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances. The relevant law is attached to this decision. RELEVANT EVIDENCEThe applicant’s Protection visa application As stated above, the applicant lodged an application for a Protection visa in August 2013. The applicant claimed in her Protection visa application that she is an Ahamdi from Pakistan. She claimed that she studied at a [high] school and completed Grade [number] in [year]. She claimed that she ceased her studies because of religious persecution. The applicant stated that she was an active member of the Ahmadi community and involved in the [Ahmadiyya] in [a certain] region. In 1993, the organisation was attacked by a large group of fundamental Mullahs and members of the Khatme Nubuwat organisation. The applicant’s father arranged for her to marry and in November 1993 she was married at the age of [age] years and she relocated to Lahore to live with her husband. The applicant established a [business] in Lahore and later set up another [business]. She maintained a low profile and only a few of her close friends and employees knew that her religion is Ahmadi. Her business was progressing well and she planned to export her [products]. However, [in] May 2010 about [number] Ahmadis were killed by extremists whilst praying at their mosques. The applicant states that her husband experienced minor injuries during the attack. The applicant stated that nothing further happened until [August] 2013 when one of her employees, [Mrs A], came to her company after business hours and stole her stock of [goods]. The applicant and her husband later learned that [Mrs A] had been assisted by some Mullahs who had discovered that the applicant and her family are Ahmadis. The plans to occupy the business were made after the applicant left Pakistan to visit her family in Australia. The applicant also referred in her statement to the kidnapping of her [son], which occurred in Pakistan [in] August 2013 when some terrorists came to their home. The applicant stated that her husband and family could not do anything to protect the applicant’s son because terrorists openly fired on them. The applicant claimed that her husband contacted the local Ahmadi community and told them about the incidents and they moved to [Town 1], but their son has remained in the custody of the terrorists. During an interview with the delegate, held [in] November 2013, the applicant expanded on her claims and stated that her husband reported the kidnapping of his son to the authorities but he did not receive a favourable response and he subsequently paid a ransom of [number] rupees and [his son] was released after one month. Since the attack on their home and business, the family has relocated to [Town 1], where with the assistance of the Ahmadi community, they have found accommodation. They remain in hiding and the applicant’s children do not attend school. Delegate’s decision

Decision

Reasons for decision

During an interview with the delegate, held [in] November 2013, the applicant expanded on her claims and stated that her husband reported the kidnapping of his son to the authorities but he did not receive a favourable response and he subsequently paid a ransom of [number] rupees and [his son] was released after one month. Since the attack on their home and business, the family has relocated to [Town 1], where with the assistance of the Ahmadi community, they have found accommodation. They remain in hiding and the applicant’s children do not attend school. Delegate’s decision The delegate accepted on the basis of the letter which the applicant provided from the Ahmadiyya Muslim Association of Australia that she is a member of the Ahmadi faith. The delegate stated that the Ahmadiyya Association has assured the Department that letters of support are only issued to genuine Ahmadis and background checks are undertaken to ensure they are genuine. The applicant also presented her Pakistan passport which also lists her religion as Ahmadiyya. The delegate did not accept that the applicant’s business was ransacked and her family attacked by fundamentalists following her arrival in Australia. The delegate found the applicant’s evidence in relation to the attack on her business and her family was “vague and unconvincing” and “even allowing for the applicant’s lack of familiarity with the interview setting and failure to anticipate that her claims would be scrutinised, I formed the impression that she was making up a story and improvising on occasions”. The delegate also referred to the applicant’s claims in relation to her son’s kidnapping. The delegate stated that the applicant applied for protection at a time when her son was allegedly kidnapped, rather than returning home to assist her husband with their son’s release. The delegate stated that the applicant’s actions did not “reflect a genuine concern” for her son’s wellbeing and she has fabricated her claims relating to the kidnapping in order to strengthen her claim for refugee status. The delegate concluded that there are concerns about the applicant’s overall credibility, but considered that she was nevertheless forthright about her experiences as an Ahmadi in Pakistan. The delegate noted that she appeared to be genuinely fearful of persecution for reasons of her religion. The delegate noted that there were no inconsistencies between the applicant’s written claims and the evidence she presented at interview in relation to the practise of her religion. The delegate stated that the applicant is unable to practise her religion freely and is unable to call herself a Muslim, attend prayer ceremonies at a mosque, organise and attend religious gatherings, or meet with other Ahmadi Muslims publicly. The delegate stated that the applicant’s fears are consistent with independent reports by credible human rights commentators on the situation of Ahmadis in Pakistan, and there is no evidence contradicting her claims. The delegate accepted that the applicant was involved in the Ahmadiyya community in Pakistan and was forced to curb the practise of her religion for fear of serious harm. The delegate also accepted that the applicant has a genuine interest in practising her religion openly and has acted in this way in Australia where she lives without the fear of the recrimination she felt whilst in Pakistan.

Ratio Decidendi

Legal Principle Established

The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.Susan PintoMemberATTACHMENT – Relevant Extracts from the Migration Act 1958:5Interpretation(1)In this Act, unless the contrary intention appears:bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:(a) purports to have been, but was not, issued in respect of the person; or(b) is counterfeit or has been altered by a person who does not have authority to do so; or(c) was obtained because of a false or misleading statement, whether or not made knowingly.97InterpretationIn this Subdivision:application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).Note:Bogus document is defined in subsection 5(1).98Completion of visa applicationA non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.99Information is answerAny information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.100Incorrect answersFor the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.101Visa applications to be correctA non‑citizen must fill in or complete his or her application form in such a way that:(a)all questions on it are answered; and(b)no incorrect answers are given or provided.107Notice of incorrect applications(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:(a) giving particulars of the possible non‑compliance; and(b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:(i)if the holder disputes that there was non‑compliance:(A)shows that there was compliance; and(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or(ii)if the holder accepts that there was non‑compliance:(A)give reasons for the non‑compliance; and(B)shows cause why the visa should not be cancelled; and(c) stating that the Minister will consider cancelling the visa:(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or(ii)if the holder gives the Minister a written response within that period—when the response is given; or(iii)otherwise—at the end of that period; and(d) setting out the effect of sections 108, 109, 111 and 112; and(e) informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and(f) requiring the holder:(i)to tell the Minister the address at which the holder is living; and(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.(1A)The period to be stated in the notice under subsection (1) must be:(a) in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or(b) otherwise—14 days.(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:(a) visas of a stated class; or(b) visa holders in stated circumstances; or(c) visa holders in a stated class of people (who may be visa holders in a particular place); or(d) visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.