1713767 (Refugee) - [2023] AATA 1290

1713767 (Refugee) [2023] AATA 1290 (18 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Mahalingam Sutharshan (MARN: 0961664)
CASE NUMBER: 1713767

COUNTRY OF REFERENCE: Pakistan
MEMBER:Christine Cody
DATE:18 March 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the other applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 18 March 2023 at 5:20pm

CATCHWORDS
REFUGEE – protection visa – Pakistan – particular social group – women – unmarried mothers – love marriage without family consent – honour killing – forced pregnancy termination – refusal of arranged marriage – gender-based violence – state protection – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 424A, 499
Migration Regulations 1994, Schedule 2
CASES
Dranichnikov v MIMA [2003] HCA 26
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Sun v MIBP (2016) 243 FCR 220

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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 8 June 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (the Act).
The applicants are a mother (“the applicant”) and child (“the child”) who claim to be citizens of Pakistan. The applicant was born in Lahore, Punjab, Pakistan, in [year] and is now aged [age] years. The applicant came to Australia [in] November 2014, holding a [Student] visa. The applicant applied for the visa on 22 December 2014. The child was born [time period] after the applicant arrived in Australia in [year] and is now aged [age] years.
The applicant lodged an application for review to the Tribunal. The Tribunal had 2 hearings, and indicated to the applicant that it would send a s 424A letter due to its concerns. The Tribunal has found that the applicant is not a witness of truth and she is prepared to tell multiple untruths to obtain a migration outcome. However, the Tribunal is prepared to accept a minimal amount of evidence from the applicant (mostly when it is corroborated by other evidence), and when this is considered in the context of the relevant country information, the Tribunal accepts that the applicant faces a real chance of serious harm for reason of her membership of a particular social group. It has therefore not sent out a s 424A letter but has…

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 1713767 (Refugee)

Details

AGLC: 1713767 (Refugee) [2023] AATA 1290
Case: [2023] AATA 1290
Decision Date: 18 March 2023

CaseChat Overview and Summary

This case concerned an application for review by the applicant, a non-citizen in Australia, of a decision made by the delegate of the Minister to refuse her protection visa. The applicant claimed to fear harm in Pakistan due to a love marriage entered into without family consent, familial opposition to this marriage, and the potential for honour killing. The delegate had found the applicant not to be a refugee and not to meet the criteria for complementary protection, leading to the refusal of the visa.

The primary legal issues before the Tribunal were whether the applicant met the definition of a refugee under section 5H of the *Migration Act 1958* (Cth) by having a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, and whether she met the complementary protection criterion under section 36(2)(aa) of the Act, which requires a real risk of significant harm as a necessary and foreseeable consequence of removal to Pakistan. Specifically, the Tribunal had to determine if the applicant's circumstances, including her status as an unmarried mother who had entered a love marriage against her family's wishes, constituted membership of a particular social group and if the feared harm amounted to persecution or significant harm.

The Tribunal considered the applicant's credibility and the documentary evidence provided, including a marriage certificate and letters from relatives, which it found to be unpersuasive and potentially fabricated. While acknowledging the psychological reports indicating the applicant suffered from anxiety and depression linked to her fears of returning to Pakistan, the Tribunal found her claims to be inconsistent and lacking in truthfulness. The Tribunal noted that while country information suggested that individuals entering love marriages without family consent could face threats, it was not satisfied that the applicant's specific claims were made out due to cumulative contradictions and implausibilities. The Tribunal also considered the potential for state protection, but ultimately found that the applicant had not established a well-founded fear of persecution or a real risk of significant harm.

The Tribunal affirmed the delegate's decision, finding that the applicant had not satisfied the criteria for a protection visa. The application for review was therefore dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In summary, the Tribunal considers that the applicant is not a witness of truth and she is prepared to continually tell untruths and fabricate evidence to obtain the outcome she desires. Corroborative evidence Documents: The Tribunal is not prepared to accept any of the documents from Pakistan provided by the applicant, including the marriage certificate to [Mr B], WhatsApp messages she claims are between her and [Mr B], and letters claimed to be from her relatives in Pakistan confirming that the applicant engaged in a love marriage with [Mr B], and that they cannot support the applicant if she returns home. It is of interest that the sister [Sister B] also provided a letter for her student visa application where she supported the applicant’s student visa claims (that the applicant herself has now resiled from). Although the Family Court in Australia appear to have accepted that the marriage certificate between the applicant and [Mr A] was genuine, the Tribunal does not accept that this marriage was genuinely entered into. The Tribunal notes that fraudulent documents are available, and it considers that the applicant has very limited credibility. Psychological reports: The Tribunal has considered the 2 psychological reports. The first report of [Doctor A], dated 26 August 2015, stated that the applicant suffers from mixed anxiety and depression that is being treated by cognitive behaviour therapy. The second was dated 4 May 2021. He does not state how often he has seen her since the first report in 2015. He diagnosed her with major depressive disorder and generalised anxiety disorder. He said that she informed him she faces sexual assault and torture and that she genuinely believes she will be killed if she returns. He is of the opinion that her conditions are associated with her fears of returning home and that her conditions will abate if she does not have to return to Pakistan. The Tribunal is prepared to accept that she has the conditions outlined by the psychologist. It is also prepared to accept that she has some concerns about returning home (although it does not accept what, she claims in these proceedings, and to the psychologist, will happen to her and the reasons why). [Roommate A]: The applicant provided a statement from [Roommate A] who stated that she lived with the applicant from November 2014 until the witness went back to Pakistan in January 2017. In the statement she provided details about the applicant’s claims and all the persons from whom she claims to fear harm. The witness attended before the Tribunal as a witness (by phone). The delegate did not find the written evidence of [Roommate A] to be persuasive and considered it inconsistent. The Tribunal found the written evidence to be much more detailed than her knowledge at hearing (for example at hearing she did not know the surname of [Mr B], she called him [name variant], and she did not repeat the written claim at hearing that she had met him in Pakistan). The Tribunal considers that she may have received assistance from the applicant in writing it, and thus the Tribunal gives it little weight.

Decision

Reasons for decision

Further documents were provided including the divorce between the applicant and [Mr A] granted by a court in Australia (effective [in] April 2016) and a psychological report (referred to further below) stating that the applicant suffers from mixed anxiety and depression that is being treated by cognitive behaviour therapy.The delegate’s decision record The delegate accepted that the child was a member of his mother’s family unit. The delegate found that the applicant has a history of being complicit in the submission of false statements and bogus documents to the Department and was not satisfied that she has been genuine with her testimony or documents. The delegate considered the applicant’s 2 main claims, noting that both substantially assert familial opposition to a love marriage forced her to flee Pakistan. In the first set of claims she claimed to be the subject of domestic violence and that she was forced to terminate a pregnancy (claims which she subsequently requested not to be considered). In the second set of claims the applicant claimed that she had angered her brothers by not entering into a marriage with a cousin, which had been arranged between them in childhood. The delegate found that the claims did not have a nexus with race, religion, nationality or political opinion, and as such the applicant does not meet the criteria of membership of a particular social group, therefore the applicant was found not to be a refugee as defined in s 5H and the criterion in paragraph 36 (2) (a) of the Act was not satisfied. Concerning complementary protection, the delegate noted that her claimed genuine husband could not get the consent of his family to marry a second wife. The delegate referred to country information indicating that second marriages can occur in certain circumstances. The delegate considered that country information supports the applicant’s claims that parties to love marriages entered into without the consent of their respective families, could be threatened by members of the respective families. However,the delegate considered the applicant’s claims against the cumulative contradictions, disparities and implausibilities and was not satisfied that her claims were made out. The Tribunal The applicants applied to the Tribunal for review of the decision on 28 June 2017. The applicants provided a copy of the delegate’s notification of refusal to the Tribunal. They were represented by their agent. The applicant provided a further statement dated 14 May 2021 (with a correcting statement dated 20 May 2021), submissions from the agent and further documents which have been considered, referring to fear of significant harm including torture; degrading, inhuman, and cruel, ill-treatment and abuse from the applicant’s family, relatives, her ex-husband’s family and family and friends of [Cousin A] and [Mr A] and the conservative Islamic and Pakistani society due to the applicant’s particular circumstance as a single mother without male protection who is perceived as a person who has destroyed the honour of the family and the Pakistani society.

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), which are extracted in the attachment to this decision.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.Attachment - Extract from Migration Act 19585 (1) Interpretation…cruel or inhuman treatment or punishment means an act or omission by which:(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;but does not include an act or omission:(c) that is not inconsistent with Article 7 of the Covenant; or(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:(a) that is not inconsistent with Article 7 of the Covenant; or(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:(a) for the purpose of obtaining from the person or from a third person information or a confession; or(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or(c) for the purpose of intimidating or coercing the person or a third person; or(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…receiving country, in relation to a non-citizen, means:(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.…5H Meaning of refugee(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.Note: For the meaning of well-founded fear of persecution, see section 5J.…5J Meaning of well-founded fear of persecution(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and(c) the real chance of persecution relates to all areas of a receiving country.Note: For membership of a particular social group, see sections 5K and 5L.(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.Note: For effective protection measures, see section 5LA.(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or(b) conceal an innate or immutable characteristic of the person; or(c) without limiting paragraph (a) or (b), require the person to do any of the following:(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;(ii)conceal his or her true race, ethnicity, nationality or country of origin;(iii)alter his or her political beliefs or conceal his or her true political beliefs;(iv)conceal a physical, psychological or intellectual disability;(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and(b) the persecution must involve serious harm to the person; and(c) the persecution must involve systematic and discriminatory conduct.(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:(a) a threat to the person’s life or liberty;(b) significant physical harassment of the person;(c) significant physical ill‑treatment of the person;(d) significant economic hardship that threatens the person’s capacity to subsist;(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.5K Membership of a particular social group consisting of familyFor the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and(b) disregard any fear of persecution, or any persecution, that:(i)the first person has ever experienced; or(ii)any other member or former member (whether alive or dead) of the family has ever experienced;where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.Note: Section 5G may be relevant for determining family relationships for the purposes of this section.5L Membership of a particular social group other than familyFor the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:(a) a characteristic is shared by each member of the group; and(b) the person shares, or is perceived as sharing, the characteristic; and(c) any of the following apply:(i)the characteristic is an innate or immutable characteristic;(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;(iii)the characteristic distinguishes the group from society; and(d) the characteristic is not a fear of persecution.5LA Effective protection measures(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:(a) protection against persecution could be provided to the person by:(i)the relevant State; or(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:(a) the person can access the protection; and(b) the protection is durable; and(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.…36 Protection visas – criteria provided for by this Act…(2)A criterion for a protection visa is that the applicant for the visa is:(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (a); and(ii)holds a protection visa of the same class as that applied for by the applicant; or(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (aa); and(ii)holds a protection visa of the same class as that applied for by the applicant.(2A)A non‑citizen will suffer significant harm if:(a) the non‑citizen will be arbitrarily deprived of his or her life; or(b) the death penalty will be carried out on the non‑citizen; or(c) the non‑citizen will be subjected to torture; or(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or(e) the non‑citizen will be subjected to degrading treatment or punishment.(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.…