1714406 (Refugee)

Case [2021] AATA 1862

1714406 (Refugee) [2021] AATA 1862 (13 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1714406

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Dr Colin Huntly

DATE:13 April 2021

PLACE OF DECISION:  Perth

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

Statement made on 13 April 2021 at 10:14am

CATCHWORDS
REFUGEE – protection visa – Pakistan – imputed political opinion – opposition to the Taliban – NGO activity – threat letters – physical and mental health needs – frequent voluntary returns to Pakistan – delay in applying of protection – generalised acts of violence – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2

CASES
BBK15 v MIBP [2016] FCA 680
Chan v MIEA (1989) 169 CLR 225
Haji Ibrahim v MIMA (1999) 94 FCR 259
MIMA v Haji Ibrahim (2000) 204 CLR 1
MIMA v Khawar (2002) 210 CLR 1
MZAAJ v MIBP [2015] FCA 478
SZSPT v MIBP [2014] FCA 1245
SZTEQ v MIBP [2015] FCAFC 39
SZTES v MIBP [2014] FCCA 1765
SZTES v MIBP [2015] FCA 719
VSAI v MIMIA [2004] FCA 1602

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

  1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 16 June 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

  2. The applicant, who claims to be a citizen of Pakistan, applied for the visa on 2 July 2015.  The delegate refused to grant the visa, firstly on the basis that the applicant did not have a well-founded fear of persecution in Pakistan from any person, for any reason. 

  3. In the alternative, the delegate was not satisfied that, as a necessary and foreseeable consequence of the applicant being removed to Pakistan, he faced a real risk of significant harm now or in the reasonably foreseeable future from any person, for any reason.

    WHAT IS THE BACKGROUND OF THIS APPLICATION?

    Introduction

  4. The applicant originates from Mansehra in Khyber Pakhtunkhwa Province, Pakistan.  He arrived in Australia on a [temporary] visa [in] October 2010.  The applicant applied for a protection visa in Australia on 2 July 2015. 

  5. The applicant voluntarily returned to Pakistan on four subsequent occasions, travelling on this visa.  His last return flight to Australia from Pakistan occurred [in] March 2015.  In the final four and a half weeks of his latest visit to Pakistan, he assisted his father in promoting the activities of a small, family-financed NGO, ‘[Organisation 1].  [Organisation 1] was formed [in] February 2015 in Mansehra by his immediate family together with the nominal support of three family friends.  The applicant’s…

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AGLC
1714406 (Refugee) [2021] AATA 1862
Case
[2021] AATA 1862
Decision Date

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a citizen of Pakistan. The applicant arrived in Australia in October 2010 and applied for a protection visa in July 2015. He had voluntarily returned to Pakistan on four occasions between his arrival and March 2015, the last return to Australia being in March 2015. During his final visit, he assisted his father in promoting a small, family-financed NGO, '[Organisation 1]', which was formed in February 2015 and subsequently terminated by his father in May 2015. The applicant claimed a well-founded fear of persecution from Taliban-associated groups in Pakistan due to his association with this NGO. The Tribunal also considered whether the applicant's physical and mental health needs engaged Australia's protection obligations, as well as the general security situation in Pakistan.

The primary legal issues before the Tribunal were whether the applicant had a well-founded fear of persecution for a Convention reason, specifically an imputed political opinion arising from his association with '[Organisation 1]', and whether Australia owed him protection obligations under the Act due to his physical and mental health needs or the general security situation in Pakistan. The Tribunal was required to assess the risk of significant harm the applicant might face upon return to Pakistan, considering both his express claims and any implied claims arising from his circumstances.

The Tribunal found that the applicant did not face a real chance of serious harm in Pakistan now or in the foreseeable future due to his association with '[Organisation 1]'. While acknowledging aspects of the applicant's mental and physical health claims, the Tribunal determined that the available medical evidence did not support an inference that his return would engage Australia's complementary protection obligations on these grounds. Furthermore, the Tribunal considered country information indicating a significant reduction in violent and terrorism-related attacks in Pakistan due to security operations, which did not support a finding that the general security situation would engage Australia's protection obligations.

Based on these findings, the Tribunal was not satisfied that the applicant was a person to whom Australia owed protection obligations under the Act. Consequently, the delegate's decision to refuse the protection visa was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

In the alternative, the delegate was not satisfied that, as a necessary and foreseeable consequence of the applicant being removed to Pakistan, he faced a real risk of significant harm now or in the reasonably foreseeable future from any person, for any reason.WHAT IS THE BACKGROUND OF THIS APPLICATION?Introduction The applicant originates from Mansehra in Khyber Pakhtunkhwa Province, Pakistan. He arrived in Australia on a [temporary] visa [in] October 2010. The applicant applied for a protection visa in Australia on 2 July 2015. The applicant voluntarily returned to Pakistan on four subsequent occasions, travelling on this visa. His last return flight to Australia from Pakistan occurred [in] March 2015. In the final four and a half weeks of his latest visit to Pakistan, he assisted his father in promoting the activities of a small, family-financed NGO, ‘[Organisation 1]. [Organisation 1] was formed [in] February 2015 in Mansehra by his immediate family together with the nominal support of three family friends. The applicant’s father terminated [Organisation 1] [in] May 2015, approximately [time period] after the applicant had returned to Australia. The applicant 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 from persons and groups associated with the Taliban in Pakistan (TTP) for the essential and significant reason of his association with [Organisation 1]. Also, while not included in the applicant’s express claims for protection, the Tribunal has considered whether or not he engages Australia’s protection obligations for the essential and significant reason of his physical and mental health needs. The question as to whether the security situation in Pakistan generally is such that the applicant would engage Australia’s complementary protection obligations has been considered below. The potential impact of Covid-19 on any decision on return may also be a relevant consideration. This Tribunal’s decision in summary I have considered the applicant’s express claims for protection under the refugee criterion, individually and then cumulatively as far as they relate to the activities of [Organisation 1] and 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 this essential and significant reason. I have accepted aspects of the applicant’s mental and physical health related claims and I have considered the implied claim that the applicant has a well-founded fear of persecution in Pakistan now, or in the reasonably foreseeable future, for the essential and significant reason of his mental and physical health condition under the refugee criterion. 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 that essential or significant reason. I find that the available professional medical evidence does not support an inference that the applicant’s return to Pakistan engages Australia’s complementary protection obligations for that essential or significant reason.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The question as to whether the security situation in Pakistan generally is such that the applicant would engage Australia’s complementary protection obligations has been considered below. The potential impact of Covid-19 on any decision on return may also be a relevant consideration. This Tribunal’s decision in summary I have considered the applicant’s express claims for protection under the refugee criterion, individually and then cumulatively as far as they relate to the activities of [Organisation 1] and 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 this essential and significant reason. I have accepted aspects of the applicant’s mental and physical health related claims and I have considered the implied claim that the applicant has a well-founded fear of persecution in Pakistan now, or in the reasonably foreseeable future, for the essential and significant reason of his mental and physical health condition under the refugee criterion. 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 that essential or significant reason. I find that the available professional medical evidence does not support an inference that the applicant’s return to Pakistan engages Australia’s complementary protection obligations for that essential or significant reason. Based on the foregoing findings, am not satisfied that the applicant is a person to whom Australia owes protection obligations under the Act.Proceedings in person The applicant appeared in person before the Tribunal as presently constituted to give evidence and present arguments on two occasions: firstly, on 11 February 2021, and again 1 April 2021. The first hearing was held by telephone using the MS Teams platform due to concerns surrounding COVID-19. The second hearing was held in person at the Perth registry of the Tribunal. All hearings were held with the assistance of interpreters fluent in the Pashtun, Urdu and English languages. The applicant was not represented in his application by a registered migration agent. Materials available to the Tribunal In addition to the country information surveyed in this decision, I have had regard to the applicant’s 2015 original Form 866C seeking a protection visa and the department’s file in this application. The departmental file contains selected newspaper articles dated between 2008 and 2015, depicting numerous instances of sectarian violence perpetrated in Khyber Pakhtunkhwa Province, particularly in the Mansehra area. There is a clear link between NGO activity and instances of targeted and indiscriminate deadly force described in these news reports. Also included in the material on the departmental file is what purports to be a memorandum of association dated [in] December 2014 and a certificate of registration for [Organisation 1] dated [in] February 2015. This shows the following nominal office holders:a.Applicant’s father (President);b.Applicant (Senior Vice President);c.[Mr A] (General Secretary);d.Applicant’s sister (Finance Secretary);e.Applicant’s mother (V.C. Chief In Patron);f.[Mr B] (Joint Secretary);g.[Mr C] (Member).

Ratio Decidendi

Legal Principle Established

The Tribunal further notes the following extract of country information:[12] [12]DFAT Country Information Report: Pakistan (20 February 2019) at 19.Security Operations 2.75.The Pakistan armed forces have launched several security operations in Pakistan due to terrorism and the volatile security environment. Operation Zarb-e-Azb commenced in June 2014 and targeted terrorist groups, including the TTP, in North Waziristan (NWA), former FATA. Zarb-e-Azb spread to other parts of the former FATA and Khyber Pakhtunkhwa, and involved the Rangers, a paramilitary security force, and intelligence operations in Balochistan and Karachi to target terrorist, separatist and criminal groups. 2.76.In December 2014, the APS attack led to the NAP, which, together with Operation Zarb-e-Azb, formed a civil-military effort to combat terrorist, separatist and criminal groups across Pakistan. The NAP ended Pakistan’s unofficial moratorium on the death penalty, established military courts to try suspected militants, targeted sources of finance for militant organisations, took measures to restrict hate speech, and committed to policy reforms, particularly in the former FATA. In 2018, the Government announced its second National Security Policy, and the Ministry of Interior is reportedly preparing NAP-2. 2.77.Observers credit Operation Zarb-e-Azb, its successor Radd-ul-Fasaad, and the NAP with a significant reduction in the number of violent and terrorism related attacks in Pakistan. In 2018, up to 262 reported terrorist attacks killed 595 people. This is a significant decrease from 2013, when the terrorist death toll included 3,000 civilians and 676 security force personnel.2.78.In February 2017, the military announced Operation Radd-ul-Fasaad to succeed Operation Zarb-e-Azb in response to a series of separate attacks between 13 and 16 February 2017 across Lahore, Quetta, and Sehwan, which killed at least 100 people and left several hundred injured(JuA’s Ghazni Campaign). Radd-ul-Fassad expanded the role of the military in counter-terrorism operations in Punjab. In July 2017, the military launched operation Khyber-IV in the Rajgal Valley, targeting Lashkar-e-Islam, Jammatul Ahrar (JuA) and the TTP. Khyber-IV also targeted ISIL connections across the border with Afghanistan’s Nangarhar province. 2.79.Local observers, including officials, in Khyber Pakhtunkhwa also reported a trend of increased security, a reduction in reported killings, and reduced fear within the community in 2018. Residents of Peshawar reported an increased sense of security in the evenings due to the enhanced military presence. 2.80.In the lead up to the 2018 election (May to July), 19 terrorist attacks targeted political leaders, workers and election gatherings, rallies and offices, an 87 per cent decrease from the 148 attacks recorded prior to the 2013 elections (March to May). Nevertheless, the lethality increased, with 215 deaths perpetrated by ISIL and the TTP during the 2018 election campaign, compared to 179 deaths perpetrated by nationalist groups, the Taliban and other groups in 2013. Incidents of election related political violence declined from 80 incidents in 2013 (March to May) to 13 in 2018 (May to July).