1718343 (Refugee)

Case [2023] AATA 2445

1718343 (Refugee) [2023] AATA 2445 (27 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mrs Mahalakshmi Saikumar (MARN: 1572358)

CASE NUMBER:  1718343

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Simone Burford

DATE:27 April 2023

PLACE OF DECISION:  Perth

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

Statement made on 27 April 2023 at 9:15am

CATCHWORDS
REFUGEE – protection visa – Pakistan – political opinion – school teacher, social worker and president of human rights group – attacks and threats by extremist groups – activities in Australia – modernised, westernised returnee – credibility – delays in leaving after attack and applying for protection – applied after ceasing studies and application for partner visa withdrawn – inconsistent claims and evidence – minor and localised activities, and passage of time – no harm to parents or sisters with higher profiles – late provision of reports to police – country information – decline in extremist attacks against civilians, and official operations by security forces – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36(2)(a), (aa), 65, 91R, 91S
Migration Regulations 1994 (Cth), Schedule 2

CASES
Abebe v Commonwealth (1999) 197 CLR 510
BEH15 v MIBP [2019] FCAFC 184
Chand v MIEA [1997] FCA 1198
CQG15 v MIBP [2016] FCAFC 146
DAO v MIBP [2018] FCFCA 2
DAJ19 v Minister for Immigration [2020] FCCA 2142
Guo Wei Rong and Pam Run Juan v MIEA (1996) 40 ALD 445
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Wu Shan Liang (1996) 185 CLR 259
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347

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

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

  2. The applicant is a [Age]-year-old Pakistani citizen from [Village], [City], District of Khyber Pakhtunkhwa, Pakistan. He is divorced. He claimed to be a Sunni Muslim of Khan ethnicity.

  3. According to the delegate’s decision the applicant was granted Student visa Class TU‑572, on 23 March 2011 valid until 20 September 2012. The applicant arrived in Australia on [April] 2011 on a student visa. The applicant ceased his studies in September 2012 and lodged an application for a Partner (Combined) visa UK820 on 24 August 2012 but withdrew after a Departmental officer counselled his agent that his partner was under the age of 18 years. On the 21 September 2012, the applicant again lodged a Partner…

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Details
AGLC
1718343 (Refugee) [2023] AATA 2445
Case
[2023] AATA 2445
Decision Date

CaseChat Overview and Summary

The applicant, a citizen of Pakistan, sought review of a decision to refuse his protection visa application. The applicant claimed to have been targeted by extremist groups in Pakistan due to his past activities as a school teacher, social worker, and president of a human rights group. He contended that his activities placed him at risk of harm upon return to Pakistan.

The primary legal issue before the court was whether the applicant had established a real risk of suffering significant harm if returned to Pakistan, thereby qualifying for a protection visa. This required the court to assess the applicant's credibility, the consistency of his claims and evidence, and the relevance of country information regarding the general security situation in Pakistan and the specific risks faced by individuals with profiles similar to the applicant. The court also considered whether the applicant could reasonably relocate within Pakistan to avoid any identified risks or obtain protection from Pakistani authorities.

The court considered the applicant's evidence, including police reports and a threat letter, in light of country information and the applicant's own account of events. It noted inconsistencies in the applicant's claims, such as delays in leaving Pakistan after alleged attacks and the timing of his visa application. The court also found that the applicant's parents and sisters, who had potentially higher profiles, continued to live in Pakistan without apparent harm. Furthermore, the court took into account country information suggesting a decline in extremist attacks and increased official operations by security forces. The court applied the principles outlined in section 36(2B) of the Act, which provides circumstances where a real risk of significant harm is not taken to be established, including the availability of internal relocation or protection from authorities, or where the risk is faced by the general population.

The court affirmed the delegate's decision, finding that the applicant had not established a real risk of significant harm upon return to Pakistan. The court concluded that the applicant's activities were minor and localised, and that the passage of time, coupled with the lack of harm to his family members with higher profiles, diminished the credibility of his claims. The court also found that the applicant's inconsistent claims and the late provision of reports to the police weakened his case.

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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCEEvidence before the Tribunal The applicant claims he was born in [Village], [City], KP. He is a Sunni Muslim and described himself as being of Han ethnicity. His parents and siblings remain living in Pakistan. His parents remain in [Village], [City], KP. His parents own a home there in addition to farming and forest land which is being looked after by people working for them, as well as some properties including a [Property]. They previously owned properties including a school and hospital. His parents’ gardener and housekeeper live with them and his nieces and nephews sometimes stay with them. His parents live in the same home they have lived in since before the applicant left Pakistan. The applicant lived with them prior to coming to Australia. He has two sisters who are married with children. They live in different towns. One is [an Occupation 1] who lives in Abbottabad about [Time] mins drive from [City]. She married after the applicant came to Australia. She married around 2013 or 2014 (8 years prior to 2022). She went to university in Rawalpindi. His other sister lives in [Location] about 10–12 km away from [City]. She has a Masters in [Subject 1] from [University] in [District]. She stopped working when the school run by the family closed before the applicant left Pakistan. She married before he left, in 2007–2008. He has three brothers who are all married with children. One was living in [Country 1] but by the time of the subsequent hearing he had returned to Pakistan. Another works for a [company] in [Village]. He has [a Qualification] from[University]. His oldest brother left home when he was younger and is [an Occupation 2] at [Workplace] in [Location]. He does not have much contact with his eldest brother but thought he has a degree in [Subject 2]. The applicant married [on Date] in Australia. They married a few months after meeting. She was from [Country 2] and he believes she was Christian. He made an application for a partner visa on 20 September 2012. They were together for almost 2 years living at [Suburb], Western Australia. They separated in October 2013 and divorced [in] October 2014. He said they withdrew the partner visa application when they knew they could not continue anymore. This was sometime in 2014. They are no longer in contact. In Australia the applicant has been working in [Work sector] and [doing a job task with Employer]. The applicant told the Tribunal he initially started a Diploma of [Subject 3] in April 2014. He knew he ‘couldn’t go home’ but hoped to open a [Work sector] business. In Pakistan he completed a Diploma of [Subject 4] in [City]. This was the equivalent of Year 11 and 12. He completed his diploma course in 2010.

Decision

Reasons for decision

In addition to his application and identity documents, the applicant submitted the following documents to the Department:·Translated copy of the ‘[Organisation 1] Manifesto’;·Pakistani Police First Information Report (FIR) dated 3 July 2010;·FIR dated 5 May 2010;·Translated copy of a threat letter addressed to the applicant (letter undated, translation dated 2014);·[Organisation 1] ‘procedure for membership’ form;·Applicant’s marriage certificate dated 23 September 2012;·Applicant’s divorce orders dated 23 October 2014.The delegate’s decision On 27 June 2017 a delegate of the Minister refused the protection visa applications. The delegate accepted:·The applicant’s identity and nationality as a citizen of Pakistan; ·The claim that the applicant was a resident of [District], of Khan ethnicity and a Sunni Muslim;·That he may have been a member of [Organisation 1]. The delegate did not accept:·That the applicant’s activities as a president and supporter of [Organisation 1] were such that would result in him being targeted and consequently attacked, noting that the applicant states in his Departmental interview that [Organisation] is no longer operating and has not been since his departure in 2011 and the applicant’s statement that [Organisation] was not a political party or a registered organisation;·The claimed threatening letters from the Taliban having regard to country information concerning fraudulent documents in Pakistan, the fact the authenticity of the letter could not be verified and the fact the letter appeared to have been written solely for the purpose of supporting the application;·The police report dated 5 May 2010 with regard to the threats made at his school particularly as some of the contents of the letter are inconsistent with the applicant’s version of events concerning this incident and the fact that the applicant’s response to these issues did not appear to be spontaneous and lacked depth;·That the applicant was threatened as claimed;·That the applicant’s account of his home being attacked by the Taliban was credible;·The police report dated 3 July 2010 with regard to the fact that the report was dated 2 months prior to when the applicant claimed the event took place, country information regarding fraudulent documents in Pakistan, the fact he based his assumption that the Taliban were responsible for the attack on the threatening letters he said were sent by them and the fact that he spent a further 9 months in Pakistan following the alleged attack while claiming the Taliban continued to seek him with a view to killing him;·That the applicant’s parents have been watched or threatened by the Taliban as claimed noting that they continued to live at the family home in [Village];·The applicant’s claims that he volunteered for NGOs and was targeted because of it. The delegate considered that the applicant offered no evidence to support his clams to have worked or volunteered with those organisations and the fact the delegate was unable to find any record of the NGOs in Pakistan. Further, when asked about his involvement with the NGOs, the applicant stated that he was not directly involved with them and only assisted once or twice a month when required.

Ratio Decidendi

Legal Principle Established

There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCEEvidence before the Tribunal The applicant claims he was born in [Village], [City], KP. He is a Sunni Muslim and described himself as being of Han ethnicity. His parents and siblings remain living in Pakistan. His parents remain in [Village], [City], KP. His parents own a home there in addition to farming and forest land which is being looked after by people working for them, as well as some properties including a [Property]. They previously owned properties including a school and hospital. His parents’ gardener and housekeeper live with them and his nieces and nephews sometimes stay with them. His parents live in the same home they have lived in since before the applicant left Pakistan. The applicant lived with them prior to coming to Australia. He has two sisters who are married with children. They live in different towns. One is [an Occupation 1] who lives in Abbottabad about [Time] mins drive from [City]. She married after the applicant came to Australia. She married around 2013 or 2014 (8 years prior to 2022). She went to university in Rawalpindi. His other sister lives in [Location] about 10–12 km away from [City]. She has a Masters in [Subject 1] from [University] in [District]. She stopped working when the school run by the family closed before the applicant left Pakistan. She married before he left, in 2007–2008. He has three brothers who are all married with children. One was living in [Country 1] but by the time of the subsequent hearing he had returned to Pakistan. Another works for a [company] in [Village]. He has [a Qualification] from[University]. His oldest brother left home when he was younger and is [an Occupation 2] at [Workplace] in [Location]. He does not have much contact with his eldest brother but thought he has a degree in [Subject 2]. The applicant married [on Date] in Australia. They married a few months after meeting. She was from [Country 2] and he believes she was Christian. He made an application for a partner visa on 20 September 2012. They were together for almost 2 years living at [Suburb], Western Australia. They separated in October 2013 and divorced [in] October 2014. He said they withdrew the partner visa application when they knew they could not continue anymore. This was sometime in 2014. They are no longer in contact.