1720725 (Refugee) [2022] AATA 3640 (22 July 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Mark Edward Northam (MARN: 1175508)
CASE NUMBER: 1720725
COUNTRY OF REFERENCE: Pakistan
MEMBER:Dr Colin Huntly
DATE:22 July 2022
PLACE OF DECISION: Perth
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.
Statement made on 22 July 2022 at 2:08pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – Polio/NGO immunisation worker – actual or imputed general western sympathies – apostate – fear of the Tehreek-e-Taliban, Pakistan (TTP) – credibility concern – independent domain record check – Direction No.84 – witness statements – complementary protection – generalised violence – particular vulnerabilities – chronic malaria – mental health challenges – propensity to engage in self-harm – access to the necessary support required to sustain life – decision under review remittedLEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2CASES
Abebe v Commonwealth (1999) 197 CLR 510
Appellant S395/2002 v MIMA (2003) 216 CLR 473
Applicant A v MIEA (1997) 190 CLR 225 at 233
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
Chan v MIEA (1989) 169 CLR 225
Chan Yee Kin v MIEA (1989) 169 CLR 379
CQG15 v MIBP [2016] FCAFC 146
DAJ19 v MI [2020] FCCA 2141
Guo Wei Rong and Pan Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445
Iyer v MIMA [2000] FCA 52
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
MIMA v Guo (1997) 191 CLR 559
MIMA v Haji Ibrahim (2000) 204 CLR 1
SZLGP v MIC [2008] FCA 1198
SZSHV v MIBP [2014] FCA 253Any 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
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).
The applicant who claims to be a citizen of Pakistan, applied for the visa on 3 November 2014 and the delegate refused to grant the visa on 31 August 2017.
Procedural Issues
The applicant was invited to attend a Tribunal hearing on 30 November 2021 to give evidence and present arguments. On the day of the hearing, the applicant sought urgent medical treatment in connection with his longstanding mental health condition.[1] At the hearing, I discussed my concerns with the Applicant’s Representative about the suitability of proceeding…
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CaseChat Overview and Summary
This matter concerned an application for review of a delegate's decision to refuse to grant the Applicant a protection visa. The Applicant, who originates from Khyber Pakhtunkhwa province, Pakistan, claimed a well-founded fear of persecution by the Tehreek-e-Taliban, Pakistan (TTP) due to his work as a polio immunisation worker, imputed western sympathies, and status as an apostate. He also sought complementary protection based on generalised politically motivated violence and his mental and physical health conditions, including chronic malaria and a propensity for self-harm, which he argued would preclude his return to Pakistan. The Administrative Appeals Tribunal (AAT) reviewed the application.
The primary legal issues before the Tribunal were whether the Applicant had a well-founded fear of persecution for a Convention reason, and whether he qualified for complementary protection. Specifically, the Tribunal had to assess the credibility of the Applicant's claims regarding threats from the TTP, the authenticity of supporting documents such as threat letters and employment certificates, and the extent to which his personal circumstances, including his health conditions, would expose him to significant harm or render his return unreasonable. The Tribunal also considered whether his health issues, particularly the risk of self-harm, engaged Australia's protection obligations under the Act.
The Tribunal found that the Applicant did not have a well-founded fear of persecution for a Convention reason. This conclusion was influenced by concerns regarding the credibility of his claims, including doubts about the authenticity of documents related to his polio work and alleged threats from the TTP, and the fact that his family remained in his home area without relocating. However, the Tribunal determined that the decision should be remitted for reconsideration by reference to the complementary protection criterion under s 36(2)(aa) of the Migration Act 1958. This was based on the Applicant's particular vulnerabilities, including his chronic malaria and mental health challenges, and the potential for these conditions to lead to significant harm or preclude his return to Pakistan, even if not directly caused by the acts of others.
The primary legal issues before the Tribunal were whether the Applicant had a well-founded fear of persecution for a Convention reason, and whether he qualified for complementary protection. Specifically, the Tribunal had to assess the credibility of the Applicant's claims regarding threats from the TTP, the authenticity of supporting documents such as threat letters and employment certificates, and the extent to which his personal circumstances, including his health conditions, would expose him to significant harm or render his return unreasonable. The Tribunal also considered whether his health issues, particularly the risk of self-harm, engaged Australia's protection obligations under the Act.
The Tribunal found that the Applicant did not have a well-founded fear of persecution for a Convention reason. This conclusion was influenced by concerns regarding the credibility of his claims, including doubts about the authenticity of documents related to his polio work and alleged threats from the TTP, and the fact that his family remained in his home area without relocating. However, the Tribunal determined that the decision should be remitted for reconsideration by reference to the complementary protection criterion under s 36(2)(aa) of the Migration Act 1958. This was based on the Applicant's particular vulnerabilities, including his chronic malaria and mental health challenges, and the potential for these conditions to lead to significant harm or preclude his return to Pakistan, even if not directly caused by the acts of others.
Orders
Orders of the court
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Background
Background to the litigation
The Applicant was represented in relation to the review. The Representative attended the Tribunal hearings.What is the Background of this Application?Introduction The Applicant originates from the town of [Town 1], in Khyber District on the outskirts of [City 1] in Khyber Pakhtunkhwa province, Pakistan. 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 by persons associated with the Tehreek-e-Taliban, Pakistan (TTP) now and for the foreseeable future for the essential and significant reason of his personal profile as a Polio/NGO immunisation worker; his actual or imputed general western sympathies; and as an apostate. He also seeks complementary protection in Australia under s 36(2)(aa) of the Act for the essential and significant reason of generalised politically motivated violence in the Khyber Pakhtunkhwa; and on the grounds that his mental and physical health conditions preclude him from being returned to Pakistan now or in the reasonably foreseeable future.Delegate’s decision In a written decision dated 31 August 2017, a delegate of the Minister refused to grant the Applicant a protection visa as follows:[2]As discussed earlier, I am of the opinion that the applicant’s occupation as field officer at [named] hospital, whilst a contributing factor to his risk profile, is not enough in and of itself to place the applicant at a ‘real chance’ of being subject to serious harm. Additionally, I note that the applicant ceased his employment as field officer after only working there for eight months.Given the circumstances of the applicant and the available country information, I find that it would be reasonable for the applicant to consider relocation to a city such as Islamabad where I find he would face a remote, rather than a real, chance of persecution. I am satisfied the applicant can safely access a relocation option within Pakistan.Finding on well-foundednessI am not satisfied the applicant has a real chance of being persecuted for a Refugees Convention reason. I am therefore not satisfied the applicant’s fear is well founded.[2]Delegate decision record, 31 August 2017, at (17). In forming this view, the delegate expressed mixed findings with respect to the credibility of the Applicant’s core claims for protection as follows:[3]Based on the level of detail provided by the applicant at interview, in conjunction with supporting documents attesting to his former employment at [named] hospital administering polio vaccinations, I accept that he worked as a field officer in administering polio vaccinations to the local community in [Town 1] as claimed. I also accept that the applicant may have received threatening letters from militant groups telling him to cease this work.However, I do not accept the claim as put forward by the applicant that the Taliban consequently fired shots at his house days after receiving his last threatening letter. I also do not accept the applicant’s claims that he continued to receive threatening calls on his mobile from unknown persons after he ceased his work as a field officer administering polio vaccinations.The applicant’s responses regarding this aspect of his claims during the PV interview were vague and somewhat evasive. The applicant made several vague references to being constantly receiving calls from unknown people on his mobile phone and threatening him two weeks after leaving his house following the alleged incident that took place at his home. Additionally, when the applicant was asked how he knew the Taliban was responsible for firing shots at his house the applicant responded, “I don’t know”. I acknowledge that the applicant has provided copies of photographs as evidence of bullets being fired at this house gate. However, I have concerns about the genuineness of the evidence the applicant has provided to show that shots were fired at this house gate, particularly as I have no way of verifying the authenticity of the documents nor does it prove that these pictures are from his gate or that they are bullet holes. In light of the applicant’s response and reliable country information attesting to the availability to fraudulent documents in Pakistan, I am not giving this document any weight. I am of the opinion that the applicant has embellished or fabricated this aspect of his claims in order to enhance his claims for protection.In relation to the applicant’s work administering polio vaccinations, I note that the applicant was not harmed whilst he worked at this job. I also note that the applicant has stated he ceased this work after eight months.[3]Delegate decision record, 31 August 2017, at (10).Tribunal’s decision in summary
Evidence
Evidence Before The Court
Accordingly, for the removal of doubt, I find that whatever measures may be applicable to the population of Pakistan generally in response to the present COVID-19 crisis do not, in the absence of additional considerations, amount to an intentional act or omission for the purposes of complementary protection provisions.[39]CONSIDERATION OF Claims and evidence[39]SZTAL v Minister for Immigration [2016] FCAFC 69.Invitation to commentInvitation of 24 February 2022 As indicated above, after reviewing the material on file, on 24 February 2022 the Tribunal wrote to the Applicant as previously advised and invited him to comment in the following terms:In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.As discussed with your representative, given our concerns about your past difficulties in attending hearings relating to your application for review, we have determined that it is more appropriate in all the circumstances to proceed on your application without a hearing. For this reason, we are writing to you at this time to explain our particular concerns and to give you an opportunity to respond to those concerns and to present relevant evidence.Please note, however, that we have not made up our mind about the information.The particulars of the information are:Polio vaccination program1. You submitted letters to the department dated 25 July 2014, 8 September 2014 and 10 September 2014 claiming that that you were a contracted polio worker for [Hospital 1] [between] April 2013 [to] January 2014.2. The letters feature a website in the footer. The website is:[URL 1] 3. Information obtained by the Tribunal indicates that this website domain was registered on 23 October 2014, which appears to be up to three months after your supporting letters were issued. (See attachment A)4. Further, the website and associated email addresses do not appear to ever have been operational in any meaningful sense.5. This information is relevant to the review because if the Tribunal were to find that your claimed experience certificates are not authentic in material respects, it may be open for the Tribunal to find that your personal Taliban related claims connected to your profile as a polio worker in [Town 1] Area of Kyber [sic] Agency lack credibility.Taliban threat letters6. It is noted that the most recent DFAT Country Information Report for Pakistan (25 January 2022) states as follows (at [5.52]):7. Document fraud is widespread in Pakistan, other than for identity documents issued by NADRA, which are generally reliable. CNICs, SNICs and passports contain security features which have reduced the incidence of document fraud. Authorities have put in place measures to combat the fraudulent issuance of documents and can cancel fraudulent CNICs.8. Accordingly, while the Tribunal notes the Taliban threat letters that you have submitted in support of your application for protection, the Tribunal has no way of verifying the authenticity or otherwise of these documents. In light of the DFAT Report referred to above, the Tribunal may not be able to place any weight on the threat letters.9. Further, noting that since your departure in 2014, your immediate and extended family have continued to reside in the same location in Pakistan and engaging with community life (including participation in the village peace committee) without seeking to relocate, the circumstances you have described in your application for protection do not appear to give rise to an objective wellfounded fear of harm for any particularised reason involving such community activity.10. This information is relevant to the review because if the Tribunal were to find that your claimed Taliban threat letters are not authentic, it may be open to the Tribunal to find that your claims connected to the Taliban threat letters lack credibility.Medical issues11. Your longstanding diagnosis of chronic malaria illness and present mental health challenges are noted. While you have not specifically claimed to fear persecution on the ground of any physical or psychological ailment, it is inferred from the submissions received that you claim that your physical and psychological condition would give rise to a real chance of serious or a real risk of significant harm on return to Pakistan or that it would be unreasonable to expect you to relocate to another area of Pakistan, on return, due to your physical and psychological condition and the inadequacy of health services in Pakistan12. Given the suggestion that on return to Pakistan your mental and physical health issues may give rise to a claim for protection, the medical reports on file are not sufficient to determine your current expert mental health diagnosis and likely aetiology with any certainty. It is acknowledged that you do suffer from physical and mental health issues. However, the degree to which those disorders may have been caused by your life experience in Pakistan, or by other factors is not clear from the available material. Further, there is little relevant evidence about the likely effect of return on your physical or mental health.13. Having stated this, it is plausible, that you may continue to suffer physical and or mental health issues on return to Pakistan and that these issues may require physical and or mental health treatment and support in Pakistan.14. It may be open to the Tribunal to conclude that appropriate services are available in Pakistan to meet the health care needs of ordinary citizens on an equal basis in Pakistan and that you would also be in a position to seek such services. In any event, the inadequacy of mental health care services in a receiving country is not an intentional act or omission for the purposes of complementary protection provisions.15. The descriptions of the types of significant harm in s36(2A) of the Act are passively worded, referring to a non-citizen being arbitrarily deprived of his or her life, the death penalty being carried out on the non-citizen, and harm that the non-citizen will be subjected to. The Federal Court has confirmed that the definition in s 36(2A) is framed in terms of harm suffered because of the acts of other persons.[40] It does not encompass self-harm, harm arising from mental illness or harm that a non-citizen would suffer as a result of any other illnesses arising on return to a receiving country.[41]16. Accordingly, it is not presently clear how the medical issues referred to in your application for protection would engage Australia’s protection obligations for the purposes of this review.This information is relevant to the review because if the Tribunal were to find that your physical and psychological harm related claims do not engage Australia’s protection obligations, it may be open to the Tribunal to find that those claims are not relevant to the decision under review.You are invited to give comments on or respond to the above information in writing.Your comments or response should be received by 24 March 2022. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.[40]The language in ss 36(2A)(a)–(b) and in the definitions of the concepts in ss 36(2A)(c)–(e) all concern, and only concern, how a visa applicant might be treated by another person: GLD18 v MHA [2020] FCAFC 2 at [37].[41]CHB16 v MIBP [2019] FCA 1089 at [65]–[68] (special leave to appeal from this judgment was refused: CHB16 v MIBP [2019] HCASL 377); and CSV15 v MIBP [2018] FCA 699 at [34]. The majority in GLD18 v MHA [2020] FCAFC 2 at [89] confirmed that there was nothing erroneous in the Courts’ statements in CHB16 and CSV15 that self-inflicted harm does not constitute ‘significant harm’, and at [90] noted that it is the intentional infliction of mental harm by others (which may cause a person to engage in self-harm) that is critical to the satisfaction of s 36(2)(aa). However, Snaden J in obiter at [103] saw ‘no obvious reason’ why self-harm might not qualify as a risk of the kind to which s 36(2)(aa) is directed and ‘would be slow to conclude that ‘significant harm’ extends no further, conceptually, than to harm that a visa applicant might endure at the hands of others’. See also SZDCD v MIBP [2019] FCA 326 where the Court held that deprivation of an appellant’s access to medical treatment in Australia as a consequence of his removal to Bangladesh would not amount to him being arbitrarily deprived of his life under s 36(2A)(a): at [48]; and EZC18 v MHA [2019] FCA 2143 where the Court upheld the Tribunal’s finding that suicide could not constitute the ‘arbitrary deprivation of life’ in s 36(2A)(a): at [47].
Decision
Reasons for decision
In forming this view, the delegate expressed mixed findings with respect to the credibility of the Applicant’s core claims for protection as follows:[3]Based on the level of detail provided by the applicant at interview, in conjunction with supporting documents attesting to his former employment at [named] hospital administering polio vaccinations, I accept that he worked as a field officer in administering polio vaccinations to the local community in [Town 1] as claimed. I also accept that the applicant may have received threatening letters from militant groups telling him to cease this work.However, I do not accept the claim as put forward by the applicant that the Taliban consequently fired shots at his house days after receiving his last threatening letter. I also do not accept the applicant’s claims that he continued to receive threatening calls on his mobile from unknown persons after he ceased his work as a field officer administering polio vaccinations.The applicant’s responses regarding this aspect of his claims during the PV interview were vague and somewhat evasive. The applicant made several vague references to being constantly receiving calls from unknown people on his mobile phone and threatening him two weeks after leaving his house following the alleged incident that took place at his home. Additionally, when the applicant was asked how he knew the Taliban was responsible for firing shots at his house the applicant responded, “I don’t know”. I acknowledge that the applicant has provided copies of photographs as evidence of bullets being fired at this house gate. However, I have concerns about the genuineness of the evidence the applicant has provided to show that shots were fired at this house gate, particularly as I have no way of verifying the authenticity of the documents nor does it prove that these pictures are from his gate or that they are bullet holes. In light of the applicant’s response and reliable country information attesting to the availability to fraudulent documents in Pakistan, I am not giving this document any weight. I am of the opinion that the applicant has embellished or fabricated this aspect of his claims in order to enhance his claims for protection.In relation to the applicant’s work administering polio vaccinations, I note that the applicant was not harmed whilst he worked at this job. I also note that the applicant has stated he ceased this work after eight months.[3]Delegate decision record, 31 August 2017, at (10).Tribunal’s decision in summary After reconsidering the application for protection afresh, I have concluded, for different reasons, that the decision should be remitted for reconsideration by reference to s 36(2)(aa) of the Act (the complementary protection criterion). I have found that the Applicant does not have a well-founded fear of harm from agents of harm associated with the TTP if he returns to Pakistan now and in the reasonably foreseeable future for the essential and significant reason of his personal profile as a Polio/NGO immunisation worker; his actual or imputed general western sympathies; and as an apostate.
Ratio Decidendi
Legal Principle Established
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