1722747 (Refugee)

Case [2023] AATA 3216

1722747 (Refugee) [2023] AATA 3216 (23 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Munashe Rusamo

CASE NUMBER:  1722747

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Simone Burford

DATE:23 June 2023

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first applicant satisfies s 36(2)(a) of the Migration Act; and

(ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first applicant.

Statement made on 23 June 2023 at 4:13pm

CATCHWORDS
REFUGEE – protection visa – Pakistan – religion – Shia Muslim – involved in Shia community organisations and committees – provision of security for the local imambargah – sectarian violence – political opinion – supporter of the Tehreek-e Jafaria Pakistan (TJP) – inter-sect marriage – animosity from family members – returnees from a western country – mental health issues – deteriorating security situation in Pakistan – effective state protection – internal relocation – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5LA, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

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 14 September 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (the Act).

    Background

  2. The applicants are a family from Pakistan. The first applicant is a [age]-year-old Pakistani citizen who was born in Lahore, Punjab, Pakistan. He speaks, reads and writes Urdu and English (basic) and reads Arabic at a basic level (the Koran). The second applicant is the first applicant’s [age]-year-old Pakistani citizen wife. She was born in Lahore, Punjab, Pakistan. She also speaks, reads and writes Urdu and can communicate in English (intermediate) and reads Arabic. The third applicant is the first and second applicants’ [age]-year-old Pakistani citizen child. He was born in Lahore, Pakistan, in [year]. He speaks Urdu and English.

  3. The first applicant’s parents are deceased. He has [number] siblings, who are all living in Pakistan. He has [number] children in Pakistan from a previous marriage but has no contact with them.

  4. The second applicant’s parents are deceased. She has [number] siblings. One sibling, a sister, lives in [Country 1]. Another sister lives in [Country 2].

  5. According to the delegate’s decision, the first and second applicants arrived in Australia on Student TU-572 visas [in] September 2011. A further dependent student visa was granted to the first applicant on 31 July 2013. On 17 January 2014 the first applicant lodged an invalid application for a Residence Carer BU-836 visa. In June/July 2015 the first applicant left Australia…

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AGLC
1722747 (Refugee) [2023] AATA 3216
Case
[2023] AATA 3216
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review of a delegate's decision to refuse protection visas to a family from Pakistan. The applicants, a husband, wife, and child, claimed they feared persecution in Pakistan due to the first applicant's involvement with Shia community organisations, specifically his role in providing security for a local imambargah and his alleged political affiliation with the Tehreek-e Jafaria Pakistan (TJP). They also cited concerns related to inter-sect marriage, animosity from family members, and a generally deteriorating security situation in Pakistan, particularly for Shia Muslims. The Tribunal was required to determine whether the applicants met the criteria for a protection visa under section 36 of the *Migration Act 1958* (Cth), either on the basis of being a refugee with a well-founded fear of persecution, or on complementary protection grounds due to a real risk of significant harm upon return to Pakistan.

The Tribunal considered the applicants' claims in light of the legal framework for protection visas, which involves assessing whether there is a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, and whether such persecution would relate to all areas of Pakistan. The Tribunal also considered the complementary protection criterion, which requires a substantial ground for believing that removal would result in a real risk of significant harm. The Tribunal's task involved making findings of fact and assessing the credibility of the applicants' claims, guided by established legal principles.

Ultimately, the Tribunal concluded that the delegate's decision to refuse the protection visas should be remitted for reconsideration. While the specific reasons for this remittal are not detailed in the provided text, the outcome indicates that the Tribunal found grounds to revisit the initial decision, suggesting that the applicants' claims warranted further examination or that procedural or substantive errors may have occurred in the delegate's assessment.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 14 September 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (the Act).Background The applicants are a family from Pakistan. The first applicant is a [age]-year-old Pakistani citizen who was born in Lahore, Punjab, Pakistan. He speaks, reads and writes Urdu and English (basic) and reads Arabic at a basic level (the Koran). The second applicant is the first applicant’s [age]-year-old Pakistani citizen wife. She was born in Lahore, Punjab, Pakistan. She also speaks, reads and writes Urdu and can communicate in English (intermediate) and reads Arabic. The third applicant is the first and second applicants’ [age]-year-old Pakistani citizen child. He was born in Lahore, Pakistan, in [year]. He speaks Urdu and English. The first applicant’s parents are deceased. He has [number] siblings, who are all living in Pakistan. He has [number] children in Pakistan from a previous marriage but has no contact with them. The second applicant’s parents are deceased. She has [number] siblings. One sibling, a sister, lives in [Country 1]. Another sister lives in [Country 2]. According to the delegate’s decision, the first and second applicants arrived in Australia on Student TU-572 visas [in] September 2011. A further dependent student visa was granted to the first applicant on 31 July 2013. On 17 January 2014 the first applicant lodged an invalid application for a Residence Carer BU-836 visa. In June/July 2015 the first applicant left Australia for Pakistan and returned with the third applicant. The applicants applied for protection visas on 13 November 2015. Issue The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). The issue in this case is whether the applicant meets one or more of the alternative criteria in s 36(2)(a) or (aa) of the Act; that is, whether they are persons in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or are members of the same family unit of such a person. The relevant law is set out below. The issue in the review is whether the applicant has a well-founded fear of persecution in Pakistan due to Shia religion, work providing security at the local imambargah or for any other reason, or whether complementary protection provisions otherwise apply. For the following reasons, the Tribunal has concluded that the decision of the delegate refusing to grant the visas should be remitted for reconsideration. Protection claimsProtection visa application The first applicant detailed his claims for protection in his application form and in a statutory declaration dated 30 August 2016 which was provided to the Department in support of the application. In the application for protection it was indicated that the second and third applicants were not making their own claims for protection. The delegate’s decision contains the following summary of the claims made in the application and interview with the Department:·The applicant left Pakistan as he was on the hit list from extremist organisations, especially Tehrik-e-Taliban. Most of the people from his organisation have moved to other countries.·He suffered many attacks on his life. He tried to escape to other countries but was refused. His wife and family are very scared.·Everyone knows that his extremist organisation is active in Pakistan against Shia’s. He suffered a lot of harassment and was attacked. He and his family will be killed if he returns and his organisation strongly urged him to leave his country.·The first attack occurred on [date]/4/1990. The second attack occurred on [date]/6/2002; extremist people tried to kill them.·The third attack occurred on [date]/4/2003 which was a major attack where Sipah-e-Sahaba Pakistan (SSP) targeted and tried to kill him.·The fourth attack occurred recently which was on [date]/2/2015. They targeted him in his car but his driver was very clever so he didn’t suffer any loss but his driver was slightly injured.·Many Shia leaders are targeted but no one helps. His organisation suffers and they need human rights.·The applicant sought help in Pakistan many times from the police. They gave him assurance but no protection. He talked to many politicians in his city and Shia’s in other cities.·The applicant moved many times to different parts of the country and also to different countries. He moved from his city to Rawalpindi approximately 3 times and stayed there for 2 and a half years and he also moved to Quetta and stayed there for one month. Because he moved up in his organisation he became a famous man and maybe people recognised him. He felt people followed him but he escaped from the cities. Shias are affected badly all over Pakistan.·The extremist group SSP could try and kill the applicant because of the last attack by his organisation. They strongly advised him to stay away from Pakistan otherwise he will be killed because of his previous services for the imambargah and Tehreek-e‑Jafaria Pakistan (TJP). He was not really active but they (the SSP) think he is a continuous danger to them, like others. The founder of the imambargah is the applicant’s mother’s brother and they will operate until they kill all those who are connected, especially the applicant and his uncle.The interview and submissions to the Department

Evidence

Evidence Before The Court

According to the delegate’s decision and the applicants’ submissions and evidence, the applicants’ migration histories are as follows:·March 1991 – the first applicant travels to briefly [Country 4] and then returns to Pakistan.·April 1991 – the first applicant moves to Rawalpindi to live with his sister.·October 1991 – the first applicant returns to Lahore.·August 1992 – the first applicant travels to Iran on a religious pilgrimage.·August/September 1992 – the first applicant moves to Rawalpindi.·February 1994 – the first applicant returns to Lahore.·April 1994 – the first applicant returns to Rawalpindi.·April 1996 – the first applicant returns to Lahore.·September 1996 – the first applicant travels to [Country 4].·September 1997 – the first applicant returns to Lahore.·October 1999 – the first applicant travels to Quetta.·November 1999 – the first applicant moves to Rawalpindi.·October 2003 – the first applicant travels to [Country 3].·February 2006 – the first applicant returns to Lahore.·June 2006 – the second applicant visits her sister in [Country 2] and returns to Pakistan. ·December 2006 – the second applicant travels to Saudi Arabia for the hajj returning in January 2007.·May 2008 – the second applicant travels to [Country 2] to visit her sister. The first applicant’s visa to [Country 2] is refused. The second applicant returns in July 2008.·25 July 2011 – the applicants are granted Student TU-572 visas; the second applicant was the primary visa applicant on that visa.·[Date] September 2011 – the applicants arrive in Australia on Student TU-572 visas.·[Date] November 2011 – the second and third applicants return to Pakistan and the third applicant is left in the care of the second applicant’s family members. ·[Date] December 2011 – the second applicant returns to Australia.·17 June 2013 – the applicants are granted a Bridging WA-010 visa which ceased on 31 July 2013.·19 June 2013 – the applicants’ Student TU-572 visas ceased. ·31 July 2013 – the applicants are granted Student TU-573 visas (student further stay visas).·September 2013 – the second applicant returns to Pakistan. ·[Date] October 2013 – the first applicant departs Australia; the first applicant returns to [Pakistan].·[Date] October 2013 – the first applicant returns to Australia.·17 January 2014 – the first applicant lodges a Residence Carer BU-836 visa application (as a dependent applicant) that was deemed invalid on 21 January 2014.·[Date] June 2015 – the first and second applicants depart Australia. ·[Date] July 2015 – the first applicant returns to Australia.·[Date] September 2015 – the second applicant returns to Australia.·[Date] October 2015 – the third applicant returns to Australia (having been granted a student visa on 22 September 2015).·13 November 2015 – the applicants lodge Permanent Protection (Subclass 866) visa applications and were granted an associated Bridging visa A. ·13 July 2016 – the applicants’ student visas ceased.Evidence

Decision

Reasons for decision

For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.DECISION-MAKING FRAMEWORKCriteria for a protection visa The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Regulations. An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b). Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted in the attachment to this decision. 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.Credibility assessments In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility. In this context, the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions.[1] [1] Summaries of the principles relating to credibility findings were provided by the Federal Court and Federal Circuit Court in the following decisions: BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [32] to [34] per Rangiah, Perry and Bromwich JJ; CQG15 v MIBP [2016] FCAFC 146 at [36]–[38] per McKerracher, Griffiths and Rangiah JJ; DAO v Minister for Immigration and Border Protection [2018] FCFCA 2 at [30] per Kenny, Kerr and Perry JJ; DAJ19 v Minister for Immigration [2020] FCCA 2142 at [69]-[70] per Nicholls J.

Ratio Decidendi

Legal Principle Established

The Tribunal finds that the applicants are citizens of Pakistan, which is also their receiving country for the purposes of the refugee and complementary protection assessments.Migration history According to the delegate’s decision and the applicants’ submissions and evidence, the applicants’ migration histories are as follows:·March 1991 – the first applicant travels to briefly [Country 4] and then returns to Pakistan.·April 1991 – the first applicant moves to Rawalpindi to live with his sister.·October 1991 – the first applicant returns to Lahore.·August 1992 – the first applicant travels to Iran on a religious pilgrimage.·August/September 1992 – the first applicant moves to Rawalpindi.·February 1994 – the first applicant returns to Lahore.·April 1994 – the first applicant returns to Rawalpindi.·April 1996 – the first applicant returns to Lahore.·September 1996 – the first applicant travels to [Country 4].·September 1997 – the first applicant returns to Lahore.·October 1999 – the first applicant travels to Quetta.·November 1999 – the first applicant moves to Rawalpindi.·October 2003 – the first applicant travels to [Country 3].·February 2006 – the first applicant returns to Lahore.·June 2006 – the second applicant visits her sister in [Country 2] and returns to Pakistan. ·December 2006 – the second applicant travels to Saudi Arabia for the hajj returning in January 2007.·May 2008 – the second applicant travels to [Country 2] to visit her sister. The first applicant’s visa to [Country 2] is refused. The second applicant returns in July 2008.·25 July 2011 – the applicants are granted Student TU-572 visas; the second applicant was the primary visa applicant on that visa.·[Date] September 2011 – the applicants arrive in Australia on Student TU-572 visas.·[Date] November 2011 – the second and third applicants return to Pakistan and the third applicant is left in the care of the second applicant’s family members. ·[Date] December 2011 – the second applicant returns to Australia.·17 June 2013 – the applicants are granted a Bridging WA-010 visa which ceased on 31 July 2013.·19 June 2013 – the applicants’ Student TU-572 visas ceased. ·31 July 2013 – the applicants are granted Student TU-573 visas (student further stay visas).·September 2013 – the second applicant returns to Pakistan. ·[Date] October 2013 – the first applicant departs Australia; the first applicant returns to [Pakistan].·[Date] October 2013 – the first applicant returns to Australia.·17 January 2014 – the first applicant lodges a Residence Carer BU-836 visa application (as a dependent applicant) that was deemed invalid on 21 January 2014.·[Date] June 2015 – the first and second applicants depart Australia. ·[Date] July 2015 – the first applicant returns to Australia.·[Date] September 2015 – the second applicant returns to Australia.·[Date] October 2015 – the third applicant returns to Australia (having been granted a student visa on 22 September 2015).·13 November 2015 – the applicants lodge Permanent Protection (Subclass 866) visa applications and were granted an associated Bridging visa A. ·13 July 2016 – the applicants’ student visas ceased.Evidence