1725841 (Refugee) - [2021] AATA 3214

1725841 (Refugee) [2021] AATA 3214 (25 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1725841

COUNTRY OF REFERENCE: Pakistan
MEMBER:Brendan Darcy
DATE:25 June 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 25 June 2021 at 10:31am
CATCHWORDS
REFUGEE – protection visa – Pakistan – religion – Shia – race – Punjabi – discrimination in education – employment – fear of killing – religious violence – Shi’a community involvement – delay in applying for protection – internal relocation – settlement prospects in Gilgit-Baltistan – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 36, 65, 91R, 91S, 92
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo & Anor (1997) 191 CLR 559
MZYLH v Minister for Immigration & Anor [2011] FMCA 888
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
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

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 (the Act).
The applicant, who claims to be a citizen of the Islamic Republic of Pakistan (Pakistan), applied for the protection visa on 9 June 2015.
On 2 October 2017, the delegate refused to grant the visa on the basis that the applicant’s claims lacked adequate explanation and detail and because the applicant’s prospect of persecution did not amount to being a real chance of serious harm or a real risk of significant harm.
RELEVANT LAW
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). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c). That is, the applicant 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.
Refugee criterion
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 under the 1951 Convention relating to the Status…

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 1725841 (Refugee)

Details

AGLC: 1725841 (Refugee) [2021] AATA 3214
Case: [2021] AATA 3214
Decision Date: 25 June 2021

CaseChat Overview and Summary

This matter concerned an application for a permanent protection visa by a Pakistani national. The applicant claimed to be a Shi'a Muslim of Punjabi ethnicity who had experienced discrimination and violence in his home province of Punjab. He alleged that his family had faced religious persecution, that he himself had been subjected to harassment and threats due to his religious beliefs and affiliation with a Shi'a organisation, and that a friend had been killed in an attack targeting him. The applicant contended that he could not relocate within Pakistan due to a lack of support networks and the general unacceptability of his ethnic and religious background elsewhere. The decision under review was affirmed by the Tribunal.

The legal issues before the Tribunal were whether the applicant had a well-founded fear of persecution based on a Convention reason, whether he would suffer a real risk of significant harm in his home area of Punjab Province, and whether it was reasonable and practicable for him to relocate to another part of Pakistan. The Tribunal was required to consider these issues in light of Ministerial Direction No. 84, the Refugee Law Guidelines, Complementary Protection Guidelines, and country information assessments.

The Tribunal reasoned that for a real risk of significant harm to be established, it must not be a risk faced by the population generally, but rather one faced by the applicant personally. Furthermore, the Tribunal considered the provisions of section 36(2B) of the Act, which stipulate that there is not taken to be a real risk of significant harm if it would be reasonable for the applicant to relocate to an area of the country where such a risk would not exist, or if the applicant could obtain protection from an authority of the country. While acknowledging the applicant's claims of past persecution and threats, the Tribunal ultimately concluded that the decision under review should be affirmed, implying that the criteria for establishing a well-founded fear of persecution or a real risk of significant harm, or the reasonableness of internal relocation, were not met on the facts presented.

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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCE Being mindful that the applicant applied for a protection visa prior to 14 December 2019, the issues in this case are whether the applicant has a well-founded fear of persecution based on one of the Convention reasons into the foreseeable future and whether the applicant will suffer a real risk of significant harm in his home area of Punjab Province, and whether it is reasonable, in the sense of being practicable, for the applicant to relocate to another part of Pakistan as required by the Convention and by s.36(2B)(b) of the complementary protection provisions. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Background The applicant claimed to be born on [date] in the Pakistani Province of Punjab and to be a citizen of Pakistan. A copy of the applicant’s valid passport is on the Department file ([file number]) indicating he was born in the city of Lahore. The applicant arrived in Australia [in] February 2014 while holding a [student visa]. The applicant validly lodged a Class XA Subclass 866 permanent protection visa on 9 June 2015 and was granted an associated bridging visa. The applicant’s written claims can be summarised as follows:·The applicant’s father was a [public servant] and was transferred on a regular basis due to discrimination he experienced. The applicant’s father only received one promotion in [number] years and quit in 2001 for reasons of finance and religious discrimination; ·The applicant’s family then moved to Lahore;·His mother was falsely alleged to have preached her beliefs to other community members, and ‘Lashkar-e-Jhangvi’ (LeJ) warned her to move to a new house;·In college he faced a lot of religious persecution, people would not sit with him as he was ‘kaffir’;·In 2011 he began working as a [Position 1] of Shi’a social organisation ‘Tehrik‑E-Tahaffuz-E-Haqooq-E-Jaferia’ Pakistan. He volunteered and it brought positivity to him but he became a prominent Shi’a member of society and was subsequently targeted for it;·He received further harassment and rude behaviour at university as a Shi’a;·He applied for jobs during his final year but was refused. Others who were not Shi’a were given jobs. One recruiter asked him to change his religion for the job;·He got a job but it did not pay well and he was subject to worse religious persecution with other Shi’a Muslims. He was spat on and not allowed to partake in certain activities;·The applicant received death threats from LeJ because he is Shi’a Muslim. On [a day in] April 2013 a letter was left at his home demanding he stop his religious activities or be killed. He reported the incident to Punjab police but they said they could not protect him;·The applicant hid at his [sibling’s] house and lessened his religious activities while he organised to get a student visa to leave Pakistan; ·In the month of Muharram he was involved in religious activities. On [a day in] November 2013 two motorbike riders fired at him as he was driving home from religious Majlis with a friend. The applicant’s friend was killed; ·The applicant fled to Australia, but his family told him they continued to receive phone calls threatening the applicant’s life;·He cannot relocate to another part of Pakistan because he has no friends or relatives anywhere else, and as an ethnic Punjabi and a Shi’a Muslim he will not be accepted;·His cousin and his family suffered persecution for being Shi’a and have since been granted protection in [Country 1].

Decision

Reasons for decision

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Background The applicant claimed to be born on [date] in the Pakistani Province of Punjab and to be a citizen of Pakistan. A copy of the applicant’s valid passport is on the Department file ([file number]) indicating he was born in the city of Lahore. The applicant arrived in Australia [in] February 2014 while holding a [student visa]. The applicant validly lodged a Class XA Subclass 866 permanent protection visa on 9 June 2015 and was granted an associated bridging visa. The applicant’s written claims can be summarised as follows:·The applicant’s father was a [public servant] and was transferred on a regular basis due to discrimination he experienced. The applicant’s father only received one promotion in [number] years and quit in 2001 for reasons of finance and religious discrimination; ·The applicant’s family then moved to Lahore;·His mother was falsely alleged to have preached her beliefs to other community members, and ‘Lashkar-e-Jhangvi’ (LeJ) warned her to move to a new house;·In college he faced a lot of religious persecution, people would not sit with him as he was ‘kaffir’;·In 2011 he began working as a [Position 1] of Shi’a social organisation ‘Tehrik‑E-Tahaffuz-E-Haqooq-E-Jaferia’ Pakistan. He volunteered and it brought positivity to him but he became a prominent Shi’a member of society and was subsequently targeted for it;·He received further harassment and rude behaviour at university as a Shi’a;·He applied for jobs during his final year but was refused. Others who were not Shi’a were given jobs. One recruiter asked him to change his religion for the job;·He got a job but it did not pay well and he was subject to worse religious persecution with other Shi’a Muslims. He was spat on and not allowed to partake in certain activities;·The applicant received death threats from LeJ because he is Shi’a Muslim. On [a day in] April 2013 a letter was left at his home demanding he stop his religious activities or be killed. He reported the incident to Punjab police but they said they could not protect him;·The applicant hid at his [sibling’s] house and lessened his religious activities while he organised to get a student visa to leave Pakistan; ·In the month of Muharram he was involved in religious activities. On [a day in] November 2013 two motorbike riders fired at him as he was driving home from religious Majlis with a friend. The applicant’s friend was killed; ·The applicant fled to Australia, but his family told him they continued to receive phone calls threatening the applicant’s life;·He cannot relocate to another part of Pakistan because he has no friends or relatives anywhere else, and as an ethnic Punjabi and a Shi’a Muslim he will not be accepted;·His cousin and his family suffered persecution for being Shi’a and have since been granted protection in [Country 1]. According to the application form, the applicant can speak, read and write Urdu and English; his ethnicity is Punjabi and his religion is Shi’a Muslim. The applicant also claimed never to have been engaged to be married, married, or been in a de facto relationship. The applicant further claimed that he completed a Bachelor of [Subject 1] at the [named university] between [specified years].

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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCE Being mindful that the applicant applied for a protection visa prior to 14 December 2019, the issues in this case are whether the applicant has a well-founded fear of persecution based on one of the Convention reasons into the foreseeable future and whether the applicant will suffer a real risk of significant harm in his home area of Punjab Province, and whether it is reasonable, in the sense of being practicable, for the applicant to relocate to another part of Pakistan as required by the Convention and by s.36(2B)(b) of the complementary protection provisions. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Background The applicant claimed to be born on [date] in the Pakistani Province of Punjab and to be a citizen of Pakistan. A copy of the applicant’s valid passport is on the Department file ([file number]) indicating he was born in the city of Lahore. The applicant arrived in Australia [in] February 2014 while holding a [student visa]. The applicant validly lodged a Class XA Subclass 866 permanent protection visa on 9 June 2015 and was granted an associated bridging visa. The applicant’s written claims can be summarised as follows:·The applicant’s father was a [public servant] and was transferred on a regular basis due to discrimination he experienced. The applicant’s father only received one promotion in [number] years and quit in 2001 for reasons of finance and religious discrimination; ·The applicant’s family then moved to Lahore;·His mother was falsely alleged to have preached her beliefs to other community members, and ‘Lashkar-e-Jhangvi’ (LeJ) warned her to move to a new house;·In college he faced a lot of religious persecution, people would not sit with him as he was ‘kaffir’;·In 2011 he began working as a [Position 1] of Shi’a social organisation ‘Tehrik‑E-Tahaffuz-E-Haqooq-E-Jaferia’ Pakistan. He volunteered and it brought positivity to him but he became a prominent Shi’a member of society and was subsequently targeted for it;·He received further harassment and rude behaviour at university as a Shi’a;·He applied for jobs during his final year but was refused. Others who were not Shi’a were given jobs. One recruiter asked him to change his religion for the job;·He got a job but it did not pay well and he was subject to worse religious persecution with other Shi’a Muslims. He was spat on and not allowed to partake in certain activities;·The applicant received death threats from LeJ because he is Shi’a Muslim. On [a day in] April 2013 a letter was left at his home demanding he stop his religious activities or be killed. He reported the incident to Punjab police but they said they could not protect him;·The applicant hid at his [sibling’s] house and lessened his religious activities while he organised to get a student visa to leave Pakistan; ·In the month of Muharram he was involved in religious activities. On [a day in] November 2013 two motorbike riders fired at him as he was driving home from religious Majlis with a friend. The applicant’s friend was killed; ·The applicant fled to Australia, but his family told him they continued to receive phone calls threatening the applicant’s life;·He cannot relocate to another part of Pakistan because he has no friends or relatives anywhere else, and as an ethnic Punjabi and a Shi’a Muslim he will not be accepted;·His cousin and his family suffered persecution for being Shi’a and have since been granted protection in [Country 1].