1729039 (Refugee) - [2021] AATA 4093

1729039 (Refugee) [2021] AATA 4093 (10 September 2021)

DECISION RECORD

DIVISION: Migration & Refugee Division
CASE NUMBER: 1729039

COUNTRY OF REFERENCE: Pakistan

MEMBER: Justin Meyer

DATE: 10 September 2021

PLACE OF DECISION: Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 10 September 2021 at 12:54pm

CATCHWORDS

REFUGEE – protection visa – Pakistan – religion – particular social group – atheist – apostasy – fear of torture – fear of killing – atheist organisation in Australia – period of unlawful residence – delay in applying for protection – blasphemy laws – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, 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 dependants.

In accordance with s.431 of the Migration Act 1958, the Tribunal will not publish any statement which may identify the applicant or any relative or dependant of the applicant.

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 on 13 November 2017 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 Pakistan, applied for the visa on 18 June 2015. The delegate refused to grant the visa on the basis that the applicant did not have a well - founded fear of persecution nor did he have a real chance of significant harm. It was found that the applicant did not receive threats from his family nor did they cut him off financially or disown him for being atheist.

CRITERIA FOR A PROTECTION VISA

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, 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,…

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 1729039 (Refugee)

Details

AGLC: 1729039 (Refugee) [2021] AATA 4093
Case: [2021] AATA 4093
Decision Date: 10 September 2021

CaseChat Overview and Summary

The applicant, a citizen of Pakistan, sought review of a decision by the delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse his application for a protection visa. The dispute concerned whether the applicant held a well-founded fear of persecution for reasons of his religion, or membership of a particular social group, in Pakistan. The matter came before the Federal Circuit and Family Court of Australia.

The court was required to determine whether the applicant held a genuine belief that he was an atheist or humanist agnostic, and if so, whether this belief placed him at risk of persecution in Pakistan. Specifically, the court needed to assess whether the applicant's fear of being accused of blasphemy, facing punishment such as imprisonment or physical harm, and being ostracised by his family, constituted a well-founded fear of torture or killing for reasons of his religion or membership of a particular social group. The court also considered the applicant's period of unlawful residence and any delay in making his protection claim.

The court reasoned that the applicant's evidence, including his statements about his scientific understanding, his rejection of Islamic accounts, his self-identification as a humanist agnostic, and his disclosure of his beliefs to his family, supported a finding that he genuinely held these beliefs. The court noted the family's furious reaction and threats of harm and imprisonment, which indicated a real risk of persecution. The court also considered the applicant's past fear of expressing his views and his later engagement with atheist groups and rallies, interpreting these actions as a genuine expression of his beliefs and a desire to live authentically, rather than an attempt to enhance his claim. The court applied the principles established in refugee law regarding the assessment of well-founded fear and the definition of a particular social group, particularly in the context of apostasy and blasphemy laws in Pakistan.

The court found that the delegate had failed to adequately assess the applicant's claim that he was an atheist or humanist agnostic and the associated risks he would face in Pakistan. Consequently, the court remitted the decision to the Administrative Appeals Tribunal for redetermination.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Evaluation in the light of the applicant’s evidence in the hearing: The applicant said that he studied [subject 1] in his late teens. His father was a retired [official]. He went to [a specialised] secondary school and his family was religious. He speaks Urdu and has family are Pashto. The family is Sunni Muslim. His father is very strict, he forced his children and beat them he said. The applicant now enjoys his freedom in Australia. He experiences freedom of religion. He has no religious obligations and is happy. He has not prayed and not been to a mosque. He has read about the Koran online and watched documentaries. He has a scientific understanding and does not accept Islamic accounts of the prophet ‘going to the moon’, which was taken to mean the Koranic account of the miracle of the Prophet splitting the moon. He accepts the humanist / agnostic / atheist approach. The Tribunal asked the applicant what atheism meant to him. He said that there was no evidence that there was a God. He considers himself to a humanist agnostic at times. He does not believe. He said upon inquiry that he had mentioned this to his parents – he told them about his lack of beliefs. He will not go to Pakistan as a result – they were furious. They said you can die there, “do not come to Pakistan.” He was not going well in his studies in Australia. He was not doing [subject 1] studies successfully. His father did not want him to do anything else. His father threatened him. He said he was told he would not be safe. He would be punished. He understood the punishment as being beaten up, going to prison. They would not hesitate he said. He would be accused of blasphemy, he said. In response to the Tribunal’s queries he said that his parents had stopped loving him. They had loved him in the past. No other sibling had turned away and they were not happy about it. He described himself as a more active atheist and said that he went to [meetings] with people with a similar outlook. He started doing this in 2015 in order to meet people like himself. I asked why he did not do it earlier – he replied it was because he was scared about the response he would receive. This was not expected of people in Pakistan – people were Muslims. The reaction would be that he was apostate. When he was young he was scared to speak up. He would not put atheist comment on [social media]. But later he did question religion on [social media]. Friends cut him off. He feared that he could be harmed in Australia by any Muslim with radical views. He felt that Australia was a free country and people were protected. He was [an official position] of [Community Group 3]. He attended meetings. I asked what the subject matter was for example. He said that he had attended a rally on Cardinal George Pell. His friend [Friend A] had supported him in this. He did not accept the delegate’s suggestion that this was to enhance his protection claim. He said these were his own thoughts and he was doing the right thing. He could not do so before. He was worried about harming himself and he was in a bubble of fear in the past. He viewed his changes as being a case of doing the right thing.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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