1731997 (Refugee)

[2022] AATA 4704

1731997 (Refugee) [2022] AATA 4704 (15 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1731997

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Dr Colin Huntly

DATE AND TIME OF

ORAL DECISION AND REASONS:         15 November 2022 at 11:18 am (WA time)

DATE OF WRITTEN RECORD:                6 December 2022

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the matter for reconsideration with the direction that:

i.Applicant 7 satisfies s.36(2)(aa) of the Act; and

ii.all other applicants satisfy s.36(2)(c)(i) of the Act, on the basis that they are members of the same family unit as Applicant 7.

iii.s.36(2)(a) of the Act.

Statement made on 6 December 2022 at 11:15am

CATCHWORDS

REFUGEE – protection visa – Pakistan – religion – Christian – particular social group – young western educated Christian women – state protection – collective membership of the same family unit – assault – employment – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5G, 5J – 5LA, 36, 424
Migration Regulations 1994, Schedule 2; r 1.12

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.

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration and Border Protection on 12 December 2017 to refuse to grant the applicants protection visas under the Migration Act 1958 (Cth) (the Act).

2. At the hearing on 15 November 2022 Tribunal made an oral decision and gave an oral statement of decision and reasons.

   statement of decision and reasons

3. Attached to this statement is a corrected transcript of the reasons for decision delivered at the hearing on 15 November 2022.

   decision

   The Tribunal remits the matter for reconsideration with the direction that:

   i.Applicant 7 satisfies s.36(2)(aa) of the Act; and

   ii.all other applicants satisfy s.36(2)(c)(i) of the Act, on the basis that they are members of the same family unit as Applicant 7.

   Dr Colin Huntly
   Member

   
   

   ‑Corrected Transcript‑

   ORAL DECISION OF MEMBER HUNTLY  [10.40 am]

4. MEMBER:  For the purposes of the recording, [name] is referred to as Applicant 1, [name] is referred to as Applicant 2, [name] is Applicant 3, [name] is Applicant 4, [name] is Applicant 5, [name] is Applicant 6 and [name] is Applicant 7.

   Introduction

5. The criteria for a protection visa are set out in s.36 of the Act and Sch.2 to the Migration Regulations 1994.  To be eligible for protection, an applicant must either be a person in respect of whom Australia has protection obligations under the refugee criteria, or on complementary protection grounds.

6. Where relevant, I have taken into account the policy guidelines prepared by the Department on refugee protection and complementary protection, together with any country information assessment prepared by DFAT in accordance with Ministerial Direction No.84.

   President’s directions: 

7. I have had regard to the President’s Direction ‘COVID-19 Special Measures Practice Direction – Migration and Refugee Division’, 27 April 2020.  I have also had regard to the President’s Direction ‘Conducting Migration and Refugee Reviews’, 1 August 2018.  In particular:

   ·that ‘members are to take all reasonable steps to complete cases allocated to them as quickly as possible’;[1] and

   ·that ‘Generally, in reviewing a decision to refuse the grant of a protection visa, members should address only those elements of the criteria for a protection visa that are necessary to resolve the application on review.’[2]

   [1]At [2.1] (consistent with the Administrative Appeals Tribunal Act 1975, s 33(1)(b)).

   [2]At [8.1].

8. The applicants have been given a fair opportunity to give evidence and present arguments.  This has been via written communication and a hearing in person. 

   COVID 19-related Claims:

9. I note that this is not a decision on removal but I am mindful that these decisions have the potential to give rise to such a decision in the reasonably foreseeable future.  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 for omission for the purposes of complementary protection.

   Proceedings before the Tribunal:

10. The applicants appeared before the tribunal on 15 November 2022 to give evidence and present arguments.  The applicants were not represented in this application by a registered migration agent.  The Tribunal was assisted at the hearing by an interpreter fluent and accredited in the Urdu language.

    Background:

11. The applicants applied for the grant of a protection visa in the prescribed form, dated 10 June 2016.  The application was consequently refused by a delegate of the Minister in a decision dated 12 December 2017, a copy of which was provided to the Tribunal by the applicants in their application for review.  The applicants applied to the Tribunal for a review of the decision of the delegate on 18 December 2017.

    Identities:

12. Applicants 1, 2, 3, 4, 5 and 6 were born in Pakistan.  They arrived in Australia [in] October 2012. 

13. Applicant 7 was born in Australia on [date]. 

14. Having had the opportunity of viewing the passports for all applicants I am satisfied that they are all Pakistan citizens and I so find.

15. Accordingly, the receiving country for the purposes of the refugee and complementary protection assessment for the applicants is Pakistan.  For reasons that will be discussed below it is unnecessary for me to address the question of whether or not applicants 1, 2, 3, 4, 5 and 6 have a right to enter and reside in a third country for the purposes of s 36(3) of the Act. 

    Proceedings before the Tribunal:

16. At the hearing earlier today I stated what documents I have in my possession.  The applicants confirmed that I had all relevant material before me. 

17. At the hearing I read aloud the summary of the claims for protection relating to the family unit, from page 5, part 4, of the delegate’s decision record.  This takes the form of a series of dot points as follows:

    ·The applicant came to Australia to gain employment and live in Australia. He arrived on a subclass 457 visa with his family.

    ·The applicant is a Christian and does riot believe there will be any spiritual freedom to grow and worship if he were to return to Pakistan.

    ·People dislike non-Muslims as they feel their country is for Muslims and treat Christians like low grade people, abuse them and treat them badly everywhere.

    ·Christians are the minority and their lives are threatened.

    ·Snatching and looting at gun point on the roads is common in Karachi and there is a high risk of threat to people's life.

    ·The applicant experienced being threatened with a gun on two occasions and there were lots of suicide bombings in Mosques and Churches. They were scared to send their children to school or for any other activities to learn because of the threat to life.

    ·If the applicant returns to Pakistan he will face financial discomfort as it is not easy to gain employment after being out of the country for three and a half years,

    ·The family will experience mental distress because they don't have a home to live in or the finances to get a home or to provide for the families basic needs.

    ·The children will face strong mental abuse at commencing at a school and gaining employment in Pakistan. The applicant's eldest son completed his studies in Australia and will have difficulty getting a job in Pakistan as a Christian minority.

    ·The shortage of electricity and water will affect the children's growth and if the children become ill they do not have the finances to obtain medical care.

    ·The applicant is concerned their eldest boys may get involved in drugs because of a lack of employment opportunities.

    ·The applicant did not get any support from the authorities or law makers as they saw they are non -Muslims in their Muslim country and asked them to go away.

    ·Pakistan as a whole is a Muslim country, and they are riot welcomed anywhere. The northern region (KPK - Peshawar) or Baluchistan is worse than Karachi.

    ·The applicant is scared about entering as they are Christians.

    ·The authorities will not protect them as they hate Christian minorities living there. They don't want any other religious people other than Muslims in their country

18. I advised the applicants that I had also received their responses to the Tribunal’s request for information, dated 11 November 2021.  This request for information was made under s 424(2) of the Act. 

19. I asked each applicant, separately, if their individual responses to the requests for information was a fair and accurate summary of their claims for protection.  Separately, each applicant advised me that I had a fair and accurate summary of their claims for protection. 

20. I asked each applicant if there was anything they would like to add or change in their claims and they said no.  I asked each applicant if they were happy for me to proceed on the basis of the information I had before me, and they said yes. 

21. I have reviewed the useful and relevant submissions made on behalf of the applicants.  I have had the opportunity to interview the family unit in person at a hearing and under affirmation and have found their answers to my questions to be credible and straightforward.

    Applicant 7

22. It has been suggested on the basis of country information surveyed in submissions to the Tribunal that Applicant 7, in particular, faces a real chance of serious harm in Pakistan for the essential and significant reason of her membership of a particular social group, young western educated Christian women coming into maturity who are unfamiliar with the cultural milieu or networks and systems of protection and support in Pakistan. 

23. With respect to Applicant 7 I have also had regard to the available country information including DFAT Country Information, Pakistan (25 January 2022), (See ‘Christians’ [3.45]-[3.49]; ‘Women’ [3.89]-[3.100]; and, ‘Children’ [3.106]-[3.109]).  Also ,Department of Home Affairs’ COISS, Common Claims, Pakistan (at pp31-32). 

24. I have also referred to the United Kingdom Home Office country information sources for Pakistan, in particular the Country Policy and Information: Pakistan (version 4, February 2021), generally, but with particular reference to section 7.4, ‘Women and girls’. 

25. The assessment of a foreseeable risk of harm to an applicant is an imprecise but necessary task for a decision-maker.  When assessing the prospective exposure faced by a given applicant to harm in Pakistan on their return I am firstly required to consider that applicant’s various risk profiles individually. 

26. In the first instance, when I consider the well-founded fear of persecution requirement at s5J1A of the Act I find it unhelpful and, in this particular instance, unnecessarily limiting to constrain my consideration of an applicant’s global risk profile to the technical confines of the refugee criteria. 

27. Clearly there are problems in assessing the global risk of harm, real or perceived, faced by Applicant 7 under any of race, religion, nationality or political opinion- actual or imputed.  What remains under this criterion is ‘particular social group’.  However, bearing in mind the inherent and immutable characteristics requirement of an applicant for the purposes of the statutory test at s 5L of the Act, it is difficult to identify an appropriate particular social group that would adequately account for the cumulative risk profile of Applicant 7.  Accordingly, for the purposes of this assessment, it is my finding that Applicant 7 does not meet the requirements of s 36(2)(a) of the Act because the harm feared does not fall within the restrictive terms of s 5J of the Act. 

28. As is appropriate in such cases I have then proceeded to consider the alternative complementary protection criteria at s 36(2)(aa) of the Act.  The test that I must apply here is whether or not there are substantial grounds for believing that as a necessary and foreseeable consequence of being returned to Pakistan, now or in the reasonably foreseeable future, Applicant 7 faces a real risk of significant harm. 

29. Significant harm is defined at section 36(2A) of the Act in a manner that implies a standard of particularly grievous harm.  In assessing the potential of Applicant 7 to face a real risk of significant harm on return to Pakistan, now or in the reasonably foreseeable future, I have to firstly consider the various relevant risks individually.  I find that being a young western-educated Christian woman coming into maturity, who is unfamiliar with the cultural milieu or networks and systems of protection and support in Pakistan, are relevant individual risk profiles that need to be considered in this application.  I must also consider the effect on the risk profile of Applicant 7 if she was returned to Pakistan in the context of the initial dislocation that would naturally be faced by the family unit on return.  In such circumstances supervision of Applicant 7 by her parents would likely be placed under significant pressure, particularly in the immediate period following return. 

30. Individually I find that the risks I have identified applicable to each aspect of the applicant’s risk profiles do not reach a level that constitutes a real risk of significant harm, however when the cumulative effect of these particular vulnerabilities and risk profiles is considered, I find, cumulatively, that Applicant 7 would face a real risk of significant harm now and for the reasonably foreseeable future on return to Pakistan by reference to the available country information I have identified above.

31. Given this finding I am satisfied that on return to Pakistan Applicant 7 faces a real risk of significant harm now or in the reasonably foreseeable future.  Accordingly, Applicant 7 satisfies the criteria at s 36(2)(aa) of the Act. 

32. Further, the available country information satisfies me that the types of harm that Applicant 7 faces on return to Pakistan is either tolerated or condoned in a manner that is not consistent with international standards of effective State protection in the relevant sense.  I find, therefore, that effective and durable State protection for the purposes of section 5LA of the Act would not be available or accessible to Applicant 7 in Pakistan now or in the reasonably foreseeable future if she was returned.

33. Applicant 7 has no right of access and residence in any third country for the purposes of s 36(3) of the Act.  For these reasons I find that Applicant 7 meets the statutory criteria for a protection visa in Australia at s 36 of the Act. 

    Members of the Same Family Unit:

34. For the avoidance of doubt, I have made an assessment with respect to s 5G of the Act of the relationship of family members for the purposes of an assessment at s 36(2C) of the Act which provides that it is a criterion for a protection visa that an applicant is:

    (c) A non-citizen in Australia who is a member of the same family unit as a non-citizen who,

    (i)        is mentioned in paragraph (aa) complementary protection, and

    (ii) holds a protection visa of the same class as that applied for by the applicant.

35. I am satisfied that applicants 1, 2, 3, 4, 5 and 6 are members of the immediate family unit of Applicant 7.  I have made the necessary assessment by reference in particular to rr 1.12 and 1.12AA of the regulations.  Helpfully, r 1.12AA could not be clearer or more apposite in this instance.  It states:

    Member of the immediate family

    (1)    For these regulations a person A is a member of the immediate family of another person B if:

    (a)  A is a spouse of de facto partner of B; or
    (b)  A is a dependent child of B; or

    (c)   A is a parent of B, and B is not 18 years or more.

36. On the basis of this finding it is open to the Tribunal to find that applicants 1, 2, 3, 4, 5 and 6 satisfy s 36(2C)(i) of the Act on the basis that their collective membership of the same family unit as Applicant 7 as found above.

    Decision

37. The Tribunal remits the matter for reconsideration with the direction that:

    i.Applicant 7 satisfies s.36(2)(aa) of the Act; and

    ii.all other applicants satisfy s.36(2)(c)(i) of the Act, on the basis that they are members of the same family unit as Applicant 7.

    END OF ORAL DECISION  [11.18 am]