1803371 (Refugee) - [2023] AATA 4198

1803371 (Refugee) [2023] AATA 4198 (18 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mrs Joey Bich Chau Tam
CASE NUMBER:  1803371
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Denis Dragovic
DATE:18 September 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 18 September 2023 at 12:37pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – mental health issues – ability to meaningfully participate in the hearing – past association with extremist Islamist groups – key element in a prosecution case against four Taliban associates – fear of harm from the Taliban – not threatened or harmed while in Pakistan – family members not harassed or threatened – Pashtun – cannabis use – compassionate circumstances – health and/or psychological state – Ministerial Intervention requested – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
BVT20 v MICMSMA [2020] FCAFC 222
CHB16 v MIBP [2019] FCA 1089
CSV15 v MIBP [2018] FCA 699
EZC18 v MHA [2019] FCA 2143
EZC18 v Minister for Home Affairs & Anor [2019] FCCA 464
MIAC v SZQRB [2013] FCAFC 33
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 Home Affairs on 6 February 2018 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, which I accept, applied for the visa on 29 June 2016.
The delegate refused to grant the visa on the basis that the applicant’s claims of fearing harm from the Taliban for reasons of being a key element in a prosecution case against four Taliban associates did not lead the applicant to face serious harm in Pakistan before coming to Australia and as such would not lead to the applicant facing harm upon return.
The applicant appeared before the Tribunal on the 1 and 8 September 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A], the applicant’s psychologist. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
During the first hearing there appeared to be some interpretation issues but based upon the applicant’s strong English language skills and the accuracy of his response to the questions asked, I am satisfied that the interpretation, when it was required, did not undermine the ability of the applicant to convey the meaning of his responses or to understand the questions.
The applicant was represented in relation to the review.
CRITERIA FOR A PROTECTION…

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 1803371 (Refugee)

Details

AGLC: 1803371 (Refugee) [2023] AATA 4198
Case: [2023] AATA 4198
Decision Date: 18 September 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the case of an applicant seeking a protection visa, who claimed to fear harm from the Taliban in Pakistan due to past associations with extremist Islamist groups. The applicant also presented with significant mental health issues, including PTSD, depression, and anxiety, which were diagnosed by psychologists and stated to severely affect his daily life in Australia. The Tribunal was required to determine whether the applicant met the criteria for a protection visa, including the complementary protection criterion, and whether his mental health condition warranted consideration under compassionate circumstances.

The Tribunal's reasoning focused on the applicant's claims of fear of harm and his mental health status. While acknowledging the applicant's diagnosed mental health conditions and the psychologist's opinion that returning to Pakistan would exacerbate these conditions, the Tribunal found that the applicant had not been threatened or harmed in Pakistan, nor had his family members. The Tribunal applied the complementary protection criterion under section 36(2)(aa) of the Migration Act 1958 (Cth), which requires a substantial ground for believing that removal would result in a real risk of significant harm. The Tribunal also considered Ministerial Direction No. 84 and relevant guidelines.

Ultimately, the Tribunal affirmed the decision under review. It concluded that the applicant did not satisfy the criterion in section 36(2) of the Migration Act, which relates to meeting the refugee convention definition of a refugee. The Tribunal did not find that the applicant met the complementary protection criterion, nor did it find that he satisfied the criteria based on being a family member of a person who met those criteria. Therefore, no protection visa was granted.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCEApplicant’s mental health The applicant is facing considerable mental health challenges. He has had extended engagements with two psychologists, the first ending only after the psychologist could no longer continue to provide the service due to his own personal health. Relevant to the applicant’s ability to meaningfully participate in the hearing is the most recent psychologist’s statement dated 15 August 2023. The psychologist, [Ms A], notes in her statement that she has had 16 sessions with the applicant. She diagnosed the applicant with PTSD, Depression and Anxiety. She believes the applicant to have been experiencing the symptoms associated with these diagnoses since 2010 when he was claiming the original traumatic incident in Pakistan occurred. With regards to his psychological treatment needs, she writes that the conditions she has diagnosed the applicant with have ‘severely affected his mental health and daily life in Australia’ and that ongoing professional counselling is required on a monthly basis, adding that if there was a favourable outcome then fewer future sessions would be required. In the 2023 statement she references a report she prepared dated 3 February 2021 in which further detailed information about her assessment of the applicant is provided. In this 2021 report [Ms A] references an earlier 2019 report of hers which does not shed further light on the applicant’s circumstances. An earlier report from his previous psychologist, [Mr B], dated 3 April 2018, included responses to specific questions that were presumably provided to him by the applicant’s representatives. The responses to these questions are relevant in so far as they raise concerns which were put to [Ms A] at the hearing for a more current diagnosis and opinion. [Mr B] wrote that the applicant claimed to have an accurate recall of the occasions when the militants threatened him with death. [Mr B] outlined his views on the situation of the applicant returning to Pakistan including that it would be ‘inevitable that he would break down completely and experience overwhelming anxiety, depression and stress.’ At the hearing [Ms A] gave her opinion that the Tribunal can rely upon his short-term and long-term memory. I accept this view as it is the most current assessment. The psychologist also gave her views on the repercussions to the applicant’s mental health were he to return to Pakistan. She said that in Australia he has a sense of safety. She said that he does not feel safe returning to Pakistan and which in turn would exacerbate his conditions. Specifically with regards to the impact of a return to Pakistan the psychologist said that his anxiety would escalate, he would be withdrawn and go into hiding. Heightened anxiety would limit his ability to participate in the wider society or form relationship. He would have impaired sleep and digestion. He would have impaired cognitive ability such as being unable to concentrate. These could transfer into high blood pressure and poor eating.

Decision

Reasons for decision

There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).DECISION

Ratio Decidendi

Legal Principle Established

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.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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCEApplicant’s mental health The applicant is facing considerable mental health challenges. He has had extended engagements with two psychologists, the first ending only after the psychologist could no longer continue to provide the service due to his own personal health. Relevant to the applicant’s ability to meaningfully participate in the hearing is the most recent psychologist’s statement dated 15 August 2023. The psychologist, [Ms A], notes in her statement that she has had 16 sessions with the applicant. She diagnosed the applicant with PTSD, Depression and Anxiety. She believes the applicant to have been experiencing the symptoms associated with these diagnoses since 2010 when he was claiming the original traumatic incident in Pakistan occurred. With regards to his psychological treatment needs, she writes that the conditions she has diagnosed the applicant with have ‘severely affected his mental health and daily life in Australia’ and that ongoing professional counselling is required on a monthly basis, adding that if there was a favourable outcome then fewer future sessions would be required. In the 2023 statement she references a report she prepared dated 3 February 2021 in which further detailed information about her assessment of the applicant is provided. In this 2021 report [Ms A] references an earlier 2019 report of hers which does not shed further light on the applicant’s circumstances. An earlier report from his previous psychologist, [Mr B], dated 3 April 2018, included responses to specific questions that were presumably provided to him by the applicant’s representatives. The responses to these questions are relevant in so far as they raise concerns which were put to [Ms A] at the hearing for a more current diagnosis and opinion.