1803884 (Refugee) - [2023] AATA 981

1803884 (Refugee) [2023] AATA 981 (15 January 2023)

DECISION RECORD

DIVISION: Migration & Refugee Division

CASE NUMBER: 1803884

COUNTRY OF REFERENCE: Pakistan

MEMBER: Christine Cody

DATE: 15 January 2023

PLACE OF DECISION: Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 15 January 2023 at 7:03am

CATCHWORDS
REFUGEE – protection visa – Pakistan – religion – lsmaili sect of Shia Islam – threats of harm by Sunni community – accused of blasphemy – court summons – delay in applying for protection – credibility issues – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 65, 189, 426A, 441A, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
BZADA v MIC and RRT [2013] FCA 1062

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 18 January 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). Relevant law is set out in Annexure A.

The applicant lodged his application for a XA-866 (Permanent Protection) visa on 29 November 2017, providing application forms to the Department. He attended an interview with the delegate on 8 December 2017.

The delegate refused to grant the visa on the basis that the applicant’s claims were not credible.

On 14 February 2018 the applicant lodged an application for review to the Tribunal, providing a copy of the delegate’s decision record and notification of the refusal of the visa application (and other documents relating to the grant of his bridging visa).

On 16 February 2018, the Tribunal sent the applicant an acknowledgement letter, confirming that it is important that he keep the Tribunal informed of any change in his contact details, and he was requested to provide any relevant documents or information to the Tribunal as soon as possible. No documents were provided.

On 9 March 2022 the Tribunal wrote to the applicant noting that his file was being prepared for allocation to a Tribunal member which may result in a hearing being scheduled. He was asked to provide any evidence relevant to his application as soon as possible, and to complete and submit a pre-hearing form. No documents were provided.

On 19 December 2022 the Tribunal wrote to the applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the applicant to give evidence and present arguments at a hearing on 13 January…

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 1803884 (Refugee)

Details

AGLC: 1803884 (Refugee) [2023] AATA 981
Case: [2023] AATA 981
Decision Date: 15 January 2023

CaseChat Overview and Summary

The applicant, a national of Pakistan, sought review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to grant a protection visa. The applicant claimed to fear persecution in Pakistan due to his membership of the Ismaili sect of Shia Islam, alleging he had received threats of harm from the Sunni community and had been accused of blasphemy, leading to a court summons.

The primary legal issue before the court was whether the applicant had established a well-founded fear of persecution for a Convention reason, specifically his religion, and whether the Minister's decision to refuse the protection visa was affected by an error of law. The court was also required to consider the applicant's credibility and the impact of any delay in his application for protection.

In reaching its decision, the court considered the evidence presented by the applicant regarding the general situation for Ismailis in Pakistan and the specific threats he claimed to have received. The court applied the principles established in refugee law concerning the assessment of claims for protection, including the evaluation of subjective fear and objective risk. The court found that the applicant's claims were not credible and that he had not established a well-founded fear of persecution. The court affirmed the Minister's decision.

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