1807065 (Refugee)

Case [2023] AATA 4368

1807065 (Refugee) [2023] AATA 4368 (13 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Kathleen Coffey

CASE NUMBER:  1807065

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Peter Vlahos

DATE:13 September 2023

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.

This Statement was made on 13th  September 2023 at 9.00AM.

CATCHWORDS

REFUGEE – Protection Visa – Pakistan – race –Pashtun ethnicity – religion – Pashtun Sunni male –imputed political opinion – anti-Taliban – past work with foreign armed forces in Afghanistan – working as a translator – sympathiser of the West – State protection not available – relocation is not reasonable – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5AAA, 5H, 5J, 36, 65

Migration Regulations 1994, Schedule 2

CASES

Abebe v Commonwealth of Australia (1999) 197 CLR 510
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225

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

  1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 February 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

  2. The applicant who claims to be a citizen of Pakistan, applied for the visa on 19 September 2016. The delegate refused to grant the visa on the basis that did not meet the requirements of s.36(2) of the Act.

  3. The applicant appeared before the Tribunal on 29 August 2023 to give evidence and present arguments. The Tribunal did not receive any evidence from any other individual.  

  4. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

    CRITERIA FOR A PROTECTION VISA

  5. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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.

  6. 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.

  7. A person is a refugee if, in the case of a person who has a nationality, they…

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AGLC
1807065 (Refugee) [2023] AATA 4368
Case
[2023] AATA 4368
Decision Date

CaseChat Overview and Summary

The applicant, a Pashtun male from Pakistan, sought a protection visa. The dispute concerned whether he faced a real chance of persecution involving serious harm if returned to Pakistan, primarily due to his past work as a translator for a foreign armed force in Afghanistan and subsequent threats from the Taliban. The matter was before the Tribunal for review.

The core legal issue before the Tribunal was to determine if the applicant had established a well-founded fear of persecution, as defined by the Migration Act 1958 (Cth), specifically whether he would face serious harm due to his ethnicity, imputed political opinion, or other grounds, and if state protection was unavailable or unreasonable to avail. The Tribunal also considered whether the applicant had a right to enter and reside in another country, which would render section 36(3) of the Act applicable.

The Tribunal accepted the applicant's identity and country of origin as Pakistan. It found no evidence that the applicant had a right to enter and reside in any country other than Pakistan, thus section 36(3) of the Act did not apply. The Tribunal reviewed the applicant's claims, including his work as a translator for a foreign army, the death threats he received from the Taliban, and the subsequent harassment of his family. The Tribunal concluded that the matter should be remitted for reconsideration.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision. The applicant provided a copy of the department’s record of decision to the Tribunal with his application. EVIDENCE AT THE HEARINGBackground of the Applicant The applicant was born on [date], in city of Karachi, Pakistan. He is married with two sons. The applicant’s immediate family remains in Pakistan. The applicant completed his primary and secondary education in Pakistan. Also, between 23 March 2014 to 18 March 2016, the applicant worked as ‘a supervisor’ for the company ‘[Company 1], [Country 1]. While in Australia, the applicant has been working in the building construction industry. The applicant’s father passed away on 22 June 2023 of natural causes, while his brother resides in [Country 2] (having obtained asylum) while the applicant has sisters who are in residence in Pakistan. Applicant’s claims for Protection The applicant’s claims for protection, including those at his protection visa interview, and evidence provided by the applicant in support of his claims are contained in his file, [number] and are summarised as follows: §The Applicant is a Pashtun born in Karachi. He is married with two sons. §He fears returning to Pakistan because he was threatened and targeted by Taliban because he worked with the [Country 3] army as a translator in Afghanistan. §He translated Pashtun for the [Country 3] army from 27 January 2013 to 2 June 2013. §On 15 March 2013 he was granted one week’s leave to visit his family in Pakistan. When he arrived home, he had a letter waiting for him from the Taliban warning him to quit his job in Afghanistan with the American occupiers. He claims he ignored the letter and returned to work in Afghanistan. §After two and a half months, he requested another week’s leave to go home to visit his wife and child. He went back home and after a few hours someone knocked on the door. A small kid gave him a paper and told him two men had asked the child to give the paper to him. He claims it was another death threat from the Taliban. §The applicant claims he decided to return to Karachi so as to leave Pakistan for a safer country, however, his bag was stolen on the bus journey home along with his passport, laptop, certificates, and other belongings. §He had to stay in Karachi until his new passport was issued. §The applicant claims the Taliban kept coming to his house bothering his family and asking for him. §He claims he contacted his community council to ask them to advise the Taliban that he had already quit his job in Afghanistan. §The applicant claims the community council advised him not to go back home as the Taliban have ordered Mujahedeen to kill him and his family if he ever showed up in North Waziristan again. §He claims while in Karachi he got another letter from Taliban warning to kill him. He claims he had two options to leave the country or face the death penalty. §He claims he got scared and contacted a friend who worked in [Country 1]. He claims his friend gave him contact details for a job in [Country 1] with a [company] called “[Company 1].” §He worked in [Country 1] for this company starting on 1 April 2014. He went home to Karachi [in] August 2015. He claims he wanted to visit his family in North Waziristan but was scared and so asked his wife and son to come to Karachi. During this period he received a phone call from a stranger who said “welcome to hell.” He claims a week later he received another threatening letter from Taliban. He departed to [Country 1] on [date] November 2015. His wife went back home to North Waziristan. §He claims if he returns, he will be targeted by Taliban on account of returning from a Western country. §He claims he will be “butchered” if he returns to Pakistan.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The issue in this case is whether the applicant faces a real chance of suffering treatment amounting to persecution involving serious harm if he was to return to Pakistan. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.Background – Applicant’s migration and visa history [In] August 2016 the applicant arrived in Australia on a Visitor FA-600 visa and on 19 September 2016 he applied for a XA-866 Protection visa (which was refused by the Department) but was granted the associated bridging visa. The applicant’s identity and country of origins as claimed Based on the applicant’s passport, which was provided to the Department of Home Affairs (‘the Department’) and to the Tribunal,[1] and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of the Islamic Republic of Pakistan and has had his claims assessed against that country in relation to sections 36(2)(a) and 36(2)(aa) of the Act. Therefore, on the basis of the information before the Tribunal, the Tribunal accepts the applicant’s identity as claimed. Protection (if) available to the applicant in another country considered[1] Department of Home Affairs File no.[deleted] The Tribunal having reviewed and considered all information before it also concludes and finds that there is no evidence which indicates that the applicant has a right to enter and reside in a country other than his home country – Pakistan. Therefore, the Tribunal finds that s.36(3) of the Act does not apply to the applicant in this case.The applicant’s Department file and information therein accessed by the Tribunal The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision. The applicant provided a copy of the department’s record of decision to the Tribunal with his application. EVIDENCE AT THE HEARINGBackground of the Applicant The applicant was born on [date], in city of Karachi, Pakistan. He is married with two sons. The applicant’s immediate family remains in Pakistan. The applicant completed his primary and secondary education in Pakistan. Also, between 23 March 2014 to 18 March 2016, the applicant worked as ‘a supervisor’ for the company ‘[Company 1], [Country 1]. While in Australia, the applicant has been working in the building construction industry. The applicant’s father passed away on 22 June 2023 of natural causes, while his brother resides in [Country 2] (having obtained asylum) while the applicant has sisters who are in residence in Pakistan. Applicant’s claims for Protection The applicant’s claims for protection, including those at his protection visa interview, and evidence provided by the applicant in support of his claims are contained in his file, [number] and are summarised as follows: §The Applicant is a Pashtun born in Karachi. He is married with two sons. §He fears returning to Pakistan because he was threatened and targeted by Taliban because he worked with the [Country 3] army as a translator in Afghanistan. §He translated Pashtun for the [Country 3] army from 27 January 2013 to 2 June 2013. §On 15 March 2013 he was granted one week’s leave to visit his family in Pakistan. When he arrived home, he had a letter waiting for him from the Taliban warning him to quit his job in Afghanistan with the American occupiers. He claims he ignored the letter and returned to work in Afghanistan. §After two and a half months, he requested another week’s leave to go home to visit his wife and child. He went back home and after a few hours someone knocked on the door. A small kid gave him a paper and told him two men had asked the child to give the paper to him. He claims it was another death threat from the Taliban. §The applicant claims he decided to return to Karachi so as to leave Pakistan for a safer country, however, his bag was stolen on the bus journey home along with his passport, laptop, certificates, and other belongings. §He had to stay in Karachi until his new passport was issued. §The applicant claims the Taliban kept coming to his house bothering his family and asking for him. §He claims he contacted his community council to ask them to advise the Taliban that he had already quit his job in Afghanistan. §The applicant claims the community council advised him not to go back home as the Taliban have ordered Mujahedeen to kill him and his family if he ever showed up in North Waziristan again. §He claims while in Karachi he got another letter from Taliban warning to kill him. He claims he had two options to leave the country or face the death penalty. §He claims he got scared and contacted a friend who worked in [Country 1]. He claims his friend gave him contact details for a job in [Country 1] with a [company] called “[Company 1].” §He worked in [Country 1] for this company starting on 1 April 2014. He went home to Karachi [in] August 2015. He claims he wanted to visit his family in North Waziristan but was scared and so asked his wife and son to come to Karachi. During this period he received a phone call from a stranger who said “welcome to hell.” He claims a week later he received another threatening letter from Taliban. He departed to [Country 1] on [date] November 2015. His wife went back home to North Waziristan. §He claims if he returns, he will be targeted by Taliban on account of returning from a Western country. §He claims he will be “butchered” if he returns to Pakistan.