1808695 (Refugee) - [2023] AATA 4802

1808695 (Refugee) [2023] AATA 4802 (9 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Dushan Nikolic (MARN: 5511415)
CASE NUMBER:  1808695
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Justin Meyer
DATE:9 November 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 09 November 2023 at 5:35pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – religion and political opinion – non-practicing Muslim now atheist with western lifestyle – questioning and critical statements – ethnicity – Punjabi resident in Baluchistan – non-marital relationship with non-Muslim Australian ceased after pregnancy and abortion – mental health – fear of harm from family, extremist groups and government authorities – family moved because of community attitudes and general violence – father’s recent death blamed on stress caused by applicant – minimal contact with family – delay in applying for protection – applied after student visa cancelled – country information – proportion of population atheist, agnostic and non- or rarely-attending Muslim – atheism not illegal but laws against blasphemy and apostasy – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), 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.
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 28 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, applied for the visa on 4 November 2016. The delegate refused to grant the visa on the basis that she was not satisfied that the applicant was a refugee as defined by s5H(1) and was not satisfied the applicant was a person in respect of whom Australia has protection obligations as outlined in s36(2)(a) of the Act. There was no real risk of the applicant facing significant harm, as defined in s36(2A), for these reasons if he returned to Pakistan in the foreseeable future.
The applicant appeared before the Tribunal on 8 September 2023 to give evidence and present arguments.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
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 (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…

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 1808695 (Refugee)

Details

AGLC: 1808695 (Refugee) [2023] AATA 4802
Case: [2023] AATA 4802
Decision Date: 9 November 2023

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a Pakistani national. The applicant, who identified as a non-practicing Muslim of Punjabi ethnicity, claimed to fear persecution in Pakistan due to his abandonment of Islam, his critical views on religious extremism, his relationship with a non-Muslim Australian woman, and his perceived political opinions. His student visa had been cancelled, and he subsequently lodged his protection visa application while in Australia. The decision reviewed was made by the Tribunal.

The primary legal issues before the Tribunal were whether the applicant had a well-founded fear of persecution in Pakistan for one of the five prescribed reasons, or, alternatively, whether there were substantial grounds for believing that his removal from Australia would result in a real risk of significant harm. The Tribunal was required to consider the applicant's claims in light of relevant country information and guidelines concerning vulnerable persons and complementary protection.

The Tribunal affirmed its previous decision, finding that the applicant did not satisfy the criteria for a protection visa. While acknowledging the applicant's mental state and his capacity to give evidence competently, the Tribunal concluded that his claims did not establish a well-founded fear of persecution. The Tribunal also considered the complementary protection criterion, which requires substantial grounds for believing there is a real risk of significant harm upon removal. The Tribunal's decision was affirmed, and the applicant did not satisfy the criterion in section 36(2) of the Migration Act 1958.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The Tribunal’s Migration and Refugee Division’s Guidelines on Vulnerable Persons were applied in this case. The representative assisted the applicant with his case by providing written submissions and written evidence to the Tribunal. The applicant appeared to have a good understanding of the obligation to be truthful in his communication of evidence.Procedural Background to the Case Before the Tribunal. The progress of this case is as follows:Date Event details03/03/2014 The applicant was granted a TU573 (Student) visa offshore. [03]/2014 The applicant arrived in Australia on a Pakistani passport as the holder of the class TU subclass 573 visa that was valid until [2016]. The applicant has remained in Australia since this date.04/10/2016 The applicant was sent a Notice of intention to consider cancellation of Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa under section 5116 (General Power) of the Migration Act 1958.18/10/2016 The applicant responded to the above notice through his nominated migration agent wrote to the Department of Home Affairs (then, the Department of Immigration and Border Protection).26/10/2016 The TU 573 (Student) visa held by the applicant was cancelled04/11/2016 The applicant lodged the current class XA subclass 866 (Protection) visa application and is currently onshore as the holder of a class WC subclass 030 (Bridging C) visa. The applicant’s claims, as stated to the department in 2016, were:· The applicant is currently a [Age]-year-old never married man born in Quetta in Balochistan in Pakistan. He claims to be a non-practicing Muslim of Punjabi ethnicity. His parents, a brother and two sisters reside in Lahore. The applicant claims he has not previously travelled to any other country.· The applicant came to Australia to study however he was forced to stop studying after his family's situation in Pakistan became difficult forcing his family to leave Quetta and relocate to Lahore.· While his family is "less strict in their approach to the Islamic faith" he has reached a point where he can no longer follow or be a part of the Islamic faith as he finds certain aspects of the faith and its practice deeply offensive and contrary to his core principles.· He is seeking protection in Australia as he fears returning to Pakistan, where he fears he would be regarded as a person who has abandoned his religion as a result of which he would be imputed with particular political views.· He was raised as a Muslim, however as he got older, he could "tell the difference between right and wrong" and therefore did not subscribe to the "preaching of hatred against non-Muslims" that occurred after prayers at the mosque he attended.· He witnessed youngsters being encouraged to do Jihad by people standing outside mosques targeting youngsters to do something against non-Muslims.· As a Muslim, his father encouraged him to attend the mosque however told the applicant and his siblings not to listen to these people.· If he didn't go the mosque, his father was criticised.· He was bullied and ostracised by others for refusing to go the prayer room at school and when in college. He received threats due to his open-minded thinking and way of life and was forced to dress and act the same way as his peers did.· His family has been threatened in Pakistan as they are Punjabis, residing in Quetta where they are targeted for forced recruitment by terrorist group/s.· He fears harm from the Islamic community in Pakistan for being a non-practicing Muslim; eating non-halal foods and drinking alcohol.· He would be considered anti-Islamic due to his ideas, opinions and way of life.· In Australia, he continues to practice his religion although he does not follow all the teachings of Islam.· In Pakistan, he cannot voice his opinion freely. He fears that if his views become known, he will be in grave danger.· In the year 2011-2012 when he was in Year [Number], the Imam at his mosque was talking about Jihad and stated that the attack on Lal Masjid in Islamabad, by the Pakistani security forces was wrong. The applicant claims that he stated his opinion in support of the Pakistani government's offensive at the Lal Masjid stating that the government's offensive was justified as terrorist were being bred and harboured at the Lal Masjid.· As a resulting of voicing his opinion disagreeing with the Imam, two people grabbed him and threw him out of the mosque, which incidentally was a Shia mosque.· He was already considered a non-Muslim in Pakistan. He will also be harmed for being in a non-marital relationship with an Australian, non-Muslim woman named [Ms A] who has a child from another relationship. Additionally he and [Ms A] are expecting their first child together who would be born out of wedlock. If he married a non-Muslim girl, he would be disowned by his family and society, placing him and his partner's life at risk.· He fears becoming a victim of mob violence and prosecution under Pakistan's blasphemy laws that carry the death penalty.· If forced to return to Pakistan, he fears harm for being a "Failed Asylum Seeker from a Western Country."· He fears harm from both the armed anti-government groups and the government for his political opinion. The authorities in Pakistan will not protect him as they follow Islamic rules and anyone engaged in non-Islamic activity including engaging in a relationship with a non-Muslim person will attract the death penalty under Sharia law.· He also fears harm on account of his membership of particular social groups including — "Men of Punjabi ethnicity raised in Quetta": "Men between the ages of [Age] and [Age] years old" and "Returnees from the West."· He believes he will be targeted for recruitment by terrorist groups such as Lashkar-e-Jhangvi (LeJ).· His family has already been forced to flee from Quetta to Lahore due to recent jihadist expansion into this area.· If forced to return to Pakistan, as a non-practicing Muslim, he would only be able get low paying job/s and therefore find it difficult to subsist in Pakistan.· He cannot relocate safely anywhere in Pakistan.· The applicant presented several news articles and reports about the situation in Pakistan pertaining to religion, religious intolerance, blasphemy laws and militancy.

Evidence

Evidence Before The Court

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.CONSIDERATION OF CLAIMS AND EVIDENCE The issues in this case are whether the applicant has a well-founded fear of being persecuted in Pakistan for one or more of the five reasons set out, and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm. For the following reasons, the Tribunal has concluded that the matter should be affirmed. I have taken into account the applicant’s mental health bearing in mind the psychological/ psychiatric evidence submitted. I have given consideration to the applicant’s mental state at the time of the hearing. He was lucid throughout the hearing and could answer questions with confidence. He was given time to compose his thoughts. He was informed of his opportunity to call for a break at any time. Although the hearing was possibly stressful, he was capable of giving evidence competently. The Tribunal’s Migration and Refugee Division’s Guidelines on Vulnerable Persons were applied in this case. The representative assisted the applicant with his case by providing written submissions and written evidence to the Tribunal. The applicant appeared to have a good understanding of the obligation to be truthful in his communication of evidence.Procedural Background to the Case Before the Tribunal. The progress of this case is as follows:Date Event details03/03/2014 The applicant was granted a TU573 (Student) visa offshore. [03]/2014 The applicant arrived in Australia on a Pakistani passport as the holder of the class TU subclass 573 visa that was valid until [2016]. The applicant has remained in Australia since this date.04/10/2016 The applicant was sent a Notice of intention to consider cancellation of Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa under section 5116 (General Power) of the Migration Act 1958.18/10/2016 The applicant responded to the above notice through his nominated migration agent wrote to the Department of Home Affairs (then, the Department of Immigration and Border Protection).26/10/2016 The TU 573 (Student) visa held by the applicant was cancelled04/11/2016 The applicant lodged the current class XA subclass 866 (Protection) visa application and is currently onshore as the holder of a class WC subclass 030 (Bridging C) visa. The applicant’s claims, as stated to the department in 2016, were:· The applicant is currently a [Age]-year-old never married man born in Quetta in Balochistan in Pakistan. He claims to be a non-practicing Muslim of Punjabi ethnicity. His parents, a brother and two sisters reside in Lahore. The applicant claims he has not previously travelled to any other country.· The applicant came to Australia to study however he was forced to stop studying after his family's situation in Pakistan became difficult forcing his family to leave Quetta and relocate to Lahore.· While his family is "less strict in their approach to the Islamic faith" he has reached a point where he can no longer follow or be a part of the Islamic faith as he finds certain aspects of the faith and its practice deeply offensive and contrary to his core principles.· He is seeking protection in Australia as he fears returning to Pakistan, where he fears he would be regarded as a person who has abandoned his religion as a result of which he would be imputed with particular political views.· He was raised as a Muslim, however as he got older, he could "tell the difference between right and wrong" and therefore did not subscribe to the "preaching of hatred against non-Muslims" that occurred after prayers at the mosque he attended.· He witnessed youngsters being encouraged to do Jihad by people standing outside mosques targeting youngsters to do something against non-Muslims.· As a Muslim, his father encouraged him to attend the mosque however told the applicant and his siblings not to listen to these people.· If he didn't go the mosque, his father was criticised.· He was bullied and ostracised by others for refusing to go the prayer room at school and when in college. He received threats due to his open-minded thinking and way of life and was forced to dress and act the same way as his peers did.· His family has been threatened in Pakistan as they are Punjabis, residing in Quetta where they are targeted for forced recruitment by terrorist group/s.· He fears harm from the Islamic community in Pakistan for being a non-practicing Muslim; eating non-halal foods and drinking alcohol.· He would be considered anti-Islamic due to his ideas, opinions and way of life.· In Australia, he continues to practice his religion although he does not follow all the teachings of Islam.· In Pakistan, he cannot voice his opinion freely. He fears that if his views become known, he will be in grave danger.· In the year 2011-2012 when he was in Year [Number], the Imam at his mosque was talking about Jihad and stated that the attack on Lal Masjid in Islamabad, by the Pakistani security forces was wrong. The applicant claims that he stated his opinion in support of the Pakistani government's offensive at the Lal Masjid stating that the government's offensive was justified as terrorist were being bred and harboured at the Lal Masjid.· As a resulting of voicing his opinion disagreeing with the Imam, two people grabbed him and threw him out of the mosque, which incidentally was a Shia mosque.· He was already considered a non-Muslim in Pakistan. He will also be harmed for being in a non-marital relationship with an Australian, non-Muslim woman named [Ms A] who has a child from another relationship. Additionally he and [Ms A] are expecting their first child together who would be born out of wedlock. If he married a non-Muslim girl, he would be disowned by his family and society, placing him and his partner's life at risk.· He fears becoming a victim of mob violence and prosecution under Pakistan's blasphemy laws that carry the death penalty.· If forced to return to Pakistan, he fears harm for being a "Failed Asylum Seeker from a Western Country."· He fears harm from both the armed anti-government groups and the government for his political opinion. The authorities in Pakistan will not protect him as they follow Islamic rules and anyone engaged in non-Islamic activity including engaging in a relationship with a non-Muslim person will attract the death penalty under Sharia law.· He also fears harm on account of his membership of particular social groups including — "Men of Punjabi ethnicity raised in Quetta": "Men between the ages of [Age] and [Age] years old" and "Returnees from the West."· He believes he will be targeted for recruitment by terrorist groups such as Lashkar-e-Jhangvi (LeJ).· His family has already been forced to flee from Quetta to Lahore due to recent jihadist expansion into this area.· If forced to return to Pakistan, as a non-practicing Muslim, he would only be able get low paying job/s and therefore find it difficult to subsist in Pakistan.· He cannot relocate safely anywhere in Pakistan.· The applicant presented several news articles and reports about the situation in Pakistan pertaining to religion, religious intolerance, blasphemy laws and militancy.

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.CONSIDERATION OF CLAIMS AND EVIDENCE The issues in this case are whether the applicant has a well-founded fear of being persecuted in Pakistan for one or more of the five reasons set out, and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm. For the following reasons, the Tribunal has concluded that the matter should be affirmed. I have taken into account the applicant’s mental health bearing in mind the psychological/ psychiatric evidence submitted. I have given consideration to the applicant’s mental state at the time of the hearing. He was lucid throughout the hearing and could answer questions with confidence. He was given time to compose his thoughts. He was informed of his opportunity to call for a break at any time. Although the hearing was possibly stressful, he was capable of giving evidence competently. The Tribunal’s Migration and Refugee Division’s Guidelines on Vulnerable Persons were applied in this case. The representative assisted the applicant with his case by providing written submissions and written evidence to the Tribunal. The applicant appeared to have a good understanding of the obligation to be truthful in his communication of evidence.Procedural Background to the Case Before the Tribunal. The progress of this case is as follows:Date Event details03/03/2014 The applicant was granted a TU573 (Student) visa offshore. [03]/2014 The applicant arrived in Australia on a Pakistani passport as the holder of the class TU subclass 573 visa that was valid until [2016]. The applicant has remained in Australia since this date.04/10/2016 The applicant was sent a Notice of intention to consider cancellation of Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa under section 5116 (General Power) of the Migration Act 1958.18/10/2016 The applicant responded to the above notice through his nominated migration agent wrote to the Department of Home Affairs (then, the Department of Immigration and Border Protection).26/10/2016 The TU 573 (Student) visa held by the applicant was cancelled04/11/2016 The applicant lodged the current class XA subclass 866 (Protection) visa application and is currently onshore as the holder of a class WC subclass 030 (Bridging C) visa.