1814205 (Refugee)

Case [2023] AATA 4470

1814205 (Refugee) [2023] AATA 4470 (18 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Kathleen Clare Coffey (MARN: 1067518)

CASE NUMBER:  1814205

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Peter Vlahos

DATE:18 September 2023

PLACE OF DECISION:  Melbourne

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

This Statement was made on 18th September 2023 at 9.45AM.

CATCHWORDS

REFUGEE – protection visa – Pakistan – particular social group – perceived adulterous relationship – religion – Shi’a – imputed political opinion – alleged infidelity – assaults and threats on family members – fear of honour killing – referral for Ministerial intervention – marriage to an Australian citizen – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 417, 438, 499
Migration Regulations 1994, Schedule 2

CASES

Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
Iyer v MIMA [2000] FCA 52
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
SAAD v MIMA [2003] FCAFC 65
SDAQ v MIMA (2003) 129 FCR 137
Selliah v MIMA [1999] FCA 615
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Sujeendran Sivalingam v Minister for Immigration and Ethnic Affairs [1998] FCA 1167
Sundararaj Sivalingam v Minister for Immigration and Multicultural Affairs [1999] FCA 76 

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

  1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 May 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 11 January 2017. The delegate refused to grant the visa on the basis that he was not satisfied that the applicant is a refugee as defined by section 5J(1) of the Act, nor was he satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Pakistan, there is a real risk the applicant will suffer significant harm.

  3. The applicant appeared before the Tribunal on 15 August 2023 to give evidence and present arguments. The…

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AGLC
1814205 (Refugee) [2023] AATA 4470
Case
[2023] AATA 4470
Decision Date

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a male applicant from Pakistan. The applicant claimed to fear harm from individuals of a Pashtun fundamentalist tribe due to an alleged encounter where he was seen holding hands with a married woman from that tribe. He further asserted that his Shi'a Islamic faith would elicit no mercy from the woman's Sunni family, who were connected with the Taliban, and that they had threatened his life and claimed to have buried the woman alive. The review was heard by the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether Australia owed protection obligations to the applicant under section 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth). This required the Tribunal to determine if the applicant had established a well-founded fear of persecution or significant harm if returned to Pakistan, based on his claims of imputed political opinion, membership of a particular social group, or other grounds for complementary protection.

The Tribunal considered the applicant's claims in light of the evidence presented, including the Department's file and material referred to in the delegate's decision. It accepted the applicant's identity as a national of Pakistan. The Tribunal's reasoning focused on whether the circumstances described by the applicant constituted a real risk of significant harm, taking into account the provisions of sections 36(2A) and (2B) of the Act, and relevant Ministerial Directions and Guidelines. Ultimately, the Tribunal concluded that the decision under review should be affirmed.

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 regard to the material referred to in the delegate’s decision. The applicant provided a copy of the departmental record of decision to the Tribunal with his review application. EVIDENCE AT THE HEARING The applicant is [an age] year old male born in [District 1], Khyber Pakhtunkhwa, Pakistan. His race is Pashtun. His religion is Muslim Shi’a. He is married and has a child. His wife and child are Australian citizens.[2] His mother is deceased. His father resides in Pakistan. He has no siblings.[2] see, AAT File copy of Applicant’s Marriage Certificate dated [in] May 2019 (Certificate [number]) and Victoria Australia Birth Certificate (Registration [number]) date of issue [date]. The applicant arrived in Australia [in] October 2016. He applied for a protection visa on 11 January 2017. The applicant has not departed Australia since his arrival. The applicant’s claims for Protection as submitted to the Department The applicant’s claims for protection, including those raised at his protection visa interview with the delegate, and evidence provided by the applicant in support of his claims and contained in the Department’s file are as follows [in summary]:[3][3] Department of Home Affairs File no. [number].§The applicant claims to fear harm in Pakistan from individuals of a Pashtun fundamentalist tribe on account of being caught holding the hands of the wife of one of these individuals;§In October 2016, the woman, identified by the applicant as a [Ms A], stopped the applicant and told him that she loved him unconditionally and asked him to take her away from her husband; §She stopped applicant at every opportunity she had to tell him that she loved him; §The applicant tried to convince her that she needed to stop this because they were both married, and it put both their lives in danger;§One day in October 2016 the applicant was returning home through a local market and a woman wearing a burqa called his name. After closer inspection of the person, the applicant realised it was [Ms A], who then took his hands and asked him to take her away from this hell;§The applicant encouraged her to return to her home but her brother-in-law saw them holding hands, at which point the applicant tried to explain the situation but [Ms A’s] brother-in-law told the applicant he was dead;§The applicant did not have a weapon on him and there were other people passing by, otherwise the applicant believes he would have been killed at that time;§The applicant returned home and told his parents what had happened; §At around 22:00, the applicant’s father called the applicant’s cousins and they arrived at his home, then took him to Islamabad, where he stayed for three nights at a friend’s place, given he knew he was already travelling to Australia;§[Ms A’s] family came to his father’s home with guns and told him that they had buried [Ms A] alive and that they were leaving the neighbourhood but will be taking the applicant’s life;§They [[Ms A’s] family] told his father that they will get the applicant and take his dirty soul out of his body;§They slapped the applicant’s father multiple times but did not harm him further because in Pashtunwali culture it is against the code of conduct to kill older persons, women, and children in relation to revenge/honour killings;§[Ms A’s] family since moved away from the area where this incident took place; §[Ms A’s] family belong to a Sunni Islam community and are connected with the Taliban. As the applicant is of the Shi’a Islamic faith, they would not have any mercy on him and will kill him.

Decision

Reasons for decision

The issue in this case is whether Australia has protection obligations in respect to the applicant. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Background – Applicant’s migration and visa history On 15 June 2015 the applicant applied for a Combined Partner (UF309/BC100)visa (offshore). On 10 November 2015 he applied for a Visitor (Sponsored Family Stream) (FA600) visa (offshore). On 11 January 2016 the Department refused the Visitor (Sponsored Family Stream)(FA600) visa (offshore). On 19 January 2016 a Merits-review was sought for the refused Visitor (Sponsored Family Stream)(FA600) visa application which was remitted back to the Department. On 19 October 2016 he was granted a Visitor(Sponsored Family Stream)(FA600) visa (offshore). [In] October 2016 he arrived in Australia. On 5 January 2017 the applicant’s Sponsorship was withdrawn for his Combined Partner (UF309/BC100) visa (offshore). On 11 January 2017 he applied for a Protection (XA866) visa; and was granted that visa’s Associated Bridging visa. On 29 January 2017 the applicant’s Visitor (Sponsored Family Stream)(FA600) visa ceased; and the bond was forfeited. On 1 May 2017 the applicant’s Combined Partner (UF309/BC100) visa (offshore) was refused. Applicant’s identity and country of origins as claimed Based on a copy of the applicant’s passport, which was provided to the Department of Home Affairs (‘the Department’)[1] and to the Tribunal, 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. On the basis of this evidence, the Tribunal further accepts that the applicant’s identity is as claimed. The Applicant’s Department file and information therein accessed by the Tribunal [1] see, certified copy of Pakistan Passport ([number]) issued [in] 2015, expiry date [in] 2020, including biodata page and all visa pages within Passport: see, Department File [number] Folios [72-90]. The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has regard to the material referred to in the delegate’s decision. The applicant provided a copy of the departmental record of decision to the Tribunal with his review application. EVIDENCE AT THE HEARING The applicant is [an age] year old male born in [District 1], Khyber Pakhtunkhwa, Pakistan. His race is Pashtun. His religion is Muslim Shi’a. He is married and has a child. His wife and child are Australian citizens.[2] His mother is deceased. His father resides in Pakistan. He has no siblings.[2] see, AAT File copy of Applicant’s Marriage Certificate dated [in] May 2019 (Certificate [number]) and Victoria Australia Birth Certificate (Registration [number]) date of issue [date]. The applicant arrived in Australia [in] October 2016. He applied for a protection visa on 11 January 2017.

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 issue in this case is whether Australia has protection obligations in respect to the applicant. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Background – Applicant’s migration and visa history On 15 June 2015 the applicant applied for a Combined Partner (UF309/BC100)visa (offshore). On 10 November 2015 he applied for a Visitor (Sponsored Family Stream) (FA600) visa (offshore). On 11 January 2016 the Department refused the Visitor (Sponsored Family Stream)(FA600) visa (offshore). On 19 January 2016 a Merits-review was sought for the refused Visitor (Sponsored Family Stream)(FA600) visa application which was remitted back to the Department. On 19 October 2016 he was granted a Visitor(Sponsored Family Stream)(FA600) visa (offshore). [In] October 2016 he arrived in Australia. On 5 January 2017 the applicant’s Sponsorship was withdrawn for his Combined Partner (UF309/BC100) visa (offshore). On 11 January 2017 he applied for a Protection (XA866) visa; and was granted that visa’s Associated Bridging visa. On 29 January 2017 the applicant’s Visitor (Sponsored Family Stream)(FA600) visa ceased; and the bond was forfeited. On 1 May 2017 the applicant’s Combined Partner (UF309/BC100) visa (offshore) was refused. Applicant’s identity and country of origins as claimed Based on a copy of the applicant’s passport, which was provided to the Department of Home Affairs (‘the Department’)[1] and to the Tribunal, 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. On the basis of this evidence, the Tribunal further accepts that the applicant’s identity is as claimed. The Applicant’s Department file and information therein accessed by the Tribunal [1] see, certified copy of Pakistan Passport ([number]) issued [in] 2015, expiry date [in] 2020, including biodata page and all visa pages within Passport: see, Department File [number] Folios [72-90].