1823083 (Refugee)

[2023] AATA 2239

1823083 (Refugee) [2023] AATA 2239 (1 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr George Vassiliou (MARN: 0746634)

CASE NUMBER:  1823083

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Mark O'Loughlin

DATE AND TIME OF

ORAL DECISION AND REASONS:         1 February 2023 at 11:07 am (SA time)

DATE OF WRITTEN RECORD:                20 February 2023

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the decisions under review with the direction that the first applicant satisfies s36(2)(a) of the Migration Act.

Statement made on 20 February 2023 at 4:36pm

CATCHWORDS
REFUGEE – protection visa – Pakistan – political opinion – teacher of girls – specific and progressive phone and written threats from extremists believed to be Taliban – effective protection measures or relocation not available and applicant not obliged to change belief to avoid persecution – members of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), (2)(c)(iii), (4)(b), (c), 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2

CASE
Chan v MIEA [1989] 169 CLR 379

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.

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration and Border Protection on 30 July 2017 to refuse to grant the applicants protection visas under the Migration Act 1958 (Cth) (the Act).

2. At the hearing on 1 February 2023 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

3. On 30 July 2018 a delegate of the Minister for Home Affairs decided to refuse to grant the applicant a protection visa under Section 65 of the Migration Act 1958 Commonwealth.

4. This is an application for review of that decision. 

5. The applicant applied for a protection visa on 15 December 2015.  The delegate refused to grant the visa on the basis that they were not satisfied that the applicant is a refugee, and they were not satisfied that she faces a real risk of significant harm and is not therefore owed protection by Australia.

6. The applicant, having been invited to do so pursuant to the Act, appeared before the Tribunal on 24 November 2022 and again on 1 February 2023 via video link to give evidence and present arguments.

7. The Tribunal was assisted by an interpreter.

8. The criteria for a protection visa.

9. The relevant criteria for a protection visa are set out in Section 36 of the Act and in Schedule 2 to the Migration Regulations of 1994. An applicant must meet one of the alternative criteria in Section 36(2)(a), (aa), (b), or (c) of the Act. There are definitions of some of the terms in Section 36 and in Section 5 of the Act.

10. Section 36(2)(b) and (c) relate only to persons claiming to be members of the same family unit as someone in respect of whom Australia has protection obligations. The applicant does not claim to be such a person and there is no evidence that she is. The Tribunal finds that the applicant does not satisfy Section 36(2)(b) or (c). Therefore to succeed, the applicant will need to satisfy Section 36(2)(a) which is the refugee criterion or Section 36(2) (aa) which is the complementary protection criteria.

11. For reasons the Tribunal will now set out, the Tribunal finds that the applicant does satisfy Section 36(2)(a), the refugee criterion.

12. In accordance with Ministerial Direction number 84 made under Section 499 of the Act, the Tribunal has taken account of the Refugee Law Guidelines and of the Complementary Protection Guidelines prepared by the Department of Home Affairs, and the Tribunal has taken account of country information assessments prepared by the Department of Foreign Affairs and Trade for the purpose of protection status determinations.

13. The issue in this case is whether, based on what is accepted of the claims made or arising on the evidence, the applicant is a person to whom Australia has protection obligations.

14. For the following reasons, the Tribunal has concluded the matter should be remitted for reconsideration.  In considering this matter the Tribunal has relied on the following documents provided by the applicant:  the applicant’s protection visa application dated 2 December 2015 and the supporting statutory declaration, a copy of the delegate’s decision of 30 July 2018, statements of the applicant of 1 June 2018 and 31 January 2023.  The next document is a statement from the applicant’s sister and the next document is submissions from the applicant’s former representative dated 15 October 2015 and annexures.

    Claims.

15. The applicant’s claims are set out in the statutory declaration dated 15 October 2015 which was annexed to the protection visa application.  She relevantly says that she is a citizen of Pakistan and does not have citizenship or right to reside in any other country.  She says that at the time of that declaration in 2015 she had been teaching girls for 12 years.  She said that the education of girls in Pakistan is important both to her and to her family.   She says she came to Australia on [a scholarship] and it was a requirement of that scholarship that she return to Pakistan.

16. She said that at the time she left Pakistan she was fearful because she had received threats which she believes came from the Taliban.  She states that the Taliban are opposed to higher education for girls and that they have attacked both co-educational and girls only schools because of that opposition.  She says that one such attack was on [a University] which was close to her workplace and she further said that an institution she had been working at previously had been closed for a period due to these types of threats.

17. The applicant also said that she had personally received verbal threats on her telephone.

18. Although the callers did not identify themselves as Taliban members and indeed, may have been associated with some other group, the nature of the calls made it clear that she was being warned against teaching without a hijab, teaching girls, and teaching things described as “haram” or forbidden.

19. Although she did not take the first call seriously, as they progressed it became clear that the callers were familiar with the classes she had been teaching and they appeared to have taken a particular interest in her. 

20. She said the callers, who seemed to be at least two different people, also made it clear that they were familiar with her routine and with the routines of her children.  She was accused in these calls of teaching western and Jewish ideals and of corrupting young girls.

21. In September 2013 she also had a note put on her car, reprimanding her for not complying with demands made in the telephone calls and accusing her of preparing to leave Pakistan to get a western or Jewish education.  She then stopped taking calls from unknown numbers until she left Pakistan a couple of months later.  In that time she took extra care and kept her daughters indoors.  She does not say in the statement whether she believes that the calls continued but presumably they did for at least some time.

22. The applicant in later statements sought to promote a range of other claims particularly related to her mental health, the wellbeing of her daughters and a suggestion of domestic violence should she return to Pakistan. The Tribunal has not considered these claims, having accepted that the applicant is a refugee for the purposes of Section 36(2)(a) by reason of the threats she described against her.

23. The applicant gave oral evidence in both hearings.  Broadly speaking, her relevant evidence was in support of the statement of claims.  She described the threatening telephone calls she had received.  She said they came often when she was in the car, generally driving home and she would pull the car over to take the calls because they came from unknown numbers. 

24. She said they were generally less than a minute long and they started by identifying her by name and occupation.  She found the calls frightening and threatening and she did not say much to the people who called her. 

25. She said that the first calls were weeks or months apart, but they appeared to be increasing in frequency and in the specifics of the complaints made against her.  She also referred to the letter that she had found on her car which seems to be an escalation of the threats that had been made over the phone.

26. After the hearing in November 2022, the Tribunal was provided with a copy of a signed statement by the applicant’s sister.  The statement says that the applicant’s family in Pakistan were aware of the threats made against the applicant and that unknown men had continued to approach the family asking about the applicant and about her whereabouts. 

27. The applicant’s sIster expressed grave fears for the applicant should she return to Pakistan in general and to Islamabad in particular.

28. The applicant’s sister believes that the applicant has attracted the attention of militant fundamentalists because of her role as a teacher of girls and because of her western education.

    Consideration and findings.

29. The Tribunal notes that the evidence of the applicant’s sister appears to be the only independent corroboration of the applicant’s claims to have been threatened in the course of and by reason of her work as a teacher of girls.  The Tribunal notes in particular that this evidence was not available to the department at the time of the delegate’s decision.

30. The Tribunal accepts the applicant’s sister’s statement and as it supports the applicant’s own claims, the Tribunal accepts the applicant’s claims to fear persecution in Pakistan.

31. To satisfy the definition of “refugee” for the purposes of the refugee criterion in Section 36(2)(a), Section 5H(1) provides that an applicant who has a nationality must be unable or unwilling to return to their country of nationality owing to a well-founded fear of persecution.

32. A well-founded fear of persecution is defined at Section 5J at subsection (1) and it is also qualified by paragraphs (2) to (6) of that section.

33. Section 5J(1)(a) provides that the applicant has a well-founded fear of persecution if she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.

34. Section 5J(1)(b) provides that there must be a real chance of the persecution that the applicant fears actually occurring. 

35. Section 5J(1)(c) provides that the real chance of persecution must relate to all parts of Pakistan. 

36. So, the first question the Tribunal must ask itself is whether the conduct the applicant fears is, relevantly, persecution.  To come within the definition of a well‑founded fear of persecution Section 5J(4)(b) specifies that the feared conduct must involve serious harm to the applicant.  Serious harm is defined at Section 5J(5) as including a threat to the person’s life or liberty.

37. In this matter the Tribunal is satisfied that applicant fears that if she returns to Pakistan her teaching activity exposes to serious harm.  The Tribunal finds that Part (b) is satisfied.

38. Section 5J(4)(c) provides that the persecution must involve systematic and discriminatory conduct.  The Tribunal is satisfied that the applicant faces persecution.

39. The Tribunal is satisfied that the persecution the applicant faces relates to both a political activity, being her commitment to the teaching of girls and to her membership of a particular social group, being female teachers of girls.

40. The Tribunal is satisfied that the persecution the applicant faces is for a convention reason.  

41. The Tribunal is satisfied that the applicant meets Section 5J(1)(a). 

42. The Tribunal must now ask if there is a real chance of persecution if the applicant is returned to Pakistan.  The term “real chance” is discussed by Mason CJ in Chan v MIEA which is at [1989] 169 CLR 379 at 389. There, the Chief Justice said that;

43. Real chance clearly conveys the notion of a substantial as distinct from a remote chance of persecution occurring.

44. He goes on to say;

    If an applicant establishes that there is a real chance of persecution then his fear, assuming that he has such a fear, is well‑founded, notwithstanding that there is less than a 50 per cent chance of persecution occurring.

    This interpretation fulfils the objects of the convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin.

45. In this matter the Tribunal is satisfied that the applicant’s membership of a particular social group has drawn the attention of extremists and that the chance of consequent persecution is substantial rather than remote.

46. The Tribunal finds that the applicant satisfies Section 5J(1)(b).

47. The Tribunal must now ask if the real chance of persecution relates to all areas of Pakistan. 

48. The Tribunal has found that the applicant faces a real chance of persecution in Islamabad. 

49. The Tribunal has regard to country information that suggests that there are risks from extremists throughout Pakistan, but that Islamabad is generally safer than other parts of the country.

50. Given that the Tribunal accepts that, despite it being safer, the applicant faces a real chance of persecution in Islamabad, the Tribunal is satisfied that the real chance of persecution relates to all areas of Pakistan and Section 5J(1)(c) is satisfied.

51. There are qualifications to the well-founded fear of persecution set out in paragraphs 2 to 6 of Section 5J(1).

52. The Tribunal is satisfied that because the activities of extremists take place outside the law despite being illegal, effective protection measures are not available to the applicant in Pakistan, so section 5(2) does not take the applicant outside the definition of a well‑founded fear of prosecution and further, the Tribunal is satisfied that the applicant’s commitment to teaching girls is a political belief and section 5J(2)(c)(iii) does not oblige her to change that to avoid persecution.

53. The Tribunal is satisfied the applicant has a well-founded fear of persecution for a convention reason if she is returned to her country of nationality - Pakistan.

54. The Tribunal is satisfied that the applicant is therefore relevantly a refugee as defined.

55. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under 36(2)(a).

56. The decision is that the Tribunal remits the matter for reconsideration with the direction that the applicant satisfies Section 36(2)(a) of the Migration Act.

    DECISION

57. The Tribunal remits the decisions under review with the direction that the first applicant satisfies s36(2)(a) of the Migration Act.

    Mark O'Loughlin
    Member