1825676 (Refugee) [2023] AATA 4522 (17 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr George Vassiliou (MARN: 0746634)
CASE NUMBER: 1825676
COUNTRY OF REFERENCE: Pakistan
MEMBER:Paul Noonan
DATE:17 October 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 17 October 2023 at 11.36am
CATCHWORDS REFUGEE – protection visa – Pakistan – imputed political opinion – opposition to Baloch independence – suspected links to Baloch separatists – particular social group – teacher who has advocated for rights of girls and women to be educated – returnee from the West – young Westernised female with Christian education – woman participating actively in education – race – Marri tribe – threats of harm by extremist militants – risk of harm localised to Balochistan – relocation to large city with ethnically and religiously diverse population – existing family support networks – no practical barriers to relocation – decision under review affirmed
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 10 August 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
[Name] (Applicant One), [name] (Applicant Two), [name] (Applicant Three) and [name] (Applicant Four) all claim to be citizens of Pakistan. Applicant One applied for the visa on 31 December 2015. The applicants first arrived in Australia on [date] February 2014. Applicants One and Two made their own claims for protection. The other applicants did not make claims of their own to the Department. The delegate refused to grant the visa on the basis that, while Applicant One is at risk of persecution in Balochistan, she could safely relocate to another area of Pakistan, particularly the Punjab and Sindh provinces, where there is not a real chance of serious harm or a real risk of significant harm to her. The delegate found that Applicants Two to Four are members of the same family unit as Applicant One. Accordingly, the delegate also found that Applicants Two to Four were not members of the same family unit as a non-citizen who engages Australia’s protection obligations and as such were also not eligible to protection…
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.
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1825676 (Refugee) [2023] AATA 4522
Case
[2023] AATA 4522
Decision Date
CaseChat Overview and Summary
The case involved multiple applicants seeking protection visas. The central dispute concerned whether the applicants met the criteria for a protection visa under the Migration Act 1958 (Cth), specifically whether they held a well-founded fear of persecution or faced a real risk of significant harm if returned to Pakistan. The decision was made by the Refugee Tribunal.
The legal issues before the Tribunal were whether the applicants qualified as refugees under section 36(2)(a) of the Act, or alternatively, whether they met the complementary protection criterion under section 36(2)(aa) by facing a real risk of significant harm upon removal to Pakistan. Additionally, the Tribunal considered whether certain applicants qualified as members of the same family unit as other applicants who might meet these criteria, pursuant to sections 36(2)(b) and (c). The Tribunal was required to assess the credibility of the applicants' claims and apply the definitions of "refugee," "well-founded fear of persecution," and "significant harm" as provided in the Act, including considering the availability of effective protection measures and the possibility of relocation within Pakistan.
The Tribunal found no credibility concerns with any of the applicants, noting their evidence was given in an open, uncontrived, and consistent manner. However, it determined that the claims of Applicants One and Two, centred on their marriage, were weak. The Tribunal found that while there was initial family disagreement, their families ultimately blessed and supported the marriage, and they had resided in Balochistan for many years without harm. The Tribunal concluded that the low-level discrimination experienced by Applicant One did not rise to the level of serious harm, and there was no substantive evidence or country information to support a claim of persecution arising from their marriage to a Marri Baloch tribesman. Furthermore, the Tribunal was satisfied that Applicants Three and Four were the children of Applicants One and Two and thus members of the same family unit.
Ultimately, the Tribunal was not satisfied that any of the applicants were persons in respect of whom Australia had protection obligations under section 36(2)(a) or (aa). Consequently, they could not satisfy the criteria for a protection visa, nor could they satisfy the family unit criteria under sections 36(2)(b) or (c). The Tribunal affirmed the decision not to grant the applicants protection visas.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Applicant Four continues to rely upon the claims of the other applicants.CONSIDERATION OF CLAIMS AND EVIDENCE The Tribunal has no credibility concerns with respect to any of the applicants in this matter. All evidence was given in an open, uncontrived and consistent manner. The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379. For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (a) a threat to the person’s life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment of the person; (d) significant economic hardship that threatens the person’s capacity to subsist; (e) denial of access to basic services, where the denial threatens the person’s capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.Marriage Applicants One and Two confirmed that, while there was initial family disagreement with respect to their proposed marriage, their respective families had in the end given the marriage their blessing, had attended the marriage ceremony and had supported them for many years as a couple thereafter. The Tribunal discussed with them that they had also subsequently resided in the Balochistan community for many years in close proximity to Applicant Two’s family without any harm or threats of serious harm. Applicant One submitted that she had suffered gossip and bullying at work when the marriage became known as a free-will marriage. She was forced to resign. The Tribunal noted that soon after, however, she travelled from Sindh province (where she was born and raised) to Balochistan with Applicant Two and resided there for many years thereafter. Further, as discussed, there is no country information before the Tribunal reflecting persecution for reason of marriage, free-will or otherwise, between a Baloch man and a woman from another area of Pakistan such as Sindh. Country information reflects that serious harm, in the form of honour killings, does occur in Pakistan and is always related to marriages and relationships perceived to have “dishonoured” families. However, this is clearly not the case with respect to this particular relationship and marriage. There is no suggestion that honour killings are carried out by members of the community not associated in any way with family members of the victims. The Tribunal found the evidence of Applicants One and Two with respect to claims centred on their marriage to be weak and without much substance given there is no family ill will directed towards them for this reason. The Tribunal does not accept that the type of low-level discrimination described by Applicant One rises to the level of serious harm. In addition, while Applicant One raised a somewhat vague claim that marrying a Marri Baloch tribesman may lead to persecution, there is simply no substantive basis in evidence to this claim as she lived for many years in Balochistan with her husband with no harm or threat of harm for this reason. There is no country information to reflect that a union of this type (that is, a marriage between a woman from Sindh and a Mairi tribesman from Balochistan) has ever, or would ever, attract any type of adverse attention from any members of the broader Pakistan community. There is also no suggestion that either Applicant One’s or Applicant Two’s extended family have ever received a threat of harm for reason of this marriage.
Decision
Reasons for decision
For the reasons given above, the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.DECISION The Tribunal affirms the decision not to grant the applicants protection visas.Paul NoonanMemberATTACHMENT - Extract from Migration Act 19585 (1) Interpretation…cruel or inhuman treatment or punishment means an act or omission by which:(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;but does not include an act or omission:(c) that is not inconsistent with Article 7 of the Covenant; or(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:(a) that is not inconsistent with Article 7 of the Covenant; or(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:(a) for the purpose of obtaining from the person or from a third person information or a confession; or(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or(c) for the purpose of intimidating or coercing the person or a third person; or(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…receiving country, in relation to a non-citizen, means:(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.…5H Meaning of refugee(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.Note: For the meaning of well-founded fear of persecution, see section 5J.…5J Meaning of well-founded fear of persecution(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and(c) the real chance of persecution relates to all areas of a receiving country.Note: For membership of a particular social group, see sections 5K and 5L.(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.Note: For effective protection measures, see section 5LA.(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or(b) conceal an innate or immutable characteristic of the person; or(c) without limiting paragraph (a) or (b), require the person to do any of the following:(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;(ii)conceal his or her true race, ethnicity, nationality or country of origin;(iii)alter his or her political beliefs or conceal his or her true political beliefs;(iv)conceal a physical, psychological or intellectual disability;(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and(b) the persecution must involve serious harm to the person; and(c) the persecution must involve systematic and discriminatory conduct.(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:(a) a threat to the person’s life or liberty;(b) significant physical harassment of the person;(c) significant physical ill‑treatment of the person;(d) significant economic hardship that threatens the person’s capacity to subsist;(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.5K Membership of a particular social group consisting of familyFor the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and(b) disregard any fear of persecution, or any persecution, that:(i)the first person has ever experienced; or(ii)any other member or former member (whether alive or dead) of the family has ever experienced;where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.Note: Section 5G may be relevant for determining family relationships for the purposes of this section.5L Membership of a particular social group other than familyFor the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:(a) a characteristic is shared by each member of the group; and(b) the person shares, or is perceived as sharing, the characteristic; and(c) any of the following apply:(i)the characteristic is an innate or immutable characteristic;(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;(iii)the characteristic distinguishes the group from society; and(d) the characteristic is not a fear of persecution.5LA Effective protection measures(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:(a) protection against persecution could be provided to the person by:(i)the relevant State; or(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:(a) the person can access the protection; and(b) the protection is durable; and(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.…36 Protection visas – criteria provided for by this Act…(2)A criterion for a protection visa is that the applicant for the visa is:(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (a); and(ii)holds a protection visa of the same class as that applied for by the applicant; or(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (aa); and(ii)holds a protection visa of the same class as that applied for by the applicant.(2A)A non‑citizen will suffer significant harm if:(a) the non‑citizen will be arbitrarily deprived of his or her life; or(b) the death penalty will be carried out on the non‑citizen; or(c) the non‑citizen will be subjected to torture; or(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or(e) the non‑citizen will be subjected to degrading treatment or punishment.(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.…
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The most recent country information report with respect to Pakistan produced by DFAT was issued on 25 January 2022. Member of the same family unit Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations to include the spouse and children of the applicant (who have not turned 18). Spouse is defined in s 5F of the Act and the Tribunal has considered this section of the Act for the purposes of reg 1.12. Firstly, the Tribunal is satisfied that Applicants One and Two are in a married relationship that is valid for the purposes of the Act. The Tribunal notes that Applicants One and Two have resided together for many years and have two children, who live with them both on a permanent basis. There is no material before the Tribunal that may cast doubt on the existence of their genuine spousal relationship and the delegate also took no issue with the relationship. The Tribunal is also satisfied that Applicants Three and Four are the children of Applicants One and Two, which the delegate also took no issue with. Applicant Three was born on [date]. As such, she is [age] years old. She informed the Tribunal that she is studying full time at university and is in the [number] year of her studies. She resides on a full-time basis with Applicants One and Two. As such, the Tribunal is satisfied that she meets the requirement set out at reg 1.12(2)(ii) of the Regulations to be considered a member of the same family unit as Applicant One. Applicant Four was born on [date] and the Tribunal is satisfied that he also meets these requirements. Applicants Three and Four are therefore taken to be members of the same family unit as Applicant One.Summary of claims