1906621 (Refugee) - [2024] ARTA 567

1906621 (REFUGEE) [2024] ARTA 567 (20 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Representative: Ms Karyn Anderson (MARN: 1276020)
Respondent:Minister for Home Affairs

Tribunal Numbers: 1906621
1906622
Tribunal:General Member R Da Costa
Date:20 November 2024

Place:Sydney
Decision:In case number 1906621, the Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act.

Decision:In case number 1906622, the Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act.

Statement made on 20 November 2024 at 9:22am
CATCHWORDS
REFUGEE – protection visa – Pakistan – combined hearing and decision of applications by uncle and nephew – political opinion – supporters of Awami National Party and anti-Taliban – extorted, threatened and looted by Taliban occupying village – membership of village defence committee – consistent and credible evidence despite mental health and memory issues – country information – recent increase in attacks, control of some areas and targeting of members of VDCs – decisions under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
FCS17 v MHA [2020] FCAFC 68
MZANX v MIPB [2017] FCA 307
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATIONS FOR REVIEW

This is a combined decision record in respect of two applications for review in respect of the applicants who are an uncle and nephew from the Swat valley in Khyber Pakhtunkhwa province (KPK), Pakistan.
Case number 1906621 is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 March 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). [The applicant nephew] is a citizen of Pakistan. He applied for the visa on 26 October 2017. The delegate refused to grant the visa on the basis that [the applicant nephew] is not a person in respect of whom Australia has protection obligations.
Case number 1906622 is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 March 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). [The applicant uncle] is a citizen of Pakistan. He applied for the visa on 26 October 2017. The delegate refused to grant the visa on the basis that [the applicant nephew] is not a person in respect of whom Australia has protection obligations.
[The applicant uncle] is [the applicant nephew]’s uncle. One of [the applicant uncle]’s brothers is [the applicant nephew]’s…

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 1906621 (Refugee)

Details

AGLC: 1906621 (Refugee) [2024] ARTA 567
Case: [2024] ARTA 567
Decision Date: 20 November 2024

CaseChat Overview and Summary

In the case of 1906621 (Refugee), the applicants, an uncle and his nephew from Pakistan, sought a review of the delegate's decision to refuse their applications for a protection visa. The applicants argued that they faced persecution due to their anti-Taliban stance, membership in a Village Defence Committee, and involvement in exposing and alerting authorities to Taliban activities. The Tribunal was tasked with determining whether the applicants had a well-founded fear of persecution if they were to return to Pakistan.

The primary legal issue before the court was whether the applicants had provided credible and consistent evidence that they would face a real chance of persecution if they returned to Pakistan. The court needed to assess the applicants' credibility, the consistency of their accounts, and the current situation in Pakistan, particularly in relation to the Taliban and the targeting of individuals who opposed them. Additionally, the court had to evaluate the reliability of the country information provided.

The Tribunal found the applicants' evidence to be credible and consistent. Despite the uncle's mental health and memory issues, his oral evidence was deemed sufficiently detailed and coherent to be persuasive. The Tribunal accepted the uncle's claims of being extorted, threatened, and looted by the Taliban due to his anti-Taliban activities and membership in the Village Defence Committee. The nephew's involvement in alerting security forces to Taliban presence and his subsequent departure from Pakistan due to threats further supported their claims. The Tribunal also noted the recent increase in attacks by the Taliban, their control over some areas, and their targeting of members of Village Defence Committees as relevant to the applicants' situation.

Based on the credible evidence and the current country information, the Tribunal found that the applicants had a well-founded fear of persecution if they returned to Pakistan. The decisions of the delegate were remitted back to the delegate for reconsideration in light of the Tribunal's findings.

Orders

Orders of the court

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Background

Background to the litigation

In the Tribunal hearing, [the applicant uncle] gave evidence that he lives in Sydney with [his nephew] and a couple of friends from their area in Pakistan. For the last year or two he has been working between 20 and 40 hours per week doing [work] for a [company]. He has skills as [an occupation 2].Background – [the applicant nephew] Based on information provided in [the applicant nephew]’s protection visa application form, his background is as follows. He is a [Age]-year-old man from [Village 1] in the Swat valley district of KPK, Pakistan. He is of Pashtun ethnicity, speaks Pashto, Urdu and English and is a Sunni Muslim. In Pakistan, he has a wife and a son, as well as his parents and [siblings]. He is in regular contact with his relatives by phone. In Pakistan, he usually lived in his [village]. From December 2009 to December 2011, he lived in [Karachi], while he was studying. He has a Diploma in [Subject 1] from the [named College] in [KPK] and a Bachelor of [Subject 2] from [a named educational institute] in Karachi, Sindh province. From April 2012 to October 2017, he worked for [Company] as part of a [work group] which travelled to multiple [locations] around the world. [The applicant nephew] left Pakistan legally [in] November 2016 and entered Australia [in October 2017]. In the Tribunal hearing, [the applicant nephew] gave evidence that he lives in Sydney with [his uncle] and some Pashtun friends from his area in the Swat valley. For the last year or so, he has been working [for] [a company] and he works up to 8 hours per day if there is enough work. Before this, he worked for a different company doing similar work.Evidence before the Department and the Tribunal – [the applicant uncle][The applicant uncle]’s evidence about his claims for protection [The applicant uncle]’s original claims for protection are contained in a written statement attached to his protection visa application form. He provided consistent information to the delegate in his interview in 2019 as well as elaborating on aspects of his claims. The delegate found [the applicant uncle] to be credible and accepted his evidence about events in Pakistan, but found that since he departed Pakistan the security situation in his area had improved to the extent that he would not face a real chance of persecution there now or in the reasonably foreseeable future. [The applicant uncle] provided further consistent information in his Statutory Declaration dated 15 December 2023 (Statutory Declaration) and his oral evidence in the Tribunal hearing. The Tribunal considers the evidence provided by [the applicant uncle] about his circumstances both in Pakistan and in Australia to be credible. [The applicant uncle] has given consistent evidence over time, both in writing and orally, about the events in question. Despite his mental health and memory issues, which are referred to in more detail below, his oral evidence in the hearing was sufficiently direct, detailed and coherent that the Tribunal found it to be persuasive and the Tribunal does not consider that he was attempting to embellish or exaggerate his claims. In particular, the Tribunal was persuaded by the strength and firmness of his evidence relating to his anti-Taliban views and actions.

Evidence

Evidence Before The Court

In the Tribunal hearing, [the applicant nephew] gave evidence that he lives in Sydney with [his uncle] and some Pashtun friends from his area in the Swat valley. For the last year or so, he has been working [for] [a company] and he works up to 8 hours per day if there is enough work. Before this, he worked for a different company doing similar work.Evidence before the Department and the Tribunal – [the applicant uncle][The applicant uncle]’s evidence about his claims for protection [The applicant uncle]’s original claims for protection are contained in a written statement attached to his protection visa application form. He provided consistent information to the delegate in his interview in 2019 as well as elaborating on aspects of his claims. The delegate found [the applicant uncle] to be credible and accepted his evidence about events in Pakistan, but found that since he departed Pakistan the security situation in his area had improved to the extent that he would not face a real chance of persecution there now or in the reasonably foreseeable future. [The applicant uncle] provided further consistent information in his Statutory Declaration dated 15 December 2023 (Statutory Declaration) and his oral evidence in the Tribunal hearing. The Tribunal considers the evidence provided by [the applicant uncle] about his circumstances both in Pakistan and in Australia to be credible. [The applicant uncle] has given consistent evidence over time, both in writing and orally, about the events in question. Despite his mental health and memory issues, which are referred to in more detail below, his oral evidence in the hearing was sufficiently direct, detailed and coherent that the Tribunal found it to be persuasive and the Tribunal does not consider that he was attempting to embellish or exaggerate his claims. In particular, the Tribunal was persuaded by the strength and firmness of his evidence relating to his anti-Taliban views and actions. Having considered the evidence about [the applicant uncle]’s mental health and memory issues, in the hearing the Tribunal made a particular effort to keep the questions it asked [the applicant uncle] as focussed and straightforward as possible, and to minimise the number of questions it asked him. The Tribunal also took into account the former AAT Migration and Refugee Division Guidelines on Vulnerable Persons.Events in Pakistan Based on the evidence provided to the Department and Tribunal by [the applicant uncle], the Tribunal accepts his claims about events in Pakistan that led to him applying for a protection visa as follows: · In about 2008, the Taliban entered [the applicant uncle]’s village and after examining the area from a strategic point of view they demanded [the applicant uncle] and his family hand over their house because it was in the highest part of the village.· [The applicant uncle] already hated the Taliban and also knew that if his family handed over their house, they risked being bombarded by the Pakistani armed forces and being accused of collaborating with the Taliban.· [The applicant uncle] refused the Taliban’s demand, which made them angry. The Taliban demanded Rs 1 million or two males from the family who would fight on the Taliban’s behalf. The Taliban threatened that if the family refused their demands again, then they would have to face loss of life and destruction of their homes. [The applicant uncle] and his family paid the money, which was a huge amount for them.· [The applicant uncle]’s brothers all lived close to each other in the village. A few months later, the Taliban approached them again wanting to widen the laneway between [the applicant uncle]’s house and that of his brother, [Mr A] ([the applicant nephew]’s father) to create a road that would give the Taliban access to the hilltop from where they could attack the Pakistani security forces. [The applicant uncle] and his family refused the request again, using the excuse that the women and children, in particular, used that area a lot. The Taliban were angry and threatened [the applicant uncle] again. Following this, [the applicant uncle] and the other male members of his extended family began taking it in turn to do night patrols for the safety of their families.· Soon after, the Pakistani army announced a military operation to drive the Taliban out of the Swat District and [the applicant uncle] and his relatives had to relocate to the nearby city of [City]. While they were away, the Taliban looted their houses. · In late 2009 when the villagers returned to the Swat valley, the armed forces recommended the establishment of Village Defence Committees (VDC) to assist the security forces to collect information about the remaining Taliban in the area and help to keep the peace. Many Taliban were still living in the area as many of them were local people.· [The applicant uncle] joined the VDC for his village and took an active role when he was not [away] for his job. He provided the Pakistani forces with all the information he had about local Taliban, including showing them Taliban houses and people who had made threats. [The applicant uncle] passed as much information as he could to the Pakistani security forces in the area, which led to the arrest and, possibly, the death of members of the Taliban.· In early 2012, two Taliban from [the applicant uncle]’s village were covertly visiting their houses when [the applicant nephew] saw them. [The applicant nephew] immediately alerted the Pakistani security forces who launched an operation and arrested the men. The arrest of the Taliban resulted in good publicity for [the applicant uncle]’s and [the applicant nephew]’s family, but it increased the danger from the Taliban because the Taliban knew they were openly assisting the Pakistani forces and [the applicant uncle] and his family had previously refused to assist the Taliban back in 2009. [The applicant uncle], his brother [Mr A], and [the applicant nephew] received threatening phone calls from the Taliban saying they had caused problems and would be killed.· In 2016, [the applicant nephew] was on night watch with the VDC and saw unknown people approaching their houses. He realised they were Taliban and alerted the other men on duty who fired guns into the air to try to scare the people off. The army came to search for them but the people disappeared without being caught. After this event, in about August 2016, [the applicant nephew] left the village and stayed in Karachi until he got a new [work contract] in November 2016. · In May 2017, [the applicant uncle] received an anonymous threatening phone call from the Taliban saying he and [the applicant nephew] should hand themselves over or be killed so that people know the power of the Taliban. [The applicant uncle]’s family also said they had received warnings from the Taliban and they told [the applicant uncle] to leave Pakistan for his safety. In June 2017, [the applicant uncle] got a new [work contract] and departed Pakistan. · [The applicant uncle]’s brothers in Pakistan were, and remain, active supporters of the Awami National Party (ANP). The ANP has a strong Pashtun support base and is strongly anti-Taliban. While in Pakistan, [the applicant uncle] was a member and a supporter of the ANP. He used to campaign for the party and assist during elections. He would go from village to village and door to door in the local area telling people about the ANP and encouraging them to vote for the ANP.[The applicant uncles]’s current family circumstances in Pakistan

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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