1912149 (Refugee) - [2023] AATA 2230

1912149 (Refugee) [2023] AATA 2230 (19 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:Ms Karyn Anderson
CASE NUMBER: 1912149

COUNTRY OF REFERENCE: Pakistan
MEMBER:Denis Dragovic
DATE:19 April 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 19 April 2023 at 2:09pm
CATCHWORDS
REFUFEE – protection visa – Pakistan – Federal Circuit Court remittal – imputed political opinion – Village Defence Committee family member – working for an NGO – particular social group – returnee from the West – kidnapping – forced assistance to Taliban – Taliban threat letters – internal relocation – mental health issues – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 91, 499
Migration Regulations 1994, Schedule 2
CASES
MZXTT v MIAC [2008] FMCA 1007
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 Immigration and Border Protection 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 13 March 2014 and the delegate refused to grant the visa on 30 March 2015. The delegate accepted the applicant’s claims of being kidnapped by the Taliban and having had two warning letters despatched to his family home by the Taliban finding that the applicant had a well-founded fear of persecution. Nevertheless, the delegate went on to find that the applicant could relocate to another part of Pakistan.
The matter was appealed by the applicant to the Tribunal, differently constituted. The Tribunal accepted the applicant’s claims of fearing harm such that he had a well-founded fear of persecution but found that the applicant could relocate to another part of Pakistan. As such the Tribunal affirmed the Delegate’s decision on 8 August 2016.
The matter was appealed and subsequently heard by [Judge A] [in] February 2019. In a decision by judgement ]Judge A] found that the Tribunal had not adequately considered all of the evidence before it when considering the reasonableness of relocation. Specifically, although the Tribunal member had noted the applicant’s ability to move throughout Pakistan and find work without his family, the Honourable Judge found that the member had not specifically addressed the applicant’s claim that as he would lack family support in any place to which he would move it would not be reasonable to expect him to relocate and as such there was jurisdictional error in the decision.
The applicant appeared before the Tribunal on 3 November 2022 to give evidence and present arguments. The…

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 1912149 (Refugee)

Details

AGLC: 1912149 (Refugee) [2023] AATA 2230
Case: [2023] AATA 2230
Decision Date: 19 April 2023

CaseChat Overview and Summary

The applicant, a national of Pakistan, sought review of a decision affirming the refusal of his protection visa application. The dispute centred on whether the applicant had a well-founded fear of persecution or significant harm if returned to Pakistan, based on his alleged past experiences with the Taliban and his mental health condition. The matter was before the Tribunal for review.

The Tribunal was required to determine if the applicant had established a real risk of suffering significant harm upon return to Pakistan, as contemplated by section 36(2) of the Migration Act 1958 (Cth). This involved assessing the applicant's claims of forced assistance to militants by the Taliban, the potential for imputed political opinion, membership in a particular social group, and the impact of his mental health issues, including Post-Traumatic Stress Disorder, on his ability to seek safety. The Tribunal also considered the possibility of internal relocation within Pakistan as a means of avoiding harm.

The Tribunal affirmed the decision under review, concluding that the applicant had not established a well-founded fear of significant harm. While acknowledging the applicant's reported experiences with the Taliban and the diagnosis of PTSD, the Tribunal found that the risk described was not one that would be faced by the applicant personally, but rather a general risk faced by the population in the Swat district. The Tribunal also considered the applicant's mental health, noting that while he presented with severe psychological symptoms, it did not alter the assessment of the risk of harm upon return. The Tribunal found no basis to conclude that the applicant satisfied the criteria for a protection visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Evidence and findings of fact The applicant is from Swat district, Khyber Pakhtunkhwa, Pakistan. His mother, [and specified family members] aged [ages] years old are living in Swat while [a] brother is in [Country 1] and another in Australia. The applicant described his family as being upper middle class. His grandfather owned properties, a [farm] and a shop. The [farm] is not currently being directly managed by the family and instead is rented out. Between [specified years], the applicant studied [an occupation 1 qualification] in Karachi. The applicant stated in his statutory declaration that he and his family did not suffer any significant harm whilst living in Swat until 2008. This first incident, upon which he claims a fear of harm were he to return to Pakistan, occurred on [a day in] December 2008 at 1am. He claims the Taliban came and grabbed him so as to provide [assistance] to two injured militants. He said that it was the third night of Eid and he was staying in his guest house as his friends were there. After his friends left Taliban members knocked at the door and asked him to come with them. He said that he asked them why, but they just said that he had to go with them. In his statutory declaration of 2014, he detailed what happened next:After approximately 12-15 minutes we arrived at the Taliban base known as [name] which is located approximately 1km away from our house. The base building was an empty house and this was the first time that I had been inside it. I was extremely fearful at this time as I had no idea why they had kidnapped me and assumed that they were going to kill me. I was forced into the base area and when inside I recognised two other men from my home village, [Mr A] and [Mr B]. I knew both of these men were [in similar professions] and knew [Mr A] was [an occupation 1]. Whilst I was inside the base, I watched both of these men being forced to [assist] Taliban militants. The Taliban men used guns pointed at their heads to force them to [assist the] militants.The Taliban men instructed me to [assist the] militants and pointed guns at my head threatening me with death if I refused to help. I was extremely fearful for the safety of my life. I told them that I was [a] student and had limited [experience]. I told them that I did not have the right equipment required to [assist]. The Taliban men took [Mr A], [Mr B] and myself in the car with them and took us to a local [location] which was closed. They broke into the [building] and forced us to take whatever equipment we needed. The Taliban men pointed a gun at my head and told me that they would shoot me several times if I did not obey them. I had no choice but to obey the Taliban orders and I helped them to [assist the] militants during the night. I was released the following morning after [assisting]. I immediately contacted my family and explained what happened and confirmed that I was safe.

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

There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.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.Applicant’s mental health The applicant had not seen a mental health specialist regarding his mental health until just prior to the Tribunal hearing. Regarding his past mental health strategies, he said that he had tried to manage it himself as he had some knowledge of mental health as [an occupation 1]. As some symptoms started to get more serious, he went to a General Practitioner (GP) thinking that he may have prostate problems. After tests he was given an all clear. Following this outcome, the GP recommended that he see a psychologist. He said that he was living in [a named region] at the time, and it was difficult to see a psychologist and in addition he did not want to go down that path and eventually be prescribed medication as he has concerns about long term use of such drugs. Prior to the hearing the applicant participated in a psychosocial assessment based upon two video conference sessions with [Ms A], an experienced psychotherapist and counsellor. The first was a week before the hearing on the 28 October and the second on the 31 October 2022. I asked what prompted him to see a specialist a week before the hearing but a year after being prompted to go by his GP, he said that when he talked to his lawyer about his symptoms, she suggested to see someone. A report dated 21 November 2022 was provided by [Ms A] in which she concluded that the applicant ‘presents with a range of severe psychological symptoms, which meet the diagnostic criteria for Post-Traumatic Stress Disorder’. In addition, she wrote that, ‘he suffers hyper-vigilance, problems with concentration and marked physiological reactions to internal and external cues that remind him of traumatic events.’ Following the completion of the hearing a request was made by the applicant for further time to provide a psychologist’s report. This was granted. A report written by [Psychologist A], clinical psychologist, dated 12 February 2023 was provided to the Tribunal in a submission dated 8 March 2023. The report by [Psychologist A] is based upon a review of written material and a two-hour interview.