1913941 (Refugee)

[2020] AATA 795

1913941 (Refugee) [2020] AATA 795 (5 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1913941

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Nora Lamont

DATE:5 February 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 05 February 2020 at 1:20pm

CATCHWORDS
REFUGEE – protection visa – Pakistan – Federal Circuit Court remittal – religion – imputed conversion from Sunni to Shia – interested but not a convert – member of a particular social group – informer for government agency – imputed supporter of terrorist – decision under review remitted

LEGISLATION            
Migration Act 1958 (Cth), ss 36(2)(a), 65, 424AA
Migration Regulations 1994 (Cth), Schedule 2

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

1. 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 (the Act).

2. The applicant, who claims to be a citizen of Pakistan, applied for the visa on 9 October 2013 and the delegate refused to grant the visa on 19 November 2014.

3. The application was remitted from the Federal Circuit Court [in] May 2019 for a jurisdictional error as the Tribunal failed to put adverse information to the applicant under s.424AA during the hearing.

4. The applicant appeared before the Tribunal on 16 October and 7 November 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s brother who is an Australian permanent resident. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

5. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

   RELEVANT LAW

6. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

   Refugee criterion

7. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

8. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

9. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

10. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

11. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

12. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

13. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

14. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. 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.

15. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.  

16. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

17. 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 a protection 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 the applicant 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’).

18. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

19. 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.

    Section 499 Ministerial Direction

20. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment 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

21. The applicant claims to be a citizen of Pakistan and provided a copy of his passport to the Tribunal. The Tribunal finds that the applicant is a citizen of Pakistan and that Pakistan is the applicant’s country of nationality for the purposes of s.36(2)(a) and the receiving country for the purposes of complementary protection under s.36(2)(aa).

22. There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any safe third country for the purposes of s.36 (3) of the Act.

23. The applicant is a [age] year old male from [Rawalpindi] Punjab. The applicant and his family are Sunni Muslims and the applicant studied [Subject] in 2011 in Islamabad and in 2012 the applicant applied for a student visa and he arrived in Australia [in] January 2013. He has remained in the country since that time.

24. On 9 October 2013 the applicant applied for a protection visa which was refused on 19 November 2014. On 19 July 2016 the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal affirmed the decision to refuse the visa and the applicant applied for judicial relief. The Federal Circuit Court remitted the application back to the Tribunal on a jurisdictional error. (See above).

25. The applicants claims as summarised from his protection application are as follows: [1]

    ·After completing high school, the applicant undertook tasks as an informer for [a Government agency].

    ·The applicant has Shia friends, attended Shia processions and mosques and has been interested in learning the Shia faith.

    ·The applicant undertook surveillance at both Shia and Sunni Mosques for [the Agency].

    ·The applicant has been the victim of attempted kidnappings and fears that he will be killed or seriously harmed by anti-Shia group Lashkar-e-jhangvi or any other fundamentalist or extremist group due to is involvement in [the Agency].

    ·The applicant’s father has been harassed and the applicant’s family have also rejected him and threatened him because they suspect him of converting to Shia.

    Tribunal Hearing

    [1] [Department file number] folio pages 32-37.

26. At the Tribunal hearing the applicant stated in 2009 he met a man named [Mr A] otherwise known as [Alias].  He was a terrorist and extremist who would recruit young boy who were easily influenced. It was around the same time that [the Agency] approached the applicant. In evidence the applicant’s brother stated that his family is well known and have direct connection with the Imam at [a] Mosque and this connection made his brother attractive to both [Mr A] and [the Agency].

27. The applicant explained that [Mr A] was nice to him and he was so young and he tried to make him believe things. [Mr A] was pressuring the applicant. When the Tribunal asked why this was not brought up in his claims he said he was still afraid of him. He was subsequently killed by counterterrorism in 2016. The applicant’s brother stated that counter terrorism had come looking for his brother around this time. They approached him, his father and extended family members.

28. The applicant feels as does his brother that he is now considered dangerous for his association with [Mr A] and work with [the Agency]. Therefore he has been imputed as being a supporter or conspirator of [Mr A].

29. The applicant spoke of his time with [the Agency] and the trouble that he had. He said that he thought [the Agency] recruited him as a way to get information about [Mr A]. He was a pawn for both groups.

30. The applicant spoke about when he was recruited into [the Agency] and how in January 2011 he went to a Shia Mosque as there was a chance of a militant attack. He went inside the Mosque and sat in the corner. The applicant wrote down every word that was said and reported back to headquarters. The next day he was observing the Mosque from the road when two Islamic dressed men with beards approached on motorcycles. He thought it was suspicious and gave chase. It appeared they were heading towards the [Mosque] and the [Mosque] is known for radical and fundamentalist activities. When he reported back to [the Agency] they told him to spend a few weeks at the [Mosque] to gather information.

31. The applicant gathered information and reported it back to [the Agency]. Then one day he was standing outside another Mosque when a bunch of men were approaching, they shouted out “taghoot” and fled. He sent a message to [the Agency] nearby and they gave chase. Those men were apprehended and were planning an attack.

32. After that the applicant had a few more situations with militants and he had a few attempted kidnappings. He was shot at by a group of men in a [vehicle]. After all these incidences [the Agency] told him that his life was at risk and he should hide. The applicant’s parents were angry at him as they thought the militants were after him as they thought he had converted to Shia.

33. After this time he left Pakistan and has remained in Australia since.

    Findings

    Imputed Shia conversion

34. The applicant stated he has not converted to being a Shia. He just supports Shias as he has friends who are Shia. The applicant stated he liked their poetry and music and he noticed their persecution. He stated they are human beings and whilst he has been in a Shia mosque he did not offer prayers whilst in the mosque. He has attended the Shia mosque just for a meeting and his father was unaware of this. Since he has been in Australia he has attended the Shia mosque in [Suburb 1], [Suburb 2] and [Suburb 3] Islamic Centre.

35. The applicant said he was religious in Pakistan but not in Australia. He cannot offer prayers five times a day as he works as [an Occupation].

36. The Tribunal accepts that the applicant has explored becoming a Shia that he has attended Shia mosques both in Pakistan and in Australia but that he has not actually converted from Sunni to Shia. Further, given the applicant’s profile the Tribunal believes that the applicant would be a target in his home country given his imputed Shia conversion.

    Membership of a particular social group

37. The Tribunal finds that the applicant is a member of a particular social group “Informant of [the Agency]. This does not mean that establishing such membership will be sufficient to make out a case to be recognised as a refugee. The question to be addressed is whether the particular person will face a real risk of persecution on account of their membership of such a group.

38. The question then before the Tribunal is will the applicant face a real chance of serious harm based on his membership of the particular social group Stateless Bedoons. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

39. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

40. For the reasons that follow the Tribunal finds the applicant faces a well-founded fear of persecution from the authorities or [Agency] members and militants who know he is an informant.

41. The applicant has detailed over several years his involvement with [the Agency]. He has been consistent in most respects but also in some instances not that coherent. However, the Tribunal has found the applicant to be a bit naïve and slow in telling his story and has had regard to that. The applicant was able to supply a letter from his [manager] in [the Agency] to verify his employment with them.[2]

    [2] AAT Folio page 69

42. The Tribunal therefore finds that the applicant does have a well-founded fear of persecution for his membership in a particular social group. It is the finding of the Tribunal that the applicant will be persecuted for his membership of a particular social group in the reasonably foreseeable future if he was returned to Pakistan, thus satisfying the criterion in s.36(2)(a).

    Imputed Terrorist ties

43. The Tribunal accepts that the applicant had some dealings with [Mr A] when he was younger. His brother gave compelling evidence at the Tribunal hearing. The Tribunal accepts that the applicant is perceived as having ties to [Mr A] and this has caused the applicant fear. The Tribunal also accepts that it is possible that [the Agency] and [Mr A] and his group used the applicant to gain information.

    424AA

44. This application came back from the court due to a Jurisdictional error and that being that the Tribunal put information to the applicant that his witness had stated that the applicant only attended the mosque for major festivals and that he considered it to be important to attend the mosque every day. The Tribunal put this information to the applicant but did not put the information to the applicant under 424AA.

45. This Tribunal put the adverse information before the applicant under 424AA and the applicant responded. The applicant stated that the witness knew him for about two years and also admitted that he had attended the mosque. The applicant said he told the Tribunal it was hard for him to get to the mosque as it was difficult for him to travel and sometimes he had health issues or financial issues which meant he could not attend the mosque. The applicant stated that the Imam’s response was not understood and taken out of context. The Imam thought the applicant was making allegations against him. The applicant said he wanted to meet the Imam face to face and tell him about the difficulties he was having and the Imam just wanted to help him and had never been before a Tribunal so it was not correctly understood.

46. The Tribunal accepts the applicant’s explanation as to what occurred when the Imam gave evidence in the first Tribunal hearing.

    Mental Health

47. The Tribunal notes the applicant has mental health issues and has seen several health care professionals including a psychiatrist from time to time since his arrival in Australia. The applicant suffers from anxiety and depression. He was on anti-depressants [from] 2016 but had [body part] pain from them and had to stop. The applicant said he was in a relationship with a Shia woman in Australia but it had ended as his family would not accept this relationship.

1. The applicant also suffers from [a physical difficulty, details deleted].

2. The Tribunal accepts that the applicant has some mental health issues and that he has sought limited treatment for these issues. The Tribunal did receive a psychiatric report from a visit the applicant had with a consultant psychiatrist [in] December 2019.

   State Protection and Relocation

3. With respect to state protection, the Tribunal finds that given his membership of a particular social group “informant of [the Agency]” combined with his imputed “Shia conversion” and ties to a dead terrorist the Tribunal is not satisfied that the applicant will be afforded state protection.  DFAT states: ‘DFAT assesses that state protection in Pakistan is limited due to resource shortages, corruption, socio-economic factors at the individual level and political will’.[3]

   [3] DFAT Country Information Report Pakistan 20 February 2019 page 62

4. The Tribunal is also not satisfied that the applicant can safely relocate to another part of Pakistan to avoid the harm he fears in his home area. Given he is perceived to have become a Shia and given that he has ties to both a terrorist and [the Agency] there is no place safe in Pakistan that the applicant can relocate to.

5. The Tribunal finds that the applicant does have a well-founded fear of persecution within the meaning of the convention and the Tribunal finds that the applicant will be persecuted for his membership of a particular social group and his imputed Shia and terrorist ties in the reasonably foreseeable future if he was returned to Pakistan. He therefore satisfies the criterion set out in s. 36(2)(a).

6. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

   DECISION

7. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

   Nora Lamont
   Member