2008688 (Refugee)

Case [2023] AATA 4757

2008688 (Refugee) [2023] AATA 4757 (18 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2008688

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Wayne Pennell

DATE:18 October 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 18 October 2023 at 1:51pm

CATCHWORDS
REFUGEE – protection visa – Pakistan – fear of harm and honour killing by wife’s influential family – inter-caste marriage against her family’s wishes – assault, threats and attempted abduction of wife – claims but no evidence of threats to applicant – wife’s statement to court and restraining order do not mention applicant – no further interaction between wife and family – relocation, one brief interaction between applicant and wife’s relatives, and return to home area – delay in applying for protection – long residence, previous visas and return trips – country information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2

CASES

CXR18 v MICMA [2022] FedCFamC2G 581

Kavan v MIMA [2000] FCA 370

MIAC v SZQRB [2013] FCAFC 33

MIBP v SZSCA (2014) 254 CLR 317

MIEA v Guo Wei Rong (1997) 191 CLR 559

Randhawa v MILGEA (1994) 52 FCR 437

Re Prasad v MIEA (1985) 6 FCR 155

Subramaniam v MIMA (1998) VG310 of 1997

SZATV v MIAC (2007) 233 CLR 18

SZFDV v MIAC (2007) 233 CLR 51

SZSRQ v MIBP [2014] FCCA 2205

Zhang Su Rong v RRT [1997] FCA 423

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

  1. This is an application for a review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) to refuse to grant the applicant a protection visa under section 65 of the Migration Act 1958 (Cth) (‘the Act’).[1]

    [1]The Delegate’s decision was provided to the applicant on 22 May 2020.

  2. The applicant, who claims to be a citizen of Pakistan, applied for a protection visa.[2] The delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Pakistan, there was a real risk he would suffer significant harm. The delegate refused to grant the visa[3] on the basis that he was not a refugee as defined by the Act[4] and therefore he was not a person in respect of whom Australia has protection obligations.[5]

    [2]The applicant’s application was received by the Department of Home Affairs on 12 March 2018.

    [3]The Delegate’s refusal was made on 22 May 2020.

    [4]Migration Act 1958 (Cth), s 5H.

    [5]Migration Act 1958 (Cth), s 36(2)(a), s 36(2)(aa).

  3. The applicant was not represented in relation to the review, and…

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Details
AGLC
2008688 (Refugee) [2023] AATA 4757
Case
[2023] AATA 4757
Decision Date

CaseChat Overview and Summary

This matter concerned an application for a protection visa by an applicant from Pakistan. The applicant claimed he feared harm from his wife's influential family due to an inter-caste marriage. The applicant's wife had allegedly experienced assault, threats, and an attempted abduction by her family. However, the applicant presented no evidence of direct threats to himself, and his wife's statement to the court and a restraining order did not mention him. The court was required to determine whether there were substantial grounds for believing that the applicant would suffer significant harm as a necessary and foreseeable consequence of his removal to Pakistan, and whether he was a person in respect of whom Australia had protection obligations under the Migration Act 1958 (Cth).

The court affirmed the decision under review, finding that the applicant had not discharged his onus to establish his claims. The Tribunal reiterated that it is the applicant's responsibility to specify all particulars of his claims and provide sufficient evidence, and that the Tribunal is not obliged to make the case for the applicant or accept allegations uncritically. The court considered the applicant's background, including his marriage and the alleged actions of his wife's family, but noted the lack of evidence of direct threats to the applicant. The court also took into account country information and relevant guidelines.

Ultimately, the court was not satisfied that there were substantial grounds for believing that the applicant faced a real risk of significant harm upon return to Pakistan. The court found that the applicant had not established that he was a person to whom Australia owed protection obligations. The decision under review was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

The Tribunal is not required to make the applicant’s case for him. It is his responsibility to specify all particulars of his claims to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish his claims. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of his claims, or to establish or assist in establishing his claims.[24] Nor is the Tribunal required to accept uncritically any and all the allegations made by the applicant.[25]APPLICANT’S BACKGROUND AND CLAIMS[24]Migration Act 1958 (Cth), s 5AAA.[25]Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596; Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169–170.Background The applicant told the Tribunal that he was born into a liberal, educated Sunni Muslim family and raised in Lahore in the Punjab Province of Pakistan. He does not practise his religion in Australia. He is the youngest of four children and he has a brother and two sisters. He comes from a wealthy family and his father worked at a senior level for [Employer 1] and was posted by his employer to [Country 1] for the last 10 years of his career. His paternal grandfather also worked in this same [employer]. His father was well connected in Pakistan and he had retired in 2002, but had since died in early 2013 after a protracted illness. For most of his father’s posting to [Country 1] for work, the applicant, his mother and his siblings lived in Lahore. In 2005, the applicant finished his education in Pakistan. In 2006, he travelled to [Country 2] where he undertook vocational and tertiary studies in [Subject 1]. He returned to Pakistan in either late 2009 or early 2010. The applicant and his wife have known each other since 2002 when they both lived in the same locality in Lahore. Although they had periodically been in touch with each other when he lived in [Country 2], it was not until his return from [Country 2], that their relationship became more serious. They were married in Lahore on [Day 1] December 2010. Their daughter was born late the following year. From 2011 to 2012, the applicant worked at the [work section] of [Employer 2] in Islamabad. As explained in his claims, he travelled to Australia in July 2012 and since that time, his wife and daughter have lived with his mother and brother in Lahore. His mother financially supports his wife and daughter. For much of his stay in Australia, the applicant has been financially supported by his family, although he holds part of an investment in Pakistan which he inherited from his father. His most recent work in Australia has been as [an Occupation 1] in Brisbane, and he has also worked casually at a [workplace] and as [an Occupation 2]. In 2014, he completed a Masters of [Subject 2] from the Brisbane Campus of [University 1], and in 2017, he completed a Masters of [Subject 3] from [Institution], Brisbane.

Evidence

Evidence Before The Court

In accordance with Ministerial Direction No. 84 made under the Act,[22] 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.[22]Migration Act 1958 (Cth), s 499.CONSIDERATION OF APPLICANT’S CLAIMS AND THE EVIDENCE The issue in this matter is whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Pakistan, there exists a real risk that he will suffer significant harm or there is a real chance he would suffer serious harm; and whether he is a person in respect to whom Australia has protection obligations as defined in the Act.[23][23]Migration Act 1958 (Cth), s 36(2). The mere fact that the applicant claims he has a fear of persecution for a particular reason does not establish either the genuineness of his asserted fear or that it is well-founded or that it is for the reason claimed. Similarly, because he claims that he faces a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to significant harm. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. The Tribunal is not required to make the applicant’s case for him. It is his responsibility to specify all particulars of his claims to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish his claims. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of his claims, or to establish or assist in establishing his claims.[24] Nor is the Tribunal required to accept uncritically any and all the allegations made by the applicant.[25]APPLICANT’S BACKGROUND AND CLAIMS[24]Migration Act 1958 (Cth), s 5AAA.[25]Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596; Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169–170.Background The applicant told the Tribunal that he was born into a liberal, educated Sunni Muslim family and raised in Lahore in the Punjab Province of Pakistan. He does not practise his religion in Australia. He is the youngest of four children and he has a brother and two sisters. He comes from a wealthy family and his father worked at a senior level for [Employer 1] and was posted by his employer to [Country 1] for the last 10 years of his career. His paternal grandfather also worked in this same [employer]. His father was well connected in Pakistan and he had retired in 2002, but had since died in early 2013 after a protracted illness. For most of his father’s posting to [Country 1] for work, the applicant, his mother and his siblings lived in Lahore.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Based on the evidence, the Tribunal is satisfied the applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that he is not excluded from Australia’s protection obligations.[21][21]Migration Act 1958 (Cth), s 36(3).MANDATORY CONSIDERATIONS In accordance with Ministerial Direction No. 84 made under the Act,[22] 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.[22]Migration Act 1958 (Cth), s 499.CONSIDERATION OF APPLICANT’S CLAIMS AND THE EVIDENCE The issue in this matter is whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Pakistan, there exists a real risk that he will suffer significant harm or there is a real chance he would suffer serious harm; and whether he is a person in respect to whom Australia has protection obligations as defined in the Act.[23][23]Migration Act 1958 (Cth), s 36(2). The mere fact that the applicant claims he has a fear of persecution for a particular reason does not establish either the genuineness of his asserted fear or that it is well-founded or that it is for the reason claimed. Similarly, because he claims that he faces a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to significant harm. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. The Tribunal is not required to make the applicant’s case for him. It is his responsibility to specify all particulars of his claims to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish his claims. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of his claims, or to establish or assist in establishing his claims.[24] Nor is the Tribunal required to accept uncritically any and all the allegations made by the applicant.[25]APPLICANT’S BACKGROUND AND CLAIMS[24]Migration Act 1958 (Cth), s 5AAA.[25]Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596; Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169–170.Background The applicant told the Tribunal that he was born into a liberal, educated Sunni Muslim family and raised in Lahore in the Punjab Province of Pakistan. He does not practise his religion in Australia. He is the youngest of four children and he has a brother and two sisters. He comes from a wealthy family and his father worked at a senior level for [Employer 1] and was posted by his employer to [Country 1] for the last 10 years of his career. His paternal grandfather also worked in this same [employer]. His father was well connected in Pakistan and he had retired in 2002, but had since died in early 2013 after a protracted illness. For most of his father’s posting to [Country 1] for work, the applicant, his mother and his siblings lived in Lahore.