2211202 (Refugee) - [2024] ARTA 602

2211202 (REFUGEE) [2024] ARTA 602 (28 OCTOBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs

Tribunal Number: 2211202
Tribunal:General Member C Wilson
Date:28 October 2024

Place:Adelaide
Decision:The Tribunal affirms the decision under review.

Statement made on 28 October 2024 at 4:01pm
CATCHWORDS
REFUGEE – Protection Visa – Pakistan – fears harm from the family of [Ms A] – religion – Shia – marrying without the father’s consent – being a Shia who married a Sunni – short-lived mixed Shia-Sunni marriage – mental health – not satisfied that the applicant faces a real risk of serious or significant harm – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
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
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 July 2022 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 national of Pakistan, applied for the visa on 4 October 2017. The delegate refused to grant the visa on the basis that they did not accept the applicant had married a Sunni girl, and therefore did not accept he had been harmed by or faced ongoing threats from her family for this reason. The delegate also did not accept the applicant faced a real chance or real risk of harm as a Shia in Pakistan.
The applicant appeared before the Tribunal on 27 August 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
BACKGROUND
The applicant is a single Shia man from Punjab province, Pakistan.
Evidence before the Department
The applicant applied for the protection visa in October 2017 and made the following claims:
·On 3 April 2015 he married a Sunni girl [Ms A] whose family belong to the Deobandi sect of Sunni Islam. [Ms A] lived in his neighbourhood and he first noticed her in 2007. He got her phone number from her sister and they got to know each other over the phone. It was too dangerous to meet in person. In late 2014 they discussed marriage and [Ms A]’s mother and sister helped her to marry the applicant without the father’s knowledge.
·On 4 April 2015 [Ms A]’s father lodged a First Incident Report (FIR) complaining his daughter had been kidnapped by the applicant.
·On 7 April 2015 [Ms A]’s father, her brother, and two uncles came to the applicant’s house. They broke down the door and attacked him with sticks. They threatened to…

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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Details

AGLC: 2211202 (Refugee) [2024] ARTA 602
Case: [2024] ARTA 602
Decision Date: 28 October 2024

CaseChat Overview and Summary

The applicant, a single Shia man from Punjab province, Pakistan, sought a protection visa from Australia after facing severe persecution in his home country due to his marriage to a Sunni woman, [Ms A], without the consent of her family. The Tribunal was required to determine whether the applicant's claims of persecution, including threats and physical assaults by [Ms A]'s family, met the criteria for a protection visa under the Migration Act 1958 (Cth). Specifically, the Tribunal needed to assess if the applicant had a well-founded fear of persecution for reasons of religion and membership of a particular social group, and if there was a real risk of significant harm if he were to return to Pakistan.

The Tribunal found that while the applicant's claims were credible in part, there were inconsistencies and gaps in the evidence that raised concerns about his overall credibility. The Tribunal did not accept that the applicant faced a real risk of serious or significant harm upon return to Pakistan. It was noted that the applicant could potentially relocate within Pakistan to avoid harm, and that the police treated the matter as a family dispute rather than a religious persecution issue. Consequently, the Tribunal affirmed the decision under review, denying the application for a protection visa.

The Tribunal's decision was based on the unsatisfactory evidence regarding the applicant's credibility and the availability of internal relocation as a means to avoid harm. The Tribunal concluded that the applicant did not meet the criteria for a protection visa under the Act.

Orders

Orders of the court

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Background

Background to the litigation

The applicant was represented in relation to the review. The representative attended the Tribunal hearing.BACKGROUND The applicant is a single Shia man from Punjab province, Pakistan. Evidence before the Department The applicant applied for the protection visa in October 2017 and made the following claims:·On 3 April 2015 he married a Sunni girl [Ms A] whose family belong to the Deobandi sect of Sunni Islam. [Ms A] lived in his neighbourhood and he first noticed her in 2007. He got her phone number from her sister and they got to know each other over the phone. It was too dangerous to meet in person. In late 2014 they discussed marriage and [Ms A]’s mother and sister helped her to marry the applicant without the father’s knowledge.·On 4 April 2015 [Ms A]’s father lodged a First Incident Report (FIR) complaining his daughter had been kidnapped by the applicant.·On 7 April 2015 [Ms A]’s father, her brother, and two uncles came to the applicant’s house. They broke down the door and attacked him with sticks. They threatened to kill him, beat him unconscious with sticks and the butt of a gun, and forcibly took [Ms A] away. They did not kill the applicant because many people in the neighbourhood came to see what the noise was about. The applicant went to the police to lodge an FIR. ·On 12 April 2015 [Ms A] lodged a petition in the court to state she married the applicant without coercion, and that her father and male relatives opposed the marriage due to the differences in religion. No action was taken by the authorities but in response her father took her mobile phone and restricted her movements.·He has not spoken to [Ms A] since but has spoken to her sister.·In late April 2015 he moved to Lahore because it was no longer safe for him at home. He lived and worked in Lahore until he came to Australia. Whilst in Lahore he continued to receive death threats on his phone from [Ms A]’s father.·He returned home on three occasions between 2015 and 2017. On the second visit in September 2016 [Ms A]’s father and other people caught him and beat him. He lodged another FIR with the police. In September 2017 he visited his parents before departing for Australia. [Ms A]’s father and uncles forced entry into his parent’s house and shouted abuse at them. They beat him with sticks and the butt of a gun and [Ms A]’s father attempted to stab him. A lot of people in the neighbourhood came, as well as the police. The police released [Ms A]’s father and relatives without any charges. The applicant lodged another FIR.·[Ms A]’s father is a [Occupation 1] and is close to a prominent cleric of the Deobandi sect. [Ms A]’s father will not rest until the applicant is killed because he is still married to his daughter and the applicant has brought shame on their family by marrying without the father’s consent. ·The applicant cannot obtain protection as the police view this as a family matter. He cannot relocate to avoid harm as he will be found wherever he goes due to the large network of Deobandi’s throughout Pakistan.

Evidence

Evidence Before The Court

The applicant is a single Shia man from Punjab province, Pakistan. Evidence before the Department The applicant applied for the protection visa in October 2017 and made the following claims:·On 3 April 2015 he married a Sunni girl [Ms A] whose family belong to the Deobandi sect of Sunni Islam. [Ms A] lived in his neighbourhood and he first noticed her in 2007. He got her phone number from her sister and they got to know each other over the phone. It was too dangerous to meet in person. In late 2014 they discussed marriage and [Ms A]’s mother and sister helped her to marry the applicant without the father’s knowledge.·On 4 April 2015 [Ms A]’s father lodged a First Incident Report (FIR) complaining his daughter had been kidnapped by the applicant.·On 7 April 2015 [Ms A]’s father, her brother, and two uncles came to the applicant’s house. They broke down the door and attacked him with sticks. They threatened to kill him, beat him unconscious with sticks and the butt of a gun, and forcibly took [Ms A] away. They did not kill the applicant because many people in the neighbourhood came to see what the noise was about. The applicant went to the police to lodge an FIR. ·On 12 April 2015 [Ms A] lodged a petition in the court to state she married the applicant without coercion, and that her father and male relatives opposed the marriage due to the differences in religion. No action was taken by the authorities but in response her father took her mobile phone and restricted her movements.·He has not spoken to [Ms A] since but has spoken to her sister.·In late April 2015 he moved to Lahore because it was no longer safe for him at home. He lived and worked in Lahore until he came to Australia. Whilst in Lahore he continued to receive death threats on his phone from [Ms A]’s father.·He returned home on three occasions between 2015 and 2017. On the second visit in September 2016 [Ms A]’s father and other people caught him and beat him. He lodged another FIR with the police. In September 2017 he visited his parents before departing for Australia. [Ms A]’s father and uncles forced entry into his parent’s house and shouted abuse at them. They beat him with sticks and the butt of a gun and [Ms A]’s father attempted to stab him. A lot of people in the neighbourhood came, as well as the police. The police released [Ms A]’s father and relatives without any charges. The applicant lodged another FIR.·[Ms A]’s father is a [Occupation 1] and is close to a prominent cleric of the Deobandi sect. [Ms A]’s father will not rest until the applicant is killed because he is still married to his daughter and the applicant has brought shame on their family by marrying without the father’s consent. ·The applicant cannot obtain protection as the police view this as a family matter. He cannot relocate to avoid harm as he will be found wherever he goes due to the large network of Deobandi’s throughout Pakistan. In support of his claims the applicant provided a number of documents, including: an FIR lodged in December 2014 by [Ms A]’s father complaining about the applicant practising his Shia religion in the street outside his house; an FIR lodged on 4 April 2015 by [Ms A]’s father claiming the applicant kidnapped her; a court order dated 18 June 2015 granting bail for the applicant in relation to the father’s kidnapping complaint; an FIR lodged by the applicant on 7 April 2015 regarding the beating he received from [Ms A]’s father and other relatives; copy of a case lodged by [Ms A] on 12 April 2015 saying she married of her own free will and complaining of the beating of her Shia husband by her relatives; an FIR lodged by the applicant on 2 August 2016 in Lahore claiming [Ms A]’s father was repeatedly threatening him; an FIR lodged by the applicant on 20 September 2016 claiming he was beaten by [Ms A]’s father; an FIR lodged by the applicant on 5 September 2017 claiming he was beaten and stabbed by [Ms A]’s father and others; a certificate dated 1 January 2014 stating [Ms A] studied [for] two years; a family registration certificate dated 5 August 2015 for the applicant and [Ms A]; their marriage registration certificate; an undated letter from an Imam in his home district saying he knows the applicant and witnessed the serious issues caused by the marriage; and an undated letter from a local politician saying the applicant faced serious threats because of the marriage.

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 The Tribunal affirms the decision under review.Hearing: 27 August 2024Representative: Mr Ahmad DostizadaATTACHMENT - 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

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