2215120 (Refugee)

Case [2024] AATA 3524

2215120 (Refugee) [2024] AATA 3524 (15 July 2024)

DECISION RECORD

DIVISION:

Migration & Refugee Division

REPRESENTATIVE:

Mr Tony Tran

CASE NUMBERS:

2215120

2215114

COUNTRY OF REFERENCE:

Pakistan

MEMBER:

Fraser Robertson

DATE:

15 July 2024

PLACE OF DECISION:

Perth

DECISION:

1.   In respect of case 2215120, the Tribunal affirms the decision not to grant the applicants a protection visa.  

2.   In respect of case 2215114, the Tribunal affirms the decision not to grant the applicant a protection visa.  

3.   In respect of both cases, the Tribunal refers them for Ministerial intervention under s 417 of the Act.

Statement made on 15 July 2024 at 12:16pm

CATCHWORDS

REFUGEE – Protection Visa – Pakistan – religion – Shia faith – involvement in foiling the attempted bombing – not satisfied that the applicants face a real chance of being accused of blasphemy – perceived to be Westernised – strong compassionate circumstances – fourth-named applicant is now an Australian citizen – Ministerial intervention – decision under review affirmed

LEGISLATION

Australian Citizenship Act 2007 (Cth), s 12(b)

Migration Act 1958, ss 5, 36, 65, 424, 417, 499

Migration Regulations 1994, 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

  1. These reasons relate to two related applications for review of decisions made by different delegates of the responsible Minister to refuse to grant the applicants a protection visa under s 65 of the Migration Act 1958 (Cth) (the 'Act').

  2. The applicants are a family unit claiming to be unable to return to Pakistan because of their Shia faith. For these reasons, I have concluded that the applicants do not face a real chance of serious harm, and the decision under review should be affirmed.

  3. I will refer the applications and these reasons to the Minister for ministerial intervention because I have concluded that there are strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen, namely the fourth-named applicant who is now an Australian citizen.

    BACKGROUND

  4. The applicants are as follows:

    (a)the first-named applicant ('SA') is a [age]-year-old female born in Pakistan.

    (b)the second-named applicant ('AA') is a [age]-year-old male born in Pakistan.

    (c)the third-named applicant ('JAM') is a [age]-year-old male born in Pakistan.

    (d)the fourth-named applicant ('KAM') is a male born in Australia and recently turned 10 years old.

    (e)the fifth-named applicant ('DZM') is a female born in Australia and is [age] years old.

  5. SA and AA are a married couple and the parents of JAM, KAM, and DZM. SA was granted a student visa in March 2010. In May 2010, SA, AA, and JAM arrived in Australia on that visa. KAM was born in [2014]. On [date] 2024,…

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AGLC
2215120 (Refugee) [2024] AATA 3524
Case
[2024] AATA 3524
Decision Date

CaseChat Overview and Summary

The applicants, a family from Pakistan, sought protection visas in Australia. The parents, SA and AA, along with their son JAM, arrived in Australia in 2010. Their children KAM and DZM were subsequently born in Australia. The family applied for protection visas in 2015 and 2018 respectively, but these applications were refused. The applicants sought judicial review of the Tribunal's decision to affirm the refusals, which was initially successful, leading to the matter being remitted to the Tribunal.

The court was required to determine whether the applicants met the refugee criterion under s 36(2)(a) or the complementary protection criterion under s 36(2)(aa) of the Migration Act 1958 (Cth). This involved assessing whether there were substantial grounds for believing that the applicants faced a real risk of suffering significant harm as a necessary and foreseeable consequence of returning to Pakistan. The court also had to consider the applicant's responsibility to provide sufficient evidence to establish their claims.

The court found that there were not sufficient grounds to be satisfied that the applicants faced a real chance of being accused of blasphemy, nor that they were perceived to be "Westernised" in a way that would place them at risk. Despite these findings, the court noted strong compassionate circumstances, particularly concerning the fourth-named applicant, KAM, who is now an Australian citizen. Consequently, the court affirmed the decision not to grant the protection visas but referred the matter to the Minister for ministerial intervention due to these compassionate circumstances, which if not recognised, would result in serious, ongoing, and irreversible harm and continuing hardship to an Australian citizen.

Orders

Orders of the court

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Background

Background to the litigation

I will refer the applications and these reasons to the Minister for ministerial intervention because I have concluded that there are strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen, namely the fourth-named applicant who is now an Australian citizen.BACKGROUND The applicants are as follows: (a)the first-named applicant ('SA') is a [age]-year-old female born in Pakistan. (b)the second-named applicant ('AA') is a [age]-year-old male born in Pakistan. (c)the third-named applicant ('JAM') is a [age]-year-old male born in Pakistan.(d)the fourth-named applicant ('KAM') is a male born in Australia and recently turned 10 years old.(e)the fifth-named applicant ('DZM') is a female born in Australia and is [age] years old. SA and AA are a married couple and the parents of JAM, KAM, and DZM. SA was granted a student visa in March 2010. In May 2010, SA, AA, and JAM arrived in Australia on that visa. KAM was born in [2014]. On [date] 2024, KAM was recognised as an Australian citizen, having acquired Australian citizenship by operation of s 12(b) of the Australian Citizenship Act 2007 (Cth). SA, AA, JAM, and KAM applied for protection visas in April 2015. They were not invited to an interview in connection with their application, which was refused in July 2017. In the same month, SA, AA, JAM, and KAM applied for review. Subsequently, DZM was born in [year]. In September 2018, DZM applied for a protection visa. DZM was not invited to an interview. That application was refused in June 2019. DZM applied to the Tribunal to review that decision [in] 2019. On 5 May 2021, a hearing was held in both applications before a differently constituted Tribunal. On 30 June 2021, the differently constituted Tribunal affirmed both decisions not to grant protection visas to the applicants. Thereafter, the applicants sought judicial review of the Tribunal's decision. That application was successful, and in September 2022, the Court ordered that the Tribunal's decision of 30 June 2021 be quashed and the review application be remitted to the Tribunal.Remitted review application I note that the Tribunal does not have a copy of the order quashing the Tribunal's decision and remitting the applicants for re-hearing. Yet the orders in the judgment published by the Court (to which the Tribunal was a party having filed a submitting appearance), had two potential issues: (a)first, the order purported to quash the decision of the Tribunal on 21 October 2021. No such decision exists. The Tribunal's decision was dated 30 June 2021 (as Lucev J recognises in [1] of the reasons). The reference to 21 October 2021 refers to the date the applicants filed an amended application for judicial review.(b)second, paragraph 3 of the orders requires the redetermination of “the application for review made by the applicants on 17 July 2017” according to law. DZM made her review application in 2019, not in July 2017. The review application made by the DZM is based on a different decision made by the delegate.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

If a person is found not to meet the ‘refugee criterion’ in s 36(2)(a) of the Act, they may satisfy the 'complementary protection criterion' under s 36(2)(aa). That inquiry is prospective and asks whether there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a "necessary and foreseeable consequence" of return to the receiving country.[12] 'Significant harm’ is exhaustively defined in s 36(2A) of the Act.[13] Circumstances in which a person is taken not to face a real risk of significant harm are set out in ss 36(2A) and (2B), which appear in the attachment to this decision.[12] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [13] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).[13] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [14] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).Mandatory considerations As directed[14], I have had regard to the 'Refugee Law Guidelines' and 'Complementary Protection Guidelines' prepared by the Department of Home Affairs and the DFAT Country Information Report[15].[14] See Migration Act 1958 (Cth), s 499 together with Ministerial Direction No.84 made under that section.[15] 'DFAT Country Report: Pakistan', Department of Foreign Affairs and Trade, 25 January 2022, 20220125094359 ('2022 DFAT Report').ANALYSIS, FINDINGS AND REASONS The issue in this application is whether the applicant meets the refugee criterion for protection contained in s 36(2)(a), or the complementary protection criterion contained in s 36(2)(aa) of the Act. Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim.[16] The Tribunal does not have any responsibility or obligation to specify or establish, or assist an applicant in specifying or establishing, their claims. When assessing the claims made, there is no requirement to uncritically accept any or all of the allegations made.[17] Rebutting evidence is not required before finding that a particular factual assertion is not made out.[18][16] AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227, [43] (Kenny, Griffiths and Mortimer JJ); EIG17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 804 at [148] (Ladhams J).[17] SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816 (Middleton J). [18] CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at [65] (McKerracher, Griffiths and Rangiah JJ); Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 301; 34 ALR 347 at [7] (Heerey J). There is a significant amount of evidence before the Tribunal. It is helpfully summarised in the written submissions of the applicant's representative dated 27 June 2024.[19] I have read and considered all of the documents provided to both the Department and the Tribunal in reaching my decision. I have also considered the oral evidence given by the applicants at the first and second hearings before the Tribunal, together with a transcript of the first hearing before the Tribunal as differently constituted. Ultimately, however, the resolution of these review applications turns on country information. [19] See written submission dated 27 June 2024Credibility