2216663 (Refugee) - [2023] AATA 4689

2216663 (Refugee) [2023] AATA 4689 (5 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Mahalingam Sutharshan (MARN: 0961664)
CASE NUMBER:  2216663
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Catherine Carney-Orsborn
DATE:5 December 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 05 December 2023 at 3:08pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – Federal Circuit Court remittal – high-profile Shia – Imamia Students Organisations (ISO) – family connections and name – Noha reciter – Mohajir ethnicity – interfaith relationship with a Sunni girl – mental health issues – internal relocation – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
SZATV v MIAC (2007) 233 CLR 18
SZEPZ v MIMA (2006) 159 FCR 291
SZFDV v MIAC (2007) 233 CLR 51
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection (‘the Department’) on 5 May 2017 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 5 December 2016. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia owes protection obligations.
BACKGROUND OF CASE
On 5 December 2016, the applicant applied for a Protection visa with the Department. On 5 May 2017, a delegate of the Department refused to grant the applicant a Protection visa. On 22 May 2017, the applicant applied to the Tribunal for review of the delegate’s refusal to grant him a Protection visa. The Tribunal affirmed the delegate’s refusal on 14 June 2022.
[In] July 2022, the applicant applied for judicial review of the Tribunal’s decision before the Federal Circuit Court of Australia in [case number] and [in] November 2022, the Court remitted the matter back to the Tribunal to be reconsidered.
The Court found that the Tribunal failed to properly consider the applicant’s contention, as to why it was not reasonable to relocate to other areas of Pakistan considering the applicant’s claims expressly made by the applicant that he had caring responsibilities for his mother and brother that required him to remain near Karachi and that Covid19 restrictions hindered freedom of movement in Pakistan.
The matter is now before the Tribunal pursuant to an order of the Court.
The applicant appeared before the Tribunal on 11 October 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A]. The Tribunal…

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 2216663 (Refugee)

Details

AGLC: 2216663 (Refugee) [2023] AATA 4689
Case: [2023] AATA 4689
Decision Date: 5 December 2023

CaseChat Overview and Summary

The applicant, a citizen of Pakistan, sought review of the Administrative Appeals Tribunal's decision to affirm the delegate's refusal to grant him a protection visa. The Federal Circuit Court had previously remitted the matter back to the Tribunal for reconsideration, finding that the Tribunal had failed to adequately consider the applicant's contentions regarding his inability to relocate due to caring responsibilities for his mother and brother near Karachi, and the impact of COVID-19 restrictions on freedom of movement. The Tribunal was required to determine whether the applicant was a person in respect of whom Australia owed protection obligations.

The Tribunal considered the applicant's claims of persecution based on his Shia Muslim faith, his involvement with the Imamia Students Organisation (ISO), his role as a Noha reciter, his Mohajir ethnicity, his interfaith relationship with a Sunni girl, and his mental health issues. The Tribunal also had to assess the reasonableness of internal relocation within Pakistan, drawing guidance from High Court judgments on the matter. The Tribunal was obliged to continue the proceeding from where it left off, considering all previously obtained material and evidence, and determining the review based on the facts as they presented themselves at the time of its determination.

The Tribunal affirmed the decision under review. It accepted that the applicant was a Shia Muslim who had been involved with the ISO and recited Noha, but found that his membership and activities did not distinguish him from other Shia students. The Tribunal rejected the claim that the applicant had a high profile as a Shia Muslim in Pakistan, and that the incidents he described, including a bomb blast and sectarian violence at a hospital, were personally targeted at him. The Tribunal noted that the applicant's visits to his family in Karachi in 2013 and 2015, during which he stayed at a family home and suffered no harm, supported the conclusion that he was not a target of the Taliban in Karachi. The Tribunal also found that the applicant would not experience sectarian violence himself in Karachi.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The applicant who claims to be a citizen of Pakistan, applied for the visa on 5 December 2016. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia owes protection obligations. BACKGROUND OF CASE On 5 December 2016, the applicant applied for a Protection visa with the Department. On 5 May 2017, a delegate of the Department refused to grant the applicant a Protection visa. On 22 May 2017, the applicant applied to the Tribunal for review of the delegate’s refusal to grant him a Protection visa. The Tribunal affirmed the delegate’s refusal on 14 June 2022. [In] July 2022, the applicant applied for judicial review of the Tribunal’s decision before the Federal Circuit Court of Australia in [case number] and [in] November 2022, the Court remitted the matter back to the Tribunal to be reconsidered.The Court found that the Tribunal failed to properly consider the applicant’s contention, as to why it was not reasonable to relocate to other areas of Pakistan considering the applicant’s claims expressly made by the applicant that he had caring responsibilities for his mother and brother that required him to remain near Karachi and that Covid19 restrictions hindered freedom of movement in Pakistan. The matter is now before the Tribunal pursuant to an order of the Court. The applicant appeared before the Tribunal on 11 October 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu (Pakistan) and English languages. The applicant was represented in relation to the review. CRITERIA FOR A PROTECTION VISA The criteria for a Protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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, he or she 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. 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 because the person is a refugee. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

Evidence

Evidence Before The Court

In conducting the review, the Tribunal has considered the material provided to the Tribunal and the oral evidence given at the previous hearing held by the Tribunal, differently constituted.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. The Tribunal has before it the Department files and the previous and present Tribunal files. The Department file contains copies of the applicant’s application for a Protection visa dated 5 December 2016, copies of police reports in Pakistan dated [in] April 2015 and dated [in] October 2010, a copy of a letter from [Mr B] dated 24 April 2017, undated representative submissions, the applicant’s statutory declaration deposed on 5 December 2016, copies of ID cards for the applicant, copies of the applicant’s foreign passport, and copy of the delegate’s decision record dated 5 May 2017. The first Tribunal file contains a number of documents including, application for review of the delegate’s refusal, letter from a counsellor from a [medical] centre dated 25 January 2020, letter from [Mr C], Imamia Students Organization Pakistan Karachi Division dated [in] July 2021, letter from [Mr A], Board Director, [Organisation 1] dated 19 July 2021, copies of transaction receipts of the applicant’s wire transfers to his girlfriend in [Country 1] dated July, August, September, and October 2020, and August 2021, representative submissions dated 20 July 2021, letter from counsellor from a [medical] centre dated 21 July 2021, letter from [Ms E], undated, statement from [Mr B] dated 6 August 2021, copy of translated document dated [in] August 2021 listing person to be restricted from speaking in the province of Sindh during the month of [specified month], police report dated [in] April 2021, photographic evidence of attack on premises, letter from [Mr F] dated 2021, medical reports of the applicant’s mother dated August 2020, applicant statement of claims dated 16 August 2021, copy of recording of the applicant’s noha recital in Australia, copy of a psychological support and treatment progress report for the applicant dated 29 April 2022 and its addendum dated 18 May 2022, letter from [Mr B] dated 9 May 2022, copy of 2022 country information and news articles. The present Tribunal file contains copy Court orders.Applicant’s background In his application for a Protection visa, the applicant provided the following information. He is a citizen of Pakistan, from the Karachi town and identifies with the Mohajir ethnic group. His mother and three siblings reside in Karachi. He returned to Pakistan in January 2013 for three months to visit his family. Later in January 2015, he again travelled to Pakistan for about four months. He has travelled to [Country 2], [Country 1], and [Country 4]. He completed his Year 12 equivalent in Pakistan. In Australia, he completed a Bachelor of [Discipline 1] as well as various diplomas in [Discipline 2]. He has extensively worked in Australia in [positions] in Victoria, the ACT, and NSW since January 2012. He declared having a driving record in Australia.Applicant’s migration history

Decision

Reasons for decision

In support of this claims for protection, the applicant provided the following evidence.a.Non-certified English translation of report ‘application’ dated [in] April 2015 to The Station House Officer (SHO). The applicant reported an incident that took place [in] April 2015 at around 10:30PM where four people attended the premises the applicant was housed in – two on a motorcycle, and upon seeking confirmation of the applicant’s name pointed guns at him and shot at the main door.b.Non-certified English translation of complain ‘application’ dated [in] October 2010 to the SHO. The applicant reported gunpoint harassment at the hospital he worked at [in] October 2010 by some people who told the applicant ‘They had to kill [Name 1]. The applicant reported he managed to escape harm and filed report of the incident following advice from the hospital administrator.c.Letter from [Mr B] dated 24 April 2017. The author stated he is the applicant’s uncle. He stated that the applicant had been victim of harassment and threats due to sectarian violence and radical extremism against Shia Muslims. The author of the letter states that he supported the applicant financially while in Australia as a student and was prepared to continue doing so. The author stated he continued to be victim of threats as Shia hospital administrator based in [Location 1], that he follows a security protocol and is based in [Country 5].d.Representative submissions citing extensive country and media reports on the killing of Shias in Pakistan, ineffective state protection, and impractical relocation options. The representative also cited past RRT decisions on Pakistani cases in respect of persecution against Shias from 2011-12.e.Applicant’s statutory declaration deposed on 5 December 2016 detailing the protection claims summarised above. The delegate’s decision The delegate accepted that the applicant actively promoted Shia Islam, attended a Shia Mosque and organised and participated in Shia religious and social events in Karachi. The delegate accepted that the applicant joined the Shia student organisation, ISO, as a high school student, and continued his membership until he left university after attending the institution for less than a year. The delegate noted that an estimated 50 to 70% of all Shia students join the ISO, which operates in all four provinces and so the applicant’s membership did not distinguish himself from other Shia students in Pakistan. It was accepted that the applicant recited noha and manqabat during Shia religious events in Karachi, and continued to do so, on occasion, in Australia. However, the delegate rejected that the applicant had a raised profile as a prominent Shia Muslim in Karachi or other areas of Pakistan. It was rejected that the applicant ever had a high-profile elsewhere in Pakistan. The delegate rejected that the incidents the applicant described of a bomb blast and of sectarian violence and at the Shia hospital were targeting him personally. That the two visits the applicant made to visit his family in 2013 and in 2015 when he stayed at the same family home and suffered no harm supported the proposition that the applicant would not be and was not a target of the Taliban in Karachi. That the applicant would experience sectarian violence himself in Karachi.

Ratio Decidendi

Legal Principle Established

Under s 36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that 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. The Tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.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.What information can be considered on remittal? Where a direction is given to reconstitute the Tribunal, the AAT Act requires the reconstituted Tribunal to continue the proceeding. In completing a reconstituted review, the Tribunal may have regard to any record of the proceeding as previously constituted. This includes any record of evidence taken in the proceeding. The Tribunal must determine the review by dealing with the issues as they present themselves at the time of its determination and according to the facts as the Tribunal finds them to be at that time. In SZEPZ v MIMA (2006) 159 FCR 291, a Full Court of the Federal Court found that, where an RRT decision has been set aside by a court and the matter remitted for reconsideration owing to a jurisdictional error, it does not follow that all the steps and procedures taken in arriving at that invalid decision are themselves invalid. The Tribunal still has before it the material that was obtained when the decision that had been set aside was made and is obliged to continue and complete the particular review and not to commence a new review. In conducting the review, the Tribunal has considered the material provided to the Tribunal and the oral evidence given at the previous hearing held by the Tribunal, differently constituted.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. The Tribunal has before it the Department files and the previous and present Tribunal files. The Department file contains copies of the applicant’s application for a Protection visa dated 5 December 2016, copies of police reports in Pakistan dated [in] April 2015 and dated [in] October 2010, a copy of a letter from [Mr B] dated 24 April 2017, undated representative submissions, the applicant’s statutory declaration deposed on 5 December 2016, copies of ID cards for the applicant, copies of the applicant’s foreign passport, and copy of the delegate’s decision record dated 5 May 2017.