2304810 (Refugee) - [2024] AATA 1417

2304810 (Refugee) [2024] AATA 1417 (17 January 2024)

DECISION RECORD

DIVISION:  Migration & Refugee Division
REPRESENTATIVE:  Ms Catherine Farrell
CASE NUMBER:  2304810
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:  Paul Noonan
DATE:  17 January 2024
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 17 January 2024 at 11.52am
CATCHWORDS
REFUGEE – Protection Visa – Pakistan – political opinion – a proponent and long-term member of the ANP – religion – Sunni Islam – race – Pashtun – applicant has been attacked in the past by members of the Taliban – family is broadly associated with the ANP – membership of the particular social group – a Pashtun residing in Swat – a person living with mental illness – a returnee from a Western country – continued and extensive history of mental health treatment – applicant will not be able to access effective protection – heightened risk presented by his poor state of mental health – there is currently a real chance of serious harm to the applicant anywhere in Pakistan – decision under review remitted

LEGISLATION

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

Migration Regulations 1994, Schedule 2

CASES

MIMA v Respondents S152/2003 (2004) 222 CLR 1
Randhawa v MILGEA (1994) 52 FCR 437
SZATV v MIAC (2007) 233 CLR 18
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 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant arrived in Australia on [date] February 2014, as a holder of a Student visa, and had travelled on a Pakistan passport issued on [date] 2013 and valid to [date] 2023.
The applicant, who claims to be a citizen of Pakistan, applied for the visa on 28 April 2014.
The Tribunal accepts, on the basis of passport retained on the Department file and the delegate’s assessment as such, that the applicant is a citizen of Pakistan and has assessed his claims against that country.
On 26 October 2015 the applicant attended an interview with the delegate. The delegate refused to grant the visa on 12 January 2016.
On 22 January 2016 the applicant applied for review of the delegate’s decision.
On 22 June 2017 the applicant attended a Tribunal hearing (differently constituted).
On 6 February 2018 the Tribunal decided to affirm the delegate’s decision. The applicant appealed the Tribunal’s decision to the Federal Circuit and Family Court of Australia. On [date] March 2023 [Judge 1] order as follows:
·A…

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 2304810 (Refugee)

Details

AGLC: 2304810 (Refugee) [2024] AATA 1417
Case: [2024] AATA 1417
Decision Date: 17 January 2024

CaseChat Overview and Summary

The applicant, a citizen of Pakistan, sought review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse his application for a protection visa. The applicant claimed he would face a real chance of suffering significant harm if returned to Pakistan due to his political opinion, religious beliefs, race, and membership of a particular social group.

The Federal Circuit Court was required to determine whether the applicant had established a well-founded fear of persecution for a Convention reason, specifically political opinion, religion (Sunni Islam), race (Pashtun), or membership of a particular social group. The court also had to consider whether the applicant would be unable to access effective protection in Pakistan, particularly in light of his history of mental illness and the heightened risk this presented.

The court found that the applicant, as a long-term member and proponent of the Awami National Party (ANP) and a Pashtun residing in Swat, had established a well-founded fear of persecution based on his political opinion and race. Furthermore, the court accepted that the applicant's mental health condition, coupled with his return from a Western country, would make him vulnerable and unable to access effective protection in Pakistan. The court concluded that there was a real chance of serious harm to the applicant anywhere in Pakistan.

The court set aside the original decision and remitted the matter to the Minister for reconsideration according to law.

Orders