1313636 (Refugee)

[2015] AATA 3923

1313636 (Refugee) [2015] AATA 3923 (14 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1313636

COUNTRY OF REFERENCE:                  Afghanistan

MEMBER:Giles Short

DATE:14 December 2015

PLACE OF DECISION:  Sydney

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

Statement made on 14 December 2015 at 9:25am

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

INTRODUCTION

1. [The applicant] is a citizen of Afghanistan.  He belongs to the Pashtun ethnic group and he was born in Kunduz.  He has said that he was living in Kabul when [in] January 2010 he married an Australian citizen of Afghan background.  He came to Australia on a Subclass 309 (Partner (Provisional)) visa [in] December 2011 but he has said that he lived with his wife in Australia for less than a month before moving to Sydney in December 2011 where he stayed with his [sister].  He has said that his wife’s family are involved with the Taliban and that his life will be in danger if he returns to Afghanistan as a result of the ending of their relationship.

2. [The applicant’s] application for a protection visa was refused by a delegate of the Minister for Immigration and he has applied to this Tribunal for review of that decision.  A summary of the relevant law is set out at Attachment A.  I have taken the policy guidelines prepared by the Department of Immigration and the country information assessments prepared by the Department of Foreign Affairs and Trade into account to the extent that they are relevant.[1]  The issues in this review are whether [the applicant] has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention in Afghanistan and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Afghanistan, there is a real risk that he will suffer significant harm.

   [1] On 18 September 2015 the Australian Department of Foreign Affairs and Trade published a new Country Report in relation to Afghanistan and a new Thematic Report in relation to conditions in Kabul.  Because the Tribunal is required to take account of such assessments prepared expressly for protection status determination purposes the Tribunal sent [the applicant] copies of these reports and invited him to comment on them.  No comments were received.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Does [the applicant] have a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention in Afghanistan?

   [The applicant’s] claims

3. [The applicant] is aged [age].  He has said that in [1989], when he would have been aged [age] years old according to the date of birth in his passport, he and his family moved to Pakistan.  In his application for a protection visa he said that he had lived in Abbottabad in Pakistan from [1989] until August 2009[2] but at the hearing before me he said that this was not correct and that he and his family had lived in Islamabad until 2004 or 2005.  He said that he was not very good at remembering dates or timing.  He said that he had completed the equivalent of [grade] at a college in Islamabad.  [The applicant] gave no employment history in Pakistan in his application for a protection visa but at the hearing before me he said that in Abbottabad he had worked selling [items] and also in a [shop].

   [2] See his answer to question 35 on Part C of the application form.

4. [The applicant] said that he had been living with his mother in Abbottabad and that he had moved back to Afghanistan with his mother in August 2009.  He said that when they had moved back there his [brother] [Mr A] had already been there.  He said that his other [brother] [Mr B] had been in [Country 1] at the time.  He has said that after they returned to Afghanistan they lived in a house in Kabul.  [The applicant] has said that his marriage was an arranged marriage.  He said at the hearing before me that he had first met his wife in Kabul in January 2010, about a week before their marriage [in] January 2010.  He said that his wife’s father was a friend of his [uncle] who lives in Kunduz and that he thought that they had studied together.  He said that his uncle had telephoned him and had told him that there was a girl whose father he knew and had asked him if he wanted to marry this girl.  He said that he had responded that he did want to marry her.  He said that his wife’s father had been present at the actual wedding ceremony in Kabul.

5. [The applicant] obtained a tazkera (Afghan identity document) [in] 2010[3] and his passport was issued [in] 2010.  In his application for a protection visa he said that he had visited Pakistan from [August] 2011 to [October] 2011 to obtain police clearance for his partner visa[4] but according to his passport he visited Pakistan from [a date in] October 2010 until [a date in] November 2010.[5]  At the hearing before me [the applicant] initially said that he had only returned to Pakistan once after August 2009, in order to obtain police clearance for his Australian visa, and that he had spent almost ten days in Pakistan.  After I put to him that in his application for a protection visa he had said that he had been in Pakistan for two months he said that he did not remember.  After I put to him that the dates he had given did not accord with what was in his passport he said that it was possible that he had gone to Pakistan more than once, maybe twice.  After I put to him that his passport indicated that he had only made one trip to Pakistan he said that maybe he had made a second trip without a passport.

   [3] See the copy which he produced along with his application for a protection visa at folio 1 of the Department’s file [number].

   [4] See his answer to question 34 on Part C of the application form.

   [5] See the copy of the relevant page of his passport at folio 2 of the Department’s file [number].

6. As referred to above, [the applicant] arrived in Australia [in] December 2011 and he moved to Sydney to stay with his sister in the same month.  By letter dated [December] 2012 the Department notified him of a decision refusing to grant him a Subclass 100 (Partner (Migrant)) visa and [in] January 2013 he applied to the Migration Review Tribunal for review of that decision.  On 18 January 2013 [the applicant] signed all the forms for his application for a protection visa and this application was lodged in [February] 2013.  At the hearing before me [the applicant’s] representative explained that he had sent the application to the Department of Immigration [in] January 2013 but there had been some complication with one of the forms and it had been sent back to his office.  He said that it had then been sent back and the acknowledgement had been in February.

7. In a statutory declaration made [in] January 2013 accompanying his application for a protection visa [the applicant] said that he and his wife had separated due to differences in their beliefs and views about their way of life and politics in Afghanistan.  He said that he was a moderate Afghan Muslim and he was against radical Islam whereas his wife’s family was strongly connected with the Taliban although he said that he had not been aware of this before their marriage.  He said that about six months previously (so in around July 2012) he had told them of his final decision regarding the marriage and that he was going back to Afghanistan.  He said that they had threatened to kill him if he ended the marriage.  He said that in their view ending his marriage to his wife would destroy the dignity and honour of her family and tribe.

8. [The applicant] said that he had become scared because he had thought that if he returned to Afghanistan his wife’s family members in Afghanistan who were in the Taliban would find him and kill him.  He said that at the beginning of October (2012) his wife’s family members had gone to his family’s home in Kabul in the middle of the night and had asked where he was.  He said that they had been armed and had introduced themselves as members of the Taliban.  He said that his mother had answered the door and had told them that he was not there.  He said that they had told his mother that they wanted to speak to him and that they would come back if he did not contact them.  He said that the next morning his mother and his [brothers] had gone to the police station and to the state security agency to report the matter to seek protection.  He said that they had been told by the police and security agencies that they would investigate the matter.

9. [The applicant] said that his mother had kept his brothers away from the house in case the Taliban came back.  He said that when the Taliban had come back, once again in the middle of the night, she had therefore been alone in the house and they had abused her verbally and physically.  He said that they had told his mother that if he did not surrender to the Taliban in Logar Province the Taliban would come and get him and his brothers and would kill them.  He said that they had also told his mother that they were watching his family.  He said that on the following day his mother had gone to the house of their relatives in Kabul where his brothers had been staying.  He said that once again his mother and his brothers had reported what had happened to the police and the security forces.  He said that on this occasion the police and the security forces had told his mother and brothers that they should take their own measures for their protection and security.  He said that therefore on [a date in] October 2012 his mother and brothers had left Afghanistan through the airport in Kabul and had gone to [a city] in [Country 2].

10. [The applicant] said that as a result of this incident he was afraid to return to Afghanistan because he strongly believed that he would be tortured and killed by the Taliban, militias, and even government agencies which he said were deeply connected with the Taliban.  He said that he believed that his wife’s family would find him and kill him for revenge.

11. [The applicant] was interviewed by the primary decision-maker in relation to his application for a protection visa [in] July 2013.  He confirmed that he claimed that he had not known that his wife’s family were involved with the Taliban before the marriage.  He said that although he had described his uncle as a friend of his wife’s father his uncle was not in contact with his wife’s father because his uncle was busy.  He added that his uncle was an old man.  Asked why his wife’s family would have allowed their daughter to marry him if what he were saying were true, [the applicant] did not respond.  His representative said that he did not think that [the applicant] could answer for his wife’s family.

12. [The applicant] said that there had been no discussion of his views about Islam prior to the marriage.  The primary decision-maker put to him that it was highly unlikely that this would have happened if his wife’s family had been involved with the Taliban as he had said.  [The applicant] said that he had only lived with his wife for one week after his arrival in Australia before they had separated.  He said that they had always been talking about the Taliban.  He said that when he had told them that he did not agree with their views they had told him that if he ended the marriage he would be tortured and killed.  He said that he had not reported these threats to the police in Australia because he had been waiting to resolve his differences.  He said that he had never reported these threats to the police.

13. [The applicant’s] representative submitted that the marriage was an arranged marriage.  He submitted that [the applicant’s] wife’s family were well-known to the Australian security agencies and the Afghan community to be involved in the Taliban.  He submitted that [two Australian agencies] had interviewed [the applicant’s] wife’s father and had confiscated electronic devices because there had been a link with the Taliban.  He submitted, however, that this had not been known to [the applicant’s] family.  He submitted that [the applicant] came from a very famous and high profile family in Afghanistan.  He submitted that they were traditional Muslims but this did not mean that they were radicals.  He submitted that they were modern Afghans, not Westernised people.  He submitted that the marriage had not been a bogus marriage and that because [the applicant] came from a very high profile family he could have got a visa to go anywhere he wanted.

    Discussion of [the applicant’s] claims

14. At the hearing before me [the applicant] said that he had filled in the application form for a protection visa himself.  I noted that the form said that he had been assisted by his representative.  His representative said that he had given [the applicant] the blank forms and that [the applicant] had filled them in and had brought them to the office where he had consulted one of his representative’s staff in relation to the forms.  His representative said that the claims were [the applicant’s] own claims.  I asked [the applicant] if all the answers in the application were correct and complete.  He said that they were.  He said that the statutory declaration accompanying his application accurately reflected his claims for refugee status.

15. [The applicant] said that at the time of the hearing before me on 21 August 2015 his mother and his brother [Mr A] were living in Kabul while his brother [Mr B] was living in [Country 3].  He said that he was in contact with his mother in Kabul through Viber and Facebook and that he had some contact with his brother [Mr B] in [Country 3] through Facebook.  He said that he was not in contact with his other brother [Mr A] although he said that [Mr A] was living with their mother in Kabul.  He said that he got news of his brother [Mr A] through his mother.  He said that his brother [Mr A] was doing the same job which he had been doing in the past, working in some office with foreigners.  He said that he did not know the name of the office or what his brother was doing but maybe he was helping them [with specific skills].  He said that his brother had completed a qualification in relation to [those skills] in Pakistan.

16. [The applicant] confirmed that he had got married [in] January 2010 and that he had then obtained his passport [in] 2010 with the intention of coming to Australia.  He said, however, that he had not known that an application had been being made for him to come to Australia.  I asked him why he had obtained his passport if he had not known about the application.  [The applicant] said that his purpose had been to take the passport in order to come to Australia.  I put to him that this suggested that he had known that an application had been being made for him to come to Australia.  [The applicant] then said that he had known about the application because he had wanted to live together with his wife in Australia.

17. I referred to [the applicant’s] evidence in his statutory declaration made [in] January 2013 that about six months before that (so in around July 2012) he had informed his wife and her family of his final decision regarding the marriage.  [The applicant] said that he had informed them by telephone that enough was enough and that he was fed up with the way they were treating him.  He said that he had told them that he was feeling threatened and that his life was in danger if he went back.  I asked him what he meant and he said that his wife’s family had already warned him that his life would be in danger if he went back.  He said that they had told him that his life was in danger in Australia too.  I asked him if anything had happened to make him believe that his life was in danger in Australia.  [The applicant] said that he had been receiving threatening telephone calls on his mobile phone.

18. I asked [the applicant] what he had done about this and he said that he had changed his address from [one suburb] to [another].  After I put to him that this would not have assisted him if he had been receiving these threatening telephone calls on his mobile phone he said that he had also changed his mobile phone.  He said that he had not received any threatening calls after he had changed his mobile phone.  He said that he had not reported the threats which he had been receiving to anyone because he had not had any network here or anyone to support him.  He said that he had thought that first of all he should discuss this issue with his family and maybe later on he would report it.  I put to him that he had had his sister in Australia.  [The applicant] said that he had thought of sharing this issue with his sister but he had not because [details of sister’s issues deleted].  He said that he had not wanted to create another headache for her.

19. I referred to [the applicant’s] evidence in his statutory declaration made [in] January 2013 that he had told his wife’s family in this telephone call in around July 2012 that he was going to go back to Afghanistan.  [The applicant] said that he had told them that maybe he was going to go back to Afghanistan because he had wanted to know what they were going to do with him here.  I asked him why he had not gone back to Afghanistan.  [The applicant] said that he had come to know that his wife’s family was really not a good family, that they were a bit scary and that they had got some relation with the Taliban.  He said that if someone left their daughters they would have a problem in Afghanistan: maybe they would get beaten by them.  He said that his life would have been in danger there.

20. I put to [the applicant] that he had left their daughter shortly after arriving in Australia and nothing had happened to him even though they had known where he had been living.  [The applicant] said that his wife’s father could not do anything to him in Australia.  I put to him that according to his evidence these people had been making threats to him on his mobile phone in Australia.  [The applicant] said that it had been his wife’s [relative]’s family in [another city in Australia] who had threatened him on his mobile phone.  He said that he knew this because his wife’s father had told him that if he was not a good person his [relative] would ‘fix’ him.  He said that his wife’s father had threatened him saying that his [relative] was a very dangerous man and that he would face some problems from him.  I asked him if he had reported this threat to the police and he said that he had not.  He said that he had not been aware of where he had been going to be so at this stage he had not gone to the police.

21. I referred to [the applicant’s] evidence that at the beginning of October 2012 his wife’s family members in Kabul had gone to his house in Kabul and had made inquiries about where he was and I asked him how he had heard about this.  [The applicant] said that when he had told them that he was going to go to Afghanistan they had thought that he had been serious and that he had already been there.  He said that because of this they had sent someone to inquire about him.  He said that he come to know about this through his mother.  He said that his mother had talked to him using her neighbour’s mobile phone.  He said that he was not aware if his mother had her own phone.  He said that at this time his mother had gone to the neighbour’s home and she had used the neighbour’s phone to talk with him.  He said that neither of his brothers had been at home at the time.

22. I put to [the applicant] that this was not what his statutory declaration suggested.  [The applicant] said that actually his mother had opened the door and the people who had come to make the inquiry had not known whether his brothers had been at home or not.  He said that actually his mother had been hiding his brothers there.  He said that they had been at home.  I put to him that he had just told me that they had not been at home.  [The applicant] said that he had not understood the question properly.  He confirmed that he claimed that both of them had been at home and that [Mr B] had come back from [Country 1] by this time.

1. I asked [the applicant] what his mother had actually told him when she had called him using her neighbour’s mobile phone.  He said that his mother had told him that his wife’s father’s family had come and had knocked on the door and had asked where he was.  He said that they had mentioned that they knew he was there and that if they caught him they would do this and that to him.  I asked him why he had not said in his statutory declaration that they had told his mother that they would do this and that to him.  I put to him that he had said that they had asked where he was and that his mother had told them that he was not there.  He had said that they had told his mother that they wanted to speak to him and that they would come back if he did not contact them.  I put to him that he had not mentioned any threats or that they had told his mother that they would do this and that to him.  [The applicant] referred to the fact that they had come a second time.  I noted that we had been talking about the first time they had come which was the time when he had said that his brothers had both been there.  I referred to the fact that he had said that his mother had been shocked and scared and I asked him why his mother had been shocked and scared.  [The applicant] said that his mother had been shocked because these people had come and had inquired about him.  He said that she had been scared about why they had been looking for him and asking about him.

2. I referred to [the applicant’s] evidence that the next morning his mother and his two brothers had gone to a nearby police station and had filed a report and that they had also gone to the state security agency to report.  I asked him what they had actually reported.  [The applicant] said that they had just made a simple report that there had been some people coming to their home and disturbing their lives.  I put to him that according to what he had said in his statutory declaration all these people had done had been to ask where he was.  [The applicant] said that his mother had seen that these people had ‘very dangerous faces’ and this had made his mother scared.  I put to him that it was a little difficult to accept that one could go to the police in Afghanistan and report that some people with ‘very dangerous faces’ had come to one’s house.  [The applicant] repeated that his mother had been concerned because these people with scary faces had been inquiring about him.

3. I referred to [the applicant’s] evidence that the Taliban had come to his family’s house in Kabul on a second occasion.  [The applicant] said that this had been very soon after the first occasion, maybe the day after or a few days after.  He said that his mother had been very worried and had called his sister and through his sister he had come to know about this second occasion.  He said that he did not know which telephone his mother had used but maybe she had used the telephone at their home.  He confirmed that his mother had a telephone at their home but he said that maybe they had used one of his brothers’ phones.  I put to him that he had told me earlier that he did not even know if his mother had a phone.  [The applicant] said that his mother was a bit weak and she had a problem with technology so because of this he did not know.

4. I asked [the applicant] what his mother had actually told his sister about this second occasion.  He said that she had told his sister that some people had come and entered their house and that they had been looking for him and asking about him.  She had said that they had been very angry people and they had used abusive language.  She had said that when they had not seen him there they had used their phone and had talked with someone else and had told this person that he was not there.  She had said that these people had abused her a lot.  [The applicant] said that then he had talked with his mother and she had told him the same story.  I put to him that in his statutory declaration he had said that these people had told his mother that if he did not surrender to the Taliban in Logar province the Taliban would come and get him and his brother and whoever they found there and they would kill them.  [The applicant] said that it was true that they had told his mother this.  He said that his mother had been very shocked and very worried about what was going to happen and she had been very worried about him.  He said that when he had received this news he had been worried about his family, especially about his mother.

5. I referred to [the applicant’s] evidence that his mother and his two brothers had gone to [Country 2] [in] October 2012.  [The applicant] said that because of the security situation and because the government in Afghanistan could not provide protection to people his family had concluded that it was better to leave the country.  I asked him if they had needed visas to go to [Country 2].  [The applicant] said that they had needed visas.  I asked him how long it had taken them to get these visas and he said that he was not sure but he thought that maybe it had not taken so long.  He said that these visas had maybe permitted them to remain in [Country 2] for about one or two months.  I asked him what they had planned to do after that.  [The applicant] said that they had not been sure but they had thought that they would maybe go to Pakistan or back to Afghanistan.  I put to him that he had said that they had left Afghanistan because they had not felt safe there.  [The applicant] said that they had wanted to get out of Afghanistan at least for a while because they had not been safe and later on they could have tried to go to Pakistan.

6. I referred to [the applicant’s] evidence in his statutory declaration that what had happened in Kabul in October 2012 had made him afraid to return to Afghanistan.  [The applicant] said that this was correct: his life had been in danger.  I put to him that he had not applied for a protection until [February] 2013.  [The applicant] said that it had taken him some time to organise himself because he had been totally stressed at the time and frustrated.  His representative said that [the applicant] had applied for review of the decision refusing his application for a [temporary] visa because otherwise he would have become illegal.  I noted that [the applicant] could have applied for a protection visa at any time and I referred again to the fact that he had said that he had feared returning to Afghanistan at least from October 2012 if not before.  [The applicant’s] representative said that this was [the applicant’s] issue.  He said that when [the applicant] had come to his office he had had only one or two days left to apply to the Migration Review Tribunal for review of the decision refusing his application for a [temporary] visa and he had had no chance to apply for protection at the time because he would have become illegal.

7. I asked [the applicant] what he feared would happen to him if he returned to Afghanistan now.  [The applicant] said that his in-laws were going to bury him alive.  I put to him that he had told me that his mother and his brother [Mr A] were both back living in Kabul and I asked him if they were having any problems from his in-laws.  [The applicant] said that they were living in a very isolated area far away from the city and sometimes when they went out they covered themselves, even his brother, so as not to be recognised by these people.

8. I put to [the applicant] that as we had discussed it appeared that quite a few things which he had put in his application were not correct and this did not seem to be because his application had been prepared in any great haste.  I put to him that this was relevant to whether I could believe his evidence about other things.  [The applicant] said that everyone knew - even the government knew - that his in-laws’ family had relations with the Taliban.  He said that if he went back to Afghanistan they would use their influence with the Taliban and they were going to harm him very severely.  He denied that there was anything in his application which was not correct.  He said that his in-laws’ family were very dangerous people.

9. I put to [the applicant] that I knew that this was what he had claimed but he had never produced any evidence about this at all.  [The applicant] said that his in-laws’ family had written a letter seeking the release of members of the Taliban who were in gaol but he said that maybe this evidence was not available to him.  He said that his uncle knew about this letter.  I put to him again that he had not produced any evidence to the Department or the Tribunal about this.  I noted that in his application there was a question about the documents which he was going to produce and he had not identified any documents which he was going to produce.[6]  I put to him that he had not produced any evidence from his uncle.

   [6] See his answer to question 14 on Part B of the application form.

10. I put to [the applicant] that both he and his representative had said that it was well-known to the Australian Government that his wife’s family was involved with the Taliban but apart from his claims to that effect I had no evidence before me about this.  [The applicant] said that he did not know about documents here but there were some documents in Afghanistan.  I asked him why he had not produced them.  I noted that it was over two years since he had made his application.  [The applicant] said that they had not told him that they were going to ask him to produce the evidence.  I put to him that no one was asking him to produce anything: what I was telling him was that there was no evidence before me to establish the truth of the claim which he had made.

11. I put to [the applicant] that it was difficult to accept that, if his wife’s family had the involvement with the Taliban which he claimed, they would have arranged a marriage with him to begin with.  [The applicant] said that they had tried to create some sort of trouble or some issues for his family and especially for him.  I asked him why they would want to create some trouble for him or for his family.  [The applicant] repeated that they had arranged this marriage but they were a very strict family, they were totally religious and they wanted him to be totally at home with them and to attend the mosque and to recite the Holy Quran.  I put to him that this was why I found it difficult to accept that they would have arranged a marriage with him in the first place.  I put to him that if this family had the character which he had said they had - if they were strict Muslims and they were involved with the Taliban - they would have wanted to be sure that his views agreed with their views before agreeing to this arranged marriage.  [The applicant] said that his wife had actually been using him and she had wanted him to obey her and her family.

12. I put to [the applicant] that, as we had discussed, he had said that he and his wife had only lived together for less than a month.  He had claimed that he had been threatened by his wife’s family or in particular by one of his wife’s uncles in Australia but he had not reported these threats to the authorities in Australia.  I put to him that it was also difficult to accept his account of events in Afghanistan.  [The applicant] said that this thing which had happened to him had caused his worries to increase day by day and he did not know why this thing had happened to him.  He said that he was totally frustrated and worried about his future.

13. I put to [the applicant] that he had said that he had told his wife’s family in around July 2012 that he was going to go back to Afghanistan but according to his evidence the members of her family had not even come to his home in Kabul until October 2012.  I asked him why they would have waited for months before even going to find out if he was at his home if they had wanted to do him harm as he had claimed.  [The applicant] said that maybe the season had not been right for them to come to his home and they had waited for the summer.  He said that this had been because of the season.  I put to [the applicant] that, as he would know, Afghanistan was in the Northern Hemisphere so July in Afghanistan was in the summer.  [The applicant] said that winter or summer they had wanted him.  He said that maybe they had been going to investigate whether he had arrived in Afghanistan or not.

14. I put to [the applicant] that if I believed his evidence they had waited for months after he had informed them that he was going to go back to Afghanistan before even making this simple inquiry.  [The applicant] said that it had not been easy for them to come because first of all they had had to find out his address.  He then conceded that they had known his address but he said that they had wanted to know whether he was living in Afghanistan or not.  I put to him that this was the inquiry which they had only made in October according to him.  I put to him that instead of making a simple inquiry - turning up during the day or even making a telephone call - they had turned up in the middle of the night and they had introduced themselves as being from the Taliban.  [The applicant] denied that they had mentioned on the first occasion that they were from the Taliban.

15. I put to [the applicant] that in his statutory declaration made [in] January 2013 he had said that the members of his wife’s family who had come to his family’s home in Kabul at the beginning of October 2012 had introduced themselves as members of the Taliban (see paragraph 11 of his statutory declaration).  [the applicant] then said that it was quite possible that they had even mentioned on the first occasion that they were from the Taliban.  I put to him that my point was that if all they had wanted to do had been to find out whether he was at his home in Kabul they could just have made this simple inquiry: they had not needed to come in the middle of the night and to introduce themselves as being from the Taliban.  [The applicant] said that their usual way of approach was just like this: they did not come during the day, they just came at night.  I asked [the applicant] what the basis of this claim was.  Her said that he had heard this kind of story from his father-in-law.

16. I put to [the applicant] that what I was saying was that it was very difficult to accept that there was any truth to his claims.  I put to him that I might not accept that he had been threatened by his wife’s family, either in Australia or in Afghanistan.  I put to him that I might not accept that his wife’s family was connected with the Taliban as he had claimed.  I put to him that I might conclude on the basis of the evidence before me that he had entered into a sham marriage with the aim of coming to Australia.  [The applicant] said that this was not true because the marriage had been arranged by them, not by him.  He said that he had not approached them and that it had not been his aim to come to Australia at all.  I put to him that he had agreed earlier in the hearing that it had been his intention to come to Australia.  I put to him that, as we had discussed, immediately after he had got married he had set about getting a passport so he could come to Australia.  [The applicant] said that his wife had told him that she wanted him to come to Australia.  He said that his wife had insisted that he obtain his passport.  He said that her whole family had been forcing him to get his passport.

    Conclusions

17. As I put to [the applicant], I have difficulty in accepting that there is any truth to his claims.  As I put to him, it appears that quite a few things which he put in his application for a protection visa were incorrect.  As I put to him in the course of the hearing before me, he said in that application that he had lived in Abbottabad in Pakistan from [1989] until August 2009 but at the hearing before me he said that this was not correct and that he and his family had lived in Islamabad until 2004 or 2005.  He said that he was not very good at remembering dates or timing but he clearly remembered that he had undertaken his education in Islamabad.  He gave no employment history in Pakistan in his application for a protection visa but at the hearing before me he said that in Abbottabad he had worked selling [items] and also in a [shop].

18. In his application for a protection visa [the applicant] said that he had visited Pakistan from [August] 2011 to [October] 2011 to obtain police clearance for his [temporary] visa but according to his passport he visited Pakistan from [a date in] October 2010 until [a date in] November 2010.  At the hearing before me [the applicant] initially said that he had only returned to Pakistan once after August 2009, in order to obtain police clearance for his Australian visa, and that he had spent almost ten days in Pakistan.  After I put to him that in his application for a protection visa he had said that he had been in Pakistan for two months he said that he did not remember.  After I put to him that the dates he had given did not accord with what was in his passport he said that it was possible that he had gone to Pakistan more than once, maybe twice.  After I put to him that his passport indicated that he had only made one trip to Pakistan he said that maybe he had made a second trip without a passport.

19. As I put to [the applicant], it does not appear on the evidence before me that these incorrect answers were included in his application because it was prepared in any great haste.  He had the assistance of his representative in preparing his application and it appears that he simply did not devote sufficient care and attention to ensuring that the answers were correct.  As I put to him, while these incorrect answers are not directly relevant to his claims, I consider that they are relevant to whether I can believe his evidence about other things.

20. As I put to [the applicant], although he has said that his wife’s family are involved with the Taliban he has not produced any independent evidence in support of this claim.  His representative submitted at the Departmental interview that [the applicant’s] wife’s family were well-known to the Australian security agencies and the Afghan community to be involved in the Taliban.  He submitted that [two Australian agencies] had interviewed [the applicant’s] wife’s father and had confiscated electronic devices because there had been a link with the Taliban.  [The applicant] himself said at the hearing before me that everyone knew - even the government knew - that his wife’s family had relations with the Taliban.  He said that they had written a letter seeking the release of members of the Taliban who were in gaol and that his uncle knew about this letter but he said that maybe this evidence was not available to him.

21. As I put to [the applicant], I was not asking him to produce any evidence: I was merely putting him on notice that there was no independent evidence before me to establish the truth of the claims which he had made regarding the involvement of his wife’s family with the Taliban.  Since it does not appear on the basis of the evidence before me that [the applicant] can be speaking from personal knowledge regarding any contact between his wife’s family and the Australian security agencies, it follows that this information must have come from other sources and that [the applicant] should be able to identify the basis for these claims rather than merely asserting that these matters are well-known within the Afghan community.

22. Furthermore, as I likewise put to [the applicant], it is difficult to accept that, if his wife’s family had the involvement with the Taliban which he claims, they would have arranged a marriage with him to begin with.  [The applicant] repeated that they had arranged this marriage but they were a very strict family, they were totally religious and they wanted him to be totally at home with them and to attend the mosque and to recite the Holy Quran.  However, as I put to him, this is why I find it difficult to accept that they would have arranged a marriage with him in the first place.  As I put to him, if this family had the character which he has said - if they were strict Muslims and they were involved with the Taliban - they would have wanted to be sure that his views agreed with their views before agreeing to this arranged marriage.  [The applicant] said that his wife had actually been using him and she had wanted him to obey her and her family.  However, as I put to [the applicant], despite his protestations to the contrary, it appears from the objective facts that he was using his wife in order to obtain a visa to come to Australia.

1. As I put to [the applicant], he has said that he and his wife only lived together for less than a month before he moved to stay with his sister in Sydney.  He has claimed that he was threatened by his wife’s family or in particular by one of his wife’s uncles in Australia but he has said that he did not report these threats to the authorities in Australia.  He has said that he told his wife’s family in around July 2012 that he was going to go back to Afghanistan but he has said that the members of his wife’s family did not even come to his home in Kabul to find out if he was there until October 2012.  When I raised this issue with [the applicant] he said that maybe the season had not been right for them to come to his home and they had waited for the summer.  However, as I put to him, given that Afghanistan is in the Northern Hemisphere, July in Afghanistan is in the summer.  [The applicant] said that winter or summer they had wanted him but I consider that if, as he claims, they had wanted him, they would have come earlier than October.

2. Moreover, as I likewise put to him, I find it difficult to accept that, as he has claimed, when the members of his wife’s family did come to his home in Kabul to ask if he was there, they would have come in the middle of the night and identified themselves as members of the Taliban.  After I raised this issue with [the applicant] he initially denied that they had mentioned on the first occasion that they were from the Taliban but, after I put to him that this was what he had said in paragraph 11 of his statutory declaration, he said that it was quite possible that they had mentioned on the first occasion that they were from the Taliban.  At the hearing before me [the applicant] also claimed that on this first occasion they had said that that if they caught him they would do this and that to him.  As I put to him, he did not mention this in his statutory declaration made [in] January 2013: indeed he did not mention that these people had made any threats at all.  As I put to him, it is difficult to accept that if all these people had done had been to ask if he was there, his mother and his brothers would have been able to report this visit to the police and the state security agency the next day and that they would have been told that the matter would be investigated as he claimed in his statutory declaration.

3. In his statutory declaration [the applicant] said that his mother and brothers had left Afghanistan [in] October 2012 for their protection and security and that they had gone to [Country 2] but at the hearing before me he said that their visas had only permitted them to remain in [Country 2] for one or two months and that they had thought that after this they would maybe go to Pakistan or back to Afghanistan.  He said that both his mother and his [brother] [Mr A] were living in Kabul at the time of the hearing before me and although he said subsequently in the hearing that they were living in a very isolated area far away from the city and that when they went out they took steps to ensure that they would not be recognised by his wife’s family, he said that his brother [Mr A] was doing the same job as he had been doing in the past, working in some office with foreigners.  I consider that this suggests that his mother and his brother [Mr A] are not having any problems with his wife’s family.

4. Having regard to the problems which I have identified with [the applicant’s] evidence, I do not accept that there is any truth to his claims.  I do not accept that he has been threatened by his wife’s family, either in Australia or in Afghanistan, nor that his wife’s family is connected with the Taliban as he has claimed.  As I put to him, I consider on the basis of the evidence before me that he entered into a sham marriage with the aim of coming to Australia.  As referred to above, [the applicant] denied this and said that it had been his wife’s family who had arranged the marriage but, as I put to him, he had agreed earlier in the hearing that it had been his intention to come to Australia.  As I put to him, immediately after he got married he set about getting a passport so he could come to Australia.  [The applicant] said that his wife had insisted that he obtain his passport and that her family had been forcing him to get his passport but I do not accept that this is true.  His representative submitted at the Departmental interview that because [the applicant] came from a very high profile family he could have got a visa to go anywhere he wanted but on the basis of the evidence before me [the applicant] did not even have a passport until after he got married and he has no history of foreign travel apart from his trips to Pakistan.

5. I conclude on the basis of the evidence before me that [the applicant] entered into a sham marriage with the aim of coming to Australia and I do not accept on the evidence before me that he faces a threat to his life from his wife’s family, the Taliban, militias or even government agencies connected with the Taliban if he returns to Afghanistan now or in the reasonably foreseeable future.  This being the only claim he has made, I do not accept that he has a well-founded fear of being persecuted for one or more of the five Convention reasons if he returns to Afghanistan now or in the reasonably foreseeable future.

   Are there substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to Afghanistan, there is a real risk that he will suffer significant harm?

6. Having regard to my findings of fact above I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to Afghanistan, there is a real risk that he will suffer significant harm from his wife’s family, the Taliban, militias or even government agencies connected with the Taliban. This being the only claim he has made, I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the applicant] being removed from Australia to Afghanistan, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Migration Act 1958.

   CONCLUSIONS

7. For the reasons given above I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations. Therefore he does not satisfy the criterion set out in paragraph 36(2)(a) or (aa) of the Migration Act for a protection visa. There is no suggestion that he satisfies subsection 36(2) on the basis of being a member of the same family unit as a person who satisfies paragraph 36(2)(a) or (aa) and who holds a protection visa. Accordingly, [the applicant] does not satisfy the criterion in subsection 36(2) for a protection visa.

   DECISION

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

   Giles Short
   Senior Member

   
   

   ATTACHMENT A - RELEVANT LAW

9. In accordance with section 65 of the Migration Act 1958, the Minister may only grant a visa if the Minister is satisfied that the criteria prescribed for that visa by the Act and the Migration Regulations 1994 have been satisfied. The criteria for the grant of a Protection (Class XA) visa are set out in section 36 of the Act and Part 866 of Schedule 2 to the Regulations. As applicable to this application subsection 36(2) of the Act provided that:

   ‘(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 under the Refugees Convention as amended by the Refugees Protocol; 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.’

   Refugee criterion

10. Subsection 5(1) of the Act defines the ‘Refugees Convention’ for the purposes of the Act as ‘the Convention relating to the Status of Refugees done at Geneva on 28 July 1951’ and the ‘Refugees Protocol’ as ‘the Protocol relating to the Status of Refugees done at New York on 31 January 1967’.  Australia is a party to the Convention and the Protocol and therefore generally speaking has protection obligations to persons defined as refugees for the purposes of those international instruments.  Article 1A(2) of the Convention as amended by the Protocol relevantly defines a ‘refugee’ as a person who:

    ‘owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.’

11. The time at which this definition must be satisfied is the date of the decision on the application: Minister for Immigration and Ethnic Affairs v Singh (1997) 72 FCR 288.

12. The definition contains four key elements.  First, the applicant must be outside his or her country of nationality.  Secondly, the applicant must fear ‘persecution’.  As applicable to this application subsection 91R(1) of the Act stated that, in order to come within the definition in Article 1A(2), the persecution which a person feared must involve ‘serious harm’ to the person and ‘systematic and discriminatory conduct’.  Subsection 91R(2) stated that ‘serious harm’ included a reference to any of the following:

    (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.

13. In requiring that ‘persecution’ must involve ‘systematic and discriminatory conduct’ subsection 91R(1) reflected observations made by the Australian courts to the effect that the notion of persecution involves selective harassment of a person as an individual or as a member of a group subjected to such harassment (Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 per Mason CJ at 388, McHugh J at 429). Justice McHugh went on to observe in Chan, at 430, that it was not a necessary element of the concept of ‘persecution’ that an individual be the victim of a series of acts:

    ‘A single act of oppression may suffice.  As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, he or she is “being persecuted” for the purposes of the Convention.’

14. ‘Systematic conduct’ is used in this context not in the sense of methodical or organised conduct but rather in the sense of conduct that is not random but deliberate, premeditated or intentional, such that it can be described as selective harassment which discriminates against the person concerned for a Convention reason: see Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 at [89] - [100] per McHugh J (dissenting on other grounds). The Australian courts have also observed that, in order to constitute ‘persecution’ for the purposes of the Convention, the threat of harm to a person:

    ‘need not be the product of any policy of the government of the person’s country of nationality.  It may be enough, depending on the circumstances, that the government has failed or is unable to protect the person in question from persecution’ (per McHugh J in Chan at 430; see also Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 per Brennan CJ at 233, McHugh J at 258)

15. Thirdly, the applicant must fear persecution ‘for reasons of race, religion, nationality, membership of a particular social group or political opinion’.  Subsection 91R(1) of the Act provided that Article 1A(2) did not apply in relation to persecution for one or more of the reasons mentioned in that Article unless ‘that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution’.  It should be remembered, however, that, as the Australian courts have observed, persons may be persecuted for attributes they are perceived to have or opinions or beliefs they are perceived to hold, irrespective of whether they actually possess those attributes or hold those opinions or beliefs: see Chan per Mason CJ at 390, Gaudron J at 416, McHugh J at 433; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 570-571 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.

16. Fourthly, the applicant must have a ‘well-founded’ fear of persecution for one of the Convention reasons.  Dawson J said in Chan at 396 that this element contains both a subjective and an objective requirement:

    ‘There must be a state of mind - fear of being persecuted - and a basis - well-founded - for that fear.  Whilst there must be fear of being persecuted, it must not all be in the mind; there must be a sufficient foundation for that fear.’

17. A fear will be ‘well-founded’ if there is a ‘real chance’ that the person will be persecuted for one of the Convention reasons if he or she returns to his or her country of nationality: Chan per Mason CJ at 389, Dawson J at 398, Toohey J at 407, McHugh J at 429.  A fear will be ‘well-founded’ in this sense even though the possibility of the persecution occurring is well below 50 per cent but:

    ‘no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution.  A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.’ (see Guo, referred to above, at 572 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ)

    Complementary protection criterion

18. An applicant for a protection visa who does not meet the refugee criterion in paragraph 36(2)(a) of the Act may nevertheless meet the complementary protection criterion in paragraph 36(2)(aa) of the Act, set out as relevant to this application above.  The Full Court of the Federal Court has held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the context of the Refugees Convention as referred to above (see Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 at [246] per Lander and Gordon JJ with whom Besanko and Jagot JJ (at [297]) and Flick J (at [342]) agreed). ‘Significant harm’ for the purposes of the complementary protection criterion is exhaustively defined in subsection 36(2A) of the Act: see subsection 5(1) of the Act. A person will suffer ‘significant harm’ if they will be arbitrarily deprived of their life, if the death penalty will be carried out on them or if they will be subjected to ‘torture’ or to ‘cruel or inhuman treatment or punishment’ or to ‘degrading treatment or punishment’. The expressions ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are further defined in subsection 5(1) of the Act.

    Ministerial direction

19. In accordance with Ministerial Direction No. 56, made under section 499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration and Citizenship - ‘PAM3: Refugee and humanitarian - Complementary Protection Guidelines’ and ‘PAM3: Refugee and humanitarian - Refugee Law Guidelines’ - and any country information assessment 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.

    Credibility

20. As Beaumont J observed in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451, ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for’. However this should not lead to ‘an uncritical acceptance of any and all allegations made by suppliants’. As the Full Court of the Federal Court (von Doussa, Moore and Sackville JJ) observed in Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997):

    ‘Where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved.  The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another’ (citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-282)

21. As the Full Court noted in that case, this statement of principle is subject to the qualification explained by the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ where they observed that:

    ‘in determining whether there is a real chance that an event will occur, or will occur for a particular reason, the degree of probability that similar events have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future.’

    If, however, the Tribunal has ‘no real doubt’ that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong: Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 per Sackville J (with whom North J agreed) at 241. Furthermore, as the Full Court of the Federal Court (O’Connor, Branson and Marshall JJ) observed in Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9, there is no rule that a decision-maker concerned to evaluate the testimony of a person who claims to be a refugee in Australia may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies. Nor is there a rule that a decision-maker must hold a ‘positive state of disbelief’ before making an adverse credibility assessment in a refugee case.