1412479 (Refugee)

[2016] AATA 4414

1412479 (Refugee) [2016] AATA 4414 (22 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1412479

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Sydelle Muling

DATE:22 August 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 22 August 2016 at 11:35am

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claim to be citizens of Pakistan, first lodged a protection visa application [in] August 2010 which was refused [in] November 2010 (the first delegate’s decision). The applicant sought review by the Tribunal, differently constituted (the first Tribunal) and the first delegate’s decision was affirmed on 23 March 2012. The applicant sought judicial review at the then Federal Magistrate’s Court and the judicial review was finalised in favour of the Minister.

3. The applicant lodged an application for a further protection visa on the basis of complementary protection [in] May 2013. The second delegate (the delegate) refused to grant the visa [in] June 2014.

4. The applicant appeared before the Tribunal on 29 April 2016 and 26 July 2016 to give evidence and present arguments.

   RELEVANT LAW

5. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the applicant 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.

   The effect of SZGIZ and its relevance to this review

6. Section 48A imposes a bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen has made an application for a protection visa which has been refused. In SZGIZ v MIAC [2013] FCAFC 71, 3 July 2013 (`SZGIZ’), the Full Federal Court confined the effect of s.48A to the making of a further application which duplicated the same essential criterion for the grant of the visa as in the earlier unsuccessful application. For example, the Court found that s.48A did not prevent a non-citizen who had made a valid application on the basis of the refugee criterion in s.36(2)(a) from making a further application on the basis of the complementary protection criterion in s.36(2)(aa) whilst he or she remained in the migration zone. According to SZGIZ, a person who had previously applied for and been refused a protection visa only on the basis of one of the criterion in s.36(2) appeared eligible to lodge a further valid application on the basis of one of the other criterion. However, the Court’s reasons suggest that such a person could only have their later claims assessed against those criteria upon which they had not previously made an application. The central concern for the purpose of establishing the s.48A bar, and the extent of the Tribunal’s powers on review, appears to be the criterion against which the applicant has previously been assessed. 

7. The Federal Circuit Court in SZVCH v MIBP & Anor [2015] FCCA 2950 (SZVCH) held that the effect of s.48A is that it prevents an applicant relying on criterion that has been the subject of a previous unsuccessful application. However, the Court went on to find that the Minister and the Tribunal are not, however, prevented from considering the refugee criterion where a valid visa application has been made on the basis of the complementary protection criterion.

8. The judgment in SZVCH was considered and not followed in SZQTJ v MIBP [2015] FCCA 3226. In SZQTJ , the Court concluded that the approach in SZVCH is inconsistent with the words of s.48A and the decision in SZGIZ and plainly wrong. The decision confirmed  that the Tribunal is precluded from considering s.36(2)(a) in circumstances where an applicant has already made a protection visa application based on that criterion and made a second application in reliance upon the complementary protection criterion. It also confirms that the approach taken by the delegate does not affect the scope of the Tribunal‘s jurisdiction upon review or its statutory obligations under the Act. 

9. The primary decision record (a copy of which the applicant provided to the Tribunal) indicates that the applicant in this case has previously been refused a protection visa in Australia. The visa application under review is a valid application because the applicant is considered `SZGIZ-affected’ as he has not left Australia since the final determination of his previous protection application, which preceded complementary protection laws. Pursuant to SZGIZ, the applicant has standing to make the application under review to afford hearing of his complementary protection claims. As the applicant has previously had his claims for protection assessed under s.36(2)(a), on the terms of SZGIZ and the more recent judgement in SZQTJ,, the Tribunal must confine its consideration to whether he satisfies the requirements of ss.36(2)(aa), (b) and (c). 

   Complementary protection criterion

10. To meet the complementary protection criterion, an applicant must be a non-citizen in Australia 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 applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

11. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

12. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where 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; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

13. The criteria for a Protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the applicant 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 of such a person and that person holds a Protection visa of the same class.

14. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. In the protection visa application the applicant claimed he left Pakistan to study in Australia. In response to the question, have you experienced harm in that country?, the applicant stated no. He claimed he fears if he returns to Pakistan the Taliban will kill him for a number of reasons – adopting western culture or promoting; changing religion; doing things which is against the religion and refusing their demands for money and to return to Pakistan and join them and fight “or do jihad” against Americans and NATO forces. The applicant claimed that the authorities in Pakistan cannot protect him as they have failed to give security to the well-known people of the country such as Benazir Bhutto and so many other people. To be eligible to get security a person has to be a well-known national figure such as a politician or a famous personality.

16. On the basis of the applicant’s evidence to the Tribunal and his Pakistani passport which was presented at the hearing, the Tribunal finds that the applicant is a citizen of Pakistan. As the Tribunal has found that the applicant is a national of Pakistan, the Tribunal finds that Pakistan is the applicant’s ‘receiving country’ for the purposes of s.36(2)(aa).

    Conversion or change of religion

17. As discussed above, the applicant claimed in his protection visa application that one of the reasons he believes the Taliban will harm him on his return to Pakistan is because he has changed his religion. While the applicant claimed in the hearing that he has converted to Christianity, the Tribunal does not accept that he has done so. The applicant’s evidence was that he has not been baptised a Christian despite being interested in Christianity since 2009. Further, when asked if there was a particular denomination of Christianity that he practises, the applicant stated no. His evidence was that he went to two different churches, one in [Location 1] and the other in front of [Location 2]. Despite claiming to have attended the church at [Location 1] for a year he did not know the name or denomination of this church. Similarly, while frequenting the church opposite [Location 2], the applicant initially claimed that he did not know that name of this church. He subsequently claimed that it was [name] something and that it was a Catholic church. However, as the Tribunal put to the applicant in the hearing, the church opposite [Location 2] is [name] and it is an Anglican church.  The Tribunal finds it implausible that if the applicant attended these churches as he claimed, that he would not be able to recall their names or what Christian denomination they were, even if it has been three and half to four years since he attended any church, he has many things on his mind and he did not talk to anyone when he allegedly attended these churches, as he claimed in the hearing.

18. The Tribunal has also taken into consideration the fact that, according to the delegate’s decision, a copy of which the applicant provided the Tribunal, the applicant never raised his conversion to Christianity in his first protection visa application lodged [in] August 2010. The Tribunal finds it far-fetched that if this is a reason why the applicant fears returning to Pakistan, and also taking into consideration the connection this claim has to the alleged threats the applicant’s family received from the Taliban, that the applicant would not have raised this in his first application for protection. The Tribunal does not accept the applicant’s explanation that he did not want to tell anyone here and was trying to hide from his friends that this is what he had done, adequately explains why he would fail to raise his alleged conversion in his private and confidential protection visa application. Nor does the Tribunal accept that the omission of this claim is the result of the applicant’s previous lawyer not guiding him properly. The Tribunal finds it is the applicant’s responsibility to raise the reasons why he fears returning to Pakistan and given that his subsequent evidence suggests that his alleged conversion is a central claim to his application for protection, the Tribunal does not accept that he would have failed to raise this in his first application if it was true. The Tribunal finds the omission of this claim in the applicant’s first protection visa application confirms the Tribunal’s serious concerns about the credibility of this claim.

19. The Tribunal has taken into consideration the photographs the applicant submitted of himself inside a church. The Tribunal finds the applicant has taken these pictures solely for the purpose of substantiating his claims regarding his change of religion. It therefore places no weight on these pictures as evidence that the applicant has converted or that he practices Christianity. The Tribunal also does not accept on the evidence before it that these photographs were placed on the applicant’s Facebook page as he contended and that the Taliban had seen these photographs, as he claimed. The Tribunal notes that there is nothing to indicate that these photographs had been posted to the applicant’s Facebook page and if so, when. Given the Tribunal’s concerns about the applicant’s credibility generally, it does not accept in these circumstances that these photographs were accessible on the applicant’s Facebook page. Further, the Tribunal finds the applicant’s actions in allegedly posting these photographs on Facebook contradicts his claims, as discussed above, that he was not telling anyone about his alleged conversion or that he was hiding this from his friends. The Tribunal therefore does not accept that the applicant ever posted the three photographs of himself inside a church on his Facebook page.

20. The Tribunal also notes the applicant has provided inconsistent evidence regarding whether he informed his family about his alleged change of religion. In the hearing, the Tribunal specifically asked the applicant if he spoke to his family about this and he stated no. However, as the Tribunal put to the applicant, in accordance with the requirements in s.424AA of the Act, in the interview with the Department he claimed that he rang his father and told him he was not Muslim anymore and that he is Christian. In response the applicant claimed that his mother, father and wife are the three people who knew from the start about his alleged change in religion. He claimed his father knew before anyone else. The Tribunal finds the applicant’s reply does not address the discrepancy in his evidence as identified. While the Tribunal appreciates that this inconsistency may be considered relatively minor, taking into account the significance of conversion from Islam to Christianity and the possible serious ramifications a convert may face in Pakistan for the perceived abandonment of their Muslim faith, the Tribunal finds the applicant’s discrepant evidence as to whether he informed his family of his alleged change in religion or not is important and raises further doubts regarding the credibility of this claim.

21. Based on the above, the Tribunal does not accept that the applicant has converted to Christianity or that he has changed his religion. It does not accept that the applicant ever had an interest in Christianity either because he had studied at a Christian school and had friends who were Christian or because he worked with a guy in Australia who was “pretty religious”. The Tribunal does not accept the applicant has ever practised Christianity, including by attending any churches, where allegedly he would just go and sit, or by praying. The Tribunal does not accept that the applicant spoke to his family about his alleged conversion or that he posted photographs of himself inside a church on his Facebook page. As the Tribunal does not accept that the applicant has converted or changed his religion to Christianity, the Tribunal does not accept that there is real risk of the applicant being significantly harmed as a result of his alleged conversion or as a practising Christian. Nor does the Tribunal accept that the applicant will be perceived to have converted to Christianity because he had studied at a Christian school and had friends who were Christian or because he worked with a guy in Australia who was “pretty religious”. The Tribunal notes that there is nothing in the applicant’s evidence to suggest he had been perceived to be a Christian or Christian convert in Pakistan before coming to Australia because of his attendance at a Christian school or his friendship with Christians. The Tribunal also does not accept that anyone in Pakistan would have any knowledge or awareness of him working with a person in Australia who he describes as being “pretty religious”. The Tribunal therefore does not accept there is real risk of the applicant being significantly harmed as a perceived Christian or Christian convert.

    Claims related to ASIO

22. The applicant raised in the hearing, for the first time in relation to this particular application, that he was contacted by ASIO on several occasions and asked to meet them and was asked questions. The applicant claimed he was contacted by ASIO in 2009 and 2010. They asked him to meet them at two different [locations] in the city. When asked what sort of questions they asked him, the applicant stated that they asked him if he knew this guy and these people. In response to the Tribunal’s question as to who these people were that he was being asked about, the applicant stated Taliban people. He stated that he asked the ASIO officers why they had contacted him and they said he had lived in Peshawar and in the main city and looking at his details he can speak all these language and they thought he was the best person to work on security in Australia. He told the Tribunal that he met with a woman called [name] and   [other] people, who showed him their cards. He stated he got scared and spoke to his father and his father told him not to meet them again but he responded that if he was asked to attend another interview or to help them he could not say no.

23. The Tribunal finds the applicant’s claims regarding his contact with ASIO to be far-fetched. It finds it implausible that ASIO would contact the applicant, a student from Pakistan, in an effort to gather information or intelligence relevant to security issues facing Australia, even if the applicant is from Peshawar and can speak Urdu and Pashtu. It also finds it unlikely that ASIO would ask to meet the applicant at the [location] in order to question him about such matters.

24. Further, the Tribunal finds the applicant has provided discrepant evidence regarding his alleged contact with ASIO. During the hearing the applicant claimed that he was contacted by ASIO in 2009 and after a year they called him again and asked him to meet them. He could not remember when but thought it might have been the end of 2010 or the start of 2011. However, as the Tribunal put to the applicant, in accordance with the requirements in s.424AA of the Act, his evidence to the first Tribunal was that he met ASIO in October or November 2008, which is inconsistent with his evidence to the Tribunal that he was first contacted by them in 2009. While the applicant suggested the Tribunal contact ASIO to ask about him, the Tribunal finds that such an enquiry would be almost impossible given the vagueness of the applicant’s evidence regarding his alleged contact with ASIO. The applicant has not been able to recall with any consistency when he had this contact and the only name he has provided is [name], which he suggested may have been a nickname. The Tribunal also notes the applicant went on to claim, when responding to this information, that he had actually been contacted by ASIO four times between 2008 and 2013; the first time between June 2008 and June 2009 and the second time not long after that. He claimed the third time he told them he was too busy working and the fourth time he advised them that his father did not want him to see them. The Tribunal notes the applicant made not mention earlier in the hearing about any third or fourth occasion that he was contacted by ASIO. 

1. The Tribunal has also taken into consideration the applicant’s failure to raise anything about ASIO prior to the hearing. Given the significance of this claim, in that the applicant asserted in the hearing that he suspected it was his alleged contact with ASIO that may have resulted in the letters his father allegedly received from the Taliban, the Tribunal does not accept that the applicant would not have included this in his application or that he would not have alluded to this during his interview with the delegate. While the applicant claimed that the main reason he did not mention this was to avoid the conversation as he was told during the interview with ASIO not to talk about this with anyone, the Tribunal notes the applicant’s evidence that he discussed his contact with ASIO during the hearing in relation to his first application for protection. The Tribunal has also taken into consideration the applicant’s evidence that he did not mention ASIO in his current application because he tried to answer according to the questions. However, as the Tribunal put to the applicant in the hearing, he had previously made an application for protection and been through the process and would therefore have an appreciation of the importance of providing all relevant information.

2. Based on the above, namely the implausibility of the applicant’s claims regarding his contact with ASIO, the discrepancy in his evidence as to when he met ASIO and how many times they contacted him and his delay in raising this in relation to his current application for protection, the Tribunal does not accept that the applicant was contacted by ASIO and was interviewed by them for information regarding people in Peshawar, including people suspected as being Taliban. The Tribunal finds the applicant’s claims regarding his contact with ASIO are not credible and as such, it does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk he will suffer significant harm for this reason.

   Father’s association with the ANP

3. The applicant claimed in the hearing that his father was associated with the ANP in his province. The Tribunal has serious doubts about the credibility of this claim for a number of reasons. Firstly, the Tribunal found the applicant’s evidence in relation to his father’s alleged association with the ANP to be vague and lacking in detail. Despite claiming that his father had been involved in the party since the 1990’s, a period of some 20 years or more, the applicant was unable to tell the Tribunal anything about his father’s association with the ANP or what he did to support the party. The applicant’s evidence was that his father was leading the group that discussed the issues “and everything”. He claimed his father was something in the party. When asked what his father was in the party, he claimed that he has his father’s card and he was [a senior official] of something and that his father had held this position from the 1990’s. However, when asked what his father was [senior official] of, the applicant stated he could not remember. The only thing he knew was that it had to do with the party structure and helping people especially at the time of the elections. The Tribunal notes following the hearing the applicant submitted his father’s card and this had recorded the applicant’s father’s name and position as “[position]”, as opposed to [senior official].

4. Secondly, the Tribunal notes the applicant only raised his father’s alleged association with the ANP for the first time during the hearing. Previously the applicant claimed the reasons his father was targeted by the Taliban was because he was a respected religious leader and a successful businessman, in addition to being a [occupation] as he pointed out in the hearing. As the Tribunal put to the applicant, the Tribunal would expect that if his father was well-known because of a long association with the ANP, that he would have raised this at an earlier stage in the process. While the applicant responded that the main concern in his application was about him, as discussed above, the applicant had provided information about his father’s background but had failed to mention this significant fact. He also claimed his previous lawyer was too lazy to ask him all these questions and that he was from a country or background where he did not have knowledge of all these things and was too shy and not outgoing when he made his application at the age of [age range] years old. However, the Tribunal notes, as it did in the hearing, that the applicant made his second application in 2013, several years after he first arrived in Australia in 2008, and after having already made a protection visa application which was refused by the Department and the Tribunal and which he also appealed to the Federal Circuit Court. The Tribunal does not accept in these circumstances the applicant was either too young or too shy or had no knowledge to appreciate the relevance of this information to his application or the importance of him raising this prior to the review by the Tribunal of the decision to refuse his second protection visa application. The Tribunal notes when it put this to the applicant in accordance with the requirements in s.424AA of the Act, the applicant stated that it might have been a mistake that he did not mention his father’s association with the ANP and that he never thought at that time that his father might have been targeted because of the ANP. The Tribunal does not accept that if the applicant’s father was involved or associated with the ANP, that he would have delayed in raising this.

5. Thirdly, the Tribunal finds the applicant’s evidence to the Department directly contradicts his evidence to the Tribunal about his father’s alleged political ties to the ANP. As the Tribunal put to the applicant in the hearing, in accordance with the requirements in s.424AA of the Act, in the interview with the delegate he claimed that when his father went to the police they told his father that they could not give him any security with this thing as he and his son are not part of any political party but if his father had  a reference “of anything” from any politician, just ask them to give him a letter and they would do something. Also later in the interview, when asked about why he would not get protection from the authorities in his home country, the applicant stated “to protect someone you need to be related to any politician and we are not attached”.  The applicant claimed that what the police was trying to say was that his father was not an MLA or MPA and in the state laws to get the police or any protection a person has to be an MLA or MPA. The Tribunal does not accept the applicant’s explanation of his earlier evidence of what the police allegedly meant. Rather, the Tribunal finds the inconsistency in the applicant’s evidence regarding his father’s political affiliation confirms the Tribunal doubts about the credibility of this late claim.

6. As a result of the Tribunal’s findings regarding the truthfulness of the applicant’s claims about his father’s alleged association with the ANP, and in light of the independent information put to the applicant in the hearing regarding the prevalence of document fraud in Pakistan, the Tribunal places no weight on the copy of the letter from the ANP and his father’s ANP card which identifies him as [position], which was submitted to the Tribunal.

7. Based on the above, the Tribunal does not accept that the applicant’s father was associated with the ANP in any way.  The Tribunal does not accept that the applicants father was well-known either because of his alleged association with the ANP or because he was a respected religious leader, a successful businessman, his family being his [relatives] and everyone was well-known and respected or because his father led the Jirga, as the applicant claimed in the hearing. The Tribunal therefore does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk he will suffer significant harm because of his father being well-known as a result of his alleged association with the ANP or for any other reason.

   Threats from the Taliban

8. The applicant claimed in the hearing that his family started experiencing problems in 2009. He claimed that he learnt at the end of 2009, so it was “sort of at that time”, that his father had received a letter from the Taliban saying that his father had sent his son to the disbelievers and that his father had set a bad example and that he should call the applicant back. He claimed after this, his father got another letter from the Taliban in 2010, the applicant did not know when, stating that if he returned they would forgive him, if he fights against the arms in Afghanistan. The applicant claimed that after receiving this second letter his family moved from Peshawar to Lahore, however his family received a third letter saying that they could not run or hide anywhere and that he needed to call his son to come back and become a Muslim again. The applicant claimed that this third letter was received at the end of 2010 or the start of 2011. His family then moved to Abbottabad where they stayed for a year and a half or so before returning to Lahore.  When asked if anything happened to his family when they moved to Abbottabad, the applicant stated during that time his family experienced financial problems so his father sent his [family member] to Peshawar to bring some money and his [family member] was kidnapped. This happened at the start of 2012. He claimed that his [family member] went to see a customer of his father’s in Peshawar and when he was on his way back he went missing. His father told him that the last time his [family member] spoke to his father he had said he had got the money and was going to sit back on the bus for the next four hours. When asked how he knew that the Taliban was responsible for his [family member]’s alleged disappearance, the applicant stated that his family received a letter from the Taliban saying that they had his [family member] and asking for a ransom and also asking for the applicant to return to Pakistan. He claimed that his family received this letter a couple of months after his [family member] disappeared. The applicant also claimed, in addition to his [family member] going missing, his father was kidnapped two months after his [family member] was kidnapped, he thought at the start of 2013. He claimed he was not sure but he thought soon after his father went missing, the Taliban sent his family a letter and as far as he knew, nothing has happened to the rest of his family since his father allegedly went missing. He also claimed that his family received a video from the Taliban which mentioned the kidnapping of his [family member] and father.

9. The Tribunal does not accept the applicant’s claims regarding the letters the applicant’s father and family allegedly received from the Taliban or the disappearance of the applicant’s [family member] and his father, for the following reasons.

10. Firstly, the Tribunal finds the applicant’s evidence regarding when these significant events occurred to be vague and inconsistent. In regard to the applicant’s claims about the threatening letters his family allegedly received from the Taliban and the disappearance of his [family member] and father, his evidence in the hearing regarding when these things happened was somewhat different to what he had previously claimed. While the applicant claimed in the hearing that the problems started for his family in 2009 and that it was sort of at the end of 2009 that they received the first letter, the Tribunal notes that the first letter purportedly from the Taliban which the applicant submitted to the Department is dated [in] September 2008. In regard to the second letter his father allegedly received, the applicant’s evidence in the hearing was that it was received in 2010, he did not know when, and the third letter at the end of 2010 or start of 2011. Yet, according to the letters the applicant submitted the second letter was dated [in] March 2010 and the third [in] May 2010. The Tribunal notes when it put this to the applicant, he subsequently claimed that there were about [number] letters that his family received from the Taliban. When asked if he had any of these other letters, the applicant stated that his parents were not providing him with them because they did not want to tell him what was happening to them and it was only after forcing his [family member] that he received the letters that he submitted. In response to the Tribunal’s question as to over what period of time his family received these [number] letters, the applicant stated up 2013. The Tribunal finds the applicant’s claim regarding the receipt of [number] letters to be an exaggeration. It notes that there was nothing in the applicant’s evidence prior to the resumption of the hearing when he raised the alleged receipt of [number] letters in response to the Tribunal’s concern regarding the inconsistency in his evidence as to when his family had allegedly received these letters from the Taliban, to suggest that his family had been delivered so many letters.

11. Similarly, in relation to the disappearance of the applicant’s [family member], the Tribunal notes that in the hearing the applicant provided clear evidence that his [family member] went missing at the start of 2012, after he travelled to Peshawar to collect money from a customer of his father’s and he was on his way home by bus when he went missing. However, as the Tribunal put to the applicant in accordance with the requirements in s.424AA of the Act, in his statutory declaration dated [in] March 2011, submitted to the first Tribunal, he claimed that his [family member] had been missing for the past few months and that he went missing when he left home to visit the applicant’s [relative] but he never made it to his [relative]’s house. He initially claimed during the hearing with the previous Tribunal that his [family member] went missing in February 2011, later stating that it was in January 2011. As the Tribunal put to the applicant, this is inconsistent with his evidence given to the current Tribunal that his [family member] went missing at the start of 2012 and the circumstances in which he went missing. While the applicant responded saying that he never said that his [family member] went to visit his [relative], as the Tribunal noted in the hearing, this was included in the statutory declaration that was made by him and signed. In response, the applicant stated that this was not true and if he said that, it was a lie. The Tribunal finds the applicant’s admission that he had not been truthful in his sworn statutory declaration confirms the concerns it has regarding the applicant’s credibility generally and the reliability of his evidence.

12. Secondly, the Tribunal also finds the applicant’s evidence regarding his father’s alleged disappearance to be discrepant. As discussed above, he claimed that his father was kidnapped at the start of 2013 and he provided very little information regarding the circumstances around his father’s disappearance. However, in the submission from his previous adviser to the first Tribunal dated 14 April 2011 it was stated that his father had disappeared in the past week, presumably kidnapped by the Taliban and it was explained that his father had attended the local police station to formally request an investigation into his [family member]’s disappearance and he did not make it home from the police station. When the Tribunal put this to the applicant, in accordance with the requirements in s.424AA of the Act, the applicant expressed his shock and annoyance in respect of the importance placed on him remembering dates. The applicant explained how difficult it was for him, a person who had experienced bad things and received bad news, to remember dates and his general difficulty remembering dates such as his wife’s birth date. While the Tribunal appreciates that these events occurred some time ago, given the significance of both the applicant’s [family member]’s and father’s disappearance, the Tribunal would expect that there would be some consistency in the applicant’s evidence as to the year in which these alleged incidents took place. The Tribunal does not accept the applicant’s contention that the dates he has provided are wrong by a month or two. Rather, the Tribunal finds that there is a difference in years in respect of when he claimed his [family member] and father allegedly went missing and in these circumstances the Tribunal does not accept such a discrepancy is minor.

13. The Tribunal has also taken into consideration the applicant’s evidence that his having a paper in front of him during his interview with the Department was because of his difficulty in remembering dates including the letters, the incidents and when they went missing and when he applied and reapplied etc.  The Tribunal notes that this appears to be somewhat inconsistent with the applicant’s claims in his written statement which he submitted at the hearing in which he claimed that he did not have any handwritten notes in front of him and that the only paper he had in front of him was a page of his application to the Minister of Immigration and Citizenship which “had all the previous interviews, applied and refusal visa dates with Department of Immigration and Citizenship and with RRT”.  Considering the applicant’s evidence denying that he had the aid of handwritten notes related to his claims, including dates on which events occurred, the Tribunal does not accept the applicant’s evidence regarding his difficulty in remembering dates.

14. Thirdly, the Tribunal also finds it implausible that if the Taliban sent the applicant’s family a letter demanding a ransom be paid for his [family member], that they would not state in the letter how much money they wanted them to pay but instead say that they would let them know and then not do so, as the applicant claimed in the hearing. The Tribunal does not accept that if it was the intention of the Taliban to obtain money from the applicant’s family by kidnapping his [family member], that they would not subsequently make any demands for a particular amount to be paid.

15. Fourthly, the applicant has provided various reasons why his father allegedly received the letters from the Taliban including because his father is well-known. As the Tribunal put to the applicant in the hearing, in accordance with s.424AA of the Act, in his first application he claimed the reason his father was targeted by the Taliban was because his father was a respected religious leader and in the submission made by his adviser to the previous Tribunal reviewing his first application it was submitted that the Taliban sent threats to his father because of his profile as a very successful businessman. In the hearing with the current Tribunal the applicant raised for the first time his father’s association with the ANP. He also claimed in the hearing he was not sure if it was the photographs of him in a church that he allegedly put on Facebook or the alleged interviews he had with ASIO that got him in trouble with the Taliban. When asked why, if his father was well-known, the problems only started in 2009, the applicant stated it was because he started doing the things; putting the photographs on Facebook.  

16. The Tribunal has had regard to the letters purportedly from the Taliban, which the applicant submitted to the Department and Tribunal. As it put to the applicant in the hearing, anyone could have written these and while the letters bear a stamp, the Tribunal notes the independent information it discussed with the applicant in the hearing about the prevalence of document fraud in Pakistan.  Similarly, the Tribunal places no weight on the police reports and the newspaper article submitted by the applicant to the Tribunal. The Tribunal has taken into consideration the information it put to the applicant that false reporting is not uncommon in Pakistan and that even some of the country’s leading daily newspapers publish false or poorly sourced articles relatively frequently.  In light of the independent information, and the Tribunal’s credibility concerns as discussed above, the Tribunal places no weight on these documents.

1. The Tribunal notes the applicant’s evidence regarding the nine years he has been in Australia, without returning to Pakistan, and the fact he has missed important family events such as his siblings marriages and the death of his [relatives]. The applicant contended that the only reason he has not gone back is because of fear. The Tribunal does not consider the applicant’s presence in Australia without returning to Pakistan, even to attend family events, alleviates the numerous concerns the Tribunal has in relation to the credibility of the applicant’s claims or is sufficient to establish the genuineness of his fear.

2. Based on the above, the Tribunal does not accept the applicant’s claims regarding the Taliban’s interest in him and/or his family are credible. It does not accept that the applicant’s father received any letters from the Taliban about the applicant’s presence in Australia or asking him to return to Pakistan. Nor does the Tribunal accept that the applicant’s [family member] or father were kidnapped by the Taliban and that they remain missing or that the Taliban sought a ransom in relation to his family members and also asked the applicant to come back. The Tribunal does not accept that the Taliban were tracing the applicant’s family’s calls or that they continued to send his family letters after his [family member] and father allegedly went missing or that they sent a video claiming responsibility for their disappearance or that the applicant’s family have been moving here and there, between Lahore and Peshawar, as a result.

3. On the basis of the above findings, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk he will suffer significant harm from the Taliban for any reason including his or his family’s refusal to pay their alleged demands for money and/or his failure to return to Pakistan and join them and fight “or do jihad” against Americans and NATO forces.

   Western culture

4. The applicant claimed in his protection visa application that one of the reasons the Taliban will harm him is for adopting and/or promoting western culture and not following the religion. As discussed above, the Tribunal does not accept that the photographs the applicant submitted to the Department, not only of him in church, but also in a nightclub with women and a drink in his hand, was put on the applicant’s Facebook page as he claimed. The Tribunal therefore does not accept that the Taliban have seen these pictures and are aware of his activities in Australia. The Tribunal also does not accept, given its concerns regarding the applicant’s credibility and the credibility of his claims regarding his alleged conversion, that the applicant has abandoned his Muslim faith and that he is no longer following his religion. Nor does the Tribunal accept, for the reasons discussed above, that the Taliban ever threatened the applicant’s father or family because of the applicant’s presence in Australia, a western country.

5. The Tribunal has taken into consideration DFAT’s Country Report on Pakistan dated 15 January 2016, which it discussed with the applicant in the hearing, which provides that western influence is pervasive in many parts of Pakistan, particularly in large urban centres. Western films and music are widely available (though in many cases subject to censorship) and western-branded chains operate throughout Pakistan. Many Pakistanis have relatives in western countries and many more aspire to migrate abroad and those living abroad return to Pakistan frequently to visit relatives. As the Tribunal noted, DFAT assessed that individuals are not subject to discrimination or violence on the basis of having spent time in the West. The applicant responded that this may be the situation in Karachi, Lahore and Islamabad but not in his province or city. However, the Tribunal does not accept that the evidence before it suggests that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk he will suffer significant harm in Peshawar or anywhere else because he has lived in a western country or adopted western practices or because he has allegedly abandoned his Muslim faith.

6. Having considered the applicant’s claims both individually and cumulatively, the Tribunal is not satisfied on the material before it that the applicant’s life is threatened or that he will be arbitrarily deprived of his life; that the death penalty will be carried out on him; or that he will be subjected to torture, or to cruel or inhuman treatment or punishment, or to degrading treatment or punishment. The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in s.36(2)(aa).

7. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfied s.36(2)(aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion. 

8. For the reasons given above the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations.

   Other issues

9. The Tribunal notes the applicant’s evidence that his wife had become an Australian citizen prior to the hearing, [in] April 2016, and that she had given birth to their child [in] May 2016. Following the hearing the applicant submitted a copy of his [child’s] birth certificate.

DECISION

1. The Tribunal affirms the decision not to grant the applicant a Protection visa.

   Sydelle Muling
   Member