1419500 (Refugee) - [2016] AATA 4048

1419500 (Refugee) [2016] AATA 4048 (3 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1419500
COUNTRY OF REFERENCE:                  Pakistan
MEMBER:R. C. Titterton
DATE:3 July 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 03 July 2016 at 2:03pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Pakistan, applied for the visa [in] March 2014. [In] November 2014 the delegate refused to grant the visa.
The applicant appeared before the Tribunal on 7 June 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

RELEVANT LAW

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.

5.Section 48A of the Act 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 Minister for Immigration and Citizenship[2013] FCAFC 71, the Full Court of the Federal Court of Australia determined that s 48A does not prevent a person from making another application for a protection visa on a complementary protection grounds where the first application was made (and refused) before the commencement of the complementary protection provisions of the Act on 24 March 2012. The applicant had previously made an application for protection [in] June 2011. This was refused [in] September 2011. On 24 February 2012, the (the Refugee Review) Tribunal (differently constituted), affirmed the Department’s decision. Accordingly, the applicant was not prevented by the decision of SZGIZ from lodging his current application for protection. Therefore, his application will be considered only on complementary protection grounds.

The complementary protection criterion requires that the 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 Pakistan, there is a real risk he will suffer significant harm.
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 all further defined in s.5(1) of the Act.
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.
The principal issue in this case is whether there are substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia the applicant will suffer significant harm.

APPLICANT’S EVIDNCE

The applicant’s evidence included the following.
First, the applicant’s application dated [in] June 2011. The application relevantly states that the applicant was born on [date] in Sialkot, Punjab Province, Pakistan. He speaks reads and writes Urdu Punjabi and English. He is a Sunni Muslim. He is married. From [year] to February 2009 he lived in [Country 1]. He was educated to [a specified level] level in Pakistan.
Attached to the application is an undated statement of the applicant. He identified the statement at the hearing, said that he prepared it and that its contents were true and correct. In summary, this statement states that:
(a)the applicant is a well-known businessman in [product] making in Pakistan, as well as an “active political worker with aggressive thought”;
(b)he supported President Musharaff, and joined the All Pakistan Muslim League (APML) when it was formed;
(c)after joining the APML, he received threats from “religious fundamentalist elements” who want ransom, and tried to destroy his business;
(d)his business was involved in the import and export of [two products types], and was first established in [year]. In 2002 he opened a [Country 1] branch and lived in [Country 1] from 2002 to 2009. The Pakistani business was going so well that he closed the [Country 1] office and return to Pakistan in February 2009.
(e)two years later, in January 2011 he applied for a Visa to visit Australia which he obtained [in] February 2011. However, between the time he applied for the Visa and receiving the Visa he received a letter by post from a local commander [Mr A]. He threatened the applicant “with this understanding that I belong to the Musharaff Party and [was a] known political worker with progressive thought”. The letter also demanded the payment of a ransom.
(f)[in] January 2011 two persons, possibly Pathans, entered the applicant’s office and threatened him for the payment of this ransom. The applicant said he did not have that money, and the men gave him four days to pay. In the meantime, the applicant moved his wife and [child] to Karachi in order to protect their lives;
(g)on [a later date in] January 2011 three men with firearms entered his office. They demanded the ransom again. The applicant could not pay, so they took him away in a van. When the van stopped at a petrol pump, the applicant was able to escape. He reported the incident to the police and asked for security for his business and family.
(h)He states that he was in serious need of life protection for his family and himself.
Secondly, there were various documents included as part of the first application. These included a First Information Report dated [January] 2011, and a handwritten letter in Urdu, which the applicant said was the threatening letter to which he referred in his statement. The First Information Report sets out the incidents of [the two dates in] January 2011 described in the applicant’s statement.
Thirdly, the applicant’s application dated [in] March 2014. This application includes (together with the applicant’s first statement), a further statement of the applicant dated 25 February 2014. He identified the statement at the hearing, said that he prepared it and that its contents were true and correct. This statement provides more details of the applicant’s claims and articulates in an appropriate form his fears on returning to Pakistan. In par [3] he states:
I fear that if I am forced to Pakistan I will be physically harmed because of my political beliefs and imputed political opinions and membership with the [APML] and I was being targeted for extortion due to being successful and influential businessmen with political affiliations.
This statement also provides an (uncertified) translation of the threatening letter of January 2011 which the applicant states “roughly translates” as:
We hope that [variation of the applicant’s name] would be alright. Just because somebody being affluent and someone being poor doesn’t make difference with people. God has been gracious to you … (illegible) … and from the money you have ask you to pay us [amount] Pakistani rupees in 10 days time or otherwise yourself, your family, your business will not remain – [Mr A], Commander.
In summary, in addition to repeating matters raised in his previous statement, the applicant states:
(a)the current government has a vendetta against APML members and supporters and that many members have disappeared since this government has been elected;
(b)APML members are not protected by the current government;
(c)he would not be able to relocate to safety in Pakistan and he would not be protected.
(d)if he returns to Pakistan he would be threatened because of his contribution and membership to the APML, he would be in grave danger due to the extortion attempt, which is targeting him because of his status as belonging to particular group of people, being a successful businessman of wealth who have political connections and affiliations.
(e)he believes he would be found by Commander [Mr A] and his fellow members.
The statement also refers to an newspaper article published [in] July 2011 in a local newspaper which refers to the applicant having been targeted for the sake of extortion, and having to leave Pakistan to save his life. An uncertified translation of the article is provided.
Fourthly, a document dated [in] July 2013 and titled Daily General Register of Police Station [name]. This document is stated to be a “true translation” from Urdu to English and has been attested by a notary public. It is a report of the applicant’s wife who states that on [that date in] July 2013 when she was going home, two persons on a motorcycle stopped her and her [child] to ask about the applicant. She told them that he was in Australia, but he intended to return to Pakistan. They said to her “all right we will see him when he comes back to Pakistan and also take care of you”.
Fifthly, and included in the applicant’s documents, is a copy of a letter dated [in] March 2012 signed by [Mr B]. [Mr B] states that he is an area [official] for the APML. The letter states that the applicant is a volunteer worker for the APML and “he is a just financial supporter of APML not a proper member in our party, he is worked for Voluntary early since January 2010 to February 2011”. The letter refers to the applicant receiving “life threats” and being forced to leave the country. [Mr B] says that the applicant is a very civilised and honest person and concludes:
After better political situation in Pakistan comeback and againlly worked for our Party coz he is the best and very aggresively voluntarily worker.
(punctuation and spelling as in original)
Sixthly, after the hearing the applicant, on 21 June 2016, provided some further documents to the Tribunal. These included:
(a)a handwritten police report. No translation was provided and the applicant indicated that it would be provided within a week. On 27 June 26 the applicant provided what he said was a certified translation of that document. It states the applicant’s wife:
reported orally that in [April] 2016 she came to [a named] School to receive my [child]. On the way back two unknown on a motorbike forcibly stop me, misbehaved and enquired about my husband. I told them that he was abroad at Australia and he is not willing to return. The culprits abused and flew away and threatened that upon his return would not survive. Please take legal action. Copy of report handed over to petitioner and Station Incharge is informed about the occurrence.
(b)part of an article published in [a newspaper] [in] 2014 which refers to the hospitalisation of a [named person], after being tortured by police;
(c)a photograph of what appears to be a demonstration showing police or Army officers controlling in the crowd. The photograph is undated and the event depicted not described. At the hearing, applicant was not able to tell me who appeared in the photograph;
(d)an article (partially obscured) published in [another newspaper] [in] 2016. It is a report of police torture on a youth and the youth subsequently dying;
(e)An article published in [name] magazine or newspaper [in] 2016 which has the title of an article “[title]”, but does not include text of the article.
At the hearing, the applicant said that these articles showed problems about the situation in Pakistan, and in particular what happened to small children.

Evidence at the hearing

As noted, the applicant gave evidence at the hearing. What follows is a summary of that evidence.
The applicant confirmed that he was born on [date], He is [age] years old. He was born and grew up in Siaklot, Punjab. He completed [an education level] in Sialhkot and then College in [a town], where he studied [subject].
He has [specified siblings, and family composition]. His father was employed in [an industry], his mother looked after the children. They are a Muslim family. His father still lives in Sialkhot. His mother has died. All his siblings remain in Sialkhot.
After college, he started a [business] in [year] with friends from College, the partnership lasted until 1998. That business was based in Sialhkot. In June [year], he started his own business with his elder brother, importing and exporting [two product types]. The company traded in [Country 1] from 2002 to 2009. He closed that office to return to Pakistan to assist the Pakistani branch. He returned to Sialkhot, where his business and family were located.
He married in [2007]. He has one [child] who is [age] years old. His wife and [child] presently live in Karachi.
He had never been involved in any political party. He said that he supported Musharraf because he thought that he was good for business. Before that the business in Pakistan was not good because of the security situation.
He first started supporting the APML financially in 2006, before he returned from [Country 1]. Sometimes he gave Rs.[amount], other times Rs.[larger amount]. He started attending meetings in 2010. He started going because his friend [Mr C] insisted, even though the applicant was scared and did not want to go. Altogether, he went to three meetings in [a town], which were seminars for business people in the city, and on one occasion General Musharaff was invited as a chief guest.
The Tribunal asked him about the letter he received containing the threat. He said that he received it in January 2011. He received it at his office. He also said that in 2010 he continuously received letters, probably five or six. He no longer has copies of those letters. The Tribunal asked him about the content of these letters. He said the letters all contained demands for money, and telling him it was in his interests to leave the APML. He said they were signed by different people, but he no longer remembers who they were. He does recall none were signed by [Mr A]. The letters did not indicate what political party or interests the authors of the letters supported. [Mr C] told him not to go to the police.
The Tribunal asked him if he went to the police after he received the letter from [Mr A]. He said his friend [Mr C] told him not to go to the police.
The applicant said that he also received about ten phone calls at work from different people telling him not to support the APML. They would say it was “not good” for him and his family to continue supporting the APML. He did not go to the police about these phone calls.

Letter of January 2011

At the request of the Tribunal, the applicant read the contents of the letter from [Mr A] to the interpreter, who interpreted the words as follows:
We hope that you and your family are in good health. This is a request that wealth, money and food is from God. With someone less or someone more, near God no one is small, on you God blessings are … [illegible] … God Almighty, request you from the God given wealth our share of [amount] rupees in 10 days’ . . . Otherwise you and neither you, neither your family or neither your money will stay.
The letter received by the applicant in January 2011 was signed by [Mr A] “Commander”. The applicant said that he did not know who [Mr A] was, and still does not know. He did not ask [Mr C] who he was. The Tribunal asked the applicant what it did after he received the letter, and whether he took it seriously. He said that because he had been receiving threatening telephone calls as well, he asked [Mr C] what he should do. [Mr C] told him to ignore the threats. He said that [Mr C] had a position with the APML, although he is not certain what that position was. He thought he held the position at the district level.
The applicant said he did go to the police after receiving this letter. The police told him that and [Mr A’s] associates were dangerous people, and it would be better for him to pay them. The police said they were like the Taliban. The applicant did not like this advice and decided not to pay them. He thought was a bad idea as they would ask for more. The Tribunal asked if the applicant asked the police who they were. He said that the police said that they were dangerous.
On [a date in] January 2015, two people came to the applicant’s office to demand money. He said that they came in the afternoon at about 5pm. They sounded and looked like Pathans. They said that [Mr A] had sent them, about the money. The applicant told them that he did not have the money. They said bad things to the applicant and that he had four days to pay, and that they would return in four days’ time to collect the money. They did not say how much money they were demanding.
He then went to the police straightaway. They repeated their previous advice, that he should pay them and it would be better to pay them. He said the police said that the men were very dangerous and his life would be in danger if he did not pay them. He went home and discussed the situation with his family, who were all scared. The applicant subsequently sent his wife and [child] to his [relative’s] in Karachi the following day
The applicant had previously applied for an Australia [temporary] visa, on or about [a date in] January 2011, so he could attend an exhibition. The Tribunal asked the applicant to explain, given that he had been threatened on [a date in] January, and told that the men would be returning in four days’ time, what precautions he took against the possibility of further harm. He said that he talked to his friends, who said that they were with him, but he had no other option but to go to the office because of the visa interview.
Three men returned on [the later date in] January, around 2pm in the afternoon. They had guns. Two of the men had attended his office on [the earlier date in] January. They said that the Commander had sent them, and asked the applicant what had he done about the money. He said, that he was sorry, that he could not arrange the money, whereupon one of the men punched him, grabbed him by the collar and threw him to the floor. He then punched and kicked the applicant.
The applicant said that he had no other colleagues or workers in the office. They then forced the applicant into a van, and drove off. The applicant was in the backseat with one man on either side of him. They kept saying that that if he did not pay them, they would kill him. When they stopped for fuel, he was briefly left alone in the backseat with one of them. The applicant pushed him away, and then the applicant ran away. The men shot at him as he ran.

He went straight to the police. This time the police gave him a police report and then said there was nothing more they could do. Thereafter, he went to Karachi to his family. Meanwhile, the consulate contacted him on his mobile and conducted an interview. He received his visa [in] February. The Tribunal noted that he had previously said that he had to go back to the office in case the Australian consulate, which did not conduct interviews over the phone, contacted him. The applicant said he had not previously been aware that the consulate could conduct interviews on the phone.
The applicant left Karachi to fly to Australia [in] March 2011.
The applicant confirmed that he had been in Australia for a little over five years and had not been back to Pakistan during this time. He is not permitted to work in Australia, but survives by undertaking cash jobs such as working in [workplaces]. His wife is being supported by friends in Pakistan.
The Tribunal asked the applicant what he feared if he returned to Pakistan. He said that “straight away they will kill me”. The applicant said that he was safe in Australia. If he is returned to Pakistan it is as if he is “completely dead there”. The Tribunal asked him who would harm him. Initially, he said that it was the “party people”, who had said that if he returned to Pakistan, he would not be spared. This is what they had told his wife, and that is why she had made the police report.
This was a reference to the police report referred to above, in which his wife had stated that on [a date in] July 2013, two persons on a motorcycle stopped her and her [child] to ask about the applicant.
The Tribunal asked the applicant which party people he was referring to. He said it was the party that was in opposition, the Pakistan Muslim League Nawaz League Party. The Tribunal noted there was nothing about this in the report to police provided by his wife. The Tribunal noted that there was no other document provided by the applicant which referred to that party. The Tribunal enquired why that organisation would threaten him. The applicant said that they came to his wife in [a location], and asked her which party he belonged to, and then they make it clear that the applicant belonged to the Muslim League Party. She did not mention the name of the Pakistan Muslim League Nawaz League Party because his wife’s [relative] told her not to mention them to the police. They also told her not to report their name to the police. Sometimes they were harassing her at other places apart from [that location].
He said that when his wife went to file the report, this was not the first time she had been approached. She was approached beforehand, and continued to be approached afterwards. When asked by the Tribunal, the applicant said that his wife had been harassed in this way about 10 times. He said that it was always the same, that she was approached by members of the Pakistan Muslim League Nawaz League Party. He said that they told her “call your husband, otherwise it would not be good for you, we have to kill him anyhow”. The Tribunal asked the applicant what was the message his wife was being asked to convey by these people. He said that they were telling his wife to bring him to Pakistan, otherwise they would kill her, and they had to kill him anyway. The Tribunal asked why the Pakistan Muslim League Nawaz League Party would want to kill him. The applicant said: “Because all this happened because I was supporting . . . Musharaff”.
The Tribunal noted that the applicant had left Pakistan in February 2011, and his wife had filed the police report in July 2013, by which time she had been harassed and threatened four or five times. The Tribunal suggested that including the incident which was the subject of the police report of July 2013, by this time the applicant’s wife, and therefore the applicant have been threatened some five or six times. The applicant agreed.
The Tribunal asked why these matters were not mentioned in the statement dated 25 February 2014. The applicant said that he did not know how to put this information in the application. The Tribunal put to him that he had an agent at the time who prepared the statement. The Tribunal asked why the information would not have appeared in the statement. The applicant said that he did not know how to prepare the application and that his agent did not ask for this information. The applicant agreed that he told the agent about these threats to and the harassment of his wife. The applicant said that the agent did not know what he was doing, and that the agent had left out information for some reason.
The Tribunal then asked the applicant whether there is any other reason why he might be harmed if he returned to Pakistan. The applicant said no. The Tribunal then asked the applicant, that being so, whether he feared harm from [Mr A]. The applicant said that he hired people like [Mr A] to do its work, and if it was not [Mr A], it would be someone else. The Tribunal asked the applicant to state whether or not he feared harm from [Mr A] or not. He said that he did. The Tribunal asked him why [Mr A] would come looking for him after five years, and how he would be found. The applicant said that after coming to Australia, they found his wife, so that therefore they would be able to find him.
The Tribunal asked the applicant whether there was a link between the Pakistan Muslim League Nawaz League Party and [Mr A]. He said that “when these kind of people want to send the threat to someone they hire these kind of people. The applicant said that he did not know whether the two had a relationship or not.
The Tribunal attempted to summarise the applicant’s fear. He fears harm from the Pakistan Muslim League Nawaz League Party and other groups or persons it might employ to harass people. The applicant said “yes, I have a danger”.
The Tribunal then asked the applicant about his activities in the APML. It noted that his previous evidence was that he had started supporting the APML financially in 2006 and started attending meetings in 2010. The applicant agreed that the APML was founded by Musharraf when he was in “exile”. The Tribunal asked the applicant when he first started attending meetings. The applicant said he was a volunteer and continuously supporting the party. He said that he did not remember exactly but maybe June 2010. The Tribunal explained that the information before it indicated that the APML was not founded until 1 October 2010. The Tribunal stated that this information suggested that the applicant would not have been able to support the APML before that time. While the applicant was not entirely clear in his response, the Tribunal understood him to be saying that he supported pro-Musharraf activities prior to the formation of the APML. The Tribunal noted that that suggested that what the applicant said in his statement was not accurate, because he described activities that took place before the party was formed.
The applicant confirmed that he was never a member of the APML and he only went to 3 meetings. He said that he had not been involved in supporting Musharraf since he had been in Australia. He said that he had not been involved in politics either in Australia or in Pakistan in the time that he had been in Australia. He said he would not get involved if he returned to Pakistan because he wanted to ensure that he would look after his child, and to get involved would increase the threat to his family.
The Tribunal discussed with the applicant the DFAT country information. It indicated that country information was used to assess whether or not there were substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia the applicant will suffer significant harm.
The Tribunal referred to the DFAT Country Information Report for Pakistan dated 15 January 2016. It noted that while the Report referred to a number of political parties and their activities, including acts of violence, it did not refer to the APML or the Pakistan Muslim League Nawaz League Party. The applicant said that the report did not refer to the APML because Musharaff had been out of the country. This answer is unpersuasive. Country information indicates that Musharaff returned to Pakistan on 24 March 2013 (that is after the publication of the DFAT Report) and was subsequently arrested on 18 April 2013.
The Tribunal put to the applicant that it might be thought to be unlikely that, having been away for five years, in circumstances where he gave some financial support to the APML, but was not a member, and only ever attended three meetings, and would not be involved if he returned, it would be unlikely he would face significant harm for that reason if he returned. The Tribunal asked the applicant to comment on that suggestion. The applicant said that the biggest risk is that they were still touching his wife.
The Tribunal asked him why he did not have copies of the other 10 or so threats he had received, while he had the letter from [Mr A]. His response was that [Mr C] told him to ignore the letters, as they were “rubbish”. The Tribunal asked why he kept the one he did retain. He said it was accidentally left there, and he took it to the police station.
At the conclusion of the hearing the applicant indicated that he could ask his wife to provide a statement. The Tribunal allowed him to do so if he wished. As noted, while the Tribunal received post-hearing submissions from him, no statement from his wife was received.

CONSIDERATION AND FINDINGS

Is the applicant a citizen of Pakistan?

Having sighted a photocopy of a passport issued by the Islamic Republic of Pakistan, issued [in] 2009 in the name of the applicant, the Tribunal is satisfied that the applicant is a citizen of Pakistan and that the appropriate country of reference for the assessment of his refugee claims, and the receiving country for the purpose of his complementary protection claims, is Pakistan.

Does the applicant have the right to enter and reside in any other country?

There is nothing in the evidence to suggest that the applicant has a right to enter or reside in any other country other than Pakistan. Therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection by s.36(3) of the Act as it has found that the applicant is a citizen of Pakistan.

Are there substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia the applicant will suffer significant harm?

Various decisions of the Federal Court of Australia[1] have held that when determining whether a particular applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims made. This may involve an assessment of the credibility of the applicant. When assessing credibility, the Tribunal should recognise the difficulties often faced by asylum seekers in providing supporting evidence and should give the benefit of the doubt to an applicant who is generally credible but unable to substantiate all of his claims. However, the Tribunal is not required to accept uncritically each and every assertion made by an applicant. Further, the Tribunal need not have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. Nor is it obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality.
[1] See for instance Randhawa v MILGEA (1994) 52 FCR 437; Selvadurai v MIEA & Anor (1994) 34 ALD 347 and Kopalapillai v MIMA (1998) 86 FCR 547.
There were a number of aspects of the applicant’s evidence which concerned the Tribunal. The first was that many aspects of his evidence, or his explanations for certain courses of conduct, were unpersuasive. Secondly, the applicant gave no rational explanation for why he had failed to include certain matters in his statement, prepared by an agent, and mentioned them for the first time at the hearing. Thirdly, there was at least one inconsistency between the evidence provided in the applicant’s statement and in his oral evidence at the hearing which troubled the Tribunal. Fourthly, there was a lack of corroborative evidence in circumstances where corroborative evidence could have been provided.
Unpersuasive evidence
The Tribunal asked the applicant about his evidence that Musharaff attended one of the three meetings of the APML that the applicant attended. The Tribunal noted that this was not mentioned in the applicant’s statement, and asked whether he was sure that this evidence was correct. The Tribunal said that it was concerned that he might have added the information about Musharaff attending a meeting to improve the strength of his application. The applicant said that he had mentioned this before (although it was not clear where and when as the applicant did not attend when invited to an interview with the delegate). The Tribunal indicated that it had information that suggested that Musharaff left Pakistan in November 2008, when he went into exile in London, and did not return to Pakistan until March 2013. As this was after the applicant had left Pakistan, the Tribunal suggested to the applicant that his statement in that respect could not possibly be true. The applicant then asked “how?” The Tribunal explained that he had stated that he started going to meetings in 2010, and left Pakistan in March 2011. Yet Musharaff was out of the country from March to 2008 until March 2013. Accordingly, the applicant could not have attended a meeting which was also attended by Musharaff. The applicant responded by saying that “he was overseas, but coming for some time”.
The Tribunal is not persuaded by the applicant’s explanation. The Tribunal does not accept this explanation as reasonable to believe as true. The applicant said that he might be able to contact someone who could provide photographs of that period. The Tribunal indicated that the applicant could have time to do so if he wished. However, while other information was sent to the Tribunal post-hearing, nothing relating to this issue was received from the applicant.
The Tribunal indicated that it found it difficult to accept that he returned to his office, after the second attack [in] March 2011, because he did not want to miss a telephone call about a visa interview (in circumstances when that interview was in fact later conducted on his mobile), when he had just been kidnapped and assaulted. The applicant did not appear to understand. The Tribunal suggested to him that if he was so worried about the threats he would not have returned to the office, where in the space of four or five days he had been approached twice, kidnapped and assaulted; rather he would have stayed away from the very place where these people said they would come to kill him. The applicant said that as a business man he had to go to his office.
The Tribunal is not persuaded by the applicant’s explanation. The Tribunal does not accept this explanation as reasonable to believe as true.
The Tribunal asked the applicant why he went to the police about the phone calls but not the letters. The applicant said that he did not remember whether he went to the police about the phone calls or the letters. The Tribunal asked him further questions about this, as it seemed inconsistent with what he had said earlier in the hearing. The Tribunal asked him whether or not his previous evidence that, having received various letters he did not go to the police, because [Mr C] told him not to, was correct. The applicant said that that was correct. The Tribunal asked him whether or not his previous evidence was correct that having received the telephone calls he did go to the police. The applicant confirmed that this was correct. The Tribunal then asked the applicant again why he went to the police about the phone calls but not the letters. He said that it was because [Mr C] was forcing him not to and to ignore it. It was only after he continued to receive the phone calls that the applicant decided to go to the police.
The Tribunal is not persuaded by the applicant’s explanation. The Tribunal does not accept this explanation as reasonable to believe as true.
The letter received by the applicant in January 2011 was signed by [Mr A] “Commander”. The applicant said that he did not know who [Mr A] was, and still does not know. He did not ask [Mr C] who he was. This strikes the Tribunal as very surprising. The Tribunal also indicated to the applicant that there was nothing in the letter which indicated how the money was to be paid. His evidence is summarised above. The applicant had no persuasive explanation as to how the money was to be paid.
The applicant said that when his wife went to file the report, this was not the first time she had been harassed by men. She had been approached beforehand, and continued to be approached afterwards. The applicant said that his wife had been harassed in this way about 10 times. He said that it was always the same, that she was approached by members of the Pakistan Muslim League Nawaz League Party. He said that they told her “call your husband, otherwise it would not be good for you, we have to kill him anyhow”. The Tribunal asked the applicant what was the message his wife was asked to convey by these people. He said that they were telling his wife to bring him to Pakistan, otherwise they would kill her, and they had to kill him anyway. The Tribunal asked why the Pakistan Muslim League Nawaz League Party would want to kill him. The applicant said: “Because all this happened because I was supporting . . . Musharaff”.
The Tribunal asked why these matters were not mentioned in the statement dated 25 February 2014. The applicant said that he did not know how to put this information in the application. The Tribunal put to him that he had an agent at the time who prepared the statement. The Tribunal asked why the information would not have appeared in the statement. The applicant said that he did not know how to prepare the application and that his agent did not ask for this information. The applicant agreed that he told the agent about these threats to and the harassment of his wife. The applicant said that the agent did not know what he was doing, and that the agent was left out information for some reason. This strikes the Tribunal as being very unconvincing and not persuasive.
Inconsistencies
The Tribunal noted that the applicant had told it at the hearing that he had received a number of letters asking for money. The Tribunal noted that while his statement referred to these letters, he had stated in his statement that “none of these asked for money”. The Tribunal asked if he could explain this inconsistency. The applicant had no understandable or persuasive explanation for this inconsistency, and appeared not to accept or understand that he had earlier told the Tribunal that these earlier letters had asked for money. The Tribunal considers this to be another matter counts against the appclaint’s credibility.
Failure in statement to refer to previous events
The Tribunal indicated that it was concerned that the other threats to his wife prior to the applicant making his statement in February 2014 (save for the one culminating in the police report of July 2013) were not referred to in that statement. The Tribunal indicated that it was concerned that the applicant gave that evidence at the hearing to strengthen his claim. The applicant said that the solution could be that his wife’s [relative] could provide some evidence. The Tribunal indicated that it was asking for an explanation, not a solution, and that the applicant had previously indicated that his agent had failed to include this information in his statement. The applicant said that his agent also told him that he could provide this information at the hearing. The Tribunal finds this to be a convenient explanation thought up by the applicant to counter a clear inconsistency in an aspect of his evidence.

There were various other matters which the applicant told the Tribunal, but were not mentioned in his statement. These included: going to the police after the incident of [January] 2011; there being no reference in his statement (or in either of his wife’s reports to police) of the Pakistan Muslim League Nawaz League; and that when the three men returned on [a later date in] January, one of the men punched him, grabbed him by the collar and threw him to the floor, and punched and kicked him.
The Tribunal does not accept to believe as reasonable to be true that his agent, who otherwise prepared his statement, advised him that he could mention these things at the hearing.

Lack of corroborative evidence

The Tribunal commented that part of his evidence could have been corroborated by [Mr C]. The Tribunal asked the applicant whether he was still in contact with [Mr C]. The applicant said that he no longer spoke to [Mr C]. The Tribunal also commented that part of his evidence could have been corroborated by his wife. He said that the police report was there. The Tribunal commented that the report only referred to one of many incidents he claimed his wife was involved in, and that it would have been relatively straightforward to have obtained a statement from his wife. He said that he asked his wife’s [relative] about this and the [relative] said that there was nothing more that he could add, as he did not want to be involved for fear of harm.

Conclusion

Given the above matters, the Tribunal has concerns about the credibility of some aspects of the applicant’s evidence. Nevertheless, noting that the High Court of Australia has described as “hardly surprising” the temptation of an applicant “to embroider” an account of his or her history, the Tribunal will give the applicant the benefit of the doubt where it can and makes the following findings.
The applicant was born in Pakistan in [year] and is [age] years old.
He owned a business involved in the import and export of [two product types], and was first established in 1999. In 2002 he opened a [Country 1] branch and lived in [Country 1] from 2002 to 2009. He returned to live in Pakistan in February 2009. There is no evidence before the Tribunal, save for the applicant’s uncorroborated assertion, that he was a “well-known business” man.
He was a supporter of former President Musharaff, and provided financial support to the APML after it was formed in 2010. He attended three meetings of the APML, but was never a member. The Tribunal finds that the applicant had no profile within the APML.
The applicant never attended a meeting which Musharaff attended. That component of his evidence was exaggerated for the purpose of improving his application.
Giving the applicant the benefit of the doubt, it finds that the applicant received a letter from [Mr A] in January 2011, and that two supporters of [Mr A] visited him [in] January 2011 to demand the money. However, the Tribunal does not accept that he was kidnapped as claimed on [a later date in] January 2011, that he escaped as claimed after which he returned to his office. The Tribunal does not accept this account as credible to believe as true.
Because of the Tribunal’s doubts about various aspects of the applicant’s evidence, the Tribunal does not accept or find that prior to this incident the applicant received any other threatening letters or telephone calls.
In particular, the Tribunal does not find that the claims made that his wife was harassed in the street by members of the Pakistan Muslim League Nawaz League Party either [in] July 2013 or [in] April 2016. In particular, the Tribunal does not accept that the incident reported [in] April 2016 by his wife occurred. The applicant did not mention this at the hearing, which was held approximately seven weeks later.

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

To paraphrase the Tribunal’s Guide to Refugee Law in Australia, the assessment of the level of risk which must be established to meet the criterion in s 36(2)(aa) is made up of three components: the Minister (or the Tribunal on review) must have substantial grounds for believing that as a necessary and foreseeable consequence of the non-citizen being removed from Australia, there is a real risk that the non-citizen will suffer significant harm.
The test under s 36(2)(aa) is a forward-looking one of reasonable foreseeability.[2]
[2] In WZASD v MIBP [2013] FCCA 1940 ; SZTQP v MIBP [2015] FCCA 423.
The threshold for the ‘real risk’ element in the complementary protection criterion in s 36(2)(aa) is the same as that for the ‘real chance’ test in the refugee criterion in s 36(2)(a). A fear of being persecuted is well-founded if there is a ‘real chance’ of being persecuted.[3] A ‘real chance’ is a substantial chance, as distinct from a remote or far-fetched possibility.
[3] Chan v MIEA (1989) 169 CLR 379 per Mason CJ at 389, Toohey J at 406-7, Dawson J at 396-8, McHugh J at 428-9.
The fact that an individual’s claims of persecution may be plausible or credible is not enough to establish a real chance of persecution. In Chan v MIEA, Dawson J stated:
“Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.[4]
[4]Chan v MIEA (1989) 169 CLR 379.
The requirement in s 36(2)(aa) that there be both ‘substantial grounds’ and ‘a real risk’ suggests that ‘substantial grounds’ imposes an evidentiary standard, and ‘real risk’ an assessment of the probability of the applicant suffering significant harm.
The criterion in s 36(2)(aa) also requires that the risk of harm be a ‘necessary and foreseeable consequence’ of the removal of the applicant from Australia to the receiving country.
The Tribunal notes that significant harm is defined in s 36(2A) of the Act in the following terms:
(a) the non-citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non-citizen; or
(c) the non-citizen will be subjected to torture; or
(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non-citizen will be subjected to degrading treatment or punishment.
As best the Tribunal understands, the applicant fears he will be subject to significant harm if he returns to Pakistan from [Mr A] and his supporters, or some other person who might be sent by those behind him such as the Taliban; or that he will harmed by members of the Pakistan Muslim League Nawaz League Party, and otherwise because he is a successful business man and/or because he was pro-Musharaff and a supporter of the APML.
The Tribunal has found that the applicant has received one threat from [Mr A] in January 2011, and that two supporters attended his office [in] January 2011 to demand money, but no other threats were made, and that the applicant was not kidnapped and assaulted. But because of the Tribunal’s doubts about various aspects of the applicant’s evidence, the Tribunal does not accept or find that prior to this incident the applicant received any other threatening letters or telephone calls, or that his wife was harassed in the street by members of the Pakistan Muslim League Nawaz League Party either [in] July 2013 or [in] April 2016. In particular, the Tribunal does not accept that the incident reported [in] April 2016 by his wife occurred. The applicant did not mention this at the hearing, which was held approximately seven weeks later.
In the circumstances, and applying the above tests, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Pakistan, there is a real risk the applicant will suffer significant harm if he returns to Pakistan from [Mr A] and his supporters, or some other person who might be sent by those behind him such as the Taliban.
The Tribunal has found that the applicant was a supporter of former President Musharaff, and while a financial supporter of the APML and an attendee at three meetings, had no profile within the APML, has no involvement in Pakistani politics in Australia and does not propose to have any involvement in Pakistani politics if he returns to Pakistan. In the circumstances, and applying the above tests, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Pakistan, there is a real risk the applicant will suffer significant harm if he returns to Pakistan because of his political opinions in supporting former President Musharaff or because he is a member of the APML.
For the same reasons, in the circumstances, and applying the above tests, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Pakistan, there is a real risk the applicant will suffer significant harm from the Pakistan Muslim League Nawaz League Party. This claim had never been raised prior to the hearing, and is not supported by country information.
As found above, the Tribunal makes no finding that he is a successful business man. Therefore the Tribunal does not find that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Pakistan, there is a real risk the applicant will suffer significant harm for this reason.

CONCLUSION

For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
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 satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

DECISION

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

R. C. Titterton
Member