1505074 (Refugee)

[2016] AATA 4914

1505074 (Refugee) [2016] AATA 4914 (15 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1505074

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Sydelle Muling

DATE:15 September 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 15 September 2016 at 3:25pm

CATCHWORDS

REFUGEE – protection visa – Pakistan – business dealings with criminals – defrauded of work materials – threatened and attacked – credibility issues – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 36, 65, 499

Migration Regulations 1994 (Cth), Schedule 2

CASES

Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445

Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259

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 claims to be a citizen of Pakistan, applied for the visa on 16 June 2014 and the delegate refused to grant the visa on 24 March 2015.

3. The applicant appeared before the Tribunal on 30 August 2016 to give evidence and present arguments. The Tribunal also received oral evidence from [the applicant‘s wife]. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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.

6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

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

8. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is 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’).

9. 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.

10. The applicant claims to be a citizen of Pakistan who was born on [date] in [City 1], in Punjab, Pakistan. The applicant described his ethnicity as Sunni and his religion as Islam. According to his protection visa application, he lived in [City 1] from [his birth] to December 2013. He completed ten years education and is fluent in Urdu and Punjabi. The applicant described his occupation before coming to Australia as self-employed. He was married [in] 1991 in [City 1]. He departed Pakistan legally on 6 December 2013.

11. The applicant presented his claims in his protection visa application on 16 June 2014 (folio 4 to 32 of Departmental file [number]), documents submitted to the Tribunal, at his Tribunal hearing on 30 August 2016 and in a post-hearing submission received from the applicant’s adviser. 

12. The applicant claimed in his protection visa application that he was living a good life in [City 1] with his family and he owned his own [construction related] business. In 2008, some criminal people pre-planned to get him to do their project for a [construction job] and that once the [work] was done they would start paying but that was not the case. Instead, they actually wanted to take his entire [business], which they did. He reported this to the police and took the matter to court but in vain. The applicant claimed that he and his family were threatened and eventually, [in] December 2009, he was attacked and taken to hospital unconscious. The applicant claimed he and his family have been humiliated because his entire business was snatched and they have been mentally and physically threatened and eventually attacked.

13. In regard to the incident that occurred [in] December 2009, the applicant claimed at 10pm he was going with his wife [shopping] when [Mr A] and three unknown people followed them from home. As they approached [a certain location], about [a certain distance] from their home, a [car] pulled in front of his motorbike. The applicant claimed at first they thought it was some thieves but then he saw [Mr A] fully armed with three other unknown people. He claimed one of them pushed his bike and he fell over and from then onwards he did not know until he was at the hospital, how they had tortured him and where they had shot him.  The applicant claimed his wife came off the bike before he was pushed to the ground and they started torturing him and his wife started crying for help. She witnessed what happened, along with a neighbour, who started running towards them when he saw his wife crying. The applicant claimed they used some “fast metal” and hit him on the upper part of both legs and shot him and left him unconscious. He claimed when his family reported this incident to the nearest police station they managed to get away with it, even though he had witnesses, because of their “high end contacts with criminal organisations” and “political back-up”.

14. The applicant claimed he had also been mentally tortured on several occasions, including at his home and at different public places. Whenever there was a hearing they threatened him directly to not come to court otherwise they would torture and kill him. They have directly threatened him and through messages to his family, that if they take the matter further they will kill him.  He claimed in the latest incident, his wife who is following up his case in Pakistan, was stopped at gun point and threatened to stop following any further cases otherwise they would do to her what they did to him.

15. The applicant claimed due to the unrest in the country and increasing poverty and unlawfulness and what he has gone through already, he strongly believes he will be tortured, perhaps killed, and nothing will happen to those responsible; only his family will suffer. Criminal people have already “ripped” him off of his savings and almost killed him and made him a “mental patience”. He is very stressed and that is why he cannot sleep and take his mind of the whole situation. He has nothing there as they have stolen everything from him, including his health, wealth, respect and freedom. The applicant claimed that if he goes back to Pakistan he will die at the hands of these criminals and he is very worried for the wellbeing of his family.

16. In response to the question who do you think may harm/mistreat you if you go back?, the applicant claimed [Mr A], [Mr B], [Mr C] and [Mr D] and three more people who attacked him with [Mr A]. He claimed these criminals have many people behind the scene who they use to commit different kinds of crimes including kidnapping and killing for money. The applicant claimed about two weeks earlier, they stopped his wife at gun point and took all her jewellery and disrespected her and threatened her to leave Pakistan so she could not pursue the cases against them.

17. The applicant claimed that these criminals have no pity for anyone and do not leave simple family people to live their lives. Wherever they find someone alone, who has money or business, they think that it is an easy target for them. Likewise, they “pin-pointed” him and made a plan to get all his business and he could not do anything against them. He claimed his cases have been running with the police and in court for over five years and whatever he had left he had spent on these cases. Nothing has happened to these criminals as they have contacts everywhere. The applicant claimed that if they see him in Pakistan they will kill him as well as his wife.

18. The applicant claimed that he did not think the authorities in Pakistan would protect him as they have totally failed to provide any justice to him and his family or protect them from these criminals. They do whatever they like to as the Pakistan authorities work with them to perform these criminal acts. He claimed the recent attack on his wife at gun point clearly shows how unsafe he and his family are.

19. The primary issue in this review is whether there is a real chance that, if the applicant returns to Pakistan, he will be persecuted for one or more of the five reasons set out in the Refugees Convention for the purpose of s.36(2)(a) of the Migration Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm for the purpose of s.36(2)(aa) of the Migration Act.

20. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

21. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    ….care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

22. In the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, the High Court also made comments on the correct approach to determining findings on credibility. Kirby J said at 39:

    First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is not desirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the “real chance” of persecution required by Chan.

    With these points in mind the Tribunal now turns to an assessment of the applicant’s claims.

23. The applicant claimed that he fears harm from the people who he had a case against because they committed fraud on him in a business deal he had with them. For the reasons discussed below, the Tribunal has some serious concerns about the credibility of most aspects of the applicant’s claims for protection.

24. The Tribunal has some doubts about the applicant’s claim that he was owner of a construction company in Pakistan. The Tribunal found the applicant’s evidence regarding his construction business to be limited and simplistic and not consistent with his evidence that he had been working in the construction company since 1990 and running the business from [year]. In the hearing the applicant was asked what exactly he did in his business and he stated that he built houses, shopping malls and some factories. He employed [a number of] permanent workers and would hire up to [number] people depending on the size and progress of particular jobs. The Tribunal asked the applicant if he was responsible for the construction of the whole building project. The applicant stated he was. When asked to explain what was involved in building a shopping mall, for example,  and what he did in terms of these type of projects, the applicant stated maybe the structure, then start the walls and scaffolding or shuttering. When the Tribunal queried whether something would be done before building the walls, the applicant stated that the base or foundation of the building would be organised first. The Tribunal asked the applicant what did that involve. He responded that they would start digging according to the “map”. The Tribunal asked the applicant what would be done after the digging. He explained while they were digging they would consider how long the building should be and how strong should be the base so they just started with that foundation. He stated that the foundations are usually made of bricks, steel and concrete. The Tribunal asked the applicant what the next step in building a shopping mall was after the foundation was completed and he claimed they then organised the pillar or column and put in the steel so it should be strong enough to hold the building. When the Tribunal asked the applicant what the next stage was after building the frame, he stated that after organising the frame, it was the construction of the roof and then other stuff like the walls. He claimed the main construction was until the roof and then after that there were other parties to work such as plumbers and painters. He stated that he just built the structure. The Tribunal noted that on his business card that he submitted to the Department, it stated that he did all kinds of construction, particularly [Task 1] and asked the applicant what [Task 1] is. He explained that it was referred to [by a different name] in Australia and is [details deleted]. The applicant subsequently explained that when he worked on housing projects he just provided [Task 1] however when he worked on shopping malls he provided [Task 1] and built the structure. The Tribunal notes in the applicant’s protection visa application he claimed that he owned a [Task 1] business. 

25. Considering the applicant’s evidence, the Tribunal has serious misgivings about his claims regarding his business in Pakistan. However, even if the Tribunal accepts that the applicant owned a construction business in Pakistan, or more likely a [Task 1] business based on his evidence, the Tribunal does not accept the applicant’s claims regarding the difficulties he had with his business are credible given that it finds the applicant’s evidence regarding the work he was allegedly contracted to do on this project, when he was contracted to do this work and the nature of the fraud that was allegedly committed against him to be unclear and conflicting.

26. Firstly, the Tribunal found the applicant’s evidence regarding the project that he allegedly entered into with [Mr A], [Mr B] and [Mr C] to be contradictory. The Tribunal notes that when it asked the applicant about his association with these people, the applicant claimed that he was put in touch with them by his brother-in-law who told him they required the [Task 1] job to be done. However, the applicant also claimed, when asked exactly what he was required to do on the project, that he was to build the structure and he explained that he was to start at the base and build a four storey building for them. Yet, the applicant subsequently claimed that when he started working on the project [part of it] was ready so they started with [Task 1]. He confirmed that he did not do the base as that was ready, which directly contradicted his earlier evidence that his company was responsible for constructing the structure from the base. While the applicant claimed that he was confused about the construction, “how to make and how to build and everything”, the Tribunal does not accept that if the applicant had entered into a contractual arrangement to perform certain work on this project, that he would experience difficulty articulating with some degree of clarity what this work was and provide consistent evidence in respect of what his company’s role was in the project.

27. Secondly, the Tribunal notes that the applicant claimed in the hearing that he entered into the agreement to work on this project with the three [brothers] and their company, [Company 1], [in] September 2008. However, according to the FIR that the applicant submitted to the Tribunal dated [April] 2009 which allegedly was the case that he brought against [Mr A] and [Mr B], the applicant had entered into an agreement  to provide [Task 1] material [in] January 2008.  The applicant also submitted a further FIR dated [September] 2013 relating to the subsequent agreement that he allegedly had with [Mr D] to sell his [Task 1] material at a reduced price, which states that this agreement was made [in] June 2008.

28. In relation to the alleged fraud that was committed by these people, the applicant claimed in the hearing that he had provided the [Task 1] material and when work was stopped on the project about two months after he signed the agreement in September 2008, he requested that they return his [Task 1] material as it was very expensive but they refused to do so. He claimed that he subsequently agreed to a third party, [Mr D] of [Company 2] to purchase his material for a reduced price. He claimed that [Mr D] was linked to the [brothers] and [Company 1]. The applicant’s evidence in the hearing was that [Mr D] was going to give him [amount] lakhs but he delayed in giving him this payment so he made a case against him. Yet, according to the purported agreement which was submitted to the Tribunal, which appears to have no date, the applicant sold his [Task 1] material to [Mr D] and received [the agreed amount] [in] June 2008. Further, according to the FIR the applicant lodged when he allegedly made a case against [Mr A] and [Mr B], it was stated that they had simply refused to return to him the [Task 1] material and that the cheque of [amount] rupees that they paid him [in] July 2008 had been dishonoured, which the Tribunal notes the applicant made no mention of during the hearing. Further, the applicant has submitted what is purported to be an agreement between [Mr D], [Mr A] and the applicant dated [September] 2008 in which the applicant gives all power including the material of [Task 1] and all dues to [Mr D] and [Company 2]. This contract also appears to allow for [Company 2] to have responsibility to complete the work agreed to by the applicant [in] January 2008 and for him to receive an advance of [amount] rupees till [August] 2008.

1. The Tribunal finds the applicant’s evidence about the alleged business dealings he had with these people and the fraud that was allegedly committed against him, and the documents which he has submitted in support of this claim, to be confusing and contradictory and for this reason it does not accept these claims are credible. The Tribunal has taken into consideration the applicant’s adviser’s submission during the hearing that the applicant later learnt that this was a common practice by these people to take over other people’s businesses by putting them in difficult situations and eventually kicking them out of the their businesses. The Tribunal has considered the adviser’s submission, however it does not alleviate the Tribunal’s concern with the applicant’s evidence as outlined above.

2. The Tribunal also finds the applicant’s evidence regarding the case or cases that he pursued against these people to be vague and contradictory. When asked when he made the complaint against these people to the police, the applicant stated that his lawyer had provided everything for him and given him the statement to read before he came to the Tribunal but he was of the opinion that it was not an exam and he was also upset when he thought about the hearing and recalled what had happened to him so he did not know exact dates. As the Tribunal noted in the hearing, given that this was a central and significant part of his claim for protection, it would expect him to recall when he made this complaint, which ultimately led to him being allegedly threatened and harmed by those he had reported to the police. The applicant subsequently stated that he thought it was [a specified day of the month] in 2009. He was not sure which month but suggested it was the first month. The Tribunal notes that this is not consistent with the FIRs that the applicant submitted to the Tribunal which are dated [a different day of the month in] April 2009 and [date] September 2013. The applicant also claimed that when he made the complaint to the police they were arrested but they were not brought before the court. When the Tribunal asked the applicant if anything else happened in relation to his complaint after they did not appear in court once being arrested, the applicant claimed that was when he was attacked and shot. He also claimed after this incident he did nothing and stopped going to the court. Yet, he later claimed that he made several other FIRs, four altogether, and suggested they were lodged in 2011 or 2012.

3. The Tribunal does not accept that the applicant was attacked by [Mr A] and three unknown people. The Tribunal finds the applicant has provided conflicting evidence regarding the timing and circumstances of this alleged incident. The Tribunal notes in the applicant’s protection visa application he claimed that this incident occurred [in] December 2009 when he was going with his wife to the [shops] and they were followed by [Mr A] and these three unknown people. He claimed that as he and his wife approached [a certain location], a [car] pulled in front of his motorbike. He saw [Mr A] fully armed and the three unknown people and one of them pushed his bike and it fell over and he was tortured, although he was unconscious at the time. He claimed his wife came off the bike because he was pushed to the ground and they started torturing him and she witnessed the whole incident, along with a neighbour who came to their assistance. The applicant claimed they used some “fast metal” and hit him on the upper part of both legs and shot him.

4. However, in the hearing the applicant claimed that this incident happened in the first or second month of 2009, although he was not sure. He told the Tribunal that he was going to the shopping centre with his wife around 6:30 or 7:00pm when they were stopped and 3 or 4 people started to beat him with a steel rod and shot him in the leg and threatened to kill him and his children if he continued with the case against them. When asked how these people stopped him, the applicant stated that they were in a car so they just brought their car in front of his bike. They grabbed his collar and started beating him and abusing him. He claimed his wife started screaming and shouting but there was no-one on the road. The applicant claimed they took out their gun and shot him in the leg and ran away after that.

5. Further, in the FIR the applicant submitted to the Tribunal pertaining to this particular incident, it was stated that it occurred at 8pm [in] December 2009 when the applicant and his wife were coming from [a] meeting with relatives and was also travelling with the applicant’s nephew, who was on another motor cycle. According to the details in the FIR, [Mr A] and [Mr B] came on [motorcycles] in front of them and stopped them and abused them and when the applicant tried to stop them, [Mr A] shot the applicant in his right leg and they ran away. In addition to the applicant wife witnessing these events, it was also stated that the applicant’s nephew had seen what had occurred.

6. Additionally, the applicant’s wife, who was allegedly responsible for reporting this incident to the police and thereby the contents of the FIR as discussed above, gave evidence to the Tribunal that they were going somewhere when suddenly a car stopped in front of them and fired at the applicant and they both fell down. When the Tribunal queried whether the people who fired on the applicant got out of the car, the applicant’s wife stated no. She confirmed they just shot at him and then left.

7. The Tribunal finds the applicant and his wife have provided inconsistent evidence regarding essential details of this significant event, including who was allegedly responsible ([Mr A] and three unknown people, as opposed to [Mr A] and [Mr B]), whether the alleged assailants were in a car or on motorbikes, whether they got out of their vehicle and beat the applicant, including with steel pipes, or just shot at him from their vehicle  as his wife asserted and who witnessed these events, whether it be a neighbour, as claimed in the applicant’s protection visa application, the applicant’s nephew as stated in the FIR or no-one because there was no-one on the road despite it being 6:30 or 7:00pm because it was winter season, as the applicant claimed in the hearing. The Tribunal notes when it put these discrepancies to the applicant, he suggested that what was written in the FIR was not correct because the police just write what they want to. The Tribunal does not accept this explanation given that it finds it implausible that if that is the case, the applicant would submit the FIR as corroborative evidence. The applicant also asserted that maybe both he and his wife had forgotten and that there was one motorcycle and one car. The Tribunal finds the applicant’s explanation that the numerous differences in the evidence provided by him and his wife about this one incident is the result of both his and his wife’s forgetfulness to be unconvincing. Nor does the Tribunal accept the applicant’s new claim that there was a car and motorcycle involved, which is further inconsistent with the previous evidence provided by the applicant.

8. The Tribunal notes that the applicant also claimed, when the Tribunal put details of him  being hit with “fast metal”  as stated in his protection visa application, that this was a separate incident to when he was shot at. The applicant claimed that in the second incident, people grabbed him and took him for two days and kept them in their custody and hit him with pipes. They asked him to leave the country and escape and when he agreed to do so, they released him. He claimed this happened one year before he left Pakistan. However, as the Tribunal noted in the hearing, the applicant had not raised at any stage during the hearing, or in his protection visa application, that there was any other incident in which he was physically assaulted. In fact, the Tribunal asked the applicant in the hearing, repeatedly, if anything else had happened to him apart from the incident when he was beaten and shot and he stated no. The Tribunal finds it beggars belief that if the applicant had been abducted and kept for two days during which he was beaten with pipes, that he would fail to raise this until the final stages of the hearing, in response to inconsistencies in his evidence. Taking into consideration the seriousness of this alleged incident and the fact that it appears, on the applicant’s evidence, to be the reason he departed the country, the Tribunal finds it far-fetched that the applicant would omit such a significant event from his protection visa application (particularly as this would have been the most recent harm he had allegedly experienced) and would not mention this when asked directly if he experienced any other problems in Pakistan. The Tribunal does not accept the applicant did not raise this claim earlier because he did not make an FIR for this incident as he asserted in the hearing. As the Tribunal noted, there is no requirement that the applicant provide corroborative evidence such as an FIR, for all his claims for protection and in circumstances where the applicant has had the assistance of an adviser since making his application, it does not accept that such a significant claim would be omitted for this reason. The Tribunal finds the applicant has concocted this claim in an effort to bolster his case and this raises serious doubts about his credibility generally and those of his claims for protection.

9. The applicant claimed that his wife had also experienced problems after he departed the country because she allegedly pursued the case against these people on his behalf. In the applicant’s protection visa application, he claimed that his wife was stopped at gunpoint and threatened to cease following any cases otherwise they would do to her what they did to the applicant. In the hearing, the applicant reiterated that his wife was going somewhere or coming from somewhere and she was stopped at gunpoint and they threatened the lives of their children if she did not stop going to court. The applicant claimed in the hearing that his wife made an FIR but did not mention the names of those who threatened her. When asked if anything else had happened to his wife, the applicant stated nothing had happened after that.

10. The applicant submitted to the Tribunal an FIR which was made by his wife in relation to an incident that happened after he had left the country. As the Tribunal noted in the hearing, according to this FIR, the applicant’s wife had gone at 2am to get some medicine with the family and had stopped at her sister’s house for a visit and a motorcycle went past and snatched her handbag and ran away. The Tribunal noted that there was nothing in this report about his wife being held at gunpoint and threatened. When this was put to the applicant, he responded that as he had mentioned earlier in the hearing his wife did not mention their names because they had threatened her so that was the main reason she lied in the FIR because of security concerns.  The Tribunal notes that later in the hearing, when it took evidence from the applicant wife, she claimed that she had been threatened at gunpoint and that after being threatened she stopped going to court and made an FIR. She also claimed that there was a second incident, when she was robbed, but that she only made an FIR report for one incident. The applicant’s wife confirmed that when she made the FIR she told the police she was stopped at gunpoint and told not to go to court. Yet, as discussed above, the FIR that was submitted to the Tribunal, which according to the applicant’s wife’s evidence was the only FIR she made in relation to the two incidents that allegedly happened, refers to the robbery. However, when the Tribunal noted that the FIR submitted did not refer to her being threatened at gunpoint, the applicant’s wife suggested that the FIR that the Tribunal received was in relation to the second incident when she was robbed, which the Tribunal finds contradicts her earlier evidence that she only reported the one incident when she was threatened.

11. Given the applicant did not make any claims in his protection visa application or in the hearing about any second incident when his wife was robbed and the discrepancy in the applicant’s wife’s evidence regarding the FIRs she allegedly made, the Tribunal does not accept that the applicant’s wife was threatened at gunpoint or robbed as claimed. It therefore follows that the Tribunal does not accept that the applicant’s wife and children moved house after this incident and have been living in hiding in rented premises.

12. The Tribunal has also taken into consideration the applicant’s adviser’s post hearing submission in which he has provided a more complete account of the applicant’s previous experiences in Pakistan. However, for the reasons provided above, the Tribunal does not accept that the applicant’s claims are credible.  The Tribunal has had regard to the submissions made by the applicant’s adviser both orally and in writing, regarding the applicant’s inability to fully explain his business properly. The Tribunal does not accept that the applicant was confused or did not understand properly. The Tribunal asked the applicant clear and simple questions about his own experiences. While the Tribunal appreciates that some of these events occurred seven or eight years ago, as pointed out by the applicant’s adviser, given the significance of these experiences the Tribunal would expect that the applicant would have some awareness of at least the month and year in which they took place and be able to provide consistent information about the circumstances of these incidents, if in fact they did occur. The Tribunal does not accept the applicant’s adviser’s assertion that the applicant has lost a fair bit of his memory because of the stress, trauma and pressure he has experienced as a result of his situation. The Tribunal has also considered the applicant’s claim in the hearing that his uncle had died two or three days before the hearing and that he was upset. Given the applicant only raised this in the late stages of the hearing and the Tribunal’s concerns about the applicant’s credibility generally, on the evidence before it, the Tribunal does not accept that the numerous deficiencies in the applicant’s evidence as discussed above are due to the applicant’s grief as result of the alleged recent passing of his uncle.  

13. The Tribunal has had regard to the various documents the applicant submitted to the Tribunal in support of his application, including the FIRs, the agreements and the court documents, but places no weight on these in light of the country information it put to the applicant in the hearing regarding the prevalence of document fraud in Pakistan and the ease in which such official documents can be obtained. The Tribunal notes that the FIRs in which the applicant purportedly lodged complaints against the [brothers] and [Mr D], has s.406 of the Pakistan Penal Code recorded as the offence. However, as the Tribunal put to the applicant in the hearing, s.405 of the Pakistan Penal Code is the offence of criminal breach of trust and s.406 is the punishment for breach of trust. The Tribunal finds that this also raises some doubts about the veracity of these documents. The Tribunal has considered the applicant and his adviser’s request that the Tribunal make further enquiries with the police and courts in [City 1] regarding the veracity of these documents, however given the Tribunal’s findings above regarding the credibility of the applicant’s claims and the reliability of his evidence generally, the Tribunal does not accept that its concerns would be alleviated by making such further enquiries.

14. Based on the above, the Tribunal finds the applicant is not a witness of truth or that his claims regarding his alleged construction business in Pakistan and the problems he had as a result of the alleged fraud committed against him are credible. As such, the Tribunal does not accept that the applicant was threatened by [Mr A], [Mr B], [Mr C] and [Mr D] and that he was mentally tortured on several occasions, including at his home and at different public places. Given the Tribunal does not accept that the applicant was involved in any court case or cases against these people, it does not accept that he  was threatened to not come to court whenever there was a hearing or that his family received any messages or threats that they would kill the applicant if he took the matter further. The Tribunal also does not accept that the applicant was beaten with pipes or “fast metal” and shot at when he was travelling somewhere with his wife and was allegedly intercepted by [Mr A] and three unknown people or [Mr A] and [Mr B] or that the applicant was grabbed by some people and kept for two days during which he was beaten and was only released after agreeing to leave the country. Nor does the Tribunal accept that since the applicant has departed the country, the applicant’s wife has been targeted by [Mr A] et al. including being threatened at gunpoint or being robbed.

15. Given the Tribunal does not accept that the applicant’s claims regarding his business problems with [Mr A], [Mr B], [Mr C] and [Mr D] are credible and that either he or his family have been targeted in the past by these people, the Tribunal does not accept on the evidence before it that the applicant faces a real chance of persecution from [Mr A], [Mr B], [Mr C] and [Mr D] or anyone associated with them  because of this alleged fraud on his business or due to unrest, increasing poverty and unlawfulness. For the reasons provided above, the Tribunal finds the applicant’s fear of persecution is not well-founded.

    Complementary protection obligations

16. On the basis of the applicant’s claims to be a national of Pakistan and his Pakistani passport, the Tribunal finds that Pakistan is the applicant’s receiving country for the purposes of s.36(2)(aa).

17. As the Tribunal does not accept that the applicant is a refugee as defined in the Refugees Convention, the Tribunal has considered the alternative criteria in s.36(2)(aa), whether 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 that he will suffer significant harm as defined in subsection 36(2A) of the Act.

18. Based on the findings of the Tribunal above that the applicant’s claims regarding his business dealings with [Mr A], [Mr B], [Mr C] and [Mr D] are not credible and that he did not bring any cases against them and was therefore not threatened or harmed by them or that his family were threatened by them, the Tribunal finds that there are no 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 that he will suffer significant harm from [Mr A], [Mr B], [Mr C] and [Mr D] or people associated with them because of this alleged fraud or due to any unrest, increasing poverty and unlawfulness.

19. Having regard to 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).

20. 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 the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

21. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

1. 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

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

   Sydelle Muling
   Member