1505987 (Refugee)

[2016] AATA 4384

1505987 (Refugee) [2016] AATA 4384 (13 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1505987

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Sydelle Muling

DATE:13 September 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 13 September 2016 at 4:40pm

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 [in] January 2014 and the delegate refused to grant the visa [in] April 2015.

3. The applicant appeared before the Tribunal on 8 September 2016 to give evidence and present arguments.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. 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 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).

6. 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.

7. 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’).

8. 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.

9. The applicant claims to be a citizen of Pakistan who was born on [date] in Karachi, Sindh, Pakistan. The applicant described his religion as Muslim. According to his protection visa application, he lived in [an address] in Karachi. He completed year [grade] in Pakistan and is fluent in Urdu and English. The applicant described his occupation before coming to Australia as [occupation]. He departed Pakistan legally [in] December 2008.

10. The applicant presented his claims in his protection visa application [in] January 2014 (folio 1 to 23 of Department file [number]), a departmental interview he attended [in] March 2015 (folio 31 of Department file [number]) and at his Tribunal hearing on 8 September 2016. 

11. According to the protection visa application, the applicant claimed he came to Australia for higher studies and then to become a resident of this country. He does not want to go back to Pakistan because of the theft and killings that occur there. The applicant claimed while living in Pakistan he had his mobile snatched at gunpoint and he was hit next to his left eye. He fears people in Pakistan will think that he came from overseas and they might kidnap or kill him as the condition of his state is not good anymore.

12. The applicant claimed that as he came to Australia for higher studies, people in Pakistan will think that his parents have a lot of money and they may kidnap him for ransom. He did not believe the authorities in Pakistan would protect him because of the corruption. He claimed things are getting more expensive there day by day so people are too busy with their own lives to help others.

13. 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.

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

15. The applicant claimed, when asked why he fears going back to Pakistan, that he does not feel good because the city his family used to live before was “way too worst”. His family’s house was robbed and due to this his family moved to Lahore. When asked who he fears will harm him, the applicant stated that he had heard from his [siblings] and friends, when people arrive in the country “they” will follow you from the airport to the house and commit some sort of crime or something.

16. The Tribunal asked the applicant if he ever experienced any problems in Pakistan before coming to Australia and he discussed the incident when his wallet and money was stolen at gunpoint. He claimed that they put a gun to his forehead and asked him for whatever he had. The applicant claimed that this happened a couple of months before he came to Australia when he was travelling by bus from his home to his [relative]’s home. He claimed that there were two guys sitting behind him on the bus and one came near him and whispered in his ear to give him whatever he had in his pocket and quietly get off the bus straight away. When asked if he knew who these men were, the applicant stated no but that they looked like labourers. While the applicant claimed that there were a few other people on the bus, he stated that they did not notice what was happening because the man was talking quietly to him. The Tribunal asked the applicant if the men did anything else to him, and he stated no. The applicant claimed he got off the bus and looked for any police around but there were none so he went home and called the police and gave them the bus number and location. The Tribunal asked the applicant how he got home. He stated that that he took another bus to his [relative]’s house and then took a bike from there and went home.  When asked how he was able to catch another bus if he had given these men his wallet, the applicant stated that he told the bus driver what happened to him and that he only needed to go a few more stops. He showed that he had nothing in his pockets and he was let on the bus without paying. The Tribunal asked the applicant if had experienced any other problems in Pakistan and he stated that this was the first one he experienced. While he claimed he stopped going out after this, the applicant’s evidence was that he did not catch public transport but he still went out using his father or [relative]’s car, including to buy items for him to come to Australia.

17. The Tribunal does not accept the applicant was robbed of his mobile phone and his money as he claimed, due to a number of discrepancies in his evidence, which cumulatively, raises concerns about the credibility of this claim. Firstly, as the Tribunal put to the applicant in the hearing, in the hearing he stated that these men did not do anything else to him, they just indicated they had a gun and he gave them his things and got off the bus. Yet, in his protection visa application he stated that he was hit near his left eye. While the applicant subsequently indicated that he was hit near his eye, the Tribunal finds it implausible that if the applicant had been hit that he would have failed to remember this when asked specifically if anything else happened to him during this incident, particularly given the seriousness of being physically harmed.

18. Secondly, as discussed above, the applicant claimed in the hearing that after getting off the bus, he caught another bus and was allowed to get on the bus without paying. However, as the Tribunal put to the applicant in the hearing, in the delegate’s decision, a copy of which was provided to the Tribunal, it was stated that he had said during the interview that he had given the men the money from one pocket, and had kept the money in his other pocket and used this money to catch another bus.  Although the applicant responded, that at the time he had no money in his pocket and did not know why he said that, the Tribunal finds this discrepancy in his evidence raises doubts about the credibility of this claim. 

19. Further, the Tribunal notes that while the applicant claimed that he was robbed at gunpoint, including having a gun put to his forehead as he initially stated in the hearing, later in the hearing when the Tribunal asked him where the gun was, he stated that when the man was standing near him the man indicated he had a gun. When asked if the person had the gun out, he stated that it was in the person’s clothing. He confirmed he did not see the gun.  The Tribunal does not find the applicant’s evidence regarding the existence of this gun convincing and the fact that his evidence has changed from having the gun pointed at his forehead to him actually not seeing the gun raises further doubts about the credibility of this claim.

20. Based on the above, the Tribunal does not accept the applicant was robbed of his mobile phone and wallet at gunpoint (or not), by unknown people while on the bus, as he claimed.

21. The Tribunal asked the applicant when he first thought about applying for protection. The applicant’ evidence in the hearing was that it was in 2014 when this thing happened to his house and his family were so scared that he had no other option but to apply for a protection visa. The applicant confirmed he was not worried about returning to Pakistan until his family’s house was robbed and that is why he had not sought protection until then.

22. The applicant claimed in the hearing there were two incidents in which his family was robbed. The first he claimed, occurred a couple of months before his [sibling] returned to Pakistan from Australia at the start of 2013. He claimed that his family (his mother, father, [and other relatives]) went by car to get groceries for the next day and while his father and [sibling] went into the store and his mother, her [relatives] were waiting in the car, two men sitting outside near the shop “on the dark side”, approached the car and stole all the gold they were wearing, phones and the money they had.

23. The second incident was the robbery of his home at the start of 2014. The applicant claimed in the hearing that this incident occurred a few months after his [sibling] left Australia. His family were all home as it was evening time. Two guys came and knocked on the door selling something and when his [sibling] opened the door, the two guys came in, followed by another three or four guys with guns. He claimed that his [sibling] was dragged inside and asked where all the other family members were and they were made to sit while the men  started taking whatever they found. When asked what was taken, the applicant stated his mother and [sibling]’s jewellery, all the money in the house and appliances such as television. The Tribunal asked the applicant if his family recognised any of these people. He stated that the two who knocked on the door looked like salesmen but the others looked like labourers. The Tribunal asked the applicant if these people said anything to his family. He stated that they did not say anything other than to tell them to sit. After taking their possessions the men just left.

24. The Tribunal has a number of concerns about the credibility of the applicant’s claims regarding these two incidents. Firstly, the Tribunal notes the applicant made no mention in his protection visa application about any robbery of his family despite the fact that he claimed that this was the motivation for him seeking protection. While the applicant claimed that the second robbery occurred after he had applied for protection, the Tribunal finds the applicant’s evidence in the hearing, when asked when he first thought about applying for protection, contradicts this as he specifically stated that it was not until his family’s house was robbed that he decided to seek protection. However, even accepting that this robbery of his family’s home occurred after the applicant had applied for protection, the Tribunal notes the applicant omitted from his protection visa application the robbery of his family while they were waiting in the car outside the shop. When asked why he did not mention this in his protection visa application, the applicant stated he had no idea why he did not mention it.

25. The Tribunal also finds the applicant’s evidence in the hearing about the first incident his family was robbed substantially different from his evidence to the Department about what allegedly occurred, as outlined in the delegate’s decision, a copy of which was provided to the Tribunal. The Tribunal notes according to the delegate’s decision, the applicant had claimed that his parent’s home was robbed twice, the first time in December 2013 and that both robberies occurred after his [sibling] returned from Australia. He also claimed that both robberies were conducted by the same group of people. The Tribunal finds this to be in stark contrast to the applicant’s evidence in the hearing that members of his family were robbed while they were waiting in the car and that this occurred prior to his [sibling] returning from Australia.

26. Given the inconsistency  in the applicant’s evidence regarding the circumstances and timing of the first incident, and the fact the applicant did not mention anything about this in his application for protection, the Tribunal does not accept that the applicant’s family were robbed, either while sitting in their car or in their home (as he initially claimed), in 2013. Similarly, in light of the Tribunal’s concerns about the credibility of most aspects of the applicant’s claims and the conflicting nature of his evidence regarding the timing of this incident and his application for protection, the Tribunal does not accept the applicant’s claims regarding the robbery of his family’s home in 2014.

27. However, even if the Tribunal accepts that the applicant’s family home was robbed in 2014, the Tribunal does not accept the applicant’s suggestion that this incident had any connection with his [sibling]’s return from Australia or from a western country and the perception that his family is wealthy but was instead a criminal act. The Tribunal notes the applicant’s evidence in the hearing that his [sibling] returned to Pakistan from Australia sometime during the first four months of 2013 and the robbery of his family home occurred at the start of 2014, around a year after his [sibling]’s return to the country. The Tribunal does not accept in these circumstances, and also having regard to the applicant’s evidence about what actually transpired during this incident (that the offenders came in, said very little and took their possessions), that there was any connection between this criminal act and the applicant’s [sibling]’s time spent in Australia. Based on the evidence before it, the Tribunal finds that the robbery of the applicant’s family was criminal conduct which was not motivated for any of the Convention reasons.

28. The Tribunal notes the applicant’s evidence that his family, his parents and siblings, are living in Lahore and have been living there for about two and half years, from around September or October 2014. The applicant confirmed in the hearing that if he returns to Pakistan he will resume living with his family residing in Lahore. The applicant’s evidence in the hearing was that his family have not experienced any problems in Lahore and that they are quiet safe and calm there. The Tribunal has also taken into consideration the information it put to the applicant in the hearing from the DFAT country report on Pakistan dated 15 January 2016 that levels of generalised and sectarian violence remain lower in Punjab than other parts of Pakistan and credible sources have told DFAT more recently Lahore has experienced a 20-25 per cent reduction in the rates of ‘crime against persons’, including kidnapping, since the commencement of Operation Zarb-e-Azb and implementation of the National Action Plan.  

29. Taking into consideration the applicant’s family have not experienced any problems or difficulties, particularly since they moved to Lahore several years ago, the Tribunal’s finding that the applicant was not a victim of robbery himself and his evidence that he has not experienced any other problems in the past apart from this alleged criminal act, in addition to the country information regarding the situation in Lahore, the Tribunal does not accept that the applicant faces a real chance of serious harm, including criminal acts or generalised violence, on his return to Pakistan. 

30. In regard to the applicant’s claim that he faces harm if he returns to Pakistan because people will think he has come from overseas,  when asked to explain this fear, the applicant claimed that what normally happens is that cab drivers look for people who come from abroad so that they can rob them later on. When asked how he would be recognisable as coming from overseas, the applicant stated it is by the way people dress and where they stand outside the airport. The Tribunal asked the applicant if anything happened to his [sibling] when [the sibling] returned to Pakistan from Australia. The applicant’s evidence was that his [sibling] was picked up from the airport by his family. When asked if his [sibling] had any problems after returning to Pakistan from Australia, the applicant stated no. As the Tribunal put to the applicant in the hearing, he could similarly be picked up at the airport on his return to Pakistan to avoid this problem. The applicant agreed that he could avoid this problem.

31. The Tribunal notes the information it put to the applicant in the hearing from the DFAT report on Pakistan dated 15 January 2016, that western influence is pervasive in many parts of Pakistan, particularly in large urban centres such as Karachi and Lahore. Western films and music are widely available and western-branded chains operate throughout Pakistan. Many Pakistanis have relatives in western countries and many more aspire to migrate abroad. Those living abroad return to Pakistan frequently to visit relatives. DFAT assesses that individuals are not subject to discrimination or violence on the basis of having spent time in the West.

1. The Tribunal finds, taking into consideration the independent information discussed above, and the fact that the applicant’s [sibling] has not experienced any problems since [the sibling] returned to Pakistan from Australia after spending [number] years here (according to the applicant’s evidence in the hearing), that the applicant does not face a real chance of serious harm, including being kidnapped or killed, now or in the reasonably foreseeable future, as someone who has returned from a western country. The Tribunal also does not accept that the applicant will be perceived as wealthy because of his time spent in Australia or in the west or because he was in Australia for higher studies, and will face a real chance of persecution, including being kidnapped for ransom, now or in the reasonably foreseeable future, having regard to his [sibling]’s experience on return to Pakistan from Australia after studying here for several years and the country information cited above.

2. The Tribunal has also considered the applicant’s return to Pakistan as a failed asylum seeker. The Tribunal notes the applicant departed Pakistan legally and entered Australia on a [temporary] visa. In circumstances where an application for protection is private and confidential, that Tribunal does not accept that it would be known (or assumed) by the authorities or anyone else that the applicant had sought protection in Australia, particularly when his purpose of traveling to Australia was for [a certain reason]. The Tribunal therefore does not accept that the applicant will be known or perceived to be a failed asylum seeker on his return to Pakistan or that there is real chance that he will face serious harm for this reason, now or in the reasonably foreseeable future.

3. The applicant claimed, when asked if there were any other reasons why he fears returning to Pakistan, that there are no job opportunities there. The applicant stated that he had studied [courses] in Australia and had worked in [an] industry here. The Tribunal also notes the applicant’s evidence that his [sibling] who returned to Pakistan from Australia is currently working in [an industry] and his father works as an [occupation] and has done so for many years. Having regard to the applicant’s educational qualifications and practical work experience in Australia, together with his family member’s employment in Pakistan, the Tribunal does not accept on the evidence before it that the applicant will be denied employment for any reason, including one of the Convention reasons. 

4. Having considered the applicant’s claims individually and cumulatively, based on the above, the Tribunal does not accept  that the applicant faces a real chance of persecution now or in the reasonably foreseeable future if he returns to Pakistan. The Tribunal therefore finds the applicant’s fear of persecution is not well-founded.

   Complementary protection obligations

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

6. As the Tribunal does not accept that the applicant is a refugee as defined in the Act, 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.

7. Having regard to the definition of significant harm in s.36(2A) of the Act as set out in the attachment of this decision, and the findings of the Tribunal above, the Tribunal does not accept that what the applicant might experience upon return to his home in Pakistan will involve a real risk of being arbitrarily deprived of his life; having the death penalty carried out on him; or being subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.

8. The Tribunal does not accept that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk he will be subjected to random criminal acts such as experienced by the applicant’s family in Karachi when their home was robbed on one occasion in 2014, particularly given the applicant’s family are now residing in Lahore and have been for some time and the applicant’s evidence in the hearing was that his family was safe there and had not experienced any problems.

9. The Tribunal also finds on the basis of the country information cited above and the applicant’s individual circumstances, and those of his [sibling] who returned to Pakistan from Australia, that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan that there is a real risk that he will suffer significant harm as a returnee from a western country or overseas or as a result of being perceived to be wealthy based on his time spent overseas or studying in Australia.

10. Nor does the Tribunal accept, for the reasons provided above, that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan that there is a real risk that he will suffer significant harm as a failed asylum seeker.

11. 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).

12. 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).

13. 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).

14. 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

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

    Sydelle Muling
    Member