1506370 (Refugee)

1506370 (Refugee) [2018] AATA 720 (6 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1506370
COUNTRY OF REFERENCE:                  Pakistan
MEMBER:C. Packer
DATE:6 March 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 06 March 2018 at 7:16pm

CATCHWORDS
Refugee – Protection visa – Pakistan – Unsuccessful RRT protection visa appeal – Complementary protection criterion considered – Moderate Sunni – Political opinion against Islamic extremism – Fear of harm from Sunni extremists – westernized returnee – Australian wife and children – Western habits – Ministerial intervention sought

LEGISLATION
Migration Act 1958, ss 36, 48A, 65, 417, 438
Migration Regulations 1994 r 4.31 Schedule 2

CASES

SZGIZ v MIAC (2013) 212 FCR 235
MIBP v SZVCH (2016) FCAFC 127

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 (the delegate) to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant is a man [age], born in Pakistan and a citizen of Pakistan.
The applicant last arrived in Australia on [date] February 2008, as a holder of a [Business] visa, and had travelled on a Pakistan passport issued on [date] 2005 and valid to [date] 2010. He has been issued another Pakistan passport in Australia on [date] 2014, valid to [date] 2019.
On [date] March 2008 the applicant applied for a Protection (Class XA) visa.
On [date] June 2008 the delegate refused the application.
On 10 September 2008 the Refugee Review Tribunal (RRT) affirmed the decision not to grant the applicant a Protection visa (case number 0804026).
From 24 March 2012 a new alternate criteria for the grant of Protection visas was introduced by the Migration Amendment (Complementary Protection) Act 2011, so that a person may meet the criteria for a Protection visa where there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk that she or he will suffer significant harm.
On 24 January 2014 the applicant again applied for a Protection (Class XA) visa on the basis of complementary protection. This fresh application was accepted as valid by a delegate of the Minister. On 3 March 2015 the applicant attended an interview with a delegate.
On [date] April 2015 the delegate refused the application.
On 11 May 2015 the applicant applied for review of the delegate’s decision.
On 29 September 2016 the applicant attended a hearing with member 1.
On 6 March 2018 the applicant attended my Tribunal hearing.
In the current application the delegate assessed the applicant’s claims against both the refugee criteria and the complementary protection criteria. However, section 48A imposes a bar on a non-citizen making a further application for a Protection visa while in the migration zone in circumstances where the non-citizen has made an application for a Protection visa which has been refused. The Full Federal Court in SZGIZ v MIAC (2013) 212 FCR 235 held that the operation of s.48A, as it stood at the time of this visa application, is confined to the making of a further application for a Protection visa which duplicates an earlier unsuccessful application for a Protection visa, in the sense that both applications raise the same essential criterion for the grant of a protection visa. Applying the reasoning in SZGIZ v MIAC and MIBP v SZVCH (2016) FCAFC 127, the Tribunal finds that it does not have power to consider the criterion in s.36(2)(a), and has proceeded on the basis that it can only consider the applicant’s claims under the complementary protection criterion contained in s.36(2)(aa). The Tribunal must also assess the applicant’s claims against 36(2)(b) and 36(2)(c) of the Act, which make provision for non-citizens who are members of the same family unit of a person to whom Australia has protection obligations.
The issue in this case is whether the applicant is entitled to complementary protection. A summary of the relevant law is set out in Attachment A.
The applicant’s narrative is centred on his fear of harm from Sunni extremists and militants including the Taliban because he is a moderate Sunni who has previously supported local Shias and he will be a westernized returnee. However, after considering country information, his evidence and the material before the Tribunal, I do not accept there is a real risk that he will suffer significant harm in Pakistan. My assessment follows.
CONSIDERATION OF CLAIMS AND EVIDENCE, FINDINGS
Background
The applicant’s protection visa application provided some basic background information, and the applicant supplemented this with further details at the hearings. The applicant stated he was born and raised in [Town 1] near Sialkot. At the first hearing he stated until about October 2007 he lived in [Town 1] in a property that his father and uncles inherited from his paternal grandfather. The family subsequently moved to another house they built [in] Sialkot district [and] the family still lives there. He stated he had a University level education, and had then worked in [a] business. He stated he is married to an Australian citizen, [and] has [Australian] citizen [children]. He and his immediate family live with a brother in Australia who is an Australian resident, and the brother partially financially supports them. The brother is returning to Pakistan soon to marry. His parents, a brother and [sisters] reside in Pakistan. He stated he does not work and is financially supported by his wife who gets Centrelink payments, and the brother.
The applicant’s protection visa application showed travel to [various countries] in 2006, and to [Country 1] in August 2007.
Country information[1] shows that Pakistan is the sixth most populous country in the world with a population estimated to be around 193 million. Pakistan’s population is young, fast-growing, and rapidly urbanising. Pakistan is a Federal Islamic Republic comprising four provinces (Balochistan, Punjab, Sindh and Khyber Pakhtunkhwa), the Federally Administered Tribal Areas (FATA), and two autonomous regions, Gilgit-Baltistan, and Azad Jammu and Kashmir (AJK). The FATA is comprised of 7 tribal agencies: Bajaur; Khyber; Kurram; Orakzai; Mohmand; North Waziristan and South Waziristan. Approximately half the population of Pakistan lives in Punjab province, with around 27 per cent living in Sindh, 13 per cent in Khyber Pakhtunkhwa and six per cent in Balochistan. Less than five per cent of the population lives in the FATA and the Northern Areas of Pakistan collectively. Pakistan is ethnically and linguistically diverse with the largest linguistic groups being Punjabis (45%), Pashtuns (15%), Sindhis (14%), Seraikis (8%) and Mohajir (7.5%).
[1] The Department of Foreign Affairs and Trade (DFAT) report: DFAT Country Information Report Pakistan, 1 September 2017, [ of claims
The applicant claims to fear harm in Pakistan from Sunni extremists and militants including the Taliban. His key claims as summarised are:
·He is a moderate Sunni who has a political opinion against Islamic extremism, and he fears harm from Sunni extremists including the Taliban.
·He fears harm from extremist Sunnis who are on the management committee of the Mosque near his home and associated with the Muslim League, because he is a supporter of Shias.
·Once, in late 2005 he had brought Shias into his Sunni Mosque in Sialkot to pray and this caused a scuffle with members of the Mosque management committee. This angered committee members and some family members. He attempted to make a report to the police but the police told him the committee members are powerful and politically influential and said nothing would happen to him and it was better if he went home. Thereafter he was teased at the Mosque when he attended.
·Later, his refusal to donate for a celebration of a Sunni religious event Jashn-e Eid Milad ul Nabi (birthday of the Prophet) because he did not want to fund the Mosque, caused conservatives to warn him to stop his anti-Islamic activities and they threatened to accuse him of blasphemy and being a Shia. His uncles who were also members of the Mosque management committee were unhappy with him.
·He fears harm as a returnee from the West and as he has been westernized and does such things as drink alcohol.
The applicant has retracted claims he previously made. In a statement accompanying his 2008 Protection visa application, he claimed to fear harm from members of the Pakistan People’s Party because he had joined the breakaway Pakistan People’s Party (Shahid Bhutto Group) (PPP-SB). But in a statement dated [February] 2015 he retracted these claims. He stated that a Pakistani person he met shortly after he arrived in Australia told him he could apply for protection, prepared his application form and made the claim on his behalf, and he had persisted with the claim because the Pakistani person said he should not change it. The applicant confirmed this at the hearings. He told the Tribunal he had limited English and knowledge at the time and did what that person told him to do.
Evidence
The evidence before the Tribunal includes the following material:
·the applicant’s Protection visa application form lodged on [date] January 2014, which includes a statement of reasons for seeking protection in Australia
·passport pages of both old and current passports
·the Protection visa decision record (‘delegate’s decision’) dated [April] 2015, which is the subject of this review
·the application for review
·submissions dated [January] 2014, [September] 2016, and country information
·applicant’s statements dated [February] 2015, [September] 2016
·statements by his wife, brother, parents-in-law
·identity documents for the applicant, wife, children
On [September] 2016 the applicant appeared before the Tribunal, differently constituted by member 1, to give evidence and present arguments.
On 6 March 2018 the applicant appeared at my hearing to give evidence and present arguments. The hearing was conducted in English as the applicant spoke English fluently. At the start of the hearing I asked whether he was well and able to talk about his story, and he stated he was. During the hearing he appeared to fully understand questions and he gave coherent answers and explanations. I assess that he was competent to give evidence and had a full opportunity to put forward his story and arguments. The representative attended by phone link.
The Department had not issued a certificate under s438 of the Act.
Assessment of claims: credibility
The applicant claims to be a national of Pakistan. I sighted his Pakistan passport at the hearing and partial photocopies were made. All the available evidence, including the applicant’s oral evidence and familiarity with Pakistan, supports his claim to be a Pakistan national. Pakistan is therefore the receiving country when assessing his claims against the complementary protection grounds. Having considered the material before the Tribunal including the applicant’s evidence given at the hearing, I accept he has the claimed identity.
At my hearing I asked the applicant where he would go if he returned to Pakistan, and he said he would return to the family home in [Town 1] in Sialkot district. Country information[2] shows Sialkot district is a large and rich district in the north-east of Punjab province with a population of about four million and about 155 kms from Lahore. Sialkot is recognised as an industrial area with large manufacturing industries including being a centre for the production of sports goods and is the the second largest exporting city of Pakistan. The area of [Town 1] is a short distance to [Sialkot] city.
[2] Population, [>
The applicant’s claim to fear harm in Pakistan centres on his moderate religious beliefs. He claims a general fear of harm from Sunni extremists including the Taliban because he is a moderate Sunni who has a political opinion (actual or imputed) against Islamic extremism. He claims to particularly fear harm from extremist Sunnis who are on the management committee of the Mosque near the family home and who are associated with the Muslim League.
In late 2005 he brought Shias into the Sunni Mosque
In his narrative he came to the adverse attention of Sunni extremists on two significant occasions. The first occasion was in October or November 2005. The applicant claims he was standing at a [stall] in front of the Mosque on a Tuesday at about one or two o’clock and met a Shia friend called [Mr A] who was on his way to a Shia Mosque with two of [Mr A]’s uncles. He told his friend to come in to the Sunni Mosque to pray. During prayers men from the Mosque management committee told the Shias they were not allowed to be there and an argument ensued. The applicant knew the [three men] as they were volunteers who collected money and managed the affairs of the Mosque. The men grabbed the applicant by the collar and took him outside. But local people intervened and the applicant and friends were able to leave. The men said he was un-Islamic and they would punish him if he brought Shias into the Mosque again. When he attempted to make a report to the police he was told the committee members are powerful and politically influential and as nothing was going to happen to him, it was better if he just went home. Thereafter he continued to operate his [business] and to live in the family home. He sometimes went to Mosque and at times was teased about having brought Shias in, but he did not receive any direct threats and anyway, the Mosque management committee men did not talk to him very much.
At the hearings the applicant explained he invited the Shias into the Sunni Mosque as he had not realised there would be an argument. The Tribunal noted that Shias can pray in Sunni Mosques although they rarely do.[3] He agreed and stated there had been very few Shias in his village and many had now left the area. In sum, I cannot discount the possibility that this incident occurred. Nevertheless, the applicant had not breached any Islamic rule by accompanying Shias into the Mosque. Also, his evidence has been that he continued to go to this Mosque without difficulties beyond the occasional teasing from attendees there, albeit at my hearing he added that he tried to attend when the men were not there.
In July-August 2006 he refused to donate
[3] September 2017 DFAT report Pakistan
In his narrative a second significant incident occurred in July or August 2006. The applicant stated he had been approached on the street by a group of 15 men, including [the three men] who were collecting money for Jashn-e Eid Milad ul Nabi (birthday of the Prophet) celebrations. At my hearing he said he had in fact been walking to another Mosque at the time. He refused to donate because he was unhappy with the management committee and how they spent donations, and he told the men he would not give them money because there was no freedom in their Mosque and because of what they did to him previously. This led to an argument including him being called a Shia which he denied. Two days later the men complained to the applicant’s uncles who were also members of the Mosque management committee, and the uncles were not happy with him and told his father to speak to him. The father told him he should avoid those people. Thereafter the applicant continued to reside in the same area and attended a different Mosque a little bit further away. Many times when he passed by the Mosque the men verbally abused him and threatened to harm him because he was a non-Muslim, a Shia, and at my hearing he added that in fact he had actively avoided the first Mosque.
However, I have strong concerns with the applicant’s narrative and evidence about this occurrence because, as I pointed out, the Prophet’s birthday had been in April 2006 and next occurred in March 2007.[4] At the first hearing the applicant responded that they collected money all year, and at my hearing he said they collected money up to six months before. When I pointed out that in his story this happened in July or August 2006 which means it was more than six months before the Prophet’s birthday, he then responded that perhaps it happened in September 2006. I consider he tailored his evidence as I examined his story. It is difficult to accept that a large group from the Mosque was on the street soliciting donations for next year’s Prophet’s birthday that was in fact many months away. Also, in the applicant’s narrative it is difficult to accept he refused to donate money for the Prophet’s birthday because he was unhappy with the management committee yet had continued to pray at the Mosque during the many months after the occurrence. Indeed, the applicant’s attendance and prayers at the Sunni Mosque would ostensibly not have led the men to perceive him as being a Shia or a non-Muslim or to accuse him of blasphemy at that time.
[4] [ used with caution),[ [>
In sum, I reject his narrative and evidence about the incident in July or August 2006. I do not accept he refused to give money for the Prophet’s birthday to the men from the Mosque management committee because the men were extremists, or that he accused the men of using the money for other purposes, or that he told them he would not give them money because of what they did to him previously. I reject the narrative that flows from this incident: I do not accept the men called the applicant a non-Muslim or a Shia or threatened to charge him with blasphemy, or that they complained to the applicant’s uncles who spoke to the father, or that they verbally abused him on the street thereafter, or caused him mental pressure.
His residence in Pakistan until February 2008
In the applicant’s narrative the two significant occurrences in late-2005 and mid-2006 led him to being harassed by locals who were largely from his local Mosque. But his evidence is also that he remained living in the family homes in [Town 1] until he travelled to Australia. As I pointed out at the hearing, after the first occurrence he had visits in March 2006 to [three countries] and then returned to his home area in Sialkot. After the second claimed occurrence he travelled to Australia on a [Business] visa from [November] to [December] 2006, but he then returned to his home area, and he next travelled to [Country 1] from [date] to [date] August 2007, but he then returned to his home area. As I pointed out, after the claimed occurrence in mid-2006 he had resided in his home area for a year and a half without anything happening to him, and as well, he had travelled to Australia for business and then [Country 1] and each time had returned to his home area. His residence in, and return from overseas visits to Sialkot district in this period do not support his claims of having gained the sustained adverse interest and enmity of extremist Sunnis, men on the Mosque management committee, men associated with an extremist party, or anyone, and do not support his story of fleeing Pakistan as a result.
His retracted claims

As earlier discussed, in a statement accompanying his 2008 Protection visa application, he claimed to fear harm from members of the PPP because he had joined the breakaway PPP-SB. But in a statement dated [February] 2015 he retracted these claims. When I indicated my concerns that he had made false claims in his application he responded that a Pakistani person he met shortly after he arrived in Australia told him he could apply for protection, prepared his application form and made the claim on his behalf, and he had persisted with the claim because the Pakistani person said he should not change it. He submitted he had limited English and knowledge at the time and did what that person told him to do. Nonetheless, there was an expectation he was being truthful when he made the application. I find the applicant has fabricated claims in the application and this raises concerns with his credibility as a witness. I reject the claims of a political nature made by the applicant in the application.
Conclusion- credibility
In sum, taking all of my foregoing concerns together, I find unconvincing and do not accept his claim that in Pakistan he gained the sustained adverse interest and enmity of extremist Sunnis, men on the Mosque management committee, men associated with the Muslim League or other extremist party/group, or anyone. I find the applicant is not a credible witness and that he has concocted and embellished claims for the purposes of seeking Australia’s protection.
Having considered the claims and evidence, I accept his claims that:
·He is a moderate Sunni who has a political opinion against Islamic extremism.
·Once, in late 2005 he had brought Shias into his Sunni Mosque in Sialkot to pray and this caused a scuffle with members of the Mosque management committee. This angered committee members and some family members. He attempted to make a report to the police but the police told him the committee members are powerful and politically influential and said nothing would happen to him and it was better if he went home. Thereafter he was teased at the Mosque when he attended.

Having considered the claims and evidence, I do not accept his claims that:
·He fears harm from extremist Sunnis who are on the management committee of the Mosque near his home and associated with the Muslim League, because he is a supporter of Shias and/or is perceived to be a Shia or non-Muslim.
·His refusal to donate for a celebration of a Sunni religious event Jashn-e Eid Milad ul Nabi (birthday of the Prophet) because he did not want to fund the Mosque, caused conservatives to warn him to stop his anti-Islamic activities and they threatened to accuse him of blasphemy and being a Shia. His uncles who were also members of the Mosque management committee were unhappy with him.
Complementary protection
I considered whether on the evidence before me, 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.
Having considered the claims and evidence I find that the applicant is a Pakistan national. He is a mature, married Punjabi man who is a Sunni Muslim. He has his immediate family here and he comes from a family in Pakistan who live in their own home and his parents and siblings continue to reside in Sialkot district. He is well educated and has experience operating a business. He does not now claim to have undertaken political activities or joined a political party in Pakistan. I find that he arrived in Australia on [date] February 2008 and he has now been here for ten years.
As I discussed at the hearing, he is a Pakistan national who last departed Pakistan legally with a genuine Pakistan passport, and he now holds another genuine Pakistan passport. He will be able to travel to and enter Pakistan, and the way he departed Pakistan will not cause him any difficulties when he returns.
He has sought refugee status here and if he returns voluntarily he will be processed like any other returnee. If he is returned involuntarily he is likely to attract attention from the Pakistan authorities upon arrival. However, I note and accept the DFAT report[5] discussed at hearing that shows as he has not breached Pakistan laws and has not committed any offences in Australia, he would be questioned and most likely released within a couple of hours:
5.19 In practice, returnees tend to leave Pakistan on valid travel documents and therefore tend not to commit Pakistani immigration offences. Those who return voluntarily and with valid travel documentation are typically processed like any other citizen returning to Pakistan. Only those who are returned involuntarily or are travelling on emergency travel documents are likely to attract attention from the authorities upon arrival.
5.20 DFAT understands that those returned to Pakistan involuntarily are typically questioned upon arrival to ascertain whether they left the country illegally, are wanted for crimes in Pakistan, or have committed any offences while abroad. Those who left Pakistan on valid travel documentation and have not committed any other crimes are typically released within a couple of hours. Those found to have contravened Pakistani immigration laws are typically arrested and detained. These people tend to be released within a few days, either having been bailed by their families or having paid a fine, although there are provisions for jail sentences. Those wanted for a crime in Pakistan or who have committed a serious offence while abroad may be arrested and held on remand, or required to report regularly to police as a form of parole.
[5] September 2017 DFAT report, 5.19 to 5.21
In light of my credibility assessment I accept the applicant in late 2005 brought Shias into his Sunni Mosque in Sialkot to pray and this caused trouble with men in the Mosque and angered committee members and some family members. I accept that thereafter he was teased at the Mosque when he attended and he even may have adjusted the time at which he attended so that he avoided some of the men. But I do not accept that he had a further significant altercation with men from the Mosque, or that he suffered mental pressure in the area when he came in contact with the men, or that he feared the men and/or others in the community. I do not accept that his friendship with a Shia and his attitudes to Shias and the sole incident in late 2005 caused him to be perceived as a Shia or non-Muslim or caused him to be harassed and threatened as he claims. I do not accept that he gained the sustained adverse interest and enmity of Sunnis in the area (whether or not extremist), men on the Mosque management committee, men associated with the Muslim League or Taliban or other political/extremist groups, family members or anyone. Indeed, his residence in, and return from overseas visits to Sialkot district in this period do not support his claims of having gained such enmity, and do not support his story of fleeing Pakistan as a result.
If he returns to Pakistan it will be as a failed asylum seeker and he will be a returnee from a western country. At my hearing the representative submitted he will be perceived as wealthy and targeted. However, I note and accept the DFAT report[6] discussed at hearing that shows returnees are typically able to reintegrate into the Pakistani community without repercussions stemming from their migration attempt, and DFAT assesses that returnees to Pakistan do not face a significant risk of societal violence or discrimination as a result of their attempt to migrate, or because of having lived in a western country. The applicant would not return to Pakistan with much money if any, and his family there are not affluent. He comes from a family in an industrialised district of Punjab that in his words is financially doing okay and getting better and I am not satisfied there is anything in the applicant’s personal profile or experiences in Australia that will lead him to face repercussions stemming from his migration attempt or because he has lived in a western country or that will lead to him being perceived as wealthy. The DFAT report states:
5.21 Returnees are responsible for arranging their own onward transportation from their point of entry into Pakistan. Voluntary returnees may be eligible for assistance from the International Organisation for Migration. Involuntary returnees are not eligible for reintegration assistance. Returnees are typically able to reintegrate into Pakistani community without repercussions stemming from their migration attempt, although involuntary returnees who took on debt to fund their migration attempt tend to face a higher risk of financial hardship. DFAT assesses that returnees to Pakistan do not face a significant risk of societal violence or discrimination as a result of their attempt to migrate, or because of having lived in a western country.
[6] September 2017 DFAT report, 5.19 to 5.21
The applicant states that he is westernized and has spoken of his western attitudes to such things as alcohol. But as I discussed at the hearing, I note and accept the DFAT report[7] that assesses that individuals in Pakistan are not subject to the additional risk of discrimination or violence on the basis of having spent time in western countries or because of perceived western associations, despite a generally increasing conservatism and religiosity across the country. The September 2017 DFAT report stated:
3.139 Western influence is pervasive in many parts of Pakistan, particularly in large urban centres. Western films and music are widely available (though in many cases subject to censorship), and western-branded retail chains operate throughout the country. Both Urdu and English are official languages, and English is taught in many schools and is widely spoken among Pakistan’s elite. Many Pakistanis have relatives in western countries and many more aspire to migrate abroad. Those living abroad return to Pakistan frequently to visit relatives.
3.140 DFAT assesses that individuals in Pakistan are not subject to additional risk of discrimination or violence on the basis of having spent time in western countries or because of perceived western associations (such as clothing), despite a generally increasing conservatism and religiosity across the country.
[7] Paragraphs 3.139 and 3.140
While the applicant may have the western attitudes that he claims, ostensibly he would return to Pakistan as a married man and a practising Sunni Muslim. The lack of alcohol and ban applies to the whole community. As well, as an educated and mature man from a higher level of Pakistan society, who had been living an independent life and lifestyle for a very long time, and who had subsequently married and formed his own family away from the extended family, the applicant would ostensibly have more than usual freedom for self-expression on returning to Pakistan. At my hearing he stated his uncles had now all died and while he said the paternal side of the family is religiously strict, he explained his parents and siblings associated with the maternal side and had withdrawn from the paternal side. In sum, I do not accept that he faces a real risk of significant harm because of his western attitudes from Pakistan society, or his extended or immediate family members or anyone else, now and in the reasonably foreseeable future.
At the hearing I discussed the overall security situation in Pakistan and pointed out that country information[8] does not show there is a situation of generalised violence in Sialkot district. The applicant responded that there had been altercations between Sunnis and Shias in his home area and in particular a significant fight about two years ago where many people had been arrested, and as well some big attacks many years ago. But as I discussed, there were scant reports in recent years of serious occurrences and sectarian violence in his district. As I pointed out, the applicant is a Sunni and would not be caught up in any sectarian violence against Shias. Indeed, the applicant’s evidence is that his Shia friend has now left Pakistan and so that connection is now in the distant past. I acknowledge that country information shows there are militant and sectarian attacks throughout Pakistan, but despite the militant attacks and violence in recent years, country information shows that significant and effective military operations including counter-terrorism operations have been conducted throughout Pakistan and including in Sialkot. Indeed, the DFAT report at paragraph 2.37 stated that “the Pakistan Army announced Operation Radd-ul-Fasaad (the successor to Operation Zarb-e-Azb), a nation-wide anti-terrorism operation in accordance with the NAP, which has expanded the role of the army in counter-terrorism operations in Punjab province.” I consider that the reports of military and in particular counter-terrorism operations in Punjab and throughout Pakistan show the Pakistan government and military remain committed to addressing the terrorist problem into the reasonably foreseeable future. Additionally, as discussed at the hearing, attacks have largely and specifically targeted high profile targets and the risk that the applicant would be caught up in such an attack is remote. In sum, I find there is not a real risk that the applicant would be harmed in such a militant attack now and in the reasonably foreseeable future. As well, I do not accept there is a real risk his moderate Sunni religious beliefs will cause him significant harm in Pakistan now and in the reasonably foreseeable future.
[8] The monthly summaries of conflicts in Pakistan provided by International Crisis Group CrisisWatch, Pakistan, using filters for country and range of months, [ The summaries of conflicts and events in Pakistan provided by South Asia Terrorism Portal, using filters for country, region, and range of years, [ DFAT report Pakistan
He will be separated from his wife and children if he departs or is removed from Australia, and they remain in Australia. However, there is no material before the Tribunal that suggests his wife and their children would be unable to reside with him in Pakistan. If they choose to remain in Australia I do not accept that such separation constitutes significant harm to him now and in the reasonably foreseeable future.
At my hearing he stated he would definitely take his family to Pakistan as they could not manage without him. However, he stated the wife is from Sialkot district and she has relatives there. While the children would face difficulties, only the oldest is of school age, and all of the children are being raised as Sunnis. Ostensibly, the family would be able to live with the applicant and his family and integrate into Pakistan society. I do not accept there is a real risk his immediate family will attract adverse attention from anyone in Pakistan or cause him significant harm in Pakistan now and in the reasonably foreseeable future.
In light of my foregoing discussion and credibility findings, I find the applicant is not a credible witness and that he has concocted and embellished claims for the purposes of seeking Australia’s protection. When I consider the material before the Tribunal, all of the applicant’s personal circumstances and all of my findings about his narrative and evidence together and cumulatively, including the claims I do accept, I find unconvincing and do not accept his claim that in Pakistan he faces a real risk of significant harm now and in the reasonably foreseeable future. I do not accept there to be a real risk that the applicant will suffer significant harm from anyone as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan.
Request for referral to the Minister
The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.417 of the Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. The reasons for the request are related to the applicant’s marriage in Australia to an Australian national and their children.
His representative submitted that the applicant has not applied for a partner visa because the business visa on which he entered Australia was subject to a no further stay condition. When asked if he has sought to have the condition waived, the representative discussed the difficulties and indicated the applicant’s claims to complementary protection. When I asked the applicant, he said he had not as he had been told it would be expensive.
The representative asked the Tribunal to refer the matter to the Minister for consideration pursuant to s417 of the Act noting that the applicant has already made one Ministerial intervention request but not on the basis of his marriage and children. Whilst the Tribunal accepts the applicant’s wife and children may face hardship if the applicant has to depart Australia to apply for a partner visa it has decided not to refer the matter to the Minister as the applicant has other pathways open to him such as a request to the Department to waive the no further stay condition.
The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in PAM3 ‘Minister’s guidelines on ministerial powers (s345, s351, s391, s417, s454 and s501J)’ but has decided not to refer the matter.
The Tribunal notes that the applicant can still make a request directly to the Minister.
Overall Conclusion
Having concluded that the Tribunal has no power to consider the applicant’s claims against 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).
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.

C. Packer
Member

ATTACHMENT A – 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.

Refugee

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).

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.

Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

Complementary protection

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’).

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

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

Mandatory considerations

In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments 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.

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Citations

1506370 (Refugee) [2018] AATA 720

Cases Citing This Decision

Cases Cited

Statutory Material Cited

AMA15 v MIBP [2015] FCA 1424

[2018] AATA 720

6 March 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Appeal