1508457 (Refugee)

[2016] AATA 4375

1508457 (Refugee) [2016] AATA 4375 (5 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1508457

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Margie Bourke

DATE:5 September 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 05 September 2016 at 2:16pm

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, and has provided a copy of his Pakistan passport, applied for the visa [in]  March 2014 and the delegate refused to grant the visa [in]  June 2015.

3. The applicant appeared before the Tribunal on 1 September 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

   RELEVANT LAW

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.

   Refugee criterion

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. 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.

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

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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 criterion

15. 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’).

16. ‘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.

17. 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.

    Section 499 Ministerial Direction

18. 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.

19. For the following reasons the tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. The applicant submitted his claims in written form with his application and in additional written form a statutory declaration dated [in] May which was provided with a letter dated [in] May 2015, and in his oral evidence at the hearing. The tribunal has assumed the statutory declaration’s correct date is [May] 2015.  The applicant provided documents in support of his claims which included affidavits and police reports and photographs. The applicant had provided the tribunal with a copy of the Department’s decision record dated [in] June 2015.

21. The applicant came to Australia on a [particular] visa which was lodged [in] October 2013, and granted [in] February 2014. The applicant applied for the [particular] visa and provided supporting documents that he worked in the [work place] as a [occupation], and his duties included [a number of different tasks]. The applicant told the tribunal at the hearing that he was illiterate, and had never worked in an office and had never provided these documents to his agent had applied for the [particular] visa. The applicant stated he had no knowledge of the basis on which his agent had applied for the [visa].

22. The applicant stated that he had previously applied twice for a visa to [another country] through a different agent. He stated both these applications have been refused. The applicant stated he had applied for the [particular] visa because he wished for the opportunity to obtain a good job in Australia. The applicant stated he had been in Australia since March 2014 but he had not been able to obtain good employment. The applicant stated he had asked the agent to apply for the [visa] prior to the matters occurring that led to seeking protection in Australia.

23. The applicant stated that prior to coming to Australia he had lived in [Lahore] with his wife and children in house he shared with [Sibling 1].

    Outside his Country

24. The tribunal has considered the applicant’s passport and is satisfied that he is a citizen of Pakistan. The tribunal is satisfied that the application for protection was made in Australia. The tribunal is satisfied that the applicant is outside his country of nationality.

    Claims and Evidence

25. The applicant claims that he attended his local mosque in [Lahore] for prayers five times daily. He claims that in January 2014 he noticed a person who was not a regular attender for prayers who was acting suspiciously at the mosque. The applicant claims that on the third day he noticed this man outside the mosque talking into a phone, discussing the number of people at the mosque. The applicant claims that this man had a gun attached to his waist band.

26. The applicant states that he called the police on the local emergency number, ‘15’, and they attended within 10 to 15 minutes. The applicant states when the man saw the police he started walking away at a fast pace. In the hearing the applicant stated that the police asked who had called them to attend to the mosque, he stated that he had called the police and he pointed out the man who was walking away towards the main road. The applicant stated the police caught the man and place them in the police vehicle. The applicant stated he was standing near the police vehicle. The applicant stated when asked he gave the police his name and address.

27. When asked by the tribunal what time the applicant had seen the man on the previous two days when he had attended at any of the five times for his prayers, the applicant stated he could not remember. The applicant told the tribunal the name of the [mosque]. He stated he was unable to provide the name to the Department when he was interviewed because he could not remember it then. The applicant stated that he told the interviewer that it was near the [School]. The applicant stated at the mosque is in the same [area] as that school, but the school is usually referred to by the people the different name, the [name] School.

28. The tribunal has some concern as to why the applicant could not remember the name of his local mosque that he had attended five times daily, at the time he was interviewed by the Department. The tribunal also has some concern as to the explanation for why the applicant stated the name of the mosque in that interview was the [name] mosque. The applicant’s explanation that the mosque was near the [name] School which is in fact referred to by the people by different name, does not seem to be a plausible explanation for giving the wrong name to the Department interviewer for the mosque.

29. The tribunal also has some concern as to why the applicant had no recollection of what time of day he had seen the suspicious man on the previous two occasions.

30. The applicant stated three days after the incident at the mosque he was the travelling to [Sibling 2]’s place by motorbike when he was confronted by [men] on two motorbikes. In the hearing the applicant stated that he had decided to travel to a mosque near [Sibling 2]’s house. When the two motorbikes came in front of him he stopped suddenly and his bike fell over. In his statutory declaration the applicant had stated that he was walking to [Sibling 2]’s house at the time the [men] came up on the two motorbikes. He stated that the [men] started abusing him and in particular they said “[comment deleted]”. The applicant stated for this reason although he did not know who the men were and had never seen them before he thinks they were known to the man who was caught by the police at the mosque three days previously. The applicant stated that the men punched him to the face and they had guns with them.

31. The tribunal read out to the applicant part of paragraph 7 of his statutory declaration dated [in] May which was provided in his letter dated [in] May 2015, as follows:- “[details of statutory declaration deleted].”

32. The applicant initially stated that the lawyer wrote that paragraph. The tribunal discussed with the applicant that this statutory declaration was assumedly prepared on his instructions to the lawyer. The applicant stated that maybe the lawyer did not understand him or maybe he had not understood what the lawyer was asking him. The applicant stated he gave his instructions to the lawyer through an interpreter via the telephone.

33. The applicant stated that the [men] left on the two motorbikes when people who lived in the lane came out. The tribunal notes that in the application form the applicant had stated the men had tried to kill him. In his statutory declaration he had stated the men had punched and kicked him to the stomach, chest, head and face. In the hearing the applicant stated the men had punched him on his face.

34. The applicant stated that his family had encouraged him to lodge a police report which he did and he had provided this to the Department. The tribunal discussed with the applicant that the Department had recorded in its decision record that a document analysis expert had concluded that the police reports of this and the subsequent incident were fraudulent. The applicant stated he had provided to the first information report from [different] police stations. The applicant stated he had provided the original documents to the Department. The tribunal stated it did not have the original documents, but it seemed that identical marks on both documents had led to the document analysis expert concluding that they were fraudulent.

35. The applicant stated they are saying everything I say is false. The tribunal stated it was important for the applicant to discuss all his experiences with the tribunal.

36. The tribunal does have some concerns that the applicant has given inconsistent accounts that the  [men] were armed with guns and that they were not armed with guns in his oral evidence and his statutory declaration.

37. The applicant stated that after he came to Australia his house was attacked with gunshots. He stated he did not know who did this but he thinks the people might have belonged to the man who was arrested at the mosque. The applicant stated he did not know how many shots were fired. He stated [Sibling 1] was living in the house at the time and it was [Sibling 1] who made the report to the police.

38. The tribunal asked the applicant if there were any photographs of the house that showed more than just a small piece of wall with the marks. The tribunal indicated it was interested to know if there was anything that identified this wall as belonging to the house of the applicant’s family. The applicant stated the photos were taken with a mobile phone and not by an expert. The applicant stated he did not know that he was going to be asked about identifying the wall of the house.

39. Again the tribunal has some concerns that the document analysis expert advised the Department that the police reports were fraudulent. The tribunal gives the police report little weight as confirmation of the applicant’s evidence. The tribunal also gives the photographs of a wall that has been marked as little weight as confirmation of the applicant’s evidence that his family’s home was the subject of a firearm attack.

40. The applicant told the tribunal that he did not know who the man at the mosque, the [men] on the motorbike or the people who shot at his family’s house, were. He stated he did not know which organisation they belong to. The applicant stated they could be anyone. The applicant stated he thought they belonged to a banned organisation or a banned party.

41. The applicant stated that he could not rely on the authorities or the police to provide him with protection. He stated that the police must have disclosed his name and address to the men who approached him on the motorbikes and the men who fired the shots at his home. The applicant stated not only did the police failed to provide him with any protection but they actively placed him in this family in danger.

42. The applicant in his written claims had referred to his religion and his association with his local mosque. The applicant clarified in the hearing that he did not fear persecution because of his religion, namely that he identified as a Sunni Muslim. The applicant clarified in the hearing that he did not fear persecution because of his association with or attendance at his local mosque.

43. The tribunal discussed with the applicant that his wife and children and [Sibling 1] had moved to another residence in Lahore and his evidence was that there had been no further incident so it would appear that they had safely relocated within the same city. The tribunal asked the applicant to discuss why he could not safely return and lived at a different address in Lahore given that the people connected to the man at the mosque would not be aware at that address. The applicant stated that if he had to return to Pakistan he would have to provide his address when he gave his details for a current identity card as his had expired. The applicant stated that his wife and [Sibling 1] had a current identity card. The applicant stated that his wife and [Sibling 1] do not have the problem and therefore the fact that their address is recorded with their identity card has not caused them any difficulty.

44. The tribunal has some concerns that this evidence is not consistent with the applicant’s statutory declaration in which the applicant declares that his family has fled from the family home and are in hiding in another area of Lahore. In the statutory declaration the applicant states he does not want to reveal where his family are hiding for fear of them being found and killed.

1. The tribunal discussed with the applicant that he does not know who the group is, and he does not know what happened to the man at the mosque, and his family have lived safely since March 2014 in the same city, and upon his return there is no reason for him to provide his address to the police. The applicant stated that a problem could occur and asked the tribunal if it could guarantee his safety.

   Convention Reason

2. The tribunal has considered the evidence before it on which the applicant claims that he has a well founded fear of being persecuted.  The applicant claims that he fears persecution because of his actions in reporting a person acting suspiciously at his mosque. He also claims he fears persecution for reporting a person planning an attack against a Sunni Muslim mosque. He also claims he fears persecution for reporting a person attempting to commit a violent crime. The applicant also claims he fears persecution for trying to prevent religious based violence. These claims all come out of the same incident at the mosque [in] January 2014.

3. The applicant also claims he fears persecution because of his actions against either a banned organisation or against a terrorist or terrorist organisation and that he has received threats or being pursued by the banned organisation or the terrorist or terrorist organisation.

4. The tribunal has considered the applicant’s evidence and is satisfied that the applicant does not claim he fears persecution on the basis that he is a Sunni Muslim or on the basis of his association or attendance with his local mosque.

5. The tribunal is satisfied that the claims for protection are on the basis of being the member of a particular social group, namely a person who has reported another person acting suspiciously, reported a person planning an attack on a religious venue, reported a person attempting to commit a violent crime or a person trying to prevent religious based violence. The tribunal is satisfied that the common characteristic of this particular social group would be the fact the members of the group reported to authorities to try to prevent a terrorist or religious motivated attack or crime. The tribunal is satisfied that the applicant’s claims that he fears persecution because his actions against either the banned organisation or terrorist or terrorist organisations and that he has received threats or been pursued by the banned organisation or terrorist or terrorist organisation also result from the incident at the mosque [in] January 2014. The tribunal is satisfied that these other claims are on the basis that the applicant is the member of a particular social group, again that he is a person who has reported another person acting suspiciously, reported a person planning an attack on a religious venue, reported a person attempting to commit a violent crime or is a person trying to prevent religious based violence. For the second group of claims the tribunal is satisfied that the applicant is a member of a particular social group where the common characteristic is the members of the group reported to authorities to try to prevent a terrorist or religious motivated attack or crime.

6. For the reasons stated above the tribunal is satisfied that the applicant has set out a reason for the persecution that is a convention reason as defined within Article 1A(2) of the Convention.

   Well Founded Fear of Persecution

7. The tribunal has then considered whether the applicant has a well founded fear of persecution for the claims that he has made. The tribunal has considered the evidence before it and is not satisfied that the incidents occurred as described by the applicant. The tribunal has noted that the applicant was unable to provide the Department interviewer with the name of his local mosque, and the tribunal is not satisfied with the explanation for the failure to provide the name of the mosque in that interview. The tribunal has noted the applicant gave evidence he could not remember at what time of day he saw the suspicious man at the mosque on the two previous days prior to calling the police.

8. The tribunal has considered the evidence before it, including the different names given to the Department and the tribunal of the mosque and the school. The tribunal has considered the lack of other detail about the suspicious man, and the previous days at the mosque. The tribunal is not satisfied that the reporting of the suspicious man at the mosque occurred as the applicant claims [in] January 2014.

9. The tribunal has considered and given significant weight to the clear statement in the applicant’s statutory declaration that the [assailants] [in] January 2014 did not have guns. This was in sharp contrast to his evidence at the hearing in which the applicant stated that the assailants were armed with guns. The tribunal has also noted that in his evidence at the hearing the applicant stated he was riding a motorbike that fell over when he braked sharply the [men] on the two motorbike stopped in front of him. The tribunal has considered that in his statutory declaration the applicant stated he was walking to [Sibling 2]’s house [in] January 2014 not riding a motorcycle.

10. The tribunal has given consideration to the applicant’s evidence that he is illiterate, but he gave instructions to a lawyer by a telephone interpreter, and that possibly the lawyer misunderstood him or he misunderstood the lawyer’s questions. The tribunal has considered this, but does not accept this as an explanation for the inconsistency between the written and oral evidence of the applicant. The tribunal has considered the evidence before it, and based on the inconsistency of the applicant’s oral and written evidence the tribunal is not satisfied that the incident [in] January 2014 occurred at all.

11. The tribunal has considered the evidence of the applicant in relation to the shooting at the house and that [Sibling 1]’s [spouse] and children have had to move to a different location for their safety.  The tribunal has also considered the applicant’s written evidence in his statutory declaration that his family were in fear for their life, and consequently he could not disclose their current address. The tribunal has considered the photographs of the unidentifiable wall that has been marked. The tribunal does not consider that these photographs confirm there was any incident at the applicant’s family home, and therefore gives them no weight. The tribunal has considered the applicant’s evidence at the hearing that the family were not in danger at all, and that the danger related just to him. The tribunal has considered the applicant’s evidence in the hearing that his wife would be at risk only if she was in his company but that she was not at risk in Lahore at the current time.

12. The tribunal has also considered the evidence of the two affidavits made by the applicant’s [relative] and [spouse], stating that the applicant’s living outside of Pakistan due to threats and that his life is in danger. The tribunal has considered the evidence of the Department’s decision record.     

13. The tribunal has balanced all the other evidence before it and is not satisfied that the incident occurred in which the applicant’s family’s home was shot at and that the applicant’s family have had to move to a different location in Lahore.

14. The tribunal has considered the translated police reports provided by the applicant. The tribunal discussed with the applicant that the delegate had recorded in the Department decision record that a document analysis expert had assessed the police reports and advised the Department that the two police reports were counterfeit or altered. In this matter the tribunal has assessed the applicant’s evidence in relation to the incidents recorded in the police reports as not credible.  After considering the applicant’s lack of credibility and the analysis that the documents may be fraudulent the tribunal gives the two police reports no weight. 

15. After considering all the evidence the tribunal is not satisfied that the incident [in] January 2014 occurred as claimed, and that the incidents occurring [in] January 2014 or [in]  March 2014 actually occurred at all.

16. On the basis of the above the tribunal is not satisfied that the applicant has a well founded fear of persecution, or that he is likely to suffer serious harm of a systematic and discriminatory conduct. The tribunal is not satisfied that the applicant was the victim of any threat or assault prior to leaving Pakistan. The tribunal therefore finds that the applicant does not face a real chance of serious harm for a Convention reason, now or in the reasonably foreseeable future.  Accordingly, the tribunal is not satisfied based on the evidence before it that the applicant has a well founded fear of persecution if returned to Pakistan.

    Complementary protection

17. As the tribunal is not satisfied that the applicant meets the refugee criterion, the tribunal must consider whether the applicant is a person to whom Australia has protection obligations under the alternative complimentary protection criterion.

18. For the reasons set out above the tribunal is not satisfied that the incidents which the applicant claimed occurred [in] January 2014 and [in] March 2014 actually occurred. The tribunal is not satisfied that the applicant was the subject of threats or assaults from unknown persons on the road near [Sibling 2]’s house in Lahore. The tribunal is not satisfied that the applicant’s family’s home was fired at by unknown persons after the applicant had left Pakistan. The tribunal is not satisfied that the applicant is in any danger from any banned organisation or terrorist or terrorist organisation in Pakistan. The tribunal is not satisfied that assaults or threats have been made to the applicant or two members of his family. The tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Pakistan, there is a real risk that he will suffer significant harm.  

    Conclusion

19. On the basis of the above the tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations.

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).

22. 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

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

    Margie Bourke
    Member