1510128 (Refugee)

[2019] AATA 3339

1510128 (Refugee) [2019] AATA 3339 (21 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1510128

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Dr Colin Huntly

DATE:21 May 2019

PLACE OF DECISION:  Perth

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

Statement made on 21 May 2019 at 9:00am

CATCHWORDS

REFUGEE – protection visa – Pakistan – imputed religious and political beliefs – anti-Taliban – commercial activities an offence to the religious and political imperatives – experienced traveller – applicant had lawful and pre-existing right to enter and reside in US – applicant took no advantage of the US visa – telephonic threats – escalating persecution from criminal thugs – did not hold a genuine subjective fear of persecution – inconsistent claims – credibility issues – decision under review affirmed     

LEGISLATION

Migration Act 1958 (Cth), ss 36, 65

CASES

Efimcova v MIMA unreported, Federal Court of Australia, 4 September 1998
Iyer v MIMA [2000] FCA 52
Mehmood v MIMA [2000] FCA 1799
MIMA v Haji Ibrahim (2000) 204 CLR 1
MIMA v Khawar (2002) 210 CLR 1
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Primatchek v MIMA [2000] FCA 517
SZRTC v MIBP (2014) 224 FCR 570

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 and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Pakistan, applied for the visa on 20 May 2014 and the delegate refused to grant the visa on 16 July 2015.

3. Initially, this application for review was constituted to Member Goddier.  The applicant appeared before the Tribunal as previously constituted on 31 January 2017 to give evidence and present arguments.  When Member Goodier was not re-appointed, this application was re-constituted to Member Dr Huntly on 15 November 2017.

4. The applicant appeared before the Tribunal as presently constituted on 23 January 2018 to give evidence and present arguments.  Following three further submissions in June and July 2018 from the applicant, a new hearing was necessitated.  This was held on 15 August 2018, to again allow the applicant to give evidence and present arguments.

5. All Tribunal hearings were conducted with the assistance of an interpreter in the Urdu and English languages.

6. Following these hearings, consideration of this matter was impeded due to an extended period of sick leave imposed on the Member.  Further inquiries were then undertaken regarding the nature of the United States visa which formed the basis of the original delegate’s decision to refuse the visa application but which had expired through the effluxion of time on 10 April 2018.  These inquiries concluded on receipt of Department of Immigration and Border Protection correspondence dated 24 April 2019.

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

   RELEVANT LAW

8. The law relevant to this application for review is discussed at Appendix A to this decision.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether the applicant’s claims of holding a well-founded fear of persecution in Pakistan, now or in the reasonably foreseeable future for the essential and significant reason of his involvement [in Occupation 1] for NGOs in Khyber Pakhtunkhwa and Afghanistan engaged in [work in Occupation 1] prior to May 2014 by agents of the Taliban in Pakistan, engage Australia’s protection obligations under either the Refugees Convention as per s.36(2)(a), or the alternative criterion at s.36(2)(aa) of the Act. 

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

    Country of reference

11. According to the delegate’s decision record, the applicant claims to have arrived in Australia using a Pakistan passport.  Subsequent inquiries by the Department satisfied the delegate that the applicant is the person identified in a Pakistan passport bearing the personal identifiers of the applicant.  The Tribunal has had regard to the Departmental files upon which this finding was made, in particular, the “Identification Test: Protection Visa Applicant’s” declaration of an authorised officer dated 13 June 2014.

12. On the basis of the above evidence, the Tribunal finds that the applicant is a man born [date] and is a citizen of the Pakistan.

13. The Tribunal therefore finds that the country of reference and the receiving country, is Pakistan for the purposes of s.36(2)(aa) of the Act.

    Third country protection

14. The Tribunal notes that, at the time when the applicant applied for protection in Australia, the delegate found that the applicant held a valid entry visa for the United States.  That visa was issued to the applicant [in] January 2013 and was valid through to [January] 2018.  On the basis of that finding, the delegate in the first instance found that the applicant was not owed protection in Australia by virtue of s.36(3) of the Act which provides as follows:

    Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.

15. The Tribunal notes that, in SZRTC v MIBP the Full Federal Court unanimously held that a temporary period of residence contemplated by s.36(3) need not be linked with protection obligations owed to an applicant, and need not be co-extensive with the period during which protection obligations persisted in relation to an applicant by reason of the circumstances in his or her country of origin.[1]

    [1]SZRTC v MIBP (2014) 224 FCR 570 per Tracey and Griffiths JJ at [28], [33] and per Flick J at [43]. This rejected the approach of Lee J held in obiter in WAGH v MIMIA (2003) 131 FCR 269 at [34], namely that while the right to reside may not be permanent, it must be co-extensive with the period in which protection equivalent to that to be provided by Australia as a contracting state would be required, should not be followed.

16. It is of some utility here to extract the legislative history of s.36(3) provided in that case by Tracey and Griffiths JJ:[2]

    [2]At [15]-[19].

    15.  Section 36 of the Act relevantly provided that:

    “(1)There is a class of visas to be known as protection visas.

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugee Convention as amended by the Refugees Protocol;

    ...

    (3)Australia is taken not to have protection obligations to a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.

    (4)However, subsection (3) does not apply in relation to a country in respect of which:

    (a)the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or

    (b)the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.

    (5)Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that:

    (a)the country will return the non-citizen to another country; and

    (b)the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.

    (5A)Also, subsection (3) does not apply in relation to a country if:

    (a)the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and

    (b)the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.”

    16.  Sub-sections (3), (4) and (5) were added by the Border Protection Legislation Amendment Act 1999 (Cth). Sub-section (5A) was included by the Migration Amendment (Complementary Protection) Act2011 (Cth).

    17.  The Supplementary Explanatory Memorandum for the Bill which became the 1999 Act established that a purpose of the amendments then introduced (of which sub-sections (3)(5) form part) was to counter forum shopping by refugees who could find protection in countries other than Australia. Paragraph 5 of the Memorandum said that:

    “The purpose of proposed subsections 36(3), (4) and (5) is to ensure that a protection visa applicant will not be considered to be lacking the protection of another country if without valid reason, based on a well-founded fear of persecution, he or she has not taken all possible steps to access that protection.”

    18.  The Minister’s Second Reading Speech contained the following passages:

    “The Refugees Convention and Protocol have, from inception, been intended to provide asylum to refugees with no other country to turn to.

    Increasingly, however, it has been observed that asylum seekers are taking advantage of the convention’s arrangements.

    Some refugee claimants may be nationals of more than one country, or have rights of return or entry to another country, where they would be protected against persecution.

    Such people attempt to use the refugee process as a means of obtaining residence in the country of their choice, without taking reasonable steps to avail themselves of protection which might already be available to them elsewhere.

    This practice, widely referred to as ‘forum shopping’, represents an increasing problem faced by Australia and other countries viewed as desirable migration destinations.”

    19.  Paragraph 99 of the Explanatory Memorandum for the Bill which became the 2011 Act explained that:

    “The purpose of new subsection 36(5A) is to ensure that subsection 36(3) does not operate in relation to a person who could have sought effective protection in another country apart from Australia if the non-citizen has a well-founded fear that that country will return the non-citizen to a different country and the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to that different country.”

17. Helpfully, their honours also summarise the correct approach to be adopted by decision-makers in relation to an application for protection in the following passage:[3]

    The correct approach is, therefore, for the decision-maker to determine whether an applicant satisfies one or more of the criteria for a protection visa prescribed by s.36(2).  If the answer to that question is in the affirmative it is necessary for the decision-maker then to turn to s.36(3) and determine whether or not the applicant is a person to whom that sub-section applies. If it does not, the “gateway”, created by s.36(2) to the granting of a visa remains open and there is no occasion to consider whether one or more of the qualifications to s.36(3) applies. If s.36(3) is found to apply, the decision-maker must then determine whether one or more of the qualifications contained in sub-sections (4), (5) and (5A), which ensure that Australia’s international obligations under the Refugee Convention are met, limit the operation of s.36(3) and keep the “gateway” open.

    [3]At [25].

18. It is apparent from the judgement in the SZRTC v MIBP that the actual question before the Court concerned whether or not the applicants in question possessed a “right to enter and reside”.  It is further evident that the question before the Court in this instance arose in the context of international agreements between nation states and not the status of a visa which had been applied for and granted.  The following passage demonstrates the particular issue before the Court:[4]

    By s 36(3) Australia is deemed not to have protection obligations to a non-citizen “who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently” any third country.  The relevant question posed by the subsection is whether it can be said, having regard to all of the circumstances, that an applicant for a protection visa has a right (in the broad sense recognised by the Court in Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU[2013] FCAFC 91, (2013) 215 FCR 35) to “reside .... temporarily” in the third country. There is an obvious tension between the stability which is suggested by the word “reside” and the transience implied by the word “temporarily”.  That, however, is a tension which must be resolved on the facts in each case.  It is not a warrant for extending the meaning of “temporarily” such that it covers the whole of the period (which may or may not be able to be ascertained at the time at which the relevant decision is made) during which the applicant remains subject to persecution in his or her country of origin.

    [4]At [27].

19. Having made the foregoing observations, the Tribunal has had particular regard to the following passage of their Honours’ judgment relating to the specific situation where an applicant for protection does have a “right to enter and reside” in a third country which may be something less than a permanent right of residence:

    A finding that it was likely that the circumstances in the appellants’ home country which gave rise to protection obligations would persist or be likely to persist for more than six months would not, in our opinion, compel the conclusion that the appellants did not have a right to reside temporarily in the third country. On the contrary, we consider that the appellants’ right to enter other EAC countries and stay there for up to six months, constituted such a right.

    It would be open to a decision-maker, consistently with the provisions of s 36(3), to take the view that the appellants’ right to enter and reside in another EAC country for up to six months constituted a right of temporary residence. If the decision-maker so decided a question would then arise as to what was likely to occur at the conclusion of the six month period. One possibility might be that the third country would extend protection to the applicant if there was a basis for apprehending persecution of the applicant in his or her country of origin. Another possibility might be that the applicant could move on to another EAC country for a further six month period. If, however, at the expiry of the first six months, there was reason to expect that the third country would return the applicant to his or her country of origin or send him or her somewhere else where the applicant might have reason to fear persecution, the decision-maker would be required to determine whether or not subsections 36(4), (5) or (5A) were engaged. In this way the legislative purposes of avoiding forum shopping and ensuring that Australia’s protection obligations under the Refugee Convention were honoured would both be satisfied.

    In our view the Tribunal, in each case, applied the wrong test when it held that the temporary period of residence, contemplated by s 36(3), must be co-extensive with the period during which protection obligations persisted in relation to an applicant by reason of the circumstances confronting the applicant in his or her country of origin. This was a material error.

20. The Tribunal has had regard to the Departmental files on which the delegate based the decision of 16 July 2015 to refuse the applicant’s application for a Protection visa.  The Tribunal has also reviewed the applicant’s migration history and passport information.  It is clear from the available evidence that the applicant was, indeed, granted a valid [Temporary visa 1] on 18 January 2013.  As noted above in this decision, that visa expired by effluxion of time on 10 April 2018. 

21. The Tribunal also notes that, since the applicant’s [Temporary visa 1] was granted, the President of the United States issued a number of Executive Orders and Proclamations including; 6 March 2017, entitled “Executive Order Protecting the Nation from Foreign Terrorist Entry into the United States”; 24 September 2017 entitled “Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats”; and, 10 April 2018, entitled “Presidential Proclamation Maintaining Enhanced Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats”.  It appears, by reference to these sources that none of these executive instruments had the effect of disturbing the validity of the applicant’s US [Temporary visa 1] in that Country while it was valid.

22. The Tribunal accepts that the right to enter and reside in the United States afforded by the [Temporary visa 1] granted to the applicant [in] January 2013 was not permanent in nature.  The delegate noted that the maximum stay available to the applicant in that country under the relevant visa may only have been 6 months in duration.  However, it is clear from the above considerations, including the relevant judicial dicta, that the delegate was satisfied on reasonable grounds, that consistent with the provisions of s.36(3) of the Act:

    … the appellants’ right to enter and reside in [the United States afforded by his [Temporary visa 1] constituted a right of temporary residence.

23. Having found this, the delegate further found that the applicant would have been able, once inside the migration zone of the United States, to apply for protection in that country.  The delegate then considered the applicant’s evidence that he preferred to seek protection in Australia because of fears of persecution in the United States.  The delegate found that the applicant’s stated fear of persecution in the United States was not well-founded for the purposes of s.36(4) of the Act.  The delegate further found that, as a party to the 1967 Protocol to the Refugee Convention, there was no reasonable basis for accepting that the applicant would be refouled to Pakistan in the event that he sought asylum in the United States.

24. In light of the foregoing findings, the delegate found that the applicant was not eligible for protection in Australia on the basis that he had effective statutory protection in a third country for the purposes of s.36(3) of the Act.

25. The Tribunal notes that this applicant is an experienced international traveller.  Since 2006, he has successfully negotiated the visa requirements and/or migration processing systems of [various countries] (on multiple occasions) and the United States (as discussed above), all prior to his arrival in Australia.  Since that time he has also visited [Country 1] and [Country 2].  Accordingly, it is not plausible that a person with such extensive knowledge and experience of international travel and world affairs would take the trouble to apply for a visa to visit a country in which he had a genuine subjective fear of persecution. 

1. The Tribunal further notes that, when the Tribunal as presently constituted asked the applicant at a hearing why he chose to travel to Australia instead of the United States, he expressed his decision in terms of personal preference rather than in terms of any apprehension of persecution in that country.  Accordingly, the Tribunal finds that the applicant did not genuinely hold a subjective fear of persecution in the United States prior to arriving in Australia. 

2. In this respect, the applicant’s personal circumstances at the time of his departure from Pakistan (at least so far as they related to his valid authority to enter the US in the form of his [Temporary visa 1]) were sufficiently equivalent to those described by the Full Federal Court of Australia in its decision in SZRTC v MIBP discussed above, to inform a decision-maker assessing the applicability of s.36(3) to the applicant’s circumstances.

3. The Tribunal notes the foregoing and observes that the delegate’s findings above, relating to s.36(4) and (5) were reasonably made by the delegate in the circumstances which pertained at the time at which the decision was made. 

4. That is not to say that the Tribunal relies on those findings of the delegate in making a similar finding with respect to s.36(3) of the Act.  Rather, when the applicant entered Australia [in] May 2014, the Tribunal merely accepts as a matter of fact that the applicant had a lawful pre-existing right to enter and reside in the United States by virtue of a [Temporary visa 1] granted to him [in] January 2013.  It is, however, of some relevance to the present decision that the applicant did not attempt to avail himself of that pre-existing right to enter and reside.

5. Regardless of the historical fact of the applicant having possessed a right to enter and reside in the United States under his [Temporary visa 1] amounting to effective statutory protection in a third country for the purposes of s.36(3) of the Act prior to 10 April 2018, the Tribunal finds that he had no such right beyond that date.

6. Having regard to all the evidence, therefore, the Tribunal finds the applicant does not, at the time of this decision, have a right to enter and reside in a third country.  The applicant is therefore not excluded from Australian protection by the operation of s.36(3) of the Act.

   Applicant credibility issues

7. A number of aspects of the applicant’s application raise questions for the Tribunal with respect to the credibility of the applicant.  The legal principles relevant to the assessment of credibility in the context of an application for review are discussed at Appendix A to this decision.

   Assessment of Claims and Evidence

   Harassment by agents of the Taliban in Pakistan

8. The applicant’s claims for protection are based on what the applicant asserts is a well-founded fear of persecution in Pakistan, now or in the reasonably foreseeable future for the essential and significant reason of his involvement [in Occupation 1] for NGOs in Khyber Pakhtunkhwa and Afghanistan engaged in [work in Occupation 1] prior to May 2014 by agents of the Taliban in Pakistan.  To the extent that these threats may be characterised based on the submissions of the applicant, they appear to be due to the applicant’s commercial activities being offensive to the religious and political imperatives of the Taliban in Pakistan.  This may usefully be summarised as a fear of persecution for the essential and significant reason of the applicant’s imputed religious and political beliefs being antithetical to those of the feared agents of harm, namely, the Taliban in Pakistan.

9. The particulars of the applicant’s claims for protection were summarised as follows in a written submission made by the applicant’s representative on 30 January 2017:

   He set up his own company [in Mansehra] in 2007 where [provides services to] both boys’ and girls’ schools. He [got this work] from [Organisation 1] and [Organisation 2] – both of which are NGOs.

   …

   The Taliban are against the education for girls. They have come to know that the client [provided services for] schools for girls funded by the NGOs.  The client does not agree with Taliban’s ideology and their Islamic and political principles.

   They sent him 2 written messages, both demanding that he stops [providing the services to the] schools and to pay an extortion sum of [amount].

   The first written message was received in Oct 2012 and the second was 3-4 days later.  Both messages were dropped over the wall into his house yard in Mansehra.

   When he received the first written message, though concerned, he didn’t report to the police.  When he received the second written message he reported it to the police. But there was no action from the police.  The police report made [in] Oct 2012 has been given to the delegate during the interview.

   After about a few weeks later (Nov 2012), as he was driving back from his home in the village to his home in Mansehra, he was stopped by two armed men.  They forced him out of his car and one gunman pointed the gun to his head and the other armed man stood in front of him.  The armed men in front of him said the client ignored their warnings to not continue with the school projects.

   He (the client) was afraid and pleaded with them to spare his life and told them he would stop the work.  They then asked for the money they had demanded for.  He told them that he didn’t have that much money and after pleading with them that he could afford to pay only [amount], they released him and told him that they would let him know where to drop the money.  A week later, he found a note again inside his yard which was dropped over his wall fencing with instructions to drop the money in a bag near [a location].  He did as instructed.

   He did not take any more work from [Organisation 1]. But he continued to do work for [Organisation 2] because [Organisation 1] was local based but [Organisation 2] was based in Peshwar and Kabul.  He believed that the Taliban or their spies wouldn’t come to know about his work with [Organisation 2].  He was nevertheless very [cautious].  He got all the updates from his [staff] and [other people].

   However [in] April 2014, he received a few calls with some interruptions (the line wasn’t very clear and kept cutting off), but he could gather from the conversation that they warned him to stop [his jobs] but he ignored them.

   He lodged a police report the next day.  The police told him that they would send to the local police area to investigate and they would be in touch with him.  He waited for about 10 days but still there was no action from the police.  He then lodged a second police report [in] Apr 2014.  Both the police reports have been provided to the delegate at the interview.

   At the same time, because he didn’t feel the police could protect him from being harmed by the Taliban, he took precaution by moving to another house which he rented in Manshera.  He also moved his office from Mansehra city to [Location 1].

   Having still heard nothing from the police, he went [Organisation 3] to lodge a report.

   [In] May 2014 as he was driving home from visiting his in laws, he was shot at.  The left rear of the car at the passenger side of the car, the booth and the bumper were hit by bullets.  He didn’t stop but continued to drive and stopped near the shops where he felt it was safe enough to call the police.  The police arrived and took him and his car to the police station and then took him to where the incident took place.  Because it was at night the place was dark and nothing could be seen.  The police than took him back to the police station. He was in the police station the whole night.  The next morning the police took him again to the place of the incident.  After spending about an hour at the scene they sent him to his house.  His car was impounded in the police station for further investigations.

   At home his family and his wife’s family were waiting for him and everyone was concerned about his safety.  They all agreed that the police cannot protect him. He then decided to go overseas for a while until things cooled down.  His mother in law agreed to take his wife and [children] under her care until it was safe for him to return.  The same afternoon he packed a few clothing and took a bus to Lahore.  He arrived in Lahore that night. He stayed in a hotel for the night and the next morning he went to a travel agent and enquired about the earliest flight to Australia and US.  There were 2 options from the travel agent – if he wanted to go to Australia there was a flight the next day and if he wanted to go to US, there was a flight in 2 days.  Fearing for his safety and not wanting to hang around in Lahore, he bought the ticket to Australia and flew from Lahore to [one country] and to [Australia].

   Accepted integers of the applicant’s claims

10. Having had multiple opportunities to hear from the applicant at the hearing, and having reviewed the material on file that was submitted in support of the applicant’s claims, the Tribunal accepts the following matters asserted by the applicant in connection with his departure from Pakistan as being entirely plausible:

    a)Numerous individuals and sectarian and criminal agents of harm, including groups associated with the Taliban in Pakistan, are active in the Khyber Pakhtunkhwa.

    b)The Taliban in Pakistan oppose the education of girls.

    c)The Tribunal accepts that the applicant’s business activities in that region were common knowledge.

    d)The applicant’s business activities included [work in Occupation 1] in Mansehra, Khyber Pakhtunkhwa, including for both boys’ and girls’ schools under contract from NGOs including both [Organisation 1] and [Organisation 2]. 

    e)In 2012, the applicant received 2 written threats (purporting to be from agents of harm associated with the Taliban in Pakistan) in his house yard in Mansehra, Khyber Pakhtunkhwa.  The first written message was received in Oct 2012 and the second was 3-4 days later.  Both of the threat messages demanded that he stop [work in Occupation 1] and pay an extortion sum. 

    f)The applicant did not report the first written threat to the police. The applicant did report the second written threat to the local police.  The applicant asserts that the local police took no further action.  However, the Tribunal notes that the police records provided by the applicant demonstrate that there was an investigative response, but that this did not yield demonstrable outcomes.

    g)Sometime in November 2012, as the applicant was driving between his village and his home in Mansehra, his vehicle was stopped by two armed men.  They forced him out of his car and threatened him at gunpoint.  The applicant secured his release after he agreed to pay them and extortion demand.  A week later, the applicant found another note inside his yard with instructions where to drop the money.  He did as instructed.

    h)The applicant did not take any more work from [Organisation 1], but he continued to do work for [Organisation 2], which was based in Peshwar and Kabul, not in the region around his home village.

    i)[In] April 2014, the applicant received threatening telephone calls.  He lodged a police report the next day.  The applicant claimed that he was threatened by agents of harm associated with the Taliban in Pakistan.  The police told him that they would investigate. The applicant was not satisfied with the police response and lodged a second police report [in] April 2014. 

    j)The applicant then moved to another house in Manshera and relocated his office from Mansehra City to [Location 1], Khyber Pakhtunkhwa.  He also subsequently lodged a report with [Organisation 3].

    k)On the evening [in] May 2014 the applicant’s vehicle was shot at and hit in multiple places on the passenger side.  The police arrived soon afterwards, took him into protective custody, made some preliminary inquiries and released him to his house.  His car was impounded in the police station for further investigations.

    l)A number of local newspaper reports were published about this shooting incident and these include a photograph of the applicant standing next to his car.

    m)The applicant then decided to go overseas, in his words, “until things cooled down”.  His wife and [children] moved in with her mother until it was safe for the applicant to return.  The applicant travelled by bus to Lahore and, the next day he bought the ticket to Australia and flew from Lahore to [one country] and to [Australia].

    n)Since this time, the applicant’s wife and children relocated to live with the applicant’s father and currently reside in Abbottabad, Khyber Pakhtunkhwa.

    Country Information

11. The Tribunal notes that the most recent Department of Foreign Affairs and Trade (DFAT) country information report relating to persons acting in support of Human Rights and NGO projects in areas such as the Khyber Pakhtunkhwa provides as follows:[5]

    DFAT assesses that human rights activists and civil society actors who criticise the government and military, or who work on topics deemed sensitive, face a moderate to high risk of official discrimination including harassment and violence by security forces.  DFAT assesses human rights activists face a moderate to high risk of harassment and violence from militant groups.

    [5]DFAT, Country Information Report Pakistan (20 February 2019) at [3.184].

12. The Tribunal further acknowledges that available country information provides ample supporting evidence of the practice in the region of the Taliban in Pakistan and other armed militant groups of forcibly levying “arbitrary taxation and extortion” on locals with the imputed capacity to pay.[6]

    Credibility issues in the applicant’s narrative

    [6]Eg: Asylum Research Centre, Pakistan: Country Report - The situation in Pakistan, 18 June 2018, p89.

13. At the hearing with the Tribunal, the applicant was asked when he first began to hold a well-founded fear of persecution in Pakistan, now or in the reasonably foreseeable future for the essential and significant reason of his involvement [in Occupation 1] for NGOs in Khyber Pakhtunkhwa and Afghanistan engaged in [work in Occupation 1] prior to May 2014 by agents of the Taliban in Pakistan. 

14. The applicant stated that he held these fears from 2012 after he received the first written threats.  He claims that his fear can be demonstrated by reference to his subsequent payment of extortion money, modifying his personal behaviour and changed business focus from 2012.  The applicant’s representative submits that this behaviour modification by the applicant precludes the Tribunal from drawing any adverse inference from the applicant’s subsequent delay in leaving Pakistan.

15. The applicant has suggested that by shifting the focus of his [business] in regional Khyber Pakhtunkhwa to Kabul, Afghanistan (approximately 500km to the west), he would remove those business activities beyond the notice of the Taliban in Pakistan.  Given the regional activities of the Taliban in Pakistan as noted in the bulk of credible country information, and the applicant’s additional claims to fear harm throughout Pakistan and across the Afghanistan/Pakistan border region because of their interconnected networks of influence, the applicant’s assertion that shifting the focus of his [work in Occupation 1] from regional Khyber Pakhtunkhwa to Kabul to avoid the adverse attention of the Taliban in Pakistan is not credible.  

16. The Tribunal notes that the applicant’s own written evidence discounts his repeated suggestion that local police did nothing by way of investigation in response to the harassment and threat he claims to have experienced in Pakistan.  As noted above, it is apparent from police diary extracts provided by the applicant in support of his application for protection that local police did investigate these matters and that those investigations suggested that there was a direct link back to persons operating in Kabul, Afghanistan.  This is not consistent with the applicant’s narrative that he was at all times particularly targeted by agents of harm operating in the region around Mansehra.

17. The Tribunal also notes that the applicant has consistently stated that his reason for applying for and obtaining the US [Temporary visa 1] in the United States in January 2013 was for a holiday for himself personally.  This evidence, together with the fact that the applicant took no action to take advantage of this US travel visa is more consistent with the inference that the applicant did not subjectively apprehend any personal harm throughout 2013 and the early part of 2014.  Bearing in mind that the applicant’s departure in 2014 to Australia was alone and also by means of a Visitor’s visa equivalent to the type of visa he already possessed allowing him to travel to the United States.  The question reasonably arises, why was there a delay in fleeing harm if the applicant had already being targeted by such malign agents of harm over such an extended period.

18. The Tribunal further notes that the applicant also claimed that he left Pakistan urgently in early May 2014 without his wife and young family because of the telephonic threats of April 2014 and the shooting incident referred to above, [in] May 2014.  While the Tribunal acknowledges that this claim is plausible, it is also a fact that no attempt was made by the applicant between the events of 2012 (which he claims originally gave rise to a genuinely subjective fear of persecution), and May 2014 to either relocate his wife and young family to another part of Pakistan or to obtain any form of Travel visa for them to travel to any other third country.  This lack of provision for a young and vulnerable family in the context of the applicant’s wider narrative, implies that the applicant’s claim to hold a subjectively well-founded fear of persecution in Pakistan at the relevant time was not genuine.

19. When the Tribunal put to the applicant that country information suggests that the Taliban in Pakistan frequently target the family of their targets, he agreed and indicated that this was why he had arranged his wife and children to live under the protection of his father, and why his father had relocated away from their home village to Abbottabad. 

20. The applicant has also given evidence in a subsequent Statutory Declaration dated 23 August 2018, that his children are unable to attend school and that his wife and children are required to live in seclusion in Abbottabad as a result of the persecution that he claims to fear in Pakistan.  This suggests that the applicant apprehends that his wife and children are also targets of the same agents of harm in Pakistan whose adverse attention caused him to flee that country for Australia.  However, the applicant has also consistently stressed that it is only he personally who is being targeted by these criminal thugs.  That is why the applicant claims that his family are safe there without him in regional Khyber Pakhtunkhwa, Pakistan.  To date, the applicant has not adequately explained this inconsistency of narrative.

21. The Tribunal further notes that the applicant has travelled to visit his wife and children in [Country 1] and [Country 2] with Departmental approval since applying for protection in Australia.  On both occasions, the applicant’s family has returned to Pakistan.  This information gave rise to the applicant’s hearing with the Tribunal on 15 August 2018 and was discussed in some detail.  The Tribunal pointed out why these facts were inconsistent and why this raised concerns about the genuineness of his claims.

22. At the hearing, the Tribunal put to the applicant that there was considerable inconsistency in his evidence relating to the risks to his family in Pakistan.  This, together with their departures and returns to Pakistan suggests that they do not face persecution in that country by criminal thugs associated with the Taliban in Pakistan or from any other agents of harm for any reason.  The Tribunal also put to the applicant that he had given variable evidence about the vulnerability of both his wife and children and his father in Pakistan with respect to the claims that he had made relating to himself. 

1. The applicant once again stressed in his evidence that it was he personally who had the well-founded fear of persecution in Pakistan, now or in the reasonably foreseeable future for the essential and significant reason of his involvement [in Occupation 1] for NGOs in Khyber Pakhtunkhwa and Afghanistan engaged in [work in Occupation 1] prior to May 2014 by agents of the Taliban in Pakistan, not his immediate family.  This evidence has subsequently been reiterated in submissions made by the applicant’s representative.  These inconsistent claims by the applicant relating to the well-being of his family suggest that they lack credibility.  Further, rather than provide a clear rationale for his departure from Pakistan to Australia in 2014, the applicant’s inconsistent evidence in this respect is equivocal as to the circumstances of that departure.

2. In his Statutory Declaration of 23 August 2018, the applicant somewhat redundantly suggests that his wife and children have travelled in and out of the country covertly but have not sought protection outside of Pakistan because of the Convention signatory status of the countries visited.  The Tribunal is unable to determine the point that the applicant seeks to make in this respect, given the inconsistent nature of his evidence discussed above.  Either the applicant’s family is subject to persecution in Khyber Pakhtunkhwa and generally within Pakistan, or they are not.  If they are not subject to persecution, then particular precautions would be unwarranted and protection in a third country and internal relocation would not be an issue. 

3. If the applicant’s family held a well-founded fear of persecution in Khyber Pakhtunkhwa and generally within Pakistan when the applicant left as an experienced international traveller with apparent financial resources the question arises in the mind of a reasonably inquiring mind, why did he make no arrangements for his family to either leave with him in 2014 or shortly thereafter. 

4. In answer to these questions, the applicant referred to his arrangements in having placed his wife and children with her mother and then later with his own father in another city.  However, this is not an adequate answer if one accepts the applicant’s claim that his wife and children are at risk of harm at the hands of the same criminal thugs who could track his business activities to Kabul, Afghanistan and pursue him via networks of influence throughout Pakistan. 

5. It is a fact that the applicant has made arrangements for his own safe passage to a Convention state with only two days’ notice, under what he claims were circumstances of extreme urgency.  It is equally the case that the applicant has been able, since that time to make the necessary arrangements to subsequently meet them on two occasions in third countries for extended family holidays and for them to safely and willingly return to the same Pakistan. All of this is more suggestive of an absence of genuinely well-founded fear of harm in Khyber Pakhtunkhwa and generally within Pakistan accruing to the applicant’s young family than it is suggestive of any genuinely well-founded fear of harm in Khyber Pakhtunkhwa and generally within Pakistan.

6. The Tribunal also notes that no evidence has been provided by the applicant to suggest that he has ever inquired about seeking protection for his wife and children in any other third country.

7. The applicant claims to have experienced escalating persecution from criminal thugs associated with the Taliban in Pakistan before he left that country in 2014 and stretching back before 2012, this includes threatened abduction, assassination and actual extortion.  It is of some significance that, during this period, the only visa he applied for to visit another country was for himself alone for a holiday, and this was never used.  Bearing mind also that the applicant claims to have taken these same threats so seriously that he desisted from undertaking [work in Occupation 1] in Khyber Pakhtunkhwa and transferred his business activities to Kabul, Afghanistan.  The applicant also asserts that the same criminal thugs managed to track his business activities to Kabul, Afghanistan despite him taking these precautionary measures.  When the time came for the applicant to depart Pakistan, he did not do so using this pre-approved US travel authority, but instead took the additional time and effort to apply for a fresh travel authority to Australia at virtually no notice. 

8. Once again, it is significant to the Tribunal that the applicant took no steps to secure any form of travel authority for his wife and infant children to depart Pakistan.  This is despite the fact that, if the applicant’s evidence is to be accepted, he had been the subject to an escalating sequence of harassment and threat which had caused him to seek  [work in Occupation 1] in another country, modify his conduct and that of his family over a period of years previously.  This narrative is not consistent with the conduct of the applicant in securing a single person holiday visa for himself to the United States during the same time period and then, rather than availing himself of that facility, deciding at the last minute to travel to Australia without also securing a similar flexible travel authority for his wife and infant children.  It does not answer the credibility concerns of a reasonably inquiring mind considering these implausibilities, to suggest that adequate provision for his wife and infant children took the form of having them cared for in the same region by his wife’s mother.

9. Further, the applicant’s young and vulnerable family, now resident in Abbottabad, Khyber Pakhtunkhwa, Pakistan have remained in that location for a number of years, leaving Pakistan on at least two occasions to have family holidays with the applicant firstly in [Country 1] and then in [Country 2] after which they freely returned to that location without adverse incident.  While the Tribunal notes that the applicant states that this is due to precautions that have been taken in securing their wellbeing on the part of his extended family, however as noted above, the applicant has been inconsistent on this point.  It remains a fact that his immediate family have managed to live without incident in Pakistan while the applicant has been in Australia.

10. On balance, the conduct of the applicant and that of his family, discussed above, is not suggestive of an applicant fleeing persecution or holding any reasonably articulable fear at the hands of criminal thugs associated with the Taliban in Pakistan targeted at the applicant on account of his business activities in Khyber Pakhtunkhwa and Afghanistan.

11. The Tribunal raised the question of possible internal relocation within Pakistan with the applicant.  The Tribunal notes that the applicant declared the following in his Statutory Declaration of 23 August 2018:

    4)If I am forced to return, I will have to return to Manserah or Abbottabad because that is where my extended family members reside. My wife and I do not have any friends or family or relatives who live in other places in Pakistan.

    5)My view of Taliban cannot change. I completely disagree with what they are doing, and I fear I cannot abstain from promoting education, particularly for women and girls in Pakistan.

    6)I have also been exposed because my picture has been published in the media after the [May] 2014 shooting incident by the teller band. I had become an easy target because of this publication and because of the presence of the network all over Pakistan.

12. The Tribunal notes that this most recent submission by the applicant raises the question of social dislocation as an obstacle to relocation within Pakistan.  The Tribunal notes that such a challenge, in and of itself, does not amount to persecution.  Indeed, the Tribunal notes that the applicant himself chose a much more radical course when he departed to a foreign country, leaving his immediate family behind for an indeterminate time when he elected to relocate to Australia in May 2014.  It is apparent from this conduct of the applicant himself, therefore, that social dislocation has not been a material factor in his personal calculations to date.  Accordingly, the Tribunal does not accept this particular objection to internal relocation as being genuinely advanced by the applicant in connection with this application.  In making this finding, the Tribunal is not making a finding about the reasonableness of relocation for this applicant.  Rather, the Tribunal is making a finding about the credibility of the applicant’s evidence.

13. The Tribunal notes the applicant’s claim to hold secular political objections to the Taliban’s opposition to the education of women.  However, this suggestion appears to be of late invention.  The Tribunal accepts that the applicant has consistently referred to threats made against him relating to his [Occupation 1] business which was involved in [work in Occupation 1] (and that the Taliban in Pakistan opposes the education of women).  The Tribunal also notes the applicant’s representative referring in much more general terms to this philosophical objection in his submission dated 30 January 2017.  Nevertheless, the Tribunal takes particular note that the applicant’s most recent claim to have been staunchly “promoting education, particularly for women and girls in Pakistan” in the capacity of an advocate appeared for the first time in his most recent Statutory Declaration of 23 August 2018.

14. Such a late suggestion in such strenuous terms, with no corroboration beyond the applicant’s business having [worked] for NGOs in Pakistan and Afghanistan is implausible and lacks credibility.  Rather than embellish the applicant’s narrative, it is more in the nature of an evolving set of claims.  It would be reasonable for an applicant to hold such diametrically opposite secular political views to those of the Taliban to have articulated something of this nature in the first instance.  Further, this assertion is not consistent with the applicant’s other sworn evidence to the effect that he paid extortion demands to criminal thugs associated with the Taliban in Pakistan, relocated his [work in Occupation 1] away from his own region in response to intimidation or that his own children are educated discretely in Pakistan.  Accordingly, the Tribunal finds that this fresh claim by the applicant is not genuinely held by him.  The Tribunal further finds that this integer of his claims is without credibility and places no weight on this aspect of the applicant’s evidence.

15. With respect to the applicant’s assertion that his safety in Pakistan has been compromised by newspaper coverage of the shooting event of [May] 2014, the Tribunal notes that, if the applicant’s narrative is accepted, the perpetrators were aware of his identity (and the identity and residential address of his family in Pakistan to the present day) before the publications in question were placed into circulation.  The applicant’s claim to face particular harm due to newspaper coverage of the shooting event of [May] 2014 depends on factors that must be weighted in the context of the evidence taken as a whole.  On one assessment, these media reports merely provide evidence of his vehicle having been shot at by armed thugs on a single occasion, with the matter having been duly reported to local police.  To that extent, it is entirely consistent with a picture of generalised violence in Khyber Pakhtunkhwa and throughout Pakistan.

16. The applicant’s own evidence is that he left his home region after this shooting incident “until things cooled down”, not believing his young family to be at particular risk of harm and taking the trouble to apply for and exercise an entry right to Australia when he had a pre-existing entry right to the United States.  The applicant’s family have continued to reside in Pakistan in Abbottabad, Khyber Pakhtunkhwa without subsequent incident.  The Tribunal accepts the applicant’s evidence on those terms. 

17. The applicant also claims to have experienced harassment and threats from criminal thugs associated with the Taliban in Pakistan before 2012 and after that time.  The applicant selectively reported these matters to Pakistan authorities, not reporting his extortion and payments to the criminal thugs.  The applicant claimed that his reports to police were not investigated by police despite having provided evidence to the Tribunal that these reports were, in fact investigated.

18. The core question remains to be addressed, however, namely; does the applicant genuinely hold a subjective well-founded fear of persecution in Pakistan, now or in the reasonably foreseeable future for the essential and significant reason of his involvement  [in Occupation 1] for NGOs in Khyber Pakhtunkhwa and Afghanistan engaged in [work in Occupation 1] prior to May 2014. 

19. The Tribunal accepts that the applicant may have been harassed at criminal checkpoints by armed thugs while living in Khyber Pakhtunkhwa, the Tribunal also accepts that the applicant may have faced extortion threats and may have paid money to criminal thugs in response to such threats.  The Tribunal accepts that the applicant’s vehicle may have sustained damage by being struck by bullets while driving on regional roads near his remote home village.  However, this is not the threshold test for the purposes of a Protection visa.  The test that must be applied by this Tribunal is whether or not the applicant holds a well-founded fear of persecution in a receiving country for the essential and significant reason of either a Convention ground.  As McHugh J emphasised in MIMA v Haji Ibrahim the degree of harm that would be required to constitute persecution is not the only requirement.  What animates the harm is also of relevance:

    The Convention protects persons from persecution, not discrimination. Nor does the infliction of harm for a Convention reason always involve persecution.  Much will depend on the form and extent of the harm.  Torture, beatings or unjustifiable imprisonment, if carried out for a Convention reason, will invariably constitute persecution for the purpose of the Convention.  But the infliction of many forms of economic harm and the interference with many civil rights may not reach the standard of persecution.  Similarly, while persecution always involves the notion of selective harassment or pursuit, selective harassment or pursuit may not be so intensive, repetitive or prolonged that it can be described as persecution.[7]

    [7]MIMA v Haji Ibrahim (2000) 204 CLR 1 at [55].

20. With regard to the applicability of the complementary protections afforded at s.36(2)(aa) of the Act, the Tribunal notes in particular that the applicant claims that “nothing happened” in response his reports and complains to police in his local region.  As discussed above, the applicant’s own evidence to the Tribunal indicates that the local police did, in fact make inquiries on each occasion.  The Tribunal also notes that the applicant indicated that he did not report the extortion incident to local authorities.  Police inaction in such circumstances cannot be considered to be inadequate. 

21. As discussed above, the security conditions generally in Pakistan and Khyber Pakhtunkhwa in particular are not comparable to those existing in Australia, however, the type of incidents that the applicant has referred to in his claims appear to have been in the nature of risks faced by the population generally and not by the applicant personally for the purposes of s.36(2B)(c).  This appears to be the case whether the applicant’s conduct is considered as discussed above, or if one considers the available country information, including that provided in support of the applicant by his representative.  The Tribunal further notes that there is nothing in the evidence before the Tribunal to suggest that the applicant’s complaints and reports to local authorities were not received and investigated to the extent that they were reported to them by the applicant. 

22. The Tribunal also notes that, in MIMA v Khawar, Kirby J referred to Ward in support of the broad proposition that as a practical matter in most cases, save those involving a complete breakdown of the agencies of the state, decision-makers are entitled to assume (unless the contrary is proved) that the state is capable within its jurisdiction of protecting an applicant.[8]

    [8](2002) 210 CLR 1 at [115]. In A v MIMA [1999] FCA 116 (French, Merkel and Finkelstein JJ, 23 February 1999) the Full Federal Court characterised the presumption that ‘nations should be presumed capable of protecting their citizens’ as ‘a presumption without a basic fact’ and therefore as ‘a rule of law relating to the existence of a burden of proof [which] has no part to play in administrative proceedings which are inquisitorial in their nature’. Accordingly, the Court agreed with the trial judge that there was no foundation in authority or principle which should lead it to accept the existence of a presumption in terms of Ward. The apparent conflict between these cases may be explained by the different ways in which Kirby J and the Full Federal Court in A characterised the reference in Ward to the presumption of protection.

23. Consistent with this, the authorities make it clear that the Convention posits a reasonable level of protection that does not impose an impossible or disproportionate burden on the agencies of the state.  Thus, the Convention is not directed against the failure of a country to protect its citizens against random criminal behaviour, or a failure to act on insufficient evidence.  Nor would the Convention normally be engaged where state protection has not been sought, in circumstances where such protection might reasonably have been forthcoming.

24. In Mehmood v MIMA, Von Doussa J recognised that ‘[h]owever good the level of protection offered by a state might be, random acts of thuggery or other criminal behaviour cannot always be prevented, and hence absolute guarantees against harm are impossible in fact, and are not required in law to negative a real chance of persecution’.[9]  Similarly, in Primatchek v MIMA, Madgwick J acknowledged that no country can guarantee protection of its nationals, adding that ‘if there is insufficient evidence as to the identity of persecutors for law enforcement authorities to act on, then no matter how willing and capable such authorities may generally be of protecting a person against persecution, protection will fail. It is not against such irreducible failure to protect its nationals that the Convention is directed’.[10]

    [9][2000] FCA 1799 (von Doussa J, 12 December 2000) at [15].

    [10][2000] FCA 517 (Madgwick J, 24 March 2000) at [14].

25. In Efimcova v MIMA,[11] the Tribunal had found that the protection offered to the applicant against attacks made upon her by reason of her ethnicity was ‘effective’.  Although it was true that the state did not prevent a nasty assault upon the applicant, Burchett J recognised that such incidents can occur anywhere, and that when they occur police are frequently unable to detect the miscreant or miscreants, particularly when, as in that case, there is some delay before the police are brought into the matter.  The Tribunal finds that there is nothing from the evidence before it in this case to suggest that the applicant’s various reports to authorities in Khyber Pakhtunkhwa, Pakistan were not received and seriously investigated with a view to enforcing an appropriate criminal law.  It is particularly of note in this respect that the applicant’s own evidence is that he did not report all of the incidents of harassment and threat that he has raised in the context of this claim. 

    [11]unreported, Federal Court of Australia, Burchett J, 4 September 1998.

26. Rather than corroborate this core claim, the applicant’s conduct and evidence in multiple contexts raises significant unanswered implausibilities, inconsistences and illogicalities which have been articulated above.  These implausibilities, inconsistences and illogicalities lead the Tribunal to conclude that the applicant, even at the time of his departure from Pakistan in May 2014, did not subjectively hold a well-founded fear of persecution in Pakistan, now or in the reasonably foreseeable future for the essential and significant reason of his involvement [in Occupation 1] for NGOs in Khyber Pakhtunkhwa and Afghanistan engaged in [work in Occupation 1] prior to May 2014.

1. The Tribunal notes that it must make an assessment of the visa applicant’s credibility and the credibility of the applicant’s claims.  In this context, the Tribunal notes a number of relevant decisions of both the High Court and Federal Court of Australia.  In these and other decisions, the courts have made it clear that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings on credibility.  In this respect, the Tribunal notes Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan,[12] in which Foster J stated that “care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted”.[13] 

   [12](1996) 40 ALD 445.

   [13]At 482.

2. The Tribunal notes that it is required to give the benefit of any doubt to asylum seekers who are generally credible.  The Tribunal also notes the High Court judgment in Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors,[14] particularly the comments of Kirby J, where His Honour said:[15]

   It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the “real chance” of persecution ...

   [14](1996) 185 CLR 259.

   [15]At [25].

3. The Tribunal also notes that it is not required to accept uncritically any, or all allegations made by an applicant.  The Tribunal further notes that it is not required to have rebutting evidence available before it can find particular facts not to be made out.  There is no rule that a decision-maker cannot reject an applicant’s testimony on credibility grounds, unless there are no possible explanations for any delay in the making of claims, or for any other evidentiary inconsistencies. 

4. The Tribunal notes that a decision-maker is entitled to consider whether an applicant subjectively has a well-founded fear of persecution before examining whether such a fear is subjectively held or to proceed on the assumption that such a fear is held.

5. If the decision-maker finds on the evidence that the applicant does not have a genuinely held subjective fear there will be no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claims are satisfied.  The Tribunal notes that in Iyer[16] the Tribunal concluded that certain return visits to Sri Lanka from Australia were voluntary and supported a conclusion that the applicant did not have the necessary fear of persecution required by someone seeking refugee status.  The court in that case confirmed that the Tribunal had applied the direct principles concerning the applicant's fear of persecution and stated that it did not need to go any further in its analysis of the basis of the claim.  This decision was affirmed on appeal.[17]

   [16]Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]-[34].

   [17]Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also SDAQ v MIMA (2003) 129 FCR 137 at [19] per Cooper J.

6. The Tribunal also notes that if it makes findings that an applicant's claims are not credible, this may lead to the conclusion that the Tribunal does not believe the applicant held a genuinely subjective fear of harm.  Where this is the case, the Tribunal is not required to proceed to assess other aspects of the applicant’s claims. 

7. Accordingly, given the findings above relating to the significant unanswered implausibilities, inconsistences and illogicalities in the integers of the applicant’s core claims, considered individually and then cumulatively, the Tribunal finds that the applicant’s claim to hold a fear of persecution in Pakistan, now or in the reasonably foreseeable future for the essential and significant reason of his involvement as a [Occupation 1] for NGOs in Khyber Pakhtunkhwa and Afghanistan engaged in [work in Occupation 1] prior to May 2014 is not genuinely subjectively well-founded.

   Mental health issues

8. The Tribunal notes that the applicant and his representatives have consistently drawn attention to his mental health status.  In particular, in addition to the applicant’s own self-reports, the Tribunal has reviewed the brief therapeutic reports of his clinical psychologist.  The Tribunal particularly notes the report of [September] 2018 which diagnoses an adjustment disorder and indicates that the “stressors are the matters related to risk to his life in Pakistan and separation from his wife and children”. 

9. The Tribunal accepts that the applicant’s prolonged separation from his family is a cause of significant distress.  The applicant is clearly motivated by understandable paternal and matrimonial feelings.  This is demonstrated by his good faith efforts to re-unite with them in third countries while he had been residing outside of Pakistan.  It is evident that the opportunity to reunite with his family will resolve these stressors identified by his treating mental health specialist.  Accordingly, the Tribunal finds that there is nothing to suggest that the applicant has a subjectively well-founded fear of persecution in Pakistan generally or Khyber Pakhtunkhwa in particular for the essential and significant reason of his present mental health status now, or in the reasonably foreseeable future.

   Risk to life in Pakistan

10. As to the “risk to his life in Pakistan” the Tribunal has found above that these are not genuinely subjectively held by the applicant on the basis of the implausibilities, inconsistences and illogicalities in the integers of the applicant’s core claims.  Accordingly, while the Tribunal accepts that there is a generalised level of conflict and insecurity in Khyber Pakhtunkhwa, Pakistan that is not evident in Australia, the Tribunal does not accept that the applicant’s claim to hold a fear of persecution in Pakistan, now or in the reasonably foreseeable future for the essential and significant reason of his involvement [in Occupation 1] for NGOs in Khyber Pakhtunkhwa and Afghanistan engaged in [work in Occupation 1] prior to May 2014 for the purposes of s.36 of the Act is subjectively genuine.

    Conclusions

11. 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).

12. The Tribunal notes that if a person is found not to meet the refugee criterion at s.36(2)(a) of the Act, they may nevertheless meet the criteria for the grant of a Protection visa if they are a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has protection obligations, because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed from Australia to the receiving country, there is a real risk that they will suffer significant harm as per s.36(2)(aa) of the Act (the complementary protection criterion).

13. As discussed above in the assessment of the evidence, the Tribunal has found there are no substantial grounds for believing that as a necessary and foreseeable consequence of the applicant’s being removed from Australia to Pakistan there is a real risk that they will suffer significant harm now or in the reasonably foreseeable future.  The Tribunal notes that the threshold for the real risk element of the complementary protection criterion at s.36(2)(aa) of the Act is the same as that for the real chance test in the refugee criterion in s.36(2)(a) of the Act.  The Tribunal further notes that the necessary and foreseeable consequence element in s.36(2)(aa) of the Act attaches to the risk of significant harm rather than the actual occurrence of significant harm.

14. The Tribunal has carefully considered each of the integers of the applicant’s claims to fear serious harm discussed above with respect to his claim for refugee protection in the context of the complementary protection criterion relating to the real risk of significant harm at s.36(2)(aa) of the Act.  The Tribunal, therefore, finds there are no grounds for believing that as a necessary and foreseeable consequence of the applicant’s being removed from Australia to Pakistan there is a real risk that they will suffer significant harm for the purposes of s.36(2)(aa) of the Act, now or in the reasonably foreseeable future.

15. 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).

16. 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 criteria in s.36(2).

    DECISION

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

    Dr Colin Huntly
    Member

    APPENDIX A – RELEVANT LAW

18. 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

19. 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).

20. 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.

21. 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.

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

23. 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.

24. 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.

25. 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.

26. 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.

100.   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.

101.   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

102.   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’).

103.   ‘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.

104.   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

105.   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.

Applicant credibility

106.   The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility.  In this context, the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions.[18]  In these and other decisions, the courts have made it clear that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility. 

[18]Eg: Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.

107.   In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan,[19] Foster J stated that “care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.”[20]  Numerous decisions have endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. 

[19](1996) 40 ALD 445.

[20]At 482.

108.   The Tribunal has also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors,[21] and the comments of the High Court on the correct approach to determining findings on credibility.  Kirby J observed:[22]

[21](1996) 185 CLR 259.

[22]At [25].

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

109.   The Tribunal is not required to accept uncritically any or all allegations made by an applicant.  Nor is it required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out, or obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality.  In Chand v Minister for Immigration and Ethnic Affairs, the Full Court of the Federal Court observed that “where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved.  The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another.”[23]  Nevertheless, as Burchett J counselled,[24] it is necessary to:

[23][1997] FCA 1198 ( accessed 15 February 2017).

[24]In Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 at [5].

… understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies.  Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies.  The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.

110.   The Full Court of the Federal Court noted that “refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.”[25]  On this point, the Tribunal also takes into account the comments of Professor Hathaway in ‘The Law of Refugee Status’ (1991, Butterworths) at 84-86.  Nevertheless, there is no rule that a decision-maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies.[26]  Nor is there a rule that a decision-maker must hold a “positive state of disbelief” before making an adverse credibility assessment in a refugee case.  However, if the Tribunal has “no real doubt” that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong.[27]  In addition, if the Tribunal makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true.[28]  The Tribunal is also mindful of the observations of Gummow and Hayne JJ in Abebe v The Commonwealth of Australia:[29]

[25]In Sujeendran Sivalingam v Minister for Immigration and Ethnic Affairs [1998] FCA 1167 ( accessed 15 February 2017).

[26]Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9.

[27]Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 241 per Sackville J (with whom North J agreed).

[28]MIMA v Rajalingam (1999) 93 FCR 220.

[29](1999) 197 CLR 510 at [191].

… the fact that an Applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising.  It is necessary always to bear in mind that an Applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.

111.   An applicant does not have to show past persecution in order to demonstrate a well-founded fear of being persecuted.[30]  For example, depending on the circumstances, an applicant who belongs to a persecuted group might establish a well-founded fear even though the applicant has not personally suffered harm in the past.[31]  Consideration of whether such an applicant has a well-founded fear of harm may be necessary even if their account of past events is entirely disbelieved.[32]

[30]In Abebe v The Commonwealth (1999) 197 CLR 510, Gummow and Hayne JJ at [192] observed that ‘[r]egrettably, cases can readily be imagined where an applicant’s fear is entirely well founded but the particular applicant has never suffered any form of persecution in the past’.

[31]See Ponnundurai v MIMA [2000] FCA 91 (Burchett J, 11 February 2000) at [13] and [15] where the Court held that the Tribunal had erred in finding that there was no real chance of future harm on the basis of its rejection of the applicant’s claims of past harm, without considering whether the material before it as to the mistreatment of Tamils in Colombo showed the applicant’s fears to be well-founded in the future. This issue is discussed further below, under the heading ‘Consideration of general information about country conditions’.

[32]MZZJO v MIBP (2014) 239 FCR 436 in obiter at [40].

112.   The test for determining well-founded fear was enunciated by the High Court in Chan v MIEA.[33]The Court held that ‘well-founded fear’ involves both a subjective and objective element.  That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution for a Convention stipulated reason.  Justice Dawson stated in Chan’s case:

[33](1989) 169 CLR 379 at 396.

The phrase “well-founded fear of being persecuted...” contains both a subjective and an objective requirement. There must be a state of mind - fear of being persecuted - and a basis - well-founded - for that fear.[34]

[34](1989) 169 CLR 379 at 396. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ.

The subjective element

113.   The subjective element of ‘well-founded fear’ concerns the state of mind of the applicant. Whether an applicant has a genuine fear is a question of fact.  While the requirement of a genuine fear cannot be ignored, in many cases it will not be an issue.  The decision-maker is entitled to consider whether an applicant objectively has a well-founded fear of persecution before examining whether such a fear is subjectively held, or to proceed on the assumption that such a fear is held.[35]  However, if the decision-maker finds on the evidence that the applicant does not have a Convention based subjective fear, there will be no need to consider whether there is an objective basis for the claimed fear, or indeed whether other aspects of the Convention definition are satisfied.[36]  Conversely, if the decision-maker finds that there is no objective basis for a fear of persecution, there is no obligation to consider whether there is a subjective fear.[37]

[35]Emiantor v MIMA (1997) 48 ALD 635. In that case, the Court concluded that the Tribunal had assumed that the applicants had a subjective fear and therefore did not err. On appeal, the Full Federal Court (Emiantor v MIMA, unreported, Federal Court of Australia, Olney, Sundberg and Marshall JJ, 20 July 1998) found that although there was no express finding, in disbelieving the applicants’ evidence, the Tribunal must have concluded that they did not have a subjective fear. See also Khan v MIMA [2000] FCA 105 (Sundberg J, 15 February 2000) at [25], and Melhem v MIMA [2000] FCA 1617 (Goldberg J, 13 November 2000) at [22]. In S273 of 2003 v MIMIA [2005] FMCA 983 (Driver FM, 14 July 2005), the Court commented at [10] that an inquiry as to subjective fear is often unnecessary and difficult.

[36]See SZQNO v MIAC [2012] FCA 326 (Katzmann J, 3 April 2012) at [48] and Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]-[34]. In Iyer, the Tribunal had concluded that certain return visits to Sri Lanka from Australia were voluntary and supported a conclusion that the applicant did not have the necessary fear of persecution required by someone seeking refugee status. The Court confirmed that the Tribunal had applied the correct principles concerning the applicant’s fear of persecution and stated that it needed to go no further in its analysis of the basis of the claim. On appeal, the Full Federal Court affirmed that once the Tribunal rejects an applicant’s claim that there is a subjective fear, it is not necessary to determine whether the non-existent fear was well-founded: Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also SDAQ v MIMIA (2003) 129 FCR 137 in which Cooper J, at [19], found that the question of objective fear does not even arise if no subjective fear arises on the facts of the case. Finkelstein J, dissenting, found at [38] that the Convention does not require an applicant to correctly specify the precise reasons as to why he or she has a well-founded fear of persecution, see also Carr J at [33]. However, in Firuzibakhsh v MIMA [2002] FCA 982 (Mansfield J, 9 August 2002) the Court expressed the view that the subjective fear should be identified by an applicant (although not necessarily expressed in the language of Article 1A(2) of the Convention) and that the Tribunal is not required to speculate about subjective fears of an applicant for a protection visa: at [56]. Even if the Tribunal does not make an express finding that an applicant has no subjective fear of harm, findings that an applicant’s claims are not credible may ‘lead to the conclusion that the Tribunal did not believe that the applicant had a subjective fear of harm’, in which case the Tribunal is not required to go on to assess other aspects of the Convention definition: SZSSQ v MIBP [2013] FCCA 1762 (Judge Nicholls, 31 October 2013) at [38] and [48].

[37]SAAD v MIMIA [2003] FCAFC 65 (Cooper, Carr and Finkelstein JJ, 11 April 2003) at [38]; Selliah v MIMIA [1999] FCA 615 at [40].

114.   The relevant question is whether the applicant has a present fear of a risk of harm in the reasonably foreseeable future.  A past lack of fear or trepidation is not necessarily inconsistent with a well-founded present fear of future harm.[38]

[38]SZDGB v MIAC [2006] FMCA 341 (Driver FM, 24 March 2006) at [19]. The issue of a past lack of fear may arise in circumstances such as where an applicant leaves but then returns to the country where they claim to have a fear of persecution, as was the case in SZDGB.  However, this may not necessarily be inconsistent with the existence of a subjective fear, if, for example, the circumstances of the return were not such as to trigger the form of harm that he or she fears: see SZQUP v MIAC [2012] FMCA 276 (Raphael FM, 4 April 2012) at [40] where the applicant’s claims related to a fear of discrimination on the basis of her HIV positive status, but at the time of her visit to the Ukraine she was asymptomatic. Note also obiter comments of Driver FM in SZKMI v MIAC [2007] FMCA 1140 (Driver FM, 17 July 2007) at [8] that the Convention requires fear be assessed in terms of an ‘apprehension’ of harm, rather than in the sense of ‘trepidation’.

115.   Note that although a well-founded fear in a subjective sense is necessary, it can, in the case of a child, be derived from the fear held by his or her parents. According to the courts, to conclude otherwise would be to exclude from Convention protection, those who may be most in need of its protection - children and the intellectually disabled.[39]

[39]Chen Shi Hai v MIMA (unreported, Federal Court of Australia, French J, 5 June 1998), per French J at 14. Approved by Kirby J in Chen Shi Hai v MIMA (2000) 201 CLR 293 at [77] ff.

The objective element

116.   The phrase ‘well-founded’ adds an objective element to the requirement that an applicant must in fact hold a fear.  For a fear to be well-founded, there must be a factual or objective basis for that fear.[40]  Thus, ‘a well-founded fear’ requires an objective examination of the facts to determine whether the fear is justified.[41]

[40]Chan v MIEA (1989) 169 CLR 379 per Gaudron J at 412; see also per Dawson J at 396, Toohey J at 406 and McHugh J at 429. As Dawson J stated at 396, ‘Whilst there must be a fear of being persecuted, it must not all be in the mind; there must be a sufficient foundation for that fear’.

[41]Chan v MIEA (1989) 169 CLR 379 per McHugh J at 429.

117.   Assessment of the objective element will usually involve consideration of general information about conditions in an applicant’s country, as well as an assessment of the applicant’s own claims in light of any material provided in support of such claims.

Rejection of corroborative evidence

118.   Applicants may put forward various types of evidence to corroborate their claims, including reports from professionals such as medical doctors, psychologists and social workers, oral or written evidence from friends, family and associates attesting to the truth of the applicant’s claims, and various forms of documentation and other evidence.  The issue that most commonly arises in respect of such documentation is the authenticity or reliability of the corroborative evidence.

119.   The Tribunal must properly consider corroborative evidence, even if it then rejects that evidence.[42]  For example, in SZNIL v MIAC the Court concluded that the Tribunal failed to properly consider a corroborative document by dealing only with the facts corroborated by the letter and not the opinion.[43]  However, in comparison, in MIAC v MZYZA the Federal Court did not consider that the mention of document fraud during the hearing was insufficient to lead to a conclusion that the Tribunal actually decided that a letter was fraudulent where there was no further reference to that letter within its Findings and Reasons.[44]  In upholding the Minister’s appeal, the Federal Court accepted that it would be inappropriate to draw the inference that the letter had not been considered where it had been referred to and the applicant questioned on its contents.  Whatever the Tribunal’s reasons were for not referring to it further, the Federal Court was of the view that it could not have been inferred that the contents of the letter had not been considered.

[42]SZGKX v MIAC (2007) 94 ALD 604.

[43]SZNIL v MIAC [2009] FMCA 883 (Raphael FM, 9 September 2009).

[44]MIAC v MZYZA [2013] FCA 572 (Tracey J, 14 June 2013) at [47] – [48].

120.   The relevant factors in relation to corroborative evidence include first, the cogency of the evidentiary material and, second the place of that material in the assessment of the applicant’s claims.  For example, in MIAC v SZRKT the Federal Court found the Tribunal did not consider an academic transcript and, second, the matter to which that transcript went to founded the Tribunal’s rejection of the applicant’s claims, on the basis that he had been untruthful.[45]

[45]MIAC v SZRKT (2013) 212 FCR 99.

According little or no weight to the evidence

121.   Where corroborative evidence tendered by an applicant is rejected as of no weight because it is dependent upon and can be shown to be undermined by findings as to the applicant’s credibility, procedural fairness does not require the Tribunal to first put to the applicant that the evidence may be so regarded.[46]  This is simply an example of the general proposition that procedural fairness does not require the Tribunal to invite comment upon its thought processes on the way to its decision.[47]

[46]WAGU v MIMIA [2003] FCA 912 (French J, 29 August 2003) at [36]; see also WACOv MIMIA (2003) 131 FCR 511 at [41], NAAK of 2002 v MIMIA (2004) 3 FCR 663 at [31] and WAJR v MIMIA (2004) 204 ALR 624 at [56]: “It may be that procedural fairness would not require the Tribunal to invite comment prior to finding no more than that it was not satisfied about the reliability or genuineness of particular documents”.

[47]WAGUv MIMIA [2003] FCA 912 (French J, 29 August 2003) at [36] and WAEJ v MIMIA (2003) 76 ALD 597.

122.   Accordingly, corroborative evidence may be rejected after properly considering the material.[48]  Alternatively, it is also open to the Tribunal to first assess an applicant’s credibility and then, in light of that assessment, consider what weight to give to corroborative documents.[49]  For example, in MIAC v SZNSP the Federal Court commented that, in circumstances where the provenance of a document is unproved but it is proffered by a witness whose credibility has been destroyed, the document has no more credit than the person proffering it.[50]  As a result, the Court found that the Tribunal did not act irrationally by giving no weight to a potentially corroborative witness statement which had been provided by an applicant who lacked credibility.

[48]BRGAN of 2008 v MIAC (2009) 112 ALD 617 at [25].

[49]Re MIMA; Ex Parte Applicant S20/2002 (2003) 198 ALR 59 at [49]; MIAC v SZNSP (2010) 184 FCR 485 at [37]. This approach was followed in SZNXI v MIAC  [2010] FMCA 535 (Barnes FM, 30 July 2010); AZAAY v MIAC [2010] FMCA 903 (Lindsay FM, 19 November 2010); SZONR v MIAC [2011] FMCA 89 (Nicholls FM, 3 March 2011) at [37], [54], [57] and [88]; SZRRM v MIAC [2013] FCA 809 (Katzmann J, 13 August 2013) and SZTND v MIBP [2015] FCA 115 (Collier J, 24 February 2015).

[50]MIAC v SZNSP (2010) 184 FCR 485 at [36].

123.   However, note that the Federal Court in SZNYF v MIAC also observed that it may be possible for evidence of an applicant before the Tribunal to result in adverse credibility findings but nonetheless the applicant be the genuine recipient of, in this case, a valid summons.[51]  In this case, the Court found that the Tribunal erred in failing to consider whether the applicant had been the subject of a valid summons and explaining why it decided to place no weight on the document.

[51]SZNYF v MIAC [2010] FCA 839 (Collier J, 10 August 2010) at [26].

124.   The question of weight to be given to a document is a matter for the Tribunal.[52]  In MIAC v SZJSS, for example, the plurality of the High Court found no error in the Tribunal giving ‘no weight’ to documentary evidence produced by the respondent, which it accepted as genuine, on the basis that its content was undermined by the respondent’s own evidence.[53]  The High Court held that the value of the documents was a question on which reasonable minds may differ and that the Tribunal’s preference for other evidence over the documents could not be said to constitute a failure to take into account a relevant consideration, or a failure to respond to a substantial argument or to result in a conclusion that was manifestly irrational or unreasonable.[54]

[52]MIAC v SZNPG (2010) 115 ALD 303 at [24].

[53]MIAC v SZJSS (2010) 243 CLR 164) at [33] – [37].

[54]See also MZYUV v MIAC [2013] FCA 498 (Gordon J, 28 May 2013).

125.   Similarly, in MIAC v MZYHS the Federal Court found that it was for the Tribunal to determine the weight to be given to an expert psychologist’s opinion, having regard to the other evidence before it that supported or undermined the supposed facts on which the opinion was said to be based.[55]  Given its ‘major concerns’ with the respondent’s credibility, it was open to the Tribunal to find that, insofar as the report and the other evidence tended to corroborate the respondent’s account, they were to be given little if any weight.

[55]MIAC v MZYHS [2011] FCA 53 (Kenny J, 31 January 2011) at [31].

126.   A corresponding example can be seen in MZYJN v MIAC[56] which concerned the manner in which the Tribunal dealt with a police report, in giving some but reduced weight to the report and yet rejecting the point to which the report was directed.  The Court found the Tribunal probably intended that in balancing and assessing all of the evidence, the police report was not sufficient to overcome the impression gained by the Tribunal from the applicant’s evidence.  However, note that the Court commented that the Tribunal could have more clearly expressed this in its findings and reasons to demonstrate it was engaged in a balancing exercise.

[56]MZYJN v MIAC [2011] FCA 548 (North J, 12 May 2011).

127.   Before the Tribunal decides what weight to give to a document, it need not, and should not be encouraged to, first find an applicant to be a liar because it is sufficient to conclude that the claims have not been made out.[57]

[57]MIAC v SZNPG (2010) 115 ALD 303 at [24].

128.   However, further enquiries may be appropriate before rejecting corroborative evidence.[58]  For instance, in MZYID v MIAC[59] the Court held the Tribunal erred in rejecting a witness statement as a forgery and not contacting the overseas witness on a telephone number provided.  The Court found the Tribunal failed to properly have regard to a statement by the applicant’s solicitor that she had spoken to the witness, and he had agreed to make himself available to give evidence.  Although, note in contrast, that in SZRPM v MIAC[60] the Court found the Tribunal was not obliged to make inquiries with witnesses, in relation to corroborative documents as its reasons for not doing so was on probative material which supported the conclusion that it would not be of relevant utility to do so.  It is also noteworthy that the Tribunal made no findings as to fraud or even forgery in relation to the documents in this case and instead its findings were that the documents did not contain truthful information.

[58]SZMWI v MIAC (2009) 111 ALD 160.

[59]MZYID v MIAC [2010] FMCA 749 (Burchardt FM, 8 October 2010) at [39].

[60]SZRPM v MIAC [2012] FMCA 1142 (Nicholls FM, 3 December 2012).

129.   After weighing a particular piece of evidence against other material, the Tribunal is not obliged to reach a different conclusion simply because that evidence supports an applicant’s case.[61]

[61]MIAC v SZNPG (2010) 115 ALD 303 at [25]. The Full Federal Court observed at [26] that jurisdictional error is not established where the reasons for rejecting corroborative evidence are briefly expressed.

130.   Where the Tribunal has reached a tentative conclusion that an applicant’s claims have been fabricated, the Tribunal is entitled to reject evidence which would, if accepted, have corroborated the applicant’s account.[62]  However whether corroborative evidence can be rejected out of hand depends upon the nature, content and quality of that evidence.[63]  See for example SZNYF v MIAC[64] where the Federal Court found that the Tribunal erred in its consideration of an official document bearing the seal of the relevant authority that on its face appeared to be genuine.

[62]MIAC v SZNSP (2010) 184 FCR 485 at [36].

[63]MIAC v SZNSP (2010) 184 FCR 485 at [36].

[64]SZNYF v MIAC [2010] FCA 839 (Collier J, 10 August 2010).

Rejection of evidence on the basis of fraud or fabrication

131.   Where corroborative evidence is rejected on the basis of a positive finding of fraud, forgery, fabrication or on some other positive basis which has never been put to the applicant, there may be a breach of procedural fairness.[65]  See for example, WZANF v MIAC[66] where the Court found the Tribunal failed to comply with s.425 because it did not allow an applicant the opportunity to make submissions or raise arguments on the authenticity of critical documents containing relevant material.  The Court found their authenticity was not clearly put in issue by requiring an original document to verify a copy, there was nothing on the face of the documents to indicate that they were not authentic or to cast doubt on their authorship, and the documents were not inconsistent with the applicant’s account.  In contrast, however, the Full Federal Court in MIAC v SZMOK[67] found there was there was no procedural unfairness in the Tribunal’s treatment of the applicant’s evidence as the Tribunal made it abundantly clear to the respondent that it did not believe the very late claim he was making, was reluctant to give him time to provide further material and that even if documents were provided, the Tribunal may not accept them.  In doing so, the Full Federal Court noted that there was no general rule that the Tribunal could not make a finding that a document was not genuine without specifically referring the applicant to its concerns about the document.

[65]WAGU v MIMIA [2003] FCA 912 (French J, 29 August 2003) at [36] followed in SZBZN v MIMIA [2006] FMCA 27 (Raphael FM, 18 January 2006) at [11]. See also MIMIA v SZEBA [2005] FCAFC 216 (Wilcox, Branson and Merkel JJ, 7 October 2005) at [25] - [26] in which the Court held the Tribunal denied procedural fairness when it failed to offer reasons why a medical certificate presented in support of the respondent’s claims had been found to be false or prepared according to his instructions and failed to put the question of the authenticity of the document to the respondent for comment.

[66]WZANF v MIAC [2010] FMCA 110 (Lucev FM, 24 February 2010) at [60]–[61], [81], [130].

[67]MIAC v SZMOK (2009) 257 ALR 427.

132.   Where it is thought that corroborative evidence has been concocted, and in that sense affects the applicant’s credibility, fairness would require that before such a finding is made the person so accused be given the opportunity of answering it.[68]  In SZGTZ v MIAC[69] the Tribunal refused to give weight to corroborative statements from the applicant’s mother and uncle because it found they were a ‘self-serving fabrication written expressly for the purpose of enhancing the applicant’s claim to be a refugee’.  The Court found that the Tribunal was duty bound to raise with the applicant its concerns that the documents were a fabrication and ask him to comment upon them.

[68]WACOv MIMIA (2003) 131 FCR 511 at [53]. See also NATS v MIMIA [2005] FMCA 221 (Driver FM, 16 March 2005) and QAAR v MIMIA [2005] FCA 1818 (Greenwood J, 13 December 2005).

[69]SZGTZ v MIAC [2007] FMCA 1898 (Raphael FM, 19 November 2007).

133.   Further, where the finding of fact does not turn upon an applicant’s credibility and where there is nothing on the face of the documents themselves to alert the decision-maker that they are forgeries, it is likewise inherently unfair to conclude that they are not genuine without affording the applicant the opportunity of dealing with such a conclusion.[70]

[70]WACOv MIMIA (2003) 131 FCR 511 at [54]; SZBZN  v MIMIA [2006] FMCA 27 (Raphael FM, 18 January 2006) at [10].

Statutory duty to disclose adverse information

134.   Section 424A of the Act imposes a statutory obligation on Migration and Refugee Division of the Tribunal to give to applicants, in writing, ‘particulars’ of certain information which is adverse (in the sense that it would be the reason or a part of the reason for affirming the decision under review) and to invite applicants to comment on, or respond to, it.[71] 

[71]SAAP v MIMIA (2005) 228 CLR 294 per McHugh, Kirby and Hayne JJ (Gleeson CJ and Gummow J dissenting).

135.   The obligation to disclose information that would be the reason, or part of the reason for affirming the decision under review, contained in s.424A may be discharged orally at the hearing, or in writing.

136.   Where s.424A applies, the Tribunal is required by s.424A(1) to:

·     give to the applicant clear particulars of information that the Tribunal considers would be the reason, or a part of the reason for affirming the primary decision; [72]

[72]The word, ‘clear’, was inserted by the Migration Amendment (Review Provisions) Act 2007 and only applies to review applications lodged on or after 29 June 2007.

·     ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of it being relied on in affirming the primary decision;[73] and

[73]The words, “and the consequences of it being relied on in affirming the decision that is under review”, was inserted by the Migration Amendment (Review Provisions) Act 2007 and only apply to applications lodged on or after 29 June 2007.

·     invite the applicant to comment on or respond to it.[74]

[74]The words, “or respond to”, was inserted by the Migration Amendment (Review Provisions) Act 2007 and only apply to review applications lodged on or after 29 June 2007.

137.   The Tribunal is also required by s.424A(2) to:

·     give the information and invitation to the applicant by one of the methods specified in s.441A; or

·     if the applicant is in immigration detention, by a method prescribed for the purposes of giving documents to such a person.