1511476 (Refugee)

1511476 (Refugee) [2018] AATA 3139 (31 July 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1511476
COUNTRY OF REFERENCE:                  Pakistan
MEMBER:Linda Symons
DATE:31 July 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 31 July 2018 at 5:10pm
CATCHWORDS
Refugee – Protection Visa – Pakistan – Fear of harm from authorities – Actual or imputed political opinion – Member of the Mutehada Qoumi Movement – Country information does not support applicant’s claims – Witness credibility – Significant inconsistencies in evidence – Significant time spent in Australia before applying for protection – Decision affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 424AA, 499
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 29 July 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Pakistan, first arrived in Australia [in] April 2010 as the holder of a [student] visa. On 5 August 2011, he was issued with a further [student] visa. He departed Australia [in] October 2011 and returned [in] December 2011. On 19 April 2012, he was issued with a Bridging visa. This visa expired on 7 June 2012 and he thereafter remained in Australia as an unlawful non-citizen. On 28 March 2013, he was issued with a Bridging C visa that was valid until 17 April 2014 and on 17 April 2014 he was issued with another Bridging C visa that was valid until 20 March 2013. On 26 February 2015, he was issued with a Bridging C visa in association with his application for a Protection visa.
The applicant applied to the Department of Home Affairs (the Department) for a Protection visa on 20 February 2015. The delegate refused to grant the visa on the basis that he is not a person in respect of whom Australia has protection obligations. On 21 August 2015, he applied to the Tribunal for a review of that decision.
The applicant appeared before the Tribunal on 23 March 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
The issues that arise on review are whether the applicant is owed Australia’s protection under the refugee criterion or under the complementary protection criterion.
CRITERIA FOR A PROTECTION VISA
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, he or she 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.
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 because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS
Applicant’s claims
The applicant’s claims in his application for a Protection visa are summarised as follows:
·He was born on [a particular date] at Karachi in Pakistan. He travelled to Australia in April 2010 on a Student visa.
·Although he came to Australia on a Student visa, his main purpose in doing so was to protect his life which was in danger in Pakistan.
·Sometime in 2006 and also some time in 2008 he joined a political party in Pakistan called the Mutehada Qoumi Movement (MQM). The aim of this political party is to assist and voice the concerns of ordinary citizens in relation to government abuses and neglect. This abuse is not limited to arbitrary detention, political imprisonment, abuses, corruption, nepotism, ethnic imbalances of resources et cetera.
·The MQM is a non-violent movement and believes in equal rights. They spread their message through talkback shows, hunger strikes and sit down protests in public places. As the movement gained popularity and increased in size, the MGM decided to open branches in other parts of Pakistan. This was done to increase the presence of the MGM in all district headquarters in Pakistan.
·When the government found out about the expansion, they started targeting the MQM by refusing permits for holding community meetings and events. The government argued that MGM was hampering the peace and causing havoc and should therefore not be allowed to carry on its activities.
·The Police and the Military were ordered to “lambast” MGM officers. He and other colleagues were present when some of these incidents took place. When they questioned the security personnel as to why this was happening they were told that it was an order from above. He responded that they were an opposition party and had a genuine concern about the Pakistani people. They responded that as he was the person they had sent, they were going to teach him a lesson he would never forget. He became scared and terrified. Despite being worried, he continued with the party as he believed in their vision.
·At some time the government forces started targeting young members of the branch offices like him. This was to prevent the party from growing as young people were attracted by the MGM ideas and philosophies. The security forces went to his home dressed in civilian clothing and asked for him pretending he was their best friend. A MGM member, who happened to be around, told his family members not to provide them with details of his location as they would risk losing him forever. As they could not find him, they started targeting and threatening his family. They threatened them that they would kill them if they did not tell them where he was.
·In [2009], he was arrested for “holding an unlawful protest in order to create civil unrest”. He believes that the protests were held lawfully as per the strict orders that were given.
·On [a particular date later in] 2009, when he was on his way to [a particular location], two unknown men on a motorcycle ambushed him and started firing live bullets. At first he thought there were fireworks but when he saw them he ran for his life and was able to escape unharmed. This incident took place at [a particular time of day] and he was unable to identify the men involved. He knows that they are government hired killers as he was told that by reliable members of the MQM.
·He reported this incident to the Police. The Police took a statement and referred the matter to the Prosecutor. When they realised he was a member of MQM, they dismissed the case without any further investigations. As time went by and due to his active involvement with the MQM, his life was “frequently targeted”. Because of the threats and “near misses attacked” (sic) he became fearful of his surroundings. This led to many episodes such as sleepless nights, fear of the dark, haunting dreams and flashbacks. He found it difficult to wake up. He then decided to leave the country.
·He had a conversation with a friend and decided to apply for a Student visa. He confided his problems to his friend, who worked as an agent, and his friend informed him that the only place he could to go to was Australia as they valued human life.
·After coming to Australia in 2010 he undertook [Course 1] for one year. He then enrolled in a [Course 2] but, due to the high fees, changed to another College. The first College reported him and his Student visa was cancelled. He informed the Department of his situation and that he was still studying at a different college. He was unable to finish his course on time and his COE expired. He applied for an extension of his visa in 2013 but was rejected because his course was not completed.
·He cannot return to Pakistan because he is fearful for his life and has no doubt that he would be killed if he did so. The people who were targeting him are in the Security Forces and the current government also dislikes the MQM. His life is in danger. He requests that the Australian government allow him to stay in Australia.
The applicant has provided the Department with copies of his Pakistani passport, Birth Certificate, a Pakistan Driving Licence, a newspaper article dated [in] 2009 in relation to him, a Police Clearance Certificate, his Mastercard, two newspaper articles dated 2 November 2012 and 11 January 2015 and an article dated 11 March 2015 in relation to MQM, a Statement of Marks, a Secondary School Certificate Examination, two Provisional Certificates, an IELTS Test Report Form, a Confirmation of Completion and a Confirmation of Attendance dated [in] May 2011 from [a particular learning institution] and a [Course 1] from AIC.
The applicant attended an interview with the Department on 21 July 2015. During that interview, he re-iterated and expanded on his written claims. He made new claims that he was kidnapped on three occasions, reported the first incident to the Police but did not report the second and third incidents. He claimed that his family was verbally threatened by government and other forces. He stated that his father is employed [in a particular profession].
On 29 July 2015, the delegate found that the applicant is not a person in respect of whom Australia has any protection obligations.
The applicant has filed with the Tribunal copies of his Pakistani passport, an article dated [in] 2009 in [Newspaper 1] in relation to him, an MQM Identity Card in relation to him and country information in relation to the MQM.
On 23 March 2018, the Tribunal received written submissions from the applicant’s migration agent. In his written submissions, he made a number of new claims. The new claims are summarised as follows:
·The applicant is experiencing sleepless nights and flashbacks due to his pending visa application. His mental stress and fears pose a risk for him as he is not entitled to adequate medical treatment if he returns to Pakistan and was previously refused medical treatment on many occasions for no good reason.
·The applicant will be denied protection and access to basic health services, which would enable him to live a dignified and fulfilling life in Pakistan, and without which he would struggle to subsist.
·The applicant will suffer some form of harm if he returns to Pakistan as he will not be able to access protection and proper medical services to assist him with his “current health predicament”.
·The applicant will face irreparable harm to his health and welfare if he returns to Pakistan. His freedom and social life will be impacted and may lead to the deterioration of his predicament.
·Medical facilities in Pakistan only service the wealthy and as the applicant cannot afford adequate medical services this will result in an untimely death.
·The applicant is still in hiding from the Pakistani authorities who were looking for him. It is unreasonable for him to relocate within Pakistan as it would place him at greater risk of being discovered by the Pakistan government.
·The applicant cannot rely on protection from the Pakistani government as he is still in hiding to avoid prosecution for seeking protection in Australia.
·The applicant is still being pursued by the Pakistani authorities as he initially left Pakistan to study in Australia. He will be imprisoned or interrogated if he returns to Pakistan.
·The applicant believes that the Pakistani government is aware of his presence in Australia and will arrest him on his arrival in Pakistan. He will be exposed to practises of torture.
·The applicant will not have the financial standing to pay any fine that may be imposed on him if he returns to Pakistan and such a punishment would be degrading.
·The applicant has been absent from Pakistan for some years and has not been able to retain or develop the necessary skills for him to acquire meaningful employment in Pakistan. His ability to earn an income will be further reduced as a result of discriminatory treatment because of his political association with the MQM. He will not be able to subsist.
Receiving country
The applicant claims to be a citizen of Pakistan and has provided a copy of his Pakistani passport to the Department and the Tribunal. In the absence of any evidence to the contrary, the Tribunal finds that he is a citizen of Pakistan. The Tribunal finds that Pakistan is his receiving country for the purpose of assessing his claims for protection.
Third country protection
There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.
Assessment of claims
The applicant gave evidence that his application for a Protection visa was prepared by his migration agent based on his instructions which were true and correct. He stated that he is satisfied that his visa application is accurate and complete. When asked whether there had been any changes in his circumstances since he filed his visa application, he responded no other than the fact that he applied for work rights.
During the hearing, the Tribunal discussed with the applicant his background, his family, his education, his employment, where he lived in Pakistan, his reasons for leaving Pakistan, his studies and employment in Australia and why he fears returning to Pakistan. The Tribunal found aspects of his evidence to be inconsistent, implausible and unconvincing. There were significant omissions in his visa application and contradictions in his evidence. He made new claims throughout the process. His conduct was not consistent with his claims. The Tribunal formed the view that he is not a witness of truth for the following reasons.
First, the applicant claimed in his visa application that he became a member of the MQM in 2008, because of his active involvement in the MQM he was targeted and persecuted by the Pakistani authorities, he fears for his life if he returns to Pakistan and has no doubt that he will be killed. He has provided to the Tribunal a copy of a MQM member Identity Card. It indicates that it was issued to him [a particular date in] 2008, contains his name, date of birth, his father’s name, his occupation as a student and his photograph.
During the hearing, the Tribunal discussed with the applicant his membership of the MQM, his knowledge of the MQM and his involvement in the MQM. He gave evidence that he became a member of the MQM in 2008. He stated that he never voted in Pakistan. He stated that he was issued with an ID card when he turned 18 years so he could vote. He then stated that he was issued with the ID card in 2006. He stated that he has never voted because there were no elections between 2006 and 2010 when he left Pakistan.
The country information indicates that a General Election was held in Pakistan on 18 February 2008 and that the voting age in Pakistan is 18 years.[1] The applicant turned 18 years [a particular date in] 2006. The General Election in Pakistan on 18 February 2008 took place [a period of time] after he was issued with a membership card for the MQM. The Tribunal would expect that, if he was a member of the MQM, was actively involved with the MQM as he claims and was eligible to vote, he would have voted for this party in the General Election on 18 February 2008. His failure to do so raises serious doubts about his credibility and the veracity of his claims.
[1] Election Commission of Pakistan. (>
Second, the applicant was represented by a migration agent at the time he lodged his application for a Protection visa on 20 February 2015 and throughout the process. In his visa application, he set out his claims for protection. He made no claims about being abducted in his visa application. He made this claim for the first time during his interview with the Department on 21 July 2015. During that interview, he claimed that he was kidnapped on three occasions, reported the first incident to the Police but did not report the second and third incidents. He has not provided any explanation for why he did not make these claims in his visa application.
During the hearing, the Tribunal discussed these claims with the applicant. He stated that he was kidnapped on two occasions. He stated that the first incident was between 2008 and 2009 and the second incident was a couple of months later. He stated that he did not report either of these incidents to the Police. The Tribunal put to him the information he gave the Department about his abductions during his interview, pursuant to s.424AA of the Act, and noted that his failure to mention any abduction in his visa application and the subsequent inconsistencies in his evidence about the abductions raised concerns about his credibility and the veracity of his claims.

The applicant responded that too much time has passed and he cannot remember exact dates and times. He stated that he said he may have been abducted on two or three occasions and cannot remember accurately. He stated that he is stressed, a lot of things have happened in his life. He stated that these things happened and he told them it happened. The Tribunal accepts that he may have been stressed about the uncertainty of his immigration status in Australia and the process of applying for and obtaining a Protection visa. However, the Tribunal does not accept that this explains his failure to mention in his visa application that he had been abducted on two, or alternatively three, occasions. If these events had occurred, they would have been significant events in his life and not incidents he would be likely to forget. The Tribunal would expect him to present his best case in his visa application, particularly as he had the assistance of a migration agent to do so. His failure to mention that he had been abducted in his visa application raises concerns about his credibility and the veracity of his claims.
Third, during his interview with the Department on 21 July 2015, the applicant claimed that he reported the first abduction to the Police but not the second and third abductions. During the hearing, he claimed that he did not report either of the two abductions to the Police. The Tribunal put to him the information he gave the Department about reporting the first abduction to the Police, pursuant to s.424AA of the Act, and noted that the inconsistencies in his evidence in relation to whether or not the abduction/s were reported to the Police raised concerns about his credibility and the veracity of his claims. He responded that during his interview with the Department he was asked whether he reported the abductions to the Police and he responded that he went to the Police and told them what happened but they did not file a First Information Report (FIR) and asked him to leave. He stated that nothing happened and there was no official report. He stated that he does not have any evidence and said that in that context. The Tribunal does not accept this explanation and it does not alleviate the Tribunal’s concerns.
Fourth, the Tribunal discussed with the applicant what he did as a member of the MQM. He stated that as a “party worker” he and other “party workers” were assigned tasks by higher level members. He stated that there were ten to twelve “party workers” in the unit he was attached to. He stated that these tasks included inviting people to attend party gatherings and functions, helping to organise these gatherings and functions and attending them. When asked exactly what he did, he stated that he helped to set up the stage and chairs and catering. He stated that he did not give any speeches.
The Tribunal asked the applicant whether any other “party workers” were threatened or abducted and he responded no. He stated that the other “party workers” were not doing any physical work and only gave speeches. He stated that they received threats but were not abducted. This evidence that the other “party workers” did not do any physical work contradicts his earlier evidence. The Tribunal finds it implausible that low level supporters or members doing the sort of tasks described by him would come to the adverse attention of members of rival parties let alone the Police and other security forces.
The Tribunal also finds it implausible that the applicant would have been abducted but other “party workers” and members who gave speeches were not. When the Tribunal raised this as an issue with him, he responded that the work he did was not different to the others but he worked more than them. He stated that he was getting popular in his area. He stated that there was a chance he could go to a higher level and became an assistant in charge of a unit. The Tribunal finds this explanation to be implausible and does not accept it. These issues raise further concerns about his credibility and the veracity of his claims.
Fifth, in his visa application the applicant claimed that the government started targeting the MQM and the Police and the Military were ordered to “lambast” MQM officers. He claimed that security forces went to his home looking for him and when they could not find him they started targeting and threatening his family that they would kill them if they did not tell them where he was. He claimed that he was arrested in [2009] for holding an unlawful protest. He claimed that on or about [a particular date in] 2009 two unknown men on a motorcycle ambushed him and started firing live bullets. He claimed that he was told by reliable members of the MQM that they were government hired killers. He claimed that he reported this incident to the Police, who referred the matter to the Prosecutor who dismissed the case without any further investigations when they realised he was a member of the MQM.
The country information indicates that, following the General Election on 18 February 2008, the MQM formed a coalition government with the Pakistan People’s Party (PPP) [2] [3] as well as forming a Provincial government in Sindh Province. In these circumstances, it is not plausible that the MQM coalition government would target its own MQM members and direct the Police, Military and other security forces to do so. It is also implausible that the MQM coalition government would arrest him in [2009] and hire killers to kill him in [2009] because of his activities as a MQM member. It is also not plausible that the Police and Prosecutor would not assist him because he was a member of the MQM when the MQM was a coalition party in government at that time. This raises further concerns about his credibility and the veracity of his claims.
[2] Karachi: MQM major election winner in city, PPP distant second, Dawn, 20 February 2008. (
Sixth, the applicant gave evidence to the Tribunal that he had no other problems with the Police after the incident in [2009] and the last time his parents were threatened was in 2009. He continued to reside in his family home until he left Pakistan in April 2010 and when he returned to Pakistan in 2011. The Tribunal would expect that if he was of adverse interest to the Pakistani authorities and they were looking for him as claimed , it would have been very easy for them to locate him at his family home. This raises concerns about the credibility of his claims that he is at risk of serious harm or significant harm from the Pakistani authorities if he returns to Pakistan.
Seventh, the applicant’s conduct has not been consistent with his claims. In his visa application, he claimed that he was threatened, arrested by the Police, shot at by unknown assailants who he believed were killers hired by the government and feared for his life in Pakistan. He subsequently claimed that he was abducted on two or, alternatively, three occasions. The records of the Department indicate that he was granted a Student visa on 12 March 2010. However, he did not arrive in Australia until [a particular date in] April 2010. The Tribunal put this information to him, pursuant to s.424AA of the Act, and noted that his delay in leaving Pakistan and arriving in Australia after he was granted the Student visa was not consistent with his claims and raised concerns in relation to his credibility and the veracity of his claims.
The applicant responded that he did not receive notification of the grant of the Student visa directly and the email was sent to his consultant. He stated that his consultant received the email and then telephoned him. He stated that after that he needed to get tickets and extra money to come to Australia. He stated that he needed to get ready to come to Australia and start a new life here. The Tribunal does not accept this explanation. He would have had to make arrangements to obtain the money to pay for his studies, travel to and living expenses in Australia prior to lodging his application for a Student visa. Any extra money could have been sent to him after he arrived in Australia. It is implausible that it would have taken over a month to get an airline ticket to Australia. The Tribunal is of the view that if his life was at risk in Pakistan as he claims, his parents would have made arrangements for him to leave Pakistan as soon as possible after his Student visa was granted and would not have delayed his departure from Pakistan for over a month after his Student visa was granted.
Eighth, the applicant claimed in his visa application that although he came to Australia on a Student visa, his main purpose in doing so was to protect his life which was in danger in Pakistan. He claimed that he cannot return to Pakistan because he is fearful for his life and has no doubt that he would be killed if he did so. In written submissions to the Tribunal dated 23 March 2018, his migration agent made new claims that, if he returns to Pakistan, he cannot rely on protection from the Pakistani government as he is still being pursued by the Pakistani authorities as he initially left Pakistan to study in Australia, he believes that the Pakistani government is aware of his presence in Australia, he will be arrested on his arrival in Pakistan, he will be imprisoned or interrogated if he returns to Pakistan, he will be exposed to practises of torture and he does not have the financial standing to pay any fine that may be imposed on him and such a punishment would be degrading.
The records of the Department indicate that he arrived in Australia [in] April 2010 on a Student visa. This is a temporary visa that does not allow him to live in Australia permanently. He applied for a Protection visa on 20 February 2015. The Tribunal put this information to him, pursuant to s.424AA of the Act, and noted that his delay of almost 5 years after his arrival in Australia to apply for a Protection visa raised concerns about his credibility and the veracity of his claims. He responded that he was in a new culture with new people and a different language and wanted to get familiar with the Australian culture. He stated that he was nervous and scared and did not have guidance at that time. He stated that he wanted to continue his studies and not go back to Pakistan. He stated that he had problems with his Student visa. He stated that he started a [Course 1] and then changed to a [Course 2] but was not good at [the required skills of Course 2. He stated that something went wrong and his Student visa was cancelled. He stated that he then lodged an application for review with the Tribunal. He stated that he missed the hearing at the Tribunal because he did not inform the Tribunal of his new address. He stated that he went to a few migration agents but they did not understand his case. He stated that he lodged an appeal with the Federal Circuit Court but subsequently withdrew his appeal, on the advice of his migration agent, because he had no prospects of success.
The Tribunal does not accept this explanation. The Tribunal is of the view that, if his claimed fears are genuine, the applicant would have made some inquiries with his teachers or other students or friends and/or done some research on the internet, obtained immigration advice and lodged an application for a Protection visa soon after his arrival in Australia. Further, if he consulted a few migration agents in relation to his Student visa, the Tribunal would expect him to have also spoken to them about his concerns about returning to Pakistan and obtained immigration advice about applying for a permanent visa. His delay of almost 5 years after his arrival in Australia to apply for a Protection visa and the fact that he applied for it after his Student visa was cancelled raises concerns in relation to his motivation for lodging the application for a Protection visa and the credibility of his claims.
Ninth, the applicant claimed in his visa application that although he came to Australia on a Student visa, his main purpose in doing so was to protect his life which was in danger in Pakistan. He claimed that he cannot return to Pakistan because he is fearful for his life and has no doubt that he would be killed if he did so. In written submissions to the Tribunal dated 23 May 2018, his migration agent made new claims that he is in hiding from the Pakistani authorities who are looking for him, he is being pursued by the Pakistani authorities as he initially left Pakistan to study in Australia, it is unreasonable for him to relocate within Pakistan as it would place him at greater risk of being discovered by the Pakistan government, he believes that the Pakistani government is aware of his presence in Australia and will arrest him on his arrival in Pakistan, he will be imprisoned or interrogated if he returns to Pakistan and he will be exposed to practises of torture.
The applicant gave evidence to the Tribunal that he came to Australia [in] April 2010 and returned to Pakistan in 2011 because he missed his family and wanted to see his parents and get some guidance from them. The records of the Department indicate that he came to Australia [in] April 2010, then departed Australia [in] October 2011 and returned to Australia [in] December 2011. The Tribunal put this information to him, pursuant to s.424AA of the Act, and noted that his voluntary return to Pakistan and the length of his stay in Pakistan was not consistent with his claims and raised concerns in relation to his credibility and the veracity of his claims.
The applicant responded that the PPP was in government at that time and they formed a coalition with the MQM. He stated that the political situation was good and the government stopped killing “party workers”. He stated that he became aware of this and that is why he went back to Pakistan to see his family. He stated that in his last week there things started to get worse. He stated that a month after he returned to Australia the coalition was terminated.
This response from the applicant is not consistent with the evidence he gave the Department during his interview on 21 July 2015. During that interview, he stated that he returned to Pakistan in 2011 because his mother was very sick and he wanted to visit her. He stated that during his visit he remained at home and kept a low profile. The Tribunal put this information to him, pursuant to s.424AA of the Act, and he responded that his mother was “not good” and was diagnosed with [a particular medical condition]. When asked when she was diagnosed with [medical condition], he responded that it was in 2013. He stated that she is very attached to him and was disturbed. He stated that she was crying and having sleepless nights. He stated that she was not eating properly and had lost weight.
The inconsistencies in the applicant’s evidence in relation to why he returned to Pakistan in 2011 and what he did when he was there raise further concerns about his credibility. The fact that he was not aware that the MQM and the PPP had formed a coalition government more than 2 years prior to his departure from Pakistan in April 2010 raises further concerns about the veracity of his claims. His voluntary return to Pakistan and the length of his stay in Pakistan in 2011 are not consistent with his claims and raise further concerns about the credibility of his claims.
Tenth, in his visa application the applicant claimed that he was arrested in [2009] and on or about [a later date in] 2009 he was ambushed by two unknown men on a motorcycle who fired live bullets at him. He claimed that he knows that they were government hired killers as he was told this by reliable members of the MQM. In written submissions to the Tribunal dated 23 May 2018, his migration agent made new claims that he is in hiding from the Pakistani authorities who are looking for him, he is being pursued by the Pakistani authorities as he initially left Pakistan to study in Australia, it is unreasonable for him to relocate within Pakistan as it would place him at greater risk of being discovered by the Pakistan government, he believes that the Pakistani government is aware of his presence in Australia and will arrest him on his arrival in Pakistan, he will be imprisoned or interrogated if he returns to Pakistan and he will be exposed to practises of torture.
The evidence before the Tribunal is that the applicant left Pakistan [in] April 2010 and travelled to Australia. He returned to Pakistan [in] October 2011 and left Pakistan [in] November 2011. The Tribunal would expect that if he was of adverse interest to the Pakistani authorities as he claims, he would have been stopped, questioned and arrested at Karachi airport when he exited or entered Pakistan.
When the Tribunal raised this as an issue with the applicant, he responded that the Pakistani authorities do not want to abduct him in the middle of the airport and create a controversy. He stated that they do not want to do it openly and do it undercover. He stated that they hire other people and Rangers and under cover agencies are involved. He stated that it happens in personal and private places and at night when he is alone and doing personal things.
The Tribunal finds the applicant’s explanation to be implausible and unconvincing and does not accept it. Travellers are questioned daily at airports all around the world and there would be nothing controversial about him being questioned and detained at the airport by the Pakistani authorities if he was of adverse interest to them. Further, it is implausible that the Pakistani authorities would go to the trouble and expense of hiring people and involving Rangers and under cover agencies to target him when, on his own evidence, he was a low level member of the MQM and “party worker”.
Eleventh, the applicant has made a number of claims in relation to being of adverse interest to the Pakistani authorities and that he is at risk of him being arrested, imprisoned and tortured. However, he has provided to the Department a Police Character Certificate which states that he has resided at a given address from 1998 to 2011 and that during that period there had been nothing adverse against him on the record of the local Police. The Tribunal raised this as an issue with him and noted that it is highly unlikely that the Police would have issued him with a Police Character Certificate if he was of adverse interest to them and that this raised concerns in relation to the credibility of his claims.
The applicant responded that the Police Character Certificate was issued because he had not done anything unlawful. He stated that that is how things are done in Pakistan. He stated that one side works normally and the other side does things under cover. He stated that he has not done anything unlawful but when he asked for help they did not help him. The Tribunal does not accept this explanation.
The applicant has provided to the Tribunal a translation of a newspaper article published in [Newspaper 1] [in] 2009. It indicates that he is a prominent worker of MQM and was ambushed and fired on by unknown assailants and survived the assassination attempt. In view of the his evidence that he was a low level member of the MQM and the many concerns the Tribunal has in relation to his credibility and the veracity of his claims the Tribunal does not accept that this incident took place and is not satisfied that this newspaper article is authentic. Country information indicates that:
Document fraud is endemic in Pakistan, particularly in those forms of documentation       not issued by a competent central authority such as NADRA. It is relatively simple to         produce fraudulent First Information Reports (FIRs, issued by police). FIRs use standard forms with the relevant information written in by hand. There are credible     reports of police in Pakistan accepting bribes to verify fraudulent FIRs. DFAT does           not consider the existence of an FIR to constitute evidence that the events described in the FIR actually occurred.
More broadly, DFAT understands that fraudulent school records, birth certificates,            death certificates, medical records, bank records and other documents are common.           People have also been known to pay news organisations to publish false stories in           newspapers.[4]
[4] DFAT Country Information Report on Pakistan, 1 September 2017.

The Tribunal discussed the above country information with the applicant and raised its concerns about the authenticity of this newspaper article. He responded that it can happen. He stated that he has provided “truthful documents” and does not know how to judge whether it is fraudulent or true. He stated that he has heard about fraudulent documents but only people with money can buy them. When the Tribunal pointed out that the country information indicates that fraudulent documents are easily available and commonplace, he responded that the documents he provided are “true documents”, not everyone uses fraudulent documents and “true documents” look the same as fraudulent documents. The Tribunal is not convinced by this response.
The Tribunal also discussed the following country information with the applicant:
DFAT assesses that MQM members face a low risk of violence from militant groups and criminal elements in Karachi, and that this risk has significantly reduced since security operations began in 2013. DFAT further assesses that MQM members who are associated with (or perceived to be associated with) political violence or criminal activities face a moderate risk of violence from security forces. [5]
[5] Ibid.
The applicant responded that what he has stated is from his personal experiences. He stated that he has witnessed it. He stated that people from Karachi know it from their personal experiences. He stated that it has happened in 2016 and 2017 and he has provided reports.
Twelfth, the applicant made a new claim during the course of the hearing that he went to the Pakistani Embassy to renew his passport, was asked if he was on a Student visa and responded that he had applied for a Protection visa. He claimed that he was asked to fill out a form, was asked for his address in Pakistan and was told that they would go to his home and check whether he wanted a new passport. He claimed that he stated that he could provide a document to show that he was on a Bridging visa. The Tribunal finds this evidence to be implausible and unconvincing for a number of reasons.
If the applicant is of adverse interest to the Pakistani authorities and if he is in hiding from them as claimed, it is implausible that he would approach the Pakistani authorities at their Embassy in Australia and inform them that he has applied for a Protection visa in Australia. Further, it makes no sense that the Pakistani authorities would want to go to his home in Pakistan to check whether he wanted a new passport, when he was at the Embassy filling out a form to renew his passport. Further, his passport expired on [a particular date in] 2013. If he told the Pakistani authorities, during the course of seeking renewal of his passport, that he had applied for protection in Australia and he feared serious or significant harm for this reason as claimed, the Tribunal would expect him to have made this claim in his visa application. He has been represented by his migration agent throughout these proceedings.
Further, the applicant gave evidence to the Tribunal that he is satisfied that his visa application is accurate and complete. In his visa application, he stated that the Pakistani Consulate General issued him with a passport on [a particular date in] 2013 and that this passport was valid until [a particular date in] 2015. This tends to indicate that the Pakistani authorities had no problems issuing him with a new passport. Further, the Tribunal notes that when he lodged his application for a Protection visa on 20 February 2015, he provided the Department with a copy of his expired passport that was issued [in] 2008 and expired [in] 2013 and not his current passport that was issued [in] 2013 and was valid until [in] 2015. Similarly, when he attended the Tribunal hearing he produced his expired passport that expired [in] 2013 and not his subsequent or current passport. The Tribunal does not accept this evidence and rejects this claim.
In written submissions to the Tribunal dated 23 March 2018, the applicant’s migration agent made new claims that, if the applicant returns to Pakistan, he cannot rely on protection from the Pakistani government as he is still in hiding to avoid prosecution for seeking protection in Australia, he is still being pursued by the Pakistani authorities as he initially left Pakistan to study in Australia, he believes that the Pakistani government is aware of his presence in Australia, he will be arrested on his arrival in Pakistan, he will be imprisoned or interrogated if he returns to Pakistan and he will be exposed to practises of torture. He also made a new claim that he will not have the financial standing to pay any fine that may be imposed on him if he returns to Pakistan and that such a punishment would be degrading.
The evidence before the Tribunal is that the applicant left Pakistan lawfully [in] April 2010. He returned to Pakistan lawfully [in] October 2011 and departed Pakistan lawfully [in] November 2011. The country information indicates the following in relation to returnees to Pakistan:
Pakistani citizens require a valid passport to enter or exit Pakistan under the         Passports Act 1974. Attempting to enter or depart Pakistan without valid documentation or on fraudulent documentation is punishable with up to three years’            imprisonment, a fine, or both. Those suspected of human trafficking or people            smuggling may be prosecuted under the Emigration Ordinance 1979, which provides      for penalties of up to five years’ imprisonment (up to seven years for a subsequent     offence), a fine, or both.
In practice, returnees tend to leave Pakistan on valid travel documents and therefore        tend not to commit Pakistani immigration offences. Those who return voluntarily and    with valid travel documentation are typically processed like any other citizen returning      to Pakistan. Only those who are returned involuntarily or are travelling on emergency            travel documents are likely to attract attention from the authorities upon arrival.
DFAT understands that those returned to Pakistan involuntarily are typically          questioned upon arrival to ascertain whether they left the country illegally, are wanted for crimes in Pakistan, or have committed any offences while abroad. Those who left Pakistan on valid travel documentation and have not committed any other crimes are            typically released within a couple of hours. Those found to have contravened        Pakistani immigration laws are typically arrested and detained. These people tend to       be released within a few days, either having been bailed by their families or having           paid a fine, although there are provisions for jail sentences. Those wanted for a crime      in Pakistan or who have committed a serious offence while abroad may be arrested        and held on remand, or required to report regularly to police as a form of parole.
Returnees are responsible for arranging their own onward transportation from their          point of entry into Pakistan. Voluntary returnees may be eligible for assistance from the International Organisation for Migration. Involuntary returnees are not eligible for        reintegration assistance. Returnees are typically able to reintegrate into Pakistani        community without repercussions stemming from their migration attempt, although          involuntary returnees who took on debt to fund their migration attempt tend to face a    higher risk of financial hardship. DFAT assesses that returnees to Pakistan do not face a significant risk of societal violence or discrimination as a result of their attempt           to migrate, or because of having lived in a western country. [6]
[6] Ibid.
The applicant has entered and exited Pakistan lawfully. His evidence is that he has not done anything unlawful in Pakistan. There is no suggestion that he was involved in human trafficking or people smuggling or that he is suspected of having committed any of these offences. The fact that he was not questioned, arrested or detained on the three occasions he exited or entered Pakistan tends to indicate that he is not wanted for crimes in Pakistan and is not of adverse interest to the Pakistani authorities. There is no evidence before the Tribunal to indicate that he has committed any offences in Australia. There is therefore no likelihood of him being fined for any of these reasons let alone not having the financial standing to pay any fine imposed on him if he returns to Pakistan. The Tribunal rejects this claim.
The above country information also does not support the new claims made by the applicant’s migration agent that the applicant is at risk of serious harm or significant harm from the Pakistani authorities because he claimed asylum in Australia. The Tribunal rejects this claim.
In written submissions to the Tribunal dated 23 March 2018, the applicant’s migration agent made new claims that the applicant has been absent from Pakistan for some years and has not been able to retain or develop the necessary skills for him to acquire meaningful employment in Pakistan. He claimed that his ability to earn an income will be further reduced as a result of discriminatory treatment because of his political association with the MQM. He claimed that he will not be able to subsist.
In his visa application, the applicant stated that he completed his High School Certificate in Pakistan and completed a [Course 1] in Australia in 2011. He did not disclose that he had undertaken any work in Pakistan. He gave evidence to the Tribunal that he worked in a [particular kind of] shop in Pakistan for six months prior to coming to Australia. He stated that in Australia he has worked in [a particular kind of] shop and in a number of other jobs. He stated that he is currently working full time [in various occupations]. He stated that he has been doing this work since October or November 2017. He stated that when he was not working in Australia his father supported him financially. He stated that he is from an upper middle class family.
The evidence before the Tribunal is that the applicant has undertaken tertiary studies in Australia which will stand him in good stead when seeking employment in Pakistan. He also has some limited work experience in Pakistan and extensive work experience in Australia during which he would have acquired a number of skills that will assist him to find employment in Pakistan. In addition, he has acquired English language skills which will assist him to find employment in the [certain] industries. The Tribunal does not accept that he does not have the skills to obtain employment in Pakistan. In view of the Tribunal’s findings below in relation to his political association with the MQM, the Tribunal does not accept that he will not be able to subsist. The Tribunal rejects this claim.
The Tribunal has considered the country information provided by the applicant to the Department and to the Tribunal. He has provided to the Department three articles in relation to the MQM. The first is dated 2 November 2012 and refers to the Pakistani Taliban threatening to target the MQM. The second article is dated 11 January 2015 and refers to the targeted killing of three Shia MQM members. The third article is dated 11 March 2015 and refers to the Rangers raiding the MQM headquarters in Karachi and detaining a member of the Rabita Committee.
The applicant has also provided to the Tribunal five articles in relation to the MQM. The first is dated 30 August 2016 and is titled ‘Why the Pakistani State Can’t Seem to Figure Out the MQM in Karachi’. The second article is dated 27 August 2017 and refers to 19 MQM offices being razed to the ground because the Police claim that they were illegally constructed on government owned land. The third article is dated 17 March 2014 and is a synopsis of an article referring to claims made by the MQM that its workers were being abducted, tortured and killed by law enforcement agencies. The fourth article is undated and refers to the Director General of the Rangers accepting that a deceased MQM worker was tortured in custody. The fifth article is dated 12 December 2010 and is a synopsis of an article referring to the release of statistics by the Human Rights Commission of Pakistan in relation to politically motivated target killings noting that in Karachi the largest number were from the MQM.
In oral submissions to the Tribunal, the applicant’s migration agent stated that the applicant suffers from depression and anxiety. In written submissions, he stated that he is experiencing sleepless nights and flashbacks due to his pending visa application and if he returns to Pakistan he will not be able to access proper medical services to assist him with his “current health predicament”, his freedom and social life will be impacted and may lead to the deterioration of his predicament, he will face irreparable harm to his health and welfare, medical facilities in Pakistan only service the wealthy and as the applicant cannot afford adequate medical services this will result in an untimely death.
The Tribunal has not been provided with any independent evidence such as Medical Reports or Reports from a Psychologist or Psychiatrist to support these claims. The applicant has not made any claims that he is currently suffering from any physical ailments that require medical treatment or will require medical treatment if he returns to Pakistan now or in the foreseeable future. He gave evidence to the Tribunal that he has not sought treatment from a Psychologist or Psychiatrist in Australia. There has therefore been no diagnosis of depression or anxiety in relation to him. The Tribunal accepts that he may be anxious about his pending application for a Protection visa and may have been anxious about attending a hearing before the Tribunal. The Tribunal had the benefit of speaking to the applicant and observing him for several hours during the hearing. Despite the unsubstantiated assertions in relation to his mental health, the Tribunal is satisfied that he understood the process and the questions asked of him and that he was able to participate in the hearing in a meaningful way.
The Tribunal has had regard to the applicant’s migration agent’s written submissions dated 23 March 2018 and oral submissions made at the hearing. He has made a number of new claims in his submissions and has offered no explanation as to why these new claims were not made in the applicant’s visa application filed on 20 February 2015 and were only made four days prior to the hearing. The Tribunal notes that this same migration agent prepared the applicant’s visa application and has represented him throughout the proceedings. The new claims are ambit claims that are not supported by evidence from the applicant or by any medical or psychological evidence. In fact, some of the evidence given by the applicant during the hearing, for example in relation to his tertiary studies and work experience, is inconsistent with some of the new claims. The applicant’s conduct is also inconsistent with the new claims. For the reasons given herein and in view of the findings made by the Tribunal, the Tribunal rejects the submissions made by the applicant’s migration agent.
The Tribunal has had regard to the Tribunal's Guidelines on the Assessment of Credibility and Guidelines on Vulnerable Persons when assessing the applicant's credibility. The Tribunal has also had regard to the DFAT Country Information Report on Pakistan dated 1 September 2017 and the Department's Policy Guidelines to the extent that they are relevant to the decision under consideration.
Findings
Having considered all the applicant's claims, the evidence and the submissions, the Tribunal finds that the applicant is not a witness of truth. The Tribunal finds that he fabricated his material claims for the purpose of obtaining a Protection visa.
The Tribunal accepts that the applicant was born on [a particular date] at Karachi in Pakistan. The Tribunal accepts that he is a Sunni Muslim. The Tribunal accepts that he has never married. The Tribunal accepts that his parents reside in Karachi and that his father has been [in a particular profession] for over 25 years. The Tribunal accepts that he has [a number of] brothers and that they are both students. The Tribunal accepts that one of his brothers lives in [Australia] and is studying [in a particular field]. The Tribunal accepts that he came to Australia to study and that he has undertaken studies for [Course 1] and [Course 2] in Australia although he did not complete these courses. The Tribunal accepts that he is from an upper middle class family and that his father supported him financially in Australia during periods when he was not in paid employment.
The Tribunal is not satisfied that the MQM Identity Card in relation to the applicant and the article dated [in] 2009 in [Newspaper 1] in relation to the applicant are authentic documents. The Tribunal does not accept that the applicant is, or is perceived to be, a supporter, a party worker or a member of the MQM. It follows that the Tribunal does not accept any of the claims that flow from that. The Tribunal does not accept that he is of adverse interest to the Pakistani authorities. The Tribunal does not accept that his main purpose in coming to Australia was to protect his life which was in danger in Pakistan. The Tribunal does not accept that he fears returning to Pakistan for any of the reasons claimed.
The Tribunal does not accept that the applicant was refused medical treatment in Pakistan on many occasions for no good reason. The Tribunal does not accept, on the evidence before it, that he currently requires medical or psychological treatment or that he will be denied such treatment if he returns to Pakistan now or in the reasonably foreseeable future. The Tribunal does not accept that he will be denied access to basic health services in Pakistan. The Tribunal does not accept that he will face irreparable harm to his health and welfare and that his freedom and social life will be impacted if he returns to Pakistan. There is no evidence before the Tribunal to indicate that medical facilities in Pakistan only service the wealthy and the Tribunal does not accept this. In view of the applicant’s evidence that he is from an upper middle class family and that his father supported him financially in Australia during periods when he was unemployed, the Tribunal does not accept that he is unable to afford adequate medical services in Pakistan and that this will result in an untimely death.
The Tribunal does not accept that the applicant’s absence from Pakistan for several years will prevent him from obtaining employment in Pakistan. The Tribunal does not accept that he does not have the necessary skills to be able to obtain employment in Pakistan. The Tribunal is of the view that the tertiary studies, work experience, English language skills and other skills he has acquired in Australia will stand him in good stead to obtain employment in Pakistan. In view of the above findings, the Tribunal does not accept that his ability to earn an income in Pakistan will be reduced as a result of discriminatory treatment because of his political association with the MQM. The Tribunal does not accept that he will not be able to subsist in Pakistan.
The Tribunal accepts that there is generalised violence in Pakistan. The country information indicates the following in relation to the security situation in Pakistan:
Pakistan continues to face security threats from insurgent, separatist and sectarian militant groups. The security situation varies across the country. While militant attacks can occur anywhere, Punjab province tends to experience fewer incidents than other areas. Sindh province is also relatively free from major terrorist activity outside of Karachi, although rural Sindh has a high incidence of crime and kidnapping and some large-scale terrorist attacks have occurred in rural Sindh. Gilgit- Baltistan tends to experience less sectarian violence, in part because of its relatively sparse population and mountainous terrain, and its status as the only Shi’a-majority area in Pakistan. In contrast, Balochistan, Khyber Pakhtunkhwa and the FATA experience relatively higher rates of militant and sectarian violence. [7]
[7] Ibid.

While the Tribunal accepts that there is some level of risk to the applicant in the context of generalized violence, it finds, on the basis of all the evidence before it, that this risk is remote. The Tribunal does not accept that there is a real chance or a real risk that he would be targeted for harm if he returns to Pakistan.
The Tribunal accepts that the applicant does not wish to return to Pakistan and would prefer to live in Australia.
Does Australia have protection obligations to the applicant under the refugee criterion?
Having considered all of the applicant's claims, individually and cumulatively, all the evidence, the submissions and in view of the findings above, the Tribunal finds that there is no real chance that the applicant will suffer serious harm for reason of his actual or imputed political opinion or any other reason set out in s.5J(1)(a) of the Act if he returns to Pakistan now or in the reasonably foreseeable future. Therefore, the Tribunal finds that he does not have a well-founded fear of persecution and is not a refugee as defined in s.5H of the Act. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.
Does Australia have protection obligations to the applicant under the complementary protection criterion?
As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether he may nevertheless meet the criterion for the grant of a Protection visa pursuant to the complementary protection criterion.
In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to Pakistan now or in the reasonably foreseeable future.
Having considered all of the applicant’s claims, individually and cumulatively, all the evidence and the submissions, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Pakistan now or in the reasonably foreseeable future.
Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that he does not satisfy the criterion in s.36(2)(aa) of the Act.
CONCLUSION
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 s.36(2)(a) or s.36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act and who holds a Protection visa. Accordingly, he does not satisfy the criterion in s.36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Linda Symons
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:    For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:    For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)    the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2018] AATA 3139

31 July 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Statutory Construction

Natural Justice