1513751 (Refugee)

1513751 (Refugee) [2018] AATA 4879 (31 October 2018)
DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1513751
COUNTRY OF REFERENCE:                  Pakistan
MEMBER:Linda Symons
DATE:31 October 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 31 October 2018 at 4:36pm
CATCHWORDS
REFUGEE – Protection visa – Pakistan – complementary protection – particular social group – victim of loan shark – fear of harm by lenders – western ways and thoughts – fear of member of Sipah-e-Sahaba – recipient of death threats – credibility concerns – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J. 5K-LA, 36, 65, 438, 499
Migration Regulations 994 (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 21 September 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] December 2007 as the holder of a subclass 572 Student visa. On 10 July 2009 and 13 July 2010, he was granted two further subclass 572 Student visas. On 19 April 2012, he was granted a subclass 485 Temporary Graduate visa that was valid until 19 October 2013. He departed Australia [in] April 2012 and returned [in] August 2012. On 31 January 2013, he lodged an invalid application for a subclass 885 Skilled – Independent visa.
On 4 October 2013, the applicant applied for a Regional Sponsored Migration visa and was granted an associated Bridging visa. On 18 December 2013, the nomination for the Regional Sponsored Migration visa was refused. On 20 March 2014, he applied to the Migration Review Tribunal (MRT) for a review of that decision. [In] August 2014, he departed Australia and returned [in] September 2014. [In] November 2014, he departed Australia again and returned [in] February 2015. On 24 February 2015, he withdrew his application for review before the MRT.
The applicant applied to the Department of Home Affairs (the Department) for a Protection visa on 19 March 2015. This application was found to be invalid. On 24 March 2015, his Bridging visa associated with his application for review before the MRT ceased and he became an unlawful non-citizen. On 7 April 2015, he lodged a second application for a Protection visa. 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 9 October 2015, he applied to the Tribunal for a review of that decision.
The applicant appeared before the Tribunal on 31 July 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 Australia has protection obligations to the applicant 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, he or she is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she is outside the country of his or her 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 he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she 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 lodged on 7 April 2015 are summarised as follows:
·He was the victim of a loan shark in Pakistan. That person told him that he was a member of Sipah-e-Sahaba, a militant organization responsible for many attacks on Shias in Pakistan.
·If he returns to Pakistan the lenders will harm him and threaten him.
·He will suffer significant harm, if he returns to Pakistan, because of his adaption to western ways and thoughts and is used to freedom of speech and life in Australia.
In the visa application, the words “please see submission” is hand written in response to questions about why the applicant is claiming protection. The visa application was accompanied by an undated submission from [his representative] from [a law firm], the applicant’s lawyers. In the submission, his migration agent states that he is not seeking a Protection visa under the refugee criteria but is seeking one under the complementary protection criteria.
The applicant’s migration agent submitted that “the applicant cannot return to Pakistan without suffering the significant harm as detailed in the Psychologist’s Report (attached) and it is not reasonable for him to not to suffer significant harm in his circumstances.” (sic) The Psychologist’s Report referred to is an Initial Needs Assessment Report dated [in] March 2015 from [a] Psychologist.
The applicant has provided to the Department copies of his Pakistani passport, Police Clearance Certificate, Secondary School Certificate Examination, Intermediate Examination, [Diploma], payslip from [a named company], Academic Transcript from [an institution], Experience Certificate from [a named company], two Certificates from [an institution], Skills Assessment from Trades Recognition Australia dated [in] November 2009, IELTS Test Report Form dated [November] 2010, Bachelor [degree], letter from [an institution], Certificate [in a course], Academic Transcript from [an institution], his application for Employer Nomination for a Permanent Appointment, an Employment Contract dated [in] September 2013, an MRT Decision Record dated 17 February 2015 in relation to his application for approval of a nomination, a letter dated 18 February 2015 informing him of that decision, a letter dated 24 February 2015 from the MRT confirming the withdrawal of his application for review in relation to the refusal of his application for a Regional Employer Nomination (Permanent) visa, a Birth Certificate for his [daughter], a letter from [an advocate of High Court] dated [in] March 2015 and an Initial Needs Assessment Report dated [in] March 2015 from [the] Psychologist.
The applicant attended an interview with the Department on 3 September 2015. During the interview, the delegate discussed with him his qualifications and work experience in [a] sector in Pakistan as referred to in supporting documents he had provided the Department in relation to his application for a Student visa and his application for a Protection visa. The delegate found that his responses did not reflect a level of knowledge commensurate with his claimed experience.
On 4 September 2015, the applicant wrote to the Department and stated that he did a Master’s degree in [a subject] in Pakistan in 2003 and studied for a Master of [subject] degree between 2004 and 2007 but did not complete the degree. He stated that he intended pursuing further studies in Australia in 2007. He stated that he saw a migration consultant who advised him to enrol in a Diploma in Australia and once he obtained an Australian Student visa he could enrol in a Master’s degree. He stated that all his academic qualifications were not disclosed in his application for a Student visa and the supporting [course] Certificates and work experience documents provided with the visa application were fake. He stated that after he came to Australia he made inquiries and found out that the tuition fees at the [university] were high so he continued his Diploma. His [brother] obtained a PhD scholarship from [a] University in [Country 1], has left for [another country] for good and his PhD classes commenced in mid- August 2015.
On 7 September 2015, the applicant provided to the Department copies of his Master [degree], an academic transcript for his Master [degree], academic transcripts for a Master of [subject] degree and an academic article in which he was one of the four authors.
The delegate found that the applicant is not a person in respect of whom Australia has protection obligations.
The applicant has provided to the Tribunal copies of his Pakistani passport, the Department’s Decision Record dated 21 September 2015, the Initial Needs Assessment Report dated [in] March 2015 from [the] Psychologist (previously provided to the Department), undated submission from his migration agent [from] [a law firm] (previously provided to the Department) and an unsigned statement from him dated 9 October 2015. In his unsigned statement, he responded to some of the concerns of the delegate. He stated that he did not tell his migration agent that the money lender told him that he was a member of Sipah-e-Sahaba. He stated that he told her that the money lender belonged to an extremist organization like Sipah-e-Sahaba and she must have misunderstood.
Receiving country
The applicant claims to be a citizen of Pakistan and has provided a copy of his Pakistani passport to the Department. 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 the applicant’s claims
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 and why he fears returning to Pakistan. The Tribunal found aspects of his evidence to be inconsistent, implausible and unconvincing. He made new claims during the hearing. 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.
In his visa application, the applicant claimed that he was the victim of a loan shark in Pakistan. He claimed that this person told him that he was a member of Sipah-e-Sahaba, a militant organization responsible for many attacks on Shias in Pakistan. He has filed with the Tribunal an unsigned statement dated 9 October 2015 in which he stated that he did not tell his migration agent that the money lender told him that he was a member of Sipah-e-Sahaba but told her that the money lender belonged to an extremist organization like Sipah-e-Sahaba and she must have misunderstood. The Tribunal discussed these claims with him.
The applicant gave evidence that he went to Pakistan in July 2014 and stayed there for 40 days. He stated that he then returned to Australia. He stated that his mother was then diagnosed with [a medical condition] and was very ill. He stated that he returned to Pakistan after a month. He stated that his mother was admitted to an expensive hospital. He stated that his brothers were not in a strong financial position to borrow money. He stated that his friends in Australia refused to lend him any money. He stated that he had a child hood friend in Pakistan named [Mr A] who he spoke to about borrowing some money. He stated that [Mr A] told him that he knew someone who would lend him money on good terms. He stated that the money lender was prepared to lend him money knowing that he was a friend of [Mr A] and was living overseas. He stated that [Mr A] made all the arrangements for the loan.
The applicant stated that he borrowed [amount] Pakistan rupees. He stated that he was given 6 months to repay the loan. When asked what the interest rate was, he responded that he was never told the interest rate and it was an emergency, he was stressed and never confirmed the interest rate. He stated that he did not enter into a formal loan agreement and the only personal information he provided was his ID card. He stated that the money lender took photographs of his ID card and when the money was given. He initially stated that he borrowed the money in December 2014 and then stated that it was in January 2015.
The applicant stated that the money lender asked for the money to be repaid after 2 weeks. He stated that he told [Mr A] that he was able to repay [amount] Pakistan rupees. He stated that he repaid [amount] Pakistan rupees within 2 days. He stated that after he repaid that money the money lender then said he wanted repayment of the full amount. He stated that 3 days later he repaid the balance of [amount] Pakistan rupees plus [amount] Pakistan rupees in interest. When asked where he got the money from to repay these sums of money, he stated that he did not use the money he borrowed for 2 months and repaid the [amount] from the money he had borrowed. He stated that the money for the second repayment of [amount] Pakistan rupees and the interest of [amount] Pakistan rupees came from his brothers and father.
The Tribunal asked the applicant how he knew how much he had to pay in interest if he did not know what the interest rate was. He responded that he gave them a lump sum to “get rid of the problem”. When asked what happened when he made the second repayment, he responded that the money lender asked for money after 15 days. He stated that he got into an argument with the money lender over the telephone. He stated that [Mr A] told him that the money lender was asking for more money, was not happy with the interest he had paid and that he had argued with him. He stated that he told [Mr A] that he would pay more interest but did not have the money right then. He stated that he then received a telephone call from the money lender who threatened to abduct him and kill him. He stated that he left for Australia immediately.
The Tribunal pointed out to the applicant that this evidence indicated that he was dealing directly with the money lender and not through [Mr A] as previously indicated. He responded that he was dealing with [Mr A] but the money lender got his telephone number from [Mr A] and telephoned him in February 2015 after he received the final payment. He stated that the money lender told him that he did not know how powerful he was. When asked whether he responded, he stated that he tried to explain to the money lender that he had returned the money to him. He stated that the money lender wanted more money and he told him he was not able to pay more money right then. He stated that he told him “you do what you want to do”. He stated that the money lender telephoned him on five or six occasions and threatened him.
The applicant stated that he then obtained a new telephone number but the money lender found out his new telephone number within 2 days and called him on the new number on two or three occasions. He stated that after that he returned to Australia. When asked why he had not previously mentioned that the money lender was able to find his new telephone number within 2 days, he responded that he had previously mentioned that he had contacted him within 1 or 1 ½ days. When asked when he had previously mentioned that, he responded that he told the Tribunal at the hearing. When asked whether [Mr A] had done anything to resolve the problem, he responded that [Mr A] told him, after the money lender demanded repayment after 15 days, that he believed they were involved with the wrong people and he was not aware of what kind of people they were. He stated that [Mr A] told him they need to be careful and not get into any hassles.
The applicant stated that the money lender did not do anything else other than threaten him. He stated that he did not report the threats to the Police because [Mr A] told him that these people belong to some group and are dangerous. He stated that [Mr A] told him not to make the situation worse by reporting this matter to the Police and they would find out if he reported them to the Police and would kill him. He stated that he consulted a lawyer and was advised not to lodge a First Information Report as they may harm him. He stated that he left Pakistan at the end of February 2015.
The applicant gave evidence that he has not had any contact with the money lender since then. When asked whether the money lender has had any contact with his family members, he stated that the money lender tried to contact him on his home telephone number and his father answered and said he had disowned him. He stated that when his [brother] was going overseas to study on a scholarship, the money lender asked him for money and he responded that he was a student and could not give him any money. He stated that the money lender threatened him that when he returned to Pakistan they would not leave him alone.
The Tribunal finds the applicant’s evidence to be contradictory and implausible. His conduct has not been consistent with his claims. The following issues raise serious concerns in relation to his credibility and the veracity of his claims.

The applicant’s evidence to the Tribunal is that whilst in Pakistan he borrowed [amount] Pakistan rupees and his friend [Mr A] negotiated the loan on his behalf. He stated that he did not sign a loan agreement or provide any documents and only provided a copy of his ID card. He stated that the money lender gave him the money because he was a friend of [Mr A] and lived overseas. The Tribunal finds it implausible that a money lender would have lent a substantial amount of money to a stranger he had never met, even if he was a friend of someone he knew, and who lived overseas without requiring some form of security. In these circumstances, the money lender would have had no way of being repaid the money he was owed if the applicant had decided to leave Pakistan after he obtained the loan.
The applicant’s evidence is that he was unaware of the interest rate on the loan. He stated that he was not told what the interest rate was and did not ask because it was for an emergency and he was stressed. He is an educated man with tertiary qualifications in Pakistan and Australia. His father and older brothers are businessmen. In these circumstances, the Tribunal finds it implausible that he would have borrowed money without knowing what the interest rate was on the loan. The Tribunal also finds it implausible that he would have paid the money lender [amount] Pakistan rupees in interest, without knowing what the interest rate was, when that sum was almost double what he had borrowed about 3 weeks earlier.
When the Tribunal raised these issues with the applicant, he responded that he did not repay double the amount. He stated that he was asked to repay the money within 2 weeks of borrowing it and he had most of the money he had borrowed. He stated that he obtained the remaining money from relatives and repaid the money lender. This response does not address the issues raised with him and does not alleviate the Tribunal’s concerns.
The applicant’s evidence is that he borrowed the money because it was an emergency. In these circumstances, the Tribunal would expect him to have used the money soon after receiving it to deal with the emergency. The fact that he still had a substantial amount of money 2 weeks or alternatively 15 days after receiving the money tends to indicate that it was not an emergency or that he borrowed substantially more money than he required. It is implausible that he would have borrowed money that he did not require.
The applicant’s evidence to the Tribunal is that he borrowed the money in January 2015 because his mother was diagnosed with [a medical condition], was admitted to an expensive hospital and his brothers did not have the ability to raise funds. In a letter to the Department dated 18 August 2015, he stated that his mother passed away [in] November 2014. This tends to indicate that his mother was diagnosed with [a medical condition], admitted to hospital and passed away before he obtained the loan.
The applicant’s evidence is that when the money lender demanded early repayment of the loan within 14 days or alternatively 15 days of giving him the money, he was able to repay [amount] Pakistan rupees within 2 days from the money he had borrowed and not used and repay the balance [amount] Pakistan rupees plus [amount] Pakistan rupees in interest 3 days later. He stated that he obtained this money from his father and brothers. This tends to indicate that his father and brothers or alternatively relatives either already had the funds or had the capacity to quickly raise a substantial sum of money. This is not consistent with his evidence that he borrowed money because his brothers were not in a financial position to borrow money. It is implausible that he would have borrowed money if his family already had the required funds or quick access to the required funds. It is also implausible that he would have sought the assistance of a child hood friend to borrow money when his father and older brothers were businessmen and would have had some knowledge of where to obtain loans on good terms.
The applicant made a number of new claims. He made a new claim that, at the time he made the second loan repayment, he had an argument with the money lender over the telephone and the money lender threatened to abduct and kill him. He stated that he left for Australia immediately. He subsequently gave contradictory evidence and stated that the money lender contacted him in February 2015, after he had received the final payment, and asked for more money. He then stated that the money lender contacted him on five or six occasions and threatened him. He stated that he left Pakistan at the end of February 2015. He has filed with the Tribunal a copy of the Department’s Decision Record dated 21 September 2015 which indicates that he returned to Australia on 7 February 2015.
The applicant made another new claim that, after receiving five or six threatening telephone calls from the money lender, he obtained a new telephone number. The Tribunal is of the view that it is implausible that he would have obtained a new telephone number in Pakistan if he left Pakistan immediately after he received a threatening telephone call from the money lender as he claims. It is also implausible that he would have obtained a new telephone number if he was only visiting Pakistan and was returning to Australia. It is also implausible that he would have kept answering telephone calls from the money lender after receiving the first threatening telephone call.
The applicant made a further new claim that, after he obtained a new telephone number, the money lender found out his new telephone number within 2 days and called him on the new number on two or three occasions. He stated that after that he returned to Australia. This is not consistent with his earlier evidence that he left Pakistan immediately after receiving the first threatening telephone call from the money lender. When asked why he had not made these claims previously, he did not offer an explanation. When the Tribunal raised as an issue with him its doubts that the money lender would have been able to find out his new telephone number within 2 days, he responded that it is a fact since he received a telephone call from him within 1 ½ days of changing his telephone number. He stated that it was up to the Tribunal whether or not to believe him.
In his visa application, the applicant claimed that he was the victim of a loan shark in Pakistan who told him that he was a member of Sipah-e-Sahaba, a militant organization responsible for many attacks on Shias in Pakistan. In an unsigned statement from him dated 9 October 2015 that was lodged with the Tribunal he stated that he did not tell his migration agent that the money lender told him that he was a member of Sipah-e-Sahaba. He stated that he told her that the money lender belonged to an extremist organization like Sipah-e-Sahaba and she must have misunderstood.
The applicant has lodged with the Department and the Tribunal a document titled Initial Needs Assessment Report which is dated [in] March 2015 and is written by [the] Psychologist. The Tribunal discussed this document with him. When asked whether he provided [the psychologist] with his personal history referred to in her Report, he responded that he had one appointment with her for 2 to 3 hours in 2015. He stated that during that appointment he answered about two hundred to three hundred questions. He stated that he explained everything to her from his childhood until now. He stated that after that interview she telephoned him on one or two occasions to ask him if he was alright and has not contacted him since then. He stated that he has not consulted another Psychologist or a Psychiatrist.
In the Initial Needs Assessment Report, [the psychologist] reports that the money lender informed the applicant that he was a member of the militant group Sipah-e-Sahaba and there was no way of knowing whether he had made this up or was in fact looking to assault or kill the applicant and his family as he had threatened.
During the hearing, the Tribunal asked the applicant questions about the money lender. He stated that [Mr A] told him that he is probably linked to a militant group but he was not sure which group he belonged to. He stated that he told his migration agent that he could belong to Sipah-e-Sahaba but he was not sure. This evidence is not consistent with his claims in his visa application or the history he gave [the psychologist]. When the Tribunal raised as an issue with him the inconsistencies in his evidence and its concerns in relation to the credibility of his claims, he responded that he told both his migration agent and [the psychologist] that it could be Sipah-e-Sahaba or some other militant group but he was not sure. He stated that what he said has been “misconstructed”. He stated that he has proof that he was not sure which organization the money lender belonged to. He stated that his migration consultant in Pakistan has provided an affidavit and he lodged an affidavit from his lawyer in Pakistan at the time of application.
The Tribunal does not accept that both his migration agent, who is a lawyer, and [the] Psychologist, would have misunderstood his instructions to them.
The applicant has not provided the Department or the Tribunal with an affidavit from his migration consultant in Pakistan as claimed. However, he has provided the Department with a document titled ‘To Whom It May Concern’ which is dated [in] March 2015 and is from [an] Advocate High Court. This document states that the applicant is a client of his and saw him [in] January 2015 regarding threats he had received from unknown persons. It states that he had been “involuntarily trapped by extremist religious organization on account of borrowing money from them. Now he is receiving threat calls from them which left him and his family in very dangerous situation.” (sic) It states that taking legal action against them would make the situation worse as they do not know what religious organization they belong to and who are the persons involved. It states that if legal action is taken his family would be “under more serious threats.”
This letter raises a number of concerns for the Tribunal. First, the applicant’s claim that he left Pakistan immediately after receiving a death threat from the money lender is not consistent with him consulting a lawyer in Pakistan in relation to threats that he had received. Second, if he saw a lawyer in Pakistan [in] January 2015, had been advised against taking legal action and of the very dangerous situation that he and his family were in, his delay in leaving Pakistan and returning to Australia [in] February 2015 is not consistent with his claim that he was scared of the threats so much so that he has not returned to Pakistan since then to see his [age] year old child. Third, the letter refers to him receiving threats from unknown persons which is not consistent with his evidence to the Tribunal that he received threats from the money lender.
Fourth, the letter states that the applicant was trapped by an extremist religious organisation because he borrowed money from them. This is not consistent with the applicant’s evidence that he borrowed money from a money lender. Fifth, the letter states that they do not know what religious organisation was making the threats. If the identity of the organisation is unknown, there is no basis on which to assume that it is a religious organisation let alone an extremist religious organisation rather than some other type of organisation or group such as a criminal gang. Sixth, the letter states that the applicant’s family is “under more serious threats” and in a very dangerous situation which is inconsistent with the applicant’s own evidence. Seventh, the letter is purportedly from a lawyer but is not on a letterhead.
In view of the above concerns in relation to the letter from the lawyer, the many concerns in relation to the applicant’s credibility and his own evidence that fraudulent documents were provided to the Department to support his application for a Student visa filed in 2007 and his applications for a Protection visa filed in 2015, the Tribunal has doubts that the letter dated [in] March 2015 from [the Advocate of High Court] is an authentic document. When the Tribunal raised this as an issue with him, he responded that the document from the lawyer in Pakistan is in an affidavit with his stamp and signature. He stated that there is a contact number if the Tribunal wishes to enter into correspondence. The document is not an affidavit but rather a letter titled ‘To Whom It May Concern’.
Country information from DFAT indicates that “document fraud is endemic in Pakistan, particularly in those forms of documentation not issued by a competent central authority such as NADRA”. “”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.” The Tribunal discussed this country information with the applicant, noted that he had admitted to providing false information and bogus documents to the Department to obtain visas in Australia and raised its concerns in relation to the authenticity of the letter from the lawyer. He responded that he has come clean and informed the Tribunal of the fraudulent academic documents that he provided the Department. He stated that he has not provided any other fraudulent documents. He stated that the Tribunal cannot base its decision on general opinions about Pakistan. He stated that, if that was the case, all the documents he provided could have been fraudulent and the Tribunal would not have known any better. He stated that, other than for the fraudulent documents that he had admitted to, all of the other documents were authentic. The Tribunal is not persuaded by this response.
The applicant gave evidence to the Tribunal that when he was close to completing his studies in Pakistan he decided to go overseas and undertake further studies. He stated that he spoke to a migration consultant in Pakistan about studying in the USA or Australia. He stated that the migration consultant suggested that he apply for a Student visa to do a Diploma in Australia as it was more difficult to get a visa for higher studies. He stated that she advised him to come to Australia and then apply for a Student visa to do a Master’s degree. He stated that she asked him to provide her with his documents which he did. He stated that after he obtained a Student visa he was told that his migration consultant “did not show” that he had a Master’s degree and only disclosed his Bachelor degree. He stated that the “gap” after his Bachelor degree “was filled with [course] Certificates and courses he attended.” He stated that the migration consultant provided him with the Certificate and “all the new documents they had produced.” When asked what he did when he found out that false information and bogus documents had been provided to the Department to obtain a Student visa in 2007, he responded that he informed the Department and emailed documents to the Department after his interview with the delegate in 2015.
The applicant’s evidence to the Tribunal is that he completed a Master [degree] in Pakistan in 2003. He stated that he was enrolled in a Master of [subject] degree between 2004 and 2007 but did not complete the degree. He stated that he did not undertake any other courses in Pakistan. He has filed with the Tribunal a copy of the Department’s Decision Record dated 21 September 2015. It indicates that in his initial application for a Student visa to travel to Australia in 2007 and in his subsequent application for a Protection visa he stated that he had gained qualifications and work experience in [a] sector in Pakistan. It indicates that during his interview with the Department in 2015 the delegate discussed with him his employment in [a] sector in Pakistan and his responses did not reflect a level of knowledge commensurate with his claimed experience.
Following the interview, the applicant informed the Department that the documents submitted in support of his claimed [qualifications] and work experience were not genuine and were used at the suggestion of a migration consultant who stated that he was otherwise overqualified to be granted a Student visa. He subsequently provided the Department with evidence of his actual academic qualifications in the field of [subject].
The applicant gave evidence that his first application for a Protection visa was prepared by him and forwarded to his migration agent along with some supporting documents. He stated that she inaccurately included his wife and child as applicants in his first visa application and lodged that with the Department. He stated that the Department found that visa application to be invalid. He stated that his migration agent then prepared a second application for a Protection visa which was identical to the first visa application except that his wife and child were not included as applicants. When asked whether he was satisfied that his second application for a Protection visa is accurate and complete, he responded that apart from the fraudulent supporting documents that were provided with the visa application he is confident that everything else is accurate. He stated that he informed the delegate during his interview that the supporting documents were fraudulent. This is not consistent with the records of the Department.
In the applicant’s second (valid) application for a Protection visa, he claims to have undertaken [courses] in Pakistan between 2002 and 2003. He also claims to have worked in [a] sector in Pakistan from 2004 to 2006. This is not consistent with his evidence to the Tribunal that he did not undertake any [subject] courses in Pakistan and did not work in Pakistan. It is also not consistent with his evidence to the Tribunal that his application for a Protection visa is accurate other than for the fraudulent supporting documents that he provided the Department. This evidence indicates that he intentionally provided false information and bogus documents to the Department to obtain a Protection visa. The Tribunal is not satisfied that he was not complicit with his migration consultant in Pakistan in providing false information and bogus documents to the Department to obtain his Student visa in 2007.
The Tribunal raised these issues and its concerns in relation to his credibility and the veracity of his claims with the applicant. He responded that when his migration agent was preparing his first application for a Protection visa he provided her with all his documents and she scanned them. He stated that she included his wife and child as applicants and the Department refused the application. He stated that after that he did not provide his migration agent with any other documents. He stated that she informed him that she had everything “in the [area].” When asked why he provided his migration agent with fraudulent documents, he responded that they were in his file when he came to Australia and he gave them to her. He stated that he realised what he had done during his interview with the Department in 2015. He stated that he was the first to inform the delegate that the documents were fraudulent.
The Tribunal does not accept this explanation. Firstly, the applicant’s evidence is that he prepared his first application for a Protection visa and that the second application for a Protection visa was identical to the first other than for the fact that his wife and child were not included as applicants. In his application for a Protection visa, he intentionally provided false information in relation to undertaking [the] courses in Pakistan and working in the [sector] in Pakistan. Secondly, the Tribunal is of the view that if he inadvertently provided fraudulent documents to his migration agent who then filed them with the Department and he found out about this during his interview with the Department he would have immediately informed the delegate of the truth. Instead, he waited until after the interview before he disclosed the truth. His willingness to provide false information and bogus documents to obtain Australian visas raise concerns in relation to the credibility of his claims for protection.

In a submission to the Department dated 17 July 2015, the applicant’s migration agent submitted that the money lender informed the applicant that he was a member of the militant group Sipah-e-Sahaba and there was no way of knowing if this man had made this up or if he in fact was “looking to kill or assault [the applicant] and his family as he threatened.” In the Initial Needs Assessment Report prepared by [the] Psychologist, she made an almost identical statement. During the hearing, the Tribunal asked the applicant whether the money lender had any contact with his family members. He responded that the money lender rang his home telephone number and spoke to his father who told him that he had disowned him. He stated that when his [brother] was going overseas on a scholarship the money lender told him he had to pay some money. He stated that his [brother] stated that he is a student and cannot pay any money. He stated that he told his [brother] that when he returned to Pakistan they were not going to leave him alone.
The applicant gave evidence that his [brother] is on a scholarship and studying in [Country 1]. He stated that his [brother] returned to Pakistan for the birth of his first child. He stated that his [brother] stayed in Pakistan for a month and then returned to [Country 1]. He stated that his [brother’s] wife will join him in [Country 1] once she recovers from the birth. He did not make any mention of the money lender contacting or harassing his [brother] when he returned to Pakistan from [Country 1] and stayed there for a month. The Tribunal is of the view that, if the money lender had made threats not to leave his [brother] alone when he returned from [Country 1], he would have contacted his [brother] and harassed or harmed him during the one month that he was in Pakistan.
The applicant’s evidence is that his father, [other] brothers and their families live in Abbottabad in Pakistan and have lived at the same address for a considerable number of years. His evidence is that his father is a retired businessman and his two brothers are businessmen. The Tribunal is of the view that, if the money lender had threatened to assault or kill members of his family as submitted by his migration agent and the Psychologist he consulted, the money lender has had plenty of time and opportunity to do so. His evidence to the Tribunal is that nothing has happened to any of his family members. When the Tribunal raised this as an issue with him, he responded that he has never claimed that the money lender threatened his family. He stated that he threatened to kill him and that was the only threat he made to his family. This is not consistent with his own evidence to the Tribunal referred to above or with the instructions he provided his migration agent and the Psychologist he consulted.
The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 21 September 2015. This indicates that he has a long immigration history in Australia. After coming to Australia on a Student visa in 2007 he applied for and was subsequently granted a subclass 485 Temporary Graduate visa on 19 April 2012. He subsequently applied for a permanent subclass 885 Skilled – Independent visa but his application was invalid. On 4 October 2013, he applied for a Regional Sponsored Migration visa and on 18 December 2013 the nomination for the Regional Sponsored Migration visa was refused. On 20 March 2014, he applied to the Migration Review Tribunal (MRT) for a review of that decision and subsequently withdrew that application on 24 February 2015. He then applied for a Protection visa on 19 March 2015 and that application was found to be invalid. On 7 April 2015, he lodged a second application for a Protection visa. He gave evidence to the Tribunal that he also applied for a permanent visa to immigrate to [Country 2] and that application was refused in 2012.
The applicant’s immigration history indicates that he has a strong desire to live in a Western country like Australia or [Country 2]. It also indicates that he applied for a number of other visas to obtain permanent residence in Australia before eventually applying for a Protection visa. This raises concerns for the Tribunal that his application for a Protection visa was a last resort to obtain permanent residence in Australia. When the Tribunal raised this as an issue with him, he responded that everyone wants a good life with a higher education and a good job. He stated that with good skills he could go anywhere. He stated that he applied to immigrate to [Country 2] whilst working in Australia. He stated that applying for a visa to immigrate to [Country 2] does not mean that he wanted to live there. This response does not address the issue raised with him or alleviate the Tribunal’s concerns.
In his visa application, the applicant claimed that if he returns to Pakistan the lenders will harm him and threaten him. The Tribunal discussed this claim with him. The Tribunal noted that it had been 3 ½ years since he last left Pakistan and asked him why he thought he would have a problem now. He responded that he does not know whether the money lender will be waiting for him or not. He stated that he is scared and has not returned to Pakistan to see his [age] year old child.
In his visa application, the applicant claimed that he will suffer significant harm if he returns to Pakistan because of his adaption to western ways and thoughts and is used to freedom of speech and life in Australia. The Tribunal asked him whether there was any other reason why he did not want to go back to Pakistan. He responded that there was no other reason. The Tribunal referred to this claim in his visa application and sought to clarify whether he was still proceeding with this claim. He responded that whenever you live somewhere for a long time you get used to the lifestyle. He stated that you cannot live in a place illegally.
The Tribunal asked the applicant whether he had any concerns about returning to Pakistan because he had lived in Australia for a long time and had got accustomed to the lifestyle here. He responded that his family has been living with fear for the last 3 years. He stated that if there is nothing to fear about, then returning to a normal lifestyle in Pakistan is not a problem. When asked whether the fear he was referring to was the threats from the money lender, he responded yes.
The Tribunal has considered the submissions made by the applicant’s migration agent to the Department. Her submission is that the applicant is not a refugee as defined in the Refugees Convention but meets the criteria for complementary protection. She submitted that there is a real risk that he would be suffer certain types of harm detailed in [the psychologist’s] Report and will be subject to torture and arbitrary deprived of his right life if he returns to Pakistan. She also submitted that he will suffer significant harm by way of mental torture and mental punishment because of his adaptation to western ways and thoughts as well as being used to freedom of speech and life in Australia. This last submission is not consistent with the applicant’s own evidence referred to in paragraph 68 above.
The Tribunal has considered the Initial Needs Assessment Report prepared by [the] Psychologist, dated [in] March 2015. The Tribunal has a number of concerns about this Report. First, it does not contain any information about [the psychologist’s] qualifications or her relevant work experience. Second, it does not indicate what methodology was used to assess the applicant’s mental health status. Third, it relies on a history provided to her by the applicant. This is of some concern to the Tribunal as this Report was prepared for the purpose of obtaining evidence to support his application for a Protection visa. He has not undertaken any ongoing counselling as recommended or had further consultations with [the psychologist] after she prepared this Report or consulted another Psychologist or Psychiatrist. The Tribunal has found that he has provided false information to the Department in the past to obtain Australian visas. This raises concerns for the Tribunal in relation to the accuracy of the history that he provided [the psychologist].
Fourth, [the psychologist’s] Report indicates that the assessment took place over three dates. The applicant’s evidence is that he had one appointment with her for 2 to 3 hours in 2015. Fifth, [the psychologist’s] Report indicates that she had been provided with documents and Medical Reports which she had duly read and noted. The Report does not indicate what these documents and Medical Reports are or provide any details of the contents of these documents. As the applicant has admitted to providing bogus documents to the Department to support his applications for Australian visas in the past, the Tribunal has concerns that some of the documents provided to [the psychologist] may not be authentic and may have been relied on by her in her assessment of him.
Sixth, the Report indicates that [the psychologist’s] clinical observations of the applicant are consistent with a highly significant depression disorder with anxious features. The clinical basis on which she arrived at this conclusion is not clear from the Report. Seventh, the Report indicates that [the psychologist] undertook her own independent research and this is very evident in the Report which contains pages of country information on Pakistan and conclusions that [the psychologist] has drawn from this country information. This is clearly not her role as a Psychologist or her area of expertise.
Eighth, in the Report [the psychologist] has taken on the role of an advocate and makes submissions on why the applicant should be granted protection in Australia and the contribution he can make to Australia if granted a Protection visa. She has clearly stepped outside of her role as a Psychologist making an independent assessment of the applicant’s mental health status. For the reasons given above, the Tribunal places little weight on this Report.
Other considerations
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.
Section 438 Certificate
The Tribunal informed the applicant that his file from the Department contained a Certificate under s.438 of the Act and it related to the non-disclosure of information contained on one page in his file. The Tribunal informed him that the Certificate was issued on the basis that it was contrary to public interest to disclose the information because it was given to the Department in confidence. The Tribunal informed him that the information subject to the s.438 Certificate is from an anonymous source and indicates that he provided false information and documents to obtain a visa in Australia and also applied for a visa to immigrate to [Country 2], provided false information and was unsuccessful.
The Tribunal invited the applicant to make submissions on the validity of the s.438 Certificate. He stated that if the information was from an anonymous source the Tribunal must verify the information and verify the authenticity of the person who provided the information. He stated that the Certificate is one hundred percent invalid. He stated that he has already informed the Tribunal of the fraudulent documents and there are no other fraudulent documents. He stated that he applied for a [Country 2] visa based on his Australian qualifications. He stated that he does not believe they are fraudulent.
The Tribunal informed the applicant that in its view the s.438 Certificate is valid. The Tribunal informed him but it placed no weight on the information as it was from an anonymous source and the Tribunal has no evidence before it as to the motivation behind providing such information to the Department.
The Tribunal finds that the s.438 Certificate is a valid certificate. In the interests of natural justice, the Tribunal has exercised its discretion to disclose to the applicant the existence of the s.438 Certificate and the gist of the information it refers to. The Tribunal places no weight on the information covered by the s.438 Certificate as it is from an unknown source and the Tribunal is unaware of the motivation of the informant. The Tribunal relies on the evidence given by the applicant in relation to providing the Department with fraudulent documents.
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 [in date] at Abbottabad in Pakistan. The Tribunal accepts that he obtained a Master [degree] in Pakistan in 2003. The Tribunal accepts that he studied for a Master of [subject] degree in Pakistan between 2004 and 2007 but did not complete that degree. The Tribunal accepts that he did not undertake any [subject] courses in Pakistan and did not do any paid work in Pakistan. The Tribunal accepts that he got married [in] 2011 and has [children] of his marriage. The Tribunal accepts that he applied for a visa to immigrate to [Country 2] and his application was refused in 2012.
The Tribunal accepts that the applicant’s mother passed away [in] November 2014 and that he travelled to Pakistan to see his mother before she passed away. The Tribunal does not accept that he borrowed money from a money lender in Pakistan. It follows that the Tribunal does not accept any of his claims that flow from that. The Tribunal does not accept that he will suffer serious harm or significant harm if he returns to Pakistan because of his adaption to western ways and thoughts and/or because he is used to freedom of speech and life in Australia. The Tribunal does not accept that he will suffer serious harm or significant harm if he returns to Pakistan because of any mental health issues.
The Tribunal does not accept that the applicant is at risk of serious harm or significant harm for any of the reasons claimed if he returns to Pakistan now or in the reasonably foreseeable future.
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 any 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 4879

31 October 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice