1513982 (Refugee)

[2018] AATA 3887

1513982 (Refugee) [2018] AATA 3887 (3 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1513982

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Luke Hardy

DATE:3 September 2018

PLACE OF DECISION:  Sydney

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

Statement made on 03 September 2018 at 3:34pm

CATCHWORDS

REFUGEE – Protection visa – Pakistan – Religion – Shi’ite Muslim – Particular social group – Landowner – Fear of harm over property dispute – Victim of attack by cousins – Subject of threat and intimidation – Credibility issues – Inconsistent evidence – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 424AA, 499

Migration Regulations 1994 (Cth), Schedule 2

CASES

MIAC v SZQRB [2013] FCAFC 33

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, [is] a citizen of Pakistan. He last entered Australia [in] July 2014 on a [temporary] visa to complete a [course] he previously attended here in September-October 2013. He lodged a protection visa application on 30 July 2014 and the delegate refused to grant the visa on 22 September 2015. [The applicant] then sought review by the AAT.

3. [The applicant] appeared before the Tribunal on 14 August 2018 to give evidence and present arguments. He was accompanied by his adviser, a registered migration agent. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   The issues

4. The main issue in this case is whether, on accepted facts, [the applicant] is entitled to protection in Australia as a refugee or, if not, on complementary protection grounds. Another issue in this case is his reliability as a witness.

5. For the following reasons, I have concluded that the decision under review should be affirmed.

   Claims

6. [The applicant] claimed in his primary application that his mother inherited farmland in 1992. He claimed it had been in her family for generations. He claimed that some cousins contested her propriety in the land but lost three court cases against his mother in the matter. He claimed that in 2009, while he was living and working as an expatriate professional in [Country 1], his mother transferred authority over the land to him. He provided evidence of this and the validity of the transfer is not in question. He claimed that his cousins have offered money for the land on past occasions but offered less than its market worth. He claimed that when his mother died in March 2014, he and his siblings agreed to let the cousins pay a visit to extend customary condolences. He claimed that the occasion became heated when the cousins, and associates, some of them armed, raised the subject of the land and the situation eventually became acrimonious and violent. [The applicant] claimed he was hit [with] a firearm on that occasion and hospitalised for a number of days. He claimed he intended to report the matter to police (it was purportedly witnessed by several family members) but was advised that he would then need to stay in Pakistan to see the matter through all stages of charges and prosecution. He also claimed fear that the police, being corrupt, would side with his cousins against him. He further claimed that since he is a Shi’ite Muslim, the police would be prejudiced against him. He did not suggest that his cousins, with whom the authorities might side, are not also Shi’ite. Meanwhile, I note, the state previously protected the interests of [the applicant’s] mother in the matter of the land on three previous occasions.

7. [The applicant] claimed he decided to return to [Country 1] partly to ensure continuity with his job there.   He claimed that in May 2014, four men from Pakistan visited and threatened him in his [Country 1] office. For the purposes of this review, he provided the Tribunal with a copy of the delegate’s decision record, which contains an uncontested summary of his evidence. According to that record, he identified by name three of the four men who came to him at his office. He said the fourth man was a stranger to him. He claimed that the three men who he knew were visiting mutual relatives in [Country 1] with whom they were doing some business. He claimed that the intention of the four men who threatened him was to make him retaliate physically so that a [Country 1] court would, as was the common practice, charge him and deport him back to Pakistan.

8. I asked [the applicant] to describe the specific words this group of men used when they encountered him and he said, “You came out of Pakistan. We will get you here.” I put to him that I wondered why they disclosed such an intention rather than carry it out and he said he did not know. I put to him that it seemed as though they were tipping him off and giving him time to flee rather than harming him. He said it was terrible to see them in [Country 1].  

9. [The applicant] claimed he decided soon after to fly to Australia for fear of being persecuted in [Country 1]. He claimed he applied for a second [temporary] visa in June 2014. He said he had already come to Australia in 2013 to attend a [subject] course in. He claimed this was a vocational course as he worked as a [subject] professional in [Country 1]. He claimed to the Tribunal he had not completed the course during his first visit here and needed to undertake one more unit of the course to complete it. He claimed he had intended since the 2013 visit to return soon to Australia to finish the course. He told me that in June 2014 he received an email from the course organisers to tell him about the opportunity of completing the course in July 2014. He obtained his visa for Australia in June 2014 after receiving this email.

10. [The applicant] told the delegate that when he flew to Australia he sent his wife and daughter back to Lahore in Pakistan. He told me he completed the [course] in [Australian City 1] and then applied for a protection visa. He claims his [Country 1] working visa has since expired. When I asked him to confirm that, after not finishing his course in 2013, he intended in any event to come back to Australia to finish it, he reversed his previous claim, saying, “No. It was like a blessing for me.” Here he suggested that the opportunity to come here again was both unsought and unexpected. However, it seems reasonable to wonder why he did not apply for a visa for Australia without waiting, as it were, for a course offer to be made. Overall, on reflection, I found [the applicant’s] evidence about “fleeing” [Country 1] for Australia in 2014 to be inconsistent and unsatisfactory.

11. [The applicant] told me his wife and daughter currently reside in Lahore with his brother’s family. He claims his wife and daughter could be harmed at any time in order to lever him into relinquishing the contested land to the cousins, or to punish him for not doing so. Asked by the delegate whether any of his family members had been harmed in Lahore in his absence , he said that harm could happen any time. He did say to the delegate that his “relatives” approached his “immediate family” and asked how he was, adding that his wife should go and live in [Country 1] with him.  He described this to the delegate as an instance of people trying to obtain news about him. He told the delegate that his adversaries live in a village near Lahore. [The applicant] said to the delegate that his wife and daughter could be” the next step” in the campaign to scare him into selling or transferring the land to the cousins. He told me more or less the same, the overall fact being, however, that no harm has come to them to date, four years after he purportedly evaded the people he encountered in [Country 1]. In a submission to the Tribunal, the adviser suggested that [the applicant’s] wife had “essentially” been harmed in Lahore; this seemed to be a reference to the claim about her being asked how he is and being asked why she had not yet returned to [Country 1]. Whereas such questions from a hostile party can be intimidating, the harm described here did not strike me as being serious or significant or as being indicative of such harm. On the evidence before me, this alleged contact with [the applicant’s] wife was no more recent that the primary decision, made in September 2015. A long time has passed and still [the applicant] is claiming that his wife might one day face harm from these people. On the evidence before me, I give more weight to the fact that she has not been harmed. I asked [the applicant] if any harm had come to his brothers and he sad that no harm had come to them.

12. [The applicant] claims to fear returning to reside anywhere in Pakistan because his cousins, if they could find him in [Country 1], would much more easily track him down in his and their home country. I asked [the applicant] for details about the people who found him in [Country 1]. Firstly, he said he encountered them in a car park beneath his office, not in his office. Significantly, he said there were three men, not four. Asked a number of times to say how many people he encountered in [Country 1], [the applicant] said there were three. I put to him that this information was discrepant with what he had told the Immigration Department, and he said that perhaps there had been more people who he had not seen. He also went on to say that he encountered the three men a number of times over a period of one and a half months near his office, watching him and not speaking to him. This was a new claim not made to the delegate. He told me that on all of these occasions he only saw three men. I asked him if he had told the delegate that he had encountered four men, and he said, “Just three.”

13. Under the protocols of s.424AA, I put to [the applicant] that in oral evidence to the delegate he had previously described and differentiated the four men who allegedly visited him at his office. Under the same protocols, I informed him that there appeared to be a potentially significant discrepancy in his evidence, going to the severity and currency of the threat he claimed to face. I put to him that, subject to comments and responses he might provide, this would be a reason for refusing a protection visa. I asked him if he wished to respond immediately or if he needed more time. He asked for a break to consider his comments and response. I granted fifteen minutes and he accepted that offer. The hearing adjourned.

14. At the resumption of the hearing, [the applicant] said he was confused about who he knew amongst the [Country 1] group who visited him. He said, “There was a fourth person on those occasions: a stranger.” I reminded him how I had put to him his earlier evidence about there having been four persons, only to be told again by him that there had been only three. In response, [the applicant] said that he had only counted the ones he knew. I am concerned that even after I put to him that he had counted four men in his evidence to the Department, he emphatically told me that there were only three: he did not, for example, tell me at that point that he had only been referring to the individuals whose names he knew. I have considered whether time, the vagaries of memory or other factors such as stress or nervousness should be taken into account as factors in the identified inconsistency, not least since [the applicant] told me he had been confused about which individuals he knew. However, it is clear that he identified and differentiated four men in his evidence to the delegate, the uncontested written summary of which he later submitted to the Tribunal (in fact obviating the need to deal with this information specifically under s.424AA). Also, he was now making the new claim about encountering the same three men on a number of occasions. The suggestion of there having been repeated encounters with the same people makes it difficult to accept that [the applicant’s] memory of the event (or events) was deficient due to circumstances outside of his control. 

15. Having considered the evidence before me, I find that [the applicant’s] comments and response did not satisfactorily resolve the discrepancy as to who and how many accosted him in [Country 1]. On the evidence before me, I am not satisfied that [the applicant] was threatened in [Country 1]. This has implications with regard to other aspects of his evidence, because he claims that since he was located and threatened in [Country 1] it would be all the more easy for him to be found and harmed in Pakistan, even if he relocated.

16. [The applicant] told me that the last time he or his family were pressed about the contested land was in [Country 1]. The time before that was the occasion of the cousins coming to pay respects upon the passing of his mother. Very little is alleged to have occurred outside of these two episodes and the earlier court challenges.

17. [The applicant] told me he finished his course before applying for a protection visa. I asked him why, in the claimed circumstances, he attended to affairs in that order and he said he did so because the course started only two days after he arrived in [Australian City 1] from [Country 1].

18. I asked [the applicant] about whether he saw any Convention-related factor in the claims he was making, as they appeared to me to relate entirely to a personal commercial dispute, having no Convention nexus at all. In response, [the applicant] suggested that his profile as a “landowner” seemed relevant because, as he put it, “They want my land...my mother didn’t want to let it go.” In the course of the hearing, [the applicant] said that the land is rented out to tenants who pay rent. He also said that there has been no need for further court cases as “we have control of [the] land.” He said that in the event of his demise, the land would pass to his siblings and/or to his daughter, meaning that the cousins would still never be able to acquire it. He said that they know this because the land is subject to traditional Islamic laws of inheritance.

19. I asked [the applicant] if he wished to comment on the delegate’s finding to the effect that he would or could hire security for personal protection as is not uncommon in Pakistan. In reply, [the applicant] said he could not afford it.

20. [The applicant] provided some independent evidence about property disputes in Pakistan. Some of this information relates to the Taliban in certain regions of Pakistan (evidently other than Lahore) fermenting dissatisfaction in rural populations with regard to land distribution and availability. I have duly considered this information.

21. I asked [the applicant] if he had any claims relating to his status as a Shi’ite Muslim in Pakistan and he said he did not.

    Findings in relation to s.36(2)(a) of the Act

22. I accept that [the applicant] is a Shi’ite Muslim from Lahore. Whereas he suggests that he might not enjoy state protection from harm in a property dispute due to his being a Shi’ite in predominantly Sunni Pakistan, I am not satisfied on the evidence before me that he faces a real chance of persecution in that country in the reasonably foreseeable future for reasons of his religion, either on its own or cumulatively.

23. I accept that [the applicant’s] mother inherited a parcel of agricultural land according to religious and family tradition. I accept that this land is around three or four hours’ drive from Lahore. I accept that some of [the applicant’s] relatives sought to win and/or buy this land from [the applicant’s] mother with no success. I accept that [the applicant’s] mother transferred to him responsibility for and, ultimately, propriety in this land. I accept that this was settled through inheritance upon the death of [the applicant’s] mother in 2014.

24. I accept and give weight to the fact that [the applicant’s] mother won three challenges to her rightful ownership of the land. I find that this is strong evidence of the state’s willingness and capacity to protect the propriety of [the applicant’s] mother and her heir, [the applicant] himself, in that parcel of land. I find that [the applicant’s] suggestions about the Pakistan authorities not being willing to protect him in the matter of the claimed land dispute in this case to be poorly-argued and implausible, particularly the claim about the authorities being likely to discriminate against him due to his being a Shi’ite.

25. I am prepared to accept that [the applicant’s] relatives have tried unsuccessfully to buy the contended parcel of land from him. I accept that [the applicant] has been unimpressed with the price offered, but I also accept that he has made it clear to everyone that the land is simply not for sale. I find on the evidence before me that the cousins have no better chance of gaining the land by killing [the applicant].

26. I accept that these cousins visited [the applicant] and his siblings to pay respects on the passing of his mother, or at least purporting to pay respects. I accept that the issue of the land arose in the course of the visit, as contentious family matters can easily do. I accept that the discussion turned to arguing and that the arguing became heated. I am prepared to accept that the cousins were armed, as armed civilian men are not uncommonly seen going about in public in photographs of life in Pakistan, particularly in Punjab. I do not accept that the mere presence of firearms at the gathering is evidence of premeditation to inflict violence on the occasion, although I accept that [the applicant] was injured [by] what he recalls as a gun butt. I accept that he was hospitalised for a number of days. I find on the evidence before me that the cousins were never invited back. Apart from the alleged episode (or, in later evidence, episodes) in [Country 1], this episode in 2014 was the last claimed clash that [the applicant] and his family had with these antipathetic cousins.

27. On the inconsistent and seemingly improvised evidence before me, I do not believe that [the applicant] ever encountered any individuals in [Country 1] who raised with him the matter of the land dispute described above, let alone that anyone threatened him or intimidated him, whether on one occasion as initially claimed or over several days as later suggested. I do not accept the suggestion that [the applicant’s] immediate family is a risk in Lahore of being harmed due to the land dispute being ongoing and, in the eyes of the cousins, unresolved. On the evidence before me I find that [the applicant’s] evidence of the severity and longevity of the dispute in this case is greatly exaggerated and lacks credibility. Whereas I accept that the land dispute gave rise to a violent clash during the family gathering after the passing of [the applicant’s] mother in 2014, I find that this was a spontaneous event which [the applicant] will avoid in future simply by not inviting or otherwise allowing relatives to visit him in Lahore. I do not accept that [the applicant’s] presence in Lahore in the future will re-ignite the dispute over the contentious farmland. I am also not satisfied that he was or would be unable to avail himself of effective state protection.

28. The evidence of the current circumstances of [the applicant’s] wife, daughter and siblings in Lahore leads me to conclude that it is safe for him and them to live in Lahore. Whereas [the applicant] has said to me that it would be expensive to support his family in Lahore or in other parts of Pakistan I do not accept that such conditions would amount or give rise to serious or significant harm there in the reasonably foreseeable future. I find that [the applicant] and his family are welcome and able to reside with his siblings in the family home in Lahore.

1. I find on all of the evidence before me that the dispute at the centre of this protection visa application is a personal commercial dispute and that it has no Convention nexus.

2. For all these reasons, I am not satisfied that [the applicant] faces a real chance of Convention-related persecution in Pakistan. His claimed fear of Convention-related persecution is not well founded. He is not a refugee.

3. For the reasons given above, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under the Refugee Convention. Therefore he does not satisfy the criterion set out in s.36(2)(a).

   Findings in relation to s.36(2)(aa) of the Act

4. Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).

5. A person who is found not to meet the refugee criterion in s.36(2)(a) may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.

6. Relevant to this, s.36(2)(aa) refers to a “real risk” of an applicant suffering significant harm. The “real risk” test imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear” in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).

7. [The applicant’s] complementary protection claims essentially rely on the same facts as his refugee claims, which failed on the partly basis of a lack of credibility and due to the lack of a real chance of serious harm amounting to persecution. In light of my findings of fact above, and in light of the “real risk” test imposing the same standard as the “real chance” test, I find that [the applicant’s] claims can no more succeed as complementary protection claims.

8. Having considered all of the evidence before me in its entirety, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Pakistan, there is a real risk that [the applicant] will suffer significant harm.

9. Accordingly, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).]

   Other findings

10. There is no suggestion that [the applicant] satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, he does not satisfy the criterion in s.36(2).

    DECISION

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

    Luke Hardy
    Member

    
    

    ATTACHMENT A

    RELEVANT LAW

12. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

13. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

14. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

15. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

16. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.