1514689 (Refugee)

1514689 (Refugee) [2018] AATA 3629 (14 August 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1514689
COUNTRY OF REFERENCE:                  Pakistan
MEMBER:James Silva
DATE:14 August 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 14 August 2018 at 2:29pm
CATCHWORDS
Refugee – Protection visa – Pakistan – Claims differ to primary application – Assisted Christians who were victims of mob violence – Social group – Secret marriage with woman from another caste – Shame and stigma – Couple divorced – Fears honour killings – Credibility issues – Unsubstantiated evidence – Improvising details of events – No genuine fear of harm – Decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 91R, 91S, 499
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant is a man in his early [age] from Pakistan.
The applicant arrived in Australia on 27 April 2014, as the holder of a [temporary] visa. He applied for a protection (class XA) visa on 29 April 2014, together with his ex-wife. On 2 October 2015, the delegate of the Minister for Immigration and Border Protection refused to grant the application pursuant to s.65 of the Migration Act 1958 (the Act). (The applicant’s ex-wife has returned to Pakistan, and the couple divorced in May 2015. The decision under review does not include her.)
This is an application for review of that decision.
The applicant attended a Tribunal hearing on 31 May 2018.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Criteria for a protection visa
The issue in this case is whether Australia has protection obligations in respect of the applicant. This can arise if he meets the refugee criterion, and if that is not the case, if he is entitled to complementary protection. A summary of the relevant law is at Attachment A.
Claims
The applicant’s main claim before the Tribunal was that he secretly married a Pakistani woman in 2014, and this brought shame and social stigma on her family. His wife’s return to Pakistan and the couple’s later divorce add to his concerns. The applicant fears that his wife’s powerful relatives will conduct an honour killing. His own family has now disowned him, for their own safety; and the Pakistan authorities will not intervene to protect him.
In his primary application, the applicant claimed that in March 2013, he assisted some Christians who were the victims of mob violence in Lahore. Muslim activists attacked him ‘and his wife’ in their home. The police refused to protect him, on the basis that he had acted against Islam. He fears that Muslim extremists will kill him on his return.
Background
The applicant is a [age] year old man from Lahore, Pakistan. He is a speaker of Urdu, and a Sunni Muslim. He advised the Tribunal, however, that his first language was Punjabi.
The applicant provided few details of his background with the protection visa application, as Form 866C (personal background) was missing. He provided some background information to the Department and at the Tribunal hearing.
The applicant lived in [Lahore] from birth. He attended school up to Year [level]. He then started working with friends who operated [a] business with [Country 1]. In 2003, he started his own company, [Company 1]. The applicant told the Tribunal that he wound up the business operation before coming to Australia. As noted in the decision under review, [Company 1] is a family company, with the applicant’s father, the applicant and his brother listed as partners.
The applicant’s family lives in Lahore. His father works in a [certain role] and owns land outside the city. He has [siblings]. One brother, who had worked for [Company 1] in [Country 1], died in Pakistan. The applicant said vaguely that some of the brothers were involved in [Company 1], and/or had their own businesses in [Lahore]. He claimed to have minimal contact with family members, speaking only with his mother at infrequent intervals. The lack of contact was linked with his problematic marriage.
The applicant entered Australia on a Pakistan passport issued in [2011], valid for five years. He and his ex-wife obtained Australian [visas] for travel to [Country 2], although their intention was to enter and stay in Australia. He stated on the protection visa application form that he had never held a previous travel document. However, he also indicated that he had visited [Country 1] in 2009, and [Country 3] [and two other countries] in June 2010, as a ‘visitor’. He told the Tribunal that these were, in fact, business trips.
Evidence
The Tribunal has before it a range of material, including, relevantly:
§ The applicant’s protection visa application form, lodged on 29 April 2014. The applicant’s protection claims are stated briefly on the form. The applicant’s wife was included in the application as a member of the same family unit who does not have protection claims of her own.
§ Identity documents: Photocopy of his current Pakistan passport, issued in [2011], and his previous passport, issued in [2006]; and his national identity card.
§ Other documents: Copy of the applicant’s marriage registration certificate, dated [January] 2014; a driving licence; a [professional] membership card; and his Australian visa grant notice, issued on 22 April 2014. The applicant later presented to the Department a copy of a divorce certificate; the date of divorce was [May] 2015.
§ Documents relating to the applicant’s wife: Photocopy of her Pakistan passport, issued in [2014], and her national identity card.
§ Supporting documents:
- The applicant presented a partial photocopy of a Pakistan passport in the name of his friend [Mr A], born in [year], and what appears to be his identity card (in Urdu only).
- The applicant stated on Form 866B (question 43) that he has a First Information Report (‘police FIR’) that he plans to submit as documentary evidence later. He had thought that his opponents had filed an FIR against him, but his family later advised that that was not the case.
§ A Department report[1] records that the applicant presented at the [Country 4] Consulate in Islamabad [in] January 2013 to apply for a [Country 4] visa.
§ Country information; The Department file includes several printouts of press reports about mob attacks on Christians in Lahore in March 2013.
§ The applicant attended a protection visa interview (‘Department interview’) on 9 June 2015. The audio recording of the interview is on the Department file, and details of it recorded in the decision under review.
§ The protection visa decision record (‘delegate’s decision’) relating to the applicant’s wife, dated 10 June 2015, records that she departed Australia on 16 October 2014, and therefore does not meet the requirements for the grant of a protection visa.
§ The ‘delegate’s decision record’ of 2 October 2015 in relation to the applicant, which is the subject of this review.
§ The application for review, lodged on 30 October 2015, has attached to it a copy of the delegate’s decision record.
§ The applicant provided a further statement dated 28 October 2015, which addresses aspects of the delegate’s decision, and presents a new claim, based on his former marriage.
[1] The Department of Home Affairs (then Immigration and Border Protection) Identity Resolution Centre issued a Five Country Conference (FCC) Fingerprint Match Report [in] May 2014.
The applicant attended a Tribunal hearing on 31 May 2018, conducted with the assistance of an interpreter in the Punjabi and English languages. The applicant is not represented in this matter, and did not present any witnesses or additional documents. A Tribunal member observed the hearing, with the applicant’s prior (and written) consent.
Country of reference / receiving country
The applicant claims to be a national of Pakistan. He holds a Pakistan passport; he speaks Punjabi, Pakistan’s most widely spoken language; and he demonstrated a good knowledge of Lahore and that country. On the available evidence, the Tribunal finds that he is a national of Pakistan. Pakistan is therefore the country of reference for the purpose of his assessing the applicant’s refugee claims, and the receiving country when assessing his eligibility for complementary protection.
CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS
Assessment of claims: credibility
The Tribunal has taken into account the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole.
At hearing, the applicant expressed concerns that the persons who had assisted him with his application – a person in Pakistan who had completed the original application form, and the migration agent who had helped him write a statement to the Tribunal – had made errors. He did not propose any changes to his past statements, but instead stressed that he would tell the truth in his oral evidence at hearing. The applicant also mentioned in passing that he was fasting for Ramadan, but he did not indicate that this affected his ability to present his case.
The Tribunal has a number of concerns about the applicant’s claims and evidence.
First, the applicant’s primary application focused on the risks he faced from Muslims groups in Pakistan, after sheltering Christians who suffered during the mob violence in Lahore in March 2013. At hearing, he downplayed this claim, and was reluctant to discuss it. Instead, he focused on his claim to be at risk of an honour killing at the hands of his ex-wife’s cousins. The Tribunal appreciates that the applicant’s concerns may have changed during the more than four years between the lodgement of his protection visa application and the Tribunal hearing. However, his shift from one set of claims to another raises questions about the genuineness of the initial claims, and his overall credibility.
Second, there are stark inconsistencies in the applicant’s evidence about basic elements of his claims, such as when and how his and his ex-wife’s families learned about the marriage; the threats he received; and his conduct in Pakistan.
Third, the applicant’s evidence appeared selective and lacking in candour. For instance, as discussed at hearing, he failed to disclose his unsuccessful application for a [Country 4] visa in early 2013 (well before the alleged threats arising from either the anti-Christian violence or the marriage), and initially denied it at the Department interview[2]. At hearing, he said that he had indeed told the Department officer about his [Country 4] visa application and the purpose for it. The Tribunal is concerned that he did so only after it became apparent that there was evidence to disprove his initial denial.
[2] As noted in the decision record that the applicant submitted with his application for review.
Fourth, the Tribunal found much of the applicant’s evidence to be vague, unsubstantiated and lacking in context. It formed the view that he was not speaking from personal experience, and indeed that he was improvising as he went along.
These concerns lead the Tribunal to have significant doubts about the credibility of the applicant’s claims and evidence. It addresses these in the assessment below.
Marriage and potential honour killing
Relationship with and marriage to [Ms B]
Relationship and marriage in Pakistan
The applicant married [Ms B] [in] January 2014. They travelled to Australia together, and lodged the protection visa application jointly.
The applicant told the Tribunal that he and [Ms B] lived in the same part of Lahore, and had first met in a park near her home. Although he was unsure, he thought that they had dated for about two or three years before marrying.
According to his evidence, they were always careful about the relationship. They avoided each other’s families, and instead met in other parts of Lahore, going out for dinner or to juice shops. They never met each other’s families or visited each other’s homes. Nonetheless, for a while, the applicant’s business office was on the ground floor of the same building where [Ms B]’s family had their residence upstairs.
The reason for the couple’s secrecy was their caste difference – he is from the [one] caste, and she is [from another]. In other words, the couple anticipated that their families would not accept the relationship. The applicant told the Tribunal that the relationship remained a secret throughout the couple’s stay in Pakistan, except that [Ms B] confided about it to her sister. (He contradicted this in later evidence, however: see below.)
The applicant said that the couple married in a mosque in another part of the city. There were two witnesses, but no other people present. He initially said that they did not register it, but a marriage registration certificate that he produced to the Department shows that the marriage took place [in] January 2014, and it was indeed registered on [date] February 2014.
The applicant said that the couple continued living separately after the marriage, in their respective family homes. Their plan was to leave Pakistan, as [Ms B] had alerted the applicant that her cousins were dangerous (that is, she expected that they would oppose the marriage and present a threat to one or both of them).
The Department file includes a photocopy of [Ms B]’s passport, issued [in] 2014. Asked how [Ms B] made the practical arrangements to depart (such as passport and luggage), the applicant said that she used to find some excuse to go out, and he would meet up with and accompany her to her various appointments. The applicant told the Tribunal that he has no correspondence, photographs or other evidence relating to the couple’s interactions in Pakistan.
Relationship in Australia
The applicant stated that the couple travelled to Australia together, and co-habited for about eight or nine months. He initially said that he does not have any photographs or other evidence to hand, as he lost his mobile telephone. After the hearing, however, he submitted three photographs of him and [Ms B] in [Australian City 1]. The photographs show the couple in a park setting, which the applicant identified as [a named] Park. In one instance, they are with another couple. The applicant also said that the couple had no mutual friends in Australia, but later commented that there might be some people who could attest to the relationship.
The applicant also revealed that his ex-wife was pregnant when she left Australia, and that they now have a daughter. He said that she had attended [Australian City 1] hospital and had the pregnancy confirmed, before departing Australia. He believed that hospital records might show that his ex-wife attended in the early stages of her pregnancy, and he expressed an interest in checking if he could obtain a copy of the ultrasound in order to prove that she was pregnant. The Tribunal has received no further material in this regard.
The applicant claimed that he arranged for [Ms B]’s to travel to [Country 3] in October 2014, to meet up with her sister, who was planning to marry. He purchased her airline ticket and took her to the airport. It was only later that he learned that she had not planned to return to Australia, but instead had travelled on to Pakistan. He said that he filed for divorce after [Ms B]’s return to Pakistan, adding that he went ‘through a lot’ because of her. He said that he does not really know why she returned to Pakistan, although his statement of 28 October 2015 appears to link it with the couple’s financial hardships and ‘uncertainty of our future about our stay in Australia’ (implicitly, residency status).
The applicant submitted to the Department a divorce registration certificate, issued by the Lahore Union Council, in English and Urdu. It appears to show that the applicant filed for divorce in March 2015, and that it was registered on [date] May 2015. Country information indicates that talaq is one means by which Muslim men may divorce their wives in Pakistan.[3] Article 7(1) of the Muslim Family Law Ordinance, 1961, states: ‘Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of the talaq in any form whatsoever, give the chairman a notice in writing of his having done so, and shall supply a copy thereof to the wife’.
[3] According to an essay in the Harvard Journal of Law & Gender, “Islamic Shari’a confers on men alone a comprehensive right to divorce. That male prerogative is unilateral, arbitrary, and unfettered: men may exercise their dissolution power at will, anytime, and for any reason— or no reason at all”. Yefet, K C , 2011, ‘The Constitution And Female-Initiated Divorce In Pakistan: Western Liberalism in Islamic Garb, Harvard Journal of Law & Gender, Volume 34, pp.557-558:
The applicant said he is no longer in contact with his ex-wife or her sister, and he now has minimal contact with his own family (because of the trouble he caused them). The Tribunal was unable to elicit any meaningful information about his efforts to contact his ex-wife, or make any enquiries about his claimed child.
Consideration: The Tribunal accepts that the applicant formally married [Ms B] in January 2014; that she then obtained a Pakistan passport and accompanied him to Australia on a [temporary] visa; that she returned to Pakistan (via [Country 3]) in October 2014, and the applicant divorced her in March 2015 (registered in May 2015).
The Tribunal has some concerns about the genuineness of the marriage, given the paucity of supporting evidence about the relationship from both Pakistan and Australia; and the applicant’s inconsistent evidence about the degree of family knowledge of it. Although the applicant claims to have a daughter from the relationship, he was evasive about how he came to know this (since he no longer claims to have contact with [Ms B], and referred only to an unidentified friend as having informed him), and he has provided no persuasive evidence of the birth or his efforts to contact her. The Tribunal has some concerns that the marriage may have been contrived for migration purposes. Despite these misgivings, the Tribunal accepts for the purpose of this decision that the applicant may have been in a genuine married relationship with [Ms B]. It is unable to determine whether or not the applicant has a daughter, particularly given his guarded, incomplete evidence about how he knows that he is a father. Nonetheless, this does not play a determinative role in this decision.
Threats arising from the marriage
Situation in Pakistan
In the protection visa application, the applicant mentioned no fears or concerns arising from the marriage.
At the Department interview, as the delegate noted in the decision record, the applicant stated that [Ms B]’s cousins and uncles were dangerous. He said that in February 2014, shortly before the marriage, his parents had to move home, as there were people hanging around the family home in a menacing manner. The context suggested strongly that it was because of the marriage, although this was not entirely clear. In any event, his statements indicated that his marriage was known to both families and to third parties, and that it had apparently led to some problems or threats.
The Tribunal notes in passing that, although the delegate did not explore the issues concerning the marriage in detail or make findings, she speculated that conflicts between the couple’s families might have been behind his family’s move to a new home in early 2014 and the couple’s decision to depart Pakistan.

It was in October 2015[4], in the statement accompanying his review application, that the applicant first articulated clearly that the marriage-related threats were an ‘additional ground for protection claim’. The statement, given in Urdu and translated and read back to him by his then migration [agent], described the situation in Pakistan as follows:
§ He and [Ms B] married ‘against the wills of both our parents’.
§ ‘Soon after the marriage my family disowned me and broke all ties with me. My ex-wife’s cousins […] were very furious. Our marriage was a cause of great shame and social stigma for them. […]’
§ ‘At that time, I was not concerned about the opposition. However, once I arrived in Australia […] she went into Pakistan [sic] and I divorced [her] citing my situation and family pressure’.
[4] Statement of 28 October 2015, attached to the application for review.
The Tribunal discussed with the applicant his description at the Department interview of the couple’s problems (as set out in the decision record), and read to him the relevant passages from his October 2015 statement. It noted that these gave the impression that both his and [Ms B]’s family knew about the marriage while they were still in Pakistan, and had indicated their opposition (albeit not necessarily in a threatening way, at that stage). The applicant reiterated that neither family knew about the relationship at that time, so his earlier oral and written statements gave the wrong impression.
The Tribunal discussed with the applicant the timeline for the marriage, and his and [Ms B]’s departure from Pakistan. Regardless of which version of events was true – that is, whether the couple were secretly married and living in apprehension while planning to leave Pakistan; or whether their families (in particular, her cousins) had already signalled their opposition – there seemed to be no urgency in their departure from Pakistan, given that [Ms B] obtained her passport in [2014]. Key dates that appeared from the applicant’s evidence and the delegate’s decision record[5] were:
§ Marriage: [date] January 2014
§ Marriage registration: [date] February 2014
§ [Ms B]’s national ID card: [date] 2014
§ [Ms B]’s passport: [date] 2014
§ [Temporary] visa application lodged: 2 April 2014
§ Visa granted: 22 April 2014
§ Arrival in Australia: 27 April 2014
[5] These were also set out in the delegate’s decision record, attached to the application for review.
The applicant said that the couple planned to come to Australia after marrying, and they obtained a [visa] on the basis that they were planning to travel to [Country 2]. Asked about his activities in early 2014, prior to their departure from Pakistan, the applicant said that he was gathering his cash. He said that he wound up his business [Company 1]. As for the process of winding up the business – for instance, whether he had to make payments to investors, or finalise transactions – he said that he withdrew cash from the business. He thought there might be some paperwork relating to final shipments, but these are in Pakistan. As for his investors’ funds, the applicant said that the main investors were his brothers, and he left them his two motorcycles (in lieu of returning their cash). This, he said, is a fairly normal arrangement.
After arriving in Australia:
In his October 2015 statement, the applicant wrote that [Ms B] returned to Pakistan. As noted above, he linked this with their ‘financial hardships and uncertainty about [their] stay in Australia’. He had arranged for her to travel to [Country 3], but she continued on to Pakistan. He later divorced her. The statement continues: ‘This situation has further fuelled the already burning animosity of her cousins,’ because he has ‘tarnished their family honour by leaving [his] ex-wife that way’ (in other words, by divorcing her). Relevantly, he wrote: ‘I came to know from my family that they intended to kill me’.
At hearing, the applicant claimed that family members (except [Ms B]’s sister) did not know about the marriage while the couple was in Pakistan. A few days after they had left for Australia, [Ms B]’s sister came under pressure to explain [Ms B]’s disappearance, and revealed the marriage to her parents. The sister then telephoned the couple in Australia to warn them that the cousins were very angry, and they ‘will not spare’ the applicant. The applicant said that he also has information from another person (the friend of a friend) who has indirect contact with the cousins, and who also knows of their intentions. He confirmed that it was [Ms B]’s sister and the unnamed third person who told him about the threats.
The Tribunal put to the applicant that in his written statement, he had said that he came to know about the death threats from his family (not from [Ms B]’s sister or some other friend). He replied that [Ms B]’s family and his own are having an ongoing feud, and his mother did mention to him that there are ‘lots of issues’ now (by implication, including death threats if the applicant were to return to Lahore). The applicant was unable to shed any further light on his inconsistent claims as to how he actually came to know about these threats, other than to reiterate that his claims and his fears are genuine.
The applicant said that he has spoken to his mother on a few occasions, but now no longer has contacts with other family members. The feud between his family and [Ms B]’s has meant that his own family has disowned or ceased contact with him. As stated in October 2015: ‘My family has saved themselves by repudiating me from the family’. The Tribunal wondered how, if he has no contact with [Ms B], her family or his own family, he came to know that he has a daughter. He replied that the unnamed third party told him about this. He declined to give any further information about this person.
Consideration: The Tribunal accepts that the applicant and his ex-wife [Ms B] travelled to Australia together; that she went to [Country 3] in October 2014, and from there to Pakistan; and that the applicant divorced her in the first half of 2015. As noted above, the Tribunal has doubts about the genuineness of the relationship, and is not satisfied on the limited available evidence that the applicant is the father of a daughter to his ex-wife. In any event, it does accept that financial hardship and uncertainty about their migration status were (as set out in the statement of October 2015) factors in the ex-wife’s decision to return to Pakistan.
The Tribunal notes country information indicating that family disputes and honour crimes are prevalent in Pakistan; that the triggers for these are often family disapproval of relationships or marriages (for reasons that may include caste, ethnic or religious differences, social mores, or personal considerations) and that both men and women may be targeted in honour crimes (although the majority of cases involve women).[6]
[6] See, for instance, Gauhar, N A 2014, Honour Crimes in Pakistan: Unveiling Reality and Perception, 31 March, Community Appraisal & Motivation Program, p.24 <CIS2F827D91307>; Human Rights Commission of Pakistan 2014, State of Human Rights in 2013, pp.180-181, <CIS28012>
In the present case, however, the applicant has given inconsistent and unreliable evidence about the relationship, the family’s knowledge of it, and the nature and timing of the subsequent threats. These include, most significantly:
§ Whether the couple married in secret, and revealed it only to his ex-wife’s sister; or whether members of both families were aware of the relationship and later marriage in Pakistan, and opposed it while the couple were still there.
§ Whether the applicant and his family experienced harassment prior to his departure from Pakistan (such as his parents having to move home before the marriage, and him receiving death threats), some other pressure or opposition; or whether these problems emerged only after the couple’s arrival in Australia, and the families’ discovery of their secret marriage.
§ Whether the applicant learned about the cousins’ threats to him from his own family; or from [Ms B]’s sister and a third person.
In his statement of 28 October 2015, the applicant wrote that [Ms B]’s cousins have ‘political influence’ in Lahore. Asked for details at the hearing, he said that they have strong connections with the Muslim League, but he was not sure whether they belonged to any particular party. He said they act like a gang. As for their income or business activities, he said that they ‘just create problems’. [Ms B] and he had not discussed their background in detail. The Tribunal finds it odd that the applicant did not find out more about these men, if only to better understand of their capacity to harm him and their modus operandi in Pakistan. Other aspects of the applicant’s evidence, such as his and his ex-wife’s preparations to leave Pakistan, and the source of his information about his daughter (if, as claimed, he has no contact with his ex-wife or her family, and minimal contact with his mother) add to the Tribunal’s view that his claims are contrived and lacking in credibility.
In light of these concerns, the Tribunal does not accept that the applicant’s marriage to and subsequent divorce from [Ms B], or any relationship that they may have had, antagonised members of her family and/or his family, to the point of representing credible threats to the applicant (or [Ms B]). It does not accept that [Ms B] has politically influential cousins who threatened to kill or seriously harm the applicant; that the ‘arrangement’ between him and [Ms B] brought shame, stigma or disrepute on either family (including for reasons of caste); or that his own family members have disowned or ceased contact with him for their own safety, or any other reason.
The Tribunal rejects all associated claims. It finds that the applicant does not genuinely fear that he is at risk from anyone as a result of his past links (including any relationship, the marriage and/or the divorce) with [Ms B].
The Tribunal finds that the applicant departed Pakistan in an orderly manner, including after making arrangements for family members to take charge of [Company 1], and not in response to any threats or fears or imminent threats from [Ms B]’s family or others.
Threats from Lahore Muslim Extremists
In his primary application, the applicant claimed that he came to the adverse attention of Muslim activists in Lahore in March 2013, in the immediate aftermath of anti-Christian violence in March 2013. The key points of his claims are:
§ In March 2013, Muslim activists attacked Christian homes in [Suburb 1], in [Lahore].
§ The applicant had a Christian friend, [Mr A], who lived in the area. The activis`ts attacked [Mr A]’s home, and it was burned down. [Mr A] came to the applicant for assistance, and the applicant allowed him and his family to stay at his home.
§ Muslim extremists attacked the applicant and his wife [sic] in their home, and threatened to kill them.
§ The applicant sought protection from the police, but they refused to help, because he had ‘taken action’ against Islam.
§ He fears that Muslim extremists will kill him for having protected his Christian friend.
The applicant reiterated these claims at the Department interview (details of which are included in the decision record, which the applicant submitted to the Tribunal) and in his submission to the Tribunal dated 28 October 2015.
§ The applicant appeared uncertain about the exact date of the anti-Christian violence. Press reports indicate that the attacks in the Christian neighbourhood of [Suburb 1] took place on [date 1] or [date 2] March 2013, not [date 3] March 2013.[7]
§ The applicant claimed that on the morning of the attacks, he had been visiting a business friend some distance away. In the evening, he went to the area, and it was there that he found [Mr A] and three females, crying outside their home.
§ He invited them into his home that evening. Soon after, his family received threatening calls. Later that night, before midnight, the applicant’s mother asked [Mr A] and his relatives to leave, fearing that their presence would put the rest of the family in danger.
§ Muslims started to pursue the applicant. Some four or five days later, he and his family received anonymous death threats by telephone.
[7] [Source deleted]
At the outset of the hearing, the applicant stated briefly that he helped a Christian friend in early 2013, and some of his friends turned against him because of that. He said that ‘something serious’ could happen to him if he returns. In later evidence, he said that this is no longer his main concern, and that he has no further information about it since he is no longer living in Lahore. The Tribunal had difficulty obtaining any further insight. The applicant reiterated that he was subject to threats after [Mr A] and his three sisters came to shelter in his house once, in 2013. He is unsure whether that might cause him problems in the future. He no longer has any contact with his friend [Mr A].
The applicant told the Tribunal in earlier evidence that he lived in Lahore and with his family throughout his stay in Pakistan, aside from travels abroad for business. Asked whether he had spent any time in ‘hiding’ following the March 2013 incidents, he commented briefly that he had moved the office of [Company 1] to the ground floor of the building where [Ms B]’s family lived. When asked whether this meant that he continued living in the family home, not far away, throughout the period after the March 2013 incidents, the applicant replied obliquely that he was no longer relying on those circumstances (that is, this claim).
Consideration: The Tribunal finds that the applicant has no genuine fear of harm arising from the March 2013 anti-Christian violence in Lahore. It notes the passage of more than five years since those incidents; and has considered the possibility that the applicant’s fears have diminished (either in absolute terms, or relative to the claimed fears from [Ms B]’s relatives). However, he has provided no persuasive explanation as to why his priorities have changed, other than that he now has what he considers to be a stronger claim for protection, based on his relationship with [Ms B].
The applicant’s lack of engagement with this claim – for instance, he showed no interest in contacting [Mr A] or enquiring after his welfare as a Christian – casts further doubt on this claim. His conduct – including his evasive responses when asked about his application for a US visa before the March 2013, and his continued stay and business activities in Lahore for more than a year after the riots, despite his claim to have been in ‘hiding’ – reinforce the Tribunal’s concerns.
The Tribunal does not accept that the applicant sheltered any Christians in March 2013; that he or family members received threats from Muslim extremists (either immediately after the attacks, or in the subsequent period); that he approached the police but they refused him protection; or that he departed Pakistan for any reason associated with such violence.
Findings
The Tribunal accepts that the applicant married and later divorced [Ms B]; that he may have may have been in a genuine relationship with her; that his and/or [Ms B]’s family members may have had concerns about or disapproved of the relationship; and that this may have been one factor (alongside the opportunities of living abroad) that motivated the couple to depart Pakistan for Australia. However, the Tribunal does not accept that the applicant and [Ms B] conducted the relationship in secret, fearing a violent reaction from her cousins or others; that they received death threats (or other credible threats) in Pakistan or Australia; that the applicant and/or his family had to move home or go into hiding in Pakistan in light of such threats; that the applicant’s family has disowned him (due to the relationship itself or their fears from [Ms B]’s relatives); or that [Ms B] left Australia and precipitated the divorce due to any pressure or threats from her family. The Tribunal does not accept that the applicant genuinely fears that [Ms B]’s cousins will threaten and try to kill him, in Lahore or throughout Pakistan. The Tribunal does not accept that [Ms B]’s return to Pakistan, the couple’s divorce, or any subsequent developments, cause the applicant to fear for his safety.
In sum, the Tribunal accepts that the applicant’s marriage to [Ms B] may have resulted in some degree of resistance from family members. However, it rejects as unreliable his claims that [Ms B]’s relatives have made credible threats (including death threats) to him and his family, including while the couple were in Pakistan, after their arrival in Australia and after the divorce.
The Tribunal does not accept that the applicant had any role in protecting [Mr A] or any other Christians in the wake of the March 2013 riots, and it rejects all associated claims.
ASSESSMENT: REFUGEE CRITERION
The Tribunal now assesses whether, on the basis of the findings of fact above, the applicant’s future conduct if he returns to Pakistan, and relevant country information, whether he has a well-founded fear of Convention-related persecution, now or in the reasonable foreseeable future.
The Tribunal has accepted above that the applicant and [Ms B] were in a relationship; that they may have faced some pressure from family members (one or both sides); and that they may have come to Australia partly in response to such pressure (as well as for other reasons, such as the prospect of living in a more prosperous and liberal country). However, the Tribunal has rejected the claims that [Ms B]’s cousins or others were strongly opposed to the relationship – for reasons of caste, or the couple’s conduct (secrecy) – and threatened the applicant, his family and/or [Ms B]. The Tribunal has rejected all associated claims of past harm, including that the applicant had to move home or live ‘in hiding’; that he and [Ms B] had to live in secrecy and escape Pakistan; that his family had to move home; that his own family has disowned him (for their safety); and that the applicant is living in fear. The Tribunal does not accept that any subsequent developments, such as [Ms B]’s return to Pakistan or the couple’s divorce, put the applicant at risk of serious harm from [Ms B]’s relatives or anyone.
The Tribunal has taken into account country information about honour killings and social conditions in Pakistan, and the applicant’s likely conduct on his return to Pakistan, where his family continues to live and have business interests. In light of the applicant’s past experiences and personal circumstances, the Tribunal concludes that he does not face a real risk of serious harm amounting to persecution for any reason linked with his relationship to [Ms B].
The Tribunal has rejected all of the applicant’s claims linked with the anti-Christian violence in Lahore in March 2013. It finds nothing to indicate that he faces a real chance of serious harm amounting to persecution arising from these incidents, and/or any links that he has with [Mr A] or other Christians in Lahore.
The Tribunal has considered the applicant’s claims and evidence, individually and cumulatively. For the reasons set out above, the Tribunal does not accept that if the applicant returns to Pakistan now or in the foreseeable future that there is a real chance he will face serious harm for any reason arising out: (a) the anti-Christian riots in Lahore in March 2013; or (b) his marriage to [Ms B] in February 2014, or their divorce in the first half of 2015. In these circumstances, it is not necessary for the Tribunal to consider and determine whether the feared harm is Convention-related (i.e. because one or more of the Convention grounds is the essential and significant reason for the persecutors’ actions, or because the State will withhold protection, in a selective and discriminatory manner, for one or more of the Convention reasons).

The Tribunal finds that the applicant does not have a well-founded fear of persecution for reasons of political opinion or for any other Convention related reason, now or in the reasonably foreseeable future, if he returns to Pakistan: s.36(2).
ASSESSMENT: COMPLEMENTARY PROTECTION
The Tribunal has considered whether on the evidence before it, there would be a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Pakistan.
The Tribunal takes into account the above findings of fact, the applicant’s circumstances as a whole and his future conduct. It concludes that there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on him, such as to meet the definition of torture; or to meet the definition of cruel or inhuman treatment or punishment; or to meet the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk that he will suffer arbitrary deprivation of his life or the death penalty. In other words, the Tribunal finds no other grounds that suggest he will be subject to significant harm, for any reason, if he returns to Pakistan.
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: s.36(2)(aa).
Overall 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 the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
James Silva
Member

ATTACHMENT A – RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
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).
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.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
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’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

[2018] AATA 3629

14 August 2018

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