1601690 (Refugee)

[2018] AATA 3172

1601690 (Refugee) [2018] AATA 3172 (25 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1601690

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Linda Symons

DATE:25 July 2018

PLACE OF DECISION:  Sydney

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

Statement made on 25 July 2018 at 4:29pm

CATCHWORDS
Refugee – Protection Visa – Pakistan – Fear of forced recruitment by militant groups – Tehreek-e Taliban Pakistan – Country information does not support applicant’s claims – Applicant’s profile does not suggest he would be targeted for recruitment - Witness credibility – Vague, inconsistent and evasive evidence – Documents provided of doubtful authenticity - Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 424AA, 499
Migration Regulations 1994 (Cth), Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 20 January 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Pakistan, arrived in Australia [in] May 2013 as the holder of a [student] visa. This visa was cancelled on 17 July 2014. He thereafter remained in Australia as an unlawful non-citizen. On 5 February 2015 and 18 March 2015 he was issued with Bridging visas that expired on 15 April 2015 and 24 March 2015 respectively. On 24 March 2015, he was granted another Bridging visa in association with this application for a Protection visa.

3. The applicant applied to the Department of Home Affairs (the Department) for a Protection visa on 28 January 2015. This application was found not to be valid. He then lodged this application for a Protection visa on 12 March 2015. The delegate refused to grant the visa on the basis that he is not a person in respect of whom Australia has protection obligations. On 12 February 2016, he applied to the Tribunal for a review of that decision.

4. The applicant appeared before the Tribunal on 23 March 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

5. The issues that arise on review are whether the applicant is owed Australia’s protection under the refugee criterion or under the complementary protection criterion.  

   CRITERIA FOR A PROTECTION VISA

6. 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.

7. 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.

8. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

9. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.

10. 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

11. 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 (DFAT) 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

12. The applicant’s claims in his application for a Protection visa filed on 12 March 2015  are summarised as follows:

    ·He came to Australia on a Student visa. Since then his circumstances have changed because the Tahrik-i-Taliban (TTP) has become a strong and better established organization and his life is at risk because of them.

    ·His home is on the border with India. The TTP kidnaps people and gets them to fight with Indian soldiers. They killed 300 children in an army school.

    ·His father is a businessman and can take care of his financial needs. The TTP threaten his family and this causes stress. His father is a heart patient.

    ·He cannot relocate because the TTP have connections throughout Pakistan and they are dangerous.

    ·If he returns to Pakistan he will lose his life because the TTP is a strong organization and can do anything in Pakistan. No one can protect him from them. 

    ·He is appealing to save his life and he wants the Australian government to help him.

13. On 23 July 2015, the applicant attended an interview with the Department. During that interview, he made a new claim that his parents received a threatening letter demanding that he join the TTP. He claimed that he fears that he will be forced to enlist in the organisation. He claimed that he does not wish to do so but fears that he will be harmed or killed if he refuses to do so.

14. The applicant has provided to the Department a copy of the bio data page of his Pakistani passport, his National Identity Card, his Birth Certificate, his Domicile Certificate dated [in] 2001, his Character/Police Clearance Certificate dated [in] 2014, his Residential Certificate of State of Jammu and Kashmir dated [in] 2002 and [2002], a First Information Report in relation to an incident [in] 2014, an undated and unsigned letter in English from his father, a letter dated [in] 2014 from the TTP to his father, a letter dated [in] 2014 and [another date in] 2014 from the TTP to his father, an undated letter from [Legal Firm 1], his father’s National Identity Card, his father’s ‘Certificate of Habitant – State Jammu and Kashmir’, a document listing his family members, a number of Medical Certificates, Reports and receipts in relation to his father, bank statements in relation to various bank accounts held by his father, a ‘property segment record’, a ‘Sale Agreement Deed’, photographs and a bundle of newspaper articles about the TTP some of which do not have English translations.  

15. The applicant has provided to the Tribunal a copy of his Pakistani passport that expired [in] 2017.

    Receiving country

16. The applicant claims to be a citizen of Pakistan and has provided a copy of his expired Pakistani passport to the Tribunal. In the absence of any evidence to the contrary, the Tribunal finds that he is a citizen of Pakistan. The Tribunal finds that Pakistan is his receiving country for the purpose of assessing his claims for protection.

    Third country protection

17. There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.

    Assessment of claims

18. The applicant gave evidence that he prepared his application for a Protection visa and that the information in his visa application is true and correct. He stated that he is satisfied that his visa application is accurate and complete. When asked whether there had been any changes in his circumstances since he filed his visa application, he responded that the conditions in his country have got worse.

19. During the hearing, the Tribunal discussed with the applicant his background, his family, his education, where he lived in Pakistan, his reasons for leaving Pakistan, his studies and employment in Australia and why he fears returning to Pakistan. The Tribunal found aspects of his evidence to be vague, evasive, inconsistent, implausible and unconvincing. There were significant omissions and contradictions in his evidence. He made new claims throughout the process. His conduct was not consistent with his claims. The Tribunal formed the view that he is not a witness of truth for the following reasons.

20. First, the applicant claimed in his visa application that he is a citizen of Pakistan and that his parents are both citizens of Pakistan. He has maintained that he is a Pakistani citizen throughout the process. He has provided the Tribunal with a copy of his Pakistani passport. During the hearing, he initially gave evidence that he is a citizen of Pakistan and does not have the right to live in any other country. Later in the hearing, he stated that he has been granted temporary citizenship in Pakistan. When the Tribunal questioned this claim and noted that his passport did not indicate that he was a “temporary citizen” of Pakistan, he then stated that his Identification Card states at the top “Azad Jammu and Kashmir”. He claimed that this is disputed territory between India and Pakistan.

21. The Tribunal has before it a copy of the applicant’s National Identity Card together with an English translation. It indicates that it is issued by the government of Pakistan and has an identification number. The front of the card contains his name, photograph, sex, date of birth, father’s name, his signature, the signature of the Registrar General and indicates that he has no identification signs. The back of the card also contains his photograph, identification number, family number, current address in District Rawalpindi, permanent address in District Poonch, thumb impression, issue date of [a particular date in] 2010 and expiry date of [a particular date in] 2021. His National Identity Card does not contain the words “Azad Jammu and Kashmir”. The Tribunal does not accept that the applicant is a “temporary citizen” of Pakistan and is of the view that he fabricated this claim to enhance his prospects of obtaining a Protection visa.

22. Second, the applicant also claimed during the hearing that he has two places of domicile; one in Jammu and Kashmir and one in Pakistan. He stated that he has temporary residence in Pakistan and will not be given permanent residence in Pakistan as his place of permanent residence is in Jammu and Kashmir. He has provided to the Department two documents referring to domicile. The first is titled ‘Rules of Habitants Azad Jammu Kashmir – 1980, Rules #4, Certificate of Habitant, State Jammu & Kashmir’ and is dated [in] 1982. It appears to have been issued to his father [a number of] years prior to [the applicant’s birth].

23. The second document is titled ‘Permanent Residential Certificate’; it is issued from the Office of the District Magistrate Poonch, Azad State of Jammu and Kashmir and is dated [in] 2003. It indicates that the applicant applied for a Permanent Residential Certificate and qualifies for the issue of a Permanent Residential Certificate. It indicates that his whole family resides in District Poonch and he is a permanent resident in District Poonch. His passport indicates that he was born in Rawalpindi on [a particular date] and he would therefore have been [a minor] when he allegedly made the application for a Permanent Residential Certificate. The Tribunal has serious doubts that he would have had the capacity or the need to do so. The Tribunal has serious doubts about the authenticity of this document for the reasons that follow.

24. The applicant gave evidence that he is satisfied that his visa application is accurate. In his visa application, he stated that he was born in Rawalpindi and attended school in Rawalpindi. He gave evidence to the Tribunal that he undertook a [degree] in Rawalpindi and lived there during that time. He stated that he lived with his parents in Rawalpindi and that his parents have lived in Rawalpindi for 25 to 30 years. He stated that they also have a house in Kashmir and go there during summer. He stated that his brother lives and works in Rawalpindi. He stated that [a number of] of his sisters are married and live in Rawalpindi and [another] sister is married and lives in Kashmir. In these circumstances, the Tribunal does not accept that he can only live in Jammu and Kashmir on a permanent basis and cannot live elsewhere in Pakistan on a permanent basis. The Tribunal is of the view that he fabricated this claim to enhance his prospects of obtaining a Protection visa.

25. Third, the applicant gave evidence to the Tribunal that he came on Australia [in] May 2013 on a Student visa. He stated that he enrolled in [a particular course] but did not complete it because he had financial problems. He stated that he stopped studying at the end of 2014 or the beginning of 2015. When asked what happened to his Student visa, he responded that it expired in August 2016. However, the records of the Department indicate that he arrived in Australia [in] May 2013 on a Student visa and this visa was cancelled on 17 July 2014. He thereafter remained in Australia as an unlawful non-citizen. He then lodged an application for a Protection visa on 28 January 2015. That application was found to be invalid and he then lodged a second application for a Protection visa on 18 March 2015.

26. The Tribunal put this information to the applicant, pursuant to s.424AA of the Act, and noted that this immigration history raised concerns in relation to the credibility of his claims. He responded that his visa was cancelled. He stated that there was an issue with his College and he sought admission to another College. He stated that he had financial issues at that time. He stated that he cannot remember what happened at that time. He stated that when he applied for the visa he provided all his documentation. His failure to inform the Tribunal that his Student visa was cancelled on 17 July 2014 and his willingness to falsely claim that his Student visa expired in August 2016 raises concerns about his credibility and the veracity of his claims.

27. Fourth, in his first application for a Protection visa filed on 28 January 2015, the applicant claimed that the TTP wrote a letter to his father wanting him to be part of their organization. He claimed that, after receiving this letter, his father went to the Police and submitted a First Information Report (FIR). He claimed that the TTP returned to his house and threatened his father that, if he was not handed over, they would kill his whole family and destroy their property. He claimed that the TTP sent a second letter and stated that it was a final warning. He claimed that his whole family is worried about him. He claimed that if he returns to Pakistan the TTP will kidnap him, brainwash him and get him to fight their enemies. This visa application was not valid. He did not make these claims in his second (current) application for a Protection visa filed on 12 March 2015. However, during his interview with the Department on 23 July 2015, he claimed that his father received threatening letters.

28. The Tribunal is of the view that receiving threatening letters from the TTP is a significant matter and is not something that the applicant would have forgotten to mention in his second application for a Protection visa if it had in fact occurred. His failure to mention this in his second visa application raises concerns about the credibility of these claims.    

29. Fifth, the applicant has provided to the Department a number of documents to support his claims. Two of these documents are the two letters he claims the TTP sent to his father. The first letter from the TTP is a dated [in] January 2014 and is addressed to his father. It states, among other things, that they need the applicant to prepare him for jihad, they are aware that he is in Australia and are demanding that his father bring him back to Pakistan or his father’s whole generation will be destroyed and he will be killed. The second letter is dated [on a particular date in] July 2014 and [on another date in] July 2014 and states that, as his father did not comply with their request, they have decided to punish him severely.

30. The Tribunal referred the applicant to this information and noted that, despite these threats, nothing adverse has happened to his father and the TTP has not done anything to carry out their threats. The Tribunal is of the view that if the TTP are targeting his family and are as dangerous and powerful as he claims, they would have carried out their threats by now. The Tribunal raised this as an issue with him and noted that, as nothing has happened to his family members, it raises serious doubts about the credibility of his claims. He responded that the main issue is about him. He stated that his family is involved if he is there. He stated that if he is not, nothing happens. He questioned what they could do to [an] old man. The Tribunal does not accept this explanation and has serious doubts about the authenticity of these letters.

31. Sixth, the second letter from the TTP that the applicant provided the Department contains two dates. The top of the letter is dated [on a particular date in] July 2014 and the bottom of the letter is dated [on a different date in] July 2014. It is highly unlikely that one letter would be dated with two different dates. The Tribunal raised this as an issue with him and noted that it raised concerns in relation to the credibility of his claims and the authenticity of that letter. He declined to respond.     

32. Seventh, the applicant has an older brother who lives and works in Pakistan. His evidence is that his brother has had no problems with the TTP. The Tribunal raised this as an issue with him and noted that, if the TTP were recruiting men to fight for them, they would have gone after his brother who is still in Pakistan, rather than being concerned about him when he is not even in Pakistan. He responded that his brother is [middle-aged]. The Tribunal does not accept this response as it does not explain why the TTP did not go after his brother when he was younger. This raises further concerns about the credibility of his claims.  

1. Eighth, two other documents that the applicant has provided to the Department to support his claims are a FIR dated [in] 2014 from the Police Station at [a particular location] and a letter from his father to the Department. The letter from his father is typed in English and is undated and unsigned. It does not appear to be an English translation of a letter. In his letter to the Department, his father states that he received the first letter from the TTP on [a particular date in] January 2014. In the FIR, he states that he received a threatening letter from the TTP on [a different date in] January 2014. When the Tribunal raised this inconsistency in the evidence and it concerns about the authenticity of these documents as issues with the applicant, he responded that he is not sure about the dates or how they got changed. He stated that he did not have a copy of the documents. This response does not alleviate the Tribunal’s concerns.

2. Ninth, the applicant claimed that the TTP threatened and harassed his family. When asked for the details, he stated that they sent two threatening letters, went to his family home armed with guns which they fired into the air and threatened to kill members of his family. When asked if they did anything else, he stated that they pointed a gun at his father and hit him with their hands. When asked if his family had any other contact with the TTP, he responded that they received a few telephone calls from them. He then stated that they received lots of telephone calls from them and continued to do so until November 2017. He stated that his father only reported one incident to the Police.

3. In the FIR that the applicant provided to the Department, his father states “on [a particular date in] January 2014 a threatening letter has been received by me and at [a particular time] they fired on my home whereas with great difficulty I and my family save our life”. (sic) The Tribunal is of the view that if this had occurred, the applicant would have mentioned it in his visa application and when the Tribunal questioned him at length about what the TTP did to his family. The Tribunal raised this as an issue with him and noted that his failure to mention this incident raised concerns about his credibility of his claims and the authenticity of this document.  He declined to respond.

4. Tenth, the applicant provided to the Department a letter from a lawyer. It is on a letterhead and the name of the legal firm is ‘[Legal Firm 1]’. The letter is handwritten and is undated. It advises him to stay abroad if possible as his life is not safe in Pakistan/Kashmir. The Tribunal has doubts that a lawyer would handwrite an official letter issued on a letterhead and not date the letter. When the Tribunal raised as an issue with the applicant its concerns about the authenticity this letter, he declined to respond. This raises further concerns about his credibility, the veracity of his claims and the authenticity of this letter.

5. Further, country information indicates that there is a high prevalence of document fraud in Pakistan. It indicates that it is relatively simple to fraudulently produce Police issued FIRs using existing book numbers. It indicates that there is credible evidence of Police in Pakistan accepting bribes to verify fraudulent FIRs. DFAT does not consider the existence of a FIR to constitute evidence that the events described in the FIR actually occurred.[1] The Tribunal discussed this country information with the applicant and raised concerns about the authenticity of the documents he provided the Department to support his claims. He responded that he had already said everything to the Tribunal. This response does not alleviate the Tribunal’s concerns.  

   [1] DFAT Country Information Report on Pakistan, 1 September 2017.

6. Further, country information from DFAT indicates that “militant groups such as Tehreek-e Taliban Pakistan (TTP) and Lashkar-e Jhangvi (LeJ) continue to operate across Pakistan despite government and military operations disrupting their activities. The TTP—effectively an umbrella organisation for predominantly Pashtun Sunni militant groups—splintered into a number of separate groups following the beginning of the crackdown. In early 2017, a number of these splinter groups re-joined the TTP, however, or pledged support for its leader, Mullah Fazlullah. The TTP and its splinter groups maintain a separate identity from the Afghan Taliban, although they remain ideologically aligned.”[2]

   [2] Ibid.

7. In relation to the recruitment methods used by the TTP, the country information indicates that “operations within the FATA and KPK by Pakistani security forces reportedly had the effect of increasing the TTP‟s popularity, with many displaced or otherwise adversely affected individuals subsequently either turning to or joining the TTP as “a source of protection”.[3] According to a September 2011 report by Shehzad Qazi, a research associate at the Institute for Social Policy and Understanding, the TTP also attracts individuals with a low socio economic background, or those who have been internally displaced, through financial incentives.[4] The report by Qazi also claims that abduction is “a central feature” of the TTP recruitment process and that boys are often kidnapped and radicalised in TTP sponsored schools. [5]  

   [3] Qazi, S H 2011, Rebels of the frontier: origins, organisation, and recruitment of the Pakistani Taliban‟, Small Wars and Insurgencies, Vol. 22 no.4, 574-602p.594. 

   [4] Ibid.

   [5] Ibid.

8. The applicant’s evidence is that he is from a well- educated family and that his father is a businessman and supports him financially. His evidence is that he completed a [degree] in Pakistan and has undertaken tertiary studies in Australia although he has not completed his studies here. His evidence is that he was born on [a particular date] and is therefore [a relatively young age]. His age, level of education, financial status, his family’s standing in the community and his personal circumstances do not fit the profile of the type of person the TTP is interested in recruiting.

9. The Tribunal discussed the above country information with the applicant and raised with him the issue that he did not fit the profile of the type of person the TTP would be interested in targeting for recruitment. He responded that there is a reason why he is living in Australia far from his family. He stated that he is missing a lot of things. He stated that he does not want to be alone and sometimes has a lot of stress. He stated that his claim is right and he does not want to make false claims or make excuses. He stated that everything is clear and genuine. He stated that there is a problem in Pakistan and a lot of people get killed. He stated that everyone has the right to live their life. He stated that he made a claim to the government. When asked why the TTP would be interested in recruiting him from Australia when there was a large population in Pakistan from which they could recruit new members, he responded that he had already said everything.  

10. The Tribunal has had regard to the newspaper articles provided by the applicant in relation to the TTP. The Tribunal has also had regard to the photographs of his father and his house which appears to be in Azad Jammu and Kashmir and the documents relating to his father’s health.  

    Findings

11. Having considered all the applicant’s claims and all the evidence, the Tribunal finds that he is not a witness of truth and that he fabricated his material claims for the purpose of obtaining a Protection visa.

12. The Tribunal accepts that the applicant was born on [a particular date] at Rawalpindi in Pakistan. The Tribunal accepts that he has an older brother and [a number of] sisters. The Tribunal accepts that he attended school in Rawalpindi and completed a [degree] in Rawalpindi in 2011. The Tribunal accepts that he did not undertake any paid employment in Pakistan. The Tribunal accepts that he came to Australia [in] May 2013 on a Student visa to further his studies. The Tribunal accepts that he did not complete any studies in Australia. The Tribunal accepts that he has been working in Australia. The Tribunal accepts that he is single.

13. The Tribunal accepts that the applicant’s father is a businessman. The Tribunal accepts that he is from a well- educated and wealthy family. The Tribunal accepts that his father owns a house in Rawalpindi and a house in [Town 1]. The Tribunal accepts that his family have stayed in [Town 1] during summer. The Tribunal accepts that his father has some problems with his health and has received treatment from a cardiologist.

14. The Tribunal does not accept that the applicant is a “temporary citizen” of Pakistan. The Tribunal finds that he is a citizen of Pakistan. The Tribunal finds that his primary place of residence in Pakistan is in Rawalpindi in Punjab Province. The Tribunal does not accept that the TTP have attempted to recruit him or force his return to Pakistan for the purpose of recruiting him and that they have threatened, harassed and intimidated his family and assaulted his father for this reason. The Tribunal does not accept any of his claims that flow from this. The Tribunal is not satisfied that any of the documents he has provided to support these claims are authentic. The Tribunal is not satisfied 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.

15. The Tribunal accepts that there is generalised violence in Pakistan. The country information indicates that “Pakistan continues to face security threats from insurgent, separatist and sectarian militant groups. The security situation varies across the country. While militant attacks can occur anywhere, Punjab Province tends to experience fewer incidents than other areas.”[6] The Tribunal has found that the applicant’s primary place of residence in Pakistan is in Rawalpindi in Punjab Province. While the Tribunal accepts that there is some level of risk to him in the context of generalized violence, it finds, on the basis of all the evidence before it, that this risk is remote. The Tribunal does not accept that there is a real chance or a real risk that he would be targeted for harm if he returns to Pakistan.

    [6] DFAT Country Information Report on Pakistan, 1 September 2017.

16. 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?

17. Having considered all of the applicant's claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal finds that there is no real chance that he 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?

18. 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.

19. 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.

20. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, the Tribunal is not satisfied that he 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.    

21. 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

22. 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.

23. 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

24. 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.

…