1605467 (Refugee)

1605467 (Refugee) [2019] AATA 5862 (28 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1605467
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:L.Symons
DATE:28 June 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 28 June 2019 at 4:01pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – religion – Christian – Roman Catholic – fears harm by Taliban – inconsistent evidence – credibility issues – no real risk of significant harm – fabricated claims for purpose of obtaining protection visa – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 424AA, 438, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
MZAFZ v MIBP [2016] FCA 1081

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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 29 March 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Pakistan, arrived in Australia [in] August 2015 as the holder of a [temporary] visa that was valid until 26 August 2015. On 28 August 2015, he was granted a Bridging visa in association with his application for a Protection visa.
The applicant applied to the Department of Home Affairs (the Department) for a Protection visa on 25 August 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 20 April 2016, he applied to the Tribunal for a review of that decision.
The applicant appeared before the Tribunal on 16 April 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. At the end of the hearing, the applicant confirmed that he had no problem with the interpreting and understood everything that was said during the hearing.
The issues that arise on review are whether the applicant is owed Australia’s protection under the refugee criterion or under the complementary protection criterion
CRITERIA FOR A PROTECTION VISA
The criteria for a Protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a Protection visa of the same class.
Section 36(2)(a) provides that a criterion for a Protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, he or she is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she is outside the country of his or her former habitual residence and, owing to a well-founded fear of persecution, is unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS
The applicant’s claims in his application for a Protection visa are summarised as follows:
·He is a Pakistani Christian born in Gujaranwala in Punjab. He lived in his parents’ house in Gujaranwala.
·His father was a catechist who worked as an assistant to the Pastor. He and his siblings were interested in serving the Church and were determined to continue the charity work his father did after his death in 2002. Unfortunately, the political situation in Pakistan changed and his siblings who were involved in the Church had to flee Pakistan and went to countries like Australia, [Country 1] and [Country 2].
·He went to [Country 3] in 1982. He returned to Pakistan frequently and was involved in [certain] events in Pakistan from time to time. His younger sister, who is a [Occupation 1], administered [Organisation 1] in Pakistan.
·As the influence of the Taliban increased, many Christians were abducted, raped and forced to convert to Islam. As he was away from Pakistan, his wife and children wanted him to return to live in Pakistan permanently with them. As he had to support his family, he had no choice but to continue to work in [Country 3].
·He had a Muslim friend named [Mr A] who was in [a certain] industry. [Mr A] was able to transfer money internationally for a minimum fee. He started to send money through him to his family members. He found out from [Mr A] that rich [Country 3 nationals] were giving large sums of money to Madrassas in Pakistan to run Madrassa schools where young Pakistanis were trained to fight foreign forces in Middle Eastern countries. He stated that the money was used to purchase weapons. He stated that [Mr A] was transferring the funds to Pakistan.
·In around December 2013, [Mr A] gave him some money to take to a local Mullah at a mosque near his house in Pakistan. He was not happy about doing it but could not refuse as [Mr A] was a close friend and insisted. When he informed the Mullah that he had some money for him, he asked him to attend a private residence and not meet him at the mosque. When he gave the Mullah the money, he told him not to tell anyone of their meeting in the private residence.
·When he returned to [Country 3], he asked [Mr A] why the Mullah asked him to be quiet about the transaction. [Mr A] told him that the Mullah reprimanded him for sending money through him.
·In around January 2015 he planned to return to Pakistan. [Mr A] again asked him to take money to the Mullah. He was fearful about carrying [a large sum of money] and agreed to take [a lower amount]. When he met the Mullah he “scolded” him for not bringing the full amount and told him that in future he should bring the full amount given to him by [Mr A]. He stated that his men in [Country 3] would contact him directly to give him the money and that he would meet him at the airport.
·He informed [Mr A] of the Mullah’s demands and [Mr A] told him that he would never involve him in sending money to the Mullah in future. He was not happy to hear this. In about April 2015, a group of Pakistani men with beards spoke to [Mr A] whilst they were at a [location]. The men pointed at him and then left with [Mr A]. This was the last time he saw [Mr A].
·He informed his siblings of what had happened and was advised to return to Pakistan permanently. They wanted him to travel to Australia before returning to Pakistan permanently. He contacted his son-in-law to make enquiries at [Mr A]’s residence in [City 1] and he was informed [that] [Mr A] had not returned to Pakistan for some time. He decided to return to Pakistan permanently.
·On a Sunday in the middle of July 2015, he saw a group of Muslim men wearing white kaftans and long beards. He tried to avoid them but they surrounded him and warned him that if he tried to call for help they would hand him over to [Country 3] Police to investigate his involvement with [Mr A]. They asked him to work for them and told him that the local Mullah in [City 1] had ordered them to approach him. He asked them where [Mr A] was and was told that he had worked against the Mullah and the Mullah had ordered them to take him away.
·The men accompanied him to his apartment, offered him cash and called and questioned him about his return to Pakistan. They told him that he should not leave [Country 3] without telling them. He agreed to their request. He contacted his siblings and they advised him to leave [Country 3] immediately. He took a flight out of [Country 3] and returned to Pakistan.
·He was fearful about living in [City 1] and decided to live in a friend’s house in [City 2] with his wife until it was safe for him to return to [City 1]. Within a week he received a telephone call from his daughter informing him that the Mullah had inquired about his arrival in Pakistan and where he was staying. She informed him that he had not returned to Pakistan. He told his wife to return to [City 1] so the Mullah would not suspect that she was with him.
·Within a couple of days the Police threatened his wife and she accompanied them to arrest him. The Police informed him that they had been ordered by their boss to arrest him and prosecute him for [criminal offences] in [Country 3] with [Mr A]. He was imprisoned for [a number of] weeks and beaten and kicked until he told them everything that happened. They got him to sign a false statement that was prepared by them with false facts. His wife and [siblings] organized [to] bribe the Police to release him.
·TTP militants went to the Police Station and beat him for not obeying the [Country 3] men. They ordered him to return to [Country 3]. To get away from them he agreed to their orders. After they left, the Police Officers advised him to leave Pakistan immediately and not return to Pakistan. They told him if he returned they would have to hand him over to the TTP or sentence him to permanent imprisonment. They advised him not to tell anyone about the bribe.
·On his release, his family advised him to go and live in [Country 4] with his daughter. His daughter advised him not to go to [Country 4] as he would have language problems there. His siblings in [Country 1] and [Country 2] advised him to come to Australia where the majority of his siblings live. As he already had an Australian visa, he came to Australia.
·He cannot spend his life in prison under false charges and is not ready to face prosecution for a mistake made by [Mr A]. Mullahs ruin the lives of many Christians by making false charges. As a minority, Christians have no other option but to leave Pakistan. He never thought the Australian visa he got earlier would help him to escape from criminals and fanatic Mullahs.
·The Police are Sunni Muslims and they work under the instructions of the Mullahs and the TTP that is involved in illegal activities in Pakistan and overseas. He cannot imagine living away from his family permanently.
The applicant has filed with the Department copies of his Pakistani passport, Pakistan National ID card and country information on Pakistan.
The applicant attended an interview with the Department on 27 November 2015. During that interview, he reiterated and expanded on his written claims. The delegate found that he is not a person in respect of whom Australia has protection obligations.
The applicant has provided to the Tribunal country information on Pakistan.
On 24 January 2019, the Tribunal received a letter from the applicant in which he made the following new claims:
·His son works as an [Occupation 2] for [Organisation 1] in Pakistan and has been doing this job for a long time. He travels between Punjab and the North West Frontier Province [undertaking certain tasks].
·In August 2018, his son was arrested at [City 3] when [undertaking a certain task]. He was transferred to [City 4] Police Station where he was questioned about his involvement [with] Muslims who were converted to Christianity. When they found out who his father was they accused him of [undertaking certain duties]. His son was remanded to be sentenced on false blasphemy and criminal charges. His wife and son-in-law bribed the Police to release him.
·His son moved to [City 5] as he feared men from the TTP who followed him. These men and the local Mullah spread rumours that his brother was [bringing] Muslims from [City 3] to convert them to Christianity and the Mullah got their neighbours to throw stones at their residence. His wife went to [City 5] and joined their son.
·In mid-September 2018, the TTP beat his son for moving from [City 1] to [City 5]. They told him they were aware his father was bringing money from [Country 3] for their organization and that he had stolen money and escaped overseas. They told him he would be pardoned if he returned to [City 5], [undertook certain duties] and pay the Madrassa and the Mullah money from [Organisation 1]. They warned him that his father would be killed if found in Pakistan. His son agreed to these demands.
·When his son returned to [City 1] the Mullah summoned him and asked him where his father was and he told him he was in [Country 4] with his sister. The Mullah told his son that he had got the Police and the TTP to search for his father and if his father returned to Pakistan he would be sentenced to death for [criminal offences] from [Country 3] with [Mr A].
·His son was unable to pay the TTP the money they demanded and the TTP ordered him to transport their members, Mullahs and Police Officers on demand. In December 2018, the Mullah and TTP militants travelled with his son to [City 3]. On the drive the Mullah told him that his father had been [details deleted] from [Country 3] businessmen and had ruined their business. He told his son that the Police were awaiting his father’s arrival to take him to prison. He told him that before the Police could get his father his men would kill him. His son and wife have advised him not to return to Pakistan. His son is planning to leave Pakistan.
In his statement dated 22 January 2019, the applicant complained that the delegate misunderstood his evidence and the interpreter misinterpreted his evidence. He did not provide the Tribunal with any evidence to support his claim that the interpreter had misinterpreted his evidence.
Receiving country
The applicant claims to be a citizen of Pakistan and has provided a copy of his Pakistani passport to the Department and the Tribunal. In the absence of any evidence to the contrary, the Tribunal finds that he is a citizen of Pakistan. The Tribunal finds that Pakistan is his receiving country for the purpose of assessing his claims for protection under the refugee criterion and the complementary protection criterion.
Third country protection
There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.
Assessment of claims
The applicant gave evidence that his application for a Protection visa was prepared by his lawyer based on his instructions which were true and correct. He stated that he is satisfied that his visa application is accurate. He stated that his written Statement dated 22 January 2019 was prepared by a friend based on his instructions which were true and correct. He stated that he is satisfied that his written Statement dated 22 January 2019 is accurate.
During the hearing, the Tribunal discussed with the applicant his background, his family, his education, his employment, where he lived, his overseas travel, events that took place in [Country 3], his reasons for leaving [Country 3] and Pakistan and why he fears returning to Pakistan. The Tribunal found aspects of his evidence to be contradictory, implausible and unconvincing. There were significant inconsistencies between his written claims and his oral evidence to the Tribunal. His conduct was not consistent with his claims. The Tribunal formed the view that he is not a witness of truth for the following reasons:
First, in his Statement of Claims, the applicant claimed that he was working in [Country 3] and sending money to his family in Pakistan. He claimed that he had a friend named [Mr A] who transferred money internationally for a minimum fee and he sent money through him to his family members in Pakistan. He claimed that, in about December 2013, [Mr A] gave him some money to take to a Mullah at a mosque near his house in Pakistan. He claimed that he was not happy about doing it but could not refuse as [Mr A] was a close friend and insisted. He claimed that when he informed the Mullah that he had some money for him, he asked him to attend a private residence and not meet him at the mosque. He claimed that when he gave the Mullah the money he told him not to tell anyone of their meeting in the private residence. He claimed that when he returned to [Country 3] [Mr A] told him that the Mullah reprimanded him for sending money through him.
During the hearing, the applicant gave a different version of events that was not consistent with his written claims. He stated that in 2014 his friend [Mr A] asked him to take [a large sum of money] to a Mullah in Pakistan. He stated that he was told that the Mullah would be given his wife’s telephone number and would contact him on that number when he got to Pakistan. He stated that, after he got to Pakistan, he went to the masjid (mosque) to meet the Mullah and give him the money. He stated that after he gave the Mullah the money he asked him if he was a Christian. He stated that when he said he was, he asked him why he came inside the mosque and why he brought the money to him. He stated that the Mullah became upset and said he would create trouble for them. He stated that he told [Mr A] about this when he returned to [Country 3] and [Mr A] told him that the money was being used to fund illegal activities. He stated that he told [Mr A] that he did not want to get involved in this.
These inconsistencies in the applicant’s evidence in relation to when he was asked to take money to Pakistan, where he met the Mullah to give him the money and what the Mullah said to him raise concerns in relation to his credibility and the veracity of these claims.

Second, in his Statement of Claims, the applicant claimed that in about January 2015 he planned to return to Pakistan and [Mr A] again asked him to take money to the Mullah. He claimed that he was fearful about carrying [a large sum of money] and agreed to take [a lower amount]. He claimed that when he met the Mullah he “scolded” him for not bringing the full amount and told him that in future he should bring the full amount given to him by [Mr A].
During the hearing, the applicant gave a different version of events that was not consistent with his written claims. He stated that when he took the money to the Mullah at the mosque he was not aware that the money was being used to fund illegal activities. He stated that if he had known this he would not have taken the money to the Mullah. He stated that about a month after he returned to [Country 3] he was contacted by some men who arranged to meet him. He stated that they had obtained his address and telephone number from [Mr A]. He stated that, when he met them, they told him he was going to help them. He stated that he told them that [Mr A] had told him everything, he was aware of the purpose for which the money was being sent and could not help them.
The applicant gave evidence that the men went to his house a week later. He stated that they tried to convince him to take the money and offered him money and gold. He stated that when he refused to take the money they threatened him that, if he did not help them, they would inform the [Country 3] government that he was involved in illegal work and they would put him in gaol. He stated that he told them he would not be doing that. He stated that he became scared and contacted his brother in Australia. He stated that his brother told him that he would sponsor him for a visa to come to Australia.
During the hearing, the applicant made no mention of taking [a lower amount of money] to the Mullah on the second occasion. His evidence was that he took money to the Mullah on one occasion before he became aware of what the money was being used for. He stated that once he became aware of what the money was being used for he did not take any money to the Mullah in Pakistan.
These inconsistencies in the applicant’s evidence in relation to who asked him to take the money to Pakistan on the second occasion and whether or not he took money to Pakistan on a second occasion raise concerns in relation to his credibility and the veracity of these claims.
Third, in his Statement of Claims, the applicant claimed that in about April 2015 he was at a [location] with [Mr A] when a group of Pakistani men with beards spoke to [Mr A]. He claimed that the men pointed at him and then left with [Mr A]. He claimed that this was the last time he saw [Mr A]. He also claimed that, on a Sunday in the middle of July 2015, he saw a group of Muslim men wearing white kaftans and long beards. He claimed that he tried to avoid them but they surrounded him and warned him that if he tried to call for help they would hand him over to [Country 3] Police to investigate his involvement with [Mr A]. He claimed that they asked him to work for them and told him that the Mullah in [City 1] (Pakistan) had ordered them to approach him. He claimed that he asked them where [Mr A] was and was told that he had worked against the Mullah and the Mullah had ordered them to take him away.
During the hearing, the applicant gave a different version of events that was not consistent with his written claims. He stated when he was initially approached by men in [Country 3], after he returned from Pakistan, and asked to take money to Pakistan for them, he refused to do so and told them that [Mr A] had told him everything. He stated that they subsequently confronted [Mr A] and accused him of causing trouble for them by telling him everything. He stated that [Mr A] then moved away and left that place.
During the hearing, the applicant made no mention of the incident at the [location] in about April 2015 or the incident in the middle of July 2015 when a group of men surrounded him and spoke to him.
These inconsistencies in the applicant’s evidence in relation to what happened to [Mr A] and the significant omissions in his evidence raise concerns in relation to his credibility and the veracity of these claims.
Fourth, in his Statement of Claims, the applicant claimed that the group of men involved in the incident in the middle of July 2015 accompanied him to his apartment, offered him cash and questioned him about his return to Pakistan. He claimed that they told him that he should not leave [Country 3] without telling them. He claimed that he agreed to their request. He claimed that he contacted his siblings and they advised him to leave [Country 3] immediately. He claimed that he took a flight out of [Country 3] and returned to Pakistan. He claimed that he was fearful about living in [City 1] and decided to live in a friend’s house in [City 2] with his wife until it was safe for him to return to [City 1].
In his Statement of Claims, the applicant claimed that, within a week, he received a telephone call from his daughter informing him that the Mullah had inquired about his arrival in Pakistan and where he was staying. He claimed that she informed him that he had not returned to Pakistan. He claimed that he told his wife to return to [City 1] so the Mullah would not suspect that she was with him. He claimed that, within a couple of days, the Police threatened his wife and they went to [City 2] with her to arrest him. He claimed that the Police informed him that they had been ordered by their boss to arrest him and prosecute him for [criminal offences] in [Country 3] with [Mr A].
During the hearing, the applicant gave a different version of events that was not consistent with his written claims. He stated that the men who went to his house in early 2015 returned two or three months later and asked him when he was going to Pakistan. He stated that he told them that he had no plans to go on holidays. He stated that they threatened him and he was scared. He stated that he contacted his brother and left for Pakistan. He stated that he had arranged for his wife and son to meet him at [City 4] airport. He stated that the Police and the Mullah were waiting for him at [City 4] airport and he was arrested at the airport. He initially stated that he was taken to [City 4] gaol and subsequently stated that he was taken to a gaol in [City 1]. He stated that the Mullah had filed a false case against him. He stated that the Police told him that the Mullah told them he is a Christian.
These inconsistencies in the applicant’s evidence in relation to where he was arrested, the circumstances surrounding his arrest, why he was arrested and which gaol he was imprisoned at raise concerns in relation to his credibility and the veracity of these claims.
Fifth, in his Statement of Claims, the applicant claimed that he was imprisoned for [a number of] weeks and beaten and kicked until he told the Police everything that happened. He claimed that they got him to sign a false statement that was prepared by them with false facts. He claimed that his wife and [siblings] organized [to] bribe the Police to release him. He claimed that TTP militants went to the Police Station and beat him for not obeying the [Country 3] men. He claimed that they ordered him to return to [Country 3]. He claimed that, to get away from them, he agreed to their orders. He claimed that, after they left, the Police Officers advised him to leave Pakistan immediately and not to return to Pakistan. He claimed that they told him if he returned they would have to hand him over to the TTP or sentence him to permanent imprisonment. He claimed that they advised him not to tell anyone about the bribe.
In his Statement of Claims, the applicant claimed that, on his release, his family advised him to go and live in [Country 4] with his daughter. He claimed that his daughter advised him not to go to [Country 4] as he would have language problems there. He claimed that his siblings in [Country 1] and [Country 2] advised him to come to Australia where the majority of his siblings live. He claimed that, as he already had an Australian visa, he came to Australia.
During the hearing, the applicant gave a different version of events that was not consistent with his written claims. He stated that, after he was taken to a gaol in [City 1], a Policeman beat him and asked him what he did wrong in [Country 3]. He stated that he told him he did not do anything wrong. He stated that he said he had brought money to Pakistan on one occasion. He stated that he said he subsequently found out that they were involved in wrong doings and wanted to involve him as well. He stated that the Police supported the Mullah. He stated that on the following day the Mullah went to the gaol with the Police and “bashed’ him badly.
The applicant stated that on the following day his wife and son went to the [City 1] Police Station and he somehow, through someone, asked to see his wife and son and discreetly told them to bribe someone and get him out of gaol. He stated that his wife and son negotiated a bribe with a Police Officer and with someone else’s help they managed to get him released on the following day. He stated that the Police Officer advised him not to go to his house as his life was in danger. He stated that he went straight to the airport. He stated that he was able to get a seat on a flight to Australia on the following day and stayed overnight at the airport.
In his evidence to the Tribunal, the applicant made no mention of being required by the Police to sign a false statement. He made no mention of TTP militants beating him, ordering him to return to [Country 3] and him agreeing to do so. He made no mention of a Police Officer advising him not to return to Pakistan and if he did they would have to hand him over to the TTP or sentence him to permanent imprisonment. He made no mention of having discussions with family members in [Country 4], [Country 1] and [Country 2] about where he should go when he left Pakistan.
These omissions in the applicant’s evidence and the inconsistencies in his evidence in relation to whether he was detained at the Police Station at [City 1] or at a gaol in [City 1], who negotiated the bribe with the Police Officer, whether he was beaten by TTP militants or the Mullah and what the Police Officer who accepted the bribe told him raise concerns in relation to his credibility and the veracity of these claims.
Sixth, in his written Statement dated 22 January 2019, the applicant made new claims that in August 2018 his son was arrested at [City 3] when [undertaking a certain task]. He claimed that he was transferred to [City 4] Police Station where he was questioned about his involvement in transporting Muslims who were converted to Christianity. He claimed that when they found out who his father was they accused him of [certain activities]. He claimed that his son was remanded to be sentenced on false blasphemy and criminal charges. He claimed that his wife and son-in-law bribed the Police to release him.
During the hearing, the applicant gave a different version of events that was not consistent with his written claims. He stated that in August 2018 his son was [undertaking a certain activity] from [City 3] when the Police arrested him and took him to [City 4] gaol. He stated that the Mullah told the Police that his son was transporting drugs. He stated that the Police did not look for any evidence of drugs. He then stated that some other Police Officers checked the [vehicle], did not find any drugs and told his son that he could [carry on]. He stated that his son [details deleted].
The applicant gave evidence that his son was not charged with any offence as the Police did not find any drugs. He then stated that his son was detained at the [City 4] gaol for [a number of] days. [Details deleted].
There are a number of contradictions within the applicant’s evidence to the Tribunal. Firstly, he initially stated that the Police did not search the [vehicle] for drugs. He later changed his evidence and stated that they did search for drugs and did not find any. Secondly, he initially stated that his son was arrested and taken to [City 4] gaol. He then changed his evidence and stated that when the Police did not find any drugs he was allowed to [leave]. He then changed his evidence again and stated that his son was detained at [City 4] gaol for [a number of] days. Thirdly, he initially stated that his son [undertook a certain task]. He then changed his evidence and stated that someone else [undertook the task].
There are a number of inconsistencies between his written claims and his oral evidence to the Tribunal. Firstly, there is an inconsistency in relation to whether the applicant’s son was questioned by the Police in relation to transporting Muslims who had converted to Christianity or whether he was questioned about transporting drugs. Secondly, there is an inconsistency in relation to whether or not he was charged with criminal offences. Thirdly, there is an inconsistency in relation to whether or not a bribe was paid to the Police to secure his release.
The Tribunal also finds it implausible that the applicant’s son would have been arrested in [City 3] which is in the Khyber Pakhtunkhwa Province and taken to [City 4] which is in the Punjab Province. The Tribunal would expect the Police to have processed him at the closest Police Station to the place of arrest.
The above issues raise concerns in relation to the applicant’s credibility and the veracity of these claims.
Seventh, in his written Statement dated 22 January 2019, the applicant made more new claims that his son moved to [City 5] as he feared men from the TTP who followed him. He claimed that these men and the local Mullah spread rumours that his brother was transporting Muslims from [City 3] to convert them to Christianity and the Mullah got their neighbours to throw stones at their residence. He claimed that his wife went to [City 5] and joined their son.
In his written Statement dated 22 January 2019, the applicant claimed that in mid-September 2018 the TTP beat his son for moving from [City 1] to [City 5]. He claimed that they told him they were aware his father was bringing money from [Country 3] for their organization and that he had stolen money and escaped overseas. He claimed that they told him he would be pardoned if he returned to [City 5], transported sick Muslims and pay the Madrassa and the Mullah money from [Organisation 1]. He claimed that they warned him that his father would be killed if found in Pakistan. He claimed that his son agreed to these demands.
In his written Statement dated 22 January 2019, the applicant claimed that when his son returned to [City 1] the Mullah summoned him and asked him where his father was and he told him he was in [Country 4] with his sister. He claimed that the Mullah told his son that he had got the Police and the TTP to search for his father and if his father returned to Pakistan he would be sentenced to death for [criminal offences] from [Country 3] with [Mr A].
In his written Statement dated 22 January 2019, the applicant claimed that his son was unable to pay the TTP the money they demanded and the TTP ordered him to transport their members, Mullahs and Police Officers on demand. He claimed that in December 2018 the Mullah and TTP militants travelled with his son to [City 3]. He claimed that, on the drive, the Mullah told him that his father [had] ruined their business. He claimed that he told his son that the Police were awaiting his father’s arrival to take him to prison. He claimed that he told him that before the Police could get his father his men would kill him. He claimed that his son and wife have advised him not to return to Pakistan. He claimed that his son is planning to leave Pakistan.
During the hearing, the applicant gave a different version of events that was not consistent with his written claims. He stated that his son went to [City 5] in August 2018. He stated that, after a week, the Mullah telephoned him and told him he could return to [City 1] and resume his work. He stated that his son moved back to [City 1] after a month. He stated that when he returned to [City 1] he was told he would have to transport Muslims as well. He stated that there were some Muslims who did not want to be transported by a Christian. He stated that in December 2018 some people who supported the Mullah [details deleted]. He stated that his son returned home, telephoned him and told him that the [vehicle] was not in a good condition and he was warned that if he repaired it they would damage it again.
The applicant gave evidence that his son now hires a [another vehicle]. He stated that his son was told that if he (the applicant) returns to Pakistan they would not let him live. He stated that neither his wife nor his son leave the house. He stated that his son told him he is under heavy pressure and his wife cries when he telephones her. When asked how his son is able to [work] if he does not leave the house, he responded that if his son gets a telephone call he goes in a private car but spends most of his time at home.
The applicant made no reference to a number of incidents referred to in his written Statement despite being given several opportunities to do so. He made no mention of his son being followed by men from the TTP or these men and the local Mullah spreading rumours that his brother was transporting Muslims from [City 3] to convert them to Christianity and the Mullah getting their neighbours to throw stones at their residence. He made no mention of his wife moving to [City 5] to join their son. He made no mention of his son being beaten up by the TTP in mid-September 2018 or the TTP telling his son that they were aware his father bringing money from [Country 3] for their organization, that he had [escaped] overseas, that he would be pardoned if he returned to [City 5], transported sick Muslims and paid the Madrassa and the Mullah money from [Organisation 1].
The applicant made no mention of the Mullah summoning his son after he returned to [City 1] and questioning him about his father’s whereabouts or the Mullah telling his son that he had got the Police and the TTP to search for his father and if his father returned to Pakistan he would be sentenced to death for [certain criminal offences] from [Country 3] with [Mr A]. He made no mention of his son transporting the Mullah and TTP militants in December 2018 and the Mullah telling his son that his father had been [details deleted] from [businessmen] and had ruined their business, that the Police were awaiting his father’s arrival to take him to prison and that before the Police could get his father his men would kill him.
The applicant also made a number of new claims in his oral evidence to the Tribunal that he did not make in his written Statement dated 22 January 2019. He claimed that the [vehicle] was attacked and damaged in December 2018 and his son was warned that if he repaired the [vehicle] it would be damaged again. He claimed that his son now hires a private vehicle to [work] and does not leave the house or, alternatively, spends most of his time at home. The Tribunal would expect him to have mentioned these matters in his written Statement dated 22 January 2019 if they had occurred.
These omissions and the new claims in the applicant’s evidence to the Tribunal raise concerns in relation to his credibility and the veracity of these claims.
Eighth, the applicant’s conduct was not consistent with his claims. He gave evidence to the Tribunal that when he started receiving threats in [Country 3] he contacted his brother in Australia and asked him to organize a visa for him to travel to Australia. The records of the Department indicate that he was granted a [temporary] visa on 18 May 2015. However, he did not arrive in Australia until [August] 2015 which was almost 3 months later. The Tribunal put this information to him, pursuant to s.424AA of the Act and noted that it would expect that if he feared serious harm from the threats he was receiving he would have left [Country 3] as soon as he was granted the Australian visa and travelled to Australia. The Tribunal noted that his delay in arriving in Australia after he was granted the [temporary] visa is not consistent with his claims and raised concerns in relation to his credibility and the veracity of his claims.

The applicant responded that he was not aware when his [temporary] visa had been issued. He stated that he found out that he had a [temporary] visa in July 2015 while he was still in [Country 3]. He stated that he organized an emergency holiday from work and went to Pakistan. He stated that if he had known about it earlier he would have travelled earlier. When asked if he was suggesting that his brother did not tell him he had been granted a [temporary] visa for 2 months, he responded that his brother received the [temporary] visa late and told him later. He stated that as soon as his brother told him, he took time off work and moved.
The Tribunal does not accept this explanation. It is the usual practise of the Department and the Tribunal to send the notification letters on the same day that the decision is made to grant or refuse a visa. The applicant’s evidence is that he told his brother in Australia about the problems he was having and that is why he asked his brother to organize an Australian visa for him. In these circumstances, the Tribunal finds it to be implausible that his brother did not inform him of the grant of the [temporary] visa as soon as he was notified. His delay in arriving in Australia after he was granted a [temporary] visa raises concerns in relation to his credibility and the veracity of his claims.
Ninth, the Tribunal has before it the Department’s file in relation to the applicant’s application for a [temporary] visa. This file indicates that he provided documents to support his application for a [visa] including documents in relation to his employment in [Country 3]. One of the documents provided was his work permit in [Country 3] which indicates that his work permit expired [in] July 2014. The Tribunal put this information to him, pursuant to s.424AA of the Act, and noted that this may lead it to the conclusion that the reason why he returned to Pakistan was because his work permit had expired and he was living in [Country 3] unlawfully and not for the reasons claimed.
The applicant responded that he was working for a company and they used to get a 2 year work permit. He stated that companies got it for the employees and they did it automatically. He stated that employees did not have to do anything about that. He stated that they were sometimes granted work permits for 2 years and sometimes the work permits were only for 1 year. He stated that with the work permit they were given a document [which] allowed them to stay there. He stated that it was like a photo ID. He stated that just before the work permit expires they are given a temporary letter. He stated that the company had their own agent whose job was to look after them. He stated that it was difficult to live there illegally.
The applicant was aware that his work permit in [Country 3] was an issue in his case. Despite having plenty of time, after the hearing, to provide some evidence in relation to having a valid work permit in [Country 3] at the time he finally left in 2015, he did not do so. This issue raises further concerns in relation to his credibility and the veracity of his claims.
The Tribunal raised as issues with the applicant the significant differences between his written evidence and his oral evidence to the Tribunal and its concerns in relation to his credibility and the veracity of his claims. He responded that he took an oath on the Bible and is not lying. He stated that only he knows the problems he is facing. When the Tribunal pointed out that he had given two very different versions of events, he responded that what was in his file was what he faced before and he told the Tribunal about the problems that had arisen since he has been in Australia.
When given another opportunity to explain the reason/s for the different versions of events, the applicant stated that sometimes you miss out on things because you are tense and your mind or brain does not work properly. He stated that when you are tense you make mistakes and when you are continually under pressure you don’t remember everything.
The applicant has not provided the Tribunal with any evidence in relation to his psychological or mental state. The Tribunal accepts that he may have been anxious or nervous about attending the hearing and about the outcome of the proceedings. The Tribunal also accepts that he may be upset about being separated from his wife and adult children in Pakistan. The Tribunal had the benefit of observing him during the hearing and he did not appear to have any difficulty answering the questions asked of him. The Tribunal does not accept that his being tense explains the many problems in his evidence.
In his visa application, the applicant claimed that he is a Christian. In his Statement of Claims, he claimed that Mullahs ruin the lives of many Christians by making false charges. He claimed that, as a minority, Christians have no other option but to leave Pakistan. He claimed that the Police are Sunni Muslims and they work under the instructions of the Mullahs and the TTP that is involved in illegal activities in Pakistan and overseas.
During the hearing, the Tribunal asked the applicant whether he personally had any problems because he is a Christian. He responded that his father used to conduct Bible studies, one of his [siblings] became [an occupation] and one of his [siblings] became a [Occupation 1]. He stated that the local Mullah gave them trouble. When asked what kind of trouble he was referring to, he responded that the Mullah was not happy that they were doing Christian studies and that lots of people were going to the Church. He stated that the Mullah asked them to stop this work. He stated that the mosque was next to the Church and the mosque was asked to lower the level of noise and he did not like that. He stated that they complained. He did not make any claims that he personally experienced harm or threats of harm because he was a Christian.
The Tribunal has had regard to the country information provided by the applicant. It consists of articles from Christian organizations such as the Pakistan Christian Post, Open Doors, Christian Freedom International, the British Pakistani Christian Association and the Christian News Journal, World Watch Monitor and from the media. This country information is in relation to incidents of religious intolerance or violence against Christians in Pakistan and in Thailand, in relation to a Christian woman who was charged with blasphemy, in relation to violence against women in Pakistan, in relation to an incident of honour killings in 2018 and in relation to the election results in 2018 and the reaction of Christians.
In his Statement of Claims and in his written Statement dated 22 January 2019, the applicant refers to an Amnesty International press release on 30 May 2014 in relation to the abduction and killing of a journalist and the 2017/2018 Amnesty International Report on Pakistan respectively. Most of the articles provided or referred to are from Christian organizations and are written from a particular perspective. Most of the articles are dated 2015 and are therefore out of date.
The Tribunal discussed with the applicant country information from DFAT dated 20 February 2019 in relation to Christians in Pakistan. DFAT assesses that: Christians face a low level of official discrimination and a moderate level of societal discrimination. DFAT further assesses that Christians face a moderate risk of societal violence and sectarian violence. DFAT assesses that the implementation of laws against blasphemy, and the potential for communal violence following an accusation of blasphemy, disproportionately affect religious minorities, including Christians, in Pakistan.[1]
[1] DFAT Country Information Report on Pakistan dated 20 February 2019.
The applicant responded that the government never talks about the problems they are facing as this “puts the government’s name down”. He stated that if the government starts talking about these issues it is shameful for the government. He stated that citizens know what is happening. The Tribunal informed him that this assessment was from the Australian Department of Foreign Affairs and Trade. The Tribunal accepts the assessment made by DFAT.
The Tribunal discussed with the applicant DFAT’s overall assessment of the security situation in Pakistan. It states the following:
Overall, there was a 29 per cent decline in the number of reported terrorist attacks in 2018 (compared to a 16 per cent decline in 2017), marking a nine-year downward trend. Nevertheless, Pakistan continues to face security threats from insurgent, separatist and sectarian militant groups. The highest decrease in attacks (compared to 2017) was reported in Punjab (71 per cent decrease),
The Pakistan armed forces (see Military and Intelligence Services) have launched several security operations in Pakistan due to terrorism and the volatile security environment. Operation Zarb-e-Azb commenced in June 2014 and targeted terrorist groups, including the TTP, in North Waziristan (NWA), former FATA. Observers credit Operation Zarb-e-Azb, its successor Radd-ul-Fasaad, and the NAP with a significant reduction in the number of violent and terrorism related attacks in Pakistan.[2]
[2] Ibid.
The Tribunal noted that this country information tends to indicate that the security situation in Pakistan has improved since he was there in 2015 and the security situation in Punjab Province (where he lived) is significantly better.
The applicant responded that what are reported in the media are normally the big things. He stated that problems on a smaller scale are not known. The Tribunal noted that the DFAT Report is prepared after consulting with a wide range of organizations and individuals. He responded that problems at the individual level do not come to anyone’s attention. He stated that no one cares about those things. He stated that normally those things happen at a higher level. He stated that about a month ago there was an incident in a village next to his village. He stated that the daughters of a Christian family were kidnapped, forced to convert to Islam and marry Muslims. He stated that no one talks about these things, it is not in the media and no one knows about it.
The Tribunal pointed out to the applicant that he had provided articles from the media to the Department and the Tribunal. He responded that a few things are in the media. He stated that they are trying to suppress it. He stated that, in his case, if he talks to anyone they will not spare him. The Tribunal accepts that not every individual incident in Pakistan is reported in the media. The Tribunal accepts the assessment made by DFAT.
Other considerations
The Tribunal has had regard to the Tribunal’s Guidelines on the Assessment of Credibility when assessing the applicant’s credibility.The Tribunal has also had regard to the DFAT Country Information Report on Pakistan dated 20 February 2019 and the Department’s Policy Guidelines to the extent that they are relevant to the decision under consideration.
Section 438 Certificate
The Tribunal informed the applicant that his file from the Department contained a Certificate under s.438 of the Act and it related to the non-disclosure of information contained on two pages in the file. The Tribunal informed him that the Certificate was issued on the basis that it was contrary to public interest to disclose the information because it relates to internal working documents and business affairs. The Tribunal informed him that the information subject to the s.438 Certificate relates to details of identification tests undertaken by him and a checklist on whether information should be disclosed to him. The Tribunal informed him that the Certificate did not appear to be valid.
The Tribunal invited the applicant to make submissions on the validity of the s.438 Certificate. He responded that he did not know about the Certificate.
In light of the Federal Court decision in MZAFZ v MIBP[3], which considered a s.438 certificate with similar wording, the Tribunal finds that the s.438 Certificate is not valid as it does not specify a reason that could form the basis for a claim to public interest immunity.
Findings
[3] MZAFZ v MIBP [2016] FCA 1081
Having considered all of the applicant’s claims and all the evidence, the Tribunal finds that the applicant is not a credible or reliable witness. The Tribunal finds that he fabricated his material claims for the purpose of obtaining a Protection visa.
The Tribunal accepts that the applicant was born on [date] at Gujranwala in Punjab Province in Pakistan. The Tribunal accepts that he is a Roman Catholic. The Tribunal accepts that he has [a number of siblings]. The Tribunal accepts that [a number of his siblings] and their families live in Australia. The Tribunal accepts that he got married [in] July 1980 and has an adult son and daughter. The Tribunal accepts that his daughter is married and lives in Gujranwala. The Tribunal accepts that his wife and son live in [City 1].
The Tribunal accepts that the applicant lived and worked in [Country 3] from 1982 to July 2015 and that he periodically visited his family in Pakistan during that period. The Tribunal accepts that he had a friend named [Mr A] in [Country 3] through whom he transferred money to his family in Pakistan. The Tribunal does not accept that he took money from [Country 3] to Pakistan and delivered it to a local Mullah at [Mr A]’s request. It follows that the Tribunal does not accept any of his claims that flow from this. The Tribunal does not accept that he left [Country 3] for the reasons claimed. The Tribunal does not accept that he left Pakistan for the reasons claimed.
The Tribunal does not accept that the applicant is of adverse interest to a Mullah in Pakistan, the Mullah’s supporters, the TTP, the Police or any other Pakistani authority.
The Tribunal accepts that the applicant’s son is employed by [Organisation 1] and [works as Occupation 2]. The Tribunal does not accept that he was arrested at [City 3] in August 2018. It follows that the Tribunal does not accept any of his claims that flow from that including that he is no longer able to drive the [vehicle] and hires [another] vehicle to transport patients. The Tribunal does not accept that his son does not leave the house or, alternatively, that he stays at home most of the time.
The Tribunal accepts that there have been incidents of religious intolerance and violence against Christians in Pakistan. The Tribunal finds that the applicant has not suffered any harm or threat of harm in Pakistan because he is a Christian. While the Tribunal accepts that there is some level of risk to him in the context of being a Christian, it finds, on the basis of all the evidence before it, that this risk is remote. The Tribunal is not satisfied that there is a real chance or a real risk that he would be targeted for harm because he is a Christian if he returns to Pakistan now or in the foreseeable future.
The Tribunal accepts that there is generalised violence in Pakistan. While the Tribunal accepts that there is some level of risk to the applicant in the context of generalized violence, it finds, on the basis of all the evidence before it, that this risk is remote. The Tribunal does not accept that there is a real chance or a real risk that he would be targeted for harm if he returns to Pakistan.
The Tribunal 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.
The Tribunal accepts that the applicant would prefer to live and work in Australia and bring his family to Australia. The Tribunal accepts that he does not wish to return to Pakistan.
Does Australia have protection obligations to the applicant under the refugee criterion?
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 the applicant will suffer serious harm for reason of his religion or any other reason set out in s.5J(1)(a) of the Act if he returns to Pakistan now or in the reasonably foreseeable future. Therefore, the Tribunal finds that he does not have a well-founded fear of persecution and is not a refugee as defined in s.5H of the Act. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.
Does Australia have protection obligations to the applicant under the complementary protection criterion?
As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether he may nevertheless meet the criterion for the grant of a Protection visa pursuant to the complementary protection criterion.
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Pakistan now or in the reasonably foreseeable future.
Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that he does not satisfy the criterion in s.36(2)(aa) of the Act.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) or s.36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act and who holds a Protection visa. Accordingly, he does not satisfy the criterion in s.36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.

L.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.
…

[2019] AATA 5862

28 June 2019

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