1607617 (Refugee)

1607617 (Refugee) [2019] AATA 5985 (27 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1607617
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Linda Symons
DATE:27 June 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 27 June 2019 at 10:34am
CATCHWORDS
REFUGEE – protection visa – Pakistan – drug trade – adverse interest to the Police or the Rangers – adverse interest to three Afghan men or the Taliban – credibility issues – inconsistent evidence – implausible claims – previous addresses – employment history – delay in leaving Pakistan – delay in applying for protection – voluntary return to Pakistan – lengthy immigration history – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 5 May 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, first arrived in Australia [in] December 2009 as the holder of a [Student] visa. On 6 December 2011, he applied to the Department of Home Affairs (the Department) for another [Student] visa and was granted an associated Bridging visa on 8 December 2011. On 29 December 2011, he withdrew his application and his Bridging visa expired on 26 January 2012. He thereafter remained in Australia as an unlawful non-citizen.
On 13 March 2012, the applicant lodged an application for a [Student] visa and was granted an associated Bridging visa. On 3 April 2012, he was granted a Student visa. He departed Australia [in] January 2013 and returned [in] February 2013. On 8 March 2013, he lodged an application for a subclass 457 Temporary Work (Skilled) visa and was granted an associated Bridging visa. On 15 March 2013, his [Student] visa expired.
On 19 June 2013, the applicant’s application for a subclass 457 Temporary Work (Skilled) visa was refused. On 24 June 2013, he applied to the Migration Review Tribunal (MRT) for a review of that application. On 19 December 2014, the MRT affirmed the Department’s decision. [In] January 2015, he made an application to the Federal Circuit Court for judicial review of that decision. [In] March 2015, he filed a Notice of Discontinuance with the Court.
On 16 January 2015, the applicant made a request for Ministerial intervention and was granted an associated Bridging visa on 19 January 2015. On 30 March 2015, his request for Ministerial intervention was unsuccessful as he had commenced an application for a Protection visa.
On 11 March 2015, the applicant applied for a Protection visa. The delegate refused to grant the visa on the basis that he is not a person in respect of whom Australia has protection obligations. On 27 May 2016, he applied to the Tribunal for a review of that decision.
The applicant appeared before the Tribunal on 9 April 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
The issues that arise on review are whether 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 he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS
The applicant’s claims in his application for a Protection visa are summarised as follows:
·He is a citizen of Pakistan and a Muslim. He fled Pakistan for fear of persecution.
·His father owns a [business]. His father and two [uncles] ran the business. His father wanted him to learn how to run the business. He and his cousin [leant] the business from an employee named [Mr A].
·In about January 2009, he was approached by Afghan Pashtun men who were interested in doing business with him and arranged for him to transport some goods from [City 1] to [City 2]. When he collected the goods and opened the boxes he discovered they contained drugs. He reported this to the Police and wanted to file a First Information Report. The Police attended his home, took custody of the goods and asked him to accompany them to the Police Station.
·At the Police Station, Police Officers questioned him about why he opened the boxes. They beat him and detained him. The three Afghan Pashtun men arrived at the Police Station and beat him again. They informed him that the Police were aware of the contents of the boxes and that he was transporting them to [City 2]. They kicked him and told him that they would not let him escape as he knew about their drug dealing. They told him that if he transported the goods he could continue to work for them and if he refused to do so they would take him to Afghanistan. He agreed to work for them as he was afraid. He was threatened that his family members would be hurt if he disclosed information to them.
·After he was released he told his father what happened. His father sent him to a relative’s home to hide there until he could get a visa to travel to Australia. On the following day, the three Afghan Pathun men went to his home, questioned his father about his whereabouts and asked him if he knew anything about the boxes. His father “played ignorant”. On the same day, the Police Officers went to his home looking for him. His father told them that he had not contacted him since he left. The Police Officers required him to report at the Police Station on his return.
·He obtained a visa and left Pakistan with the intention not to return. His father informed him that the Police Officers contacted him by telephone and informed him that they were aware that he had left Pakistan. His father subsequently asked him to return to Pakistan permanently as the Police had forgotten about him. His father told him that if he returned and feared the situation he would send him to [Country 1] to study.
·He returned to Pakistan and caught up with [Mr A]. He was at [Mr A]’s house when the three Afghan Pathun men arrived. [Mr A] told him that he was working for them, they wanted him to go to the mosque and were prepared to employ him. When he returned home and told his father what happened, his father advised him to leave Pakistan on the next available flight. He went to a relative’s home until he got a flight out of Pakistan.
·The Police went to his home and beat his father for not asking him to report to the Police Station. They told him they were aware he had left Pakistan and that he would be arrested at the airport on his return. He did not apply for protection as his brother’s application for a Protection visa was rejected. He obtained immigration advice and was told that he would have to return to Pakistan to apply for a Student visa to another country. He had no choice but to apply for a Protection visa. He fears returning to Pakistan.
The applicant has provided to the Department copies of his Pakistani passport, Birth Certificate, a card (without an English translation), his [academic qualifications] and country information.
The applicant attended an interview with the Department on 4 November 2015. During that interview, he made the following new claims:
·He is wanted by the Police.
·There is a warrant out for his arrest.
The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 5 May 2016, a copy of his Pakistani passport and country information on Pakistan.
On 11 January 2019, the Tribunal received an undated statement from the applicant together with some country information. In that statement he made the following new claims:
·After he left Pakistan, his father was no longer involved in the business. He wants him to stay away from Pakistan as the drug trade is flourishing. One of his [uncles] has remained in the business, is involved in the drug trade and has employed [Mr A].
·In around December 2017, [Mr A] was arrested by Rangers and taken into custody along with men from the Taliban who were involved in drug trafficking. The Police and the Mullah were advocating for [Mr A]’s release. They contacted his father frequently wanting him to be a witness to support [Mr A]. His father was aware that the Police and the Mullah were involved in drug trafficking and refused to oblige.
·The Police and the Mullah threatened to lodge a case against him alleging that he was involved in the drug trade with [Mr A] before he left Pakistan. They threatened to imprison him when he returned to Pakistan. His father refused to assist them.
·The Police and the Mullah asked his uncle to be a witness for [Mr A] but his uncle refused to do so. They forced his uncle to help them get [Mr A] released and [Mr A] then identified the Mullah and the Police Officers who were involved with him in the drug trade. His uncle stopped his involvement in the drug trade thereafter. In August 2018, his uncle was arrested by the Rangers and imprisoned. His father lost contact with him thereafter.
·A few months after his uncle’s arrest, the Rangers raided his house and took his father to the Intelligence Office where he was interrogated. His father told them the whole truth and was released within a few days. His father told the Intelligence Officers that the Mullah, local Police Officers and [Mr A] were involved in the drug trade. He was told that the Mullah, [Mr A] and the Police Officers told them that he was involved with [Mr A] in the drug trade for a long time before he left Pakistan. His father tried to convince them that this was not true but they did not believe it. His father was told to surrender him when he returned to Pakistan. His father has advised him never to return to Pakistan.
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.
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 was satisfied that his application for a Protection visa is accurate and complete.
During the hearing, the Tribunal discussed with the applicant his family, education, employment, where he lived in Pakistan, his reasons for leaving Pakistan and why he fears returning to Pakistan. The Tribunal found aspects of his evidence to be vague, contradictory and implausible. There were many inconsistencies between his written and oral evidence. He made new claims throughout the process. His conduct was not consistent with his claims. The Tribunal has serious concerns in relation to his credibility and the veracity of his claims for the following reasons:
First, in his Statement of Claims, the applicant claimed that in about January 2009 he was approached by Afghan men who were interested in doing business with him and arranged for him to transport some goods from [City 1] to [City 2]. He claimed that he discovered that the goods to be transported contained drugs and he informed the Police. He claimed that he was taken to the Police Station, questioned about why he opened the boxes and was beaten. He claimed that the Afghan men then went to the Police Station and beat him as well. He claimed that he was told that the Police were aware of the drugs being transported to [City 2].
The applicant claimed, in his Statement of Claims, that he was threatened that if he did not transport the drugs and work for the Afghan men they would take him to Afghanistan. He claimed that he was afraid and agreed to work for them. He claimed that after he was released his father arranged for him to hide in the home of a relative until he was able to get a visa and travel to Australia. He claimed that on the day after he was released from the Police Station the three Afghan men went to his home looking for him. He stated that the Police also went to his home, questioned his father about his whereabouts and left a message for him to report to the Police on his return.
During the hearing, the applicant made a new claim that on the day after he was released from the Police Station the Police went to his house and searched his house. He stated that the Police questioned his father about his whereabouts. He stated that his father advised him to go into hiding at a relative’s house until he could get a visa and leave Pakistan. He stated that the relatives he lived with were a half an hour drive from his house but it could take longer if the traffic was heavy. He stated that he stayed with his relatives until he left Pakistan [in] December 2009.
The Tribunal is of the view that if the applicant was fearful of being found by the Afghan men and the Police he would not have stayed in the home of a relative and within a half hour drive of his family home. If the Police and the Afghan men wanted to find him it would have been an obvious place to look for him and it would not have been difficult for them to find him there. This raises concerns in relation to his credibility and the veracity of his claims.
Second, the applicant’s evidence is that he stayed at the home of a relative from January 2009 to 6 December 2009 when he left Pakistan. The Tribunal asked him for the address where he lived with his relatives during this period and he responded that he could not remember. The Tribunal is of the view that if he lived with relatives from January 2009 to December 2009 he would remember the address where he lived for approximately 12 months. Further, his evidence that he was in hiding at a relative’s house during this period is not consistent with his evidence in his visa application.
In response to question 82 – Previous addresses – in his visa application, the applicant stated that he lived at the one address in [Suburb 1] from September 2007 to December 2009. In his evidence to the Tribunal, he stated that this address was his family home. He also gave evidence to the Tribunal that his visa application was prepared on his instructions which were true and correct and he was satisfied that his visa application is accurate. If he was living at his family home from September 2007 to December 2009, he was clearly not in hiding at a relative’s home from January 2009 to December 2009. This raises concerns in relation to his credibility and the veracity of his claims.
The Tribunal raised this as an issue with the applicant. He responded that his passport was before that. The Tribunal repeated that according to his visa application he lived at his parents’ house at [Suburb 1] until he left Pakistan in December 2009. He responded that he has been with his parents’ house right along. The Tribunal pointed out that it was giving him an opportunity to explain the inconsistencies in his evidence. He responded that he spent his childhood at a particular address in [Suburb 2] and then lived at another address in [Suburb 1]. The Tribunal pointed out that that was what he had indicated in his visa application and that he lived at the [Suburb 1] address until he left Pakistan in December 2009. He agreed that that was where he was living. He then questioned “wasn’t I?” The Tribunal again pointed out that according to his visa application he did not live with relatives. He then changed his evidence and stated that he moved to his relative’s house before the summer season.
These inconsistencies in his evidence raise further concerns in relation to his credibility and the veracity of his claims.
Third, the applicant gave evidence to the Tribunal that he was awarded a [specified qualification] in 2006 and thereafter worked for his father in his business. He stated that he stopped working in his father’s business after he went into hiding (in January 2009). He stated that he has not done any other work in Pakistan. This evidence is not consistent with his evidence in his visa application. In his visa application, in response to question 85 – Employment – he stated that he worked at [Company 1] as an [Occupation 1] from July 2006 to June 2009. His evidence to the Tribunal is that his visa application was prepared to his instructions which were true and correct and that he was satisfied that his visa application was accurate.

If the applicant was in hiding at a relative’s house from January 2009 to December 2009 in fear of the Police and the Afghan men, it is implausible that he would have continued to work in his father’s business until June 2009. This raises further concerns in relation to his credibility and the veracity of his claims.
Fourth, the applicant’s conduct in Pakistan was not consistent with his claims. The records of the Department indicate that he was granted a Student visa on 6 November 2009. However, he did not arrive in Australia until [December] 2009. The Tribunal put this information to him, pursuant to s.424AA of the Act, and noted that, if he was in hiding in fear for his life as claimed, he would have left Pakistan soon after obtaining the Student visa. The Tribunal noted that his delay of one month to leave Pakistan after he was granted a Student visa is not consistent with his claims and raises concerns in relation to his credibility and the veracity of his claims.
The applicant responded that he was not present there and did not know on what date he was granted the Student visa. The Tribunal pointed out to him that his father would have known when the Student visa was granted. He responded that maybe his father knew but he was not aware of it. The Tribunal does not find this response to be plausible and does not accept it. It is implausible that his father advised him to go into hiding at a relative’s home and remain in hiding until he could obtain a visa and leave Pakistan and then not inform him as soon as the visa was granted. His delay in leaving Pakistan after he was granted a Student visa raises further concerns in relation to his credibility and the veracity of his claims.
Fifth, the applicant’s conduct in Australia was not consistent with his claims. The records of the Department indicate that he arrived in Australia [in] December 2009 on a Student visa which is a temporary visa. He subsequently applied for another Student visa and withdrew that application. He was granted a Bridging visa which subsequently expired on 26 January 2012. He thereafter remained in Australia as an unlawful non-citizen until 13 March 2012. He could have been deported to Pakistan during that period. The Tribunal put this information to him, pursuant to s.424AA of the Act, and noted that if he was at risk of harm in Pakistan it would expect him to have obtained immigration advice and lodged an application for a Protection visa soon after his arrival in Australia. The Tribunal noted that it would also expect that he would not have put himself in a situation where he could have been deported from Australia. The Tribunal noted that his delay until 12 March 2015 to apply for protection raised concerns about his credibility and the veracity of his claims.
The applicant responded that he was studying earlier. He stated that when he finished his studies his brother’s application for a Protection visa was refused and his brother advised him to apply for a visa to go to [Country 1]. He stated that he obtained advice from a migration agent and was told that he could not apply for a Student visa. He stated that he then applied for a subclass 457 Temporary Work (Skilled) visa and when that was refused he applied for review of that decision to the MRT. He stated that it took a long time at the MRT and the decision was made in December 2014. He stated that his migration agent did not lodge an application for judicial review with the Federal Circuit Court within 28 days.
The applicant stated that his migration agent advised him to apply for Ministerial intervention. He stated that he was advised that he would have to “make a request” to appeal to the Federal Circuit Court and there was no guarantee he would be granted a subclass 457 Temporary Work (Skilled) visa. He stated that he was advised to return to Pakistan and apply for a Student visa. He stated that he was advised that he could not return to Australia on his Bridging visa. He stated that he did not return to Pakistan because of his fear of the Police and the Taliban. He stated that after his request to the Minister was unsuccessful he “did not have a way out”. He stated that his friends advised him to apply for a Protection visa and referred him to his current migration agent, [Mr B]. He stated that he “discussed the whole case with [Mr B]” and applied for a Protection visa.
The applicant’s response does not alleviate the Tribunal’s concerns.
Sixth, in his written statement received by the Tribunal on 11 January 2019, the applicant referred to the three Afghan men he had made claims about in his Statement of Claims as “the Taliban”. He continued to refer to them as “the Taliban” during the hearing and repeatedly stated that he was fearful of the Police and the Taliban. These claims and his claims in his Statement of Claims that he was in hiding from the Police and the three Afghan men from January 2009 to December 2009 is not consistent with his conduct in voluntarily returning to Pakistan in 2013 and the length of his stay in Pakistan. He has filed with the Tribunal a copy of the Department’s Decision Record dated 5 May 2016 which indicates that he departed Australia [in] January 2013 and returned [in] February 2013.
In his Statement of Claims, the applicant stated that his father asked him to return to Pakistan permanently as the Police had forgotten about him. He stated that his father told him that if he returned and feared the situation he would send him to [Country 1] to study. During the hearing, he gave evidence that when he returned to Pakistan in 2013 it was his intention to find a job and live there permanently. He stated that [Mr A] met him at the airport when he returned to Pakistan in 2013. He stated that he and [Mr A] were good friends. He stated that [Mr A] told him that he wanted to come to Australia and asked for his help. He stated that on the day before he left for Australia he visited [Mr A]’s parents.
The applicant stated that whilst he was at [Mr A]’s house the three Afghan men arrived and spoke to [Mr A]. He stated that [Mr A] then told him that they wanted him to go to the mosque and they were prepared to employ him in their business. He stated that he said he would meet them at the mosque at some other time. He stated that he returned home and told his father what had happened, his father advised him to go into hiding and leave Pakistan on the next available flight. He stated that he hid at a relative’s house and got a flight to Australia on the following day.
The Tribunal has a number of concerns with this evidence. Firstly, it is implausible that the applicant’s father would have advised him to return to Pakistan permanently on the basis that the Police would have “forgotten about him”. If the Police perceived him to be a threat previously because he was aware of the Police involvement in the drug trade there is no reason why the Police would not continue to perceive him to be a threat if he returned to Pakistan. Secondly, the applicant’s evidence is that his father sent him to Australia so that he would not get involved in the drug trade. His evidence and the country information on Pakistan[1] indicate that the illicit drug trade in Pakistan is flourishing. It is therefore highly likely that, on his return to Pakistan, he would be once again contacted by the three Afghan men or other drug smugglers like them. There was no apparent reason why his father would have thought that the situation in Pakistan had significantly changed from when he left Pakistan.
[1] Drug trafficking main source of income for terrorists in Pakistan, Outlook – The News Scroll, 19 July 2017. (>
Thirdly, the applicant’s claim that his father told him that if he returned to Pakistan and feared the situation he would send him to [Country 1] to study is implausible. There is no guarantee that he would be able to get a visa to go to [Country 1]. Further, in view of the fact that it took him approximately 12 months to get a visa and leave for Australia and was forced to live in hiding during that period, the Tribunal would expect that his father would not have wanted to put him at risk of having to live in hiding for another extended period during which he would have been at risk of being found and harmed.
Fourthly, the applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 5 May 2016 which indicates that he was granted a [Student] visa that was valid until 15 March 2013. It indicates that he departed Australia [in] January 2013, returned [in] February 2013 and lodged an application for a subclass 457 Temporary Work (Skilled) visa on 8 March 2013. This tends to indicate that he went to Pakistan for a temporary visit (whilst on a substantive visa) and that he returned to Australia in time to lodge an application for a subclass 457 Temporary Work (Skilled) visa before the expiry of his [Student] visa.
The Tribunal raised as an issue with the applicant his voluntary return to Pakistan in 2013 and noted that his conduct was not consistent with his claims. The Tribunal noted that it raised concerns in relation to his credibility and the veracity of his claims. He responded that when he returned to Pakistan in 2013 the situation was the same. He stated that [Mr A] and the Taliban were involved in the drug trade and he feared they would kidnap him. He stated that that is why he told his father that they are still involved with each other and still have the same business. He stated that his father advised him to get the next flight and go away from there.
The applicant’s response does not address the issue raised with him or alleviate the Tribunal’s concerns. His voluntary return to Pakistan in 2013 raises concerns in relation to his credibility and the veracity of his claims. The Tribunal does not accept that he returned to Pakistan in 2013 with the intention of living there permanently and was forced to return to Australia because of fears for his safety. The Tribunal is of the view that he returned to Pakistan to visit his family (whilst the holder of a substantive visa) and that he planned to return to Australia in time to lodge an application for a subclass 457 Temporary Work (Skilled) visa prior to the expiry of his [Student] visa.
Seventh, in his Statement of Claims, the applicant claimed that after he left Pakistan in 2013 the Police went to his home and beat his father for not asking him to report to the Police Station. He claimed that they told him they were aware he had left Pakistan and that he would be arrested at the airport on his return. During the hearing, he re-iterated these claims. When asked why the Police want to arrest him, he stated that it is because the Police and the Afghan men want to involve him in the drug business and he does not want to do so.
The Tribunal asked the applicant what was so special about him that the Afghan men and the Police would want him to work for them. He responded because his father had a business. When the Tribunal reminded him of his earlier evidence that his father closed down his business after he came to Australia in 2009, he responded that his uncle is involved in the business. When the Tribunal pointed out that they should then be talking to his uncle, he responded that [Mr A] was involved in his uncle’s business. When asked what this had to do with him, he responded that it is because he knows about the drug business and that is why they want to arrest him.
The applicant’s evidence tends to indicate that the Police were aware of his movements into and out of Pakistan if they were aware that he had left Pakistan and had threatened to arrest him at the airport on his return to Pakistan. If he was wanted by the Police in 2009, the Tribunal would expect that his name would have been put on the Watch List at the airport and he would have been prevented from leaving Pakistan in 2009. Further, he was able to enter and exit Pakistan in 2013 without any problems with the Police or any other Pakistani authority. He also lived in Pakistan for approximately 5 weeks in 2013 without being picked up by the Police. This tends to indicate that he was not of adverse interest to the Police.
When the Tribunal raised this as an issue with the applicant he responded that when he came to Australia in 2013 there were no Police at the airport. The Tribunal pointed out that if he was on the Watch List there would have been an alert on the computer when his passport was scanned. He did not respond.
Eighth, during the hearing, the applicant gave contradictory evidence. He stated that after he left Pakistan in 2013 his father received a telephone call from the Police who informed him that they were aware that he had left Pakistan. He stated that his father had no further contact with the Police or the Afghan men after that. This is not consistent with his evidence in his written Statement provided to the Tribunal on 11 January 2019 in which he claimed that after [Mr A] was arrested by the Rangers in December 2017 the Police and the Mullah contacted his father frequently wanting him to be a witness in support of [Mr A]. This inconsistency in his evidence raises concerns in relation to his credibility and the veracity of his claims.
Ninth, in a written Statement provided to the Tribunal on 11 January 2019, the applicant made a number of new claims. He claimed that in about December 2017 [Mr A] was arrested by Rangers and taken into custody along with men from the Taliban who were involved in drug trafficking. He claimed that the Police and the Mullah were advocating for [Mr A]’s release. He claimed that they put pressure on his father to be a supporting witness for [Mr A] and also asked his uncle to do so. He claimed that when his father refused to do so, he was threatened that they would lodge a case against him (the applicant) alleging that he was involved in the drug trade with [Mr A] before he left Pakistan and would imprison him on his return to Pakistan. He stated that his father refused to assist them.
The Tribunal finds these claims to be contradictory and implausible. Firstly, if the Police advocated for [Mr A]’s release, it would have alerted the Rangers to the fact that the Police were involved in the drug trade with [Mr A]. It is implausible that the Police would have taken this risk. Secondly, if, on the one hand, the Police were trying to support and protect [Mr A], it is implausible that they would, on the other hand, implicate him in drug trafficking by accusing the applicant of being involved in the drug trade with [Mr A]. The Tribunal raised this contradiction in his evidence with the applicant and noted that it was implausible.
The applicant responded that it is because he ([Mr A]) was involved after he came to Australia the second time. This response does not make sense and does not address the issue raised with him. The Tribunal finds these claims to be implausible and has concerns in relation to their veracity.
Tenth, in his written Statement provided to the Tribunal on 11 January 2019, the applicant made other new claims which the Tribunal finds to be implausible. He claimed that in August 2018 his uncle was arrested by the Rangers and imprisoned. He claimed that a few months later the Rangers raided his house and took his father to the Intelligence Office where he was interrogated. He claimed that his father told them the whole truth and was released within a few days. He claimed that his father was told that the Mullah, [Mr A] and the Police told them that he (the applicant) was involved in the drug trade with [Mr A]. He claimed that his father was unable to convince them that this was not true and was told to surrender him when he returned to Pakistan. He claimed that his father advised him never to return to Pakistan.
The Tribunal finds these claims to be contradictory and implausible. Firstly, if the Police and the Mullah were trying to protect [Mr A] it is implausible that they would then implicate him in drug trafficking by telling the Rangers that he was involved in the drug trade with the applicant. Secondly, it is also implausible that [Mr A] would implicate himself by telling the Rangers that he was involved in the drug trade with the applicant. The Tribunal raised this as an issue with the applicant and noted that it raised concerns in relation to his credibility and the veracity of his claims.
The applicant responded that the Intelligence Officer said this. He stated that his father was there and tried to convince the Intelligence Officer. He stated that he left Pakistan so that he would not get involved in the drug trade. His response does not address the issue raised with him or alleviate the Tribunal’s concerns.
Eleventh, during the hearing, the Tribunal discussed with the applicant the fact that there were many young men in Pakistan who were unemployed and would have been prepared to work in the drug trade without being forced to do so. The Tribunal informed him that it had difficulty understanding why the Police and the Afghan men would go to such lengths to have him work for them. He responded ‘because I know the drug business.’ This evidence is not consistent with his evidence that he left Pakistan because he did not want to get involved in the drug trade.
Towards the end of the hearing, the Tribunal raised as an issue with him the fact that it may find that he was involved in the drug trade in Pakistan and did not want to return to Pakistan and face the consequences of his criminal activities. The Tribunal also informed him that Australia does not offer protection to criminals who are trying to evade the consequences of their criminal activities. He responded that he was not involved in the drug trade. This inconsistency in his evidence raises concerns in relation to his credibility and the veracity of his claims.
Twelfth, the applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 5 May 2016 which indicates that during his interview with the Department on 4 November 2015 he claimed that he was wanted by the Police and there was a warrant out for his arrest. During the hearing, he made no mention of there being a warrant out for his arrest despite being asked many questions and being given plenty of opportunities to do so. During the hearing, he repeated a number of times that he feared the Police and the Taliban.
The Tribunal wrote to the applicant on 7 March 2019 inviting him to attend a hearing on 9 April 2019. The hearing invitation indicated that he should bring his passports to the hearing, if available. Prior to the commencement of the hearing, he provided the hearing officer with two expired Pakistani passports. The first was issued [in] 2005 and expired [in] 2011 and the second was renewed at the Consulate General of Pakistan in Sydney [in] 2012 and expired [in] 2016. During the hearing, the Tribunal asked him whether he had a current passport and he responded that he had provided it to the Tribunal. When the Tribunal pointed out that it had received two expired passports, he produced his current passport. When asked whether there was any reason why he had not previously provided his current passport, he answered no.
The applicant’s current [passport] was issued [in] 2016 and is valid [until] 2021. He stated that it was renewed at the Consulate General of Pakistan in Sydney. His willingness to approach the Pakistani authorities on two occasions in 2012 and in 2016 is not consistent with his claimed fears. When the Tribunal raised this as an issue with him, he responded that they took a long time and they are not issued. This response makes no sense and does not respond to the issue raised with him. His conduct is not consistent with his claimed fears and raises concerns in relation to his credibility and the veracity of his claims.

Thirteenth, the applicant’s lengthy immigration history raises concerns in relation to his motivation for lodging an application for a Protection visa. He twice applied for Student visas in Australia. He then applied for a subclass 457 Temporary Work (Skilled) visa and when that was refused by the Department he sought review of that decision before the MRT. When that was unsuccessful he applied for Ministerial intervention. After that was unsuccessful, he lodged an application for a Protection visa. The Tribunal put this information to him, pursuant to s.424AA of the Act, and noted that it may find that he applied for a Protection visa was a last report to extend his residence in Australia and not because he is in need of protection.
The applicant responded that it was not like that. He stated that his brother applied for a Protection visa in Australia and told him not to do that. He stated that his brother advised him to apply for a visa to go to [Country 1]. He stated that he discussed the matter with a migration agent and was advised that he was not able to apply for a visa to travel to [Country 1] or any other country. He stated that he was advised to apply for a subclass 457 Temporary Work (Skilled) visa and followed the advice he was given. He stated that he was not aware of whether he ended his case in the right way. He stated that it is not his fault. He stated that his migration agent missed the 28 days deadline. He stated that he was advised to apply for Ministerial intervention. He stated that he is not responsible in all these scenarios. He stated that his migration agent did not handle his case in a perfect manner and because of that he did not have any other way out. He stated that he fears the Taliban and the Police and, against the wishes of his brother, he applied for protection.
The Tribunal does not accept this explanation. The applicant’s evidence is that he has had the assistance of migration agents when preparing and lodging his various visa applications in Australia. The Tribunal would expect that, if he genuinely feared for his safety in Pakistan, he would have discussed this with his migration agent when preparing his application for another Student visa in 2011 and again in 2013, after he returned from Pakistan, when he prepared his application for a subclass 457 Temporary Work (Skilled) visa. His failure to lodge an application for a Protection visa until 11 March 2015 tends to indicate that he had no concerns about returning to Pakistan prior to that date and therefore he did not discuss it with his migration agent and lodge an application for a Protection visa at an earlier date.
The applicant’s immigration history and the timing of his application for a Protection visa raise concerns in relation to his motivation for lodging that visa application and the veracity of his claims.
The Tribunal raised as an issue with the applicant its concerns in relation to his credibility and the veracity of his claims. He did not respond. The Tribunal raised as an issue with him its concerns in relation to what ground, if any, he was relying on under s.5J(1)(a) of the Act with respect to his claims to be a refugee. The Tribunal noted that his claims revolved around the illicit drug trade. He did not respond.
The Tribunal has had regard to the country information provided by the applicant. This country information is in relation to the Taliban, Tehrik-e-Taliban Pakistan (TTP) and Islamic State. He has also provided the Tribunal with an article that explores the interface of Islamic militancy with the drug trade in the Afghanistan-Pakistan region and the implications for US national security.
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 and the Department’s Policy Guidelines to the extent that they are relevant to the decision under consideration.
Findings
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 Lahore in Pakistan. The Tribunal accepts that he is a Muslim. The Tribunal accepts that his parents and [a number of siblings] live in Pakistan. The Tribunal accepts that his brother [lives] in Australia. The Tribunal does not accept that he is unaware of his brother’s immigration status in Australia or his whereabouts.
The Tribunal accepts that the applicant was awarded a [qualilfication] [in] 2006. The Tribunal accepts that he worked in his father’s [business] from 2006 to 2009. The Tribunal accepts that he obtained a Student visa and travelled to Australia for the purpose of studying here. The Tribunal accepts that he has completed [another qualification]. The Tribunal accepts that he sought to obtain permanent residence in Australia through an immigration pathway but was unable to do so.
The Tribunal does not accept that in approximately January 2009 three Afghan men, or, alternatively, men from the Taliban approached the applicant and asked him to transport some goods (that contained drugs) to [City 2] and he reported this to the Police. It follows that the Tribunal does not accept any of his claims that flow from this.
The Tribunal does not accept that he is of adverse interest to the Police or the Rangers and that there is a warrant out for his arrest. The Tribunal does not accept that he is of adverse interest to the three Afghan men or the Taliban or the Mullah or [Mr A]. The Tribunal does not accept that he left Pakistan because he feared for his safety or that he fears returning to Pakistan for any of the reasons claimed.
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 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 any reason set out in s.5J(1)(a) of the Act if he returns to Pakistan now or in the reasonably foreseeable future. Therefore, the Tribunal finds that he does not have a well-founded fear of persecution and is not a refugee as defined in s.5H of the Act. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.
Does Australia have protection obligations to the applicant under the complementary protection criterion?
As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether he may nevertheless meet the criterion for the grant of a Protection visa pursuant to the complementary protection criterion.
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 5985

27 June 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness