1608247 (Refugee)

[2019] AATA 5829

1608247 (Refugee) [2019] AATA 5829 (31 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1608247

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Penelope Hunter

DATE:31 May 2019

PLACE OF DECISION:  Sydney

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

Statement made on 31 May 2019 at 4:37pm

CATCHWORDS

REFUGEE –protection visa – Pakistan – Federal Circuit Court Review – membership of a particular social group – western Shia – previous claim of being Sunni – perception of wealth – targeted for alleged allegiances – non-attendance of hearing – unable to verify claims – decision under review affirmed

LEGISLATION

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

CASES

MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 17 May 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

   BACKGROUND

2. The applicant is a male child and he was born in Australia on [date]. He applied for the visa on 22 September 2015; his [mother], [made] the application on the applicant’s behalf as his guardian.

3. The applicant’s parents are citizens of Pakistan. They arrived in Australia [in] December 2010, on a [temporary] visa. This visa was cancelled on 13 February 2012 and on 22 April 2013, the applicant’s parents applied for a subclass 866 Protection visa. This was refused by a delegate of the Minister on 13 March 2014. His parents’ sought a further review of that decision and the former Refugee Review Tribunal affirmed the Department of Immigration (the Department) decision on 22 January 2015. A further review of that decision was filed with the Federal Circuit Court [in] September 2015.

   CLAIMS AND EVIDENCE

4. In a statement made on behalf of the applicant, provided with his application for protection visa, the applicant set out his protection claims as follows:

   In a statement made on behalf of the applicant, provided with his application for protection visa, the following claims were made:

   ·The applicant faces the same threats as his parents; he is not safe in Pakistan, due to certain perceptions about his family in Pakistan. The applicant’s parents have sought protection in Australia, because they have been specifically targeted by the general public due to some allegations of allegiance to the [Country 1] and to a belief that the family is funded by the [Country 1] to speak against Islam.

   ·Members of his family have been targeted due to this reason. The applicant’s [Relative A] has been branded a kafir (an infidel) and physically attacked in public along with the applicant’s father. This was because his [Relative A] had vocally spoken against some of the religious practices in Pakistan. The community has assumed that as his [Relative A] has resided in [Country 2] and is married to [a Country 1 national] working in [Country 1 defence forces], he is against Islamic practices. He left to reside in [Country 1] because he could no longer safely stay in Pakistan.

   ·He applicant’s grand-father who has developed some misunderstandings with the Imam of the local mosque was not viewed well by the community earning a family name as [Country 1] trailers. He was attacked outside the mosque.

   ·The applicant’s grandparents left for [Country 3] as the situation became worse and they could no longer stay in that community.

   ·After the departure of the applicant’s grandparents, his parents moved into the family home, only to be often questioned by unknown people as to the whereabouts of his other family members.

   ·In 2010 his father was kidnapped by extremist Muslims. His mother was often harassed at public places for being ‘traitors’ of Islam.

   ·The applicant’s parents came to Australia due to these emerging threats and applied for protection.

   ·The applicant states his life is in danger, if he is to return to Pakistan due to the circumstances facing his family in Pakistan.

5. The applicant’s father attended an interview, on the applicant’s behalf, with the delegate on 16 May 2016. A First Information Report (FIR), dated [September] 2013, was submitted. The report stated that the applicant’s grandfather had been threatened over the phone and in person by some unknown person [in] August 2013 that his son (the applicant’s [Relative A]) and son-in-law (the applicant’s father), would be killed is they return to Pakistan. The applicant has submitted a copy of the decision record of the delegate dated 17 May 2016 to the Tribunal. The delegate was not satisfied that any weight could be attached to the FIR, and found that the applicant had not been able to provide any new information that negated previous findings by the Department and the Refugee Review Tribunal, that the applicant’s parents did not satisfy s.36(2)(a) or s.36(2)(aa) of the Act.

   Tribunal application

6. In a submission dated 30 July 2016, the representative for the applicant argued that in addition to the claims of his parents, for which it was acknowledged that there had been credibility concerns, the applicant arguably had a sur place claim, because the political infrastructure in Pakistan had deteriorated concurrently with the rise of terrorism and fundamentalist Islamic ideology.  It was submitted other family members has been obliged to migrate from Pakistan. Further it was claimed that the significant social and economic impact which would accrue after a protracted period of absence from Pakistan given the change in social and political conditions, that is, a lack of family support, and lack of capacity to subsist with dignity, would amount to cruel inhuman or degrading treatment under the complementary protection provisions contained in s.36(2A)(e) Act. The applicant may also be part of a sub-group of persons perceived to be rich, having resided overseas for a protracted period.  It was also submitted it is ‘entirely unrealistic to expect any or any meaningful protection by the police’.

7. On 25 March 2019, the Tribunal wrote to the applicant, and advised that it was unable to make a favourable decision on the information before it, and invited the applicant to attend a hearing on 22 May 2019, to give evidence and present arguments.

8. On 8 April 2019, the Tribunal received a hearing response from the representative of the applicant. The Tribunal was advised that the father of the applicant would attend as a witness on his behalf and give evidence, accompanied by the representative for the applicant.

9. On 13 May 2019, a further submission was received from the representative of the applicant, together with extracts of paragraphs 5.30 to 5.51 of the Department of Foreign Affairs and Trade Country Information Report Pakistan, dated 20 February 201. In the submission it was confirmed that the claims of the applicant which he was seeking to duplicate from his parents’ previous application were as summarised in the decision of the delegate dated 17 May 2016. In relation to the applicant, the following further claims were submitted:

   • There was further change in social and political conditions in Pakistan, and a growth of a rigid and fundamentalist religious culture particularly within urban areas such as Rawalpindi. This would lead to the applicant’s family further being perceived as ‘westernised’.
   • The applicant’s representative was instructed that the family have adopted what may be regarded as a ‘western’ way of life, accepting moderate social mores of their Islamic faith.
   • The perception of being wealthy, westernised and recent returnees puts the applicant and his family at risk of harm.
   • The family present as westernised Shi’as.
   • They cannot rely on the police protection in a conflict. 

10. On 14 May 2019, the Tribunal received advice via email from the representative of the applicant, that the applicant’s father had instructed that he no longer wished to attend the hearing.

11. On 21 May 2019, the Tribunal received a request via email from the representative of the applicant for the Tribunal to make a decision on the papers, and a signed letter of instruction from the applicant’s father that he did not wish to attend the Tribunal hearing on 22 May 2019.

12. In these circumstances, and pursuant to s.426A of the Act, the Tribunal decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

    CRITERIA FOR A PROTECTION VISA

13. 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.

14. 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.

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

16. 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.  

17. 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

18. 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 – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

20. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reasons claimed. Similarly that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

21. Despite the written claims contained in the applicant’s protection visa application, and the evidence provided to the delegate and in the claims of the applicant’s parents, the information provided was not sufficiently detailed to enable the Tribunal to be satisfied that the applicant has a well-founded fear of persecution in Pakistan or 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.

22. In the statement accompanying the visa application, it is stated that members of his family have been specifically targeted. That there are allegations of allegiance to [Country 1] and a belief the family is funded by [Country 1] to speak out about Islam. Had the applicant or his witnesses attended the hearing the Tribunal would have had the opportunity to test the foundation for this belief and whether there is any new information to support that this belief is well founded.

23. It is claimed that the applicant’s [Relative A] had been branded an infidel because he had vocally spoken against some religious practices in Pakistan. The community assumed that as his [Relative A] has resided in [Country 2] and is married to [a Country 1 national] working in [Country 1 defence force] he is against Islamic practices. It is claimed that he was physically attacked in public and he left to reside in [Country 1] as he could no longer safely stay in Pakistan. In the protection claim lodged by the applicant’s mother she claimed that [Relative A] developed a liberally ideology and was a vocal critic of Pakistani cultural norms and religious extremism. In April 2009 [Relative A] and the applicant’s father attended Friday prayer at their local mosque. Afterward [Relative A] argued people, who accused him of being an infidel and enemy of the people. [Relative A] was injured and his shirt was torn. On the same afternoon a few youngsters came and beat [Relative A] outside the family home. After this incident the whole family started receiving anonymous phone threats. The applicant’s mother also claimed that as neighbours discovered that [Relative A] was married to [Country 1] resident working for [Country 1 defence force], they blamed his wife for [attacks] on Afghanistan. The Tribunal has considered all the material before it but was unable to satisfy itself as to the reliability of these claims, in relation to the applicant. The applicant has provided no new information to indicate whether his [Relative A] or his wife have had any continuing association with Pakistan, whether any members of the applicant’s family have returned to Pakistan, whether any relations remain in Pakistan and whether they have faced any difficulties more recently. As the applicant did not attend the hearing, the Tribunal was also unable to satisfy itself as to how these matters would impact upon the applicant given that his [Relative A] departed Pakistan prior to his family’s departure in 2010, and before his birth in [year].

24. In the statement accompanying the visa application, it is stated that the applicant’s grandfather who has developed some misunderstandings with the Iman of the local mosque was not view well by the community earning a family name as [Country 1] traitor. The applicant’s grandparent’s left for [Country 3] because the situation became worse and they could no longer stay in the community. In the protection claims lodged by the applicant’s mother she claimed that after the applicant’s [Relative A] left Pakistan, the applicant’s grandfather developed enmity with the local imam about differing views on religion. He was hit by an unknown assailant outside the mosque, and he stopped going to mosque because he feared for his life. As the Tribunal was unable to question the applicant’s witnesses it was unable to satisfy itself as to the veracity of these claims. The Tribunal has considered the FIR dated [September] 2013, submitted by the applicant’s father at the time of the interview with the delegate. Had any witnesses for the applicant, or the applicant’s father, attended the Tribunal hearing, the Tribunal would have questioned why the applicant’s grandfather had returned to Pakistan in 2013 in circumstances where the applicant claims they could no longer stay, and further why threats were made against the applicant’s father when he had departed the country in 2010, and his [Relative A] had also departed in 2009. The Tribunal would have questioned whether the applicant’s grandparents had again returned to Pakistan, and whether they have faced any difficulties more recently. The Tribunal has listened to the interview of the applicant’s father before the delegate. The Tribunal is satisfied that the decision accurately records that during the interview the delegate discussed country information contained in the 2015 DFAT country report on Pakistan,[1] in which it is reported that document fraud was endemic in Pakistan and that police issued FIRs which are not difficult to fraudulently produce. This advice remains consistent with the most recent DFAT country advice on Pakistan, where it is documented that FIRs use standard forms with the relevant information written by hand, and are relatively simple to counterfeit. Reports exist of police accepting bribes to verify fraudulent FIRs. DFAT does not consider the existence of an FIR to constitute evidence that the events described in the FIR actually occurred. [2] No further evidence was produced to support the genuineness of the FIR before the delegate, and no additional material has been submitted to the Tribunal. In the circumstances, given the country information in relation to fraud, and the Tribunal’s inability to assess the veracity of the claim in relation to the threats reported within, the Tribunal can place no weight on the document, and is not satisfied, in the absence of further evidence, that it can be relied upon as evidence that the events described actually occurred.

    [1] Pakistan Country Information Report 14 April 2015, Department of Foreign Affairs and Trade, at 5.45

    [2] Pakistan Country Information Report 20 February 2019, Department of Foreign Affairs and Trade, at 5.73

25. In the statement accompanying the visa application the claim is made that the applicant’s father had been physically attacked in public and in 2010 he was kidnapped by extremist Muslims. It is also stated that the applicant’s mother was often harassed in public places. In the protection claim lodged by the applicant’s mother she claimed that the applicant father was attacked with [Relative A] at their local mosque in April 2009 and his shirt was torn. In October 2010 he was kidnapped in Rawalpindi by Islamic extremists seeking information about her family. The statement further sets out that the applicant’s mother was often harassed in public places for being ‘traitors of Islam’. In the protection visa application of the applicant mother she has claimed that she was often verbally harassed by neighbours and people in the bazaar. In her interview with the delegate on 10 October 2013, the applicant’s mother claimed that she had overheard other women talking about her, that she was not a good Muslim. There is insufficient material before the Tribunal to be satisfied of these claims, and without a hearing, the Tribunal did not have the opportunity to test these claims in relation to the applicant. The Tribunal is similarly unable assess whether there is any new information and whether the claims that the applicant’s family and members of the applicant’s extended family could stay in Pakistan due to threats are genuine. There is insufficient information on the applicant’s current circumstances and how he might be affected if he returned to Pakistan.

1. The Tribunal has considered the claim that the applicant belonged to one or a combination of the particular social groups of having resided overseas for a protracted period, being perceived as westernised or a western returnee perceived as wealthy, or someone perceived as wealthy. In the absence of any further evidence from the applicant or his witnesses, the Tribunal has been unable to test the submission of his representative that the applicant’s family have ‘vigorously adopted a western way of life’. There is insufficient information as how this is demonstrated in the everyday life of the applicant, what activities they partake in, or has this affected their expression of their religious belief. The Tribunal could not question Further the Tribunal was unable to explore why the applicant would be targeted for this reason. The Tribunal has had regard to the advice contained in the most recent DFAT country information report, that it is assessed that returnees to Pakistan do not face a significant risk of societal violence or discrimination as a result of their attempts to migrate, or because of having lived in a western country.[3] While it is noted that societal or official discrimination or violence can still occur due to the reasons that they attempted to migrate, in the applicant’s particular circumstance, the Tribunal is not satisfied that the claimed reasons that the applicant’s family attempted to migrate have been made out. The Tribunal is therefore unable to be satisfied on the information before it that the applicant has a well-founded fear of persecution by reason of his membership of the particular social group of having resided overseas for a protracted period, perceived westernised or a western returnee perceived as wealthy, or someone perceived as wealthy.

   [3] Opcit at 5.45

2. In submissions dated 13 May 2019, the representative for the applicant also made a new claim that the applicant belonged to the group of ‘westernised Shi’as’. The applicant had not previously made claims to be of the Shi’a religion, and this was not a feature of his parent’s claims. The Tribunal notes that in the Part C personal particulars filed with the Department, both the applicant’s mother identified as belonging to the Sunni denomination.[4] Again in the absence of any further evidence from the applicant’s witnesses or representative the Tribunal is unable to test the claim that the applicant is a Shi’a, or whether this is a typographical error in the submissions of his agent. On the material before the Tribunal is unable to be satisfied that the applicant is Shi’a. In any event the Tribunal notes that DFAT assesses overall most Shi’as in Pakistan face a low risk of sectarian violence. The Tribunal does not accept that the applicant faces a well-founded fear of persecution for this reason.

   [4] Form C of [named person], signed 15 December 2015, Page 145 of Department file [file deleted]

3. The Tribunal has considered the claims of the applicant arising from the claimed deterioration of the political infrastructure in Pakistan and the rise of terrorism and fundamentalist ideology. The Tribunal accepts that there have been a number of violent incidents throughout Pakistan. The Tribunal has also considered relevant country information and the most recent DFAT assessment that although counter-terrorism operations have succeeded in suppressing terrorism-related violence, societal intolerance and religious extremism appear to have increased, suggesting the underlying causes of violence remain.  Despite a reduction in overall levels of violence in Pakistan, sporadic large-scale terrorist attacks are likely to occur, against a background of ongoing smaller-scale attacks (albeit at a reduced tempo).[5] It is also accepted that the applicant’s family, having resided in Australia since 2010, have become accustomed to the safety and security of the Australian way of life. However, on the material before it the Tribunal is not able to be satisfied that the applicant’s family was of any adverse profile in Pakistan, either political, religious or due to the membership of a particular social group, that would make them the target or any particular attack. The applicant’s representative has made claims of a rigid and fundamentalist religious culture especially in Rawalpindi. The Tribunal has considered specific reports of violence in the applicant’s family hometown of Rawalpindi; it is noted that there are reported sectarian tensions prevalent against Shi’as,[6] Turi Shi’as,[7] and Ahmadis,[8] and an incident of political violence in October 2016[9]. As discussed, the applicant’s parents have previously claimed to belong to the Sunni majority denomination, the Tribunal is not satisfied that the applicant is a Shi’a. He has not claimed to be a Turi Shi’a or Ahmadi and the Tribunal is not satisfied that the applicant’s parents or his family were politically active. There are no claims that the applicant’s family have in the past been subject to generalised violence. The Tribunal considers that the risk to the applicant or his family would be subject to sectarian, political or terrorist violence upon his return to Pakistan is remote.

   [5]  Pakistan Country Information Report 20 February 2019, Department of Foreign Affairs and Trade, at 5.73

   [6]  As above at 3.106

   [7] As above at 3.26

   [8] As above at 3.115

   [9] As above at 3.158

4. Before the Refugee Tribunal in 2016, the applicant’s father made claims that he feared the Taliban because they would not allow anyone with a different view. Had the applicant’s witnesses attended the Tribunal it would have asked questions in relation to this claim as to how the different view manifests itself, how the Taliban would be aware of this view,  there is insufficient information as how this view is demonstrated in the everyday life of the applicant, what activities they partake in, or has this affected their expression of their religious belief. The Tribunal would have asked about circumstances related to the applicant that make this view of particular interest to the Taliban. While the Tribunal accepts that the Taliban and splinter groups continue to operate in Pakistan, the Tribunal is unable to be satisfied on the information before it that applicant has a particular profile, or that there is a real chance that he would be persecuted for any of the reasons set out in s. 5(J)(a) of the Act.

5. Before the Refugee Review Tribunal in January 2015 the applicant’s mother made claims that children were not safe and that following an attack in Peshawar in 2014, children were targeted at schools. The Tribunal has considered that in December 2014 there was an attack on military-run school in Peshawar[10] in which over 140 children were killed.  However this was an attack on a military run school and the Tribunal is not aware of the connection of the applicant’s family with the Pakistani military. The Tribunal has considered that the applicant is a child and that if he returns will most likely attend school in Pakistan. The Tribunal has considered the most recent DFAT report and notes that security can significantly impact upon children, that there are reported attacks on educational facilities for children in the former Federally Administered Tribunal Areas (FATA), and for ethnic minorities, particularly Hazaras and Christians while travelling to school.[11] The Tribunal is not aware that the applicant and his family would return to the FATA, or that he has other attributes that would place the applicant at risk. The applicant is a young male and DFAT reports that juvenile status alone is not a determinant of risk.[12] There is insufficient information before the Tribunal in relation to the applicant’s current circumstances and how he might be affected if was to return to Pakistan for the Tribunal to be satisfied that the applicant would have a well -founded fear of persecution for this reason.

   [10] As above at 2.36

   [11] Pakistan Country Information Report 20 February 2019, Department of Foreign Affairs and Trade, at 3.243

   [12] As above at 3.244

6. Given the lack of information identified above, without more, it is difficult to know what significance can be attached to the applicant’s claims. He has not provided any further information to the Tribunal to determine whether his fear of facing persecution in the future is well-founded.

7. It follows that on the information before it, considering the applicant’s claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for the any reason in s.5J(a) of the Act now or in the reasonably foreseeable future.  

   Complementary protection

8. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).

9. The Tribunal has considered the claim be the applicant’s representative that the applicant’s family, due to the lack of family support, would have a lack of capacity to subsist with dignity, and that this would amount to cruel, inhuman or degrading treatment. In the absence of further evidence on behalf of the applicant, the Tribunal is not satisfied that this claim is made out. As the applicant or his witnesses did not attend the hearing, the Tribunal was unable to ask questions in relation to the family and social support available in Pakistan. The Tribunal notes that when the FIR was lodged in September 2013, it appears that the applicant’s grandparents have at some point returned to Pakistan. The Tribunal was unable to satisfy itself whether there we no supports available for the applicant were he to return to Pakistan. The Tribunal accepts that the applicant’s family will face challenges readjusting to life in Pakistan after their extended residence in Australia. However, in the absence of further evidence the Tribunal is not satisfied that they would be unable to readjust, establish themselves, or obtain further employment.  Particularly, on the information contained in the Form C submitted with the visa application, it is disclosed that the applicant’s parents both hold tertiary qualifications.[13] The applicant’s mother has also completed additional qualifications in [Australia]. They are both well educated. His mother lists her occupation as [employed][14] and his father lists his occupation as [employed],[15] there is no evidence to suggest that his parents were previously unable to obtain employment or support his family. It follows that the Tribunal is not satisfied that the applicant would suffer cruel or inhuman treatment or punishment or degrading treatment or punishment due to the lack of capacity of his family to subsist with dignity.  The Tribunal is not satisfied that for this reason there is a real risk that the applicant would suffer significant harm.

   [13] Department file [file deleted] folios 156 and 131

   [14] Department file [file deleted] folio 145

   [15] Department file [file deleted] folio 170

10. The remainder of the applicant’s claims for complementary protection are for the most part the same as his refugee status claims. As there was insufficient information for the Tribunal to be satisfied as to the reliability of those claims, and given the lack of information the significance attached to those claims the Tribunal is not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm because of the circumstances that gave rise to his parent’s claims. That is because his family was perceive to be support to [Country 1], their perceived opposition to Islamic practices or the perception that they were traitors of Islam, or the perception that they were not good Muslims or that they had a different view to the Taliban.

11. Similarly, the Tribunal is not satisfied that by reason of the applicant been born and/or resided in a western country, or being perceived as westernised, a western returnee perceived as wealthy, or someone perceived as wealthy, because he was someone who had a different view to the Taliban or because he is a child, that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.

12. The Tribunal does not accept that the applicant is a Shi’a, and is not satisfied on the evidence that the applicant would have any profile, religious, political or otherwise, and is not satisfied for these reasons that there is a real risk that the applicant would suffer significant harm.

13. Accordingly, considering the applicant’s claims singularly and cumulatively, 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 the applicant will suffer significant harm such that he will be arbitrarily deprived of his life, suffer the death penalty or he will be subjected to torture or to cruel or inhuman treatment or punishment or to degrading treatment or punishment.

14. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

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

    DECISION

16. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Penelope Hunter
    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.

    …