1609296 (Refugee)

[2019] AATA 5533

1609296 (Refugee) [2019] AATA 5533 (18 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1609296

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Luke Hardy

DATE:18 July 2019

PLACE OF DECISION:  Sydney

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

Statement made on 18 July 2019 at 12:14pm

CATCHWORDS

REFUGEE – protection visa – Pakistan – religion – Muslim – Hindu – atheism – inter-religious marriage – threats of honour killing – fears harm from unknown Islamic extremists – familial harassment – inconsistent claims – vague and speculative evidence – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5, 5J, 36, 65, 189, 351, 424A, 438

Migration Regulations 1994 (Cth), Schedule 2

CASES

Kopalapillai v MIMA (1998) 86 FCR 547

MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220.
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Sun v MIBP [2016] FCAFC 52

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to sections 431 and 440 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 31 May 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, Mr [A], is a citizen of Pakistan. He arrived in Australia [in] October 2012 on a student visa which was cancelled on 26 April 2013 due to his failure to achieve satisfactory course progress. Between 27 April 2013 and 13 February 2014, Mr [A] was an unlawful non-citizen.

3. The former Migration Review Tribunal affirmed the Student visa cancellation decision on 16 January 2014.

4. Mr [A] then applied and obtained a series of bridging visas while he sought but failed to attract Ministerial intervention under s.351 of the Act.  At that time, his last bridging visa ceased on 1 September 2014 and he became, again, an unlawful non-citizen.

5. Mr [A] was located by Immigration Department (now DHA) authorities and detained under s.189 of the Act on 3 December 2014. He then lodged an application for a partner visa, sponsored by Ms [B], a Hindu Australian citizen, on 12 December 2014 and was deemed to have lodged an application for another bridging visa. Documents provided to me by Mr [A] show that, during a bridging visa interview, he evidently told the Immigration officer that he was waiting for his brother in Pakistan to send him the application fee for the partner visa application. He also evidently said to the Department that he has “no family” left in Pakistan.

6. The Department refused the bridging visa and a differently constituted MRT reviewed that decision. Mr [A] presented [Relative 1] as a witness who spoke in support of his being released so that he could proceed with his relationship and partner visa application. The then-constituted MRT set aside the bridging visa refusal on 23 December 2014 and Mr [A], released from detention, proceeded with his partner visa application.

7. A delegate of the Minister refused the partner visa application on 19 February 2015 on the grounds that he did not meet cl.820.211(2)(d) or any other provisions in cl.820.211 of the migration regulations.

8. Mr [A] married his sponsor Ms [B] [in] June 2015.

9. Mr [A] sought review by the MRT, again differently constituted. The MRT laid out the criteria Mr [A] needed but failed to meet and then, as required by the Act, considered if there were compelling circumstances for granting a partner visa. The MRT found in its decision of 19 August 2015 that there were not compelling circumstances, partly in light of inconsistent evidence leading to a finding that the relationship was not genuine. In the course of the review process, however, the MRT heard from Mr [A] and Ms [B] that their respective families abroad were not helping or supporting them because they were opposed to their being in an inter-religious relationship.

10. Mr [A] lodged a protection visa application on 18 September 2015. The Minister’s delegate refused to grant the visa on 31 May 2016. As at that time, Mr [A] claimed still to be in a marital relationship with Ms [B] although, as discussed below, they had been living apart since the year before. Mr [A] lodged a review application with the Tribunal on 22 June 2016. He engaged a migration agent in July 2018.

11. Mr [A] appeared before the presently-constituted Tribunal on 29 March 2019 to give oral evidence and present arguments. He was accompanied by  his advisor, a registered migration agent. He presented two witnesses, both friends and consecutive flatmates of his, one called [Mr C] and the other Ms [D]. The hearing was conducted without need of an interpreter.

    CRITERIA FOR A PROTECTION VISA

12. 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.

13. 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.

14. 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, are unable or unwilling to return to that country: s.5H(1)(b).

15. 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.  

16. 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

17. 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

    The issues

18. The main issue in this case is whether, on accepted facts, Mr [A] is entitled to protection in Australia as a refugee or, if not, on complementary protection grounds.

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

    Claims to the Department

20. In his 18 September 2015 protection visa application form, Mr [A] said he was a Muslim and a resident of Abbottabad in Pakistan’s Khyber Pakhtunkhwa (KPK) province. He said he obtained a diploma from an institution in Rawalpindi and was [a] student for one year with an institution in Islamabad. he claimed he never worked in Pakistan because his parents always supported him.

21. In the same protection visa application, Mr [A] described his family composition: two parents and one sister all living in [Country 1]. This is consistent with what he had previously said in his Immigration compliance interview on 4 December 2014 when he told a Department officer that he had “no family” in Pakistan and had “nothing there”.

22. Mr [A] claimed that he left Pakistan for Australia for the purposes of education. He claimed it was previously never his intention to claim asylum in Australia. He claimed, that he had been, however, in a relationship with a Hindu woman in Australia for more than two years, i.e., since some time in 2013. He claimed that his relationship ran against religious norms in predominantly Muslim Pakistan. He claimed he would be punished “by the community”. He said he and his wife would be tortured and/or killed if they went to Pakistan. He said that because Islamic extremists are “everywhere” they would use the excuse of his marriage to kill him. He repeatedly said that the agents of persecution would be extremists and other conservative Muslims in the general population. He said the authorities would not be able to protect him because he would not be able to point out any particular person who intended to harm him, given the way extremists move in the country.

23. In his protection visa application, Mr [A] did not in any way suggest that his family or relatives would harm him. He said in his protection visa application form that he was in contact once a month or so with his parents in [Country 1]. He submitted evidence of his parents’ [Country 1 visa]  and his sister’s [Country 1] passport. He did not mention having any other siblings in his protection visa application form, let alone any siblings in Pakistan. He later provided evidence to the Tribunal to the effect that he had engaged a brother to help him prepare and pay the fee for his partner visa application.

24. Mr [A] submitted a copy of his NSW marriage certificate. The date of his marriage to Ms [B] was [date] June 2015.

25. For the purposes of this review, Mr [A] submitted a copy of the delegate’s decision record which contains a summary of his migration history, his oral evidence at an interview held on 12 May 2016 and critical issues raised by the delegate.

26. Mr [A] told the delegate he stopped studying in February 2013 and became an unlawful non-citizen. He said he did not return to Pakistan when located by authorities because he was in a de facto relationship at the time with Ms [B]. He said that his partner visa application had been unsuccessful due to the MRT finding against him on the basis of credibility. I observe, however, on the basis of evidence submitted to me by Mr [A], that his partner visa application had failed at the primary stage because he did not have a substantive visa at the time of application, that the MRT nevertheless considered whether there were “compelling circumstances” for the granting of a partner visa, as allowed for in the regulations, and that the MRT found that there were no “compelling circumstances” on the basis of lack of credibility: Mr [A] and Ms [B] had provided, in oral evidence, starkly different, to the point of being mutually exclusive, accounts of what they had done together on the day prior to the MRT hearing.

27. When the delegate deciding in the present application put to Mr [A] that he could return to Pakistan and be sponsored for a partner visa offshore, he said for the first time that his family, as well as unknown Muslim extremists, would harm him over his marriage to a Hindu. This was a new claim, and quite a significant one; it was also unsupported.

28. The delegate evidently raised the option of relocation, i.e., returning to a different part of Pakistan where he could proceed with a Partner sponsorship, and Mr [A] said he would have nowhere to stay in all of Pakistan except with his family in Abbottabad. The delegate, meanwhile, put to Mr [A] that he had been able to live away from his family in Australia, and thus indicated that he had some difficulty accepting that Mr [A] would have no such option in Pakistan. Mr [A] then said he would be vulnerable to harm from Muslim extremists everywhere in Pakistan.

29. Without appearing to have tested the facts in any depth, the delegate accepted that Mr [A] was in a genuine marital relationship with Ms [B] at the time of the decision on 31 May 2016. In any event, Mr [A] and Ms [B] claim they began to live apart shortly after the protection visa interview, which Ms [B] attended.

30. The delegate cited  two small items of country information, one a generic description of Shari’a law not recognising intermarriage, and the other a commentary on the possible risks in Pakistan in the case of the marriage between a high profile, politically-connected Pakistani Muslim woman to an Indian Hindu in India. The delegate went on to determine, without giving reasons in the context of the independent information he had just cited, that it was safe for Mr [A] to return to Pakistan to enable his Australian spouse to sponsor him. Not to put too fine a point on it, the delegate’s decision seems muddled.

31. In any event, on 10 March 2017, the Department received information about Mr [A]: accusations as to Mr [A]’s good faith in matters of concern to the Department. The information accused Mr [A] of not having been in a genuine relationship with Ms [B] even though she had agreed to marry him. The information included an accusation to the effect that Mr [A] had not resided with Ms [B] for very long after they married. The information also included an accusation to the effect that Mr [A] had engaged as his witness, attesting to the genuineness of his relationship in the Partner visa application, [Relative 1], the explicit implication being that neither Mr [A] nor his witness should be relied upon as witnesses to the genuineness of the relationship with Ms [B].

    Evidence to the Tribunal prior to the hearing

32. After lodging his review application, Mr [A] submitted a number of witness statements introducing new claims: whereas Mr [A] claimed in his September 2015 protection visa application form that he was at least nominally a Muslim, he now presented, in March 2019, statements from four witnesses attesting to his having declared himself an atheist and having said that his family had disowned him and would kill him if he returned to Pakistan. This evidence was not brought to light until after Mr [A] was invited to a Tribunal hearing.

33. Amongst the new claims was evidence suggesting the existence of a male sibling, “[Mr E]”, purportedly still residing in Pakistan. This person was not listed as a sibling in Mr [A]’s protection visa application form but, as noted, was referred to in a bridging visa application as a person assisting his partner visa application with Ms [B].

34. On the evening before the Tribunal hearing, Mr [A]’s advisor sent around 200 pages of submissions by email. The adviser was to explain the next day that these documents formed a part of the bound submission he tabled at the commencement of the hearing. That bound document, received at the commencement of the Tribunal hearing, comprised 288-pages of media articles, general country reports, witness statements, the MRT decision in the partner visa matter and other material.

35. One of the statements in the bound volume of submissions is from Ms [B], dated 25 March 2019: it says that Mr [A] and Ms [B] had mutually decided she should spend time residing with her sister after the miscarriage of her then-expected child in July 2015, so that she could benefit from family care and live closer to a doctor she needed to see. The separation appeared to me, however, to have gone on for around four years. Ms [B] nevertheless claimed in her 25 March 2019 statement that the relationship had recovered. However, she did not suggest that she and Mr [A] were living together again. She said that she and Mr [A] see each other once a week and are “dreaming of the future”. She also said she works in a [shop].

36. Another statement is from a Mr [F] who has also provided evidence of his Tweets relating to atheism. The statement asserts that Mr [A] has declared himself an atheist and opines that he is genuine and will be lynched in Pakistan for having become an apostate. Mr [A] also submitted statements from other persons attesting to having heard him tell them that he is an atheist.

37. The large bound submission included a series of small iPhone captures of a 27 March 2019 statutory declaration from Mr [A]. He said in the statutory declaration that Ms [B] had wanted to come to the Tribunal hearing but decided not to do so when he told her he did not want her to be stressed by the experience. He provided what he claimed to be evidence of having attended a police station some years ago with Ms [B], after her parents had accused him of kidnapping her: the evidence presented is a “victims of crime” card with an officer’s ID number on it. Elsewhere in his statutory declaration, Mr [A] describes his having been a Muslim only in name since coming to Australia. He said he “started to look into atheism” after Ms [B] moved out to live with her sister, which he said she had done with his consent.

38. Mr [A] submitted photographs of himself which he had evidently posted previously to Mr [F], who had then published them on his own [social media] page [in] November 2018 along with information provided by Mr [A] including mention of his being an atheist, having married a Hindu woman in Australia, having been denounced and placed under a fatwa by his family. The photographs depict Mr [A] with injuries to his [body part] apparently consistent with assault, amongst other possibilities. Mr [F]’s [social media] feed says that Mr [A] claimed to have been assaulted “at his workplace” by [certain] Muslims who accused him of being an apostate. Mr [A] claims in various places that he was assaulted at a [specific workplace]. He claimed in his 27 March 2019 statutory declaration that the assailants were [customers]. He said he was chatting with them and decided, for reasons he did not explain, to tell them he was an atheist who had abandoned Islam, whereupon they hit him. There are apparently no witnesses to his having been discussing atheism with the [customers] when they assaulted him at [his workplace]. His 288-page submission includes medical reports indicating that he sustained the injuries to his [body part] in September 2016.

39. Meanwhile, I noted that Mr [A]’s name on [social media] is different from the name in his passport, protection visa application form and other identifying material: [Applicant Alias 1]. He later told me at the Tribunal hearing that he changed his name for Facebook but used a genuine portrait for his profile image. He submitted a printout of his Facebook profile image, updated in July 2017, and I note that the image is a portrait of him.

40. The 288-page submission includes photographs of Mr [A] sitting in a bar or club at a table reserved for [an atheist group, Organisation 1]. One of the people seen attending is his witness, Mr [Mr C].

1. The submission includes independent reporting about inter-religious violence and specific, individual attacks on individuals in Pakistan accused by their attackers of being blasphemers or apostates.   

2. The submission also includes printouts of two purportedly forwarded emails from one [Mr E] addressed to [Applicant Alias 1], the position being that [Applicant Alias 1] is the same person as the applicant Mr [A], described by his advisor as [a variation of Applicant Alias 1] but named in his passport and in his protection visa application form, without aliases, as [Mr A]. The versions on file appear to be what [Mr A] forwarded to his adviser.

3. The first forwarded email, dated 9 July 2018 (and forwarded to Mr [A]’s adviser on 13 March 2019), expresses frustration at the fact of there having been no response from “[Applicant Alias 1]” to previous messages, and says that the author and the father of the author and recipient feel like killing him.

4. The second forwarded email, dated 30 August 2018 (as forwarded to Mr [A]’s advisor on 11 November 2018), greets Mr [A] warmly and then, seemingly paradoxically, proceeds to tell him that all of his family would welcome credit for killing him due to his having married a Hindu and his having abandoned Islam. The email specifically asks Mr [A] to end the relationship with his Hindu wife, return to Islam and accept a small punishment in Pakistan, or else face death on return there.

5. Mr [A]’s submission also includes a personal notice in a [newspaper] called [Newspaper 1]. The issue is dated [date] September 2018, meaning that the notice was published two months before the person claiming to be Mr [A]’s brother wrote to him by email on 11 November 2018 and offered him a chance to repent and repudiate his offences to the family and Islam, whereupon he would only face mild punishment, or else a threat to kill him or let him be killed would proceed to be sanctioned by the author and Mr [A]’s wider family.

6. The notice, apparently published in English, reads:

   PERSONAL ANNOUNCEMENT

   ABBOTTABAD

   OUR son [Mr] [A] (ID [No].) s/o [named]has been disowned from the family ownership due to change of religion and marrying a Hindu lady. He disobeyed the teachings of Islam and disgraced the family reputation. He has lost all the rights to be a family [member].

   The Tribunal hearing

7. At the beginning of the hearing, Mr [A] indicated that his friend and fellow atheist Mr [F] would be available to give oral evidence by telephone. As Mr [A] noted in two post-hearing invitations from the Tribunal for comments, responses and further information, I did not call Mr [F]. I did not have any questions for him. I accept that he and Mr [A] became acquainted through the [Organisation 1] association and I do not require further information from Mr [F] regarding Mr [A]’s religious views. Mr [F] has always been free to submit  material in support of Mr [A]’s protection visa application. I do not consider Mr [A] disadvantaged by my decision not to call Mr [F]. I accept that he and Mr [A] are affiliated through their association with [Organisation 1] and the fact that he published the story about Mr [A]’s assault is adequately established. Mr [A] has claimed that Mr [F] would also be in a position to talk about the kind of dangers he had faced as an ex-Muslim. Relevant to this subject, I have assessed Mr [A]’s individual evidence about himself, his own family and his claimed fears, and I have had due regard to all of the independent country information he has provided about blasphemy, apostasy, intermarriage, “honour killings” and other relevant practices and phenomena in Pakistan.

8. Mr [A] told me at the Tribunal hearing that his own brother, “[Mr E]”, who sent him the two 2018 emails, published this notice in [Newspaper 1]. Explaining the word “son” being used by his brother, Mr [A] said that his brother was speaking as his “guardian”, even though both are [approximate age].

9. I asked Mr [A] about the notice having been published in a newspaper in Peshawar, which I took to be some distance away from Abbottabad. Mr [A] said the two cities are about [number] hours apart by road. He indicated that the newspaper is nevertheless circulated to Abbottabad. I asked him why the notice was in English in an English language newspaper, and Mr [A] said, correctly, that English is one of Pakistan’s national languages. I questioned whether it was a common language in Abbottabad, which is a smaller city in KPK province and somewhat out of the way, and Mr [A] said that maybe his brother just wanted to publish the notice in one of Pakistan’s more broadly-circulated newspapers.

10. Mr [A] acknowledged that the newspaper item was a paid personal notice in the advertising section of a regional newspaper. It thus appeared that all one had to do was to draft a notice and, say, pay per word for its publication. In reply, Mr [A] said that he had told his, “I’m not following [Islam]. [I] prefer not to be called Muslim any more.” He said this made his brother angry. He said that this precipitated his brother placing the newspaper notice.

11. Mr [A] told me that the two emails he submitted were sent to him after he stopped taking calls from members of his family in mid-2018. However, he also said to me that he took a telephone call from his brother in October 2018, during which he learned about the [Newspaper 1] article.

12. The 30 August 2018 email evidently notifies Mr [A] that his family has disowned him and is willing to kill him having heard from their Imam that to do so would be a good deed:

    I hope you are fine and [having] a good time in Australia ... Dad has already announced in [the] family that you are not part of our family anymore … Even the [Imam] of our Mosque has announced in [the] Mosque that it is a good deed to kill a person who has left … Islam … please come back to Islam … OR get ready to get kill[ed] any time you [are] back [in Pakistan].

13. However, Mr [A] said in his 27 March 2019 statutory declaration that it was in October 2018, when his brother telephoned him, that he was notified that his family had disowned him and that his punishment was to be death. In that statutory declaration, he described his brother as having gone back home to Pakistan after living in [Country 2] because “the life in [City 1, Country 2] was [too] unislamic for his liking. He would often talk about the [Pakistanis] in [City 1] and how they were so far from the teachings of the prophet and islam.”

14. Mr [A] told me his family found out about his relationship with Ms [B] in 2014; this would have been before they married in 2015 and, apparently, before they lodged their partner visa application on 12 December 2014. Consistent with this, he said in his 27 March 2019 statutory declaration that his family knew about the relationship from “day one”.

15. I put to Mr [A] that it evidently took a long time (four years) before he started receiving threatening emails from his brother regarding the relationship with Ms [B]. I asked him how his family found out and he said they probably saw posts of his on [various social media]. He said they had already been threatening him over his un-Islamic behaviour and that he then decided to tell them he no longer followed Islam. He said that the family continued to threaten him over the four years every time they spoke by telephone and that the emails started to arrive after he stopped calling them and taking their calls.

16. I asked Mr [A] who published the article in [September] 2018 issue of [Newspaper 1], and he said his brother had done so. I put to him that it seemed odd, then, that his brother had referred to him as “our son”. In reply, Mr [A] said, “He’s acting as a guardian.” He told me he and his brother are both [approximate age]. I asked Mr [A] how far Abbottabad is from Peshawar and he said they are about [number] km apart. The adviser then said that they are [number] hours apart at around 100km per hour. I asked Mr [A] if the notice was a paid personal advertisement, and he said it was. I put to him that, according to DFAT[1],

    5.74  Fraudulently altered or counterfeit school records, birth certificates, death certificates, medical records, bank records and other documents are common. Local sources report instances where influential people have paid news organisations to publish false stories.

    [1] DFAT Country Information Report: Pakistan, 20 February 2019: this same text appears in paragraph 5.44 in the 1 September 2017 DFAT report submitted by Mr [A].

17. In response, Mr [A] said when he told his brother on the telephone that he was no longer following Islam, it made his brother angry. He indicated that this was the turning point after which objections led to death threats. I asked him if he had not expected to anger his brother and escalate hostilities in mid-2018 by saying he had abandoned Islam and he told me that he had said what he said to his brother because he had had to put up with threats from him for the preceding four years. I asked why he retained a telephone number over those four years on which his brother could contact him and he said he did change his number once only to find that his brother started receiving threats from his brother on Facebook. I asked him if he could provide me with evidence of the threats he had received from family members on Facebook and he said he had already closed that Facebook account and started a new one with a changed name.

18. Here, Mr [A]’s evidence struck me as being confused. He was saying that he had created a new Facebook account with an altered profile name to avoid receiving threats from his family and others. On the other hand he was saying that his current Facebook account, with its pro-atheist postings, can easily be identified by his family and others in Pakistan because it bears his own portrait or “face pic” as his profile photograph. He showed me his “new” Facebook account on his mobile telephone at the hearing and it clearly shows his face; it also features his own given name [specified] and adds the [given] names of his and his brother’s father. This new profile name, [Applicant Alias 1], contains three elements his family might easily have used to try and find him on Facebook. It also contains the two names by which his brother “[Mr E]” addressed him in the two forwarded emails. It was hard to see how this “new” Facebook account had been created with the intention of concealing it, and its owner, from people such as close family who might search for him after finding his old account missing. As discussed below, I further took up this matter with Mr [A] in post-hearing correspondence.

19. In addition, I noticed when Mr [A] showed me his “[Applicant Alias 1]” Facebook account that, in addition to showing clearly his face in the “profile picture”, it had also been operating since at least 2014. On this evidence it could not possibly be the account that Mr [A] newly created, in “disguise”, as it were, after receiving threats from his brother on an earlier account that he closed in 2018. At best, it might have been the same account with a new “profile name” but it was evidently not a new 2018 account, as claimed. Without closing the account, the best way to keep his family and friends in Pakistan from seeing it would be to edit his “Friends” list down to contacts he considered more reliable and less harmful, but this is not what he claimed to have done; rather, he claimed he closed the account, whereas the evidence before me indicated that he never did.  

20. Mr [A] said that up until the time he told his brother that he had abandoned Islam, his family had told him that he could avoid threatened serious harm on return to Pakistan as long as he broke up with his Hindu wife. I note that for much of the time he received these threats, and the condition attached, he was already separated from Ms [B].  I asked him, in the circumstances of the ongoing separation, if it might therefore be safe for him to return to Pakistan, and he said that his family had promised that if he broke up with Ms [B] and came back to Pakistan, all he would face was “a little punishment”. I asked him what “a little punishment” might entail and he said it might be about to lashes. I asked him who would administer such lashes and he said, “It can be from the mosque.” I put to him that this evidence seemed vague and speculative, and he said his brother never clarified who would administer punishment in his case.

21. I considered this evidence about Mr [A]’s family wanting him to return to Pakistan to face punishment. However, his evidence, generally, did not suggest that his family had much interest in his, or their, returning to reside in Pakistan at all: he had been supported to come to Australia for [studies] [by parents] who had migrated to join their daughter – his sister – in [Country 1]. It struck me as odd that such a reaction to his behaviour in Australia would come from parents who had relocated to [Country 1]: he had not provided any evidence in support of his claims about his parents or sister directly threatening or disowning him; and the evidence of his having a brother still living in Pakistan appeared to be inconsistent.

22. I asked Mr [A] to provide more detail about the occasion on which he was purportedly beaten up at his [workplace]. I asked him if he reported the assault and its context to the police and he said he did not. I asked him if there was any CCTV footage of the assault, and he said there was “No CCTV.” This seemed odd given that he was working at a [workplace] where, as a matter of course, businesses usually have CCTV cameras trained on all [locations]. Mr [A] said the only evidence of the episode was the medical report he had submitted in evidence. The report cites symptoms of injury and, being what it is, does not venture to discuss how, or where, or in what context the injuries were sustained. Since the report does not give any context for the injuries sustained, I give it no weight.

23. I asked Mr [A] why he published, or allowed to be published, the account of the alleged assault that appeared [in] November 2018 in Mr [F]’s [social media] page. In reply, he said he had never wanted to publish anything about the incident but did so after his brother published the notice in the [Newspaper 1] newspaper in September 2018. I expressed concern that he had allowed his name, history (including a reference to the [Newspaper 1] article) and several close-up images of his face to be published whilst, at the same time, purportedly doing all he could to hide from his family after the alleged threats received from his brother in their last telephone call in mid-2018. I asked him if he could give me a rationale for doing this and he said that Mr [F] persuaded him on grounds that he would receive more sympathy; he did not say whose sympathy he required.

24. I asked Mr [A] for more detail about his relationship with Ms [B] as it appeared, at best, to have ended back in 2014 or 2015. In response, he said he and Ms [B] were presently “working out” their problems. He said he has a job and that she now has a job too. He said Ms [B]’s health was better now. However, notwithstanding what was being described here as a significant change in their circumstances, Mr [A] and Ms [B] were not back together. Addressing this concern, Mr [A] said that Ms [B]’s sister was not happy about them living together again until after his he had sorted out his visa status, presumably on his own. He also told me at the hearing that his wife wanted the same. It struck me as odd that whilst Mr [A] claimed still to be in a relationship with Ms [B] to the exclusion of all others, he and Ms [B] had been living apart for what was now around half a decade, or more, apparently on the advice of her sister.

25. I asked Mr [A] to tell me what he wanted his witnesses to discuss. In reply, he said they would discuss having seen him when he was being threatened by his family.

26. Mr [A] said that he and his first witness Mr [C] had been acquainted just over six years. Mr [C] confirmed this. I asked Mr [C] to tell me what he wanted to talk about and he referred to the threats Mr [A] had received. He said he had heard Mr [A]’s brother threatening him on the telephone, saying, “You’re a shame to the family.” I asked for more detail and he said that Mr [A]’s brother had said, “You need to be punished.” I asked if he had heard anything else and he said that the telephone calls were mostly with Mr [A]’s brother. I asked him if he had not heard Mr [A] also speaking during these conversations, and he said that Mr [A] was just trying to explain. He said that the last telephone call had been “five months ago”. That would have been in October-November 2018. This evidence appeared not to sit with some of Mr [A]’s own claims about the last telephone call with his brother having been in mid-2018, some time before the September 2018 [Newspaper 1] notice. I raised this with Mr [A] who confirmed that his brother had stopped telephoning him in July or August of 2018, after which his brother published the [Newspaper 1] notice. Then, as noted, Mr [A] told me that he answered a call from his brother one more time after the date of the [Newspaper 1] notice. On the one hand, this evidence was consistent with Mr [C]’s claim about having heard a telephone conversation conducted over “speaker ’phone”, as Mr [A] also told me, around October or November 2018; it was also consistent with Mr [A]’s claim in his 27 March 2019 statutory declaration about his last verbal conversation with his brother having been in October 2018: “His calls continued for years and most recently till October last year when he called to notify me that I have been disowned and my punishment is death.” On the other hand, what Mr [A] was now saying appeared inconsistent with his evidence as to when he had his last telephone conversations with his brother had stopped: back when he disclosed to his brother that he had abandoned Islam, after which disclosure his brother had published [in] September 2018 [Newspaper 1] notice.  

27. During the hearing, I expressed some concerns about whether Mr [C]’s evidence was inconsistent with Mr [A]’s. In a post-hearing submission, Mr [A]’s adviser argued that it was not inconsistent, drawing attention to Mr [A]’s own evidence about there having been an October 2018 telephone call from Mr [A]’s brother. On closer examination of the evidence and arguments, I accept that Mr [C]’s  evidence is consistent with, and thus corroborates, one version of Mr [A]’s evidence: the one that suggests that he last heard verbally from his brother in October 2018. Whereas Mr [A] had himself claimed that the last time he and his brother had spoken was in in July or August 2018 and suggested that this led to the publication of the September 2018 notice in [Newspaper 1], it was argued that it was open to me to accept the corroborated version of events as the more accurate: that the last conversation was in or around October 2018, as witnessed by Mr [C].

28. I asked Mr [A] why he had conducted his conversation with [Mr E] with the “speaker” function operating. In response, he did not suggest that he had felt a need to have a witness to his brother’s behaviour; rather, he just said that Mr [C] had been going through the same kind of issue and would be understanding. Essentially he said he did so for the purpose of arousing empathy or sympathy.

29. When I put to Mr [A] that his and Mr [C]’s evidence about the “speaker” telephone call in October 2018 was not consistent with his sometime claim to the effect that the last calls preceded the July and August 2018 emails and the September 2018 [Newspaper 1] notice, he said, “Yes, but I tried to find out what he had done.” Then he said he found out about the [Newspaper 1] notice in an SMS text from his brother.

30. Mr [A]’s other witness, Ms [D], said she was also present when Mr [A] received the October 2018 telephone call from his brother. She said she could not understand the language spoken but could see that Mr [A] was very upset. She said that Mr [A] had told her about his family and about the consequences they had threatened.

1. Mr [A] and Mr [C] both told me that Mr [C] was witness to more than one telephone call from Mr [A]’s brother [Mr E], and that Ms [D] was also present sometimes. Mr [C] said he could not recall accurately when he witnessed the call of calls Mr [A] took from his brother because he was not very good with dates or months. He said in a later statutory declaration that he was nervous during the hearing. Also in that statutory declaration, albeit in somewhat of a confused fashion, he appeared to adhere to having been witness to “another call” that Mr [A] received from his brother after receiving the July and August 2018 emails. According to Mr [A]’s evidence about having taken only one call from his brother after receiving those emails, that would have been the October 2018 telephone call. Mr [A] and Mr [C] clarified that any inference about there having been more than one call after the emails were received, let alone a call in November 2018, would be a mistaken one.

2. Mr [A]’s adviser, referring me to submissions about non-state agents persecuting Pakistani nationals for perceived acts of blasphemy, argued that Mr [A]’s inter-religious marriage could be treated as such an act. He drew my attention to evidence of a professor in Pakistan having been killed merely for proposing a “mixed student” welcome.

3. I note that Ms [B] has claimed in a 25 March statement to the Tribunal that the present state of separation between her and Mr [A] began after she lost her baby, the miscarriage evidently having happened in 2015.

   Post hearing correspondence

4. Under the protocols of s.424A of the Act, I sent Mr [A] a letter on 30 April 2019 drawing his attention to information that, subject to his comments or response, would be a reason or part of a reason for refusing his protection visa application. Due to an error on my part regarding a peripheral detail about whether Ms [B] had been pregnant twice, which was incorrect, or only once, which was correct, I sent a corrigendum on 14 May 2019 and extended the deadline for comments or response appropriately.

5. In the first instance, I put to Mr [A] that there was insufficient information before me to support his claim to decision makers about having a brother who resides in Pakistan.

6. In the second instance, I put to Mr [A] that there is information in his Department file (at f.60, and received by the Department in March 2017), perceived to have been provided in confidence, although not according to its author, to the effect that his marriage to Ms [B] had already ended, that they had been living apart and that none of his family knew anything about their relationship. I put to him that if I were to rely on this information, I might conclude that his marriage to Ms [B] had been fraudulent and opportunistic.

7. In the third instance, I put to Mr [A] that he may have called on an unreliable witness to attest to the genuineness of his marriage, [Relative 1]. (Interestingly, that [Relative 1] provided evidence in support of the relationship appears in contrast to Mr [A]’s claims about his extended family on the whole.)

8. In his 28 May 2019 comments and response, Mr [A] said through his adviser that there was evidence of his brother’s existence dating back before his original protection visa application and as far back as 2014 when he told the Immigration officer assessing his bridging visa application that he was waiting for his brother to send material and funds in support of his partner visa application with Ms [B]. He also presented evidence of having mentioned his brother in evidence to the MRT, when it was reviewing his bridging visa application where he said that he was waiting for his brother to send the money comprising the application fee for his partner visa application with Ms [B].

9. Mr [A] went on to provide photocopies of documents including [Mr E]’s personal national ID, issued [in] 2017, [Mr E]’s passport, the birth certificates of each of [Mr E]’s [children] and a photocopy of a 2012-dated NADRA[2] family registration certificate, “not valid in any court of Law, for inheritance/property issues,” that identifies Mr [A], his parents and one sister as the members of his family.

   [2] Government of Pakistan, National Database and Registration Authority, Ministry of Interior

10. In the 28 May 2019 statutory declaration, Mr [A] said that he had not mentioned the existence of his brother when he was detained or in his protection visa application form because he did not have evidence of his brother’s NADRA-issued ID card with him. He said his brother was living in [Country 2] at the time. He also declared in a later statement that his previous claim about having “no family in Pakistan” was more of a comment about family and relatives not supporting his relationship with Ms [B] in Australia. He said he would not be safe anywhere in Pakistan due to the size of the [his family's] clan.

11. Mr [A] said in his 28 May 2019 statutory declaration he had recently been able to obtain a photo-scan of his brother’s national ID card “by lying to him” about intending to transfer his share of family land to him. He referred me to documents comprising a message from him to his brother and his brother’s email reply, calling them “Attachment 68”, which was of no assistance since none of the documents accompanying his statutory declaration are thus marked or ordered. Mr [A]’s message, apparently dated 7 May 2019, reminds his brother of “all that you tried to scare me and tried to change my mind, unfortunately nothing worked.” It goes on to say “ [E]ven your hate and religious threats and putting me in [the] news[paper] can[‘]t change the fact that [I] am over all this ….” Further, it makes the following request: “well [I] will require some of your identity documents so [I]  can transfer my shares to you or your family.”

12. Mr [A] forwarded a copy of this material to his advisor on 10 May 2019 saying he was trying to obtain documents from his brother and did not know how long it would take for his brother to send them to him. He suggested his advisor ask the tribunal for an extension of the s.424A comments and response timeframe, which was sought and which I granted.

13. On 21 May 2019, Mr [A]’s brother [Mr E] sent him the scans of his passport, national ID card and his [children’s] own birth certificates. Mr [A] then highlighted the information in those documents that link [Mr E] and his children to his and [Mr E]’s father and these were submitted along with the 28 May 2019 statutory declaration.

14. The document scans accompanied an email from [Mr E] that Mr [A] forwarded to his adviser. Amongst other things, the email says:

    Well if you think by giving up your share like this can change our mind and forgive you or let it go, you can never be more wrong. Father is coming back in a few months and he is going to finalise taking you out of everything. I have talked to him about your email and he advised me to send you the documents so it can save our time going through legal procedure. See the attachment for the documents you’ll need power of attorney.

15. The documents [Mr E] sent to Mr [A], within a fortnight of being asked, more than adequately attest to his existence of his brother [Mr E] as well as to his having [children], all formally or nominally registered to the same Abbottabad address as the one in which Mr [A] resided before coming to Australia, and all linked to Mr [A] by reference in the certificate of a common father/grandfather “[named]”.

16. Mr [A] submitted some evidence of message traffic and failed calls on the Facebook Messenger application (or “Messenger App”) from [Mr E] [in] August 2019. There is also evidence of a number of missed calls from an unidentified caller in 2016 and 2018. Mr [A] has suggested that these were all calls he refused to take from brother [Mr E], but it is hard to accept that given that [Mr E]’s calls in August 2018 clearly identify “[Mr E]” as the caller At one point in the Messenger feed between August and December 2018, there is evidence in two consecutive message “windows” of [Mr E] having been blocked and immediately afterwards unblocked. There is also evidence of Mr [A] having missed calls from a host of other people, some of whom, [eventually] catch up with him and exchange small talk. Some of these people have profiles that say they live in Abbottabad. [Mr E]’s profile does not state where he lives, but his profile picture shows [details deleted].

17. [Mr E]’s [profile] image and the image in his ID card are consistent. Mr [A] claims he was able to obtain a copy of his brother’s ID card, front and back, along with other material from him, by asking for “some of [his] identity documents” in a [May] 2019 message “so I can transfer my shares to you or your family.” The same message tells [Mr E] that none of his past scare tactics have worked to stop him from abandoning Islam or from being “happily married and away from all religious boundaries”. Mr [A] submitted a copy of a further email to his adviser dated [date] May 2019 purporting to forward a message of the same date from his brother [Mr E] in which [Mr E] says that his and Mr [A]’s father is soon to return to Pakistan to revise his will to the exclusion of Mr [A] and that it is nevertheless still not too late for Mr [A] to ask for forgiveness and redeem himself, knowing his family’s position on the matter of his religious views should he fail to take up the offer. Attached to the forwarded email are all the ID materials pertaining to [Mr E], including a scan of both sides of his national ID card, that Mr [A] discussed in his 28 May 2019 submission.

18. Mr [A]’s submissions assert that the oral and written evidence of Mr [C] and Ms [D] attests to [Mr E] existing and being in Pakistan at the time of the calls they witnessed. Strictly speaking, their evidence as provided to the Tribunal does not necessarily corroborate precisely to whom Mr [A] was speaking and where that person was located at the time. Both witnesses say that Mr [A] told them he was speaking to his brother in Pakistan.

19. In any event, I accept on the evidence before me that Mr [A] has [a] brother called [Mr E].

20. Responding to the second point, Mr [A] said through his adviser that the primary decision record shows that he and Ms [B] were both present at his protection visa interview, which I find to be true. He said this was evidence that their relationship still existed at that time. Mr [A]’s submission also directed me to evidence of the Department having recorded Ms [B] as accompanying Mr [A] to the Department in January 2015; this too is true. Nevertheless, whether Ms [B] accompanied Mr [A] to interviews with the Department or not, she and Mr [A] provided critically inconsistent evidence as to what they did together the day before their MRT partner visa interview [in] August 2015. (A copy of the MRT’s decision was submitted by Mr [A] with the 28 May 2019 submissions.)

21. Mr [A] himself had told me at the Tribunal hearing that his wife moved in with her sister in 2016 and had not stopped residing with her since then. Ms [B] had said in her 25 March 2019 statement to the Tribunal (submitted through Mr [A] and his adviser) that after she lost her baby, which was in 2015, “[w]e then decided that the best for me at that stage was to move to my sister…” She also has said that she has been living apart from Mr [A] continuously until the present day, and that the question of their cohabitating in the future in conditional on resolving the present protection visa application in Mr [A]’s favour. In a 27 May 2019 statutory declaration, submitted along with the 21 May 2019 comments and response material, Ms [B] declared that she moved in with her sister after losing her baby, the miscarriage having occurred in 2015. She declared that before she separated from Mr [A] she witnessed him receiving threats from his family over the telephone.

22. In any event, none of Mr [A]’s comments or responses indicated that he and Ms [B] were residing together again, whether they last lived together in 2014, 2015 or 2016.

23. Mr [A] claimed in the 28 May 2019 submission that Ms [B]’s mental health issues and his inability to support her due to lack of work rights were the reasons for her move back to her sister’s house. He asserted that the relationship has nevertheless gone “from strength to strength”.  

24. Mr [A] submitted apparently recent photographs of himself socialising with Ms [B], along with printouts of small talk between them in various social media in 2016 and 2018, including material from [social media] in which Ms [B] is identified as “[Wife Alias]”.

25. The 28 May 2019 submission asserts that Mr [A]’s relationship with Ms [B] “has gone from strength to strength”, listing all of Ms [B]’s past appearances at interviews related to Mr [A]’s various visa applications. I have weighed this against the evidence to the effect that Mr [A] and Ms [B] have not resided together as a married couple since 2016.   

26. Mr [A] also submitted some short videos made on a mobile telephone in which Ms [B] addresses me and says she is still in a relationship with Mr [A], who is also present in the videos. In one of the videos, there is a short, friendly, ostensibly affectionate kiss; in the other, Ms [B] says that if I have any questions I can invite her to a hearing. That opportunity was already provided when Mr [A] was invited to present witnesses. He said he had decided that Ms [B] was too frail mentally and emotionally to answer questions at a hearing. With regard to the suggestion that I invite Ms [B] to give oral evidence, I have considered the proposition, but have decided not to exercise my discretion to obtain oral evidence from her because she and Mr [A] have already provided sufficient evidence of the fact that, though they remain friendly, they have not resided together for around three years. They have also given reasons for not living together, and the reasons each has provided are consistent with those of the other. I see no need to test the claimed reasons for potential discrepancy. It remains to consider what conclusions to draw from the fact that they have not resided together as a married couple since 2016.

27. I should point out here that the information in the Department’s file was the subject of a s.438 “non-disclosure” certificate, imposed on the understanding that the information was provided to the Department in confidence: essentially the information takes the form of a “dob-in letter” created in 2017. Not to raise this at all with Mr [A] could potentially cause the Tribunal to fall into error, so I indeed put the particulars of the information and their potential implications to Mr [A] and I have taken in his comments and responses. On reflection, I give no weight to the “dob-in letter” covered by the s.438 certificate in Mr [A]’s file: it is neither helpful nor unhelpful to this review.

28. One of the points made in the dob-in letter is easily debunked in any event: the suggestion that Mr [A]’s family does not know about his marriage to Ms [B]. As Mr [A] himself pointed out in his 28 May 2019 statutory declaration, his [Relative 1] presented as a witness to the relationship in support of the partner visa application, did not evidently do this in secrecy,  and evidently resided with Mr [A] and Ms [B] for a period in/around 2014. In addition, Mr [A] had evidently attested in his bridging visa interview to his brother [Mr E] knowing about the relationship. Mr [A] said in [May] 2019 that by the time his [Relative 1] went back to Pakistan to be married he had stopped associating with him out of fear that their family might become aware of his having supported his marriage to a Hindu. He said he suspected this [Relative 1] of having divulged his secret Facebook and social media details to his family, but this claim appeared to be based on bald speculation at best.

29. The evidence overall appears satisfactorily to indicate that Mr [A] and Ms [B] are friendly and that Ms [B] is amenable to helping Mr [A] with his various visa applications, but whether they have been in a genuine and exclusive relationship, let alone a genuine marital relationship, since 2016 or some time before then, remains a separate question. Speaking to this question, Mr [A]’s adviser argued that I should avoid the error of letting an assessment of the current circumstances of Mr [A]’s relationship with Ms [B] blur my assessment of the merits of the evidence to the effect that his family has disowned him over its perceptions about the relationship and in response to his having explicitly abandoned Islam in a conversation with his brother [Mr E]. This is generally a valid point and I have taken it into consideration.

30. Attached to the 28 May 2019 submission is a statutory declaration from Ms [B] saying that her family ostracised her when she married Mr [A]. She declared that her parents reported the marriage to the police as an abduction and that she and Mr [A] had to go to the police in 2014 to tell them the marriage was consensual. Again the [police] station reference number was presented in evidence. I have weighed Ms [B]’s claims about having lost her family alongside the evidence of her having resided for several years with her sister. I have also taken into account that Ms [B]’s issues with her own family here in Australia may not necessarily give rise to a real chance of Mr [A] being persecuted in Pakistan.

31. Mr [A] submitted evidence of his and Ms [B]’s use of a joint trust account in 2014.

32. Regarding the third issue, Mr [A] said he had no idea that the witness to his partner visa application had previously [been accused of being an unreliable witness]. He argued that this should not be held against [him]. In any event, on the evidence before me, I do not draw any negative inferences as to Mr [A]’s good faith in this matter either separately or cumulatively on the basis of any of this particular witness’s [history].

33. Whereas he claims he was only nominally Muslim from the time he arrived in Australia, Mr [A] submitted a “Detention Detainee Interview” document, dated [December] 2014, in which he is reported to have informed officials as follows: “Follows Islamic Faith [;] Halal – No Pork”. He is also reported to have said he had no family and only [extended family] residing in Pakistan at that time. Again, he only listed three immediate family members, all residing in [Country 1]; his father, mother and sister. He claims to have been a bit lax in mentioning all of his family because they were not applying for visas here, but the pattern has nevertheless been only to mention three family members and omit the brother “[Mr E]”.

34. I sent Mr [A] a further letter on 6 June 2019, again under the protocols of s.424A of the Act. In that letter I put a number of additional concerns to Mr [A]:

    In conducting the review, I am required by the Migration Act 1958 to invite you to comment on or respond to certain information which I consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

    Please note, however, that I have not made up my mind about the information.

    The particulars of the information are:

    ·At the Tribunal hearing on 29 March 2019, I asked you why you retained a telephone number over the four years, thereby having to put up with your brother’s objections to your relationship with Ms [B].

    ·In reply, you said you did change your telephone number once, only to find that you started to receive threats of serious harm from your brother on Facebook.

    ·I asked if you could present evidence of these threats in your Facebook account.

    ·You said to me that you closed that account (the one with the threats from your brother) and opened a new account with a changed name so that you would stop receiving threats from your brother on Facebook.

    ·You showed me that account, in the name of “[Applicant Alias 1]”, and it features your portrait or “face pic” as your profile photo.

    ·You claim the threats from your brother began in mid-2018 when, during your last telephone call together, you told him you had abandoned Islam and he became angry and threatening.

    ·This would suggest that you created the new Facebook account some time after these threats began.

    ·However, a short viewing of your Facebook account “[Applicant Alias 1]” showed that the account had been operating at least since 2014.

    ·If the death threats began in mid-2018, as claimed, the [Applicant Alias 1]” account that you showed me, which you have operate at least since 2014, cannot possibly be the new account you created to avoid being contacted by your brother after he started threatening you.

    ·In addition, you have claimed that your “[Applicant Alias 1]” account would be easy for people to identify because it features your “face pic” as your profile photo.

    ·It seems odd that you claim to have created a new Facebook account with an altered name to avoid being threatened and yet, at the same time, claim you are in danger because people in Pakistan can recognise your account by the profile photograph you have uploaded into it.

    ·Your supposedly “new” Facebook account with the changed name retains your given name [and] your face making your profile locatable on Facebook.

    ·Meanwhile, although your Facebook account goes back four years, which is at least as far as your claimed relationship with Ms [B], you claim you are unable to provide evidence of claimed threats from your brother on your Facebook account.

    This information is relevant to the review because it appears inconsistent and confused. 

    If, in making my decision, I rely on the information about the “[Applicant Alias 1]” account being more than four years old, I may find that I do not accept that you created that account more recently to prevent being contacted by your brother who had been threatening you via another Facebook account that you previously held, until closing it and then creating this one.

    If, in making my decision, I put weight on your use of your own photograph in the “[Applicant Alias 1]” account, I may not be satisfied that you created that account in some state of “disguise” to avoid being located on Facebook by your family and other people who might harm you.

    On all this information, I may find that your claim about having received threats over time from your brother via Facebook was improvised at hearing and undone by the other evidence discussed here. I may also find that I am not satisfied as to the authenticity of sentiments in the emails from your brother or the personal notice placed in the Peshawar newspaper.

    In short, I may find that a significant aspect of your case is fabricated.

    You are invited to give comments on or respond to the above information in writing.

1. I also made the following invitation to Mr [A]:

   You are also invited to provide the following information in writing and/or documents:

   ·As I note that your “[Applicant Alias 1]” Facebook account dates back at least to 2014, and that it supposedly contains personal and intimate information about you, I invite you to submit any dated evidence you have posted over the last five years relating to your relationship and marriage to Ms [B].

   ·I invite you again to submit to me any evidence in your “[Applicant Alias 1]” Facebook account, which evidently dates back at least to 2014, of negative comments about your relationship with Ms [B] or your claimed stance in relation to Islam.

   ·I invite you to submit any evidence of direct contact with you at your “[Applicant Alias 1]” Facebook account regarding your involvement with [Mr F].

2. Mr [A] responded on 21 June 2019, missing the statutory deadline by a day but asking for an extension of time which I granted by allowing submission of comments/responses by 26 June 2019.

3. Mr [A] provided a statutory declaration containing references to purportedly numbered attachments that are not themselves enumerated. The business of matching comments and responses in the statutory declaration to the many attached documents, including decisions by other decision makers in Mr [A]’s various visa applications, has not been easy.

4. In his statutory declaration, Mr [A] provided detail about having changed his telephone number. He also provided information about his previous mobile telephone having been irreparably damaged in 2017 causing him to lose access to harassing messages he had received up till then. He said that he used to take his brother’s calls because his telephone only ever told him they were from a “private number”, which means, he said, they could even have been calls from the Department.   

5. Mr [A] claimed in his statutory declaration that when he said his brother continued to harass him on Facebook, he had really meant to say that his brother continued to harass him on social media generally, meaning Facebook and other platforms as well. I have reviewed the evidence received at the Tribunal hearing and it is clear that Mr [A] said his brother continued to harass him on Facebook until he closed that Facebook account and started a new account under another name, the latter being “[Applicant Alias 1]” as shown to me at the Tribunal hearing. He was now making a different claim, to the effect that he stopped receiving threats from his brother on Facebook after he blocked his brother from contacting him on that Facebook account. This is simply inconsistent with what he told me at the Tribunal hearing. Blocking an abusive Facebook “Friend” would result in his or her past messages, whether friendly or unfriendly, to disappear from one’s Facebook feed, making it no longer possible to copy and submit them in evidence, but this was not the situation described by Mr [A] at the Tribunal hearing: on that occasion, he plainly said that he closed his Facebook account and replaced it with the “[Applicant Alias 1]” account which he showed me at the hearing, arguing that “[Applicant Alias 1] was not his real name and suggesting that this would make it hard for his family to locate him on Facebook, notwithstanding that he and his brother communicate with each other under similarly-named email addresses [as specified].

6. Mr [A] said that he is unable to provide evidence of threats made to him on his social media Apps because the damaging of the screen on his former mobile telephone in 2017 caused him to lose all the old messages, friendly and unfriendly, in those various social media accounts. He said this led him to purchase a new unit [in] November 2017. He provided evidence of the purchase. I have considered Mr [A]’s claim about damage to his mobile telephone causing him to lose message threads from his social media platforms, but I am not satisfied on the evidence before that damage merely to the hardware in Mr [A]’s telephone unit would or could have erased accumulated data in all of his social media platforms. It is general knowledge that he would also be able to access them via laptop and desktop computers as well as on other telephone units as long as he used his own user name and password. Damage to the unit could plausibly have caused loss of photographs stored in the unit, which Mr [A] claims he did lose, and these would not be reclaimable if not additionally stored, say, in the iCloud or something similar. In any event, Mr [A] has not satisfactorily explained why he has not been able to produce evidence of hostile messages that his family sent him prior to [July] 2018 email. 

7. Regarding my concerns about the “[Applicant Alias 1]” Facebook account being neither new nor pseudonymous, Mr [A] said that the Facebook account he closed due to his brother using to send hostile posts and messages was an account in his full (passport and protection visa application) name “[Mr A]” which he started around 2009. He claimed that whereas the “[Applicant Alias 1]” account was one that his family should not have been able to find, because “[Applicant Alias 1]” is not his real name, they had indeed located him at that account. He suggested that [Relative 1], the same who previously supported his partner visa application, and/or others might have done this to spite him.

8. Mr [A] claimed that he used the “[Applicant Alias 1]” account up to 2014 and de-activated or closed  it in mid-2015. He said he re-opened that account, however, in mid-2017 because he needed to use it to contact some old friends to ask for financial assistance. He said that the pseudonymous account that he later opened was one called “[Applicant Alias 2]”. However, the “[Applicant Alias 1]” account was neither closed nor suspended nor de-activated when Mr [A] showed it to me [in] March 2019 and told me that this was the account he had recently created to avoid being traced and harassed by his family, including his brother “[Mr E]”. Whereas that account remains open, he has not been able to produce evidence of any unwelcome posts from any time in the past,  Mr [A] has provided a convoluted and inconsistent evidence as to why the “[Applicant Alias 1]” account is not the new account he claimed at the Tribunal hearing to have opened to avoid hearing from his brother, whereas he did clearly say at the Tribunal hearing that this was the account he had recently created for that purpose.  

9. Mr [A] provided samples of posts that appear in his “[Applicant Alias 2]” account. They are mostly about food, although there are  [photographs] of him and Ms [B]. The “[Applicant Alias 2]” account features Mr [A]’s face in close-up in the “profile pic” and also features a close-up of [an object labelled] with [part of Applicant Alias 1]. On the evidence before me, the “[Applicant Alias 2]” account has mainly been used as a platform of communication between Mr [A] and some [friends], providing evidence of a relationship with Ms [B] only up to 2016. Another purpose for the account appears to be its adjunct “Messenger” function: Mr [A] has continued to use it with Ms [B] to stay in touch with her right up to the present; he provided evidence of their chat over the years up to recent weeks and months and, as acknowledged above, the communications are, on the face of it, friendly and flirtatious. Mr [A] said that there is more intimate information that he preferred not to share because he wished to protect Ms [B] from harm.

10. Mr [A] addressed a concern I raised about the evidence of his family being a source of threats appearing to date back no earlier than mid-2018. He suggested that I have apprehended in confusion that the threats from his family did not begin until mid-2018. That is not what I apprehend and, in saying this, Mr [A] and his advisor appear to misunderstand me.

11. Mr [A] went on to say that “for the last four years” he had to listen to his brother abusing him about his marriage. I note that the last direct telephone call from his brother was in November 2018. This claim about four years of harassment until recent months does not sit with the claim about Mr [A] having changed his telephone number so that his brother could no longer call him, forcing his brother as a result to migrate to social media to continue harassing him.

12. Mr [A] repeated, in his statutory declaration, that the “[Applicant Alias 1]” was an old account to which his brother previously had access until he, Mr [A], blocked him. Again this is inconsistent with what he said at the hearing about his having closed the account that his brother accessed to abuse him and about having opened the “[Applicant Alias 1]” account to replace it.

13. Mr [A] went on to say that his father and uncles all have “prayer bumps” on their foreheads, which shows that they are deeply religious. He attached an independent article discussing how the callouses, or hyperpigmentation, or skin lichenification called “prayer bumps” are made over time in the course of touching the floor or a rock on the floor during Muslim prayer. Mr [A] said that only people who pray five times a day for decades can develop these and that because his father has one he fits the profile of a conservative Muslim who would not tolerate his having married a Hindu and abandonment of Islam. I have considered this claim, noting that images of Mr [A]’s father accompanying the 21 June 2019 submission and also in the Department’s file show “prayer bumps”.

14. Providing images of his workplace, Mr [A] drew my attention to the fact that he is employed in a venue that provides for [certain products and services]: things that he claims his family would not tolerate. As presented, these are private photos that bear no appearance of having been uploaded onto platforms available to anyone, and therefore I do not give them any weight. Meanwhile, having said that his previous lack of access to work rights was one of the reasons he and Ms [B], who now also works, could not reside together, he now said that it was his decision to “go it alone” until his immigration status was resolved before letting Ms [B] move in with him. He went on to say that their relationship was genuine and that only death could sunder them. I weighed this particular attestation alongside the evidence of Mr [A] and Ms [B] not residing together by mutual choice.

15. Mr [A] said that because his national ID number is included in the [Newspaper 1] article, he will be jailed immediately on return to Pakistan. He appeared to suggest that I regarded the artefact of newspaper to be false, which is not what I think and not what I put to him. Rather, I disclosed to him that given that one evidently pays to place personal notices in that part of the newspaper, such notices might not necessarily have any genuine relationship to a factual situation, and that this was an issue in Pakistan that DFAT views generally as being within the realm of possibility.

16. Mr [A] clarified that the “[Applicant Alias 1]” account, which he ash operated since 2009 is the same account that used to be named “ [Mr A]”.  It is general knowledge that a person can change the name of his or her Facebook account and keep all his or her other settings including existing “Friends”. Mr [A], however, claimed that after he changed the account name, he expected his family would not be able to locate him on Facebook and again suggested his [Relative 1]/witness might have betrayed him. He said that the fact that his face appears in the “[Applicant Alias 1]” account is insignificant because he is bearded.

17. I received further comments and responses from Mr [A] in a submission on 26 June 2019. Through his advisor, Mr [A] claimed that his witness Mr [C] had confirmed having heard him receiving threatening telephone calls from his family over a period of “six and a half years”, i.e., since some time in 2013. He asserted that Mr [C] had never said to me that he had heard the last telephone call from his brother [Mr E], which was purportedly in October 2018. I accept that Mr [C] did not refer specifically to having heard Mr [A] taking that call, and that Mr [C]’s evidence was more generally, but also more vaguely, about having heard Mr [A] having telephone conversations with his brother over a period of years. Mr [A] also emphasised that only Ms [D] was present when he took the call from his brother in October 2018. I accept that this is the position of both Mr [A] and Ms [D]. I also recall that Ms [D] was unable to understand what was being said during that call and relied on Mr [A]’s subsequent explanation of its content.

18. For the most part, the 26 June 2019 submission is a summary of correspondence between the tribunal and Mr [A] since the 29 March 2019 hearing. The submission adds to the impression that Mr [A]’s brother [Mr E] was able to telephone him continuously from 2013 at least until late 2018, which makes it hard for me to give weight to Mr [A]’s claims about having changed his telephone number at some stage to stop [Mr E] calling him, only to find that [Mr E] kept harassing him via Facebook (and other social media) until he closed his Facebook account and replaced it with another.

19. The 26 June 2019 submission revisits Mr [A]’s claims about having closed his previous Facebook account and replacing it with the currently-active “[Applicant Alias 1]” account which he showed me at the Tribunal hearing. The submission assert that the new, pseudonymous account to which Mr [A] was referring, or intended to refer to, was the “[Applicant Alias 2]” account purportedly opened in April 2016 “after he de-activated the [Applicant Alias 1] account”, the “[Applicant Alias 2]” account mainly being used for the purposes of communicating with fellow [Hobby 1 friends] due to [Hobby 1] being the only thing Mr [A] was interested in after Ms [B] had moved back to her sister’s house to live. If all this is true, then it happened after Mr [A] changed his telephone number, because he told me at the hearing that he closed his Facebook account and opened another after the changing of his telephone number failed to prevent [Mr E] from harassing him. However, Mr [A] claims to have continued well into 2018 to receive calls from his brother, some of which he refused to answer, right up to July and August of that year.

20. The 26 June 2019 submission asserts that I have been confused about which Facebook accounts were closed and opened, but I am very confident that when Mr [A] showed me the currently-active “[Applicant Alias 1]” account he did so in response to my request for him to show me the new account he had opened after closing the one to which his family had been posting hostile messages. There was no mention of the “[Applicant Alias 2]” account at the hearing. Mr [A]’s claim and actions at the hearing argued that he had relatively recently created the “[Applicant Alias 1]” account in order replace a previous account that he had closed, so that he would still be able to operate a Facebook account that his family would never find. His evidence, about evading contact from his brother by closing a previous Facebook account and then creating a new account under the name “[Applicant Alias 1]”, is inconsistent and confused. This is relevant to what weight I give to the positions that Mr [A]’s brother [Mr E] is hostile towards him and that he changed telephone and social media accounts to prevent [Mr E] from contacting him.

    Independent country information

21. DFAT[3] provides the following information about offences relating to blasphemy in Pakistan:

    [3] DFAT Country Information Report: Pakistan, 20 February 2019

    Blasphemy

    3.81  Blasphemy and other offences relating to religion are criminalised in Pakistan under Articles 295 and 298 of the Pakistan Penal Code (Act XLV of 1860). Article 295C outlaws the use of ‘derogatory remarks’ against the Holy Prophet. Punishment for blasphemy is death. Under Article 295B, ‘defiling’ a copy of the Quran is punishable by life imprisonment, and under Article 298A, defiling ‘the sacred name of any wife, or members of the family, of the Holy Prophet, or any of the righteous Caliphs’ carries a maximum punishment of three years in prison, which may also be accompanied by a fine. Religious conversion from Islam (apostasy), while not illegal, is often seen as blasphemous and can result in prosecution under blasphemy laws, or familial or communal violence. Article 295A prohibits insulting any religion, not just Islam, and carries a sentence of up to ten years’ imprisonment, which may also be accompanied by a fine.

    3.82  In 2017, the independent Human Rights Commission of Pakistan (HRCP) reported an increase in blasphemy-related violence, use of religious rhetoric, incitement of hatred, and discrimination against minority groups. The HRCP noted the government failed to repeal discriminatory laws. Local and international observers report increasing misuse of blasphemy laws, and a widening of actions considered chargeable blasphemy offences.

    3.83  Although under the law, courts cannot impose a death sentence based on a police First Information Report (FIR, an initial written record of a complaint or reported crime), this occurs and judges often accept reports of blasphemy at face value. Extremist groups and individuals have targeted politicians and judges who advocate on behalf of minorities or seek to change the blasphemy laws. Former governor of Punjab, Salman Taseer, was assassinated by Mumtaz Qadri, a member of his security detail, for calling for reform of blasphemy laws. Large numbers of people protested when Qadri was executed in February 2016. The media also fears reporting on blasphemy due to the significant personal risk involved.

    3.84  Individuals have used blasphemy laws to settle personal or property disputes. Following an accusation, police automatically detain the alleged blasphemer—usually in solitary confinement—ostensibly for their own safety. In 2010, a Christian woman, Ms Asia Bibi, was convicted of blasphemy and sentenced to death following a dispute with her Muslim neighbours. In October 2014, the Lahore High Court upheld Ms Bibi’s death sentence, however in October 2018, the Supreme Court of Pakistan acquitted Ms Bibi.

    3.85  Communal violence also often targets those accused of blasphemy. In November 2014, a mob burned a Christian couple to death in the brick kiln where they worked as bonded labourers after they were falsely accused of throwing out pages of the Quran with their household rubbish. In November 2016, a military anti-terror court sentenced five people to death for their murder. In July 2014, an angry mob burnt several houses and vehicles in Gujranwala, eastern Punjab, killing an Ahmadi woman and two young girls, and injuring eight others. An allegedly blasphemous social media post by an Ahmadi reportedly triggered the incident. In April 2017, hundreds of university students beat and fatally shot a journalism student at a university campus in Mardan, allegedly for blasphemous social media posts. Observers note the student had criticised the university administration and actively participated in open debates. A judicial inquiry found no evidence of blasphemy.

    3.86  The government has applied the blasphemy law to digital content, with at least one person in 2017 receiving a death sentence for alleged blasphemy on Facebook. Internet bloggers who criticised the military, disappeared and later emerged in police custody facing blasphemy charges. While the Islamabad High Court acquitted the bloggers, they left Pakistan fearing for their safety.

    3.87  According to the USCIRF 2018 annual report, approximately 100 blasphemy cases were registered between 2011 and early 2018, and an estimated 100 people are currently serving prison sentences for blasphemy. Of the 100 people in prison, 40 face the death penalty or a life sentence. Pakistani courts have dismissed several blasphemy cases for lack of evidence. Around 95 per cent of blasphemy cases end in acquittal, although often only after extended periods of detention. DFAT is not aware of any executions of people convicted of blasphemy.

    3.88  While blasphemy laws apply to both Muslims and non-Muslims, it is not culturally acceptable for religious minorities to make accusations of blasphemy in Pakistan.

    3.89  While the majority of cases are brought by Muslims against Muslims, DFAT assesses implementation of laws against blasphemy, and the potential for communal violence following an accusation of blasphemy, disproportionately affect religious minorities in Pakistan.  

    Findings in relation to s.36(2)(a)

1. In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[4] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[5]

   [4] MIMA v Rajalingam (1999) 93 FCR 220.

   [5] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.

2. The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[6] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[7]

   [6] 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

   [7] Sun v MIBP [2016] FCAFC 52 at [69].

3. All the claims in this case flow from Mr [A] having married Ms [B] [in] June 2015 and from his having become “interested in atheism” when Ms [B] moved out to live with her sister.

4. I accept that Mr [A] and Ms [B] were married in NSW [in] June 2015. I also accept that Ms [B]’s parents objected to the marriage, accusing Mr [A] at one time of kidnapping her, although I give no weight to this particular fact in the present matter.

5. I am also able to accept that Mr [A] is only nominally Muslim and that, at heart, he is an atheist and has been for some time. For that reason, I accept that he has some genuine reasons for affiliating with other atheists in Sydney as claimed. I accept that Mr [A] has told friends in Australia that he is atheist and that he joined [Organisation 1] in mid-2018 at least partly for genuine social purposes.

6. As discussed, Mr [A]’s claims in his original September 2015 protection visa application were simply about his being a potential target of “Islamic extremists and different organizations who killed people, bombed people every single day in the name of religion” who would kill him because he, a Muslim, had married a Hindu woman. Mr [A]’s original description of the potential perpetrators of persecution in his case  not only omitted but effectively excluded his family, which he has generally described as being devout but not as Islamic extremists. He more recently described his brother as something of an Islamist who would “often” talk about how Pakistanis in [Country 2] did not follow strict Islamic teaching, but this claim does not sit with two other facets in his evidence: the failure to mention his brother as a source of harassment in his protection visa application; and his having repeatedly claimed that he and his brother rarely communicated, making it hard to accept that his brother would “often” share any personal preoccupations with him at all. Meanwhile, Mr [A] has submitted to me copies of various documents related to previous visa applications in which he is reported to have claimed that he had sought and was awaiting help from his brother for the fee for lodging his partner visa application. He later claimed that the help never arrived, but it is nevertheless the case that he claimed, back at that time, the assumption that his brother would help him. This in incongruous with his claims about a lifelong acrimony with his brother, about their seldom being in touch. It is also incongruous with his claiming often to have heard his brother’s expressions of dissatisfaction with other people’s lax adherence to Islamic teaching.

7. Mr [A] and Ms [B] both attest to having lived apart since mid-2016: three years ago. I have considered their explanations for this: purportedly mutual decisions to allow some space and time for Ms [B] in her grief and poor mental and emotional health following her miscarriage in 2015; periods in the past when neither Mr [A] nor Ms [B] were earning any income; regard for the ongoing view of Ms [B]’s sister that Ms [B] should not, or not yet, move back in with Mr [A]; and the desire of both Ms [B] and Mr [A] to wait and see if he is granted permanent residency in Australia before re-establishing a common household. Notwithstanding the first two factors, I find that Mr [A] and Ms [B], though evidently friends, have not been in what could reasonably be regarded as a committed marital relationship for over three years. In fact the last of the four factors cited here shows that they themselves consider the relationship proceeding subject to a significant condition: whether Mr [A] can obtain permanent residency here under his own steam, as it were.

8. I have taken into account that the [June] 2015 marriage of Mr [A] and Ms [B] has not officially been dissolved. I have considered the 25 March 2019 statement from Ms [B] and the two video messages sent after the Tribunal hearing. I have considered the text and evidently amicable tone of the Facebook posts on Mr [A]’s “[Applicant Alias 2]” account, including the evidence of small talk in various social media posts in 2016 -2018 and the material showing that Mr [A]’s ID for Ms [B] is “[Wife Alias]”. I have also considered the 2013 evidence that Mr [A]’s [Relative 1] gave in relation to the partner visa application, attesting to the genuineness of the relationship as he saw it at that time. However, on the evidence before me, and notwithstanding that they are evidently amicable, I do not accept that Mr [A] and Ms [B] remain in a genuine and committed marital relationship. I certainly do not accept that their relationship has gone “from strength to strength”. I find that their marital relationship broke down around three years ago and/or has not recovered since they separated. As they have gone from a cohabitant marital relationship to being non-cohabitant, I find that they are not in an exclusive, intimate relationship. I do not accept on the evidence before me that they would be perceived in Pakistan to be in a marital relationship.

9. I accept that Mr [A]’s elderly parents and sister live in [Country 1]. I accept that his parents are devout Muslims. I accept that Mr [A] has a brother who, as described, moved to [Country 2] initially to study. I give some weight in this matter to the fact that Mr [A] did not include any members of his immediate or extended family as potential persecutors in his original protection visa application. I give some weight to the fact that he did not mention any fear of intra-family “honour killing” in that application, especially since he claimed his family spoke to him of its serious objections as far back as 2013, and also since it is now his main claim.

10. I note Mr [A]’s claim to the effect that his brother returned to live in Pakistan by choice because [Country 2] was not Muslim enough. As also noted, Mr [A] claimed his brother often said this, but he also claims he has been refusing to take calls from his brother with whom he seldom ever spoke in any event, leading me to conclude that I cannot rely on his claim about his brother having said this to him. Since Mr [A] claims that this was the rational for his brother [Mr E] abandoning residence in [Country 2] and returning indefinitely to Pakistan, I have great difficulty accepting that [Mr E] did anything of the kind, notwithstanding the formality of a Pakistan (Abbottabad) address on his national ID card. Meanwhile, as noted, Mr [A] provided me with evidence to the effect that he sought his brother’s financial and other support in the lodging of his partner visa application with Ms [B]. I find implausible that he would have embarked on doing this had he had the acrimonious relationship with his brother that he claims to have had since childhood.

11. On the evidence before me, I do not accept that any of Mr [A]’s immediate family members reside permanently in Pakistan, notwithstanding that [Mr E]’s ID card, a copy of which Mr [E] himself evidently recently shared with Mr [A],  shows a nominal Pakistan address, and notwithstanding that [Mr E] evidently purported that their father was soon returning to Abbottabad to revise his will. Mr [A] suggested that if I wanted to confirm the genuineness of the documents scanned and sent by [Mr E] I should contact him at his email address, but I already accept that the documents as scanned are genuine, even if I do not consider them to be evidence that [Mr E] is residing permanently in Pakistan. Meanwhile, as stated above, the Tribunal does not have any responsibility or obligation to establish, or assist in establishing, any claim, and it is for the applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision.[8]

    [8] Sun v MIBP [2016] FCAFC 52 at [69].

12. I draw negative inferences in this matter from Mr [A]’s failure to include his family or any members of it as potential persecutors in his original September 2015 protection visa application. Also, whereas Mr [A] claims his family explicitly and repeatedly objected to his relationship with Ms [B] since it began in 2013, I find that he provided confused and inconsistent explanations for being unable to produce evidence in support of his claims that they did so, particularly since he claims such evidence existed over several years in some of the social media he still used. I draw negative inferences from his not having presented such material in support of his claims about his family at or around the time he first introduced those claims, in his oral evidence to the delegate. On the evidence before me, I do not accept that Mr [A]’s family has threatened to kill him over his relationship Ms [B] which in any event, as I have found, broke down some years ago. Overall, I find that Mr [A]’s family knew about the relationship in and from 2013 and that there is no real chance of harm from them because they not have any interest in harming him.

13. In view of not accepting on the evidence before me that Mr [A]’s family has been threatening to kill him over the last several years for marrying Ms [B], and given his inconsistent and unreliable evidence about having closed off avenues of communication with his brother for several years, I do not accept that he was having an acrimonious conversation in 2018 with his brother about the relationship her, let alone that such a conversation led him to declare to his brother, there and then, that he was atheist, thus precipitating death threats from his family. Also, whereas I accept that Mr [A] was assaulted in September 2016 at his workplace, I do not accept, given his unsatisfactory performance as a witness in relation to animosity within his own family, that he told two [men] who just turned up that he was atheist in the course of a spontaneous chat about religion and was then assaulted by them, notwithstanding that he agreed to the publication of this version of events in Mr [F]’s [social media] feed. This particular explanation for Mr [A]’s 2016 injuries strikes me as being inconsistent with Mr [A]’s claimed preference for keeping his religious views to himself, manifested in his claimed selection and exclusion of social media contacts since before 2016. Overall, I find it far more plausible that Mr [A] and his brother (whether in [Country 2] or in Pakistan at the time) manufactured evidence regarding threats to kill him over his being an atheist to help to overcome the impact of his failed marriage upon the present application. Furthermore, on the evidence of the [Organisation 1] [social media] group being a closed and moderated group, I do not accept that the post discussing Mr [A] is known or would be known to anyone from whom Mr [A]  claims to fear harm in the reasonably foreseeable future. Meanwhile, whilst I accept that Mr [A]’s family knows that he no longer believes in Islam, I do not accept on his inconsistent evidence about his relationship with his brother that it has any genuine interest in inflicting or inciting harm upon him.

14. On the other hand, there is the evidence of the emails, the notice published in [Newspaper 1] and the evidence of the two witnesses. In particular, there is the recent evidence of exchanges about disherison and abandonment of shares in family wealth.

15. Starting with this last factor first, I find on the basis of inconsistencies regarding Mr [A]’s relationship and frequency of communication with his brother, and inconsistencies about when and how he cut off communications with him, that I do not accept that the brother’s emails as seen in this matter are genuine, or that they reflect the full and true content of Mr [A]’s communications with him, or that the [Newspaper 1] reflects the true position of Mr [A]’s family. A further cumulative reason for this finding is that the wealth of information sent by [Mr E] to Mr [A] after the last message/email exchange between them in May 2019, a batch of documents including the birth certificates of his [nephews], strikes me as being so generously out of proportion with his request to [Mr E] for copies of “your identity documents”. The two birth certificates help with details in response to the Tribunal’s concerns about [Mr E]’s place in Mr [A]’s family, but it is hard to see how they have anything to do with Mr [A]’s written request. In fact, sending any these documents at all appears to have been unnecessary, given the purported intention of Mr [A]’s father to take control of the family inheritance matter himself. [Mr E]’s quick co-operation with Mr [A]’s request, even as explained in his email, strikes me as lacking an air of reality, or at least the reality of the relationship between the two brothers as described by Mr [A]. It has also struck me as very odd that the family that purportedly disowned Mr [A] back in September 2018 and left him to be killed by anyone willing to help did not already do anything up until now to exclude him from the family’s wealth and estate until he suggested relinquishing his own claim to whatever entitlement  was his, and is in any event leaving it to him, residing in a foreign country, to implement arrangements in his own time, on the seemingly far-fetched assumption that it would be quicker and more effective and in their better interests: this strikes me as being so far-fetched in the claimed circumstances as to be fanciful.

16. After due consideration, I give little weight to Mr [C]’s evidence as it was extremely vague considering his suggestion that he heard many conversations on between Mr [A] and his brother over the years. Mr [C]’s evidence does not negate the impression that [Mr E] has been helping Mr [A] fabricate evidence in this case. I give it very little weight in this matter. I give more weight to the inconsistencies in Mr [A]’s evidence about his relationship with [Mr E] and about the frequency of communication with him, and also to the inconsistencies about when and how Mr [A] cut off communications with his brother. I also give very little weight to Ms [D]’s evidence because she claims she was unable to understand what was being said, and needed to rely on Mr [A]’s descriptions of conversation.

17. In the event of Mr [A]’s return to Pakistan, I find that Ms [B] will not accompany him for the reason that their marital relationship broke down around three years ago and has not recovered. I am not satisfied that there is a real chance of his being persecuted in the reasonably foreseeable future, say as a blasphemer, simply due to his presence in Pakistani society.

18. Mr [A] claims, however, that authorities and extremists will heed the notice placed in the [Newspaper 1] newspaper, all the more easily because his national ID number was placed there. Whereas he claims that people including Pakistani authorities will link him to the [Newspaper 1] notice, I consider this position to be baldly speculative. I am not satisfied on the evidence before me that the sentiments portrayed in that small one-off newspaper notice have been taken to heart by anyone. In addition, Mr [A] has not presented any evidence to suggest that, in response to the notice or to anything else, he has personally been named as a blasphemer. The purported 30 August 2018 email from [Mr E] does say, “Even the [Imam] of our Mosque has announced in [the] Mosque that it is good deed to kill a person who has left […] Islam.” However, this falls far short of suggesting that Mr [A] himself was the subject of any discussion, let alone of any fatwa. In addition, I have found that this and other submitted emails from [Mr E] are not reliable.

19. Even after considering the material from DFAT, I am not satisfied that Mr [A] faces a real chance of being accused of or mistreated for blasphemy or apostasy in Pakistan in the reasonably foreseeable future arising from the publication of that one small notice last year in [Newspaper 1].

20. I have considered whether Mr [A] faces a real chance of being persecuted in Pakistan due to his association with the [Organisation 1] group, his life as an atheist here and his interest in [Hobby 1]. Social media posts discussing his claimed relationship with Ms [B], his atheism, his atheist social affiliations and his [Hobby 1] are all evidently limited to closed accounts including the pseudonymous Facebook account. I do not accept on the evidence before me that these accounts can or would be accessed or located by potentially hostile persons here, in Pakistan or anywhere else. Meanwhile, whereas country information from DFAT at paragraph 125 above indicates that people have been persecuted for blasphemy based on the content of their blogs and other social media posts, Mr [A] says that for his own part, he does not use his own social media platforms to discuss atheism but, rather, for the recreational purpose of [Hobby 1] and, as noted, he does this in a pseudonymous account. On the evidence before me, I find that the chance of his affiliation with Ms [B], the [Organisation 1] and fellow [Hobby 1 friends] being accessed by persons in Pakistan is very remote. Accordingly, I find that he does not face a real chance of being persecuted in Pakistan in response to his social media activity in Australia. I find that, in the event of return or removal to Pakistan, Mr [A] will not join atheist groups like the one he joined in Australia and will not post or blog about atheism because, as he said, he is not genuinely interested in promoting atheism online. Overall I do not accept he is genuinely interested in discussing religion, even though he has had some genuine social affiliation with fellow atheists in Sydney. I find he may continue [with Hobby 1] if his current access to [related resources] here in Australia is not subject to a blanket barring in Pakistan, but I give no weight to this due to the anonymity of the medium through which he conducts this activity. I also accept, however, that Mr [A]’s access to [Hobby 1] and alcohol will be significantly curtailed, and perhaps even impossible in Pakistan because, due to his parentage, he will be perceived to be a Muslim, and Muslims are forbidden by Pakistani law to [engage in these activities]. The official punishment for drinking [in] Pakistan may be harsh: a spell in jail or even up to 80 lashes[9]; but the law is reportedly rarely, or not strictly, enforced.[10] In any event, I find that the laws banning alcohol and [Hobby 1] in Pakistan are adjusted to a legitimate national objective being to keep peace, order and public health in a country founded by and for Muslims. None of the evidence before me suggests that for Mr [A] to forego [those activities] in Pakistan would amount to modifying his behaviour in such a way as to conflict with characteristics fundamental to his identity or conscience, or as to conceal innate or immutable characteristics in his case: s.5J(3) refers.

    [9] “Pakistan battles growing alcohol addiction,” BBC News, 16 September 2013;  “Pakistan Has a Drinking Problem,” The New York Times, 2 December 2016.

    [10] Ibid.

1. I do not accept that Mr [A] is genuine in posting about his claimed relationship with Ms [B]. I find that he will not continue to post about this claimed relationship in the event of return or removal to Pakistan.  Also, whereas he claims that some of his social media platforms may have been seen or hacked by family members due to interference by his [Relative 1], I do not accept that this claim has any foundation in fact. Ultimately, I am not satisfied that his activities here will lead to a real chance of being persecuted in Pakistan in the reasonably foreseeable future.

2. I have considered whether, in the event of return or removal to Pakistan, Mr [A] will modify his behaviour to keep his atheism a secret, which would essentially amount to repressing characteristics fundamental to his identity or conscience out of fear of being persecuted.[11] In considering this question, I have taken into account such factors as Mr [A]’s contribution to Mr [F]’s November 2018 [Organisation 1] [social media] post. Overall, I give no weight to that activity because, as found, I do not accept that Mr [A]’s 2016 injuries were sustained in the circumstances claimed and, in any event, the material appeared in a closed, moderated [social media] group’s account. Mr [A] also gave evidence to the effect that this posting did not originate from his initiative, but from Mr [F]’s, on a promise that it would gain him sympathy, which is a further indication of the account being private and its group being closed and moderated. Thus, putting that instance aside, I find, on the evidence before me, that Mr [A] is not, and will not genuinely be, interested in discussing religion or lack of it, such as by preaching or promoting atheism or the abandonment of Islam in social media. As he said, he prefers to use social media for private social and recreational activity. He may form friendships with others in Pakistan who also have no religious beliefs, just as he has done here, and it is likely that they will not publicise the atheism they have in common beyond their circle, but, on the evidence before me, this would be out of a lack of genuine interest in doing so in Mr [A]’s case.

   [11] Ref: s.5J(3) of the Act; Also: Appellant S395/2002 v. Minister for Immigration and Multicultural Affairs; Appellant S396/2002 v. Minister for Immigration and Multicultural Affairs, [2003] HCA 71, Australia: High Court, 9 December 2003, >

   Having considered all of the evidence in its entirety, I am not satisfied that Mr [A] faces a real chance of being persecuted in Pakistan in the reasonably foreseeable future for any reason cited in s.5J(1)(a) of the Act.

3. For the reasons given above, I am not satisfied that Mr [A] is a person in respect of whom Australia has protection obligations under s.36(2)(a).

   Findings in relation to s.36(2)(aa)

4. Having concluded that Mr [A] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).

5. A person is entitled to protection under s.36(2)(aa) if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.

6. Relevantly, s.36(2)(aa) refers to a "real risk" of an applicant suffering significant harm. The "real risk" test imposes the same standard as the "real chance" test applicable to the assessment of "well-founded fear" in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).

7. "Significant harm" for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. "Cruel or inhuman treatment or punishment", "degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act.

8. Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.

9. Essentially, all three of these definitions require that there be an intention to inflict harm by some act or omission. Torture 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 ICCPR. "Cruel or inhuman treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Degrading treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one 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 ICCPR.

10. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

11. Accepting that Mr [A] is a citizen of Pakistan, I find that Pakistan is the “receiving country” in this case.

12. I find that the harm Mr [A] identifies in his complementary protection claims includes “the death penalty”, “arbitrary deprivation of life”, “cruel or inhuman treatment or punishment”, “torture” and “degrading treatment or punishment”.

13. Mr [A]’s claims to complementary protection are essentially the same as his refugee status claims. Since his refugee claims have failed either on the basis of inconsistency and lack of credibility or on the failure to meet the “real chance” test, or both, they can no more succeed as complementary protection claims.

14. Whereas Mr [A] may miss Ms [B] to some extent in the event of his return or removal to Pakistan, I have already found that they are no longer in a marital relationship, notwithstanding what I have seen, read and heard in oral, written and video evidence. Ultimately, I am not satisfied that being removed from the country in which Ms [B] resides would be treatment rising to a level reasonably capable of being regarded as significant harm, and I am not satisfied as to the existence of any intention to harm Mr [A] in removing him to Pakistan. 

15. Having considered all of the evidence in this case in its entirety, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Pakistan, there is a real risk that Mr [A] will suffer significant harm.

    Other findings

16. There is no suggestion that Mr [A] 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, he does not satisfy the criterion in s.36(2).

    DECISION

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

    Luke Hardy
    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.

    …