1609795 (Refugee)

1609795 (Refugee) [2020] AATA 4866 (26 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1609795
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Denise Connolly
DATE:26 October 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 26 October 2020 at 1:42pm

CATCHWORDS
REFUGEE – protection visa – Pakistan – fear of harm from Taliban and general security conditions – extortion and threats – no attendance at department interview or appearance at tribunal hearing, and no evidence provided – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), 36(2), 65, 438
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 7 June 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Pakistan, applied for the visa on 7 January 2016. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
Administrative matter
There is a purported s.438 certificate dated 4 July 2016 which purports to certify that folio 59 should not be disclosed because it would be contrary to the public interest as the folio contain ‘information relating to an internal working document and business affairs’. The information in folio 59 is an Onshore Protection 866 Processing Checklist. There is nothing in this folio that would give rise to a concern that disclosure would be contrary to the public interest. Having considered the purported s.438 certificate and the reasons set out above for why disclosure would be contrary to the public interest, the Tribunal is not satisfied the reasons given properly identify a basis for public interest immunity. Accordingly the Tribunal finds the certificate is not valid.
Hearing non-attendance
On 10 March 2020 the Tribunal invited the applicant to attend a hearing scheduled for 14 April 2020. Due to circumstances associated with the COVID-19 pandemic the Tribunal decided to postpone face-to-face hearings until such time that it could minimise the risk of transmission of Coronavirus. On 20 March 2020 the Tribunal wrote to the applicant and advised that it would be postponing his hearing.
On 22 September 2020 a Tribunal officer contacted the applicant’s representative, a registered migration agent and legal practitioner, to conduct outreach about the reintroduction of face-to-face hearings. The representative indicated he would contact the applicant about the reintroduction of face-to-face hearings and that he would write to the Tribunal if the applicant wanted a video hearing. The representative did not write to the Tribunal seeking video hearing.
On 24 September 2020 the Tribunal wrote to the applicant to advise that it would be resuming face-to-face hearings. It asked the applicant to provide information in relation to the requirements for his hearing, such as whether the applicant wished to have witnesses and/or his representative attend the hearing. He was also provided with information about the steps the Tribunal would take to adhere to COVID safe social distancing practices.
On 24 September 2020 the applicant’s representative advised that the applicant agreed to attend a hearing in person and that he would require an Urdu interpreter. He also advised that he, the representative, would attend.
On 25 September 2020 the Tribunal wrote to the applicant advising that it had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to appear before it on 26 October 2020 at 10 AM to give evidence and present arguments relating to the issues arising in his case. The letter informed the applicant that if he did not attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable him to appear before it. The invitation was sent to the applicant using the email address provided in connection with the review. The Tribunal also sent two SMS hearing reminders directly to the applicant using the last mobile number provided to the Tribunal by the applicant, however the delivery of those SMS messages failed.
The applicant did not attend the hearing at the scheduled date and time. Having reviewed the material before it, the Tribunal is satisfied that the applicant was properly invited to a hearing and the invitation was sent to his authorised recipient by email using the correct email address provided by the applicant. There is no evidence to suggest that the email transmission was unsuccessful. No postponement of hearing has been sought. No satisfactory reason for the non-appearance has been given. Accordingly the Tribunal has decided to proceed to make its decision on the evidence before it.
CLAIMS AND EVIDENCE
When making the visa application the applicant provided the following information. He was born on [Date 1] in Rawalpindi, Punjab, Pakistan. He is a citizen of Pakistan and Sunni Muslim. He does not have the right to reside in any another country. He speaks, reads and writes in Urdu and English. He married his wife in Pakistan. They have three children, daughters born on [Date 2] and [Date 3] and a son born on [Date 3]. His mother, father, [brothers], [sisters], wife and three children reside in Pakistan. He provided a copy of his Pakistani passport issued [in] 2011 obtained through normal procedures. He applied for a visitor visa on 11 August 2015 which was granted on 11 November 2015. He arrived in Australia as the holder of a [Visitor] visa [in] November 2015. Prior to travelling to Australia he was employed as a director with [Company] in Faisalabad. He lived in Faisalabad.
The applicant claims he faced problems in Pakistan because of the Taliban who have influence in Faisalabad. They threaten businessmen, physically and financially, to cooperate and support terrorism. The Taliban threatened him. He paid them money but their demands increased over time. They wanted him to provide them with persons who might participate in suicide missions. There were threats against his life and he was not safe in Pakistan. He is afraid he will be killed if he returns to Pakistan. Anarchy is on the rise and Pakistan and it does not have the resources to cope with all the problems. The authorities do not take complaints such as his seriously. The authorities do not have the capacity or resources to deal with every complaint. He stated he will provide further evidence regarding his claims, in the “near future”.
The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that the applicant did not provide further evidence regarding his claims and did not attend his protection interview, despite he and his representative being properly notified.
On the evidence before her the delegate did not accepts his claims and was not satisfied the applicant has a well founded fear of persecution or that he meets the complementary protection criteria.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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
Nationality
The applicant claims to be a citizen of Pakistan and provided to the Department a copy of his Pakistani passport. In the absence of any evidence to the contrary, the Tribunal is satisfied the applicant is a citizen of Pakistan. It finds Pakistan is his receiving country for the purpose of assessing his claims. There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any other country for the purposes of the Act.
Does the applicant have a well-founded fear of persecution?
The mere fact that a person claims a fear of persecution for a particular reason does not establish the genuineness of the asserted fear or that it is well founded. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case need to be provided by the applicant himself in as much detail as is necessary to enable the Tribunal to establish the relevant facts. The Tribunal is not required to make the applicant's case for him. Nor is the Tribunal required to accept uncritically any or all of the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.)
In this case the applicant has made claims in his written application but has not provided any other evidence to substantiate those clams. He claims he is a Sunni Muslim. Based on his name and nationality the Tribunal accepts this claim. He also made the following claims: that he is a businessman who has been extorted and threatened by the Taliban in Faisalabad; the Taliban wanted him to provide them with people the suicide mission; he has received threats against his life in Pakistan; the authorities do not take complaints similar to his seriously; and, he fears he will be killed if he returns to Pakistan.
The Tribunal notes from the delegate’s decision record, provided to the Tribunal by the applicant, that the applicant did not attend the interview with the delegate. The delegate also noted that the applicant had not provided further evidence to support his claims since making the visa application. The delegate stated that, in the absence of supporting evidence, she was not satisfied the applicant had demonstrated that he fears persecution in Pakistan or that he met the complementary protection criterion. Taking into account this, along with the warning in the hearing invitation that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone, the Tribunal is satisfied the applicant is aware that there are concerns regarding the lack of evidence.
In his written application the applicant has claimed, as a businessman, to have been extorted and threatened by the Taliban in Faisalabad. He has not provided any other written or oral evidence to support this claim. As he did not attend the hearing the Tribunal was unable to obtain further information about his claims, or to test their veracity. The Tribunal wished to discuss with the applicant his business in Pakistan, why he thought he was being targeted by the Taliban and whether he continued to fear the Taliban. It also wished to obtain from the applicant further particulars regarding his claims as the information before the Tribunal is scant and lacking in persuasive detail. Also it is not clear to the Tribunal why he would be targeted in the future. On the evidence before it the Tribunal is not satisfied the applicant was a businessman or that he was extorted and threatened by the Taliban and in Faisalabad. Nor is it satisfied that the Taliban wanted him to provide them with people for suicide missions, all that he had received threats against his life. It does not accept he approached the authorities or that the authorities did not take complaints of this nature seriously.
As the Tribunal has not accepted these claims it also does not accept the applicant’s claims that he is not safe in Pakistan or that he fears he will be killed if he returns to Pakistan. The Tribunal is not satisfied the applicant travelled to Australia because he fears harm in Pakistan. It is not satisfied the Taliban or anyone has threatened to harm the applicant if he returns to Pakistan. It is not satisfied the applicant fears harm in Pakistan for any reason. It it concerned the applicant has manufactured his claims.
The applicant has also made general claims that there is no safety in Pakistan as anarchy and restlessness are on the rise and the state does not have the resources to cope with these problems. The Tribunal is not satisfied the applicant’s mere assertions are sufficient to demonstrate that he would not be able to avail himself of state protection or that there is a real chance he would suffer serious harm if he returns to Pakistan for this reason.
On the evidence before it, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution in Pakistan for reason of his religion or political opinion or imputed political opinion, or for any other reason set out in the Act, or that there is a real chance that he would be persecuted for one or more of those reasons. Therefore, he does not meet the definition of refugee. Accordingly, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
Does the applicant meet the complementary protection criteria?
As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, it has considered whether he may meet the criterion for the grant of a protection visa under the complementary protection criterion.
As indicated above, the applicant has failed to provide persuasive evidence regarding his claims. The Tribunal has serious concerns about the reliability of his evidence, particularly given his failure to attend the interview with the delegate and his hearing, and it has not accepted his claims about past or future harm. As the applicant did not attend his hearing, the Tribunal has been unable to obtain further information about his claims, or to test their veracity. In view of the above findings and on the evidence before it, the Tribunal is not satisfied that the applicant suffered harm in Pakistan or that there is a real risk that he will suffer significant harm if he returns to Pakistan.
On the evidence before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Denise Connolly
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.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – 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; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
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 the 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.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(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.
…

[2020] AATA 4866

26 October 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Statutory Construction

Natural Justice