1610845 (Refugee)

[2019] AATA 3418

1610845 (Refugee) [2019] AATA 3418 (4 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1610845

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Tania Flood

DATE:4 June 2019

PLACE OF DECISION:  Sydney

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

Statement made on 04 June 2019 at 3:51pm

CATCHWORDS
REFUGEE – protection visa – Pakistan – political opinion – Pakistan People’s Party – office bearer of the youth wing – pro-children’s education and/or women’s rights – adverse attention from Taliban and/or PLMN – family members harassed – applicant did not appear before the Tribunal – veracity of claims cannot be tested – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 426A
Migration Regulations 1994 (Cth), Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant, who claims to be a citizen of Pakistan, applied for the visa on 8 July 2015. The delegate refused to grant the visa on 21 June 2016.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

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

6. 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.  

7. 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

8. 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

   Background

9. The applicant is a [age] year old citizen of Pakistan. He was born in Mandi Bahuddin, Punjab and resided in the same place until 2011. His mother, father, and five of his siblings live in Pakistan. Two of his siblings reside in [Country 1] and [Country 2]. He speaks fluent Punjabi, Urdu, and English. He completed High School and a [specified qualification] in Pakistan. He is unemployed and has no previous work history. 

10. He arrived in Australia [in] October 2011 on a student visa. His Student visa was cancelled on 26 May 2014. He applied for a Protection visa on 8 July 2015. On 21 June 2016, a delegate of the Minister refused his application for a Protection visa.

    Summary of claims

11. In a statement attached to his application for a protection visa, the applicant made the following claims:

12. He was born in Mandi Bahaddin, Pakistan. He is a Sunni Muslim.

13. He studied a [specified qualification] in October 2007 at [an institute] in Lahore. He was a youth leader at the [institute], in charge of a [group]. His leader was [a] member of the Pakistan People’s Party.

14. The aim of the Party was to stop young people from joining terrorist organisations such as the Taliban. He claims that many youths were brain washed by terrorist organisations and were joining the wrong group. As youth leader he was involved in educating and recruiting youth workers for the political party. He visited houses in the village. He also organised rallies in the district, for women’s rights and children’s education. Due to their activities, the Party became the target of the Taliban and other political parties.

15. The applicant’s family was also targeted. His cousin was a business owner and a supporter of the Party. He received many death threats, his business was burned, and his house attacked by the terrorist group. The applicant made many complaints to the Police, but they did not help him.

16. In 2007, he became [an office bearer] of the youth wing of the PPP and started taking a more active role in political matters. On 6 May 2007, during a meeting for the upcoming elections for the youth wing, a terrorist organisation attacked the applicant and his cousins. The applicant escaped but his cousin was killed. He states these were the same people who killed his uncles over a dispute over land and for political gains.

17. After the attack, the applicant experienced anxiety, depression, and post-traumatic stress. In 2009 his brothers left Pakistan. He moved to Lahore to study, where he continued to receive threats. In 2011, he came to Australia on a student visa. However, he did not intend to study and continued to worry about his parents in Pakistan.

18. His uncle [was] in the PLMN party, the main rival of the applicant’s party. PLMN had connections with terrorist organisations and used other groups to put them down. He states his father was also ‘dragged in this cold war’.

19. The PLMN has been the ruling party in Pakistan for the past eight years. His relatives have participated in PLMN’s campaigns in the last elections and are in strong political positions. Due to this, he cannot return to Pakistan.

20. He cannot relocate to a different area in Pakistan because it is not safe. The Taliban are everywhere. PLMN also have branches in all parts of the country.

    Protection Visa Interview

21. The applicant attended a PV interview with the Department on 26 October 2015. The following additional claims were made in the interview:

22. He was threatened by two men, [Mr A] (family name unknown) and [Mr B], three or four times before his cousin was murdered in May 2007, two or three times after his cousin’s murder, and once after he moved to Lahore in October 2007.

23. In 2007 he moved to Lahore to escape the threats from [Mr A] and [Mr B]

24. He was threatened by [Mr A] and [Mr B] in October 2011. The final contact was a death threat directed at the applicant that he would be killed if he returned to Pakistan.

25. His father was threatened two or three times during the period October 2007 until October 2011. The applicant’s father was also threatened in 2014.

26. His father warned him not to return to Pakistan.

27. [Mr B] is living in [a location in] Lahore.

28. [Mr A] was gaoled for his involvement in a bomb blast of a Shia mosque and police station.

29. [Mr A] and [Mr B] are linked with a Lahore group who are well-connected.

30. He is financially supported by his brother [who] lives in [Country 2].

31. He cannot relocate to Islamabad as it will be too easy to find him.

32. He cannot relocate to Parachinar, they kill too many Punjabis there.

33. He cannot relocate to Karachi ,there are too many killings.

34. If he relocated within Pakistan his ID card would be checked and he would be taken off a bus.

35. He did not lodge his protection visa application as soon as he arrived in Australia in October 2011 as he was trying to study and there was no need to apply for a PV at that time.

36. In June 2015 a friend told him he could apply for a protection visa.  Prior to this he did not know he could apply for such a visa.

37. He did not tell anybody, including his migration agent, about his problems in Pakistan.

38. In 2012 he spoke to his friend [about] his problems in Pakistan.

39. Even though these events took place more than seven years ago, [Mr B] is still in the area and the police will do nothing to arrest him because they are corrupt.

40. Even if decades go by no one will forget.

    Delegate’s Decision

41. The delegate expressed concerns about the credibility of the applicant’s claims. The delegate found the evidence from the applicant’s written application and the testimony at interview not convincing. He was unable to demonstrate or substantiate with personal or authoritative information that he was personally involved in the incidents claimed that are central to his claims. The claims also relate to events that took place almost a decade ago.

42. The delegate did not accept that he was involved with PPP or any group affiliated with PPP, or that he was targeted by relatives or any other groups supporting PMLN. The delegate did not accept that he was threatened or persecuted on account of his pro-children’s education and/or women’s rights views.

    Review application

43. The applicant lodged an application for review with the Tribunal on 18 July 2016.  He did not provide any supplementary information with the review application.

44. By letter dated 16 April 2019 the Tribunal wrote to the applicant, via his representative, advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone.  The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 8 May 2019 at 09:30am (NSW time).  On 29 April 2019 the applicant’s representative emailed the Tribunal advising that the applicant would attend the hearing alone as its migration services are withdrawn.  On the same day the Tribunal telephoned the applicant and he confirmed that his representative has withdrawn his services and he will not be appointing a new representative.  On 7 May 2019 the Tribunal informed the applicant that the pre-arranged hearing was postponed.  In a telephone conversation with the applicant that same day he confirmed his knowledge of the postponement and requested that all further correspondence be sent to his email and not to his former representative. 

45. By letter dated 10 May 2019 the Tribunal wrote to the applicant, via his nominated email address, inviting him to attend a hearing on 4 June 2019 at 10:00am (NSW time).  The Tribunal sent the applicant SMS reminders prior to the scheduled hearing on the number he provided on 28 May and 3 June 2019.  The applicant did not appear before the Tribunal on the day and at the time and place at which he had been scheduled to appear, nor did he contact the Tribunal about his failure to attend.  The Tribunal is satisfied the applicant was properly notified in the manner indicated by him on 7 May 2019.  In these circumstances, pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review, without taking any further action to enable the applicant to appear before it.

    FINDINGS AND REASONS

46. The issue in this case is whether there is a real chance the applicant will suffer serious harm if he returns to Pakistan for reason of his race, religion, nationality, membership of a particular social group or political opinion or alternatively, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Pakistan there is a real risk that he will suffer significant harm.

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

48. Attached to the Department file is a photocopy of the applicant’s Pakistani passport which verifies his claimed identity and nationality.  In the absence of any information to the contrary the Tribunal accepts, for the purpose of this review, that the applicant is a national of Pakistan.

49. The mere fact that an applicant claims to fear harm for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason/s claimed.  It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[1]  Although the concept of onus of proof is inappropriate to administrative inquiries and decision-making[2], the relevant facts of the individual case will have to be supplied by the applicant, 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[3], nor is it required to accept uncritically any and all of the allegations made by an applicant[4].  The Tribunal acknowledges this guidance had been developed for the purposes of considering refugee protection claims, however, it is satisfied it is also materially applicable to the assessment of complementary protection claims.

    [1] MIEA v Guo & Anor (1997) 191 CLR 559 AT 596

    [2] Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288

    [3] Prasad v MJEA (1985) 6 FCR at 169-170; Luu & Anor v Renevier (1989) 91 ALR 39 at 45

    [4] Randhawa v MILGEA (1994) 52 FCR 437 at 451

50. Central to the applicant’s claims is that he was [an office bearer] of the youth wing of the PPP and actively involved in political affairs.  The only information before the Tribunal is his own assertion of the facts outlined in his written claims and oral evidence to the delegate. The Tribunal is unable to establish from this information whether the applicant held the political opinion he claims in Pakistan; what his level of political activity in Pakistan was and whether it  attracted any adverse attention from the Taliban and/or rival political parties as is claimed.

51. Without more evidence from the applicant than the evidence presently before it, the Tribunal cannot be satisfied about why the applicant left Pakistan, or whether he cannot or will not return to Pakistan because he fears harm there as he claims.  If he had attended the hearing, the Tribunal would have had the opportunity to discuss his claims with him in more detail and test their veracity.  The Tribunal would have sought further information in relation to the matters raised.  The Tribunal would have used the opportunity of the hearing to discuss these issues with the applicant and given him the opportunity to explain the particular details of what he fears would happen if he returns to Pakistan now or in the reasonably foreseeable future and the reasons why it would happen.  However, it was not possible to discuss any of these issues with him because, despite being advised by the Tribunal that it had considered all the material before it but was unable to make a favourable decision on that information alone, he did not attend a hearing and provided no further information or evidence in support of his claims.  The Tribunal has insufficient evidence to be satisfied that the events and circumstances he raised are factual.  The Tribunal is therefore unable to establish the relevant facts in this matter and does not accept his claims.

52. On the evidence before it the Tribunal is not prepared to accept that the applicant was [an office bearer] or otherwise involved with the youth wing of the PPP in Pakistan.  The Tribunal is not prepared to accept that he or any of his family members were harassed, harmed or killed because of their own or the applicant’s political affiliations.  The Tribunal is also not prepared to accept that the applicant’s life was threatened by the persons claimed or that his father was subsequently threatened over his whereabouts.  It follows that the Tribunal is not prepared to accept that the applicant will suffer serious harm if he returns to Pakistan for reason of his political opinion.

53. On the evidence before it, the Tribunal is not satisfied that there is a real chance that the applicant will face serious harm for reason of his race, religion, nationality, membership of a particular social group or political opinion, either now or in the reasonably foreseeable future, if he returns to Pakistan.  Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution in Pakistan.  Therefore he does not satisfy the criterion at s.36(2)(a) of the Act.

54. The Tribunal has also considered the alternative criterion in s.36(2)(aa) of the Act.  For the same reasons already articulated, the Tribunal is not satisfied that the available evidence supports 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 would suffer significant harm in the form of, arbitrary deprivation of life, or the death penalty being carried out, or torture, or cruel or inhuman treatment or punishment, or degrading treatment or punishment.  Therefore he does not satisfy the requirements of s.36(2)(aa) of the Act.

55. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) or (aa) of the Act.

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

    DECISION

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

    Tania Flood
    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.

    …