1613614 (Refugee)

[2019] AATA 6829

1613614 (Refugee) [2019] AATA 6829 (18 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1613614

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:L. Symons

DATE:18 October 2019

PLACE OF DECISION:  Sydney

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

Statement made on 18 October 2019 at 7:03pm

CATCHWORDS

REFUGEE – protection visa – Pakistan – race – Pathan/Pashtun – imputed political opinion – perceived Tehreek-i-Taliban and Afghan Taliban supporter – fear of forced recruitment by ISIS – shot at by members of political youth group – claim father was murdered – delay in applying for protection visa – delay in leaving Pakistan – credibility concerns – differing versions of father’s death – authenticity of FIR – inconsistency of evidence – fabricated claims to obtain protection visa – decision under review affirmed   

LEGISLATION

Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 424AA, 438, 499
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 on 5 August 2016 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, arrived in Australia [in] June 2014 as the holder of a subclass 573 Student visa that was valid until 30 August 2016. On 10 September 2015, he was granted a Bridging A visa in association with his application for a Protection visa. That visa expired on 5 October 2015. On 5 October 2015, his Student visa was cancelled and on 6 October 2015 he was granted a Bridging visa E which expired on 21 November 2016. The Bridging E visa was renewed on 21 November 2016 and remains in effect.

3. The applicant applied to the Department of Home Affairs (the Department) for a Protection visa on 4 September 2015 and the delegate refused to grant the visa on 5 August 2016. On 25 August 2015, he applied to the Tribunal for a review of that decision.

4. The applicant appeared before the Tribunal on 9 July 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

5. The issues that arise on review are whether the applicant is owed Australia’s protection under the refugee criterion or under the complementary protection criterion.

   CRITERIA FOR A PROTECTION VISA

6. 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.

7. 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.

8. 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).

9. 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.  

10. 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

11. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

12. The applicant’s claims in his application for a Protection visa are summarised as follows:

    ·     He fears harm from criminals and Tehreek-i-Taliban (TTP) militants because he is a Pathan.

    ·     [In] July 1995, his father was killed by unknown men because he was a Pathan and although the Police recorded a First Information Report (FIR) they failed to take any action.

    ·     The TTP and Afghan Taliban want to recruit him because he is a Pathan and his grandparents are originally from Quetta, Balochistan. He fears being forcibly recruited by Islamic State of Iraq and Syria (ISIS) because he is a Pathan. He fears that he will be forced to join ISIS by the Taliban.

    ·     He is looked down upon by all Pakistanis because he is a Pathan who does not belong in Pakistan and he is perceived to be a supporter of the Afghan Taliban. He received death threats until he departed for Australia in June 2014.

    ·     Whilst working [in Company 1] in [Town 1], Rawalpindi, the TTP demanded that he [provide his professional services] for them in the town. He was beaten ‘mercilessly’ when he refused.

    ·     A local Pakistani political youth group made up of radicalised Muslims and opposed to the TTP are trying to kill him because they think he is a Pathan who works for the TTP and Afghan Taliban and is helping them [by providing his services and recruiting] young people.

    ·     In August 2012, his three friends were attacked and threatened with death because they had protected him from being beaten by the political youth group. The attack was reported to the Police and a FIR was lodged. When the Police searched for the youth group, members of the group went to his friend’s house and shot at him and his three friends. His friends were hurt but he hid and was unharmed. He lived in fear of being shot and continued his business by travelling in a car.

    ·     Police told him not to involve them in his problems and that he should leave the country. The Police told the TTP that a youth group had tried to shoot him because they believed he was helping the TTP [by providing his services]. As a result the TTP abducted him and handed him over to the Afghan Taliban who wanted him to identify the members of the youth group so they could abduct them.

    ·     His uncle negotiated his release on condition that he recruits young people to join the TTP and help the TTP [by providing his services] and in return the TTP would protect him from the youth group.

    ·     In September 2013, the youth group complained to the local Mullah that the TTP were abducting their members and threatening them with death if they harmed him. The Mullah told him that locals want him sent away and that he should return to Balochistan. He refused and the Mullah told him that he should not complain if he is shot.

    ·     In March 2014, Police ordered him out of Rawalpindi as the youth group and the Mullah planned to kill him because he had [assisted] the TTP. The Police told him that locals considered him to be involved in drug trafficking because he was seen to have connections to the TTP and he was a Pathan. The Police said they are unable to protect him from the TTP and Afghan Taliban and that he should move to Balochistan. Police told him that youths planned to shoot him and his friends and if he moved to Balochistan his friends would not be shot.

    ·     The Mullah and TTP are working with the Police to relocate him across the border and train him as a militant. If he returns he will be abducted by the TTP and the Afghan Taliban, taken to a military camp in Balochistan or Afghanistan for military training and forced to work for the TTP and Daesh.

    ·     If he returns he will be killed by the local political youth group because they believe he works for the TTP and Taliban.

    ·     The Police are afraid of the Afghan Taliban and the TTP and will not help him. The Afghan Taliban and the TTP murder the Police every day in order to threaten the government. The Police told him they were unable to convince local people that he was innocent and never had any connections to the TTP. The Police told him to leave Pakistan or move to Balochistan.

    ·     The army cannot help him because they are engaged in a long war against the United States and United Nations.

    ·     He cannot move to Balochistan or Khyber Pakhtunkhwa because the TTP and the Afghan Taliban will try to abduct and recruit him.

    ·     If he remains in Quetta he will be forcibly handed over to ISIS and his life ruined. ISIS is calling on Pathans to return to Afghanistan.

    ·     If he moves to another part of Pakistan, once the locals and Police know he is a Pathan they will harass him. The Police will interrogate him and send him back to Rawalpindi.

13. The applicant filed with the Department copies of his Pakistani passport, a Secondary School Certificate Examination dated [date], two FIRs dated [September] 2012, a FIR dated [August] 2012, a Death Certificate for [Mr A], photographs and country information. The Tribunal has had regard to this evidence.

14. The applicant attended an interview with the Department on 22 April 2016. During that interview, he reiterated and expanded on his written claims. He also made the following new claims:

    ·     His father was killed by individuals linked to [Mr B], a powerful political figure, because of his charity work in Balochistan.

    ·     Local youth groups want to kill him because they believe he is recruiting for ISIS. The youth groups are the youth wing of the Pakistan People’s Party and they have beaten him many times. The Police did not help him.

    ·     After he came to Australia, the youth group beat his brother as well. On 31 August 2012, the Police asked the youth group to leave his brother alone and the youth group shot at the Police.

    ·     On 5 September 2012, the youth group went to his friend’s house and shot his three friends.

    ·     In 2012 or 2013, the Taliban came in a car armed with guns and parked outside his home to scare him. 

    ·     In Pakistan he lived in hiding with relatives and friends.

    ·     Wherever he goes in Pakistan the Police will find him and will ask him where he comes from. His mind will become unstable and he will have to live in hiding and not work.

15. The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 5 August 2016, his father’s Death Certificate dated [February] 2019, copies of photographs and country information. The Tribunal has had regard to this evidence.

16. On 21 February 2019, the applicant lodged a Statement with the Tribunal. In that Statement he sets out the reasons why he disagrees with the decision made by the Department. He also made the following new claims:

    ·     A week after beating his brother, the TTP entered his family home. When his mother told the Police, they arrested his brother and abused him. His mother pleaded with a lawyer to arrange for his release. The lawyer was threatened with assault and ordered by the TTP to stay away from his family.

    ·     The Mullah ordered his mother and brother to move to Quetta so that his brother could escape harm from the local youth group.

    ·     His brother has been forced to join the TTP and his mother is trying to send his brother out of the country. The TTP is repeatedly sending his brother to Afghanistan but his brother refuses to take up military training.

    Receiving country

17. The applicant claims to be a citizen of Pakistan and has provided a copy of his Pakistani passport to the Department and the Tribunal. In the absence of any evidence to the contrary, the Tribunal finds that he is a citizen of Pakistan. The Tribunal finds that Pakistan is the receiving country for the purpose of assessing his claims for protection under the refugee criterion and the complementary protection criterion.

    Third country protection

18. The Tribunal finds that the applicant is outside his country of nationality. There is no evidence before the Tribunal to suggest that he has the right to enter and reside in any country other than his country of nationality.

    Assessment of claims

19. The applicant gave evidence that a friend named [Mr C] helped him to prepare his application for a Protection visa. He stated that he provided his friend with the information to prepare the visa application and the information he gave him was true and correct. When asked whether he was satisfied that his visa application was accurate and complete, he responded that for his part he provided complete details and provided the evidence that he could provide.

20. During the hearing, the Tribunal discussed with the applicant his background, his family, his education, his employment, where he lived in Pakistan, his reasons for leaving Pakistan and why he fears returning to Pakistan. The Tribunal found aspects of his evidence to be contradictory, implausible and unconvincing. He made new claims throughout the process. There were significant inconsistencies in his evidence. He was unable to provide a coherent and consistent account of events. His conduct prior to coming to Australia and after coming to Australia was not consistent with his claims. The Tribunal finds that he is not a reliable or credible witness for the following reasons:

21. First, in his application for a Protection visa, the applicant claimed that [in] July 1995 his father was killed by unknown men because he was a Pathan. He has filed with the Tribunal a copy of the Department’s Decision Record dated 5 August 2016 which indicates that during his interview with the Department he stated that his father was killed by individuals linked to [Mr B], a powerful political figure, because of his charity work in Balochistan. The Tribunal raised these inconsistencies in his evidence as an issue with him and noted that they raised concerns in relation to his credibility and the veracity of his claims.

22. The applicant responded that a FIR was lodged with the Police against unknown people. He stated that they know that [Mr B] was the head of the local youth group. He stated that he now participates in the election for the PPP. This response does not explain the inconsistency in his evidence in relation to who killed his father and why he was killed and it does not alleviate the Tribunal’s concerns.

23. Second, in his application for a Student visa, the applicant stated that his father passed away [in] September 1995. He provided the Department with a Death Certificate issued by the Department of Health in Rawalpindi which stated that he passed away [in] July 1995. It stated that the cause of death was natural causes. After he came to Australia, he informed [University 1] that he was unable to continue his studies and sought a refund of the fees. In the Refund Request Form he stated that his father, who was sponsoring all his expenses, had passed away. He provided [University 1] with a Death Certificate issued by the Department of Health in Rawalpindi which states that his father died [in] July 2014 of natural causes as a result of a heart attack.

24. When his Student visa was about to be cancelled, the applicant applied for a Protection visa and claimed that his father was killed in 1995. He provided the Department with a Death Certificate issued by the Health Department at Rawalpindi which stated that [Mr A] died [in] July 1995 and was murdered by pistol shot. His passport indicates that his father’s name is [a variation of Mr A, with a different first name].

25. The Tribunal put this information to the applicant, pursuant to s.424AA of the Act, and noted that he had provided evidence with three different dates of death and two different causes of death for his father. The Tribunal noted that it may find that he had provided false information and a fake Death Certificate to [University 1] so that he could get a refund of his fees and/or had provided false information and fake documents to the Department and the Tribunal so that he could get a Protection visa.  

26. The applicant responded that he did not provide any document to [University 1]. He stated that the document he provided the Department had a mistake when it was translated into English. He stated that he has provided a new Death Certificate. The Tribunal stated that it had difficulty accepting that the different name (on the Death Certificate) was a translation error. He responded that he is aware of the mistake in the name but was not aware of the cause of death. He stated that his father was killed by a bullet and the Tribunal could “trace it online”.

27. The Tribunal has considered the applicant’s response but is not persuaded by it. During the hearing, he stated on a number of occasions that he provided all the documents to his agent and asked him to obtain a visa for him to travel to Australia. As he was enrolled in a course at [University 1], he or his agent acting on his behalf would have had to provide a number of documents to [University 1] in order to enrol in the course. The Tribunal does not accept that he has not provided any document to [University 1]. In view of his evidence that he was relying on his uncle to pay for his visa and his travel to Australia, it is highly likely that he provided his father’s Death Certificate to the Department with his application for a Student visa to explain why he was relying on his uncle for financial support.  

28. In view of the fact that the Death Certificate the applicant provided the Department with his application for a Protection visa states that his father’s name was ‘[Mr A]’ and the Death Certificate he provided the Tribunal states that his father’s name was ‘[a variation of Mr A, with a different first name]’, the Tribunal does not accept that the different name on the Death Certificate he provided the Department can be explained by a translation error and the Tribunal does not accept this explanation. This raises doubts about the authenticity of these documents and his father’s cause of death.  

29. The Tribunal has undertaken an online search for reports of the applicant’s father’s death in 1995 and was unable to find any reference to it.

1. The applicant has provided to the Department copies of photographs of a car with the windscreen smashed and of a man lying in a cot surrounded by women and children. There are handwritten notes on the photographs. One of the photographs of the car has the note ‘inside the car where my father was shot’. The photograph of the man lying in a cot has the note ‘my father’s funeral”. He has not provided any independent evidence that this car belonged to his father or how the damage to the car was caused.

2. The applicant has provided to the Tribunal copies of photographs of a bride and groom, photographs of a family group and photographs of a man lying in a cot surrounded by women and children (which had been previously provided to the Department). He gave evidence to the Tribunal that the photographs are of his parents’ wedding, his family (when he was a child) and his father’s funeral. The Tribunal accepts that the photographs are as described by him and that his father has passed away. The photographs are not evidence of the date of his father’s death or the cause of his death.

3. The Tribunal is of the view that there was no benefit to the applicant to falsify his father’s cause of death in the Death Certificate provided to the Department with his application for a Student visa. However, as one of his claims in his application for a Protection visa is that his father was murdered, it was to his benefit to provide a Death Certificate that supported his claim that his father was murdered. For the above reasons, the many concerns the Tribunal has in relation to his credibility referred to herein and the country information referred to herein, the Tribunal is not satisfied that the Death Certificates provided by him to the Department and to the Tribunal in support of his application for a Protection visa are authentic documents.

4. Third, there are many inconsistencies in the applicant’s evidence. For instance, in his application for a Protection visa, he claimed that he was abducted by the TTP in Balochistan, held for a month and then handed over to the Afghan Taliban. He claimed that the Afghan Taliban wanted him to identify the members of the youth group so they could abduct them. He claimed that his uncle negotiated his release. He claimed that this abduction took place after the youth group had fired at his three friends in August 2012.

5. The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 5 August 2016. It indicates that during his interview with the Department on 22 April 2016 he stated that he was abducted in September or October 2010 and held for 20 to 25 days. He stated that his uncle’s cousin contacted political people who arranged for his release. During the hearing, he gave a third version of this incident. He stated that this incident took place in 2010. He made no mention of the Afghan Taliban. He stated that his uncle organised his release. The Tribunal put this information to him, pursuant to s.424AA of the Act, and noted that these inconsistencies in his evidence raised concerns in relation to his credibility and the veracity of his claims.

6. The applicant responded that in September or October 2010 he was held at [a location] for 20 to 25 days. He stated that he was told that he would be handed to the Afghan Taliban. He stated that during this time his uncle arranged for him to be released. His response does not explain the inconsistencies in his evidence or address the issues raised with him and does not alleviate the Tribunal’s concerns.

7. Fourth, the applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 5 August 2016. It indicates that during his interview with the Department on 22 April 2016, he made a new claim that he was in hiding at the homes of friends and relatives. In his visa application, in response to question 82 Previous addresses, he stated that he lived at the same address in Rawalpindi from [date] (when he was born) until June 2014 (when he left Pakistan to travel to Australia). This is not consistent with his claim during his interview that he was in hiding and living at the homes of friends and relatives. The Tribunal put this information to him, pursuant to s.424AA of the Act, and noted that this inconsistency in his evidence raised concerns in relation to his credibility and the veracity of his claims.   

8. The applicant responded that when he prepared his application for a Protection visa he thought that they were asking for his permanent addresses. The Tribunal does not accept this explanation. The question clearly states “details of all residential addresses where you have lived in the last 30 years.” There is no reference to a permanent address. Further, in response to this question, he also stated that he lived at an address in [Suburb 1] from June 2014 to July 2014 and thereafter at a different address in [Suburb 1]. He provided the first address in [Suburb 1] even though he lived there temporarily for a month. He gave evidence to the Tribunal was that he did not live at his family home after August 2012. The Tribunal would expect him to have noted this at the very least in his response to question 82 Previous addresses in his visa application. His response does not alleviate the Tribunal’s concerns.  

9. Fifth, the applicant’s claim that he was hiding at the home of relatives and friends is also not consistent with his evidence in response to question 85 Employment in his application for a Protection visa where he stated that he worked as [an Occupation 1] in [Company 1] in Rawalpindi from May 2010 to June 2014. It is implausible that he would have been able to do the same job for over 4 years prior to leaving Pakistan for Australia if he was in hiding as claimed.

10. During the hearing, the applicant gave inconsistent evidence. He stated that the only job he has done in Pakistan was [in Company 1]. He stated that he started that job in 2011 and completed it in 2012 or 2013. He then confirmed that it was 2013. He stated that he did not do any work after that because his life was threatened. He stated that he just obtained a visa and left Pakistan.

11. These inconsistencies in the applicant’s evidence raise further concerns in relation to his credibility and the veracity of his claims.

12. Sixth, in response to question 85 Employment in his application for a Protection visa, the applicant stated that he was [an Occupation 1] in [Company 1] in Rawalpindi from May 2010 to June 2014. However, in his application for a Student visa, he stated that he was employed [as an Occupation 2 in Company 2] in Islamabad from May 2010 to March 2014. He provided two work references from his employer. This is not consistent with his evidence to the Tribunal that he stopped working in 2012 or 2013 because his life was threatened. The Tribunal put this information to him, pursuant to s.424AA of the Act, and noted that these inconsistencies in his evidence raised issued in relation to his credibility and the veracity of his claims.

13. The applicant responded that [Company 2] was his friend’s business. He stated that he was an [Occupation 2] there. He stated that he informed the Department that his work was mostly undertaken over the telephone and he mostly worked in [Town 1] and Rawalpindi. He stated that in 2012, when he stopped working, he had to do something small. He stated that his uncle told him that he had to do something to support his family because he had his own family. He stated that he was getting referrals from [details deleted] and getting a commission.

14. The Tribunal noted that the applicant had provided a letter from [Company 2] which stated that it was owed by his brother. The Tribunal noted that he had earlier told the Tribunal that the business was owned by his friend. He responded that when he was coming to Australia he gave everything to his agent. He stated that he did not give him anything from [Company 2] and has just found out that his agent provided a letter from [Company 2].

15. The applicant’s response that he worked at [Company 2] after he stopped working in 2012 because he had to do something and his uncle told him he had to do something to support his family tends to indicate that he did more than one job in Pakistan. This is not consistent with his evidence in his application for a Protection visa that he only did one job in Pakistan as [an Occupation 1]. It is also not consistent with his evidence to the Tribunal that he only did one job in Pakistan. His response does not address the inconsistency in the evidence in relation to whether [Company 2] was his friend’s business or his brother’s business.

16. The applicant also gave evidence to the Tribunal that he provided all the documents to his agent in Pakistan to obtain his visa. His evidence is that the agent acted on his behalf. In these circumstances, the Tribunal finds it implausible that he was not aware until the hearing that he had provided the Department with a letter from [Company 2] in support of his application for a Student visa. The Tribunal is of the view that he either provided that letter to his agent or his agent obtained the letter from his employer on his behalf or his agent obtained a fake letter on his behalf. The Tribunal is of the view that it is highly unlikely that he would have been aware of this.

17. These inconsistencies in the evidence raise doubts in relation to the applicant’s claim that he had to stop working because his life was threatened.

18. Seventh, in his application for a Protection visa and in the subsequent new claims made throughout the process, the applicant has claimed that he fears harm from criminals, the TTP, the Afghan Taliban, ISIS, Daesh, a local Pakistani political youth group, the Mullah and the Police. During the hearing, he gave inconsistent evidence. He stated that if he had stayed in Pakistan he would have been killed by the political youth group or the TTP in Quetta. When asked if this was it (in terms of whom he feared in Pakistan), he answered yes. This inconsistency in his evidence raises further concerns in relation to his credibility and the veracity of his claims.    

19. Eighth, in his application for a Protection visa, the applicant did not make any claims in relation to his brother being threatened by the political youth group. He has filed with the Tribunal a copy of the Department’s Decision Record dated 5 August 2016. It indicated that during his interview with the Department he made a new claim that his brother was beaten by the political youth group. He initially claimed that this happened after he came to Australia in June 2014. He later stated that this incident occurred on 31 August 2012. He subsequently stated that this incident occurred 2 months ago (February 2016). During the hearing, he gave evidence that this incident occurred in November 2018. The Tribunal raised as an issue with him these inconsistencies in his evidence and its concerns in relation to his credibility and the veracity of his claims.

20. The applicant responded that in 2018 he stated that it was recent. He stated that prior to that his brother was beaten whenever he went out or he was harassed when he was in Rawalpindi. He stated that when they saw him they beat him and he was beaten many times. He stated that that was why one of his brothers went to [Country 1]. He stated that they talked to his uncle about the other brother so he could get him out of there.

21. The Tribunal is not persuaded by the applicant’s response. Firstly, if he was beaten every time the political youth group saw him and if he was beaten many times as claimed, the Tribunal would expect him to have mentioned it in his application for a Protection visa and to have put his best case forward in his visa application. The only claim he made in his visa application that is related to this issue was that in August 2012 his three friends were attacked and threatened with death because they had protected him from being beaten by the political youth group. He did not claim that he was actually beaten on that occasion. His failure to make this claim in his application for a Protection visa raises concerns in relation to the credibility of this claim.

22. Secondly, if the applicant’s brother was beaten every time the political youth group saw him,  was beaten many times and attempts are being made to send him overseas for this reason as claimed, the Tribunal would expect him to have mentioned it in his application for a Protection visa as well. He provided a detailed 11 page typed Statement of Claims with his visa application providing lots of other details but failed to mention that either he or his brother were beaten many times by the political youth group. The Tribunal formed the view that he was fabricating this evidence as he was giving it.

23. Ninth, the applicant’s conduct in Pakistan was not consistent with his claims that his life was at risk in Pakistan. The records of the Department indicate that he was granted a Student visa on 21 May 2014. However, he did not arrive in Australia until [June] 2014. The Tribunal put this information to him, pursuant to s.424AA of the Act, and noted that it would expect that if he was receiving death threats, was in fear for his life and was in hiding he would have left Pakistan as soon as possible after he was granted a Student visa. The Tribunal noted that his delay of almost 5 weeks to arrive in Australia after he was granted a Student visa was not consistent with his claims and raised concerns in relation to his credibility and the veracity of his claims.

24. The applicant responded that he delayed because the money for his visa application came from his uncle. He stated that his uncle organised his ticket and arranged the money. He stated that they had to pay the agent as well and it cost a “good amount of money”.

25. The Tribunal is not persuaded by this response and does not accept it. The applicant’s evidence to the Tribunal is that after he came to Australia he did not work between 2014 and 2017 and his uncle financially supported him during this period. This tends to indicate that his uncle is a wealthy man who wanted to support him. The Tribunal would expect that if his life was at risk in Pakistan his uncle would have ensured that he left the country as soon as possible after he obtained the visa and that he would have paid the agent and purchased the ticket immediately after the Student visa was granted.

26. The applicant’s delay in leaving Pakistan after his Student visa was granted tends to indicate that his life was not at risk in Pakistan and that he did not have concerns for his safety in Pakistan.

27. Tenth, the applicant’s conduct in Australia was not consistent with his claims that his life was at risk in Pakistan. The records of the Department indicate that he arrived in Australia [in] June 2014 on a Student visa which is a temporary visa. He did not apply for a Protection visa until 4 September 2015. The Tribunal put this information to him, pursuant to s.424AA of the Act, and noted that it would expect that if his life was at risk in Pakistan and if he feared for his life if he returned to Pakistan, he would have obtained some immigration advice as soon as possible and applied for a Protection visa soon after he arrived in Australia. However, he did not apply for a Protection visa until 4 September 2015 which was approximately 1 year and 2 months after his arrival in Australia. The Tribunal noted that his delay in applying for a Protection visa raises concerns about his credibility and the veracity of his claims.

28. The applicant responded that when he came to Australia he delayed applying for protection because he thought he could stay here temporarily and go to another country. He stated that his agent in Pakistan told him that he could only send him to Australia and he could apply for a Protection visa. He stated that it was expensive to pay for a lawyer. He stated that his friend [Mr C] told him that he could complete the visa application online. He stated that he was also scared that the Australian government would tell the Pakistan government and it would be a problem for his family.

29. The Tribunal asked the applicant whether he made any inquiries about where he could obtain free immigration advice in Australia. He responded that his friend told him about one or two lawyers in [Suburb 2], he contacted them, they told him their charges and they were high. When asked the question again, he answered no.

30. The Tribunal is not persuaded by the applicant’s response and does not accept it for a number of reasons. Firstly, his evidence that he delayed applying for protection because he thought he could stay here temporarily and go to another country is not consistent with his evidence that his agent told him that he could only send him to Australia. This tends to indicate that he could only get a visa for Australia. Secondly, his evidence is that his agent in Pakistan told him that he could apply for a Protection visa once he came to Australia. If he had concerns that the Australian government would tell the Pakistan government about his claims for protection and it would cause a problem for his family, the Tribunal would expect him to have raised this issue with his agent and to have been informed about confidentiality.

31. Thirdly, if the applicant wanted a lawyer to prepare his application for a Protection visa but could not afford the lawyers he contacted in [Suburb 2], the Tribunal would expect him to have done some research on the internet about where else he could get immigration advice. He would then have discovered where free legal aid is provided. He is a person with tertiary qualifications from Pakistan and has indicated in his application for a Protection visa that he can read, write and speak English. His response does not alleviate the Tribunal’s concerns.

32. Eleventh, during the course of the hearing, the Tribunal asked the applicant what his intention was when he came to Australia. He responded that his life was threatened in Pakistan and his agent advised him to come to Australia. He stated that he thought he could come to Australia and do something to stay here like studying. This evidence contradicts his earlier evidence to the Tribunal that he came to Australia on a Student visa so that he could leave Pakistan as his life was threatened, he had no intention of studying in Australia and did not undertake any studies in Australia. This inconsistency in his evidence raises further concerns about his credibility and the veracity of his claims.

33. Twelfth, the applicant’s conduct in Australia raises concerns further concerns in relation to his credibility and the veracity of his claims. He gave evidence to the Tribunal that he left Pakistan [in] June 2014 to travel to Australia. This is consistent with the records of the Department which indicate that he arrived in Australia [in] June 2014.

34. The records of [University 1] indicate that on 9 July 2014 the applicant wrote to [University 1] informing them that, for personal reasons, he was unable to travel to Australia, wanted to withdraw from his studies and get a refund. [University 1] wrote to him on 10 July 2014 and stated that it would cancel his enrolment and let the Department know.  [University 1] wrote to him again on 10 July 2014 and stated that it checked with the Department, were informed that he was already in Australia and requested an explanation. He then wrote to [University 1] stating that he was in Australia but had to return to Pakistan and requested that his classes be deferred.

35. The records of [University 1] indicate that on 11 July 2014 a letter was written to the applicant requesting that he clarify whether he was withdrawing from the course or deferring his studies. He was also asked for evidence of his return to Pakistan and an explanation for why he informed [University 1] that he could not travel to Australia when he was already here. The letter stated that he had breached condition 8533 of his Student visa by not providing his contact details. On 16 July 2014, he wrote to [University 1] stating that he wanted to defer his studies. He stated that he had some property issues to sort out in Pakistan and did not respond to the other questions.

1. The records of [University 1] indicate that on 17 July 2014 a letter was written to the applicant requesting details for why he had to return to Pakistan and documentary evidence of his return such as airline tickets. On 4 August 2014, he responded to [University 1] stating that he could not continue with his studies due to problems in Pakistan and requested a refund. [University 1] responded on 4 August 2014 informing him that he had to complete a refund form and provide some evidence such as airline tickets. The records of the Department indicate that he did not depart Australia after his arrival here [in] June 2014. 

2. The Tribunal put this information to the applicant, pursuant to s.424AA of the Act, and noted that this history of correspondence between him and [University 1] indicates that he provided false information to [University 1] in order to obtain a refund of fees. The Tribunal noted that this raises concerns in relation to his credibility and that he may have provided false information to the Department and the Tribunal in order to obtain a Protection visa.

3. The applicant responded that when he applied for a visa to come to Australia he provided all the documents to his agent. He stated that he had no idea that his agent tried to get a refund of the fees from [University 1].  He stated that he can take an oath that it was his agent who was in contact with [University 1].  He stated that he just asked his agent to get him the visa and had no idea that he had tried to get a refund of the fees.

4. The Tribunal informed the applicant that it had difficulty accepting his explanation as the correspondence was via email from and to his email address. The Tribunal also noted that if his agent was employed to obtain a Student visa for him, once he did so and was paid for his services his involvement with him ceased. He responded that maybe his agent was trying to get the money from [University 1] and it was a ‘good amount of money”. He stated that maybe his agent was using his “id under another name”. He stated that when he applied for a Protection visa he used an email address and received correspondence and provided a different email address.

5. The Tribunal has considered the applicant’s response but is not persuaded by it. It is the applicant who is entitled to a refund of the fees not his agent. Therefore, [University 1] would have sent the refund of fees to him and not to his agent. The agent would therefore not have benefitted from trying to obtain a refund of the fees. His evidence is that he used the Student visa to come to Australia but had no intention of studying here. His conduct is consistent with him trying to recover some of the costs he incurred in obtaining the Student visa. His conduct raises further concerns about his credibility and the veracity of his claims.

6. Thirteenth, the applicant’s conduct in Australia raises concerns in relation to the authenticity of the supporting documents he has provided. The records of [University 1] indicate that the applicant wrote to [University 1] on 25 August 2014 stating that his father passed away. On 28 August 2014, [University 1] wrote to him and asked for evidence that he had departed Australia. On 17 September 2014, [University 1] again asked him for some documentary evidence. He eventually provided [University 1] with some documents on 23 January 2015. He provided [University 1] with a Death Certificate for his father which indicates that he passed away [in] July 2014. He provided a letter from [a bank] dated 5 August 2014 to his mother stating that they were sorry to hear about her husband’s death and confirming that the bank account had been transferred into her name.

7. The Refund Form was also completed and provided to [University 1]. The accompanying letter stated that his father was sponsoring his expenses and he had passed away.  The records of the Department indicate that he never departed Australia in 2014 to attend his father’s funeral. The Tribunal put this information to the applicant, pursuant to s.424AA of the Act, and noted that in his application for a Protection visa he claimed that his father was killed in 1995. The Tribunal noted that this may lead it to the conclusion that he provided false and misleading information to [University 1] and provided them with fake documents in order to get a refund of fees and try to stop his Student visa from being cancelled. The Tribunal noted that this may also lead it to the conclusion that he may have done the same thing to the Department and the Tribunal in order to obtain a Protection visa.

8. The applicant responded that he provided documents to his agent. He stated that he is in Australia now and questioned how it is possible that he is corresponding with [University 1]. The Tribunal noted that [University 1] is in Australia. He responded “how can I contact them when I am here?” The Tribunal noted that he could contact anyone anywhere in the world by email. He responded that his agent was corresponding with [University 1] on his behalf when he got to know that he was not going to [University 1]. He stated that he has now got a new Death Certificate that shows that his father was killed in 1995. He repeated that he provided all the documents to his agent and told him to get him a visa because his life was threatened and he wanted to leave Pakistan.

9. The Tribunal has considered the applicant’s response but is not persuaded by it. The Tribunal finds his explanation that he could not have been corresponding with [University 1] because he is in Australia to be nonsensical. His evidence that his agent was corresponding with [University 1] on his behalf when he got to know that he was not going to [University 1] tends to indicate that he was in contact with his agent after he came to Australia and that his agent was acting on his behalf. This is not consistent with his earlier evidence that he was not aware that his agent had contacted [University 1]. Even if the Tribunal were to accept that it was his agent who contacted [University 1], the Tribunal is not satisfied that he was not aware of it. If the Death Certificate he provided the Tribunal is authentic, then the Death Certificate provided to [University 1] had to be a fake.

10. Fourteenth, on 21 February 2019, the applicant lodged a Statement with the Tribunal. In that Statement, he made a number of new claims including that the TTP entered his family home a week after beating his brother, when this was reported to the Police his brother was arrested and abused by the Police and his mother arranged for a lawyer to have his brother released. He also claimed that the Mullah ordered his mother and brother to move to Quetta so that his brother could escape harm from the local youth group. He claimed that his brother had been forced to join the TTP and the TTP is repeatedly sending his brother to Afghanistan but his brother refuses to take up military training.

11. The Tribunal discussed these claims with the applicant during the hearing. He gave a different version of events. He stated that in December 2018 the TTP took his brother but his uncle was able to speak to them and negotiate his release. He made no mention of his brother joining the TTP or the TTP repeatedly sending his brother to Afghanistan or his brother refusing to undergo military training. These inconsistencies in his evidence raise further concerns in relation to his credibility and the veracity of his claims.

12. Fifteenth, the Tribunal has had regard to the FIRs provided by the applicant. The first FIR is dated “31-08-12 at 3/5am” and is in relation to an incident that took place on “28-08-12 at 10/15 am”. The complainant, [Mr E], stated that someone rang his door bell, he went outside, saw [Mr F], [Mr G] with two unknown persons in a car and two other people on motor cycles. He stated that the street lights and the gate lights were on. He stated that [Mr G] shouted “kill him because he is a friend of [the applicant]”, [Mr F] fired a gun at him and the shot hit the gate. He stated that his father started shouting, they fired shots into the air and ran away. He stated that “the cause of this occurence is that some days ago my neighbourer [Mr H] s/o [named person] had a fight with the said [Mr F] and I stopped them not to quarrel with each other”. (sic)

13. The Tribunal has a number of concerns about this FIR. If this incident occurred on 28 August 2012 it is unlikely that the complainant waited for 3 days before reporting it to the Police and then lodged a complaint at “3/5 am”. It is not clear whether the complaint was made between 3am and 5am or at 3.50am but in either case it is implausible that a complaint would have been made at that hour of the day. Secondly, if the incident took place at “10/15am” it is unlikely that the street lights and the gate lights would have been on at that hour of the day. Thirdly, if the complainant was of the view that he was shot at because he intervened to stop a quarrel between his neighbour [Mr H] and one of the gunmen a few days earlier, it does not make sense that one of the gunman would shout “kill him because he is a friend of [the applicant]”. Fourthly, it is unlikely that the gunmen would have run away when they were in motor vehicles.

14. The second FIR is dated “05-09-12 at 12/20am” in relation to an incident that took place at “11/30pm”. The complaint by a Police Officer states that whilst investigating FIR 418 and trying to arrest the culprits he ordered the culprits, who were in motor vehicles, to stop and was fired at. It indicates that the Police Officers returned fire and were able to arrest two men.

15. The third FIR is dated “05-09-12 at 2am” and is in relation to an incident that took place at “12/30am”. It indicates that the “place of occurence” was [a named road] at a distance of about “3 farlong eastern side of Police Station.” The complaint was made based on a Statement by the applicant. It indicates that the applicant went to his friend [Mr I’s] house and at about “12/30am” [Mr I] and two other friends went outside with him to see him off. He stated that 10 to 12 “boys” arrived in motor vehicles and fired at them. He stated that his three friends were badly injured. He stated that due to his “hue and cry” two people who resided near him went there. He stated that the cause of the incident was that “on 28 August 2012 the culprits fired at the house of [Mr E] and then registered a criminal case”.

16. During the hearing, the applicant gave conflicting evidence about this incident. He initially stated that this incident took place outside his house between 10pm and 11pm. He then changed his evidence and stated that it took place outside [Mr I’s] house. He then changed his evidence again and stated that it took place outside his house. The “place of occurence” in the FIR is the same address as the “place of occurence” in the FIR dated 31 August 2012.

17. The Tribunal has a number of concerns about this FIR. Firstly, the applicant’s evidence that his incident took place between 10pm and 11pm is not consistent with the FIR which states that it occurred at about 12.30am. Secondly, he has provided contradictory evidence about where the incident took place but twice stated that it took place outside his house. The “place of occurence” in the FIR is different to his address. Thirdly, if this incident took place at his house it is unlikely that his three friends would have been seeing him off. Fourthly, his evidence is that he and his friends were unarmed and there were “many people” there, some of whom were firing at them. It is implausible that his three friends would have been badly injured but he suffered no injuries particularly if he was the target of the attack as claimed. These issues raise concerns about the authenticity of these FIRs.

18. The Tribunal discussed with the applicant country information which indicates that document fraud is widespread throughout Pakistan. It indicates that it is easy to obtain fraudulent documents including Death Certificates, letters from banks and FIRs. DFAT indicates that it does not consider the existence of an FIR to constitute evidence that the events described in the FIR actually occurred.[1] The Tribunal raised as an issue with him its concerns in relation to the authenticity of the three FIRs and the Death Certificates he provided. He responded that his father’s cause of death was that he was shot by a pistol. He stated that the Tribunal could check the FIRs or the Death Certificates he provided.

    [1] DFAT Country Information Report on Pakistan dated 20 February 2019.

19. The country information indicates that there are reports of Police accepting bribes to verify fraudulent FIRs. [2] It is therefore unlikely that any checks the Tribunal undertakes would produce conclusive evidence of the authenticity of these documents.

    [2] Ibid.

20. In view of the Tribunal’s many concerns about these documents and the applicant’s credibility and the above country information, the Tribunal is not satisfied as to the authenticity of these documents and places no weight on them.

21. The Tribunal discussed with the applicant country information which indicates that the security situation in Pakistan has improved over the last few years.

    Overall, there was a 29 per cent decline in the number of reported terrorist attacks in                   2018 (compared to a 16 per cent decline in 2017), marking a nine-year downward                  trend. Nevertheless, Pakistan continues to face security threats from insurgent,   separatist and sectarian militant groups….

    The Pakistan armed forces (see Military and Intelligence Services) have launched                    several security operations in Pakistan due to terrorism and the volatile security   environment. Observers credit Operation Zarb-e-Azb, its successor Radd-ul-Fasaad,                  and the NAP with a significant reduction in the number of violent and terrorism   related attacks in Pakistan. [3]

    [3] Ibid.

22. The applicant responded that in November 2018 a cleric was killed and in March they arrested two people from the TTP. He stated that he is a Pathan. He stated that they will find him and beat him. He stated that they will do something to him because he left.

23. The Tribunal discussed with the applicant country information about the situation of Pathans/Pashtuns in Pakistan and noted that it indicates that the security situation in Pakistan has improved since he was last in Pakistan in 2014 as has the situation for Pathans/Pashtuns in Pakistan.  

    Pashtuns are represented at all levels of society in Pakistan. Historically, Pashtuns   have dominated employment in the transport sector in Pakistan and Afghanistan.                   Pashtuns are well represented in Pakistan’s security forces. PTI has a strong support   base in Pashtun-dominated Khyber Pakhtunkhwa (the only Province the party had                 governed prior to election in 2018).

    Pashtun-majority areas have historically experienced high levels of tribal, intra-  communal and politically motivated violence, and a high concentration of military   operations. However, the overall security situation for all Pakistanis, including   Pashtuns, has improved in line with increased security across Pakistan.

    DFAT assesses that Pashtuns face a medium risk of official discrimination in the form                 of terrorism-related and racial profiling by security forces in areas where they are a   minority, particularly in Punjab. Pashtuns in Pashtun majority areas or locations   where individuals have family or social connections face a low risk of official   discrimination. Pashtuns who are not Turis, or are not linked to the ANP, face a   similar risk of violence as other ethnic groups in Pakistan in the same locations.[4]

    [4] Ibid.

24. The applicant responded that he is a Pathan and has faced discrimination in Rawalpindi. He stated that his father was helping Afghan refugees. He stated that they think they are TTP. He stated that Rawalpindi is better. He stated that there are protests in KP as there are issues with the army and young Pathans are protesting. He stated that if he returns to Pakistan they will find him and kill him and there will be the same problems as before. He stated that he cannot live with that tension.

25. The Tribunal has had regard to the country information provided by the applicant to the Department and to the Tribunal. The country information he provided the Department is considerably old and out of date now. He provided the Tribunal with part of an article in The Atlantic dated 30 November 2018 and titled ‘The True Origins of ISIS’, an article in Samaa Digital News dated 2 November 2018 and titled “JUI-S leader Mauland Smiul Haq murdered in Rawalpindi’ about the murder of a prominent cleric known as the ‘father of the Taliban’ and an article in Dawn dated 27 November 2018 and titled “Two TTP militants arrested in Islamabad” about the arrest of two “extremely dangerous terrorists” who were involved in kidnappings of “important figures in the capital”. The Tribunal has had regard to this country information.

    Other considerations

26. The Tribunal has had regard to the Tribunal’s Guidelines on the Assessment of Credibility when assessing the applicant’s credibility.The Tribunal has also had regard to the DFAT Country Information Report on Pakistan and the Department’s Policy Guidelines to the extent that they are relevant to the decision under consideration.

    Section 438 Certificate

27. The Tribunal informed the applicant that his file from the Department contained a Certificate under s.438 of the Act and it related to the non-disclosure of information contained on one page in the file. The Tribunal informed him that the Certificate was issued on the basis that it was contrary to public interest to disclose the information because it relates to internal deliberations of the Department. The Tribunal informed him that the information subject to the s.438 Certificate relates to the details of application and identification tests undertaken in relation to him. The Tribunal informed him that it was not relevant to the issues before it.

28. The Tribunal invited the applicant to make submissions on the validity of the s.438 Certificate. He responded that he did not have anything to say. The Tribunal is of the view that the s.438 Certificate is not valid as it does not specify a reason that could form the basis for a claim to public interest immunity.

    Findings

29. Having considered all of the applicant’s claims and all the evidence, the Tribunal finds that the applicant is not a witness of truth. The Tribunal finds that he fabricated his material claims for the purpose of obtaining a Protection visa.

30. The Tribunal accepts that the applicant was born on [date] at Rawalpindi in Punjab Province in Pakistan. The Tribunal accepts that he is a Sunni Muslim and is of Pathan/Pastun ethnicity. The Tribunal accepts that his mother, older brother and sister live in Pakistan and other brother lives in [Country 1]. The Tribunal accepts that his father passed away in 1995. The Tribunal does not accept that his father was murdered for any of the reasons claimed or by any of the people claimed.

31. The Tribunal does not accept that the TTP, the Afghan Taliban and Islamic State want to recruit the applicant because he is a Pathan and/or his grandparents are originally from Quetta, Balochistan and/or any other reason. It follows that the Tribunal does not accept any of his claims that flow from this. The Tribunal does not accept that he has had any personal interactions with any of these organizations. It follows that the Tribunal does not accept any of his claims that flow from this. 

32. The Tribunal does not accept that a local Pakistani political youth group made up of radicalised Muslims who are opposed to the TTP are trying to kill the applicant because they think he is a Pathan who works for the TTP and Afghan Taliban, is helping them [by providing his professional services and recruiting] young people or is recruiting for Islamic State. It follows that the Tribunal does not accept any of his claims that flow from this.

1. The Tribunal does not accept that the applicant is of adverse interest to the TTP, the Afghan Taliban, Islamic State, a local Pakistani political youth group, the local Mullah, Daesh or the Police for any of the reasons claimed.

2. The Tribunal does not accept that the applicant’s brother is of adverse interest to the local Pakistani political youth group, the TTP, the Afghan Taliban or Islamic State or Daesh or the Police for any of the reasons claimed. It follows that the Tribunal does not accept any of his claims that flow from this.

3. The Tribunal does not accept that the applicant is looked down upon by all Pakistanis because he is a Pathan/Pashtun who does not belong in Pakistan and he is perceived to be a supporter of the Afghan Taliban. The Tribunal does not accept that he received death threats until he departed for Australia in June 2014. The Tribunal accepts that he may have been subject to some societal discrimination because he is a Pathan/Pashtun but is not satisfied that it amounted to serious harm or significant harm. The Tribunal does not accept that wherever he goes in Pakistan the Police will find him and ask him where he comes from. The Tribunal does not accept that he is unable to obtain State protection in Pakistan.

4. The applicant has not provided any medical or psychological evidence to indicate that he suffers from any mental health problems. The Tribunal does not accept that his mind will become unstable and he will have to live in hiding and not work if he returns to Pakistan.

5. On the evidence before it, the Tribunal is not satisfied that there is a real chance of serious harm or a real risk of significant harm to the applicant because he is a Pathan/Pashtun if he returns to Pakistan now or in the reasonably foreseeable future.

6. The Tribunal accepts that there is some level of risk to the applicant in the context of generalized violence if he returns to Pakistan. However, it finds, on the basis of all the evidence before it, that this risk is remote. The Tribunal does not accept that there is a real chance or a real risk that he would be targeted for harm if he returns to Pakistan now or in the reasonably foreseeable future.

7. The Tribunal does not accept that the applicant left Pakistan for any of the reasons claimed or that he fears returning to Pakistan for any of the reasons claimed. The Tribunal is not satisfied that he is at risk of serious harm or significant harm for any of the reasons claimed if he returns to Pakistan now or in the reasonably foreseeable future. 

   Does Australia have protection obligations to the applicant under the refugee criterion?   

8. Having considered all of the applicant's claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal finds that there is no real chance that the applicant will suffer serious harm for reason of his actual or imputed political opinion or his race or any other reason set out in s.5J(1)(a) of the Act if he returns to Pakistan now or in the reasonably foreseeable future. Therefore, the Tribunal finds that he does not have a well-founded fear of persecution and is not a refugee as defined in s.5H of the Act. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.

   Does Australia have protection obligations to the applicant under the complementary      protection criterion?

9. As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether he may nevertheless meet the criterion for the grant of a Protection visa pursuant to the complementary protection criterion.

10. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Pakistan now or in the reasonably foreseeable future.    

11. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that he does not satisfy the criterion in s.36(2)(aa) of the Act. 

    CONCLUSION

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

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

    DECISION

14. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    L. Symons
              Member

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation
    …
    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)that is not inconsistent with Article 7 of the Covenant; or

    (d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)that is not inconsistent with Article 7 of the Covenant; or

    (b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)for the purpose of intimidating or coercing the person or a third person; or

    (d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    receiving country,  in relation to a non-citizen, means:

    (a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5J Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K  Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L  Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA  Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    ..

    36Protection visas – criteria provided for by this Act

    …

    (2A)A non‑citizen will suffer significant harm if:

    (a)    the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)    the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)    it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …