1619336 (Refugee)

[2020] AATA 6192

1619336 (Refugee) [2020] AATA 6192 (5 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1619336

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Dr Colin Huntly

DATE:5 August 2020

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 05 August 2020 at 7:45am

CATCHWORDS

REFUGEE – protection visa – Pakistan – political opinion – supporter of Pakistan People’s Party (PPP) – multiple return visits to Pakistan – delay in lodging the visa application – inconsistent evidence – credibility concerns – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth), s 33

Migration Act 1958 (Cth), ss 5AAA, 36, 65, 499

Migration Regulations 1994 (Cth), Schedule 2

CASES

Abebe v The Commonwealth of Australia (1999) 197 CLR 510
BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184
CQG15 v MIBP [2016] FCAFC 146
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
SZLGP v MIC [2008] FCA 1198
SZSHV v MIBP [2014] FCA 253

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 and Border Protection to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of Pakistan, applied for a protection visa on 16 October 2014.  This application was refused by a delegate of the Minister on 27 October 2016.  The applicants seek review of that decision by this Tribunal.

   Applicant migration history

3. Applicant 1 first entered Australia on [date] August 2011, travelling on a [Student] visa.

4. Applicant 1 was subsequently granted a further [Student] visa on 10 September 2012.

5. Applicant 1 departed Australia on [date] January 2013 and returned to Pakistan.  He arrived back in Australia on [date] March 2013.

6. Applicant 2 arrived in Australia on [date] May 2014 as a dependent spouse on Applicant 1’s [Student] visa.

7. Applicant 1 again departed Australia on [date] February 2014 and returned to Pakistan.  He arrived back in Australia on [date] April 2014.

8. As indicated above, Applicant 1 applied for a protection visa on 16 October 2014 on behalf of the family unit.

9. On [date], Applicant 3 was born in Australia and subsequently added to the application.

   Proceedings before the Tribunal

10. The applicants appeared before the Tribunal at two hearings (held over three dates), to give evidence and present arguments.  The first hearing held in person on 23 September 2019 was adjourned (to allow Applicant 1 to obtain a copy of his application documents from the Department by means of an FOI application).  This hearing was resumed by telephone on 31 March 2020 but was concluded shortly thereafter because Applicant 2 appeared to have no knowledge of the hearing having been arranged.  After giving both applicants a warning about the importance of participating freely and fully in the next hearing, the hearing was concluded.  The second and final hearing with the applicants was held on 23 July 2020.  

11. The Tribunal hearings were conducted with the assistance of interpreters in the Urdu and English languages.  The applicants were not represented by a registered migration agent in proceedings before the Tribunal.

    Identity and receiving country

12. Applicants 1 and 2 provided a copy of their identity documents to the Department with the original application for protection.  There is no reason to doubt the validity of these documents.  I have reviewed this information and, as indicated above, have had the opportunity to interview the applicants on three occasions.

13. I have viewed the birth certificate of Applicant 3 and I am satisfied that she is the natural child of Applicant 1 and Applicant 2.  I have also viewed a copy of the biometric data contained within the Passport of Applicant 3.  According to this document (issued [in] 2019) Applicant 3 is a citizen of Pakistan.

14. Based on the information before me, I find that all applicants are citizens of Pakistan, which is also the receiving country for the purposes of the refugee and complementary assessments. 

15. In light of the findings I have made below, it has not been necessary to make findings pursuant to s.36(3) of the Act relating to third country protection.

    WHAT IS THE BACKGROUND OF THIS APPLICATION?

    Introduction

16. The applicants are citizens of Pakistan.  According to their Protection application Form 866C declaration, prior to arriving in Australia, Applicant 1 and Applicant 2 resided exclusively in the State of Punjab, primarily in and around the city of Gujranwala.

    Principal claims

17. The claims for protection (as per a statement attached to the original Protection application Form 866C declaration), are not particularised and are somewhat difficult to discern. 

18. The delegate appears to have addressed this lack of clarity in the claims for protection by enumerating paraphrased aspects of the attached statement at pp.4-5 of the record of decision.  The original claims for protection may be summarised as follows:

    The Pakistan People’s Party (PPP) is the party of former President Benazir Bhutto;

    President Bhutto was democratically succeeded by President Nawaz Sharif in 1997 but he was deposed in a military coup in 1999.  Former President Bhutto was eventually assassinated at a political rally December 2007 prior to an election which resulted in the return to power (briefly) of the PPP at a national level.  Pakistan politics has been characterised by instability and violence.

    Gujranwala is a stronghold of support for the opposition Pakistan Muslim League Nawaz Party (PML).

    Partisans acting in support of the major parties in Pakistan participate in acts of politically motivated violence, particularly around election periods.

    While an undergraduate, Applicant 1 was a student member of the PPP student wing, and held numerous roles in his local branch.  Prior to 2005, Applicant 1 was politically engaged.  In or around 1999, the applicant was briefly arrested and detained during a political protest.

    After graduation, the applicant was briefly a full member of the PPP.

    During his period of employment in Pakistan between 2006 and 2010 the applicant experienced harassment and intimidation from agents of harm associated with the PML, particularly at election times, as were other memers of the applicant’s extended family.

19. It is potentially of significance that the majority of the applicant’s claims for protection relate to events which occurred prior to his original arrival in Australia on [date] May 2011.

20. During his protection visa interview on 31 May 2016 the applicant stated that he had not been physically harmed for the essential and significant reason of his political involvement in Pakistan prior to leaving.  The delegate expressed dissatisfaction with the applicant’s level of knowledge and detail in describing his previous involvement with the PPP in Pakistan during the Protection visa interview.[1]  I further note that the delegate raised concerns about the applicant’s repeated returns to Pakistan and his delay in seeking protection in Australia in that these facts are not necessarily consistent with a well-founded fear of persecution in Pakistan.[2]

    Subsidiary claims

    [1]Record of Decision at (9)–(10).

    [2]At (10)–(11).

21. At the second hearing on 23 July 2020 I asked Applicant 2 about the basis on which she was seeking protection in Australia.  Applicant 2 stated that she did not have any claims of her own to present for determination in the context of this review application.  She further stated that she was entirely relying on the claims made by her husband, Applicant 1.

22. According to Applicant 2, she and Applicant 1 entered into a traditionally arranged marriage in Punjab Pakistan on [date] February 2013. The necessary arrangements have been made over a two-month period prior to the wedding.  I accept this evidence as being factually accurate.  I questioned Applicant 2 about when she discovered the nature of her husband’s claims for protection in Australia. Applicant 2 stated that she was only told about the harm that Applicant 1 claims to fear in Pakistan sometime after her arrival in Australia on [date] May 2014.  I accept this evidence as being factually accurate.

23. I also questioned both Applicant 1 and Applicant 2 about the claims of protection that they wished to make and maintain with respect to Applicant 3, the dependent child of the relationship born in Australia.  Both Applicant 1 and Applicant 2, separately, confirmed that Applicant 3 relied entirely on the claims made and maintained by Applicant 1 and had no separate claims for protection in Australia.  I accept that this evidence was given in good faith by both parents.

24. On the basis of the foregoing, I find that the relevant claims with respect to this application for review are those made and maintained by Applicant 1.

    Delegate’s decision

25. In a written decision dated 27 October 2016, a delegate of the Minister refused to grant the applicants a protection visa.  The delegate summarised their reasons for refusing to grant the visa as follows:

    I note my findings above, where I have found the applicant was not a youth leader with the PPP was rather a supporter of the PPP nor did I accept he was involved in any protests in 2008. I also did not find the applicant will become an active supporter if he returns to Pakistan. I also had concerns regarding the delay in the applicant’s lodgement of his protection claims and his return to Pakistan without being directed by the authorities. In light of all of the above, I do not find the applicant’s fear of harm is not well-founded [sic]. I also find the applicant will not face a real chance of being persecuted for refugee Convention reason upon return to Pakistan. [3]

    [3]At [24]–[25].

    Tribunal decision in summary

26. I have considered the applicants’ claims in detail, including interviewing the applicants at two hearings.  I note that the delegate failed to adequately address possible subsidiary claims of both Applicant 2 an Applicant 3.  The applicants’ claims (and the evidence provided in support of those claims) was unreasonably vague, internally inconsistent and lacking in credibility in material respects. Nothing in the evidence presented to the Tribunal by Applicant 1 suggests that the delegate’s conclusions relating to the applicant’s claims for protection were made unreasonably.  Indeed, the evidence provided at the hearings by applicant 1 raises further credibility questions in addition to those identified, reasonably, by the delegate in the record of decision.  

27. Despite claiming to have begun fearing persecution in Pakistan for the essential and significant reason of refugee protection grounds no later than 2008, Applicant 1 delayed seeking protection in Australia between his arrival in this country on[date] August 2011 and his application for protection on 16 October 2014.  During this period, he applied for a second student visa and then ceased complying with the requirements of the visa on 8 July 2017.  Applicant 1 offered no reasonable explanation for this delay.

28. Further, despite his stated fear of persecution in Pakistan since 2008 Applicant 1 subsequently returned to that country on 2 occasions.  He also failed to disclose his reasons for seeking protection in Australia to his new spouse for approximately 18 months, and then only after she had departed Pakistan for an unfamiliar country.  This conduct on the part of Applicant 1 is not consistent with an applicant holding genuinely subjective fear of persecution in a country.  I also note that, by the applicant’s own evidence, he has taken no interest in any form of politics since the birth of his daughter, Applicant 3. 

29. Based on these considerations and findings, I do not accept that the applicants face a real chance of serious harm in Pakistan for the purposes of s.36(2)(a) of the Act for the essential or significant reason of any of the criteria in Article 1A(a) of the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (the refugee criteria).  Also, given the foregoing facts, I am not satisfied that the applicants face a real risk of significant harm on return to Pakistan now or in the reasonably foreseeable future for the purposes of s.36(2)(aa) of the Act.

30. Accordingly, the applicants do not engage Australia’s protection obligations under the Act, and the delegate’s decision is affirmed.

    DECISION MAKING FRAMEWORK

    President’s Directions

31. I have had regard to the President’s Directions including ‘COVID-19 Special Measures Practice Direction – Migration and Refugee Division’, 27 April 2020;[4] and, ‘Conducting Migration and Reviews’, 1 August 2018, with particular regard to the Directions:

    ·     That “members are to take all reasonable steps to complete cases allocated to them as quickly as possible”;[5]

    ·     That “Generally, in reviewing a decision to refuse the grant of a protection visa, members should address only those elements of the criteria for a protection visa that are necessary to resolve the application on review.”[6]

    [4]Cf: [5.12] and [5.17].

    [5]At [2.1] (consistent with AAT Act 1975 s.33(1)(b)).

    [6]At [8.1].

    Applicable legal principles

    Applicant credibility

32. The task of fact-finding may involve an assessment of an applicant’s credibility. In this context, I have been guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions.[7]  In these and other decisions, the courts have made it clear that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility.

    [7]E.g.: Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.

33. In Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton,[8] Foster J stated that “care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.”[9]  Numerous decisions have endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

    [8](1996) 40 ALD 445.

    [9]At [482].

34. I have also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors,[10] and the comments of the High Court on the correct approach to determining findings on credibility.  Kirby J observed:[11]

    First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is undesirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the “real chance” of persecution required by Chan.

    [10](1996) 185 CLR 259.

    [11]At [25].

35. The Tribunal is not required to accept uncritically any or all allegations made by an applicant.  Nor are decision makers required to have rebutting evidence available before they can find that a particular factual assertion by an applicant has not been made out, or are they obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality.  In Chand v Minister for Immigration and Ethnic Affairs, the Full Court of the Federal Court observed that “where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved.  The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another.”[12]

    [12][1997] FCA 1198 at [11].

36. Nevertheless, as Burchett J counselled,[13] it is necessary to:

    … understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies.  Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies.  The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.

    [13]In Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 at [5].

37. The Full Court of the Federal Court has noted that “refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.”[14] 

    [14]In Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167.

38. Nevertheless, there is no rule that a decision-maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies.[15]  Nor is there a rule that a decision-maker must hold a “positive state of disbelief” before making an adverse credibility assessment in a refugee case.  That being said, if the Tribunal has “no real doubt” that the claimed events did not occur, it will not be necessary to consider the possibility that adverse findings might be wrong.[16] 

    [15]Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at [558–9].

    [16]Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [241] per Sackville J (with whom North J agreed).

39. In addition, I am aware that if a Tribunal makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true.[17]  This is sometimes referred to as the “what if I am wrong” consideration.  I am also mindful of the observations of Gummow and Hayne JJ in Abebe v The Commonwealth of Australia:[18]

    … the fact that an Applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising.  It is necessary always to bear in mind that an Applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.

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

    [18](1999) 197 CLR 510 at [191].

1. On the other hand, a decision-maker is entitled to consider whether an applicant genuinely, subjectively has a well-founded fear of persecution before examining whether such a fear is subjectively held, or to proceed on the assumption that such a fear is held.

2. If a decision-maker finds on the evidence that the applicant does not genuinely hold a subjective fear there will be no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claim are satisfied.  In this respect, in Iyer[19] the Tribunal there had concluded that certain return visits to Sri Lanka from Australia were voluntary.  This (so the Tribunal reasoned), supported a conclusion that the applicant did not have the necessary fear of persecution required by someone seeking refugee status. 

   [19]Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]–[34].

3. The Court on review, confirmed that the Tribunal had applied the correct principles concerning the applicant’s fear of persecution and stated that it did not need to go any further in its analysis of the basis of the claim.  This decision was affirmed on appeal.[20]  I recognise that such a principal cannot be relied upon as an iron rule.  However, it is potentially a useful illustration of the kind of weighing process that an objective decision maker must make when making findings relevant to the existence of a well-founded fear of persecution.  Credibility findings are, in practice, often central considerations when assessing an applicant’s claims or evidence.  This is particularly the case when assessing an applicant’s core or ‘material’ substantive claims or evidence.

   [20]Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also SDAQ v MIMA (2003) 129 FCR 137 at [19] per Cooper J.

4. In this respect, I note the comments of Flick J,[21] in SZSHV v MIBP [2014] FCA 253 (by reference to the former Refugee Review Tribunal) as follows:

   31In the context of judicial review being undertaken of a decision of a Refugee Review Tribunal, adverse findings as to credit by the Tribunal do not shield its decision-making processes from scrutiny.  Thus, for example, in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [78], (2013) 212 FCR 99 at 121, Robertson J observed:

   [78]It is not, in my opinion, the case that a finding in relation to credit may never found a conclusion of jurisdictional error, particularly where a finding on credit on an objectively minor matter of fact is the basis for a tribunal’s rejection of the entirety of an applicant’s evidence and the entirety of the applicant’s claim.

   [21]Cited with approval by McKerracher, Griffiths and Rangiah JJ in CQG15 v MIBP [2016] FCAFC 146 at [41].

5. As highlighted by the Court in CQG15 v MIBP [2016] FCAFC 146:[22]

   … Recitation of the expression that credibility is a matter [/question of fact for the Tribunal] par excellence should not be understood as precluding challenges to credibility or, indeed, other findings of fact on any basis.  While there is no suggestion in this case that this is what has occurred, the frequency of adoption of the expression should not obscure the availability of challenges on recognised grounds, such as:

   (a)      failure to afford procedural fairness;

   (b)      reaching a finding without any logical or probative basis;

   (c)      unreasonableness; and/or

   (d)      jurisdictional error as discussed by Flick J in SZVAP.

   [22]At [38] per McKerracher, Griffiths and Rangiah JJ [parentheses added].

6. The particular reference by their Honours in the extract above at (b) to the importance of making findings of fact on logical or probative grounds with specific reference to credibility findings is telling.  In this respect, I note that, later in the same judgement,[23] the Court referred in a generally approving way to an observation by Gordon J in SZLGP v MIC [2008] FCA 1198 about the United States 9^th Circuit Court of Appeals decision in Stoyanov v INS[24] (Stoyanov):

   The Court in Stoyanov went on to state that “minor inconsistencies cannot support an adverse credibility finding” and that “trivial errors by an asylum applicant do not constitute a valid ground upon which to base a finding that an asylum applicant is not credible”: 

   [23]CQG15 v MIBP [2016] FCAFC 146 at [43].

   [24](9^th Cir 1999) 172 F3d 731. Extract citation reference is to Stoyanov at [736].

7. I note also, that a number of judicial caveats have been expressed when considering the manner in which credibility findings may be made in protection visa reviews and the ultimate use to which they may be put, either deliberatively or determinatively as the case may be.  Firstly, as the Federal Court observed in CQG15 v MIBP [2016] FCAFC 146 at [59]–[60], one must be mindful of:

   … the conclusion reached by the High Court in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611, particularly (at [131]), where Crennan and Bell JJ stated that if reasonable minds could differ as to the conclusions to be drawn from the evidence, illogicality or irrationality or unreasonableness could not arise simply because one conclusion had been preferred to another possible conclusion.

   In Minister for Immigration and Border Protection v SZUXN [2016] FCA 516, Wigney J collected the following relevant principles (at [52] and [54]-[56]):

   52As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 (at 22-23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.

8. Consideration of how credibility findings might be affected by legal unreasonableness was also considered by the Federal Court in the more recent case of BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184. The Court made the following observations of utility:[25]

   32First, the relevant question for the AAT under ss.36(2)(a) and (aa), 65 and 415 of the Act is whether it is “satisfied” that the criteria for a protection visa are met and as a consequence the decision of the AAT is subjective in nature:  Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 275-277 (Brennan CJ, Toohey, McHugh and Gummow JJ); and W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679; (2001) 185 ALR 703 (W148/00A) at [65] (Tamberlin and R D Nicholson JJ).

   33Secondly, the fact that a decision-maker has expressed her or his reasons sequentially does not mean that the decision-maker has decided each factual issue in isolation from the others.  To the contrary, “[o]rdinarily they review the whole of the evidence, and consider all issues of fact, before they write anything.  Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole”:  S20/2002 at [14] (Gleeson CJ); see also at [49] (McHugh and Gummow JJ); and Chen v Minister for Immigration and Citizenship [2011] FCAFC 56 (Chen) at [33]-[35] (the Court). Indeed, there is no necessary error in the Tribunal not considering corroborative material until after it has reached its conclusions of credibility where the Tribunal has (lawfully) found that “the well has been poisoned beyond redemption”:  S20/2002 at [49]; and Chen at [35].

   34Thirdly, notwithstanding the subjective nature of the assessment required by the AAT and the factual nature of an assessment of credibility, the AAT’s decision must still be made within the bounds of legal reasonableness. 

   [25]Per Rangiah, Perry and Bromwich JJ.

9. In addition to the foregoing judicial guidance, I have also considered the Migration and Refugee Division “Guidelines on the assessment of credibility”, issued in July 2015, which provides:

   It is in the nature of an application for protection that determinations are made at least in part on an assessment of the applicant’s credibility and on the credibility of the claims themselves.[26]

   [26]At [8].

10. And:

    In relation to protection visa applications made on or after 14 April 2015 if an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made and the tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised or the evidence was not presented before the primary decision was made the tribunal must draw an inference unfavourable to the credibility of the claim or evidence.  This refers to the requirements at section 423A of the Act.[27]

    [27]At [13].

11. The Guidelines also advise that:

    Procedural fairness requires an applicant to be made aware of the case against him or her to be provided with an opportunity to respond to the issues arising to his or her case.  The tribunal is under a duty to ensure that an applicant has an opportunity to be heard on the issues to be decided by the tribunal.

    A Member should maintain and be seen to have an open mind when conducting a hearing.  There is a duty to clearly and unambiguously raise with the applicant the critical issues on which his or her application may depend.  An applicant may be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question.

    However, the tribunal should take care to ensure that vigorous testing of the evidence and frank exposure of its weaknesses does not result in the applicant being overborne or intimidated.[28]

    [28]At [17]–[19].

12. With respect to contradictions, inconsistencies and omissions, the Guidelines state:

    Contradictions, inconsistencies and omissions may arise in the evidence before the tribunal. 

    The tribunal will consider all the evidence before it assesses whether contradictions or inconsistencies are material to an applicant’s claims and would lead to an adverse credibility finding.[29]

    New claims and evidence

    [29]At [27]–[28].

13. Applicants are required to present all claims and evidence to the primary decision-maker unless they have a reasonable explanation for not doing so.

14. This principle (since enshrined at s.5AAA of the Act for applications made after 14 December 2014) is that it is the responsibility of an applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. 

15. On this view a tribunal does not have any responsibility or obligation to specify or assist in specifying particulars of the claim or to establish or assist in establishing a claim.  This is consistent with the well-settled proposition, referred to above, that it is for an applicant to make their own case.[30]

    [30]Prasad v MIEA (1985) 6 FCR 155 at 169–70; SZBEL v MIMIA (2006) 228 CLR 152; at [40]; Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60 (Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ, 8 October 2003) at [57] and [1]; WAKK v MIMIA [2005] FCAFC 225 (Marshall, Mansfield and Siopis JJ, 1 November 2005 at [73]; MIMA v Lay Lat (2006) 151 FCR 214 at [76]; and Abebe v Commonwealth (1999) 197 CLR 510 at [187].

16. As a general principle, therefore, applicants are expected to present their case in full before the primary decision-maker and not to wait until after the primary decision has been made.  Two consequential considerations here are particularly relevant:

    i.The ongoing requirement under s.104 of the Act for an applicant to ensure that their relevant details are correct and then to change any incorrect information at the first reasonable opportunity; and

    ii.The possibility that an adverse inference might be drawn about the credibility of an applicant’s claim or evidence where an applicant raises a claim or presents evidence that was not put forward before the primary decision was made. 

17. In such cases, where a tribunal is satisfied that the applicant does not have a reasonable explanation as to why a claim was not raised or evidence not presented before the primary decision, it may be open to a tribunal to draw an inference unfavourable to the credibility of the claim or evidence. 

18. In making such an assessment, I am mindful of the specific considerations mentioned in the President’s Direction relating to opportunities to raise a claim or evidence, changes in the available country information or other relevant information, relevant changes in the personal circumstances of the applicant or diagnosed medical conditions that may have impaired an applicant’s memory or self-expression.[31]

    [31]At [9].

    Criteria for a protection visa

19. 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, the applicant 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.

20. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

21. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

22. 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 a protection 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 the applicant 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’).

23. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Hearings

    First hearing

24. Early in the first hearing with the Tribunal on 23 September 2019, it became apparent that the applicants lacked a copy of any documents relating to their application for protection. After advising the applicants that they could obtain a copy of these documents from the Department by means of a freedom of information (FOI) application, the hearing was adjourned to allow the applicants an opportunity to do this.

25. As discussed above, the first hearing was resumed by telephone on 31 March 2020.  Shortly after proceedings commenced, it became apparent that Applicant 2 was not aware that a hearing had been scheduled or that she might be required to give evidence. After explaining why the circumstances were unacceptable and providing guidance about how the next hearing would be conducted, the hearing was concluded.

    Second hearing

26. I exercised my discretion to hold the telephonic second hearing via MS Teams.  The hearing was held during the COVID-19 pandemic.  I determined that it was reasonable to hold a hearing in this manner, having regard to the nature of this matter and the individual circumstances of the applicants. 

27. In making these alternative arrangements, I had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted remotely.  I was also mindful of the fact that two adjournments were previously given in proceedings; firstly, for a period of six months to allow the applicants to lodge an FOI application with the Department for access to their protection application documents; and, second due to uncertainty about Applicant 2 not having knowledge of the calling of the resumption of the first hearing. 

28. I am satisfied that the applicants were given a fair opportunity to give evidence and present arguments in the format which was utilised.  I was able to interact with the applicants and maintain appropriate communication throughout the proceedings.  In addition, the applicants were assisted, as required, by an interpreter fluent in the Urdu and English languages.

    Claims

29. At the second and final hearing, I took the applicants through their claims for protection.  As discussed above, I confirmed with Applicant 2 that she had no claims for protection other than those advanced by Applicant 1 on behalf of the family unit.  I further sought clarification from both Applicant 1 and Applicant 2, separately, about the claims for protection advanced by Applicant 3, being the natural child of both Applicant 1 and Applicant 2.  

30. Both Applicant 1 and Applicant 2, separately, confirmed that Applicant 3 had no claims for protection other than those advanced by Applicant 1 on behalf of the family unit.  I am satisfied, based on the evidence presented, that Applicant 3 relies entirely on claims for protection advanced by Applicant 1 on behalf of the family unit and relies upon no claims for protection other than these.  Further, I am satisfied on the evidence presented that Applicant 3 would not be separated from her primary caregivers on the basis of anything flowing from a decision on this application for review.

31. As discussed above, the claims for protection asserted by Applicant 1 and relied upon by all members of the family unit may be summarised as follows:

    The Pakistan People’s Party (PPP) is the party of former President Benazir Bhutto;

    President Bhutto was democratically succeeded by President Nawaz Sharif in 1997 but he was deposed in a military coup in 1999.  Former President Bhutto was eventually assassinated at a political rally December 2007 prior to an election which resulted in the return to power (briefly) of the PPP at a national level.  Pakistan politics has been characterised by instability and violence.

    Gujranwala is a stronghold of support for the opposition Pakistan Muslim League Nawaz Party (PML).

    Partisans acting in support of the major parties in Pakistan participate in acts of politically motivated violence, particularly around election periods.

    While an undergraduate, Applicant 1 was a student member of the PPP student wing, and held numerous roles in his local branch.  Prior to 2005, Applicant 1 was politically engaged.  In or around 1999, the applicant was briefly arrested and detained during a political protest.

    After graduation, the applicant was briefly a full member of the PPP.

    During his period of employment in Pakistan between 2006 and 2010 the applicant experienced harassment and intimidation from agents of harm associated with the PML, particularly at election times, as were other members of the applicant’s extended family.

1. After taking the applicant to his original, historic claims for protection, I asked Applicant 1 to explain the nature of his fears of persecution in Pakistan, in particular when these fears arose and the agents of harm he identified as being motivated to target him for serious or significant harm in that country.  In response the applicant stated that supporters of opposition parties became his enemies before 2011 due to his support for the PPP.

2. I pointed out to the applicant that it was his responsibility to present his claims for protection and supporting evidence in as much detail as possible.  I pointed out that the vagueness of his evidence was identified as one of the reasons why his claims for protection were not accepted as genuine by the delegate in the record of decision dated 27 October 2016.  I also pointed out that, since that time, he provided nothing in the way of supporting evidence to address the credibility concerns that had been raised by the delegate more than four and a half years previously.  I indicated to the applicant that the delegate’s findings that the applicant’s claims and evidence appeared to be unreasonably vague and lacking in detail appeared to be reasonable.

3. Applicant 1’s only response to my concerns was that it was not possible for him to obtain evidence supporting his claims.  Based on Applicant 1’s responses, I am not satisfied that he has made any attempt at any time to secure any form of supporting evidence in relation to his claims for protection.  I further note that Applicant 1 made no attempt to obtain a copy of his protection visa application documentation by means of an FOI application despite having been given an opportunity by me to do so and lengthy adjournment for that purpose in September 2019.  An applicant who genuinely fears harm on return to their country of origin, particularly where the welfare of a dependent child is concerned, may be expected to take some steps to obtain relevant information and evidence in support of an application for protection lodged almost 4 years previously.  Despite this, I note that Applicant 1 has taken no such steps with respect to this review application.

4. According to the applicant his mother resides in Peshawar, Pakistan and his 2 married sisters, together with their children, also live in Pakistan. The applicant’s 2 married brothers, together with their children, live and work in [City 1 in another country].  At one point in the hearing the applicant stated that his brothers had fled to [City 1] to escape persecution, at another point in the hearing he suggested that they resided and worked in [City 1] for economic reasons.  Regardless of the true facts, it is clear that the applicant does have access to potential sources of information in Pakistan who might reasonably be expected to assist him in securing appropriate evidence to support his claim for protection.

5. During the hearing, Applicant 2 confirmed that she had no knowledge of Applicant 1’s claim for protection prior to her arrival in Australia in May 2014.  Further, on questioning, it became apparent that Applicant 2 had no knowledge of the nature of the protection visa prior to attending Tribunal hearings.

6. After explaining to the applicants the forward-looking nature of the review decision before the Tribunal, I asked Applicant 1 if he had been involved in PPP politics while resident in Australia.  Applicant 1 stated that he had not been affiliated with any political parties since the birth of his daughter [and] that he had no intention of ever being involved in party politics in the future.

   Findings

7. On the basis of the foregoing evidence I find that Applicant 1 was a low-level supporter of the PPP in Pakistan prior to 2008.  During this time, he experienced a low level of discrimination and harassment for the essential and significant reason of his support for the PPP in that country. 

8. At some point between 2008 and 2011, Applicant 1 ceased to be involved in or engaged with Pakistan politics at any level.  By the time Applicant 1 departed Pakistan to commence studies in Australia on [date] May 2011, he feared no harm from any person for any reason in that country.

9. On the basis of his multiple return visits to Pakistan; the renewal of his Student visa in Australia by application dated 30 August 2012; his failure to disclose any history of or continuing fear of politically-motivated harm in Pakistan to his dependent spouse prior to applying for protection in October 2014; and, given the lengthy delay evident in Applicant 1’s conduct in seeking protection given also his failure to offer a reasonable explanation for this delay, I find that Applicant 1’s claims for protection are lacking in credibility and without merit.  Accordingly, I find that the applicants do not hold a genuinely subjective fear of persecution in Pakistan for any reason or from any person now or in the reasonably foreseeable future.

10. For the foregoing reasons, the applicants do not meet the requirements for a protection visa on the basis of s.36(2)(a) of the Act (the refugee criteria).  Based on the same credibility findings, I am not satisfied that the applicants are persons in respect of whom Australia has protection obligations for the purposes of s.36(2)(aa) of the Act (the complementary protection criteria).

11. It follows that the applicants are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

    DECISION

12. The Tribunal affirms the decision not to grant the applicants protection visas.

    Dr Colin Huntly
    Member