1620077 (Refugee)

1620077 (Refugee) [2020] AATA 1718 (2 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1620077
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Luke Hardy
DATE:2 January 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 02 January 2020 at 10:31am
CATCHWORDS
REFUGEE – protection visa – Pakistan – harassment and threats by political group and colleagues – association with leader of ‘land mafia’ – harassment and threats to applicant and brother by subordinates or rivals of associate – associate’s death in police shootout – credibility – inconsistent evidence – history of visa applications, reviews and application for ministerial intervention, and periods as unlawful non-citizen – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Sun v MIBP [2016] FCAFC 52
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to 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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 11 November 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
[The applicant] is a citizen of Pakistan, born in [month year] and formerly a resident of Karachi. He first arrived in Australia [in] April 2009 on a student visa and departed for Pakistan [in] February 2010. He re-entered Australia [in] March 2010 and departed for Pakistan again [in] May 2012. He stayed five months and then re-entered Australia [in] October 2012. His student visa ceased on 3 February 2013. On the day prior to that, 2 February 2013, he lodged an application for a further student visa. The Minister’s delegate in that matter decided to refuse to grant the visa on 27 August 2013 on the basis that [the applicant] did not satisfy the requirements of cl.572.223 of Schedule 2 to the Regulations because he had not provided evidence of his financial capacity to undertake the proposed study and residence.
[The applicant] sought review of that decision in the former Migration Review Tribunal, which affirmed the delegate’s decision [in] July 2014.
[The applicant] then sought Ministerial intervention to have the MRT’s decision substituted with a favourable decision but his request was finalised on 24 February 2016 as “not considered”.
[The applicant] held eight bridging visas since the expiry of his last student visa on 3 February 2013. However, he was unlawfully present in Australia for three periods: [a period in August 2014]; [November] 2014 to [December] 2014; and for a period commencing [in] March 2016. He lodged a protection visa application on 18 March 2016 but it was deemed invalid on the basis of a failure to pay the filing fee. He was then located at his residential address by Compliance officers and detained pursuant to s.189 of the Act. He lodged a valid protection visa application on 5 April 2016. He also applied for a bridging visa E which the delegate in that matter refused on 7 April 2016. However, this Tribunal, differently-constituted, set aside that decision on 18 April 2016.
The delegate in the present matter refused [the applicant]’s protection visa application on 11 November 2016. [The applicant] then sought review by this Tribunal and the matter was constituted to me as presiding Member on 9 October 2019.
[The applicant] attended a hearing before the Tribunal on 19 December 2019 to give oral evidence and present arguments. He was accompanied by his adviser, a registered migration agent. He did not require an interpreter and it is my confident view that he suffered no detriment from the hearing being conducted in English.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the “refugee” criterion, or on other “complementary protection” grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, he or she is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she is outside the country of his or her former habitual residence and, owing to a well-founded fear of persecution, is unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (“the complementary protection criterion”). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues
The main issue in this case is whether, on accepted facts, [the applicant] is entitled to protection in Australia as a refugee or, if not, on complementary protection grounds.
For the following reasons, I have concluded that the decision under review should be affirmed.
Claims to the former Immigration Department
In his original protection visa application, [the applicant] claimed he was raised in Karachi where his father was stationed with the Pakistani [Armed Forces]. He claimed he made friends with a fellow student [Mr A] when they were in Year 10 of secondary school. He claimed they went on from the same school to study concurrently at different colleges but remained friends. He claimed [Mr A] joined the student wing of the Awami National Party (ANP) and that he himself joined the student wing of the Pakistan People’s Party (PPP). He said this caused tension between [Mr A] and himself until he told [Mr A] that he had only joined the PPP to avoid being harassed by its members.
[The applicant] claimed that, after he started working, members of the Mohagi Qumi Movement (MQM) coerced protection money from his boss. He claimed that in 2007 he found himself in an acrimonious conversation with some of them and was threatened. He claimed he later changed employers where his diligence and success in identifying accounting anomalies earned preferment that other employees at the same firm envied. He said that some of them threatened him.
[The applicant] claimed that he became fed up with the way he was being treated and decided to come to Australia. He claimed he heard about Australia’s protection visa regime around the time he completed his first course, evidently in October 2009 (see verso f. 81 of the former Immigration Department’s file). He claimed he considered lodging a protection visa application but decided not to do so because, he said, he did not want to be prevented from returning to Pakistan to see his family whenever he might wish to do so. As noted, he later visited Pakistan briefly in 2010 and again in 2012.
[The applicant] claimed that when he arrived in Karachi in May 2012, to be with his terminally ill father, he encountered some people who told him “very disturbing things about [Mr A].” He said he therefore went to see [Mr A] to talk about what he had heard. He said [Mr A] told him of having accepted the leadership of the “Land Association”, a euphemism, he said, for “land mafia” in Pakistan, and now controlled the association’s operations in half of Karachi. He claimed that “the peoples who was watching us talking, they thought I have an authority [over] [Mr A]. So after [the] very second day they found me again and they made some demands for [Mr A] and [threatened] me of my life.” He said he went to see [Mr A] about these threats and demands whereupon [Mr A] advised him “to move or go to Punjab” which, I note, is about 1,000 km away. He claimed he then went back home, packed up everything and moved his whole family including his dying father and moved to “my village” [Name] in Punjab.
[The applicant] then said that [Mr A] was killed in June 2012; he provided links to a number of independent reports regarding the killing of [Mr A] at [age] years of age. I note that in mid-2012 [the applicant], born in [year], would have been almost [age]. [The applicant] also submitted two printouts of news reports of [Mr A]’s death, one of them detailing that it occurred during a shootout in [a] Karachi suburb, between the police and himself. [The applicant] said he was too busy looking after his ailing father in Punjab to return to Karachi for [Mr A]’s funeral.
[The applicant] claimed he returned to Australia [in] October 2012 and later lodged his new student visa application; that would have been on 2 February 2013. He said his father died intestate while his student visa application was being processed and that all this prevented the lodgement of financial documents in support of the application. He said that at the time, his plan was to complete his studies and then get a job in [Country 1].
Meanwhile, claimed [the applicant], his younger brother started receiving threats directed at both of them. He claimed his younger brother was unable to travel to Karachi and therefore had had to abandon the family’s Karachi house notwithstanding its high market value. He did not provide any detail in support of this claim. However, he indicated that this was the reason why he lodged his protection visa application in March 2016 only to be advised that it was invalid for want of funds to meet the processing fee. He mentioned his detention and his successful protection visa application lodgement in April 2006.
Summarising [the applicant]’s substantive claims up to this point:
·     [The applicant] first fled Pakistan to get away from disgruntle colleagues who threatened him with harm over his ethical approach to his work;
·     [The applicant] found out about the availability of protection visas in Australia for people fearing serious and significant harm in their respective countries of nationality but decided not to apply for a protection visa because he wanted the option of being able to visit Pakistan whenever he wished, and chose to continue his studies here in Australia instead;
·     During his next visit to home town Karachi [the applicant] visited his old friend [Mr A] after hearing disparaging talk about him, and was somehow witnessed meeting and talking with [Mr A] by these enemies who, he suggested, inferred that he was a person with influence or authority over [Mr A] (not providing any detail as to how he knew or suspected what was going on in their minds);
·     [Mr A] recommended to [the applicant] that for his own safety from being harmed by those enemies of [Mr A]’s he should move from Karachi to Punjab;
·     [The applicant] followed [Mr A]’s advice moving his whole family including his terminally ill father to a village in Punjab province to avoid being harmed by [Mr A]’s enemies;
·     [The applicant] reports no harm or threats of harm from his former colleagues, leaving the potentially sound impression that all he had to do to avoid being harassed by them was to leave their common place of employment;
·     [The applicant] returned to Australia after five months, most of those five months spent in Punjab where nothing potentially significant happened to him, and proceeded unsuccessfully to try to extend his leave to remain here as a student;
·     [The applicant]’s brother was harassed and threatened, apparently by [Mr A]’s enemies, during a visit to the former family house in Karachi, which the family found itself unable, under this pressure, to sell;
·     After more than three years back in Australia, unsuccessfully seeking a further student visa and becoming an unlawful non-citizen here a number of times, [the applicant] lodged a valid protection visa application, on his second attempt at doing so.
Evidence to the delegate
For the purposes of this review, [the applicant] submitted to the tribunal a copy of the primary decision record in this matter in which the delegate summarised evidence given at interview and cited issues critical to the decision made.
At the protection visa interview on 2 November 2016, [the applicant] told the delegate that the last time his brother was threatened was in Karachi in the middle of 2013, a year after the death of [Mr A]. He said that the substance of these threats was delivered “by men who told him they wished to see neither him nor [the applicant] in Karachi again and told him to leave.”
The delegate asked [the applicant] why he had originally travelled to Australia in 2009 and [the applicant] said that his purpose had been to study. He said his father, meanwhile, had become unhappy with the activities of his friends such as [Mr A] and had wanted him to be away from their sphere of influence. [The applicant] claimed he used to talk politics with [Mr A] and that this gave his father concern. He did not evidently refer at this particular point to having left Pakistan to get away from hostile colleagues. Meanwhile, I note, [the applicant], for his own part, evidently never had anything to do with the ANP in particular, or politics in general, in Pakistan.
[The applicant] did, however, tell the delegate that he used to chat about politics with [Mr A].
[The applicant] suggested that he encountered those person who were hostile to [Mr A] after he had visited [Mr A], rather than before, while he was taking his father to hospital and back: now, he evidently told the delegate that these people had first witnessed him chatting with [Mr A] and then soon after accosted him on the street, saying that [Mr A] had interfered in the matter of an arranged marriage by intimidating the parents of the bride-to-be into marrying his, [Mr A]’s, friend instead of the intended groom. He said the pair he met told him to warn [Mr A] to back off, as it were, from this matter, which should have been none of his business.
[The applicant] told the delegate that he moved his family including his invalid father to Punjab and never heard again from the hostile men he had met. He said that [Mr A] was shot [in] June 2012 and that he was too afraid to go to Karachi for the funeral, as well as being busy looking after his sick father.
[The applicant] told the delegate that after he returned to Australia he ascertained (somehow, with no details provided) that [Mr A]’s friend had eloped with the woman whose marriage had been arranged with the other man. On the evidence before me, [the applicant] has no acquaintance whatsoever with any of those people, but he claimed to the delegate that the woman’s family blamed him for the elopement because he was “a friend of [Mr A]’s”. He appeared to suggest here that in having failed in getting [Mr A] to abandon his interference, he was somehow partly to blame for what happened. Meanwhile, I note that [Mr A] only lived 23 days from the time [the applicant] arrived in Pakistan and the day he, [Mr A], died, so it is quite possible that [Mr A]’s alleged influence in the matter was cut short whether he intended to see it through or not.
The delegate asked [the applicant] if he had had any contact with [Mr A] after his shooting and he said he had not. Asked why, he said the reason was that [Mr A]’s death and associated events had turned his life upside down.
The delegate was not satisfied with [the applicant]’s explanation as to why, in the claimed circumstances, he made no contact with [Mr A]’s family. The delegate also was not satisfied, on the facts before her, that the family of the eloping bride would ever have connected him with her daughter’s action, or, for any reason, have transferred their anger towards [Mr A] over to him.
The delegate asked [the applicant] when his brother was last harassed and he said it had been in mid-2013. He claimed to the delegate that old neighbours had seen strangers, who rode motorcycles and carried guns, gathering and carousing in his family’s vacated Karachi home.
The delegate asked [the applicant] if he could relocate safely and practicably to somewhere in Pakistan that was away from Karachi. He said there wold be nowhere safe as, eventually, these people would find out where he is living. I note, meanwhile, that nothing potentially significant happened to him in Punjab over the several months he stayed there, and that his brother had not been threatened since 2013.
[The applicant] evidently did not discuss the threats from his co-workers with the delegate.
Evidence to the Tribunal
[The applicant] told me that the people who threatened his brother were the “squatters” in the vacated house in Karachi when he went back there to try and sell it. He said his brother stopped going to the house, which has since been abandoned by the family. He did not suggest that the threats continued after 2013.
[The applicant] told me he spent much more time with his own family in the early part of his return visit in 2012 than with [Mr A].
[The applicant] described the village in Punjab where his father died as the latter’s ancestral village and former home. He said his father had been obliged to live in Karachi because the [Armed Forces] had posted him there and more lately stayed on there for medical treatment. [The applicant] acknowledged that it was his father’s wish to return to the village to die there with his family around him. He said the family moved from Karachi to the village in June 2012, which would appear to have been within the month following his return to Pakistan in 2012. He said his father had talked about doing so for a long time, even though there was better medical treatment in Karachi.

[The applicant] denied that his family started planning the move to Punjab prior to his return visit to Pakistan. Then [the applicant] said that his father had wanted to see his relatives once more for a long time, but did not decide to move until after [Mr A] suggested it, and after [the applicant]’s brother was threatened by the “squatters”. Here his evidence struck me as being confused and inconsistent, because in other evidence to me and to the Department, he said his brother was threatened by the “squatters” after the family had already moved to the ancestral village in Punjab. When I put the apparent discrepancy to [the applicant] for comment, he did not resolve it, merely saying, vaguely, that his father feared for his brother. I asked him if his brother had been facing any harm or harassment in Karachi before the family moved to Punjab and he said, “None.” Hence the suggestion that the family moved due to one of its sons being harassed was misleading.
I asked [the applicant] who harassed and threatened him after he returned to Karachi in May 2012.he said that they were people who worked for [Mr A] in the “Land Mafia” who were jealous of his “easy going” rapport with him. He said that he only ever had social contact with [Mr A] and that these men who worked for him were jealous of that. I expressed surprise that this and he said that at one point he needed [Mr A] to use his clout to ring a hospital to obtain a test for his father, indicating that [Mr A]’s henchmen were jealous of the favour he did.
I then put to [the applicant] that the evidence he had given to the Department seemed very different from all of this, in that he had claimed that it was external enemies rather than cohorts within [Mr A]’s organisation who had harassed and threatened him. This was an invitation for [the applicant] to clarify how these claims might be resolved, but all he said was that [Mr A] “did not know who was against him.” This did not help to resolve the apparent discrepancy in his claims.
I asked [the applicant] why he could not go on living with his mother and brother in his family’s home village and he said he had no connections there. This seemed an odd response because, in addition to his mother and brother, [the applicant] evidently has extended family and other connections with that village.
[The applicant] added that he is not even safe in his family’s village because the father of the eloped bride “can still track [or trace] me” there. I invited him to explain to me how this might not be bald speculation, and he said that the bride’s family think he is a member of [Mr A]’s gang. I asked him how he could know this and he said he had a connection with [Mr A]. He did not explain how that connection had become perceived, in the eyes of the bride’s family, as a significant one.
I asked [the applicant] if he could provide any supporting material at all that might connect him as an acquaintance, friend or close contemporary of [Mr A]. He said that they did not use mobile telephones. I asked him if there would be any photographs or other documents he might be able to access to corroborate his claim to have been acquainted with [Mr A] and he indicated that there were would be none.
I asked [the applicant] for an update regarding his brother’s circumstances. He said his brother is currently studying [Subject 1] but would prefer to switch to [Subject 2]. He said his brother lives with his mother. He said they own their house there. He said the house in Karachi remains unsold. I asked him who might be in that house now and he said he did not know. I asked him if the house might now even be empty and he did not suggest that it is not: he said he still did not want to send his brother there to find out.
[The applicant] confirmed that he was not a target of serious or significant harm prior to his first arrival in Australia. he said his real troubles began during the home visit in 2012.
I asked [the applicant] about his arguably long delay in bringing his protection claims to light after re-entering Australia in 2012. He said he spent the time doing his best to obtain a new student visa so that he would have more freedom to travel back to Pakistan. I put to him that trying to apply for a visa that would let him re-enter Pakistan did not appear consistent with being afraid to return there, and he then said that he wanted to be able to see his family but would not visit them if they were in Pakistan.
[The applicant] also told me he was too afraid of being persecuted to return for his father’s funeral in 2013, even though he was at that time covered by a bridging visa that would have allowed him to leave and re-enter Australia. However, he went on to say, later in the hearing, that at as soon as his father died, his accounts and property were frozen pending probate and settlement of his estate and that this all happened just when he was still applying onshore for his new student visa, which was ultimately refused because he was unable to meet the visa’s financial requirements. It struck me from all this that he had a separate reason for not being able to depart Australia at that time.
I asked [the applicant] if he could provide any evidence to suggest that his predicament in Pakistan seven years ago has not already long gone away. In reply, he said that he could recall being threatened with assault if he did not fiddle the accounts at his old employer’s, before 2009. He said that it had eventually been better just to quit working at that employer’s. he said that if he returns to Pakistan he will have to wander around looking for a job. He said that while he is doing that, he will “be seen” by the people who threatened to harm him in 2012.
I gave [the applicant]’s adviser some time towards the close of the hearing to make closing comments and oral submissions. In the main, he provided a verbal summary of [the applicant]’s main claims, as discussed above.
Findings in relation to s.36(2)(a) of the Act
In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[1] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[2]
[1] MIMA v Rajalingam (1999) 93 FCR 220.
[2] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[3] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[4]
[3] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70
[4] Sun v MIBP [2016] FCAFC 52 at [69].
Having considered all of the evidence in its entirety, I am not satisfied that [the applicant] is a reliable witness with regard to his substantive claims in this matter.
My findings are cumulative.
I accept that [the applicant] came to Australia on the first occasion in 2009 for the purposes of study. I am prepared to accept that he was harassed and threatened at his former workplace in Karachi but I accept that he overcame that problem, as he told me, simply by quitting the particular job he was doing with the particular company that employed him. I am not satisfied that he needed to flee Pakistan to get away from the bother he described. I am not satisfied that he came to Australia to seek protection from harm he had been facing in the workplace in Pakistan.
I am not satisfied on the evidence before me that [the applicant] seriously entertained the “pros and cons”, as it were, of lodging a protection visa application after his first arrival here. However, I note with interest that he still seriously held onto the option of being able to return to Pakistan not only after his first arrival here but also for a very long time after his second, and I give this factor some weight in my decision overall.
[The applicant]’s claims about the people who threatened him over his association with the late [Mr A] are inconsistent, as shown above. I gave him an opportunity to resolve the inconsistencies but he failed to do so. Accordingly, I am not satisfied that he faced any pressure from any persons or parties over his claimed association with [Mr A]. Since I do not accept his claims about the people who threatened him, I do not accept that anyone tried to tell him to persuade [Mr A] to back off from protecting the alleged eloping lovers. At one Hence I do not accept that the family of the eloped bride, if it exists at all, is aware that [the applicant] exists. Following from this, I do not accept that the family, or such a family, is keeping an eye out for [the applicant] wherever he might try to relocate in Pakistan. My overall impression is that the whole marriage-elopement story is invented, because when I first asked [the applicant] who he feared in Pakistan and why he said, as I have noted, that he feared [Mr A]’s own associates who were jealous of their “easy going” rapport. He seemed only to remember the marriage-elopement story later in the hearing.
Just within the duration of the Tribunal hearing, [the applicant], as shown, provided confused and inconsistent evidence about his father’s reasons for agreeing to relocate to Punjab. On the evidence before me, I do not accept that [the applicant]’s family had no notions or intentions of relocating to Punjab until [the applicant] was advised to do so by [Mr A]. Since I do not accept that [the applicant]’s claims about being endangered due to his contact with [Mr A] in 2012 are factual, I accept only that the decision to relocate to Punjab was at the request of [the applicant]’s father who, sadly, wanted to die in the place where he had been raised amongst people dear to him.
In view of inconsistencies in this evidence, discussed earlier, I do not accept that [the applicant]’s brother was ever harassed or threatened as claimed. I do, however, accept that the brother is studying [Subject 1] but leaning more lately towards [Subject 2], and find that this supports the impression that he is not living under any potentially relevant pressure. Overall, I give weight to the fact that [the applicant]’s brother and mother are getting on with their day-to-day lives in Punjab.
I give some cumulative weight in this matter to [the applicant]’s long delay in bringing his protection claims to light in Australia. Also, I do not accept on the evidence before me that fear of persecution in Pakistan was the reason he missed his father’s funeral.
Whereas I accept evidence to the effect that [Mr A] lived and died more or less as [the applicant] loosely described, I am not satisfied on the evidence before me that they were closely acquainted, let alone with potentially significant implications for [the applicant].
Quite significantly, at least for the purposes of s.36(2)(a), I am not satisfied that any of [the applicant]’s claims have any nexus to s.5J(1)(a) of the Act.
Having considered all of the evidence in this matter in its entirety, I am not satisfied that [the applicant] faces a real chance of being persecuted in Pakistan in the reasonably foreseeable future for any reason cited in s.5J(1)(a) of the Act. His claimed fear of being persecuted in Pakistan is not well founded. He is not a refugee.
For the reasons given above, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Findings in relation to s.36(2)(aa) of the Act
Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).
A person is entitled to protection under s.36(2)(aa) if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
Relevantly, s.36(2)(aa) refers to a "real risk" of an applicant suffering significant harm. The "real risk" test imposes the same standard as the "real chance" test applicable to the assessment of "well-founded fear" in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).
"Significant harm" for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. "Cruel or inhuman treatment or punishment", "degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act.
Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.
Essentially, all three of these definitions require that there be an intention to inflict harm by some act or omission. Torture does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Cruel or inhuman treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Degrading treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Accepting that [the applicant] is a citizen of Pakistan, I find that Pakistan is the “receiving country” in this case.
I find that the harm [the applicant] identifies in his claims appears to include “arbitrary deprivation of life”, “cruel or inhuman treatment or punishment”, “torture” and “degrading treatment or punishment”.
[The applicant]’s claims to complementary protection are essentially the same as his refugee status claims. His claims have failed as refugee status claims for want of any nexus to the five factors cited in s.5J(1)(a) but also, as shown, due to a lack of credibility and/or failure to meet the “real chance” test. In the circumstances, his claims can no more succeed as complementary protection claims.
On the evidence before me I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Pakistan, there is a real risk that [the applicant] will suffer significant harm.
Accordingly, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Other findings
There is no suggestion that [the applicant] satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, he does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Luke Hardy
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2020] AATA 1718

2 January 2020

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