1705443 (Refugee)

1705443 (Refugee) [2020] AATA 5728 (30 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1705443
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Luke Hardy
DATE:30 November 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 30 November 2020 at 12:25pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – political opinion – membership of the Muslim Students’ Federation (MSF) – religion – Muslim – student group physically clashed with other political groups – delay in applying for protection – inconsistent evidence – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
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 28 February 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
[The applicant] is a Sunni Muslim citizen of Pakistan.
[The applicant] first arrived in Australia on a student visa [in] July 2012, having been granted the visa a month earlier. He departed for Pakistan [in] November 2014 arriving there [in] December 2014 and remained there for almost two months, re-entering Australia [in] January 2015.
On 2 December 2015, [the applicant]’s student visa was cancelled, apparently due to unsatisfactory attendance. He successfully sought review of that decision in this Tribunal, but the Tribunal’s 19 August 2016 decision was moot as the visa under review had only been valid to 15 March 2016.
On 20 September 2016, [the applicant] obtained a bridging visa for the stated purpose of departing Australia for Pakistan. Just over a month later, on 27 October 2016, he lodged a protection visa application. The Minister’s delegate interviewed him on 20 February 2017 and refused to grant the visa on 28 February 2017. [The applicant] then sought merits review of that decision.
[The applicant] appeared before the Tribunal, as constituted by me, via telephone on 27 November 2020. The Tribunal hearing was held during the COVID-19 pandemic. I exercised my discretion to hold the hearing by telephone, determining that it was reasonable to do so, having regard to the nature of this matter and the individual circumstances of the applicant. I also 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 by telephone.
The hearing was facilitated by an interpreter, via telephone, in the Urdu-English medium. [The applicant] is represented by a migration agent who did not attend the hearing. [The applicant] frequently volunteered evidence in English, but it was apparent early on that a clearer and more fluent line of communication existed through the interpreter. There were no significant audio issues during the hearing. I am satisfied that [the applicant] was given a fair opportunity to give evidence and present arguments.
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, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if 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 (the Department)
[The applicant] claimed to the Department that he lived all his life at the same address in Sambrial, a suburb of Sialkot, in Punjab province. He claimed that he was a student in Pakistan until his graduation in December 2010. He claimed that he worked as an [Occupation 1] for a private firm straight after finishing his studies in 2010 and up until he departed for Australia.
[The applicant] claimed to the Department that he and around twenty others were members of the Muslim Students’ Federation (MSF) at his college campus. He claimed his role with the group was to organise rallies and recruit new members; however, he told the Department, as noted, that the group only had twenty members.
[The applicant] claimed that the MSF used to make charitable visits to a village called [Village 1] where it sometimes encountered members of another Muslim group called Sipah-e-Sahaba (SeS). He said that non-one in his group knew that the SeS had connections with Jihadists and extremists like the Taliban and the armed Islamist group known as the Lashkar-e-Jhangvi (LeJ). Having regard to an abundance of independent domestic and international reporting, this particular assertion struck me as being somewhat inconceivable, for at the time the SeS had a high level of notoriety in Pakistan as an anti-Shi’a militant group, having been banned by the Pakistan government under Gen Pervez Musharraf back in 2002, in part due to its terrorist activities including violent treatment of Shi’a Muslims.[1] After a short period of reinstatement, the SeS was again banned in 2012.[2]
[1] “Banned Group’s Leader Given Pakistani Parliament Seat After Vote Dispute,” New York Times, 10 April 2014, Banned Group’s Leader Given Pakistani Parliament Seat After Vote Dispute - The New York Times (nytimes.com)
[2] “Pakistan bans Ahle Sunnah Wal Jamaat Islamist group,” BBC News, 10 March 2012, Pakistan bans Ahle Sunnah Wal Jamaat Islamist group - BBC News
Relevantly, DFAT reports:
2.89   Lashkar-e-Jhangvi (LeJ), a Sunni paramilitary terrorist group, conducted seven terrorist attacks in 2018 (compared to 10 in 2017. LeJ faction, LeJ Al-Alami, also conducted 8 terrorist attacks in 2017). LeJ primarily targets Shi’a, especially the Hazara community in Quetta, and also acts against Christians, Ahmadis and Sufi Muslims. In total, the two groups were responsible for killing 132 people. ISKP reportedly supported LeJ as a proxy in Afghanistan to target Shia.
2.90   Several other banned Sunni militant groups continue to operate throughout Pakistan, including Sipah-e-Sahaba Pakistan (SSP, also known as Ahle Sunnat Wal Jamaat or ASWJ) and Jaish-e Mohammad (JeM) (see India-focused Sunni groups). Shi’a militant groups such as Sipah-e-Mohammad Pakistan (SMP) have attacked Sunnis, although Shi’a militancy has declined as the security situation has improved. SMP reportedly acts primarily in Punjab province to attack Sunni militant groups such as LeJ and SSP, and was responsible for targeted killings of Sunnis in Karachi and Quetta in 2014. DFAT is not aware of any major attacks by SMP or other significant Shi’a militant organisations in recent years, although Shi’a have killed suspected Sunni militants.
2.91   The frequency of sectarian attacks has reduced annually since the launch of Zarb-e-Azb and the NAP in 2014. The South Asia Terrorism Portal reports 16 incidents of sectarian violence killed 231 people and injured 691 in 2017, compared with 131 incidents killing 558 and injuring 987 in 2013 (2018 data not yet available). This trend continued in 2018, with a 40 per cent reduction in sectarian violence (12 incidents) compared to 2017…
3.99   Sectarian violence in Pakistan has historically targeted individuals, places of worship, shrines and religious schools, however Shi’a traditionally represented a higher proportion of the casualties (see Security Situation). Shi’a continue to face a threat from anti-Shi’a militant groups, including LeJ, Sipah-e-Sahaba Pakistan (SSP), also known as Ahl-e-Sunnat-Wal-Jamaat (ASWJ), LeJ al-Alami, and other factions of the TTP. The LeJ’s objective is to establish an Islamist Sunni state in Pakistan and seeks to have Shi’a declared ‘non-believers’ or apostates, and to eliminate other religious groups such as Jews, Christians and Hindus.
3.100   The LeJ (see Armed Groups) has claimed several attacks on Shi’a in recent years, particularly Hazaras in Quetta (see Hazaras) and other Shi’a groups in the former FATA and Karachi. In an open letter released in June 2011, LeJ leaders declared their intention to ‘abolish the impure sect’ of ‘Shi’a and Hazara Shi’a.’[3]
[3] DFAT Country Information Report: Pakistan, 20 February 2019.
[The applicant] claimed to the Department that because the SeS wanted to exploit children, the MSF made a complaint to police, whereupon the SeS and the LeJ demanded that he and the MSF withdraw complaints against them, resulting in [the applicant] and others filing a complaint with the police in May 2012. Meanwhile, [the applicant] submitted to the Department a copy and translation of a purported report to the Pakistan police purportedly dated [in] May 2012 in which he appeared to tell a different story to the police: he accused persons he identified as SeS members of having beaten his group with clubs on that day, while his group was on its way to “[Village 2],” until “some other persons [in] command […] managed to save our life…” There appears on the face of it to be some factual contrast between the event described in the purported [May] 2012 report to police and the events described by [the applicant] in his 26 October 2016 statement of claims to the Department.
[The applicant] submitted another factually incongruous document to the Department: a copy of a purported [May] 2012 local newspaper report in which he is described as the leader of the MSF at the time who, on no specific day, was attacked on his motorcycle on the way to [Village 1], not [Village 2].
In terms of their facts, the three accounts of what supposedly happened in the clash with the SeS in May 2012 struck me as being quite mutually exclusive.
[The applicant] further claimed to the Department that he had had two [specified surgical] operations before coming to Australia in 2012.
[The applicant] claimed he finished his studies towards a graduate diploma in October 2014. He claimed he was around that time asked by his local MSF leader to return to Pakistan for an MSF annual meeting. He did not suggest he had been asked to do the same back in 2013. He claimed to the Department that he duly obeyed his MSF leader and returned to Pakistan on 1 December 2014. He claimed that while he was there, the MSF organised for him to have medical check-ups. He claimed that as a result of this, he was advised to have [specified] surgery. He said the surgery was conducted in December 2014.
[The applicant] claimed that while he was back in Pakistan, his local MSF group held a rally against the government and visited villages where the group had previously clashed with SeS members. He said there was a clash with SeS members [in] January 2015 in which four MSF members were injured. He did not suggest in his 26 October 2016 statement of claims that he was involved, let alone injured. [The applicant] also submitted a purported [January] 2015 report to police in relation to this event: in it, he said that he and another person were on their way “to [Town 1]” to join a rally there when they were fired upon by some SeS members. These two reports, the one to the Department and the one purportedly to the Pakistan police, struck me as being more congruous and consistent than the evidence regarding the alleged May 2012 incident. Another purported newspaper article, purportedly dated [in] January 2015, reports that [the applicant] narrowly escaped being shot by unknown persons en route to [Town 1], the unknown persons being accused of being SeS members. Oddly, however, [the applicant] is described in the purported [January] 2015 article as an “active worker” for the Pakistan Tehreek-e-Insaf Party (PTI), whereas he himself claimed no prior association with that party at all. In his 26 October 2016 statement to the Department, he did say that, upon return to Pakistan, he found that his uncle and other MSF members had joined the PTI, but made no suggestion of having joined that party himself, let alone of ever having been an “active member.” Hence there is some incongruity in aspects of the evidence regarding the alleged event of [January] 2015.
[The applicant] submitted some independent reports abut the SeS and other groups in Pakistan.
[The applicant] submitted two photographs of a man in traditional Pakistani dress with an [injury], perhaps a stab would or a bullet wound.
[The applicant] told the Department that his family started to move from place to place to avoid being harmed by the SeS. He said that if he returned to Pakistan he would be killed.
For the purposes of this review, [the applicant] submitted a copy of the delegate’s decision. The delegate gave little to no weight to [the applicant]’s supporting documents citing DFAT information[4] regarding the ease of access in Pakistan to documents that are not genuine.
[4] DFAT Country Information Report: Pakistan, 20 February 2019
Additional independent country information
The MSF is the student wing of the Pakistan Muslim League (PML-N).[5] The PTI and the PML-N are rival parties in Punjab and in wider Pakistan.[6] The PML-N held central government and Punjab provincial control until it lost to the PTI in elections in 2018.[7] On this evidence it is hard to see how [the applicant] and his purported MSF colleagues could have been involved with the PTI, as sometimes claimed above.
[5] “The treatment/detention of members, activists and workers of the Pakistan Muslim League (PML) and, its student wing, the Muslim Student Federation (MSF), by the government and other opposition parties [PAK42531.E],” IRB Canada, 5 May 2004
[6] “PTI struggles to operate in former PML-N den,” Express Tribune, 18 October 2018, PTI struggles to operate in former PML-N den | The Express Tribune
[7] “Democratic transfer of power in Pakistan must continue, says Wells,” Dawn, 7 July 2018,
I have been unable to find any independent evidence of the MSF being under attack from Islamist or terrorist groups in Pakistan. I put this to [the applicant] and all he said was that the MSF is still active in some colleges.
I did locate evidence of the MSF having clashed on campus from time to time, such as in 2012, with relatively more liberal student groups.[8]
[8] Campus violence: Three critical after students’ clash | The Express Tribune, 24 November 2012
Evidence to the Tribunal
[The applicant] told me that he gained his master degree in Australia as well as his graduate diploma.
I asked [the applicant] how he could have continued to be a member of the MSF after he stopped being a student in 2010. In reply he said, “We could stay as long as we want.” He said that an MSF member could be re-elected or reassigned even if he were no longer studying. He did not provide any material to support this claim. In fact, I later went on to refer to the MSF as a very campus-focused organisation and he agreed, saying that it only remained active on some campuses. This information seemed to be at some odds with [the applicant]’s description of his MSF group travelling from village to village to conduct rallies to recruit new members, etc.
At the hearing, as in his 26 October 2016 statement to the Department (at paragraph 18) [the applicant] differentiated himself from even local leadership of the MSF. In this way, his oral and written evidence casts some doubt on the veracity of the reporting in the purported [January] 2015 newspaper article.
I asked [the applicant] if he might be able to provide any evidence of having been a member of the MSF as late as 2014-15. In reply, he said he used to have some supporting evidence but lost it long ago. I asked him to describe what that evidence had been and he said it had been his student registration card. I put to him that that sounded like something issued by his education institution, rather than by the youth wing of a political party, and he said a local leader of the MSF had issued it at some stage before 2010. By this description, the lost evidence could not have been evidence of his ongoing membership beyond 2010 and through 2014-15.
I put to [the applicant] that on the evidence before me there had not been any potentially significant clashes with other groups during the time he remained a student, i.e., up until the end of 2010. In reply, he said this was correct. He said that there were some disagreements but no serious clashes. He said the serious clashes with the fundamentalist Muslim groups began in 2012. He provided no evidence of this, whereas there is some evidence available indicating, as discussed earlier, that the MSF clashed with liberal student Muslim groups in 2012.

I asked [the applicant] about the two photographs. He told me that the two photographs depict a friend in the MSF. He said this “worker” had been hit by a bullet during gunfire in 2015, after he, [the applicant], returned to Australia. He said he did not maintain any contact with the MSF after 2015 because, after being threatened during his visit to Pakistan earlier that year, he lost interest in being a member of the MSF. He repeated this claim a little later in the hearing, saying, “I’m not in contact with anyone.” He acknowledged that now he has finished studying he has no need of belonging to any student organisations. He said he had been young and stupid in the past.
[The applicant] confirmed that when he left Pakistan in 2012 he was fleeing danger. He said that several MSF leaders had by then already fled Pakistan. I asked him if it were not strange, then, that he went back in 2014. In reply, he said that he though the situation had improved. He said his local MSF leader had told him as much.
I drew [the applicant]’s attention to his return visit to Pakistan coinciding with a period when tertiary education institutions are closed for the Christmas-New Year break. He acknowledged this. I asked him if he returned in 2014 for the purpose of reuniting socially with his family after more than two years apart. In reply, he said this was not the reason, stating that the MSF had called him back to attend its meeting in January 2015. Then he said he also went back to spend time with his family.
[The applicant] then proceeded to provide information about his return visit that was at odds with information provided to the Department at paragraphs 18 and 19 of his 26 October 2016 statement of claims. Whereas he told the Department that a medical check-up organised by the MSF while he was back in Pakistan led to the recommendation that he undergo [surgery], he told me that that he planned to have that surgery in Pakistan even before embarking on the return trip home [in] November 2014. In this way he appeared to undermine evidence about the role of the MSF in determining his actions at that time, whilst also providing a different pressing reason for the return visit. In this light, it became hard to rely on his suggestion that he returned to Pakistan when he did because he was required to do so by the MSF.
In addition, whereas [the applicant] told me that he had his [operation] in January 2015, he had told the Department that the procedure was conducted in December 2014. When I pointed these discrepancies out to him I asked him to tell me which were true. In reply, he said he planned before returning to Pakistan to have the operation there, thus undermining his statement to the department about the role and influence of the MSF in his life at that time. He also said that he was admitted for observation in December 2014 and operated on in January 2015.
On the evidence before me, it became very difficult to rely on claims about returning to Pakistan for the purposes of conducting business with and on behalf of the MSF.
I raised with [the applicant] the apparent issue of his delay in lodging his protection visa application. Specifically, I drew his attention to having declared to the Department that he intended in September 2016 to return to Pakistan. I indicated to him that this fact seemed at odds with his action in lodging the protection visa application. In response, [the applicant] said that he indeed intended to return to Pakistan at that time, after the Department had refused to reinstate his expired student visa. He then said he changed his mind because around that time an MSF member had been injured. He said that when he learned of that event he decided he did not want to risk his own life by returning to Pakistan.
I asked [the applicant] why it took him so long to act on that information: according to his evidence, an MSF colleague had been injured by gunshot in 2015 after which, he had repeatedly claimed, he lost contact with the MSF altogether. When I put this to him, [the applicant] then changed his evidence: he said that his MSF leader told him about the more recent attack in 2016 and said to him that it would not be safe to travel back to Pakistan. At this point, I reminded [the applicant] of his repeated claim about not having had any contact with the MSF since 2015, whereupon he changed his evidence again: he now said that that the leader to whom he had referred was also his friend and that it had been as a friend, not as an MSF leader, that this person had advised him not to return. I put to him that this explanation did not appear to make much sense, because he had just indicated that he had been advised not to return by a person speaking in the capacity of an MSF leader. [The applicant] did not resolve this issue.
I asked [the applicant], if his chances of facing the kinds of conflicts he claimed to have faced in the past might have declined significantly, given that he had had no involvement with the MSF or Pakistan politics or socio-politics since 2015, and showed no genuine interest in returning to activities that meant something in his former student days. In reply, he agreed that the chance of acing relevant harm might by now have reduced “to nothing.” Then he said that if there were a chance of being harmed he might die, whereas if there were not he would live. I asked him then if the chance or risk of potentially relevant harm might be considered remote, on the basis of being grounded, according to what he had just said, in bald speculation. In response, [the applicant] did not suggest that he was engaging in anything other than mere speculation.
Findings with regard to s.36(2)(a) of the Act
[The applicant]’s claims relate to “political opinion” and “religion,” insofar as membership of the MSF reportedly signifies adherence to a particular approach to Islam that is neither fundamentalist, nor particularly liberal, but conservative. [The applicant] may also view his claims as relating to “membership of a particular social group,” the group being the MSF, but in my view the nexus between his claims and s.5J(1)(a) of the Act is sufficiently found in “political opinion” and “religion.” It remains then to assess the merits of his claims.
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.[9] 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.[10]
[9] MIMA v Rajalingam (1999) 93 FCR 220.
[10] 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.[11] 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.[12]
[11] 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
[12] Sun v MIBP [2016] FCAFC 52 at [69].
I accept that [the applicant] is from Sambrial in Sialkot, Punjab. I accept that he has required several [operations] and that he had all of these in Pakistan. The health cover he would have had a s a student in Australia would not have prevented the cost of such procedures from being potentially prohibitive.
I accept that [the applicant] was a tertiary student in the years leading up to December 2010. Independent information indicates that it is common for tertiary students to choose and stick with one of many student associations that exist on the campuses of Pakistani educational institutions. I can therefore accept that [the applicant] joined a student group aligned with one of the political parties active in Punjab; this is what students on Pakistani campuses commonly did. I can also accept that [the applicant] joined the MSF, given that it is the student wing of the PML-N which was so popular in Punjab that it held government there until 2018.
I accept that [the applicant] graduated in December 2010 and then worked as an [Occupation 1] for a private firm between the time he finished his studies and up until the time he departed for Australia in 2012.
I have much difficulty accepting that [the applicant] continued to be active with the MSF after he graduated in 2010, let alone that he was responsible for organising activities and recruiting new members after he ceased studying. [The applicant] claimed his group only ever numbered around twenty students, which makes it very hard for me to accept that he ever helped recruit anyone, let alone by going out beyond the student realm of the campus and into remote villages where education and student solidarity of any sort would have had relatively less reach.
[The applicant]’s claims about his experiences with MSF after 2010 are vague, contradictory, reliant on the inconsistent documents submitted to the Department, and also inconsistent with independent information about the groups the MSF is independently reported to have clashed with: the more liberal student groups, rather than fundamentalist or Islamist parties and insurgencies at large in the countryside. It also strikes me as illogical that the organisation would operate in such a way, as it would risk the onset of serious stagnation were student leaders and members not to hand over to new leaders and members who were still students. The place for former students has evidently been within the PML-N, of which the MSF was only ever the student wing.
[The applicant] provided ultimately unsatisfactory evidence regarding the presence and role of the MSF in his life after 2010. This is clearly seen in his description of the MSF precipitating and requesting his return to Pakistan in 2014-15 and initiating the actions that led to his undergoing [surgery] while he was back in Pakistan on MSF business. He contradicted all of this in oral evidence to me when he said he planned ahead of his return visit to Pakistan to have [surgery] there. I give much more weight to this, and to evidence of wanting to reunite with family during a lengthy semester break, than to claims about the trip having been instigated and overseen by the MSF. In addition, [the applicant] provided vague and unsatisfactory evidence as to why he would have ventured back into Pakistan in 2014 after supposedly having fled the country in fear of persecution back in 2012.
It is incongruous with independent evidence about the political inclinations of the MSF that its leaders would have proceeded to join the PTI, as [the applicant] suggested in some of his evidence.
In addition, [the applicant] provided contradictory and unsatisfactory evidence about why it took so long for him to lodge a protection visa application in Australia, particularly after having sought a bridging visa to facilitate what he described to the Department in 2016 as his intention to return voluntarily Pakistan. Meanwhile, he gave inconsistent evidence as to when he last received news of issues affecting his local MSF group. I give some weight to these problems in [the applicant]’s evidence.
Overall, I find that [the applicant]’s oral and written claims about having been involved with the MSF, and with Pakistani politics of any kind since 2010, are inconsistent and unreliable.
Since [the applicant] claims not to have suffered any potentially relevant harm whilst still a student, I give very little weight at all to his past involvement as a student member of the MSF.
[The applicant], however, claims that the two photographs, the two police reports and two media reports should help me overcome doubts about seeming anomalies in his claims. At least one of the media reports and ne of the police reports, however, clash with his claims to the Department and with each other. Adding this problem to the inconsistencies in evidence [the applicant] provided to the Department and to the Tribunal, I give no weight to these documents.
In any event, [the applicant] claims no longer to have any personal interest in student politics or politics in general. He told me that his time with the MSF back in the past was a time when he was “younger and more stupid.” He did not proceed after 2010 to involve himself with any more senior or “adult” political groups. [The applicant] claims that the last time that anyone imputed him to engaging in active involvement in local student politics was in 2015, half a decade ago. Even supposing, in a position put to him, that I accepted his claims at face value, which would require me to overlook anomalies either in or surrounding the documentary evidence he submitted, I asked [the applicant] why anyone would have any potentially relevant interest in him now or in the reasonably foreseeable future, particularly since he has had no genuine, ongoing interest in politics, or even student politics, since half a decade ago. His response to this position was vague and baldly speculative at best, such that he failed to argue a real chance of being persecuted in Pakistan in the reasonably foreseeable future.
Having considered all of the evidence before me 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 identified in s.5J(1)(a) of the Act. His claimed fear of being persecuted 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 with regard 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.
[The applicant]’s claims to complementary protection are essentially the same as his refugee status claims. Those claims have failed as refugee status claims due to lack of credibility and/or due to their not having met the “real chance” test. In the circumstances, those 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 5728

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