1706104 (Refugee)

[2020] AATA 1721

1706104 (Refugee) [2020] AATA 1721 (19 March 2020)

Corrigendum

DIVISION:Migration & Refugee Division

CASE NUMBER:  1706104

COUNTRY OF REFERENCE:  Pakistan

MEMBER:W Frost

DATE OF DECISION:  19 March 2020

DATE CORRIGENDUM

SIGNED:22 April 2020

PLACE OF DECISION:  Canberra

AMENDMENT:  The following corrections are made to the decision:

1.The words ‘as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia’ at paragraph 159 should be replaced with the words ‘as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan’.

W Frost
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1706104

COUNTRY OF REFERENCE:  Pakistan

MEMBER:W Frost

DATE:19 March 2020

PLACE OF DECISION:  Canberra

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

Statement made on 19 March 2020 at 12:59pm

CATCHWORDS

REFUGEE – Protection visa –Pakistan – member of the PTI party – applicant has not suffered any physical or verbal harassment – inconsistent and unconvincing testimony – not a witness of credit – cancellation of his student visa – delay in lodging protection application –relocation possible–decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 499

Migration Regulations 1994, Schedule 2

CASES

Minister for Immigration and Citizenship v SZNCR [2011] FCA 369

SZOVP v Minister for Immigration and Citizenship (No 2) [2011] FMCA 442

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.    This decision relates to an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection (Minister) on 17 March 2017 to refuse to grant the applicant, who claims to be a citizen of Pakistan, a protection visa under s.65 of the Migration Act 1958 (Act).

2.    On 26 November 2013, the applicant arrived in Australia on a student [visa].

3.    On 3 July 2016, the applicant completed an application for a protection visa (Application). The Application was received by the Department on 5 July 2016.

4.    On 17 March 2017, a delegate of the Minister refused to grant the applicant a protection visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations under the Act and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant.

5.    On 27 March 2017, the Administrative Appeals Tribunal received from the applicant an application for review of the delegate’s decision to refuse to grant him a protection visa.

Criteria for a protection visa

6.    The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (Regulations). An applicant for a protection visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c) of the Act. That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

7.    Section 36(2)(a) of the Act 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, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a) of the Act. In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b) of the Act.

8.    Under s.5J(1) of the Act, a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA of the Act, which are extracted in the Attachment to this decision.

9.    If a person is found not to meet the refugee criterion in s.36(2)(a) of the Act, 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) of the Act. 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) of the Act, which are extracted in the Attachment to this decision.

Mandatory considerations

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

TRIBUNAL HEARING

11.      On 11 October 2019, the Tribunal sent to the applicant’s migration agent an invitation for the applicant to attend a hearing on 12 February 2020 in relation to the refusal decision made by a delegate of the Minister.

12.      On 12 February 2020, the applicant appeared before the Tribunal to give evidence and present his arguments in relation to his Application. The applicant made an affirmation regarding the truthfulness of his answers at the hearing. The applicant’s migration agent, [also] attended the hearing.

13.      The Tribunal stated to the applicant that in his Application he said he can speak, read and write in the following languages in order of preference: Urdu, Punjabi and English. Although his Application said he did not need an interpreter, correspondence from the applicant’s migration agent to the Tribunal in August 2018 and December 2019 requested an interpreter in the Urdu language for a hearing; the latter correspondence included a formal response notice to the Tribunal’s hearing invitation specifying the applicant’s request for an interpreter in the Urdu language.

14.      The Tribunal arranged for an interpreter in the Urdu and English languages to attend the hearing to provide assistance to the applicant and the Tribunal. The interpreter at the hearing took an affirmation regarding her interpretation of the applicant’s evidence and the obligation to maintain the confidentiality of that evidence. Following the Tribunal’s preliminary remarks, including regarding the purpose of the hearing, the Tribunal’s independence and the role of the interpreter, the Tribunal asked the applicant whether he had any difficulties understanding the interpreter’s interpretation of the Tribunal’s opening statement. The applicant confirmed to the Tribunal that he did not have any difficulties understanding the interpreter. The Tribunal notes for the avoidance of doubt that it is satisfied that the hearing with the applicant flowed in a way consistent with someone who understood the questions from the Tribunal that were interpreted by the interpreter and that the applicant was able to respond to those questions.

Identification

15.      On the day of the hearing, the applicant provided his passport to the Tribunal in order for it to verify his identity. The passport was issued in Canberra [in] 2014 and the issuing authority was listed as Pakistan. The Tribunal notes that the Country Information Report on Pakistan from the Department of Foreign Affairs and Trade dated 20 February 2019 (DFAT Country Information) states that ‘Pakistan diplomatic missions in other countries, including Australia, can issue passports to Pakistan citizens’.[1] 

[1] DFAT Country Information Report, Pakistan, dated 20 February 2019, page 70.

16.      The applicant’s passport issued [in] 2014 expired [in] 2019. The relevant identification pages in the passport were identical to the photocopied pages of the applicant’s passport contained in the Department’s file regarding the applicant’s Application for a protection visa. The Tribunal is satisfied, for the purpose of this decision, that the applicant is a national of Pakistan. Therefore, Pakistan is the receiving country for the purpose of assessing the applicant’s claims for protection.

17.      For completeness, the Tribunal notes that the applicant stated in his Application that he is a Sunni Muslim. The DFAT Country Information states that ‘[t]he provisional results of the 2017 national census recorded that Muslims comprise 96.28 per cent of the population, of whom approximately 85 to 90 per cent are Sunnis’.[2] The Tribunal therefore finds that the applicant’s religion is the major religion in Pakistan.

[2] DFAT Country Information Report, Pakistan, dated 20 February 2019, page 33.

Application and other documentation

18.      At the hearing, the Tribunal noted that it had before it both the Department’s and the Tribunal’s files in relation to the Application, which files also contained the material the applicant (and his migration agent) had provided to the Department and the Tribunal, respectively.

19.      The Tribunal asked the applicant’s migration agent whether the Tribunal had all the documents that it should have for the purpose of its review. The agent referred to the applicant’s response to the delegate’s decision (referred to below in these reasons as the Email to Department), and a submission made by the migration agent (referred to below in these reasons as the Agent’s Submissions). The migration agent also confirmed that there were no witnesses to be called by the applicant at the hearing, although the applicant relied on the written statements in the form of Affidavits provided by other people in relation to the applicant’s claim for a protection visa that were attached to the Agent’s Submissions.   

20.      The applicant told the Tribunal that he completed the Application for a protection visa himself in the English language in 2016. The applicant said the Application was correct and, ‘at this moment’, he did not wish to add or change anything in the Application. In his Application, the applicant stated that:

While working as a lawyer in [City 1] we were approached by Mr [A]  who was threatened and tortured by the Islamic radicals as according to them he had said worng things about our prophet Muhammad (PBUH). I went through his police report and discussed his case and determined that Mr [A] was innocent and if we didnt stanfd for his right either the Islamic radicals would kill him or our legal system would sentence him to death. My peers and family members opposed my interest in this case and warned me but I have always stood for what is right and just and I felt that this was my opportunity to protect this innocent man. While I was leading his case I was abused, harassed, my family was traumatised, I was kidnapped and beaten with sticks and kicked several times by the fundamentalist. I approached the local police station after receive threats but they ignored my plea; they infact told me to step down orelse I will end up in a very miserable state. I lodged my first police report against the opponent party [in] August 2010 in which I mentioned that I was kidnapped I also gave a very clear description of the offenders but the police wasnt willing to help. Then [in] September 2010 my car was gunned down while I was heading to the chambers. My car was totalled but I escapped with a few minor injuries again I lodged a complaint with police but nothing prevailed. I then gave up hope

[In] December 2010 I was kidnapped and then beaten with sticks by 5 men and they also kicked [me] (evidence attached). I was told not to go to the police or else they would punish my old grandparents and family members. I went in exile and started hidding from these extremists. I only used to attend the Court hearing and then disappear immediately. My moved to close by cities as I could leave my old grand parent alone I had to make sure that they were safe. If I would return back to Pakistan the Islamic Radicals would definitely hunt me down and kill me or hand me. They still make threats to my family and inform them that the day I return back to Pakistan that day will be a memorable day for our entire family. We won the case [in] September 2013 and all hopes to keep me alive were gone; now their only mission was to hunt me down and make an example of me infront of the entire community. My grandparents gathered funds and we applied for student visa which was granted in November 2013; I very secreatively left the country within day of receiving my visa and promised my grandparents never to look back. During my stay in Australia both of my grsandparents passed away (Death Certificate attached) and I wasnt able to visit them in their final dates because it wasnt and still isnt safe for me to visit Pakistan.

I was kidnapped a few times, I was beaten with stick and kicked [a] few times, my car was gunned down and destroyed. My family received several threats and my younger borther and sister were slapped in the streets while going to school and they were disgraced in the local community.

I seeked help from the local legal system and the police but they very bluntly supported the offenders and told me to step down from the case. I also feared the police as I am sure they would have gifted me to the gangsters.

I seeked help from the police and fellow lawyers in [City 1] but all refused to assist. The police told me to back off from the proceeding orelse the offenders will harm me and the police wont be able to assist. The offenders were high ranked religious officials and they controlled the police in [City 1]. I lodged complaints in the police station for kidnapping then assault and also when they gunned down my car while I was leaving for the court but the police claimed to have no witnesses. The legal system and the police doesnt help the honest people in Pakistan. In Pakistan money talks.

I moved to the close by cities but didnt move far away as my grand parents were my guardians and they were old. I had to risk my life and stay close to them. The Islamic radical had forwarded my pictures to their entire network all over Pakistan and were hunting me down. No matter where I went in Pakistan they would track me down and then assassinate me. My grand parent were not so well and all this trauma was also taking a toll on their health.

I moved to close by cities and also within my city. Most of my friend refused to shelter me; in fact [in] July 2013 I had a very narrow escape from my friends house in [City 1] as 10 Islamic radical protested outside his house and threatened to burn the house down if my friend didnt open the doors. I escaped from the roof and moved to the last house in the street. I tried my best to protect my family and myself but all this came to a point when I had no other option but to apply for a student visa.

If I was to return back to Pakistan I would definitely be killed/beheaded or hanged. It has been over 2 years since I have left Pakistan and they still visit my house and still threaten my family that they will kill me the day I return back to Pakistan.

The authorities have been bribed and favour the Islamic extremist. I dont have any faith and trust in the legal system of Pakistan as I have experienced this during the bitter times I went through between 2010 to 2013. 

I wasnt able to relocate to distant cities as my grand parents were very old and feable. The Islamic radicals had circulated my pictures to their group all over the country and they were hunting me down. One night they forced entry into my friend house where I was staying and I had to escape from their roof top. [errors in original]

21.      The Tribunal referred the applicant to an email sent from an email address in his name to the Department on 15 June 2016 (Email to Department). The applicant confirmed to the Tribunal that: he recalled writing and sending the email, although he had assistance with its completion because his English was ‘not that good’; its content was correct; and he did not want to change or add anything to the email.

22.      The Tribunal also referred the applicant to a nine page undated document he filed with the Tribunal on 20 August 2018, regarding his application for review of the delegate’s decision refusing him a protection visa (AAT Statement). The Tribunal showed the applicant the first page of the document because he told the Tribunal that, although he could remember providing such a document, he would remember the document if he saw it. The applicant confirmed that: he recalled the document; and he had assistance with its completion from his friends and from his migration agent. The applicant confirmed that the content of the AAT Statement was explained to him by his migration agent and he understood its content. The applicant further confirmed to the Tribunal that the AAT Statement was correct and, ‘at the moment’, he did not want to change or add anything to the document.  

23.      Finally, the Tribunal referred the applicant to his migration agent’s ten page written submissions (and twenty four attachments to those submissions) filed with the Tribunal on 5 February 2020, together with the accompanying declaration that the applicant had signed stating that he had read the submission, it had been explained to him and that it ‘accurately and completely’ represented the applicant’s claims (Agent’s Submissions). The applicant confirmed to the Tribunal that this was correct and, ‘at this stage’, he did not wish to add or change anything in the Agent’s Submissions.

Capacity

24.      In relation to the applicant’s capacity, the Tribunal notes that the Agent’s Submissions said that the applicant’s mental health ‘has been severely impacted by his experiences in Pakistan and the separation from his family’,[3] together with the uncertainty of his status in Australia. The Agent’s Submissions referred to and attached a letter dated 28 January 2020 addressed to the Department from a [counsellor], who had twice met with the applicant in 2020, which letter said that the applicant ‘presented with anxiety about how to manage life in the present, as an asylum seeker, and about his future. He also suffers from debilitating and chronic symptoms of depression’.[4] The counsellor stated that during their sessions, the applicant found it ‘highly distressing’ to recount his story and ‘he had to shut down’; the applicant ‘stopped talking and his body language indicated he was very uncomfortable with the process’.[5]

[3] Agent’s Submissions dated 5 February 2020, page 9.

[4] Letter from [the] Counsellor, to the Department dated 28 January 2020, page 1.

[5] ibid.

25.      For the avoidance of doubt, despite the applicant’s mental health issues, said by the above-mentioned counsellor to be anxiety and depression, although not further evidenced by a certificate from a medical practitioner, the Tribunal is satisfied that the applicant was able to meaningfully participate in the Tribunal hearing. During the hearing, the applicant presented his evidence and arguments in Urdu, often expansively, and at times in English, and answered all of the Tribunal’s questions. At certain times during the hearing the applicant would demonstrably and at length respond to inconsistencies in his evidence put to him by the Tribunal. The applicant became weepy at the conclusion of the hearing, but this was the only visible sign of any distress the applicant experienced before the Tribunal. In this way, the Tribunal is not satisfied that the applicant was unable to give evidence, present arguments and answer questions at the hearing. Accordingly, the Tribunal is satisfied that the applicant’s mental state did not undermine the Tribunal’s invitation to appear and for him to meaningfully participate in the hearing.[6]

[6] Minister for Immigration and Citizenship v SZNCR [2011] FCA 369 at [30]-[34]; SZOVP v Minister for Immigration and Citizenship (No 2) [2011] FMCA 442 at [48].

Time in Australia

26.      The Tribunal noted to the applicant that he arrived in Australia [in] November 2013 and asked him what he had been doing with his time in Australia over the past six years.

27.      The applicant did not respond directly to the Tribunal’s question about his time in Australia, but said he was ‘attached’ to a law firm in Pakistan and ‘we did a case on blasphemy’, so ‘therefore I was getting life threats and things like that’. The applicant said he applied for a student visa ‘because it was necessary for me to come to Australia, because I was very, very upset’ in Pakistan. The applicant’s claims are discussed further below in these reasons.

28.      While the applicant did not tell the Tribunal what he had been doing with his time in Australia, the applicant did say that he has been staying in different places in Australia, including in mosques.

Education

29.      The applicant told the Tribunal that his highest level of education in Pakistan was a [degree]. The Tribunal is satisfied, based on the applicant’s testimony and documentary evidence, that this is correct. In this regard, the applicant’s employment as a lawyer in Pakistan is discussed further below in these reasons.

Family

30.      The applicant told the Tribunal that he has two parents and [siblings] in Pakistan and that he has ‘constant contact’ with his family by telephone, amounting to approximately ‘weekly or fortnightly’. The Tribunal is satisfied, based on the applicant’s testimony and documentary evidence that the composition of the applicant’s immediate family is as he stated at hearing.

The Tribunal notes that, according to a Death Registration Certificate provided to the Department for each of the applicant’s grandmother and grandfather, they [died]. These documents list the applicant’s grandparents’ address as being the same as his immediate family (which is discussed further below in relation to the applicant’s addresses in Pakistan).  Addresses

31.      The Tribunal asked the applicant to write down his family’s residential address in Pakistan. The applicant provided an address that was the same as that he had listed for his family in the Application, being an address in [City 1], [in] the province of Punjab.

32.      The Tribunal then asked the applicant to write down the addresses of his now deceased grandparents from the time the applicant was born until he left for Australia. The applicant provided the same address for his grandparents to that he provided at hearing and in the Application for his immediate family and said this was their address before he came to Australia. The applicant said that ‘as far as I can remember I was like [age] years old since I’ve been seeing them there, start living there, at that address’. 

33.      The Tribunal also asked the applicant to write down his addresses in Pakistan and the dates he lived at these addresses. The applicant provided the same address as that he provided for his immediate family and his grandparents in [City 1] and said he was born in ‘a very small district of the same city’, but ‘we moved to this address later on’. As a result, the Tribunal asked the applicant whether his whole family, including his grandparents, lived at the same address. The applicant said ‘yes’.

34.      The Tribunal asked the applicant to write down any other addresses and the dates that he had lived at those addresses in Pakistan, other than his family’s residence. The applicant took some time to respond and said ‘when I was born, I lived there only [certain] years’, but he did not provide an accompanying address for this residence, and ‘then I start living at the address which I already provided’, being his family’s residence in [City 1]. The Tribunal asked the applicant who he lived with up until the age of ‘[age]. The applicant said ‘same, with my parents and grandparents’. In order to clarify these living arrangements due to the applicant’s changed testimony, the Tribunal asked the applicant whether his parents and grandparents lived all together from the time he was born until the time he left Pakistan. The applicant said ‘when I was little, we used to meet them, because they were living close by to a small village, but then when I was like [age] years old then they moved in’. Despite multiple questions to the applicant regarding his and his family’s addresses in Pakistan, the applicant did not tell the Tribunal that he lived only with his grandparents at any stage during his childhood. In addition, other than his family’s residential address, the applicant did not list any other address or addresses in Pakistan that he claimed to have lived at after living at his family home. This was contrary to what he had stated in his Application that he had ‘moved to the close by cities’ and ‘also within my city’ in response to questions about re-locating to another part of Pakistan.

35.      As a result of the applicant’s inconsistent answers at the hearing, the Tribunal referred the applicant to the email he sent to the Department on 15 June 2016, being the Email to Department, which stated that ‘when I was [age] years old my parent[s] gave me to my Grandparent so that they can raise me…I lived with them’. In response, the applicant said ‘that’s correct, because I was living close by and they were just looking after me, meeting me daily and doing all the expenses as well’. The Tribunal put to the applicant that this account differed from what the applicant had earlier told it at the hearing. In this regard, the Tribunal also referred the applicant to his departmental interview on 3 March 2017, in which he said that he lived in a village with his grandparents, he moved there in his childhood and his parents had sent him there. In response, the applicant said ‘because the village was very close, where they were living, so since I was up to [age] years old, we would meet them on and off and then they were looking after me’ and ‘because there were not many facilities in the village, so they wanted me to study in the city as well’. The Tribunal put to the applicant at the hearing that he had earlier told it that his whole family, including his grandparents, lived together at the one address from the time he was born. The applicant said ‘I’m telling that my parents and my siblings are all together’.  

36.      At the end of the hearing, the Tribunal invited the applicant’s migration agent to raise any issues regarding her client’s Application, including as a result of his evidence at the hearing. In relation to the applicant’s living arrangements in childhood, the migration agent said she understood that the applicant’s immediate family lived ‘very close to his grandparents’ and that ‘as a toddler they were given daily care of him’ and looked after him from when he was [age] years old until he was ‘a young boy’, when the applicant’s grandparents moved in with his parents when he was between [age] years old.

37.      As a result of the evidence before the Tribunal, including the applicant’s vague, inconsistent and unconvincing responses at the hearing to questions regarding his and his family’s addresses in Pakistan, the Tribunal cannot be certain about the veracity of the applicant’s testimony in relation to whom he lived with in Pakistan and for what period of time. However, the Tribunal does accept that part of the applicant’s evidence at the hearing in which he said that he lived with his parents since he was born (together with his siblings, when they were born) and also his ultimate evidence regarding his grandparents’ address, that is, that they lived with his immediate family from the time he was approximately [age] years old. Because of the applicant’s inconsistent evidence, the Tribunal is not satisfied that the applicant was telling the truth at the hearing when he initially told it that his parents and grandparents had all lived together at the one address from the time he was born. That is, the Tribunal had asked the applicant who he lived with up until the age of ‘[age] and he said ‘same, with my parents and grandparents’. The applicant later said ‘when I was like [age] years old then they moved in’. While the Tribunal accepts that the applicant’s grandparents provided him with care during parts of his childhood, based on his evidence, the Tribunal finds that the applicant was not telling the truth in his Email to the Department and at the departmental interview that, in summary, his parents had given him to, or sent him to live with, his grandparents when he was approximately [age] years old and that they had raised him. As a result of the evidence from the applicant at the hearing, which was inconsistent with that he provided in his Application, the Tribunal finds both that the applicant has lived with his parents (and siblings) since the applicant was born and that he has not lived at any address other than the family’s current residential address in [City 1] since they moved into that residence. That is, the Tribunal is not satisfied that the applicant moved to ‘close by cities’ in Pakistan, moved within his own city, or went into ‘exile’ as he claimed in the Application, to avoid the alleged perpetrators of claimed attacks and threats against the applicant (which are discussed further below in these reasons).   

Employment

38.      The applicant told the Tribunal that he worked as a lawyer at a law firm [in] [City 1], Pakistan. The applicant said he commenced employment in 2008 after he received his licence to practice and worked there up until the time he left Pakistan in November 2013 after receiving his student visa to study in Australia.

39.      The applicant also told the Tribunal that the offices or chambers of the law firm were ‘close by’, but in a different location, to the law courts in [City 1] that he appeared before as a lawyer; the distance between his chambers and the courts was said to be a walk of approximately [a few] minutes.

40.      In support of his Application, the applicant provided the Department with a scanned copy of his ‘[professional] identification card and an ‘Experience Certificate’ [stating] that the applicant has been enrolled as an advocate since [September 2008]. In addition, the applicant provided the Department with scanned photographs of him marching in the ‘Lawyers’ Movement’, also known as the ‘Movement for the Restoration of the Judiciary’, which was formed, and held protests, in response to the suspension of the Chief Justice of the Supreme Court of Pakistan in March 2007 by the former President, Pervez Musharraf. The Chief Justice was reinstated two years later in March 2009.   

41.      The Tribunal accepts the applicant’s evidence in relation to his employment in Pakistan as a lawyer since 2008 and up until the time he left for Australia in 2013. The Tribunal also accepts that the applicant was involved in the ‘Lawyers’ Movement’ in Pakistan.   

CONSIDERATION OF Claims and evidence

42.      The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations, because he is a ‘refugee’ as defined in s.5H of the Act, or because there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Pakistan, there is a real risk he will suffer significant harm.

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

Blasphemy

44.      In circumstances where the applicant’s claims primarily concern his defence of a person accused of blasphemy in a legal proceeding in Pakistan, the Tribunal sets out the following DFAT Country Information in relation to blasphemy in Pakistan:[7]

[7] DFAT Country Information Report, Pakistan, dated 20 February 2019, pages 34-35.

Blasphemy and other offences relating to religion are criminalised in Pakistan under Articles 295 and 298 of the Pakistan Penal Code (Act XLV of 1860). Article 295C outlaws the use of ‘derogatory remarks’ against the Holy Prophet. Punishment for blasphemy is death. Under Article 295B, ‘defiling’ a copy of the Quran is punishable by life imprisonment, and under Article 298A, defiling ‘the sacred name of any wife, or members of the family, of the Holy Prophet, or any of the righteous Caliphs’ carries a maximum punishment of three years in prison, which may also be accompanied by a fine. Religious conversion from Islam (apostasy), while not illegal, is often seen as blasphemous and can result in prosecution under blasphemy laws, or familial or communal violence. Article 295A prohibits insulting any religion, not just Islam, and carries a sentence of up to ten years’ imprisonment, which may also be accompanied by a fine.

In 2017, the independent Human Rights Commission of Pakistan (HRCP) reported an increase in blasphemy-related violence, use of religious rhetoric, incitement of hatred, and discrimination against minority groups. The HRCP noted the government failed to repeal discriminatory laws. Local and international observers report increasing misuse of blasphemy laws, and a widening of actions considered chargeable blasphemy offences.

Although under the law, courts cannot impose a death sentence based on a police First Information Report (FIR, an initial written record of a complaint or reported crime), this occurs and judges often accept reports of blasphemy at face value. Extremist groups and individuals have targeted politicians and judges who advocate on behalf of minorities or seek to change the blasphemy laws. Former governor of Punjab, Salman Taseer, was assassinated by Mumtaz Qadri, a member of his security detail, for calling for reform of blasphemy laws. Large numbers of people protested when Qadri was executed in February 2016. The media also fears reporting on blasphemy due to the significant personal risk involved.

Individuals have used blasphemy laws to settle personal or property disputes. Following an accusation, police automatically detain the alleged blasphemer—usually in solitary confinement—ostensibly for their own safety. In 2010, a Christian woman, Ms Asia Bibi, was convicted of blasphemy and sentenced to death following a dispute with her Muslim neighbours. In October 2014, the Lahore High Court upheld Ms Bibi’s death sentence, however in October 2018, the Supreme Court of Pakistan acquitted Ms Bibi.

Communal violence also often targets those accused of blasphemy. In November 2014, a mob burned a Christian couple to death in the brick kiln where they worked as bonded labourers after they were falsely accused of throwing out pages of the Quran with their household rubbish. In November 2016, a military anti-terror court sentenced five people to death for their murder. In July 2014, an angry mob burnt several houses and vehicles in Gujranwala, eastern Punjab, killing an Ahmadi woman and two young girls, and injuring eight others. An allegedly blasphemous social media post by an Ahmadi reportedly triggered the incident. In April 2017, hundreds of university students beat and fatally shot a journalism student at a university campus in Mardan, allegedly for blasphemous social media posts. Observers note the student had criticised the university administration and actively participated in open debates. A judicial inquiry found no evidence of blasphemy.

The government has applied the blasphemy law to digital content, with at least one person in 2017 receiving a death sentence for alleged blasphemy on Facebook. Internet bloggers who criticised the military, disappeared and later emerged in police custody facing blasphemy charges. While the Islamabad High Court acquitted the bloggers, they left Pakistan fearing for their safety.

According to the USCIRF [United States Commission on International Religious Freedom] 2018 annual report, approximately 100 blasphemy cases were registered between 2011 and early 2018, and an estimated 100 people are currently serving prison sentences for blasphemy. Of the 100 people in prison, 40 face the death penalty or a life sentence. Pakistani courts have dismissed several blasphemy cases for lack of evidence. Around 95 per cent of blasphemy cases end in acquittal, although often only after extended periods of detention. DFAT is not aware of any executions of people convicted of blasphemy.

While blasphemy laws apply to both Muslims and non-Muslims, it is not culturally acceptable for religious minorities to make accusations of blasphemy in Pakistan.

While the majority of cases are brought by Muslims against Muslims, DFAT assesses implementation of laws against blasphemy, and the potential for communal violence following an accusation of blasphemy, disproportionately affect religious minorities in Pakistan.

Attacks and threats

45.      The Tribunal asked the applicant how many times he was attacked in Pakistan. The applicant replied ‘as far as I can remember, two to three times they attacked me’ and ‘harassed me over the phone as well at different times’.

Incident at colleague’s house

46.      The Tribunal asked the applicant to tell it about the last attack he claimed to have experienced of the ‘two to three’ that he said had occurred in Pakistan. The applicant said he and his colleague, who was another junior lawyer working on the blasphemy case, went to that colleague’s home which ‘was surrounded by them’. The applicant told the Tribunal that ‘I was lucky enough to escape from the back door, because they started to yell and they were looking for me and asking about me’. In response to a question from the Tribunal regarding the identity of these people, the applicant said they were ‘from some banned organisations, some extremists’ in Pakistan that were ‘related to that case’. In this regard, the Tribunal understands from the Application that the people involved in this claimed incident were said to be Islamic radicals or fundamentalists.

47.      Because the applicant’s testimony regarding this incident was very brief and lacked detail, the Tribunal asked him what these people did when they were at his colleague’s house. In response, the applicant said ‘they basically barged in, they were just trying to open the door, with some heavy metal or something’ and ‘yelling and screaming’ the applicant’s name for him to ‘come out’, so the applicant ‘escaped from the back door’ to save his life.

48.      The Tribunal asked the applicant whether the people had entered the house and he said ‘they were just about to enter’ the house.  Then the applicant said that ‘I was in the room already and my friend told me that some of them already inside, so that’s why he helped me escape’.

49.      As a result of this inconsistent testimony from the applicant regarding whether the people had entered his colleague’s house, noting that he had said both that they were ‘just about to enter’ and also that he had been told they were ‘already inside’ the house, the Tribunal put to the applicant at the hearing the inconsistencies between his testimony and the evidence previously provided by the applicant. In this regard, the Tribunal noted to the applicant that in his Application he had said that the people ‘forced entry into my friend house’ and that he ‘had to escape from the roof top’ or ‘escapped [sic] from the roof’, not that he escaped from the back door as he had told the Tribunal at the hearing.

50.      In response, the applicant said ‘yes, that room was on the roof’. The Tribunal put to the applicant that he had said he went through ‘the back door’. The applicant said ‘because it’s not like in here, the roof’s ever attached, so there was a back door sort of thing, so that’s why I was able to escape from there’.

51.      The Tribunal also put to the applicant that, in his AAT Statement, he said the people were ‘outside’ and ‘went away’ when his colleague’s brother told them the applicant was not there, not that they had entered the house.

52.      Additionally, the Tribunal put to the applicant the Affidavit dated 3 January 2020 provided by the applicant’s colleague that was attached to the Agent’s Submissions, which does not mention the people forcing entry into his house. For completeness, the Tribunal notes that the Affidavit states that ‘noise was raised in the street, I saw that some activists belonging to the banned religious organization were raising noise, they asked about [the applicant] [sic] Advocate and attacked upon my house. [The applicant] [sic] Advocate fled away from back door to save his life. Accused also fled away when police came at the spot’. While stating that the people ‘attacked upon my house’, it is unclear in the Affidavit from the applicant’s colleague whether this amounted to the people having entered his house, as ultimately claimed by the applicant at the hearing, or merely attacking the outside of the house. In any event, this Affidavit does not say that the people entered his house, but does say they fled when the police arrived.   

53.      In response to these inconsistencies, the applicant changed his previous testimony that some of the people were ‘already inside’ and said ‘they were in the front yard, not in the …where I was, so as soon as I got to know, they told me you need to run, so I ran from there’. This was the first time in all of his written and oral evidence that the applicant had mentioned the people being in the ‘front yard’ as opposed to his previous evidence of them having ‘barged in’, ‘forced entry’ to, or being ‘already inside’, the house. This again represented a change in the applicant’s testimony before the Tribunal, and also from the written evidence provided by the applicant, including in his Application.   

54.      The applicant’s migration agent said that getting inside the house was reference to getting into the compound containing the house, not necessarily into or beyond the front door of the house. The migration agent also submitted that the roofs are joined and there was a back way out from that point.

55.      The Tribunal put to the migration agent that the Application said the people ‘forced entry’ into the house, to which the agent said there was a ‘misunderstanding’, because the front yard is also closed off and that someone would have to break into that area, so it was in a sense breaking into the house. 

56.      The Tribunal told the applicant that he had provided a specific date in his Application for when this alleged incident happened and asked whether he could recall that date. The applicant said ‘I think it was 2010’ and on the [date] day. The applicant did not specify a month. Therefore, the Tribunal asked whether the applicant could recall the particular month and he said ‘I think July’. When the Tribunal asked the applicant to confirm the year was 2010, as he had initially told the Tribunal, the applicant changed his testimony and said ‘I think 2013’. This accorded with the date provided in the Application. 

57.      The applicant said this was the last attack on him before he left for Australia.

58.      The Tribunal asked the applicant whether this incident was the reason for him applying for the student visa to Australia. The applicant said ‘I’ve already been through a lot of other incidents as well, so I’ve already applied for this visa, because I didn’t have any other choice’.

59.      The Tribunal is not satisfied, based on the applicant’s brief, inconsistent and unconvincing testimony at the hearing that this alleged incident occurred at his colleague’s house in July 2013. The applicant’s oral testimony lacked detail about the alleged incident. Despite the Affidavit purportedly from the applicant’s colleague, that evidence contradicted, on crucial details, the evidence of the applicant at the hearing in relation to what actually occurred at the colleague’s house, especially in relation to whether or not the people entered the house. In this regard, and contrary also to the Application, the applicant’s AAT Statement did not say that the people entered the house or front yard, but rather it said that they ‘went away’ when his colleague’s brother told them the applicant was not at the house. While both the applicant’s evidence at the hearing and his colleague’s Affidavit stated that the applicant exited the house from the ‘back door’, the Application lodged with the Department when the applicant made his claim for a protection visa said he escaped from ‘the roof’. In this regard, and based on the other inconsistencies and lack of detail from the applicant at the hearing, the Tribunal does not accept the applicant’s confused testimony or the migration agent’s explanation regarding the position of the roof in relation to a ‘back door’ in the house.

60.      As a result of the Tribunal’s finding regarding the applicant’s claims in relation to this incident at his colleague’s house, the Tribunal is not satisfied that there is a real chance that, if the applicant returned to Pakistan, he would be persecuted for reasons of his race, religion, nationality, membership of a particular social group or political opinion pursuant to s.5J(1)(b) of the Act. Additionally, because of the Tribunal’s findings that this alleged event did not occur as claimed by the applicant, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm pursuant to s.36(2)(aa) of the Act.

Attack on car

61.      Following the applicant’s testimony about the alleged incident at his colleague’s house, the Tribunal asked the applicant to detail any other attacks on him in Pakistan. The applicant said that:

[August] 2010, that was the first time I gave the police report. That’s the time when I was going with my brother, there is a stadium very close to my home. We were going to the court and they attacked on us, they damaged the car and it was so crowded that we were able to escape from there. And I personally think it was attempted murder. And I also report to the police as well.  

62.      The Tribunal asked the applicant how these people damaged his car and he said ‘they had sticks and guns’. Because of the lack of detail from the applicant regarding this alleged incident, the Tribunal asked him what the people did with the sticks and guns. The applicant replied that ‘they did the shooting on the car’ and ‘they damaged the car with the sticks and when they start yelling, so we just ran from there’. The applicant also told the Tribunal this incident occurred when he was going to Court [in] September 2010, not [August] 2010, as he initially stated to the Tribunal.   

63.      The Tribunal notes that the Application says that in this incident the applicant’s car was ‘gunned down’ and ‘totalled’, but he escaped with ‘a few minor injuries’.

64.      The Tribunal asked the applicant about reporting this incident to the police. The applicant said ‘yes, we did’. The Tribunal asked the applicant whether he knew who the people were and he said ‘I know few of them, but the main person I remember it was [Mr B] and his partners’.

65.      The Tribunal notes that the applicant provided the Department with a ‘First Information Report’ (FIR) in relation to this alleged incident. According to the DFAT Country Information, a FIR is ‘an initial written police record of a complaint or reported crime’.[8] This FIR, which was translated from Urdu into English, relevantly states that:

I am working as professional [lawyer]. Now-a-days I am contesting a case of [in] which I am a counsel of accused [Mr A] due to reason, I am receiving threats for withdrawing the above said case from the different corner…Today morning [in] -09-2010 at about[time], I along with my real brother [left] for office while boarding on a car, when we reached near stadium corner, then I saw that the accused persons namely [Mr B] [armed] with[weapon], [Mr C] [armed] with [weapon] and [Mr D] [were] ambushing, suddenly, they started firing on my car with intention to kill me, fortunately, I along with my real brother were succeeded to escape from the spot, whereas the bullets were hit on my car and then after listening the voice of firing many people were gathered there, due to this reason, great terror was created. Above said accused persons give us threats while making fire and run away from the spot.     

[8] DFAT Country Information Report, Pakistan, dated 20 February 2019, page 5.

66.      In relation to the veracity of a FIR, the DFAT Country Information states that:[9]

Document fraud is widespread for forms of documentation not issued by a competent central authority such as NADRA [National Database and Registration Authority]. Due to the relative ease in acquiring fraudulently obtained genuine documents, such documents are common in Pakistan and are generally preferred over counterfeit documents, as they are difficult to detect. Fraudulently obtained genuine documents, such as CNICs [Computerised National Identity Card] and passports, can be obtained with fraudulent (altered or counterfeit) feeder documents. Types of documents historically found to be fraudulent in Pakistan include, but are not limited to, documents regarding academic qualifications such as degrees and transcripts, bank statements, agreements, references, and ownership deeds.

…

FIRs use standard forms with the relevant information written in by hand, and are relatively simple to counterfeit. Reports exist of police accepting bribes to verify fraudulent FIRs. DFAT does not consider the existence of an FIR to constitute evidence that the events described in the FIR actually occurred. [emphasis added]

[9] DFAT Country Information Report, Pakistan, dated 20 February 2019, page 71.

67.      In response to a question about police action in relation to the applicant’s report, the applicant said they ‘didn’t do anything’. The Tribunal put to the applicant that it was quite serious for a lawyer to be fired upon by guns and for no subsequent action to be taken by the authorities. In response, the applicant said ‘because it was a militant group, police didn’t take any action and police didn’t want to get involved. And it’s quite normal over there for firings during the hearing and stuff like that’.

68.      As a result of the DFAT Country Information, the Tribunal does not consider the FIR provided to the Department by the applicant to be credible and to constitute evidence of the events described therein.

69.      In this regard, the Tribunal put to the applicant that, in his Application, he had said this incident occurred when he was ‘heading to the chambers’, but also ‘while I was leaving for the court’, the latter being similar to the claim he made at the hearing that he was going to court. In response, and by way of explanation, the applicant said ‘when we get ready and go to work, first we go to chambers to see which court we’re going to and it’s very common over there to go to chamber[s] and then to court’. Additionally, ‘when we leave from home we just say “court” or “chamber[s]”, it’s pretty much the same’. When the Tribunal put to the applicant that he had earlier told it that the court and his chambers or office were in separate locations with some [minutes’] walking distance between them, the applicant then said ‘that’s absolutely correct, because there is a word called “cocherri” which means “court” and “chambers”, the same thing, so when we leave from home we just use that word. It includes both chambers and the court’. The applicant’s migration agent also noted at the end of the hearing that the applicant had referred to a word that is apparently used interchangeably for both ‘court’ and ‘chambers’.

70.      The applicant said ‘when this incident happened I was going to the court, from home to court’. While noting the Tribunal’s above findings in relation to the FIR, this statement from the applicant contradicts the applicant’s alleged statement in the FIR that he and his brother had ‘left for office’, not described there as “chambers” or “court”, when the car they were in was attacked.  

71.      As a result of the Tribunal’s findings in relation to the FIR for this claimed incident, while the Tribunal gives the applicant the benefit of the doubt that an incident occurred when he was in a car either on the way to his chambers or the court in August or September 2010, the Tribunal is not satisfied, based on the applicant’s lack of detail and unconvincing response when asked about the alleged attack, that the car he was in was both fired upon or ‘gunned down’ and damaged by the alleged perpetrators in an attempt to murder the applicant. The Tribunal gives the applicant the benefit of the doubt that the car he was in may have been the subject of an indiscriminate attack by a group of people, but the Tribunal finds it implausible that, if such an incident occurred, the applicant would have survived an attempt to kill him with the car being shot at, when the perpetrators were also said to have ‘damaged the car’ with sticks. That is, they would have to have been almost within arm’s reach of the car, while holding guns and sticks and yet the applicant was able to survive such an attack and escape without being apprehended by the perpetrators. In this regard, the Tribunal is not satisfied that, if shots were fired and hit the car the applicant was in and that car was damaged with sticks held by the perpetrators, he could manage to escape such a situation, while also being able to identify the alleged perpetrators by name to the authorities as claimed in the FIR. For the above reasons, the Tribunal finds that the applicant embellished his evidence regarding this incident. As mentioned above, the Tribunal gives the applicant the benefit of the doubt that an incident occurred whereby he was indiscriminately attacked when in a car; however it is not satisfied that the incident occurred as described by the applicant. The applicant also provided at the hearing two different dates for this claimed incident, being  [August] and [September] 2010. The Tribunal further notes that this claimed incident was only mentioned in the Application, but it was not mentioned by the applicant in the departmental interview, his AAT Statement or his Agent’s Submissions.  

72.      As a result of the Tribunal’s finding regarding the applicant’s claims in relation to the attack on the car, the Tribunal is not satisfied that there is a real chance that, if the applicant returned to Pakistan, he would be persecuted for reasons of his race, religion, nationality, membership of a particular social group or political opinion pursuant to s.5J(1)(b) of the Act. Additionally, because of the Tribunal’s findings regarding the alleged events, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm pursuant to s.36(2)(aa) of the Act.

Incident in the fields

73.      Following the applicant’s testimony about the attack on the car, the Tribunal asked the applicant whether there were any other incidents that occurred involving him in Pakistan. In response, the applicant said ‘I don’t remember who were there, but once they attacked me, they grabbed me and they slapped and punched me and they warned me to stay away from the case’.

74.      The Tribunal asked the applicant where this claimed incident happened and he said ‘I was going to the home when this happened’.

75.      The Tribunal asked what the applicant meant by him being ‘grabbed’ and whether this meant those that attacked him had taken him anywhere or just grabbed him and attacked him on the spot. The applicant said ‘because I was taking the short cut that time and going through the fields and they grabbed me there and I was so upset I didn’t know what to do and they punched me and slapped me there and after some time they released me at some distance’.

76.      The applicant said he did not remember the exact date of this alleged incident, but he thought it happened in 2010.

77.      Furthermore, the applicant said ‘because I’ve been through a lot and sometime[s] I forget things, sometime[s] I even forget when I go home, where is my home, so I can’t exactly remember’.

78.      The Tribunal put to the applicant at the hearing that he had made a claim in his Application that, due to his involvement in the blasphemy case, he was ‘kidnapped’ (that is, bundled into a car) and beaten several times in 2010. At the departmental interview, the applicant did not mention this alleged kidnapping, but said that he was beaten once and this occurred with other lawyers due to his involvement in the Lawyers’ Movement, not as a result of his participation in the blasphemy case. Additionally, the Agent’s Submissions said the applicant was bundled into a car on one occasion. The applicant referred at the hearing to being ‘grabbed’ in the fields and assaulted, but not specifically to being ‘kidnapped’ and bundled into a car.

79.      For completeness, the Tribunal notes the DFAT Country Information that states ‘[k]idnapping is common in parts of Pakistan. While in some cases kidnapping is associated with family and domestic disputes, it is also a tool linked to security and/or political agendas’.[10]  It further states that ‘DFAT understands serious crime across Pakistan…has reduced significantly’.[11]

[10] DFAT Country Information Report, Pakistan, dated 20 February 2019, page 22.

[11] ibid., page 23.

80.      At the end of the hearing, the applicant’s migration agent submitted that it may be that the applicant’s reference to the people grabbing him in the fields and releasing him ‘at some distance’ implies that a vehicle was involved and that this may have been the kidnapping incident that the applicant had previously outlined in his Application.

81.      While the Tribunal gives the applicant the benefit of the doubt that one incident occurred in which he was bundled into a car and slapped and punched by people who were opposed to his representation of an alleged blasphemer, and that this incident occurred in 2010, the Tribunal is not satisfied that there were multiple such incidents or that the applicant was beaten with sticks during any alleged incidents, as claimed in the Application, but which was not referred to by the applicant at the hearing. The applicant also did not mention any such incident at the departmental interview; the applicant referred at that interview to being beaten up with other lawyers due to his involvement in the Lawyers’ Movement, not because of the blasphemy case, and that this separate incident occurred in 2011. This was the only time the applicant made this claim in relation to the Lawyers’ Movement; for example, despite being asked multiple times by the Tribunal to detail all incidents that had occurred, he did not make this claim at the hearing and he did not make it in his Application. For completeness and the avoidance of doubt, the Tribunal is satisfied that the applicant may have experienced some indiscriminate physical violence as a result of his involvement in the Lawyers’ Movement, such as during protests in the streets of Pakistan with large numbers of people and the associated violence that can occur at such events, but it is not satisfied that the applicant was specifically targeted in this attack because of his representation of a person accused of blasphemy or because of his involvement in the Lawyers’ Movement.

82.      In relation to the incident in the fields, the Tribunal notes that the applicant said it occurred in 2010, which the Tribunal so finds, in addition to finding that no further incidents occurred because of the applicant’s representation of a person accused of blasphemy. That is, other than the indiscriminate physical violence the Tribunal accepts the applicant may have suffered during the Lawyers’ Movement in 2011, the applicant did not suffer any physical attacks after 2010, including up to and after 2013 when the blasphemy case concluded with the acquittal of the applicant’s client. In this way, the Tribunal finds that the 2010 attack on the applicant was a one-off and contained incident related to the blasphemy case and the perpetrators’ displeasure at his representation of someone accused of blasphemy. It did not occur again after 2010.

83.      As a result of the Tribunal’s finding regarding these claims from the applicant, including the incident in the fields, the Tribunal is not satisfied that there is a real chance that, if the applicant returned to Pakistan, he would be persecuted for reasons of his race, religion, nationality, membership of a particular social group or political opinion pursuant to s.5J(1)(b) of the Act. Additionally, because of the Tribunal’s findings, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm pursuant to s.36(2)(aa) of the Act.

Harassment of family

84.      Following the applicant’s testimony about the incident in the fields, the Tribunal asked the applicant whether any other incidents or threats had occurred in Pakistan.

85.      The applicant said ‘they harassed my family, as well. And even when I came to Australia they were still doing this to my family, so it’s something like ongoing thing’. Because of the lack of detail provided by the applicant, the Tribunal asked what had happened to his family and the applicant said ‘once my younger sister and my younger brother were going somewhere and they stopped them and slapped one of them and asked them about me that where I am now’. Further, the applicant said ‘because they’re well connected and there is a mosque in my street so it’s pretty normal that they keep coming to where I live’.

86.      The Tribunal asked the applicant how these people were still making threats or harassing his family. The applicant replied ‘whenever they see that there are not many people in the street, they knock on our door and they mostly ask about me whenever they want to know about myself and once they said that whenever he come back, we will kill him’. The applicant said further that ‘this is very common routine now, over there’. 

87.      The Tribunal put to the applicant that his Agent’s Submissions claimed that threatening notes were thrown inside his family’s home, which claim was not made by the applicant at the hearing.

88.      Additionally, in both the Application and at the hearing, the applicant said his family were still receiving threats while he was in Australia, however the Agent’s Submissions stated that: ‘These incidences have stopped since [the applicant] came to Australia’. In relation to this point, the applicant’s migration agent told the Tribunal at the end of the hearing that the Agent’s Submissions could have been clearer in stating that the applicant’s family did receive threats while the applicant was in Australia and that those threats have ‘now’ stopped, not that these claimed threats had stopped when the applicant came to Australia.

89.      In accordance with the Tribunal’s above findings, while the Tribunal gives the applicant the benefit of the doubt that he and his family received threats and harassment regarding his involvement in the blasphemy case, it is not satisfied that any threats or harassment continued beyond the conclusion of the applicant’s representation of the person accused of blasphemy in 2013.  The applicant provided the Tribunal at the hearing with minimal detail about the claimed harassment of his family, other than referring to one of his siblings being slapped in the street (which was inconsistent with his Application, where he stated that two siblings were slapped in the street) and asked his whereabouts (which was also claimed in the Application, but not at the departmental interview or the AAT Statement), his family being asked his whereabouts at their family home and once making the threat that the applicant would be killed if he returned to Pakistan. In this regard, the applicant’s evidence was unconvincing. The Tribunal is satisfied that the claimed harassment was contained to the period from around the time the applicant commenced his representation of the accused blasphemer in 2010 until 2013 when his client was acquitted of this charge by the court in Pakistan.  

90.      As a result of the Tribunal’s finding regarding the applicant’s claims in relation to the harassment of his family, the Tribunal is not satisfied that there is a real chance that, if the applicant returned to Pakistan, he would be persecuted for reasons of his race, religion, nationality, membership of a particular social group or political opinion pursuant to s.5J(1)(b) of the Act. Additionally, because of the Tribunal’s findings regarding the alleged events, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm pursuant to s.36(2)(aa) of the Act.

Harassment by telephone

91.      The applicant was asked by the Tribunal about his claim, first made at the hearing, that he had been harassed over the telephone, specifically it asked the applicant what happened and when this occurred.

92.      The applicant said ‘they were just calling on my chamber[s]’ phone numbers and mostly they were unknown and just to threat me that “don’t come out, we’ll do bad to you” or “we’ll kill you” or threatening’.

93.      The Tribunal asked the applicant the dates that these phone calls occurred and he said ‘mostly when the hearing date is close they use to call and threat and sometime my clerk was telling me that they keep on calling and things like that, especially when there was time of witness in the court, during that time’. The Tribunal put to the applicant that, from the documentation before it, the blasphemy case started in 2010 and asked again whether the applicant recalled when the telephone calls occurred. The applicant said ‘they actually just wanted to take favour from me and especially during those days when we went to court for the evidence recording’.

94.      In relation to the applicant’s testimony at the hearing, it changed from describing alleged threats made during telephone calls to his chambers and into an allegation that he was seemingly being asked to do certain things in his representation of his client that would not favourably advance his client’s defence of the charge of blasphemy. This allegation was further described by the applicant later in the hearing when he said he was ‘easily approachable so they can make changes in the case’. The Tribunal hearing was the first time this claim had been made by the applicant. The Tribunal accepts that, on this point, the applicant received verbal pressure from people to alter or disadvantage his client’s case so it was less likely to be successful and that this would have occurred around the time the case was being heard in court, but the Tribunal is not satisfied, based on the applicant’s shifting, vague and unconvincing evidence at the hearing, at which he raised this claim for the first time, that specific threats were made to the applicant in telephone calls to his chambers regarding his ongoing involvement in the blasphemy case. 

95.      As a result of the Tribunal’s finding regarding the applicant’s claims in relation to the claimed harassment by telephone, the Tribunal is not satisfied that there is a real chance that, if the applicant returned to Pakistan, he would be persecuted for reasons of his race, religion, nationality, membership of a particular social group or political opinion pursuant to s.5J(1)(b) of the Act. Additionally, because of the Tribunal’s findings regarding the alleged events, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm pursuant to s.36(2)(aa) of the Act.

Other incidents or threats

96.      The Tribunal asked the applicant whether there were any other incidents or threats that he wanted to raise with the Tribunal. The applicant replied as follows: ‘It’s a lifelong threat over there for me, because when I was there I was hiding myself and doing my work [discreetly] from them’. Additionally, the applicant said ‘like I mentioned earlier, what they did to my car as well’. The applicant did not raise at the hearing any other incidents or threats to those detailed above in these reasons.

97.      The Tribunal later in the hearing again asked the applicant whether there were any other incidents or threats that had occurred in Pakistan. The applicant said ‘it’s basically an ongoing thing, on and off, and I just think that there is no way for me to go back to my country’. Again, the applicant did not raise any other incidents or threats to those detailed above in these reasons.

Summary of claims at hearing

98.      As a result of the applicant not raising with the Tribunal any additional incidents or threats to those he had already raised at the hearing, the Tribunal put to the applicant a summary of those incidents and threats that he had told the Tribunal at the hearing had occurred in Pakistan, as follows:

a.    Being grabbed in the fields and slapped and punched and warned to stay away from the case, possibly in 2010;

b.    Also in 2010, when the applicant was going to court, he was attacked and his car was damaged by sticks and guns and it was fired upon;

c.     The applicant’s sibling was slapped and asked his whereabouts;

d.    The applicant’s family being harassed while the applicant is in Australia; people knocked at his family’s door and asked his whereabouts and have once said that when the applicant returns to Pakistan he will be killed; and

e.    The applicant was harassed by telephone, when people called his chambers’ telephone at times during the court case.

Inconsistencies

99.      After putting the above summary to the applicant at the hearing, the Tribunal put to him inconsistencies and incidents previously mentioned in written documentation before the Tribunal that were not mentioned by the applicant at the hearing, despite the Tribunal twice asking the applicant at the hearing for details of any other incidents or threats that had occurred in Pakistan.

100.      The applicant replied ‘It’s not easy for me to tell you everything when I recall those incidents, so maybe that’s why’.

Attack on chambers

101.      The Tribunal put to the applicant at the hearing that at the departmental interview in March 2017, the applicant said that his legal chambers had been fired at when he and others were inside. At that interview, the applicant initially said that this incident occurred in 2013, but he then ultimately said it occurred in 2010. The Tribunal told the applicant that this claim was not made at the hearing or in any document before the Tribunal, including in his Application and AAT Statement.

102.      The Tribunal is not satisfied, based on the evidence, that this alleged incident occurred. The applicant did not make this claim in his Application; it was only made at the departmental interview and with very little detail about the claimed attack on his chambers. In addition, the applicant changed his testimony at the departmental interview about the year in which this alleged incident occurred, from 2013 to 2010. As previously noted in these reasons, the Tribunal accepts that the applicant experienced some level of physical and verbal harassment and intimidation in relation to his representation in court of an alleged blasphemer and his involvement in the Lawyers’ Movement in Pakistan. However, the Tribunal is not satisfied on the totality of the evidence regarding the alleged attack on his chambers that this incident did in fact happen.  

103.      As a result of the Tribunal’s finding regarding the applicant’s claims in relation to the attack on the chambers, the Tribunal is not satisfied that there is a real chance that, if the applicant returned to Pakistan, he would be persecuted for reasons of his race, religion, nationality, membership of a particular social group or political opinion pursuant to s.5J(1)(b) of the Act. Additionally, because of the Tribunal’s findings regarding the alleged events, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm pursuant to s.36(2)(aa) of the Act.

Approaches to applicant not to assist people

104.      The Tribunal put to the applicant at the hearing that at the departmental interview he said that on one or two occasions he was approached by people [near] the law courts in mid-2013 and told to not assist people. However, in his AAT Statement, the applicant said that on three or four occasions he was approached in the street by ‘mullahs or other people with fundamentalist leanings’ who told him ‘things like “Don’t Join this case or else…”’. The applicant said in his AAT Statement that he could not ‘recall exactly the dates’. These claims were not made by the applicant in his Application or at hearing.

105.      Despite the applicant’s changed evidence between his departmental interview in 2017 and his AAT Statement in 2018 regarding being approached and told not to provide legal assistance to people in Pakistan, in addition to not raising this claim at the hearing or his Application, the Tribunal gives the applicant the benefit of the doubt and accepts that he was approached between 2010 and 2013 regarding his representation of an alleged blasphemer during that period (but it is not satisfied, based on the evidence, that the applicant received approaches not to assist people generally). These approaches to the applicant coincide with some of the physical and verbal harassment found to have been suffered by the applicant at the time he was representing the alleged blasphemer in Pakistan. However, as a result of the Tribunal’s findings regarding the applicant’s claims, the Tribunal is not satisfied that there is a real chance that, if the applicant returned to Pakistan, he would be persecuted for reasons of his race, religion, nationality, membership of a particular social group or political opinion pursuant to s.5J(1)(b) of the Act. Additionally, because of the Tribunal’s findings regarding the alleged events, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm pursuant to s.36(2)(aa) of the Act.

Applicant’s response

106.      The Tribunal asked the applicant whether he wanted to respond to these inconsistencies put to him by the Tribunal. The applicant responded by saying: ‘it’s quite common over there, like it’s already happening there. I’ve already told you and provided you whatever is happened over there and what my friend told me and because I’m mentally upset so that’s why sometime[s] I missed those things’.

107.      The Tribunal told the applicant at hearing that, in circumstances where his story had changed from what he told the Department to what he told the Tribunal, the Tribunal may not believe the applicant and could reject his application on the basis that the Tribunal is not satisfied that he has provided satisfactory evidence to support his claims.

108.      As previously referred to in the Tribunal’s reasons, despite the applicant’s mental health issues, said to be anxiety and depression (although not evidenced by a certificate from a medical practitioner), the Tribunal is satisfied that the applicant was able to meaningfully participate in the Tribunal hearing. The applicant engaged with the Tribunal’s questions and answered all of those put to him. In this way, the Tribunal found the applicant to not be evasive or deliberately misleading in his evidence. However, the Tribunal is not satisfied that the applicant was a witness of credit. For example, the applicant gave confused and shifting testimony at the hearing regarding his alleged upbringing as a child by his grandparents. Additionally, the applicant’s testimony at the hearing regarding claimed violent and life-threatening attacks against him was inconsistent and often lacked the detail expected from someone who has suffered such occurrences. In relation to some claims, the Tribunal was left with the impression that, although the applicant had suffered some physical and verbal attacks as a result of his representation of an alleged blasphemer, the applicant had embellished events to appear worse than their actuality. Additionally, the applicant did not raise at the hearing certain alleged incidents that he had previously, such as in his Application or at the departmental interview, despite the Tribunal providing multiple opportunities during the hearing for him to raise additional incidents or threats. There were also, as detailed in these reasons, some substantial inconsistencies between the applicant’s testimony at the hearing and the documentation before the Tribunal. Further, the credibility of the applicant’s claims is undermined by his more than two and a half year delay between arriving in Australia on a student visa and applying for a protection visa, which delay is discussed further below. In addition, the Tribunal finds that the applicant’s evidence regarding his association with the majority governing party in Pakistan (also discussed further below in these reasons) contributes to a finding that he was not a credible witness.

Length of time between arrival and application for protection

109.      [In] November 2013, the applicant arrived in Australia on a student visa.

110.      On 3 July 2016, the applicant completed an application for a protection visa in Australia.

111.      As a result, the Tribunal asked the applicant at the hearing why he had waited more than two and a half years after arriving in Australia to apply for a protection visa. The applicant replied: ‘It was the very first time I left my home and when I came here I was already worried and under pressure what was happening back home, all I understood was that I have to be here for a long time so I can save my life, I didn’t know what to do. I didn’t hire any lawyer, so I just waited so I can be alive’.  

112.      The Tribunal is not satisfied with the applicant’s explanation for the delay in his application for a protection visa after arriving in Australia. If the applicant considered that he needed to be in Australia for ‘a long time so I can save my life’ he presumably would have made an application for a protection visa soon after arriving in Australia to seek to gain a right to permanent protection in Australia; the applicant did not do this. The applicant arrived on a student visa in November 2013 and it was not until July 2016 that the applicant applied for a protection visa and put his claims to the Department in the Application. While the Tribunal acknowledges that the applicant did not hire a lawyer in Australia (or a migration agent until after he had applied for a protection visa), the applicant was a practising lawyer in Pakistan and he was capable of completing and submitting an application to the Department for a student visa in 2013. Moreover, the Tribunal does not find it credible that the applicant would not have sought protection in Australia sooner if he genuinely feared serious or significant harm in Pakistan. As a result, the Tribunal is satisfied that the applicant could have, if he genuinely feared being seriously or significantly harmed in Pakistan, applied for protection soon after arriving in Australia, not some two and a half years later. In addition, on 8 June 2016, the applicant received notification from the Department of its intention to consider cancellation of his student visa. On 3 July 2016, under one month after receiving this notification from the Department, the applicant completed an application for a protection visa in circumstances where his student visa was to be cancelled by the Department on 18 July 2016.

141.      The Tribunal also notes that the DFAT Country Information provides the following detail on the conditions for returnees to Pakistan:[16]

In practice, returnees tend to leave Pakistan on valid travel documents and therefore do not commit immigration offences under Pakistan law. Those who return voluntarily and with valid travel documentation are typically processed like any other citizen returning to Pakistan.

The government issues ‘genuine returnees’ with temporary documents when they arrive. A genuine returnee is defined as someone who exited Pakistan legally irrespective of how they entered destination countries. Those who are returned involuntarily or who travel on emergency travel documents are likely to attract attention from the authorities upon arrival. MOI [Ministry of the Interior] will interview failed returnees and release them if their exit was deemed to be legal, but may detain those deemed to have departed illegally. People suspected of or charged with criminal offences in Pakistan are likely to face questioning on return, irrespective of whether they departed legally or not.

DFAT understands that people returned to Pakistan involuntarily are typically questioned upon arrival to ascertain whether they left the country illegally, are wanted for crimes in Pakistan, or have committed any offences while abroad. Those who left Pakistan on valid travel documentation and have not committed any other crimes are typically released within a couple of hours.

…

Returnees are typically able to reintegrate into Pakistani community without repercussions stemming from their migration attempt…

DFAT assesses that returnees to Pakistan do not face a significant risk of societal violence or discrimination as a result of their attempt to migrate, or because of having lived in a western country. Nevertheless, DFAT notes societal or official discrimination or violence can still occur due to the reason they attempted to migrate.

[16] DFAT Country Information Report, Pakistan, dated 20 February 2019, pages 67-68.

142.      The Tribunal is satisfied, based on all of the evidence, that the applicant would be able to return to his home country of Pakistan. Although blasphemy is a serious crime in Pakistan, the applicant has not been accused of such a crime. The applicant was part of a legal team that represented a person alleged to have committed blasphemy. The applicant’s representation of this person spanned the period 2010 to 2013. The applicant’s client was acquitted by the court in Pakistan in 2013; he has never been found guilty of blasphemy, unlike Ms Asia Bibi (who was ultimately acquitted). In addition, the Tribunal has found that neither the applicant nor his family suffered any physical or verbal harassment since the end of his representation of a person accused of blasphemy in 2013. Although the applicant may face some questioning by authorities upon his return (like all returnees), because he departed Pakistan on valid documentation and has not committed any crimes (or been alleged to have committed any crimes), the Tribunal is satisfied that the applicant would shortly be released and able to reintegrate into the Pakistani community, including because of his education and employment history and continued strong links to his family in Pakistan. Finally, for the aforementioned reasons and based on the Tribunal’s findings, the Tribunal is also satisfied that the applicant would not face societal or official discrimination or violence because of his attempt to migrate to Australia.  

143.      As a result of the Tribunal’s findings regarding the applicant’s potential return to Pakistan, the Tribunal is not satisfied that there is a real chance that, if the applicant returned to Pakistan, he would be persecuted for reasons of his race, religion, nationality, membership of a particular social group or political opinion pursuant to s.5J(1)(b) of the Act. Additionally, because of the Tribunal’s findings, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm pursuant to s.36(2)(aa) of the Act.

Re-locate within Pakistan

144.      The Tribunal asked the applicant whether he thought he could move to another part of Pakistan. The applicant said ‘they have branches all over Pakistan, they are well connected and my main aim is to be alive and not to go back to Pakistan’.

145.      As a result of the applicant’s response, the Tribunal asked the applicant why he thought people, taken to be religious extremists, would be able to find him in other parts of Pakistan, to which the applicant said: ‘I can’t go there and hide myself in eternal, they can find me at any cost because all the cases in Pakistan related to blasphemy end up in murder. They killed the Governor and also a student in Peshawar; he just said some words and got killed as well’. In addition, the applicant said ‘as a reference, in the case of Asia Bibi, no government officials were able to release her because they were all scared and under pressure by extremists, so when Canada gave her the immigration, they just moved her in the night time and straight away’. The applicant continued: ‘nobody took responsibility that “we will protect her, she can stay in Pakistan”, not even the government’. The Tribunal has in these reasons previously considered the case of Ms Asia Bibi, and notes again that she is a Christian woman initially found guilty of blasphemy by a court in Pakistan, but ultimately acquitted. The applicant has made no claim that he has been accused of blasphemy. The applicant did represent a person so accused, but that person was acquitted. In relation to the applicant’s claim that ‘all the cases related to blasphemy end up in murder’, the Tribunal cites the following DFAT Country Information, which states that:

an estimated 100 people are currently serving prison sentences for blasphemy. Of the 100 people in prison, 40 face the death penalty or a life sentence. Pakistani courts have dismissed several blasphemy cases for lack of evidence. Around 95 per cent of blasphemy cases end in acquittal, although often only after extended periods of detention. DFAT is not aware of any executions of people convicted of blasphemy.

146.      As a result of the above DFAT Country Information, the Tribunal does not accept the applicant’s assertion that all blasphemy cases end up in the murder of the accused (or those related to the accused, including their legal representatives).  

147.      In relation to re-location in Pakistan, the DFAT Country Information states that:[17]

Article 15 of the Constitution guarantees the right to freedom of movement in Pakistan. Internal migration is widespread and common.

Large urban centres such as Karachi, Islamabad and Lahore have ethnically and religiously diverse populations, and offer some anonymity for people fleeing violence by non-state actors (see relevant sections). DFAT assesses that groups facing official discrimination (see relevant sections) will face discrimination in all parts of the country.

[17] DFAT Country Information Report, Pakistan, dated 20 February 2019, page 66.

148.      The Tribunal informed the applicant that if it was satisfied that his fears relate to only one region of Pakistan and that he could re-locate to a safe area the Tribunal may reject his claim. The applicant replied as follows: ‘I’m from Punjab and I’m known person there, how can I live without my family there and just in a closed one room. In other province of Pakistan people are going in different countries because those extremists are everywhere…if somebody tells me that you can go and live there like that and this is your life guaranteed then I can…even Governors are not safe over there…when it comes to these type of cases, whoever try to help them they end up murdered, 100 per cent’.

149.      The Tribunal is satisfied, based on the evidence, that the applicant could, if required, re-locate to another city in Pakistan. The Tribunal notes that the city of Lahore is [not far] from the applicant’s city of [City 1] and the city of Islamabad is approximately [number] kilometres from that same city. These two alternate cities are considered large urban centres offering some anonymity from those fleeing non-state actors.

150.      However, the Tribunal refers to its earlier findings that the applicant has not suffered any physical or verbal harassment since the end of his representation of the alleged blasphemer in 2013. It also refers to its findings that the applicant’s family has not suffered any verbal harassment since 2013.

151.      The Tribunal finds that the applicant and his family will not be subject to any future threats, harassment or violence in his home city of [City 1] in connection with his representation of an alleged blasphemer between 2010 and 2013. To this end, the Tribunal notes that, on the evidence of the applicant at the hearing, the applicant’s family has not re-located from the address it has resided at for a number of decades in [City 1] and for all of these reasons the Tribunal finds that the applicant would not need to re-locate to another part of Pakistan upon his return to that country.

152.      As a result of the Tribunal’s finding that the applicant will not be harmed in [City 1], the Tribunal is not satisfied that there is a real chance that, if the applicant returned to Pakistan, he would be persecuted for reasons of his race, religion, nationality, membership of a particular social group or political opinion pursuant to s.5J(1)(b) of the Act. Additionally, because of the Tribunal’s findings, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm pursuant to s.36(2)(aa) of the Act.

Other reasons why applicant cannot return

153.      The Tribunal asked the applicant whether there were any other reasons why he could not return to Pakistan. The applicant said ‘honestly I don’t want to go, I can’t even think that because when I go to Pakistan obviously I have to meet my family, I am their enemy, not my family, so sooner or later they are going to find me. My family told them that I am in [Country 1] or somewhere else but they still don’t know that I am residing in Australia…because I am the one who supported that person, even if you call my chambers today you will get to know that how I was doing help and always standing with the poor people and if I go there I won’t be able to protect myself…nobody will protect me or help me and my sin is that I was standing with an innocent person’.   

154.      The migration agent at the end of the hearing made the submission that the applicant would face a real risk of serious harm if he was returned to Pakistan because ‘people do remember’ his involvement in the blasphemy case and when his return to that country was known it could be like a ‘flame starting a bushfire of violence’ because mob violence was easily incited against individuals, and the police, even if they wanted to, would be powerless, although she doubted that they would want to assist the applicant. Additionally, the agent said that if the applicant returned to practice as a lawyer in Pakistan he would be recognised. As a result, she submitted, the applicant warrants Australia’s protection. 

155.      At the end of the hearing, the applicant said that ‘whatever I told you was it’s truth, Imran Khan was…he was just there, his presence was just for the protest. And because of my mental state currently, I may be telling you dates or things here and there, but whatever I told you was the truth’. The applicant continued: ‘I am leaving everything on truth based because when I left my country I knew that I would be killed and I am 100 per cent sure if I go back to my country I will get killed’.

156.      As a result of the Tribunal’s findings described throughout these reasons, the Tribunal is not satisfied that there is a real chance that, if the applicant returned to Pakistan, he would be persecuted for reasons of his race, religion, nationality, membership of a particular social group or political opinion pursuant to s.5J(1)(b) of the Act. Additionally, because of the Tribunal’s findings, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm pursuant to s.36(2)(aa) of the Act.

CONCLUSION

157.      The Tribunal has considered the applicant’s claims individually and cumulatively. In this regard, the Tribunal has considered all documents in the files maintained by the Department and the Tribunal in relation to the applicant, together with all documents provided to the Tribunal by or on behalf of the applicant for the review of the Department’s refusal decision (including the Agent’s Submissions and their attachments), in addition to the testimony of the applicant and the verbal submissions of his migration agent at the hearing. 

158.      The Tribunal is not satisfied that the applicant has a well-founded fear of persecution because of his race, religion, nationality, membership of a particular social group or political opinion. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations because he is a refugee or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm.

159.      The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.

160.      Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa) of the Act. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

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

decision

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

W Frost
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.

…