1706687 (Refugee)

1706687 (Refugee) [2021] AATA 617 (10 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1706687
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Luke Hardy
DATE:10 March 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 10 March 2021 at 2:07pm
CATCHWORDS
MIGRATION – protection visa – Pakistan – fear of harm from family for not entering arranged marriage and marrying another woman in Australia – claim that family disowned him and planned for his brother to come to kill him – credibility – inconsistent claims and evidence – delay in applying for protection – student visa ceased and period as unlawful non-citizen before marriage – marriage ceased – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65, 424AA
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Sun v MIBP [2016] FCAFC 52
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 24 March 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
[The applicant] is a citizen of Pakistan. He applied for an Australian student visa on 12 June 2009. He was granted the visa on 24October 2009. He first arrived in Australia [in] December 2009 and departed again for Pakistan about six or seven weeks later [in] January 2010 he remained in Pakistan for a month and arrived here again [in] February 2010. His student visa ceased on 1 September 2011 and he married an Australian citizen called [Ms A] [in] March 2013. The relationship ended. [The applicant] lodged a protection visa application on 13 January 2016.
The delegate refused to grant the visa on 24 March 2017 and [the applicant] then sought merits review of that decision.
[The applicant] appeared before the Tribunal on 25 February 2021 to give oral evidence and present arguments. He presented two witnesses in person, both friends, and one, his sister [Ms B], via telephone in Pakistan. He was accompanied at the hearing by his adviser, a registered migration agent.
The hearing was facilitated by an interpreter in the Urdu-English medium.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the “refugee” criterion, or on other “complementary protection” grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, he or she is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she is outside the country of his or her former habitual residence and, owing to a well-founded fear of persecution, is unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (“the complementary protection criterion”). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues
The main issue in this case is whether [the applicant] is entitled to protection in Australia as a refugee or, if not, on complementary protection grounds.
For the following reasons, I have concluded that the decision under review should be affirmed.
Claims to the Department
[The applicant] claimed in his original protection visa application that he was born and grew up in the city of Rawalpindi. He also claimed to have resided at the same family address all the time. He had some study periods in [Country 1] before coming to Australia. He claimed in his original application form that he returned to Pakistan in January 2010 to visit his sick mother. He claims his mother and five siblings, including three brothers and two sisters, all reside in Pakistan.
[The applicant] claimed that his family and his uncle’s family arranged for him to be betrothed to his young cousin [Ms C] while he was still a student in Pakistan. He said they were best friends at the time but that she was “just a little girl.” He told his parents he wanted to finish his education first and they let him travel abord to study in [Country 1]. His father died in December 2006 and he returned for the funeral. He claimed he remained in Rawalpindi and said the issue of the intended arranged marriage was never raised throughout 2007 and some of 2008. He said that in 2008 the pressure was on for him to marry [Ms C]. I note, though, that there was no marriage in 2008 or 2009.
[The applicant] said he had been trying to get a visa for [Country 2], without success, but was able to obtain one for Australia and travelled here in December 2009, presumably to prepare for his first semester. He then claimed that, after only one month, his brother telephoned him to say their mother was ill and “in a critical condition.” He claimed he returned to Pakistan and found his mother perfectly well. He claimed he had been the victim of a ruse to get him back to Pakistan for a ring exchange ceremony with [Ms C]. He said that he returned to Australia after the ceremony, which he said he could not avoid, although I note he remained in Pakistan a month.
[The applicant] said he completed a Master of [Subject 1] degree in November 2010 but decided he wanted to study some more and enrolled in a Master degree course in [Subject 2]. During that time he met [Ms A] and they entered into a relationship. He said he told his mother about his relationship with [Ms A], his mother then cutting off all financial support for his studies to force him, he claimed, to return to Pakistan. He said he became an unlawful non-citizen in 2011 when his student visa ceased. He did not seek protection from refoulement to Pakistan at that time, but remained in Australia illegally until 2016.
[The applicant] said that he and [Ms A] exchanged rings in June 2012, after [Ms A] was granted permission by her parents to marry. He claimed he then called his mother to tell her about the engagement. He claimed that as a result of this his family paid for a notice in a newspaper to announce that he was disowned. He claimed that his sister [Ms B] reported his brother and uncle to the police as they had indicated a resolve to punish him for dishonouring their two families.
[The applicant] said he and [Ms A] married in February 2013. He said that after this he stayed in touch with [Ms B] who informed him that their family was trying to send his brother [Mr D] to Australia specifically to kill him. He claimed his brother’s visa application for Australia was rejected.
[The applicant] claimed that he lived with guilt throughout his time with [Ms A]. He claimed he told [Ms A] about his brother’s attempt to come here to kill him. He claimed that [Ms A] grew fearful for herself and her daughters and left him in May 2014 to save her and their lives.
[The applicant] said the danger of being killed by his family in Australia or, on return or removal to Pakistan, is real. He cited an alleged case of a relative of his mother’s having travelled to the USA to kill his sister in a matter of honour and killing her husband instead.
[The applicant] provided photographic and video evidence of his marriage with [Ms A].
[The applicant] also submitted, over time, news reports of honour killings by Pakistani citizens in foreign countries. He submitted this material apparently in support of the position that there is a real ethos in Pakistan that encourages revenge across borders. He also submitted an article about a learner-driver youth in Australia, charged with a drink-driving homicide offence, who escaped back to Pakistan, whilst on bail, using a false passport. This appeared to go to arguing that his brother might conceivably be unafraid of Australian law enforcement in the event of making his way to Australia to kill him.
[The applicant] submitted a letter from [Ms A], dated 23 February 2016, subsequent to the lodgement of the protection visa application, saying that She could recall [the applicant] having told her of his problems with his family and of how this could led to an honour killing. She said she put an end to the “hopeless relationship” for the sake of her daughters. Implicitly, she cited [the applicant] as the source of all the information she had regarding the alleged family vendetta, which is to say that it is difficult to regard this letter as being independently corroborative.
Another (undated) letter, from a [Mr E], purporting to be a friend of [Ms A]’s, and claiming that he heard about the family’s problems with threats from [the applicant]’s relatives in Pakistan. The author claimed to have had a role in encouraging [the applicant] and [Ms A] to separate.
A third letter is from [Mr F], who later appeared before the Tribunal. The witness here claimed to have known [the applicant] for five years and attested to the genuineness of the marriage with [Ms A]. He claimed to have acted as a mediator between [the applicant] and [Ms A] during their break-up, which he said, all stemmed, according to what he had heard, from the stress of the threats [the applicant] was receiving from his family.
The authors of all these undated letters do not suggest that the source of the relevant information they convey was anyone other than [the applicant].
[The applicant] submitted a photocopy of a reference letter from a solicitor, on which the latter has omitted putting a date. There are, however, two references to 2016, the first being some kind of reference number, entered by hand. The letter, in English on English-language letterhead, says that [the applicant]’s sister has made an “application” to the police against [the applicant]’s brother, uncle and “etc.” The letter purports to be countersigned by a police authority, but it is not; however, it is “attested” to by another lawyer, or advocate, as at 9 February 2016, a date also following the lodgement date of the original protection visa application.
[The applicant]’s adviser submitted to the Department a covering letter dated 21 June 2016. The letter contains independent reports about honour killings in Pakistan and about persons denied by their families the right to marry for love, along with legal argument and a summary of Pakistan’s general historical background.
[The applicant] also submitted an undated three-page statement in which he described again the claims he had made with his original application, adding more detail about [Ms C]’s father and his own father’s cousin being a police officer. He said that his sister told him about his brother’s efforts to obtain a visa for Australia after his February 2013 marriage to [Ms A]. He said his brother’s visa application was rejected.
[The applicant] did not cite any nexus with the refugee criteria in s.5J(1)(a). He said his claims related to a fear of being harmed in an act or acts of revenge for defying traditional tribal and cultural values, engaging in an inter-racial relationship (presumably with [Ms A] who, though Muslim, is of [Country 3] ancestry), engaging in a love relationship and defying plans for an arranged marriage.
[The applicant] submitted a photocopy of a cut-out of small notice in a newspaper, in Urdu and English, stating that [the applicant]’s family, of the home address he provided in his original protection visa application form, had disowned him “for his bad habits and disobedience.” On the same page is a separate cut-out of a newspaper’s banner, apparently dated 2012. The implication is that the two cut-outs come from the same published newspaper edition. There is a notary public’s stamp and initials, with the stamped date 2 June 2015, under these two items on the same photocopied page.
[The applicant] also submitted what purport to be photocopies of two separate reports to police from his sister, one dated 6 July 2012 and the other dated 20 February 2013. Both of these reports contain accusations against [the applicant]’s uncle and brothers.
The first report says that the uncle and brothers are angry with [the applicant], who is studying in Australia. The author says she fears they might kill him. She refers to [Ms C]’s family also being angry. She asks the police to take legal action. The whole report is handwritten on otherwise blank paper. Underneath it, also handwritten, are comments and a report registration number purportedly from a police officer, who says that the report has been accepted for investigation and “necessary” action, with a photocopy provided to the author. Looked at rationally, it is self-evident in this report that there really is not any substance in this report that could warrant the attention of initiating a criminal investigation.
The second report, the one dated 20 February 2013, is also handwritten on otherwise blank paper. It describes the issue affecting [the applicant]’s family, namely his having married for love in Australia in defiance of a family arrangement back home and his reluctance to return to Pakistan so that the family can punish him. the report alleges that [the applicant]’s brother [Mr D] has now been conspiring to travel to Australia to kill him. The report asked the police to restrain all of the relatives involved in this conspiracy. Underneath this report, also handwritten, are comments and a report registration number purportedly from a police officer, who says that the report has been accepted for “appropriate” action, with a photocopy provided to the author.
[The applicant] provided photocopies of receipts and invoices attesting to his relationship with [Ms A].
Evidence before the Tribunal
I heard first from the two in-person witnesses.
[Mr G] said he used to know [the applicant] in Pakistan, as he, [Mr G] used to work for the husband of one of [the applicant]’s sisters. I sked him what he wanted to say. In reply, he said it is hard for [the applicant] to go back to Pakistan because his family is rich and has political influence and because of his father and uncle having been police officers.
[Mr G] said he first found out about [the applicant]’s troubles while both were here in Australia in 2014. He said that [the applicant] told him he was separated from [Ms A] and confused. He said he then went back to Pakistan in 2014. He said that before he went back, [the applicant] asked him not to mention or discuss him with anyone back there. He said he nevertheless had to meet [the applicant]’s family. He said that when he met the family he “heard different things about him.” he said he heard that [the applicant] “was engaged there.” He said he did not discuss [the applicant] with them.
I asked [Mr G] if [the applicant]’s family ever asked him about [the applicant] and, in reply, he said they did not even know he and [the applicant] knew each other. This struck me as odd considering he had felt some kind of a social obligation to catch up with the family during a visit to Pakistan. I then put to [Mr G] that, in view of what he claimed, it seemed odd that the family aired views relating to [the applicant]’s marital issues. In reply, he said it just sounded like random family discussion at the time. I asked him if discussion of the topic ended there and he said it did. Then he added that someone in [the applicant]’s family said he had done poorly by the family and ruined its relationship with their relatives. I then asked if the discussion on this topic ended there and, again, he said it did. However, [Mr G] then said that the family went on to say that [the applicant] “cannot come back to Pakistan because he did the worst thing.” I asked if the discussion, which he just described as being a bit of random talk, rather than anything directed, ended on that point and he added that the family told him that [the applicant] “was not accepted in the family any more.” He then said that discussion on the topic ended there.
As noted, the second witness was [Mr F], who had previously submitted a letter in support of the original application. He said that he had known [the applicant] more than ten years, having met him through [Ms A]. He said he had persuaded them both to marry and was surprised three months later when [the applicant] told him he had serious problems with his family back in Pakistan. He said this problem led to the divorce with [Ms A]. He said that [the applicant]’s family is famous and strongly connected to “the government.”
[The applicant] told me he had not had any contact with [Ms C] since 2013. He said the last he heard of her she had gained a BA at university but was just living at home because women in traditional society like their families were not allowed to work. He said his sister was in the same situation: a graduate who was not allowed to get a job. I put to him that it seemed odd that families inflicting such a life on their daughters – and well-off families at that – would go to the expense of supporting them towards university degrees. I also put to [the applicant] that this description of the young adult women in his extended, wealthy urban family seemed to be at odds with generally available information about female professionals including doctors in Pakistan[1], albeit that many female doctors leave the profession to raise their children. [The applicant] said his family is old-fashioned.
[1] “Pakistan attracts 700 female doctors back into practice through online service,” The BMJ, 2019,

[The applicant] said [Ms C] was [Age] at the time the families agreed to their betrothal, and that he was [two years older]. I put to him that this did not sound consistent with an earlier claim about [Ms C] having been “just a little girl” at the time the betrothal was agreed. In reply, he said she was a young girl at the time. I put to him that the age of [age] made [Ms C], at the time, a young adult woman and he essentially agreed.
I asked [the applicant] why he ceased all contact with [Ms C] in 2013 and he said he told her at that time that he was married. I asked him if he ever received news about [Ms C] through another source like his sister [Ms B] and he said he did not because she used to tell him she did not want to talk about [Ms C]. I expressed surprise that, given his sister’s voluntary and active involvement in helping him, not least with his protection visa application, she would be unwilling to share information that might help him with the latter.
I asked [the applicant] what harm his family had caused him so far. In reply, he said his brother had taken his, [the applicant]’s, name out of the family, causing his sister to report him to the police. He also said that before he got married to [Ms A] (“when I was going to get married”), he found out that his brother was attempting to come to Australia to kill him. This information appeared somewhat inconsistent with earlier evidence about learning after the wedding in February 2013, which would appear more consistent with the date of his sister’s second police report.
I asked [the applicant] for more information about his brother’s attempt or attempts to obtain a visa for Australia. I asked if his brother had applied, say, for a visitor visa and he said he did not know. I asked him of he had asked his sister [Ms B] and he did not answer the question on its point, but said she did not have the information. I asked the question again and he said he did ask and that his sister told him that she did not have any information about what kind of visa their brother had attempted to obtain.
The Tribunal called [the applicant]’s sister [Ms B]. She had a prepared statement from which she read and which says more or less the same things as [the applicant]’s own two statements to the Immigration Department. I let he read it at length but interrupted on a couple of occasions with questions going to specific details.
[Ms B] said she did not discuss [Ms C]’s situation with [the applicant] since he came to Australia because she thought he already had enough problems. She also said he did not show any interest in [Ms C]. However, she also said he asked about [Ms C] just once in about 2017 or 2018. She said he had only ever asked casually how she was. She said she never discussed any real details about [Ms C] in reply. Meanwhile, all she could say to me was that when she last talked to [Ms C], the latter was living at home, unmarried and jobless. It seemed odd that these wold be details she felt she needed to keep from [the applicant]. [Ms B] then said that [Ms B] did tell her two things that she did not pass on to [the applicant]: one, that she, [Ms C] was safe only as long as [the applicant] stayed out of Pakistan; and, two, that she loves another man but has not told anyone else lest she be killed.
[Ms B] said that the reports she made to the police were handed back to her without being officially logged, and that the police had only paid lip service to the idea of following them up with actual investigations.
I asked [Ms B] about her other brother’s attempt(s) to visit Australia. She said she did not know anything at all about what formal attempts might or might not have been made to obtain a visa. Then she said she thought her brother, who is married, had applied for a visitor visa. [Ms B] indicated that she and her brother’s wife, who is [Ms C]’s sister, were on good speaking terms. I asked her if her brother’s wife ever said anything about her husband’s efforts to travel to Australia and she commented only on her brother’s determination to come here and kill [the applicant], in keeping with family tradition. I asked [Ms B] again if she and her sister-in-law ever talked about her brother’s plans and she said essentially that they did not speak about it because everyone including her sister-in-law stopped speaking to her after the first police report. I asked her how, in the claimed circumstances, she could have known of the plan at all and she then said that because her brother’s wife is [Ms C]’s sister, the topic sometimes “popped up.”
I asked [the applicant]’s sister if she could tell me what had ever happened to her brother’s attempt(s) to come to Australia, and she said he was “rejected twice.” She said she did not know if he ever tried a third time. I asked her how she knew and she said her elder sister had told her. I asked her then if she could tell me if anyone else was ever included in the visa applications and she said she was not sure, but that they may have included her brother’s wife. She said the visa her brother sought might have been a visitor visa or a student visa.
[The applicant] told me he agreed with his sister’s evidence.
I asked [the applicant] if he had or might be able to produce any evidence of the purported ring exchange ceremony with [Ms C] in 2010. He said he had none because he had not been able to go back to Pakistan to retrieve any. This did not strike me as a being a particularly persuasive explanation as his sister [Ms B] had been sending him a range of material over the years.
I questioned with [the applicant] the logic of his family saying nothing about the betrothal with [Ms C] until 2008 and then doing nothing about it in 2008 or 2009, only afterwards contriving to gull him into returning to Pakistan a month after financially supporting his flight out of the country. In response, he said, vaguely, that before he first arrived in Australia, his family was trying to organise something but without success because he was not listening. He said he was surprised to find his mother well when he returned. He said that she explained to him at the time: “this is between [you and] your brothers.”
Under the protocols of s.424AA of the Act, I put to [the applicant] that I had information before me about a person that, subject to comments or response from him, would be the reason, or a part of the reason, for affirming the delegate’s decision in this matter. I described the particulars of the information, being that his brother had never applied for any visa for Australia in his own right but had, rather, been included as a dependent in one and only one application for a student visa lodged by his wife, [the applicant]’s sister-in-law; that the application was lodged in (October) 2012 (which would have been some months before the wedding with [Ms A], rather than after it); that the application was rejected; and that, in the face of this obstacle, [the applicant]’s brother was evidently never party to any applications for any Australian visas at any other time. In summary, the whole enterprise of getting [the applicant]’s brother into Australia to kill him was channelled or funnelled, as it were, through his wife student visa application and therefore totally dependent on her success in meeting all of the criteria for that visa, which she did not.
I put to [the applicant] that this information appeared relevant because it did not appear consistent with the alleged effort or efforts on his brother’s part to visit Australia, kill him and depart, as his brother would have been totally dependent on his wife and himself meeting the various criteria for a student visa, which include very substantial financial, enrolment, language and health criteria. I put to [the applicant] that subject to the comments or response he gave I might find that the claims about his brother having undertaken steps to come to Australia to kill him were not reliable. This would be relevant to the question of evidence of persecution and/or threatened persecution, which is a significant interstice in the matrix of facts in this case . If I found the claims unreliable this would be a reason or part of a reason for refusing him a protection visa. I asked [the applicant] if he wished to comment and respond then and there, or if he needed more time. He elected to comment and respond immediately.
[The applicant] indicated that he did not know much about his brother’s thinking, but speculated that his brother might have co-opted his wife into pursuing the student visa application as a covert or “dodgy” way of getting into Australia in order to kill him. In response to this, I put to him that it also seemed a very high risk way of trying to come to Australia given the many criteria to be met in order for his wife to be issued the visa.
[The applicant] then speculated that perhaps his brother had already been refused a visitor visa and then decided to try the student visa pathway. I reminded him that his brother’s name appears in Immigration Department records alongside one and only one visa application, being his wife’s unsuccessful student vis application. “I think maybe that the trick here was coming on the dependent visa …” I put to him that he appeared to be speculating baldly. I also reiterated that his brother had evidently made no further attempt to seek any subsequent visa for Australia, which was already a point that I had included under the protocols of s.424AA when I put to him that his brother had been party to one and only one visa application. His brother had been party to one visa application almost nine years ago (some months before [the applicant] had married [Ms A]) and that was all.
I raised with [the applicant] the need to ask all the questions I asked about the documentary evidence in this case, including the two purported reports to police owing to independent evidence regarding the prevalence of forged and falsified documents being generated and used in Pakistan and also used in visa applications from Pakistani nationals.[2]
[2] DFAT Country Information Report: Pakistan, 20 February 2019
At th end of the hearing the adviser told me he would be making further submissions. I asked him if he would like to ask for mor time to make submissions and he said he would. I granted one week.
Post-hearing submissions
On Thursday 4 March 2021, I received a statement from [the applicant] along with some news items about murders and other offences committed by Pakistani nationals in Pakistan and abroad, including the murder committed by Mr Shaukat Parvez.
In particular, [the applicant] was critical of my disclosure of information to him about his brother and sister-in-law under the protocols of s.424AA:
In relation to the issue raised [under s.424AA of the Act] related to my brother's visa application, I note that the Tribunal did not provide sufficient information about it.
a.   It did not provide information to check whether that visa application was in fact my brother. It failed to provide his full name and DOB to verify whether it was in fact my brother.
b.   It failed to provide details of my brother's wife including her name and DOB to verify whether it was in fact my sister in law.
c.   It failed to provide the date of the visa application.
I submit that I was not provided with sufficient information to receive my comment on or response.
I did not know what kind of application he or his wife made because I was not in contact with them. Whatever I heard about the visa application was from my sister who also heard from family circle.
On this issue, I am satisfied that I did give [the applicant] all relevant particulars of the potentially critical information about the visa application lodged by his sister-in-law and his brother. I located the name and birthdate of the brother in [the applicant]’s original protection visa application form. This information was run through the Department’s data resources and the name and birthdate came up in elation to one visa application only: an application lodged by a person identified as the spouse of [Mr D], born on [Date]. [The applicant] suggested that I did not give him a chance to comment on whether I had the right person when I referred to his sister-in-law because I did not disclose to him her name and date of birth, both of which were in the material I located, i.e., the material citing his brother’s name and date of birth. I have considered [the applicant]’s argument here. However, I am confident that I did not provide [the applicant] with insufficient information for him to comment on or respond to meaningfully in this instance. [The applicant] did not provide evidence to suggest that I had located information about any irrelevant persons.
[The applicant]’s post-hearing submission also contains some independent country information citing a low percentage of qualified women being employed in Pakistan. I have given due consideration to that information.
Findings with regard to s.36(2)(a) of the Act
In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[3] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[4]
[3] MIMA v Rajalingam (1999) 93 FCR 220.
[4] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[5] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[6]
[5] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70
[6] Sun v MIBP [2016] FCAFC 52 at [69].
I accept that [the applicant] is from Rawalpindi. I accept that he has studied to post-graduate level in [Country 1]. I accept that he had ambitions to study in [Country 2] and ambitions to study in and emigrate to Australia. I find that he had genuine ambitions to obtain residency in Australia on a skills basis because, after arrival here, he adapted his study focus to more occupationally marketable skills. I note that his student visa ceased on 1 September 2011. He has said his career as a student ended at this point because his family had withdrawn all support for him in anger. In support of that claim, he lodged, amongst other things, a notice purportedly posted by his family in a 2012 newspaper, several months after his student visa expired, disowning him.
I accept that [the applicant] met and entered into a relationship with [Ms A], that they exchanged rings in 2012 and that they married in February 2013. I accept that the marriage ended in 2014. I note that [Ms A] more recently wrote a letter in support of [the applicant]’s protection visa application, explaining that his account of his family problems caused her to fear for herself and her children. I give this letter little weight, since the source of [Ms A]’s information is [the applicant]. Overall, I do not accept that the marriage with [Ms A] ended for the reason claimed.
[The applicant] claims his family disowned him because he refused to marry his cousin [Ms C] and instead married another woman, who also happened to be a foreigner, against the family’s wishes and outside of tribal tradition. I have several problems with this claim.
I find that [the applicant]’s evidence of his family’s isolated impositions of psychological and emotional pressure upon him to marry, followed by months and even years of no demonstrated interest in the issue at all, is implausible in the claimed circumstances, notwithstanding that [the applicant] spent some of those periods studying abroad during which the family could take no action. In particular, there is the period between the time [the applicant] returned for his father’s funeral and the time he first left for Australia, a period spanning December 2006 to December 2009. During this three-year period, the family seemingly resuscitated, as it were, the matter of marrying [Ms C], briefly in 2008, and then let it go for more than a year, when [the applicant] was able to travel abroad, supported by the family, for a course in Australia that was going to demand several years of his presence here, i.e., away from Pakistan. [The applicant] claims that he could not ultimately escape submitting to a ring exchanging ceremony with [Ms C] in early 2010 given the pressure his family was capable of bringing to bear, but I find that he has not satisfactory explained the family’s apparent lack of urgency, given that he initially postponed nuptials with [Ms C] until after he finished study in [Country 1] and returned from the last of two brief semesters [Country 1] in June 2007.
I consider it far-fetched, in the claimed circumstances, that, given the force [the applicant] claimed his family was capable of bringing to bear in the matter, did not resolve the nuptial issue before he travelled to Australia. By then, the family had evidently suffered his evasions of marriage on a number of prior occasions, due to his having postponed honouring his family commitments by going off to [Country 1]. I also consider it far-fetched in the claimed circumstances that [the applicant]’s family no sooner saw him off to Australia in December 2009, possibly for the duration of a master degree course, and then immediately embarked on a ruse to gull him into flying home for the ring exchange ceremony that they had up till recently omitted obliging him to perform before he left. On the evidence before me, [the applicant]’s more straightforward and unembellished statement at Q.70 in his protection visa application, where he said he returned to Pakistan “TO SEE MY SICK MOTHER,” is far more credible. This blunt assertion is also more consistent with [the applicant] having spent a month in Pakistan at that time. He said his mother’s health condition was described at the time as critical. It is far more plausible that a son might stay a month until his mother were out of trouble lest, in the event of her dying after he departed, he were then obliged to return once more to attend her funeral. The one-month stay in Pakistan in January-February 2010 sits less credibly with the story about the ring exchange ceremony, which likely could have been held within days of [the applicant]’s return, to make sure it did happen. [The applicant] claims he returned to Australia as soon as the ring exchange ceremony was over. I am not satisfied, in the claimed circumstances, that this would all have taken a month. Meanwhile, [the applicant] says he has no evidence to support the claim that the ring exchange ceremony took place and no chance or means of obtaining any. On the evidence overall, I do not accept that any ring exchange ceremony took place.

I find that [the applicant]’s own evidence about when he last spoke to [Ms C], or heard from her, or heard about her, was inconsistent, improvised and unreliable. I am not satisfied that [the applicant] was a generally reliable witness in this matter.
I do not accept, on the evidence before me, that [the applicant]’s brother [Mr D] attempted to come to Australia for either the sole or part purpose of killing him. [The applicant] claims he was informed of this by his sister and she indeed spoke to corroborate the claim. However, on the evidence before me I do not believe either witness. It has been hard to give much weight to [Ms B]’s evidence about this plot given how vague it was, and in the end I give it very little weight at all. In the claimed circumstances, it is far-fetched that [the applicant]’s brother, with or without financial support from the family, relied solely a student visa application in which his wife was the main applicant and he was her dependant, with all of its costs, contingencies, complex criteria requirements, language test levels and lengthy processing times, as well as health requirements. There is also an apparent discrepancy with written claims about the plot to come and kill [the applicant] having become apparent after their wedding in 2013, because the student visa application, having been refused in October 2012, must have initially been lodged several weeks earlier: it therefore could not have been lodged after the wedding. Meanwhile, whereas [the applicant] claims to have heard of more than one attempt by his brother to obtain a visa to come to Australia, the evidence of my search is that there was only ever this one visa application in which his brother was included. There were no other visa applications, say, such as visitor or other visa applications that the brother has ever since attempted.
In light of all this, notwithstanding the existence of the phenomenon of arranged marriages in Pakistan, and notwithstanding that Pakistani citizens have resorted to violence in foreign countries to settle family scores that arose back home, I do not accept that there is any truth in the story of [the applicant]’s family trying to coerce him into a marriage he did not want to make, and punishing him for defying them, not only by refusing to honour the arrangement but also by marrying another woman.
Whilst I accept that, by 2011, [the applicant]’s family no longer saw itself as being in a position to support him financially in his studies here, I do not accept that it was for the reason claimed. I do not accept on the evidence before me that [the applicant]’s family is conservative in the particular ways portrayed in this matter.
In the circumstances, it is reasonably to ask how such findings can be made, given the existence of witness statements, [Ms B]’s oral evidence, the purported notice in the newspaper, the letter from the solicitor and the two purported reports to the police.
As discussed, all three of the witness statements, respectively from [Ms A], [Mr E] and [Mr F] rely on information [the applicant] himself provided to them, at some stage after his student visa ceased and he became an unlawful non-citizen here. I give very little weight to these letters.
As to the oral evidence of the two in-person witnesses, [Mr F]’s testimony again relied on what [the applicant] had told him, so I give very little weight to it, and [Mr G]’s evidence struck me as vague, lacking in detail, and improvised. I give it very little weight, not least because of findings I have already made at paragraphs 74 and 75 above.
I give no weight to the newspaper notice that [the applicant]’s family allegedly paid to have published in the newspaper in 2012. The alleged provenance and existence of this notice do not help to overcome the findings made at paragraphs 74 and 75 above, even if the notice was published in 2012 as claimed.
I give no weight to the letter from the solicitor, which evidently came into existence around the time of the original protection visa application. It does not satisfy me as being independently corroborative of anything.
As to the alleged two police reports, I am not satisfied that they contain true facts.
I did not find [Ms B] an impressive witness. She seemed to prefer to rely on a prepared statement and when I tried to evince details along the way, her evidence was generally vague and inconsistent. True, it must be noted that there were several interruptions in the course of her presentation of oral testimony, all caused by telecommunication lapses. However, I am not satisfied that these prevented [Ms B] from giving meaningful evidence in the present matter.
In addition to lacking credibility, [the applicant]’s claims in this matter do not have any nexus to any of the five criteria in s.5J(1)(a) of the Act.
Having considered all of the evidence in this matter in its entirety, I am not satisfied that [the applicant] faces a real chance of being persecuted in Pakistan in the reasonable future for any of the reasons citied in s.5J(1)(a). His claimed fear is not well founded. He is not a refugee.
For the reasons given above, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Findings with regard to s.36(2)(aa) of the Act
Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).
A person is entitled to protection under s.36(2)(aa) if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
Relevantly, s.36(2)(aa) refers to a "real risk" of an applicant suffering significant harm. The "real risk" test imposes the same standard as the "real chance" test applicable to the assessment of "well-founded fear" in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).
"Significant harm" for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. "Cruel or inhuman treatment or punishment", "degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act.
Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.
Essentially, all three of these definitions require that there be an intention to inflict harm by some act or omission. Torture does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Cruel or inhuman treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Degrading treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Accepting that [the applicant] is a citizen of Pakistan, I find that Pakistan is the “receiving country” in this case.
I find that the harm [the applicant] identifies in his claims appears to include “arbitrary deprivation of life”, “cruel or inhuman treatment or punishment”, “torture” and “degrading treatment or punishment”.
[The applicant]’s claims to complementary protection are essentially the same as his refugee status claims. His claims have failed as refugee status claims due to a lack of consistency, credibility and reliability and, ultimately, to their not having met the “real chance” test. In the circumstances, those claims can no more succeed as complementary protection claims.
On the evidence before me I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Pakistan, there is a real risk that [the applicant] will suffer significant harm.
Accordingly, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Other findings
There is no suggestion that [the applicant] satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, he does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Luke Hardy
Member

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

[2021] AATA 617

10 March 2021

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