1707710 (Refugee)

[2018] AATA 2592

1707710 (Refugee) [2018] AATA 2592 (19 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1707710

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:C. Packer

DATE:19 January 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 19 January 2018 at 3:59pm

CATCHWORDS

Refugee – Protection visa – Pakistan – Federal Court remittal – Serious harm – Being honour-killed by a tribunal council – Father Tribal council leader – disapproval of first marriage – Father assaulted first wife – Risk of returning to Pakistan – Applicant has visited Pakistan twice since coming to Australia – Divorced and remarried an Australian non-Muslim – Applicant in further jeopardy  Credibility issues – New claims added – being declared a ‘black man’ – Witness statements from former mother in law and brothers – Failed asylum seeker from the West – No real risk of harm – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 91R, 91S, 424AA, 438, 499

Migration Regulations 1994 (Cth), Schedule 2

CASES
MIAC v SZQRB [2013] FCAFC 33

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration (the delegate) to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a man [age], born in Pakistan and a citizen of Pakistan.

3. The applicant first arrived in Australia on 19 July 2006, as a holder of a Student visa, and he had travelled on a Pakistan passport issued on [date] 2005 and valid to [date] 2010. He was granted further Student visas with the last granted on 2 December 2011. The applicant’s former spouse and son were in Australia as his dependants.

4. On 4 March 2013 the applicant’s former spouse applied for a Protection (Class XA) visa, and the applicant and their son were included as members of her family unit. Their daughter was later added to the application.

5. On 29 July 2013 the applicants attended an interview with the delegate.

6. On 31 March 2014 the delegate refused the application under s.65 of the Act.

7. On 9 April 2014 the applicants applied for review of the delegate’s decision.

8. On 13 January and 23 March 2015 the applicants appeared before the first Tribunal (differently constituted) to give evidence and present arguments. Three witnesses gave evidence by phone from overseas, being the former spouse’s mother and applicant’s brothers.

9. On 17 April 2015 the first Tribunal (AAT number 1406768) affirmed the delegate’s decision.

10. [In] May 2016 the Federal Circuit Court affirmed the first Tribunal decision. The applicant’s former spouse appealed to the Full Federal Court of Australia. However, the applicant was not included in the appeal as the parties had separated.

11. [In] December 2016 the Full Federal Court of Australia set aside the orders of the Federal Circuit Court and in lieu thereof ordered the decision by the first Tribunal be set aside. The Court ordered the application for review by the applicant’s former spouse and two children be redetermined according to law. The Court’s decision has also led to the application for review by the applicant being redetermined according to law.

12. On 21 December 2017 the applicant attended by video a Tribunal hearing.

13. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether the applicant is entitled to complementary protection. A summary of the relevant law is set out in Attachment A. The applicant’s narrative is centred on his claimed fear of being honour-killed in Pakistan by a tribal council that includes his father. However, my great concerns with significant elements of the applicant’s narrative and evidence lead me to disbelieve the story. My assessment follows.

    CONSIDERATION OF CLAIMS AND EVIDENCE, FINDINGS

    Background

14. The applicant’s protection visa application provided some basic background information, and the applicant supplemented this with further details at the hearing. In the written application he indicated he was born in [year] in a city in Sindh province, Naushahro Feroz. He then showed schooling and tertiary studies in Hyderabad from [year] to [year]. He indicated he studied in Australia from August 2006 and attained qualifications in [several fields]. He indicated his parents lived in the family home in Hyderabad and he had [several] siblings. He described his family as wealthy and stated his father, now retired from an important [position], was very influential with important people. The written application showed he had married his former spouse in Hyderabad on [date] May 2007.

15. At the hearing the applicant said he had divorced his former spouse verbally under Islamic/Pakistan law in August 2016, and also granted a divorce by the Court in Australia on [date] October 2017. He said he married by Marriage Celebrant an Australian citizen, [Ms A], on [date] February 2017. He said that from [March] to [November] 2017 he had been held at [a] Correctional Centre, and when the criminal charges were dropped, he was then transferred to [Detention Centre 1] and later to [Detention Centre 2]. He said he is seeking access to his children through the Family Relationship Centre.

16. Country information[1] shows that Pakistan is the sixth most populous country in the world with a population estimated to be around 193 million. Pakistan’s population is young, fast-growing, and rapidly urbanising. Pakistan is a Federal Islamic Republic comprising four provinces (Balochistan, Punjab, Sindh and Khyber Pakhtunkhwa), the Federally Administered Tribal Areas (FATA), and two autonomous regions, Gilgit-Baltistan, and Azad Jammu and Kashmir (AJK). The FATA is comprised of 7 tribal agencies: Bajaur; Khyber; Kurram; Orakzai; Mohmand; North Waziristan and South Waziristan. Approximately half the population of Pakistan lives in Punjab province, with around 27 per cent living in Sindh, 13 per cent in Khyber Pakhtunkhwa and six per cent in Balochistan. Less than five per cent of the population lives in the FATA and the Northern Areas of Pakistan collectively. Pakistan is ethnically and linguistically diverse with the largest linguistic groups being Punjabis (45%), Pashtuns (15%), Sindhis (14%), Seraikis (8%) and Mohajir (7.5%).

    [1] The Department of Foreign Affairs and Trade (DFAT) report: DFAT Country Information Report Pakistan, 1 September 2017, [ of claims

17. The applicant claims to fear persecution in Pakistan from a tribal council (that he refers to as a Jirga) in Naushahro Feroz in Sindh province, as well as his father who is a Jirga leader. His key claims as summarised are:

    ·He married the former spouse in Pakistan against his father’s wishes and so the father always wanted the marriage to end.

    ·In Australia in 2011 the father stayed with them during a long visit but the former spouse initiated a police visit [in] July 2011 and accused the father of assaulting her, which angered the father.

    ·The father returned to Pakistan in October 2011 and went to Naushahro Feroz where he called a tribal meeting. At the Jirga the father accused the former spouse of disrespecting him and also falsely claimed she had had an illicit relationship with a man in Australia. The Jirga declared the applicant to be a black man (karo) and the former spouse to be a black woman (kari) and so they had to be honour-killed.

    ·Because the former spouse has not returned to Pakistan, the applicant will instead be honour-killed.

    ·He will also be killed because he has now married a non-Muslim Australian woman without the father’s permission.

    Evidence

18. The evidence before the Tribunal includes the material on the Departmental and Tribunal files and includes the following material (not all is listed):

    ·The Protection visa application form which includes the applicant’s Part D (application for a member of the family unit), and reasons for seeking protection in Australia

    ·Passport pages, identity documents, Marriage certificate dated [May] 2007

    ·The Protection visa decision record (‘delegate’s decision’) dated 31 March 2014, which is the subject of this review

    ·The application for review, which has attached to it a copy of the delegate’s decision

    ·The first Tribunal’s hearing, and decision record dated 17 April 2015

    ·Statements of the applicant’s brothers: [Mr A] dated 19 January 2013; and [Mr B] dated 15 January 2013

    ·Submissions and country information

    ·Applicant’s statements of 28 February 2013, 2 August 2013, 2 December 2014, 7 April 2015

19. The applicant appeared by video link before the Tribunal to give evidence and present arguments, on 21 December 2017. The applicant spoke fluent English and gave his evidence without an interpreter. At the start of the hearing I asked whether he was well and able to talk about his story, and he stated he was. During the hearing he appeared to fully understand questions and he gave detailed answers and explanations. I assess that he was competent to give evidence and had a full opportunity to put forward his story and arguments. At the applicant’s request the Tribunal phoned two witnesses in Pakistan, his brothers [Mr B] and [Mr A]. Their evidence was given with the assistance of an accredited interpreter in the Urdu and English languages.

20. The applicant (together with the former spouse) also appeared before the first Tribunal on 13 January and 23 March 2015 to give evidence and present arguments. Three witnesses gave evidence by phone from overseas, being the former spouse’s mother and applicant’s brothers [Mr B] and [Mr A]. The recordings of those hearings show that [Mr B]’s evidence had been taken without being recorded: it appears the member started the recording late and then read her notes of his evidence and indicated the applicant or representative could comment on or add to her notes, which the representative did a few times. 

21. The Department attached a certificate and notification under s.438(1)(a) of the Act, stating that the Department had received information and disclosure of the material would be contrary to the public interest because it had been given in confidence. The certificate went on to indicate that as disclosure of the material is subject to the Tribunal’s discretion, portions of the material that were highlighted were significant as those portions had the potential to identify the source. I advised the applicant of the existence of the certificate, and my satisfaction that the certificate was validly issued as the information had been given in confidence. I advised that it was from someone who had concerns for [Ms A] as not much was known about him. I advised that the information did not make particular allegations against him and accorded with what he had said about [Ms A] and was not prejudicial to him, and it is not relevant for the purposes of the review. After my explanations the applicant did not say that he had any concerns about the validity of the certificate or about the information.

    Assessment of claims: credibility

22. The applicant claims to be a national of Pakistan. A copy of his Pakistan passport that expired [date] 2015 is on file. All the available evidence, including the applicant’s oral evidence and familiarity with Pakistan, supports his claim to be a Pakistan national. Pakistan is therefore the country of reference for the purpose of assessing the applicant’s protection claims, and the receiving country when assessing his claims against the complementary protection grounds. As well, I accept he has the claimed identity: [Name deleted] born on [date].

23. A main element of the applicant’s narrative is his fear of being killed in Pakistan by members of his tribe that includes his father and uncles, because of a decision of the tribal council- the Jirga- that the applicant’s former spouse is kari (a black woman) and he is karo (a black man). While such honour-killings can occur they are nonetheless illegal in Sindh province. At my hearing he claimed that because the Jirga had been unable to get their hands on the former spouse as she had not returned to Pakistan, they would kill him in her stead. However, as I pointed out to him, a very big problem in his case was that he had never previously claimed that he was at any risk if he returned to Pakistan. Having considered the material before the Tribunal including the evidence of the applicant and his witnesses given at my hearing, I find unpersuasive and reject his narrative and evidence about facing death at the hands of a Jirga, the tribe, the father, relatives or any other agents, as I now discuss.

    The claimed enmity of the applicant’s father

24. In the applicant’s narrative his father never approved of the former spouse and did not want the applicant to marry her, but the father nonetheless allowed the wedding to proceed in May 2007 ‘with his grudging consent’ probably because the applicant threatened self-harm[2]. The father did not financially contribute to the wedding and had asked friends and relatives to not attend, although the applicant had been unaware at the time that the father had told other family members to not attend.[3] Although up to 50 people from the applicant’s side attended, this was ‘a very small number for a Sindhi wedding’[4]. The applicant’s evidence is also that the father did in fact arrive at the wedding but only briefly and showed disrespect by wearing casual clothes.[5] The applicant’s evidence is that after the wedding the father punished him by withdrawing financial support for his studies in Australia. Nonetheless, the father provided a financial support letter for the former spouse’s student dependant visa application for her and their son to join the applicant in Australia. The applicant’s explanation for the father’s action was: “When I asked this question to myself why did he provide her financial support? Honestly I don’t know why made him to do so’.[6] In the applicant’s narrative, the father later travelled to Australia uninvited and unannounced and stayed with the applicant and his family for a long period from May to October 2011. Then, during the father’s long stay there was a significant incident [in] July 2011 when the former spouse called the police and accused the father of beating and bullying her. The applicant provided a number of police records pertaining to this occurrence and I accept that the police visit occurred and that the former spouse made accusations against the father. In the applicant’s narrative, on returning to Pakistan the father, a Jirga leader, immediately returned to the home village and at a Jirga meeting made accusations against the former spouse, not only about her disrespecting him by calling out the police, but also falsely accusing her of having illicit affairs. 

    [2] His statement of 2 August 2013

    [3] His statement of 7 April 2015

    [4] His statement of 2 December 2014

    [5] His statement of 7 April 2015

    [6] His undated statement provided to the first Tribunal

25. While I cannot discount the possibility that the father had initially opposed the applicant’s marriage, I note the applicant’s evidence is that the father did not forbid the wedding and in fact gave his ‘grudging consent’. I also note the applicant’s evidence is that the father did not accuse the applicant and former spouse of blackening themselves by marrying against his wishes and so dishonouring the family- which in Sindh province would be an accusation of karo-kari. I find that while the father had some issues with the applicant’s choice of spouse these did not lead the father to harm the applicant beyond withdrawing financial support.

    The Jirga decision in 2011

26. While I cannot discount the possibility that the father was very angry following the former spouse’s actions in calling the police about him, I do not accept the father was angry with the applicant. Firstly, while the police visit occurred in July 2011, the father only departed Australia in October 2011. As I discussed at my hearing, the father’s continued residence in the applicant’s home for several additional months does not suggest that the father’s anger was directed at the applicant or that the father’s honour was so besmirched that he had been unable to continue residing in the applicant’s home. The applicant’s response that they feared the father who stayed to punish them both, was unconvincing. Secondly, as I pointed out, while the applicant claims the father was upset with him because he did not support the father during the police visit, in fact he had supported the father, as shown by the police records and his statement of 28 February 2013 where he stated in part ‘I said I was sleeping and did not see my father slap her’ and ‘I was terribly torn and frightened of what he would do to me and [name deleted], if I supported her’. Based on the material before the Tribunal I do not accept the father was upset with him because he had not supported the father to the police. In sum, I find that while the father had altercations with the former spouse in Australia, he did not have any particular issues with his son such that in Pakistan he would harm or seek to harm him or seek to get him declared a black man. The applicant argued that while Jirga honour-killings used to be directed at illicit relationships and elopements, increasingly they can now be used to get revenge. However, I do not accept that when the father returned to Pakistan he had any particular issues with his son such that he sought to get revenge against him.

27. At my hearing the applicant claimed that the Jirga had not only declared the former spouse a black woman (kari) but had also specifically declared him a black man (karo).  In his narrative, he had been included in an accusation of karo-kari and included in the Jirga’s decision to honour-kill, and so in Pakistan in the absence of the former spouse, he would be killed. However, as I pointed out to the applicant, a very big problem in his narrative was that he had never previously claimed that he was at any risk of harm when he returned to Pakistan:

    ·In his statement of 28 February 2013 he discussed how the father had been humiliated by and hated the former spouse, and how on returning to Pakistan the father told the whole family he would kill her if she returned, and in a phone conversation [in] January 2013 the father had asked when he intended to divorce her and send her back.  

    ·In his statement of 2 August 2013 he discussed how “In Pakistani culture if you need to rid of anything, especially if the matter belongs to women then best way to get rid of them is to get them killed on the name of honour”.

    ·The delegate’s decision records that at the delegate’s interview the applicant said “He is always asking me, when are you divorcing her and sending her back?”.

    ·In his statement of 2 December 2014 he discussed how the Jirga had declared that the former spouse was kari and “she should be killed in the name of honour because she had brought shame on him (the father)”.

    ·In his undated statement sent after the first Tribunal’s hearing he discussed how the father never accepted the former spouse as his wife and the father had waited for the right time to get rid of her by any means.

    ·In his statement of 7 April 2015 he discussed how the Jirga gave the verdict to kill the former spouse in the name of honour and if they returned to Pakistan she would be killed.

    ·At the first Tribunal’s hearings the applicant did not claim, despite ample opportunity, that he had been declared a black man by the Jirga and was also in jeopardy.

1. In sum, despite ample opportunity the applicant had not previously claimed that he had been declared a black man or had been included in a Jirga decision in 2011 in this serious way. Rather, he had previously spoken of the father’s enmity directed at the former spouse, and how the father had waited until the father had an excuse to get rid of her, and how she was kari, and how the father had been encouraging him to divorce the former spouse. The very late nature of this claim raises strong concerns with the applicant’s narrative and evidence. At my hearing I put these concerns to him, and he responded that the father had wanted him to divorce and send the former spouse back to Pakistan but because of the divorce they cannot get their hands on her and so they would kill him instead; and the father did not like that he stayed in Australia and had a daughter and did not send his wife back; and they kill the black woman but often the black man as well. However, the applicant’s explanations do not explain why he had not previously claimed he had been declared a black man or had been included in the Jirga decision in 2011 in this serious way. His explanation that the father did not like that he stayed in Australia and had a daughter and did not send his wife back, concerned circumstances after the claimed Jirga decision in 2011 and would not have been an issue at the time the father returned to Pakistan. The claim a Jirga had declared the applicant a black man and that he was also included in the Jirga’s decision to honour-kill is so significant that the omission of the claim until my hearing leads me to find the applicant has fabricated it. The claim that the Jirga and father would kill him if he returned to Pakistan without the former spouse and that he could be in danger in such circumstances, is so significant that the omission of the claim until my hearing leads me to find that the applicant has fabricated it. I find that the applicant is not a witness of truth. I disbelieve that the applicant has been declared a black man by a Jirga and I reject his narrative and evidence that he had been included in a Jirga decision in 2011 in this serious way, and that he will be honour-killed if he returns to Pakistan without the former spouse because they cannot get their hands on her.

2. As well, I have further concerns with the applicant’s narrative. Firstly, as I pointed out to the applicant, the common thread in his conversation and evidence about honour killings in Pakistan and the reports[7] he quoted, was that largely the woman faces the danger and less so the man. I acknowledge country information shows that in Pakistan men have also been honour-killed, and the applicant argued that honour-killings can also be used to get revenge. Nonetheless, country information shows that honour-killing is most usually directed at women and not men. Secondly, as I further pointed out to the applicant, in his narrative the father had sought to get the applicant to divorce, and so his subsequent divorce actually complied with the father’s wishes. In sum, I find that in these circumstances it is most unlikely the applicant would be killed because of a Jirga decision or killed by the Jirga, tribe, father, other relatives or any other agents in Pakistan.

   The evidence of the applicant’s brothers

   [7] Amnesty International report Pakistan 2016-2017, under Violence against women and girls, [ ; Human Rights Commission of Pakistan reports, [ ; ABC report, Pakistan honour killings continue despite tough new laws, 12 January 2017, [>

   Additionally, at my hearing the evidence of the applicant’s brothers [Mr B] and [Mr A] was that at the behest of the father, the applicant had been declared a black man by the Jirga and had been included in a Jirga decision in 2011 in this serious way. However, the applicant’s brothers did not previously say that the applicant had been declared a black man or had been included in a Jirga decision in 2011 in this serious way. The changeable evidence of [Mr B] and [Mr A] leads me to find that they have fabricated evidence, are not witnesses of truth, and I reject their evidence, and this reinforces my foregoing findings concerning the applicant’s narrative and evidence, as I next discuss.

3. At my hearing [Mr B]’s evidence was that under the Jirga, even though he had separated, if either of them returns to Pakistan there is a real danger they would be killed, and he agreed that the applicant had been declared a black man. When I put to him that this was different to his previous evidence that only the former spouse was in danger, he responded that at the previous hearing he had said they were both in danger. However, as I then pointed out when he was last interviewed and in his written statement he had mentioned the Jirga but did not say that the applicant was also in danger. My comments were based on [Mr B]’s statement of 15 January 2013 in which he discussed how the father returned to Pakistan and spoke about being humiliated by the former spouse, and how he was waiting for her to return to get revenge against her. As well, I listened to the recording of the first Tribunal’s hearing[8] and the member’s summary of his evidence shows he spoke of the father going to the Jirga and saying the former spouse had illicit relationships with men and he wanted her killed as a matter of honour, and that while she is in Australia they would try to get her separated and divorced- but he did not say that the applicant was in any danger as a result of the Jirga’s decision. At the end of my hearing I put my serious concerns about [Mr B]’s evidence to the applicant pursuant to the s424AA procedure, and the applicant responded that the Jirga decision included him, and the situation had changed as now they were not married, and the Jirga would kill him as they cannot get their hands on the former spouse. However, the applicant’s explanations do not explain why [Mr B] had not previously said the applicant had been declared a black man and had been included in the Jirga decision in 2011 in this serious way. The claim a Jirga had declared the applicant a black man and that he was also included in the Jirga’s decision to honour-kill is so significant that the omission of this evidence until my hearing leads me to find [Mr B] has fabricated it. I find [Mr B] is not a witness of truth and I reject his evidence.

   [8] As I discuss in Evidence above

4. Similarly, at my hearing [Mr A]’s evidence was that in 2011 the father had led the Jirga to make a decision that both the applicant and former spouse be killed. When I put to him that this was different to his previous evidence in which he did not say the Jirga had made threats against the applicant, he responded that of course the former spouse was in danger. When I then put to [Mr A] that if the Jirga had made a decision against both of them he would have said that previously, [Mr A] responded that if one person is wrong then the harm transfers to the other. When I then put to [Mr A] that was not my understanding of a Jirga decision and the father had always wanted the applicant to divorce the former spouse and then the applicant did so, he responded that he understood what I was saying. At the end of my hearing I put my serious concerns about [Mr A]’s evidence to the applicant pursuant to the s424AA procedure, and the applicant responded that previously [Mr A] spoke of significant harm to the former spouse but had not specifically said the Jirga had also decided on the applicant, but now that the former spouse was not returning to Pakistan the Jirga decision will apply to both. However, the applicant’s explanations do not explain why [Mr A] had not previously said the applicant had been declared a black man and had been included in the Jirga decision in 2011 in this serious way. The claim a Jirga had declared the applicant a black man and that he was also included in the Jirga’s decision to honour-kill is so significant that the omission of this evidence until my hearing leads me to find [Mr A] has fabricated it. I find [Mr A] is not a witness of truth and I reject his evidence.

   The applicant’s second marriage

5. The applicant states that he has divorced the former spouse and married an Australian citizen. Although I have not sighted either a divorce certificate, or a later marriage certificate, I accept that the later wedding took place. I raised my concerns that although he says he divorced the former spouse in August 2016 verbally and so married the new spouse on [date] February 2017, he was only divorced under Australian law on [date] October 2017. I queried whether the marriage on [date] February 2017 was not valid under Australian law. He advised me that he believed the later marriage was valid under Australian law. Regardless, the applicant claims that his relationship and marriage with his new spouse will place him in jeopardy with the Jirga and his father. The applicant’s brothers similarly said that the applicant’s new marriage placed him in jeopardy with the Jirga and the father. However, as I do not accept that there was ever a 2011 Jirga decision that placed the applicant in jeopardy, I do not accept that the applicant’s new relationship and marriage places him in further jeopardy under such a Jirga decision. Nor is there any material before the Tribunal that suggests there is another Jirga decision specifically against the applicant.

6. I next considered whether the father or anyone else (Jirga member, tribal member, family member) would seek to harm/kill the applicant because he has now wed a non-Muslim Australian woman outside the family without the father’s permission and he had lived with her before the wedding. In particular, the applicant argues that the father is very conservative and considers it unacceptable to live together outside of marriage and to marry outside the family.

7. While I accept the applicant lived with the new spouse before their wedding, as I discussed with him he is a man and from a society where men are given more freedom to get away with such things, and this would particularly be so as the co-habitation had occurred in Australia and away from the father and family in Pakistan and Pakistan’s society and culture. I accept they have now had a wedding and consider themselves to be married, and accept that the father may have concerns that his son has married a non-Muslim outside the family and without the father’s permission. All of this happened in Australia and away from Pakistan during a tumultuous time in the applicant’s life which included the disruption of a divorce and the applicant’s detention on criminal charges and the processing of his protection matter. As I discussed, it can be that Muslim men marry outside the religion often with the intention that the wife will convert to Islam. Indeed, at my hearing the applicant confirmed he remains a Muslim.  Regardless, as I pointed out to the applicant, he is now a mature [man] and not a young man still living at home, and he had not lived at home since 2006, now many years in the past. He had been living an independent life and lifestyle and had made his way away from the father and the family for a very long time. Also, as discussed in my foregoing considerations, country information shows that honour-killing is most usually directed at women and not men. I acknowledge the applicant’s portrayal of his father as a murderous and controlling patriarch but I do not consider the applicant to be a credible witness and find he has highly embellished his portrayal of the father for the purposes of the protection matter. In light of my credibility discussion and findings above I do not consider the applicant’s brothers [Mr B] and [Mr A] to be credible witnesses and I reject their evidence. In sum, I disbelieve that the father has a murderous interest in the applicant such that if the applicant returns to Pakistan the father will seek to harm/kill him for any of the reasons claimed: because of his conduct in Australia; and staying married to the former spouse for too long; and remarrying without the father’s permission; and living with and wedding a non-Muslim Australian citizen outside of the family. Nor do I accept that anyone else (a Jirga member, tribal member, family member) will seek to harm/kill him for any of the reasons claimed.

   Conclusion - credibility

8. In sum, taking all of my foregoing concerns together, I find unconvincing and do not accept his claim that in Pakistan he faces serious harm and death because of a Jirga decision. I find unconvincing and do not accept his claim that in Pakistan he faces serious harm and death at the hands of a Jirga, his tribe, his father, other relatives, or any other agents. I find the applicant is not a credible witness and that he has concocted his claims for the purposes of seeking Australia’s protection. I find that his witnesses are not credible and I reject their evidence.

9. Having considered the claims and evidence, I accept his claims that:

   • He married the former spouse in Pakistan. Although the father had initially opposed the wedding, the father did not forbid the wedding and in fact gave his ‘grudging consent’.
   • In Australia in 2011 when the father stayed with them during a long visit, the former spouse initiated a police visit on 25 July 2011 and accused the father of assaulting her. This occurrence angered the father.
   • The father disliked the former spouse and encouraged the applicant to divorce her.

10. Having considered the claims and evidence, I do not accept his claims that:

    • A Jirga in Pakistan in October 2011 declared the applicant to be a black man (karo) and the Jirga decision places him in jeopardy of being honour-killed.
    • Because the former spouse has not returned to Pakistan, the applicant will instead be honour-killed.

    ·He will also be harmed/killed because he lived with, and then married a non-Muslim Australian woman outside of the family without the father’s permission.

    Conclusion

11. Having considered the claims and evidence I find that the applicant is a Pakistan national. He is a mature Sindhi man who is a Sunni Muslim albeit his evidence is that he does ‘not really pray’. He comes from an affluent and influential family and his parents and siblings continue to reside in Hyderabad. He is well educated and has attained a number of qualifications. I find that he first arrived in Australia on 19 July 2006 and he returned to Pakistan for visits in May 2007 to marry, and in February [2011]. He has now been here for over eleven years.

12. As I discussed at the hearing, he is a Pakistan national who last departed Pakistan legally with a genuine Pakistan passport, and so the fact that he departed Pakistan in the usual way will not cause him any difficulties on his return.

13. He claims he has not sought to renew his expired passport, but he is a Pakistan national with evidence of past passports and so will have no great difficulties getting a travel document to return to and enter Pakistan. If he flies in to Karachi, he will have no difficulties travelling on to Hyderabad which is the second largest city in Sindh province.

14. As I discussed at the hearing, he had sought refugee status here and is currently detained, and if he is returned involuntarily (or travels on an emergency travel document) he is likely to attract attention from the authorities upon arrival. However, I note and accept the DFAT report[9] discussed at hearing that shows as he has not breached Pakistan laws and says he has not committed any offences in Australia, he would be questioned and most likely released within a couple of hours. The DFAT report states:

    5.19 In practice, returnees tend to leave Pakistan on valid travel documents and therefore tend not to commit Pakistani immigration offences. Those who return voluntarily and with valid travel documentation are typically processed like any other citizen returning to Pakistan. Only those who are returned involuntarily or are travelling on emergency travel documents are likely to attract attention from the authorities upon arrival.

    5.20 DFAT understands that those 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. Those found to have contravened Pakistani immigration laws are typically arrested and detained. These people tend to be released within a few days, either having been bailed by their families or having paid a fine, although there are provisions for jail sentences. Those wanted for a crime in Pakistan or who have committed a serious offence while abroad may be arrested and held on remand, or required to report regularly to police as a form of parole.

    [9] September 2017 DFAT report, 5.19 to 5.21

15. As I discussed at the hearing, if he returns to Pakistan it will be as a failed asylum seeker and he will be a returnee from a western country.  However, I note and accept the DFAT report[10] discussed at hearing that shows returnees are typically able to reintegrate into the Pakistani community without repercussions stemming from their migration attempt, and 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. The applicant comes from a well-off and educated family and I am not satisfied there is anything in the applicant’s personal profile or experiences in Australia that will lead him to face repercussions stemming from his migration attempt or because he has lived in a western country. The DFAT report states:

    5.21 Returnees are responsible for arranging their own onward transportation from their point of entry into Pakistan. Voluntary returnees may be eligible for assistance from the International Organisation for Migration. Involuntary returnees are not eligible for reintegration assistance. Returnees are typically able to reintegrate into Pakistani community without repercussions stemming from their migration attempt, although involuntary returnees who took on debt to fund their migration attempt tend to face a higher risk of financial hardship. 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.

    [10] September 2017 DFAT report, 5.19 to 5.21

16. The applicant states that he is westernized and has spoken of his western attitudes to such things as relationships and alcohol and ‘not really praying’. But as I discussed at the hearing, I note and accept the DFAT report[11] that assesses that individuals in Pakistan are not subject to the additional risk of discrimination or violence on the basis of having spent time in western countries or because of perceived western associations, despite a generally increasing conservatism and religiosity across the country. While the applicant may have the western attitudes that he claims, ostensibly he would return to Pakistan as a married man, and while he says he does not fully practise his religion and its tenets, he has not renounced Islam and there is no material before the Tribunal that not really praying will lead to him facing a real chance of harm in Pakistan. As well, as an educated and mature man from a higher level of Pakistan society, who had been living an independent life and lifestyle for a very long time, and who had subsequently married and formed his own family away from the father and father’s family, the applicant would ostensibly have more than usual freedom for self-expression on returning to Pakistan. In sum, I do not accept that he faces a real chance of serious harm because of his western attitudes from Pakistan society, or his father or other family members or anyone else.

    [11] Paragraphs 3.139 and 3.140

1. He will be separated from his current partner if he departs or is removed from Australia. However, there is no material before the Tribunal that suggests she would be unable to join him in Pakistan as his spouse. He will also be separated from his children and unable to have face-to-face contact with them. However, when he is in Pakistan I do not accept that such separation constitutes serious harm amounting to persecution to him now and in the reasonably foreseeable future.

2. In light of my foregoing discussion and credibility findings, I find the applicant is not a credible witness and that he has concocted claims for the purposes of seeking Australia’s protection, and I find his witnesses are not credible and I reject their evidence. When I consider the material before the Tribunal, all of the applicant’s personal circumstances and all of my findings about his narrative and evidence together and cumulatively, I find unconvincing and do not accept his claim that in Pakistan he faces serious harm and death because of a 2011 Jirga decision, and at the hands of a Jirga and/or his father, uncles or other relatives/members of their tribe, friends of the family or the general community. I find unconvincing and do not accept his claim that in Pakistan he faces serious harm and death because of his relationship with and second marriage (whether or not valid in Australian law) to an Australian citizen. I acknowledge that he may have married against the father’s wishes and then wed without the father’s permission, but I am not satisfied based on the material before the Tribunal that this will cause him to be killed in revenge or honour-killed by anyone. There is no material before the Tribunal that shows there is a situation of generalised violence in Hyderabad. I do not accept either that the applicant departed Pakistan so as to escape feared harm (such as threats, intimidation, physical or other harm) from his father or anyone else there, or that he now fears to return to Pakistan for the reasons he has given. I find there is not a real chance of serious harm amounting to persecution to him now and in the reasonably foreseeable future in residing in the home area in Hyderabad for any reason.

   Refugee criterion

3. In light of the above assessment, the Tribunal finds that in Pakistan the applicant does not face a real chance of serious harm amounting to persecution now and in the reasonably foreseeable future, for the reasons he claims. The Tribunal finds that in Pakistan the applicant does not face a real chance of serious harm amounting to persecution now and in the reasonably foreseeable future, for one or more of the Convention reasons either when looked at individually or cumulatively. The Tribunal finds the applicant does not have a well-founded fear of Convention-related persecution, now and in the reasonably foreseeable future, if he returns to Pakistan.

4. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

   Complementary protection

5. I considered whether on the evidence before me, 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. For the reasons set out above, I have not accepted there to be a real chance that the applicant will suffer serious harm if he returns to Pakistan now or in the foreseeable future. Section 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: MIAC v SZQRB [2013] FCAFC 33. It follows that I do not accept there to be a real risk that the applicant will suffer significant harm from anyone for the same reasons as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan.

6. In light of his profile as a mature, well-educated Sindhi man from an affluent and influential family who continue to reside in Hyderabad, I do not accept he will have any great difficulties in adjusting to day-to-day life in Pakistan.

7. He will be separated from his current partner if he is removed from Australia. However, there is no material before the Tribunal that suggests she would be unable to join him in Pakistan as his spouse. He will also be separated from his children, and at my hearing he indicated he had not seen the children for more than a year, although he added that he is in the process of seeking resolution in the Family Resolution centre so that I can see the children in the future, and he said he misses them. Nonetheless, I find the separation from them will not amount to significant harm as defined in s.36(2A) of the Act.

8. In sum, I find there is no real risk that he will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant, such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment. Nor am I satisfied that there is a real risk that he will suffer arbitrary deprivation of his life or the death penalty. I am not satisfied 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.

   Overall Conclusion

9. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

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

11. 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, the applicant does not satisfy the criterion in s.36(2).

    DECISION

12. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    C. Packer
    Member

    
    

    ATTACHMENT A – RELEVANT LAW

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

    Refugee

    Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

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

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

    Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

    There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

    Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

    Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

    Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

    Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

    In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

    Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection

    If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

    ‘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.

    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.

    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.