1709525 (Refugee)

1709525 (Refugee) [2021] AATA 616 (16 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1709525

COUNTRY OF REFERENCE: Pakistan
MEMBER:Nathan Goetz
DATE:16 February 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 February 2021 at 3:34pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – no Convention reason – life threats – state protection – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 46, 65, 109, 351, 425, 426A, 441A, 499
Migration Regulations 1994 (Cth), Schedule 2
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 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
On 27 February 2013 the applicant was offshore and applied for a student visa. On 30 April 2013 that visa was granted. [in] May 2013 the applicant arrived in Australia holding that visa.
On 3 March 2014 a delegate commenced the cancellation process for the applicant’s student visa on the basis that he had provided a bogus document. On 13 May 2014 the delegate cancelled the student visa pursuant to s.109 of the Act. The applicant became an unlawful non-citizen.
On 22 May 2014 the applicant applied to the Migration Review Tribunal (MRT) for a review of the cancellation decision. On 23 May 2014 the applicant had a compliance interview and was granted a bridging visa to regularise his migration status while the application for review of the cancellation decision was considered by the MRT.
On 25 September 2014 the MRT conducted a hearing with the applicant concerning the decision to cancel the student visa. On 1 October 2014 the MRT upheld the refusal decision in MRT case 1409101.
[In] November 2014 the applicant commenced judicial review proceedings in the Federal Circuit Court concerning the MRT decision. [In] November 2015 the applicant filed a notice of discontinuance in that proceeding.
[In] January 2016 the applicant lodged a request for the Minister to intervene and substitute the MRT decision with a more favourable decision under s.351 of the Act.
[Later in] January 2016 the Federal Circuit Court dismissed the judicial review proceedings on the basis that it had been discontinued in [case number].
[In] February 2016 and [in] May 2016 compliance interviews were conducted with the applicant.
[In] May 2016 the request for the Minister to intervene was refused.
On 3 June 2016 a compliance interview was conducted with the applicant.
On 8 June 2016 the applicant applied for a protection visa. The applicant failed to attend a biometrics appointment with a delegate on 25 July 2016.
On 18 August 2016 the protection visa applicant was deemed invalid under s.46(2A) of the Act.
On 6 October 2016 the applicant applied for a protection visa. The applicant failed to attend an interview with the delegate on 4 April 2017.
On 4 April 2017 the delegate refused to grant the protection visa. The delegate was not satisfied that the applicant was owed protection obligations under s.36(2)(a) or s.36(2)(aa) of the Act.
On 1 May 2017 the applicant applied to the Tribunal for a review of the refusal decision.
On 28 January 2021 the applicant was invited to appear at a three-hour Tribunal hearing commencing at 10am on 16 February 2021. The hearing invitation did a number of things, including advising the applicant of the Tribunal’s COVID-19 practice directions, requesting that the applicant complete and return the ‘Response to hearing invitation form’ within 7 days of receipt of the hearing invitation, and provide to the Tribunal all documents the applicant intended to reply upon at least 7 days prior to the Tribunal hearing. The hearing invitation also advised the applicant of the potential consequences of failing to appear at the Tribunal hearing.
The Tribunal never received any response to the hearing invitation.
On 16 February 2021 the applicant failed to appear at the Tribunal hearing. The Tribunal had sent two SMS reminders about the Tribunal hearing date to the applicant on 9 and 15 February 2021 using the mobile telephone number he provided in his review application form. The Tribunal is satisfied that the applicant was invited to the Tribunal hearing in accordance with the statutory requirements under s.441A(5). There is no information to suggest that the hearing invitation failed to send, or that the SMS reminders failed to send. No reason was provided to explain the applicant’s failure to appear at the Tribunal hearing.
The Tribunal has a number of statutory options when an applicant fails to appear at a Tribunal hearing, one of which is to make a decision on the review without taking any further action to allow or enable the applicant to appear before it per s.426A(1A)(a). Having considered the fact that the applicant did not attend the delegate interview, and that the applicant has not provided anything further to the Tribunal since he applied for a review of the refusal decision on 2 May 2017, the Tribunal has decided that the appropriate course is to make a decision on the review without taking any further action to allow or enable the applicant to appear at the Tribunal hearing.
The reason that the applicant was invited to appear at a Tribunal hearing was because the Tribunal could not fake a favourable decision only on the information it had. That was made clear to the applicant in the hearing invitation. It is because the Tribunal could not make a favourable decision that it was required to invite the applicant to appear at the Tribunal hearing to give evidence and present arguments per s.425(2)(a). It should therefore be no surprise to the applicant that without more information, it was inevitable that the Tribunal would affirm the refusal decision.
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, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, 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.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Protection visa application form
According to the protection visa application form, the applicant identifies as [an age]-year-old male citizen of Pakistan who was born in Rawalpindi, Punjab state, Pakistan. He is one of [specified family members].
The form asked the applicant his reasons for claiming protection. The applicant wrote that he was seeking protection in Australia, so he did not have to return to Pakistan. He left Pakistan for studies in Australia.
When asked what he thought would happen to him if he returned to Pakistan, the applicant wrote that ‘My life will be in danger all the time. I have lift threats. I cannot survive in that situation where all the time my life is in danger. Anything… can happen in Pakistan any time anywhere.’
When asked whether he had experienced harm in Pakistan, he wrote ‘No.’
When asked whether he moved or tried to move to another part of Pakistan to seek safety, the applicant wrote ‘No’ and wrote that ‘Because by the time I was living in Pakistan I did not receive any threat.’
The applicant indicated that he thought he would be harmed or mistreated if he returned to Pakistan because ‘I was given life threats from my agent many times when I contact with him after my visa was cancelled. I was abused by him on the phone. He kept me in dark and submit bogus document with my visa application. He ruined my future career and my life. He has strong political background.’
He did not think that the authorities of Pakistan could and would protect him if he went back because ‘law enforcement companies in Pakistan are extremely corrupt.’ He did not think that he would be able to relocate within Pakistan because ‘I have threat. There is no protection for me in Pakistan as everyone knows the current situation of Pakistan.’
He provided what he described as ‘educational document,’ ‘identity card of Pakistan,’ ‘old and new passport,’ ‘photo card of Australia,’ and ‘driving licence of Pakistan’ with his protection visa application form.
Material provided prior to the Tribunal hearing
When the applicant lodged his review application form, he attached three photos. He identified these three photos as ‘evidence supporting claim.’ They consisted of a photographs of the top of an unidentified person’s scalp; a screen shot of a Facebook post with writing in a language other than English containing the image of a man and an image of a bloody hand; and a photo of an unidentified person’s shoulder.
When the Tribunal wrote to the applicant to invite him to a Tribunal hearing, he was advised that he should provide an English translation to any document he provided that was not English. This repeated the same advice he was provided in the acknowledgement of the review application. The Tribunal never received an English translation of the Facebook post.
FINDINGS AND REASONS
The issue in this case is whether the applicant is a ‘refugee’ or a person who meets the requirements for ‘complementary protection.’
The Tribunal must also determine whether the applicant is a member of the same family unit as a person who holds a protection visa because that person is a ‘refugee’ or that person meets the requirements of ‘complementary protection.’
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of reference
The applicant claimed that he is a citizen of Pakistan and provided a copy of his Pakistan passport when he applied for the protection visa. There is no information that the applicant is a citizen of any other country nor that he has the right to enter and reside in a third country. The Tribunal is satisfied that the applicant is a citizen of Pakistan and therefore Pakistan is the country of reference for the protection visa assessment.
Tribunal unable to give any weight to applicant’s claims
Just because the applicant claims to have a well-founded fear of persecution because of his race, religion, nationality, membership of a particular social group or political opinion does not establish either that the applicant’s belief is genuinely held, or that there is an objective basis for that claimed fear. Similarly, just because the applicant claims that there is a real risk of significant harm if the applicant is removed from Australia to their home country does not establish that this risk exists. It is the task of the applicant to provide the decision-maker with as much information as possible to enable the decision-maker to make relevant findings of facts. While the concept of an ‘onus of proof’ is not applicable to administrative inquiries, in the context of claims made by an applicant about their fear of return to their home country, the information will necessarily be provided by the applicant.
The Tribunal has significant problems with the applicant’s claims. They are vague and lacking in the detail that would be expected to accompany a person recalling their own lived experiences. The Tribunal cannot give the applicant’s claims any weight for the following reasons.
The applicant has claimed that he has ‘received life threats’ but does not detail when those threats were made, nor when the last threat was made. The applicant does not detail what constituted those ‘life threats.’ The applicant did not detail the name of this ‘agent’ who he claimed that had made threats, which could reasonably be expected to be provided if this was the agent, he used for his student visa application. He did not provide any meaningful detail to explain how the agent ‘had a strong political background’ and how that related to his protection claim. The applicant wrote that the law enforcement companies are extremely corrupt but did not give any examples of his own experience of this corruption, nor explain the basis for this belief, and did not demonstrate how this alleged corruption meant that he was owed protection obligations in Australia.
The applicant also failed to provide any explanation of why the applicant waited to apply for a protection visa until June 2016, when his student visa was cancelled in May 2014 because of a bogus document. The applicant provided no explanation of what those images he submitted related to, the identities of the people in the photographs, or how they were relevant to his protection claims. The applicant provided no meaningful detail about what he meant by ‘there is no protection for me in Pakistan as everyone knows the current situation of Pakistan’ or that ‘Pakistan is not a safe country’ and the Tribunal is at a loss working out how such assertions mean that Australia owes the applicant protection obligations.
It is not the task of the Tribunal to make the applicant’s case for him. It is the task of the applicant to provide the Tribunal with as much information as possible to help the Tribunal be satisfied of relevant facts.
Given all of the above, the Tribunal cannot be satisfied that the applicant has received threats from his agent, or that his assertions about ‘the current situation of Pakistan,’ that ‘Pakistan is not a safe country’ or that ‘law enforcement companies in Pakistan are extremely corrupt’ mean that there is a real chance of serious harm to the applicant on account of his race, religion, nationality, membership of a particular social group, or political opinion, nor that any of these claims mean that there is a real risk of serious harm to the applicant if he were removed from Australia to Pakistan. The Tribunal cannot be satisfied as to any of the applicant’s claims and rejects them in their entirety.
CONCLUSION
Refugee
For the reasons given above, the Tribunal is not satisfied that there is a real chance of serious harm to the applicant in Pakistan on account of his race, religion, nationality, membership of a particular social group or political opinion.
Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). For the reasons given above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Pakistan, there is a real risk that the applicant will suffer significant harm.
Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Member of the same family unit
There is no information to support a finding 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.
Therefore, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Nathan Goetz
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 616

16 February 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice