1710837 (Refugee)

1710837 (Refugee) [2021] AATA 1005 (25 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1710837
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Rodger Shanahan
DATE:25 March 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 25 March 2021 at 1:16pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – political opinion – membership and local activity in political party – inter-factional and inter-party threats and attacks – ethnicity – Muhajir – religion – secular party threatened and attacked by religious parties and groups – mental health – credibility – inconsistent claims and evidence – no documentary evidence of political activity – no activity in Australia – insufficient evidence of mental health – no harm to applicant or family due to ethnicity – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), 36(2), 65, 424AA
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 dependants.
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 5 May 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Pakistan, applied for the visa on 26 September 2016.
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.
CLAIMS AND EVIDENCE
The applicant provided the following statement in support of his application:
I was born on [Date] in Quetta, Baluchistan Pakistan. My parents born in India and moved to Pakistan during the time of independence. Therefore, we are called Mohajir which is minority ethnic group in Pakistan. I have two brothers and two sisters. One my brothers is in Australia.
I started my primary school at [School 1] and then joined [School 2] in [Year] for my further education. I then joined [School 3] and completed my education in [Year]. After that, I joined [Secondary School] for my secondary education. In April [Year], I joined [College] in Karachi for my higher secondary education. In [Year] I joined [University] and completed my Bachelor level education in [Year]
When I was studying at [School 3], I faced discrimination due to my Mohajir identity. The class teacher used to tease and criticise in front of other student saying that we are refugees and not true Pakistanis. At that time, I did not understand anything. After the school, I told my father what had happened and father explained me why they called us as refugees (Mohajirs). But my father said we should be proud of our self and said that Mohajir played crucial role in Pakistani independence. After the death of my father we moved from Quetta to Karachi. My father used to tell that Mohajirs have greatly contributed to Pakistan in many ways and said despite that Pakistani government, led by Punjabi people did not recognise the contribution of Mohajir.
Since I faced discrimination by myself and expected it, I started learning more about the Mohajir and their contribution. I used to get books from the school library and used to read to enhance my knowledge. My father used to tell that Mohajir should form their own party to work towards their rights of Mohajir. When All Pakistan Muhajir Student Organization (APMSO) was formed in 1978 by our leader Altaf Hussain, Mohajirs were happy and gave their .support to the party. It was initially formed to mobilise the young Mohajir students and LI\ I to educate them on the issues Mohajir faced at that time.
Later. on 18 March 1984, Altaf Hussain decided to form a political party to fight for the rights of Mohajirs called, Muhajir Quami Movement which later become Muttahida Quami Movement (MQM). I initially started supporting APMSO when I joined [College] in Karachi. Under instruction and guidance of the senior party workers I used to do wall chalking activities, pasting posters and distributing leaflets and helped workers in organising meeting.
At that time, I supported APMSO, [name deleted] was the leader in Karachi and following were the workers in the college Unit [Number] ([Mr A], [Mr B], [Mr C]) He is a doctor and currently serves as Member of National Assembly. I closely associated with him during that period. During the 1988 election, I worked for [Mr D] who contested under the MQM as a Member of National Assembly and [Mr E] contested as a Member of Provincial Assembly. There are two reasons why I joined MQM.
Altaf Hussain is a true leader and fighter for Mohajirs.
MQM is a secular party and does not accept extremism.
MQM genuinely fights for the rights of Mohajirs and expose the inhuman activities and human rights abuses of the successive Pakistani governments.
I formerly joined as a worker of the MQM in 1989 when I was studying at the [University]. I expressed my desire to my party workers and after seeing my work for a considerable period of time, the senior leaders decided to recruit me as a worker. During that period we used to listen to the motivating speeches of our leader Altaf Hussain. Altraf Hussain has silver tongue and has the ability to mobilise crowd by his powerful speech. When I joined the MQM, I was asked to take allegiance to our party and the leader by placing my hand on Holy Quran.
I still can remember the word I said 'I will be loyal to the Party and the leader in my whole life. I will always struggle for the rights for Mohajirs and Mohajir nation. During the 1990 election I worked along with the other party workers for the victory of [Mr D] as MNA and [Mr E] as MPA. I used to go to do door door campaigning and engaged in pasting posters and wall chalking activities to promote the objectives of the party. I also used to go to places to distribute party flag and encouraged people to donate money for the MQM in contesting in the election.
The then Pakistani government feared for the popularity of MQM and made accusations against MQM to sabotage its political activities. As a result of that, the government commenced a military operation against MQM. Due to the military operation the MQM workers went underground including me to save our lives. MQM decided to boycott the national assembly election protesting against the inhuman activities of MQM, though it contested in MPA election. It was a terrible period for MQM workers.
During that period Mr Afaq Ahmed broke away from MQM and formed his group Mohajir Qaumi Movement (Haqiqi). He started targeted MQM workers. Since J majority of the senior leaders went underground and feared for their life, it was people like me who functioned as the contact persons for them. I used to travel many areas under disguise to pass the messages to different leaders. As a result of that, my house / was raided under the instruction of the police officer names, [deleted] to arrest me. They could not find me. In another incident, I had to climb through the sewage pipe from my house, when the police came to my home.
In 1997, the MQM contested in the election in the name of Haq Parast Group (HPG) [name deleted] contested for MNA and [name deleted] contested for MPA. In 2002 election when [name deleted] contested I worked for him in his election campaign. In 2008 When [Mr F] contested for MNA post and [Mr G] contested for MPA,
I along with the other party workers actively campaigned for them. During the last election (2013) I worked for [Mr G] and [Mr F] in their MNA election and supported [name deleted] in his MPA election. My areas of political activities is called [Area 1], [Suburb 1] and [Suburb 2]. During the 2013 election, I helped the workers to organise the party meeting in [Area 1] at [two locations] in [Suburb 2] and in [one location] [Suburb 1]. In another time, I organise a meeting at [another location] and invited the MQM workers to explain the party work and objectives to convince the party workers.
Though, in 2010, MQM was in power, the party workers continued to face harm from ANP and Taliban. One time, ANP attacked our office [in] [Suburb 2] and as a result of the attack, 1 worker [got] killed and [another] - Unit in charge and five other sustained injuries. In another attack another MQM worker [was] killed. In July 2013, [a] MQM workers was murdered at [Suburb 2].
I worked with them in political activities. I have rendered my service to the party working in the election campaign in MNA and MPA election and helped the party leaders to arrange internal meeting for my unit members and helped the worked to organise public gatherings, rallies and other election work.
Due to the active political engagement, MQM workers like me faced threats, intimidation and harassments from the government authorities, opposition party activists including ANP, MQM (Haqiqi) and Taliban. Despite facing intimidation and threats, I continue to involve in my party activities because in my view, Altaf Hussain is a true leader for Mohajirs and we need to continue to fight for the rights of the Mohajirs and should not allow Sunni extremists including Taliban and Pashtun to infiltrate our territory and engaged in human rights abuse.
It is my belief that we need to speak against this and MQM as a secular party continues to promote secularism. Though, political victimization and attacks and threats continue against MQM workers, however, since the beginning of 2016, MQM workers started face more targeted harm from Taliban, ANP and the government authorities. The current government led by Muslim League accused MQM as Indian supported parties and work with RAW.
Though our leader denied such allegation, the Pakistani government used some of the disgruntled MQM workers and accused MQM without any evidence. This is to create a common enemy for MQM because in Pakistan if any is accused as working for India, itis enough for a Pakistani public to kill such person. It is the current status of Pakistan. The MQM party workers believe that it is the work of the Pakistani government to destroy the MQM party. People in Pakistan, particularly the Sunni extremists would believe the government because they know MQM work for Mohajir who migrated from India to Pakistan.
As a result of that, MQM workers like me started facing more threats from various parties including the political parties and Taliban. Recently in the protest walk against the arrest of MQM workers which started from Aishah manzil to Mazar e Quaid, Karachi. In August 2015, Literature committee In Charge of MQM Mr Sohail Ahmed and eight other workers were arrested by Rangers from Ghufran Mosque after the Friday Prayers. I knew him personally as we worked closely in political activities and he knew my activities.
In June 2016, the rangers arrested [Mr H] with whom I worked in political activities. [Mr H] was the Unit In Charge of Unit [Number]. [In] July 2016, one of the Zonal Committee Member of MQM [and] my close friend was arrested by the Police when he was travelling from Quetta to Karachi with his daughter. No one knows where he is and he is one of the missing person. [In] July 2016, MQM worker [was] killed by suspected PSP members.
My wife was scared about my political involvement and told me many times to stop, my political activities. However, I told her that I cannot abandon my political opinion and activities. As a result of that, she decided to separate from me and left me in May 2014.
When the Pakistani government accused publically that MQM work under the instruction of India and RAW, my family started fear for my life because it was a serious accusation against MQM workers. When the police and authorities started look for MQM workers from early 2016, I started moving from one place to another place to save my life. I contacted my brother in Australia and asked him to help me to get out from my situation.
He then said he would invite me on a visitor visa and made all the arrangements. He applied for the visa in April 2016 and the visa was granted on 03 June 2016. However due to the continuing dangerous situation targeting MQM workers I was scared to come out and leave through the Pakistani airport. When I conveyed my concerns to the party workers, they advised me to wait for 'a suitable time to leave Pakistan through the airport and advised they would make some- arrangements with Immigration officers who are Mohajir working in the airport.
When they arranged everything, they told me to get ready and I left Pakistan [in] August 2016. In order to make arrangement to leave through the airport, it took some time for me to leave Pakistan. After I arrived in Australia, I was relieved and discussed with my brother. He realised that I am undergoing tremendous mental health issues, and told me to get rest and said he would look for immigration agents to seek assistance.
He then started contacting some agents and we met some of the agents. But my brother was concerned on their knowledge on Pakistan and continued to look for a good immigration law firm. For example I sought Immigration legal assistance from [one migration agent] for legal assistance on 23 August 2016. My brother found out about [another migration agent] and called them to see a migration who handles protection visa. I was told [of a person] who handles protection visa was on Holiday and said he would be back on 05 of September 2016.
We booked an appointment after he came back and he explained about protection visa and the procedures. We then instructed him to lodge a protection visa. I fear if I go back to Pakistan I would face serious harm due to following reasons:
Due to my ethnicity Mohajir.
Due to my political opinion supporting MQM and my active involvement with the MQM.
Due to my political opinion against Taliban and other• Sunni extremist organisations.
The Pakistani government, authorities and Sunni extremists consider Mohajir and MQM workers have link with Indian RAW agency.
I fear I cannot get protection from the authorities because the Pakistani authorities consider MQM workers work against the interests of Pakistan. I fear even if I move to other parts of Pakistan, I will continue to face harm because I will continue to engage in political activities. Accordingly, I seek protection in Australia.
AAT Hearing
At the hearing the documents on the applicant’s file were gone through (including an 80-page submission from an adviser), He said there were no additional documents that had not been included. He was told about a claim on page 79 of a submission from 2016 that claimed the applicant suffered from significant mental health issues. He was asked to outline his mental health history. He claimed that he was wrorried when he arrived in Australia whether he would be allowed to stay and this was a great source of tension for him.
Asked what his mental health treatment consisted of, he said that he saw a psychologist [who] toid him that he should mix with his community to reduce tensions. He met the psychologist one time only, in 2017. Asked if he had been referred to the by his GP he agreed that he had. He was asked to provide a letter from his GP outlining what mental health treatment he had received.
The adviser was asked whether he had written he claim regarding mental health and he stated that he had. He said he had received instructions from the applicant that he was under great stress. He agreed he was not a doctor and was asked why he put this claim at page 79 without reference prior to this. He was asked whether he had ascertained from a medical professional and he said that he asked the applicant if he had seen a doctor and he said that he had. The applicant was asked whether he had told the advisor that he suffered from significant mental health issues and he said that he did. He had not seen any mental health specialist at the time he made this assertion to the advisor. Asked if he was medically able to attend the hearing, he stated that he was.
Asked if he was still married, he claimed that he divorced in 2014 before he came to Australia in 2016. He initiated the divorce.
He claimed that if he returned to Pakistan he feared that he would be kidnapped, killed or jailed by the government or by rival political groups (ANP, Sunni extremists such as the Tehrik-e-Taliban Pakistan - TTP) because he was a ground worker for his party, MQM. This was his only claim.
He claimed that he was involved with MQM since 1990 as a worker. Asked what this involved, he claimed that he would gather other members and do jobs as directed by the party. He would arrange meetings and remove people against them who were in the area. Asked what he meant by removing them, he claimed that he provided protection. The politics involved weapons in Pakistan. Asked how he identified their opponents and how he removed them, and he claimed that they knew their local supporters. All partied were weaponised – he carried a weapon.

Asked how he identified political opponents and not someone in their area just visiting friends or shopping for example. He claimed it depended on whether they were visiting offices and they knew they were against them. Asked to explain what he meant, he claimed that if there were people from another party attacking their party they would remove them. There were many attacks on their offices. He carried pistols. Asked what type of pistol he used, he said he used a Chinese 30mm pistol.
Asked how he was trained on the pistol (he said he had been trained, he said he got it in his hand and learnt how to use it. He then claimed nobody trained him – it was put to him that it was strange nobody taught him anything such as cleaning, maintaining, firing positions, what to do with a stoppage. He then claimed that people just learnt from each other. He was asked what happened – did people just give him a pistol and some ammunition. He claimed that he just learnt. It was put to him that the member had been in the army for 26 years and one didn’t just know weapons safety, loading and unloading and what to do with a stoppage intrinsically. He then claimed that older members then showed the younger members how to use the weapon.
It was put to him that he carried and used this weapon, and was asked whether he had ever mentioned this previously to the Immigration Department ir anywhere else, and he said that he hadn’t.
Asked what else he did, he claimed they arranged meetings to tell people about the inequality in the country. But the government wasn’t listening. He did this from 1990-2014. He did grassroots support and provided security to the grassroots and to leaders.
Asked what qualifications he had, he said he had a [degree] and did one year of a journalism degree but didn’t pass the second year. Asked if he was active in MQM journalism, he said that he wanted to express himself by collecting all the information about the politics. Asked where he wrote, he claimed that he wrote internally for the sector and zone about the situation in the country.
Asked what happened to him during this [years], he claimed that he was constantly moving and sometimes went to the sea. Asked what caused him to hide himself for [those] years, he claimed that people working with him were being killed or kidnapped. He was attacked many times and they nearly caught him. Asked if he had been hospitalised and he claimed that he hadn’t.
Asked what happened to him, he claimed that in 1996 a police inspector came to his house with police to try to catch him but he wasn’t in the house. They didn’t take his brother as they had nothing on him. There was no arrest warrant as this wasn’t the culture in Pakistan. He was working on behalf of the government as they were against them. The applicant was famous in his area [and] there was an operation against his party from the government.
Government raided his house three times – twice in 1996. From 1992-97 they tried to detain himself many times. Asked for details, he claimed there was a big anti-MQM operation but after that they were in the government. Asked about the circumstances they were targeting him during 1992-97 he claimed he was hiding and was able to escape. Asked about the details, he claimed that there was the 1996 raid by the police on his house. Prior to this, the police used to raid their offices.
Asked again about the circumstances where they tried to detain him personally, he again said they were targeting every worker. Asked again about attempts to arrest him, he claimed that they were fighting the government. Asked how many times they came to his house, he said once at his house, and twice at other places he was staying. After 1997 there were also many times people tried to detain him.
Asked about the circumstances, he claimed they activated the police against the workers. Asked how he knew the police were after him, he claimed they came to areas and were asking for the applicant by name. Asked if this was the case until he left Pakistan he said the police tried this until he left Pakistan. Asked about the other parties, he claimed that he was lucky to avoid the other parties – it was hard to hide for so long.
Asked if he listed these addresses when he applied for his tourist visa, he said that he didn’t. He never wrote this down as it was all in his head. It was put to him that he had said he worked for the same company from 2005-16 and for a [Business type 1] company for three years prior to that so it was strange that he couldn’t be found. He claimed he didn’t sit in an office with the [Business type 1] company as he was out. Asked why the police didn’t just go to the office and asked where the applicant was that day, he claimed that he didn’t have to sit in the office and just had to find a buyer. The question was repeated and he said that he never told anyone he was working there because they couldn’t find out this information.
He was asked if he could live like this for three years without the police knowing about him why couldn’t he continue this way, and he said it was no way of living. Asked how he could work for 11 years for a [Business type 2] company without being found and he again said he worked on sites, not the office. It was put to him that it was amazing he could work for 11 years for one company without the police, government or any other group knowing he worked for them. He again said he didn’t go to the office, and he said that this was how the people in the party helped someone, by wealthy people helping them worked. It was put to him that this didn’t explain how he could not be found for 11 years despite working for the same company. He claimed that he hadn’t been formally hired, just given work. It was put to him that he claimed he was the site supervisor, which wasn’t just some casual worker who could be hidden. He claimed that he didn’t have to introduce himself with his name to anyone.
Asked if he had any evidence such as media reports or photos of him in MQM given he was in charge of [number] people, he said there were but the records had been lost. He claimed because he had moved so many places he couldn’t retain them. He was asked about media reports concerning him, and he claimed only senior people would have media reports. Asked about reports or photos of him with MPs that were held by MQM as politicians often had photos with important party workers, he claimed that the government had shut down everything and the office had been destroyed so there were no records. Asked if his involvement with MQM relied entirely on his oral evidence, he claimed that he had the letter from MQM who checked with other people (this letter is referred to at paragraph 74 below).
Asked if he had been active with MQM since he had been in Australia, he claimed that all the party is silent at the moment because of the situation, They only talk by telephone but aren’t active. Asked if he was active on social media promoting MQM, he claimed that if he started using it then people became targeted as a result so they didn’t. Asked why he couldn’t promote the values of MQM without naming people on social media, he claimed that his party had been labelled as an Indian agent so they couldn’t say anything.
He was asked why they didn’t push back against this message on social media and contest it. He had half a [degree] in journalism so he should know about the power of messaging. He claimed it would serve no purpose as they would still label them as Indian agents. Asked what he did for MQM in Australia, he claimed that he had to survive so he worked in Australia. He had an idea but had to wait for the right time. Pakistan was too close to China so they were like a communist country and there was no room for political expression.
Asked what he had done for MQM in Australia, he claimed that people spoke by phone. He attended a function for the founder of MQM’s birthday – he did this in September 2019. He maintained contact with the executive in Australia. He only knew 2 or 3 of them. He said the leader was [Official 1]. He also knew someone [in] Melbourne. He was a worker and he knew him because he worked in the main office in Pakistan. He didn’t know his family name. It was put to him that he knew him Pakistan but he said that [this person] was a receptionist. They couldn’t do anything for MQM in Australia.
Asked who else he knew, he said that he only knew these two people. He searched for [Official 1] and got in contact. Asked where the MQM main office was, he said it was in London. Asked if he was in contact with them, he said he tried but they never returned his message. Asked if he e-mailed them, he claimed he rang some friends from his local area in Pakistan who were in London. Asked again if he had ever e-mailed MQM main office in order to contact them, he said he hadn’t. Asked why he didn’t he said they never returned his call. Asked why he didn’t email them, he said he called a few times in 2016 and nobody returned his call. Asked why he didn’t email them, he said he was only in contact with [Official 1]. Asked if the London office would have records of him and could prove his membership. He said they would certainly have them but he didn’t know if they would verify him because of politics.
Asked if he had tried to contact MQM in London to provide him with verification and he said that he had, but he only called them. Asked why he didn’t email them, he was unable to say other than he just called them. He said that he would be unable to provide any evidence that he had called them. He said he tried to contact them in 2017 because he thought ne would need a letter to strengthen his case. Asked if this was before he had an interview with DIBP, he said it was after. Asked if he told DIBP he had not been able to contact MQM, he said he couldn’t recall.
Asked who told him that [Official 1] was head of MQM in Australia, he said that a Pakistani person told him this. Asked if MQM London had a social media site, he claimed they did. Asked why they did this given he had said there was no point in doing this. He claimed they only followed the main MQM site but didn’t add anything to it. Asked why they didn’t he said that no one did any work here and they just saw each other.
Asked of [Official 1]’s number was current and he said it was. The witness ([Official 1]) was then called. Asked how long he had resided at the current address he said he had been there for six years. He gave his previous address. The witness said that the applicant had been an organiser in Pakistan for MQM – asked what he had done to verify the applicant’s claim, he claimed that he had checked by ringing the person in Pakistan whose number the applicant gave him who confirmed the applicant’s story. Asked if he did any other checking, he claimed that he checked this person in Pakistan was in charge. It was put to him that this wasn’t a very strict check, and he said that he also asked who else was in the area and what sector the applicant worked in. Asked what his position was in Pakistan, he claimed that he didn’t know and didn’t ask and he just asked the person whose number he called whether the applicant worked for MQM.
Asked how many people MQM had in Australia, he claimed they had 100-120 people. They weren’t active at the moment because of the situation in Pakistan. They were also fearful for families in Pakistan. Asked if the MQM office in the UK had a social media site he said they did. He was asked why, if it was dangerous for people in Pakistan if someone wrote about MQM in Australia, it wasn’t in the UK, he claimed they were head office. The families of people in the UK MQM were in hiding in Pakistan because of what was written on the website in the UK.
Asked if they supported the UK office of MQM he said that of course they did but they didn’t write because of the danger to their families in Pakistan. Asked if the MQM website had has contact details he said they did. It was put to him that the website had the Australian office address [which] was six years old. The phone numbers on the site were also not the same as the numbers he had given the AAT. He said they hadn’t updated them. Asked why they hadn’t in six years, he claimed he couldn’t say. Asked if he had a deputy in Australia he claimed that he didn’t – they had organisers and ‘in charge’. [Name deleted] was the previous person in charge but no one was currently active. He claimed that in Pakistan their lives were not safe. Asked what the applicant had done for MQM in Australia, he claimed that he would come to the meetings – sometimes dinner parties, or get-togethers.
The applicant was told about s 424AA and it was put to him that in his DIBP interview, he claimed that he was separated but not divorced from his wife but that this may happen in the future – she hadn’t asked for it and he had taken no steps. Today he claimed that he had divorced her in 2014. The inconsistency could go to issues of his credibility. He claimed that they were separated at the time – he was told the member understood the difference between separation and divorce. He claimed that in his mind the separation was like a divorce so it was his mistake. Asked when he was officially divorced, he thought it was in 2014 or 2015 but it was verbal. He needed to check the document. He was asked why he told the DIBP he was divorced, and he claimed it wasn’t registered. He then said it was talaq (pronounced) but was registered in 2014. It was put to him that the issue wasn’t about whether it was registered or not, it was a clear question about whether he was divorced – he then said it was his mistake.
Also under s 424AA it was put to him that he told DIBP that he wanted to keep working for MQM because he had worked too hard to give up. Yet he had done no work for MQM in Australia or with the UK branch. He had no social media profile, may have attended some meetings/dinner parties. This lack of connectivity called into question whether he was ever a member of MQM. He asked for more time to reply in writing and was asked why he needed more time. He said that he could reply briefly now but if the Tribunal wanted a detailed answer it would be better in writing. He was told that it was a straightforward question, and he then answered that there was nothing really for him to do here with the party.
Also under s 424AA it was put to him that he didn’t appear to know the name of the organiser for MQM in Australia, the contact details for MQM Australia on the UK website were six years out of date so it didn’t give the Tribunal much confidence that he was active with, or a member of MQM. He said that he would provide more detail in a written answer.
Also under s 424AA it was put to him that he had been asked by DIBP to provide evidence to them regarding his membership of MQM and he undertook to DIBP to contact London and get evidence and he should be able to get it in a week or ten days. He was given two weeks and there is no evidence that he told DIBP that he unsuccessfully tried to contact MQM and he had said today that he had never even tried to email them. The concern was that he was not and never had been a member of MQM. He said he would reply later. Asked why he never emailed them, he claimed he had contact by phone. It was put to him that he said he didn’t have any telephone contact – he said that he rang some friends who came from the same area in Pakistan. He had made no effort to make direct with MQM and the concern was that this was because he had no relationship to, or with MQM.
He said that because of his link with MQM there, he contacted the MQM person in Australia. It was put to him that he had undertaken to DIBP to contact the MQM office in London but not only had he not done so he also never advised DIBP that he hadn’t. He claimed people he knew in MQM had moved to the US or elsewhere when he phoned them.
Asked if he left Pakistan as soon as he received an Australian visa, he claimed that he didn’t as he had to find a relationship within Pakistani immigration so he could arrange a departure through the airport in Pakistan. He had to find some people to help him. Asked how he found these people, he claimed that he had some contacts and some relatives who knew people. Asked how he knew that he would be able to access the actual immigration person, he said he was told what day the person would be on duty which was when he left.
Asked if he wanted anything to do with the Pakistani government he said that he didn’t. Asked if he had a drivers licence, he said that he did and he got this in 2017 while in Australia. His brother made it for him in Pakistan. His previous one was issued around 2012. Asked why there was no warning out for him when he got his drivers licence then, he claimed that he could bribe his way to get one. He was issued and received a legitimate Pakistani ID card in 2015. He said that at this time his party was in government and things were easier then. Regarding his passport he received it in 2015 – there was no problems.
His brother and his mother and nothing had happened to them. The brother had moved away and nobody knew where he lived and his mother if asked said they had no relationship with the applicant.
It was put to him that nothing had happened to his family, he had been issued all his Pakistani identity and other documents, he didn’t leave Pakistan for four months after receiving his Australian visa and he left through a major international airport without problem so it appeared he was of no interest to the Pakistani government. He claimed that these things were all arranged using bribes.
Also under s 424AA it was put to him that he had told DIBP that there were government operations against MQM from 1991-96 and 2010-2016 yet today he claimed that things were okay in 2015 when he was issued his ID card and passport. There was an inconsistency regarding what evidence he was giving to DIBP and what he told the Tribunal today which could again go to issues of his credibility and whether he was part of MQM. He claimed that there were areas they were in danger and areas they weren’t.
It was also put to him that he never made this distinction to DIBP and he claimed that MQM members were arrested and disappeared and yet he worked and got documents without problems. The concern is that he was never part of MQM and there was never any interest in him. He claimed that these documents could be purchased with money. The main problem was always in Pakistan.
Asked about his claim to fear serious harm as a muhajir and whether it was separate to his MQM membership and he said it was. He was asked why he never mentioned this at hearing at the start. He claimed the claims were the same – as a muhajir it meant it was MQM and muhajir wanted equal rights for everyone.
Asked what serious harm he feared as a muhajir, he claimed he joined MQM because he was a muhajir. He had no problems as a muhajir prior to joining MQM. It was put to him that he claimed to have suffered discrimination at school as a muhajir – he claimed that he felt people thought he was different but nobody detained him because of it. Asked if his brothers in Pakistan or Australia were members of MQM, he said they weren’t. He felt things more closely so he joined not them. His brother is an Australian citizen and he came here as an [Occupation].
Asked if he had anything else to say, he claimed that he saved himself by coming to Australia. His class in Pakistan could never get support because they were used. It was put to him that his witness had simply called a number that the applicant had given him. He denied that he had given the person a number to call and he rang people he knew. It was put to him that the witness was asked and told the Tribunal that he called a number given to him by the applicant. Also the fact that the contact address and number was six years out of date didn’t give the Tribunal any confidence that MQM was active in Australia.
CONSIDERATION OF CLAIMS AND EVIDENCE

The applicant arrived in Australia on a visitor’s visa [in] August 2016, and he applied for protection on 26 September 2016. The Tribunal sighted a copy of his Pakistani passport as proof of his identity and his claim will be assessed accordingly.
The applicant is a [Age] year-old male from Pakistan. He claimed that if he returned to Pakistan he would be kidnapped, killed or jailed by the government, rival political groups or the TTP because he had been a worker for the MQM Party. In his protection visa application he also claimed he would face serious harm because of his ethnicity as a muhajir.
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not required to accept uncritically any and all claims made by an applicant.
I have taken into account a claim made on page 79 of his 22 September 2016 submission that the applicant ‘suffers from significant mental health issues’. I lend this claim little weight given when he was asked on what basis this claim was made, the adviser said that he was instructed by the applicant that this was the case. The submission contained no medical evidence to support this claim, and the applicant stated that he had not seen a doctor at the time he said this.
I have taken into account a letter received post-hearing that he claimed was a letter from a Karachi-based doctor attesting to his mental health treatment in Pakistan due to his political activities. I lend it little weight given he never mentioned this treatment during his hearing, the photocopy of the letter shows it to be hand-written in English and dated 12 September 2016. Firstly the letter could have been written by anyone at any stage It also makes no sense why the Pakistani doctor would write a letter in September 2016 in English addressed ‘To whom it may concern’. And given the date was prior to the submission of his protection visa application, it makes no sense why it was not mentioned by the applicant to his adviser or included in the submission.
I have also taken into account a letter from a psychologist dated 3 May 2017 that says the applicant appeared to be suffering from mixed anxiety and depression. I also lend this little weight. It makes no mention of any prior history of mental health issues (as would be evidenced by the alleged Karachi-doctor’s 2016 letter), or of any causal connection to Pakistani-based persecutory actions. The applicant also said that he only attended once, and the psychologist’s report said that a report would be provided at the end of his self-care program, yet none was provided by the applicant.
There is no evidence regarding mental health issues that I believe would explain the inconsistencies and implausibilities in the applicant’s claims. He was also asked whether he was medically able to attend the hearing and he stated that he was.
I found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness, and find that he fabricated most of his claim in order to be granted a protection visa.
Credibility
Much of the applicant’s claims rest on his oral evidence so it is worthwhile establishing the Tribunal’s view of his credibility as a witness. His inconsistent accounts regarding his marital status is one issue where the Tribunal formed the opinion that the applicant was not being truthful. In his protection visa application statement he claimed that his wife asked him to stop his political activities but he refused and because of this she decided to separate from him and left him in May 2014. In his September 2016 protection visa application he ticked the box saying they were separated, and did not tick the box saying they were divorced.
During his hearing he was asked if he was still married but he said that he divorced his wife in 2014 before he came to Australia, and that he had initiated the divorce. This is different from what he told DIBP during his interview, when he said that he was separated but not divorced but that divorce may happen in the future and that she had not asked for it and he had taken no steps towards it.
I do not accept that the inconsistency was because he believed that the separation was like a divorce and that this was his mistake. He was also inconsistent about his registration of the divorce, saying variously that it wasn’t registered, that he ‘would have to check the document’ to determine the date of divorce (indicating that it must have been formalised), and that he registered the divorce in 2014. He was asked pre-hearing to provide copies of his marriage and divorce certificates but nether were provided.
Post-hearing he claimed that he Islamically divorced her by pronouncing ‘talaq’ three times in 2014 and that he said he would divorce later but actually meant that he would formalise the divorce by registering it. He provided a document post-hearing that he claimed was the deed of divorce.
To begin with, his claim to have divorced her in 2014 by pronouncing talaq is still inconsistent with his written statement in which he claimed that his wife decided to separate from him because of his political activities and she left him in May 2014. I also give little weight to the document that he says is a divorce deed dated 9 January 2021 (the day after the letter was sent by the AAT asking him for a copy of the divorce certificate). I note that country information indicates that document fraud is widespread for forms of documentation not issued by a competent central authority such as NADA.[1] The document itself is a photocopy and the writing does not appear to align in some places as a normal document would. It also states that ‘I pronounce three times talaq to my wife on dated 2018’. The applicant however, claimed that he pronounced talaq in 2014.
Political Activities
[1] DFAT Country Information Report – Pakistan, 20 February 2019 p 71.
I do not accept that the applicant is, or ever was a member or supporter of MQM, that he would be perceived to have been or to be one, or that he would continue to engage in political activities. As a consequence I do not accept that he undertook the political activities that he claimed in Pakistan and therefore he would not be kidnapped, killed or jailed by the government, rival political groups or TTP.
Despite allegedly working for the party between 1990-2014 and being famous in his area, including controlling [number] units that included [number] people he had no photographic evidence of any association with MQM in Pakistan. I do not accept that he had such records but they had been lost because he had to move so many times as a consequence of the authorities pursuing him that he lost them, or that records had been lost when the Pakistani government shut down the MQM offices.
To begin with he had also been asked by DIBP at interview to provide them with evidence as to his MQM membership, and he told them that he would contact the head office in London and get this information and that he should be able to get it within a week or ten days. He was given two weeks to provide this information – he never provided such information to DIBP nor is there any evidence that he tried to contact them but was unsuccessful.
He told the Tribunal that he tried to phone friends he knew from Pakistan who were with MQM in London but they variously never returned his calls, or had moved elsewhere. He was asked several times why he never actually e-mailed the London MQM office but he was unable to give a coherent response. In a written response post-hearing he never stated why he did not contact the secretariat in London, simply saying that he tried to call MQM workers he knew in London. He told the Tribunal that the London office would certainly have records of him, but he didn’t know if they would verify him ‘because of the politics’. Not only is this so vague a reason as to make little sense, the lack of any evidence of any attempt to contact the secretariat in London over the past five years, despite claiming they could prove his membership, lacks credibility. This is also particularly the case when he had told DIBP that he could get this information within 7-10 days yet never attempted to.
I am also not satisfied that he was truthful about the roles he performed in MQM. At hearing he claimed that he provided security, including being ‘trained’ on the use of a pistol and carrying it with him to expel non-MQM members from their area. I do not accept this to be the case not only because of his inconsistency in describing the training he was given on the weapon (it varied from not receiving any training, to teaching each other, to being taught by older members but also because he never previously mentioned his training in the use of a weapon or his role in providing armed security for MQM in his statement or to DIBP.
I also do not accept that the applicant was wanted by the police or anybody from any other organisation and that he had to move constantly over the years. In his protection visa application he gave a long list of residences he had to live at between 1992-96 and 2009-16 when he was allegedly being searched for. Yet he never included these places of residence in his visitor’s visa application which calls into question the truthfulness of his claim.
I also note that despite the applicant claiming to have been forced to constantly move residence, live out at sea for a period and had to crawl out through a sewer pipe to escape a police raid on his house, his employment record is inconsistent with the transient residential lifestyle he claimed to have had to lead. He claimed that he was employed by a [Business type 2] company from 2005-2016 even though he also claimed to have been the focus of searches sufficiently intense that he had to consistently move residence. I do not accept that he was just given work and not formally hired and didn’t give his name to anyone so nobody knew he was there. In his protection visa application he described himself as a site supervisor, which is something more important than just a casual worker.
His allegation that he had to constantly hide to avoid the Pakistani government from 2009-16 is also at odds with his willingness to apply for, and pick up his Pakistani national ID card and his Pakistani passport in 2015. I note that he claimed he paid a bribe to get his driver’s licence and, while I accept that corruption is common in Pakistan and may account for his ability to bribe his way to getting a driver’s licence, I also note that he told the Tribunal that he was able to get his legitimate passport and national ID card because his party was in government and things were easier then.
This is inconsistent with what he told DIBP at his interview when he said that there were government operations against MQM from 2010-2016. I do not accept that there were areas that were in danger and other that weren’t as he had never made this distinction to DIBP nor did he explain why Karachi for instance was not in danger. His claim about MQM being in government in 2015 is also inconsistent with his claim in his post-hearing submission that they were in coalition with the government from 2008-2013.
I have taken into account the evidence provided by the witness and a letter provided by the same attesting to the applicant’s membership of MQM since 1989 but lend it little weight. While I accept that the person in question is the leader of MQM in Australia it appears that the organisation is quite moribund and its links with the secretariat rather limited, as evidence by the fact that the address and telephone number of the MQM office in Australia that appears on the MQM secretariat website is six years out of date.
The Tribunal’s concern however is that the witness appeared to base his evidence that the applicant was a member of MQM in Pakistan on calling the phone numbers given to him by the applicant. This is not an independent source of verification. There is also no evidence that the applicant has any social media or other profile with respect to MQM in Australia. I do not accept that this is because it is too dangerous to do given they had family members in Pakistan or because the government just said that they were agents of India.
He offered no independent country information that indicated the Pakistani government targeted family members of MQM supporters abroad, nor is the Tribunal aware of any such information. While the witness claimed that the members of the UK general secretariat were in hiding because the UK office had an active social media presence, he offered no country information to support this, nor is the Tribunal aware of any that would support this claim. I also do not accept that the Australian branch is not active on social media because the Pakistani government simply said they were agents of India. To begin with it seems strange that they would simply leave the electronic battlefield of ideas because of such a belief, and it is inconsistent with the example of the UK secretariat that have an active social media site.
Given I do not accept that the applicant has been politically active in Pakistan in the past, I do not accept that he would continue to engage in political activities. He had told DIBP at interview that ‘he wanted to keep working for MQM because he had worked too hard to give up’, yet his lack of activity in Australia is inconsistent with that claim. I accept that the local group is moribund, but his lack of effort in trying to instil some life in it is also inconsistent with his claim to have been a famous MQM organiser in his area and in charge of [number] units incorporating [number] people.
Mohajir Persecution
While I accept that the applicant is a mohajir, I do not accept that there is a real chance that he has been, or will be targeted due his ethnicity. He did not raise this as a separate claim at the start of the hearing when he was given the opportunity to do so, and he sought to equate his membership of the MQM as his reason for being targeted as a muhajir.
I am willing to accept that he may have been teased at school for being a mohajir, however this was around [years] ago, and such treatment was neither systematised nor would it come anywhere near the threshold for what would constitute serious harm.
I also do not accept that he would be considered to have links with the Indian RAW agency because of his mohajir ethnicity. He mentioned this in his original statement but did not mention this during his hearing even when asked what serious harm he feared for being a mohajir he, provided no independent country information to support the claim and nor is the Tribunal aware of any such information that would support such a claim.
He claimed at hearing that he had no problems as a muhajir prior to joining MQM and given I have found that he never was a member of MQM in Pakistan or ever imputed with having links with the Indian RAW agency, it follows that he would continue to have no problems based on his muhajir ethnicity on return to Pakistan. He has been able to obtain tertiary qualifications, be employed for 14 years before he left Pakistan, be issued with all the necessary Pakistani ID documentation and was free to depart Pakistan. His family lives there without difficulty which also indicates that their ethnicity is not a significant issue for them in that country.
Other Issues
I also do not accept that he would be harmed because of his political opinion against the Taliban and other Sunni extremist organisations, or that he would be considered to have links with the Indian RAW agency because of his MQM membership. These claims were put forward as part of his broader claim to be a regional organiser of the MQM, a claim that I have found to have been fabricated. Because of this I am satisfied that the applicant is of no interest to the Pakistani government, the Taliban or Sunni extremist groups.
As the applicant hasn’t raised any other claims to fear persecution, and having had regard to all the evidence, and the applicant’s claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any s 5(J) reason either now or in the reasonably foreseeable future.
Complementary Protection
Because I do not accept that the applicant would be jailed, kidnapped or killed by the Pakistani government, rival political groups or Sunni extremists, or that he would be targeted for being a mohajir, I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.
As a consequence I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).
CONCLUDING PARAGRAPHS
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 s.36(2)(a).
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). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rodger Shanahan
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 1005

25 March 2021

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Standing

Natural Justice