1711373 (Refugee)

1711373 (Refugee) [2021] AATA 1052 (23 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1711373
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:L. Symons
DATE:23 March 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 23 March 2021 at 6:03pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – particular social group – Pakistani male who has entered into an inter caste relationship – love relationship – married against the wishes of their respective families – Pakistani male facing honour killing – credibility concerns – inconsistencies in evidence – delay in arriving in Australia after granted a Student visa – delay in seeking protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
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 Home Affairs on 18 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, arrived in Australia [in] January 2017 as the holder of a subclass 500 Student visa. On 3 April 2017, he was granted a Bridging A visa in association with his application for a Protection visa.
The applicant applied to the Department of Home Affairs (the Department) for a Protection visa on 24 March 2017. The delegate refused to grant the visa on the basis that he is not a person in respect of whom Australia has any protection obligations. On 29 May 2017, he applied to the Tribunal for a review of that decision.
The applicant appeared before the Tribunal on 22 March 2021 to give evidence and present arguments. The Tribunal also heard evidence from his brother [by] telephone. In his Response to Hearing Invitation, the applicant requested that the Tribunal also take evidence from his friend, [Mr B]. However, during the hearing he informed the Tribunal that he did not want [Mr B] to give evidence during the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
The issues that arise on review are whether Australia has protection obligations to the applicant under the refugee criterion or under the complementary protection criterion.
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 AND FINDINGS
The applicant’s claims in his application for a Protection visa lodged on 24 March 2017 are summarised as follows:
·He is from Pakistan and is seeking protection in Australia because he would be targeted and killed due to his “love relationship” with his girlfriend.
·He met his girlfriend, [Ms C], at his family’s [shop] a year to a year and a half ago (2015/2016). He liked her, started talking to her, she also expressed interest and they became lovers. He later informed his brother that he liked [Ms C] and wanted to marry her. He became angry, told him he could not marry outside their family and had to marry within the family.
·[Ms C] told her mother about him and her mother refused to accept it, warned her that her father would kill him if he found out about their love affair. In order to avoid problems, [Ms C] told her mother she would agree with the family’s decision.
·However, they were determined but did not realise it would cause so much trouble. They decided to get married and hoped their families would accept it after they got married. He contacted [Ms C] by telephone and arranged for her to leave her home at 1.00am [in] September 2016. They went to the home of his friend [Mr B] who had agreed to help them. They switched off their mobile telephones.
·He found out through a friend that [Ms C]’s family had lodged a Police complaint against him at [the] Police [in] October 2016. He sent a message to his brother, through a friend, asking for his help. His brother was angry but decided to help him because of the danger he was facing.
·His brother made arrangements for an appointment at the District Court [in] October 2016 to register their marriage. When they got there, they saw [Ms C]’s father, brothers and “their goons” armed with sticks and a gun. [Mr D] fired at them but they escaped. His brother advised him to leave the area, put [Ms C] in a women’s refuge and took him to a safe place. They registered a FIR against them. [Ms C]’s family has close connections with [two named persons] who are well known politicians with the Pakistani Muslim League. The Police refused to investigate the matter due to [Ms C]’s family’s political connections.
·[Ms C]’s family are looking for him and his family continues to receive threats. He heard that [Ms C]’s family went to the women’s refuge and forcibly took her with them. His family realised that he could not continue to live there and his brother decided to contact an agent to arrange for him to leave the place. His family paid the agent to obtain an Australian Student visa for him. He has no idea what documents and information the agent provided (the Department) to obtain the Student visa.
·He was in hiding until he obtained the Student visa. After he obtained the Student visa, his brother paid the agent to organise his travel through the airport. His family had no other option than to rely on the agent to leave the country. He left Pakistan [in] January 2017.
·He only completed Year 12 in Pakistan. When he arrived in Australia, he was told at the College that he was enrolled in a [degree]. He did not know what it was, became scared, did not go to the College and decided to stay inside the house. He cannot speak English and did not know who to contact. He was afraid to approach the Department as he was concerned he would be deported. He was afraid and faced mental health issues fearing for his life.
·After some time, he met some Pakistani people who suggested he obtain immigration advice. He contacted [a law firm] in March 2017 and discussed his issues with them. He informed them that he could not relocate or obtain Police protection because of [Ms C]’s family’s Police connections.
·[Ms C]’s family think he has ruined their family honour and dignity because [Ms C] went with him. In Pakistan, the family honour is based on the behaviour of the female members. They are so angry with him that they think if they can kill him in public their honour would be restored in the community.
·He fears that he will be seriously harmed if he returns to Pakistan. He will be targeted, tortured, face degrading, inhuman and cruel treatment and will be killed by [Ms C]’s family, relatives and their political links. He seeks protection in Australia.
The applicant provided the Department with copies of his Pakistani passport issued [in] 2013, his Secondary School Certificate Examination results ([year]), his Intermediate Examination results ([year]), an article from a newspaper named ‘[Publication 1]’, an article from a newspaper named ‘[Publication 2]’, a First Information Report (FIR) dated [in] October 2016 and a FIR dated [later in] October 2016.
The applicant attended an interview with the Department on 8 May 2017. During his interview, he reiterated and expanded on his written claims. He claimed that after his marriage was aborted [in] October 2016 he went into hiding, moved from house to house and hid in different villages and cities. He remained in hiding until he received a visa. Several threatening letters were sent to his home and his brother received information that people were after him. His brother also went into hiding for a time but as he was the main target he had to remain “completely hidden” until he was able to leave the country. He claimed that his family still receive threats. He claimed that due to the political connections of [Ms C]’s family there may be an alert on him at the airport which would result in them being notified of his return and them killing him.
The applicant’s former migration agent [provided] the Department with written submissions dated 15 May 2017. He submitted that the applicant is a member of one or both of the particular social groups ‘Pakistani male who has entered into an inter caste relationship’ and ‘Pakistani male facing honour killing’. He submitted that there is no meaningful option for the applicant to relocate or obtain effective protection from the Pakistani authorities. He submitted that Australia has obligations under the Refugees Conventions, as incorporated into domestic legislation, towards people facing serious hardship and torture if they are returned to their home county under non-refoulment obligations.
The applicant’s former migration agent provided fifty seven links to websites in relation to honour killings targeting people engaged in love marriages in Pakistan and also referred to country information on honour killings in Pakistan.
The delegate found that the applicant’s claims were not credible and refused his application for a Protection visa on 18 May 2017.
The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 18 May 2017.
Receiving country
The applicant claims to be a citizen of Pakistan and has provided a copy of his Pakistani passport to the Department and the Tribunal. In the absence of any evidence to the contrary, the Tribunal finds that he is a citizen of Pakistan. The Tribunal finds that Pakistan is the receiving country for the purpose of assessing his claims for protection under the refugee criterion and the complementary protection criterion.
Third country protection
The Tribunal finds that the applicant is outside his country of nationality. There is no evidence before the Tribunal to suggest that he has the right to enter and reside in any country other than his country of nationality.
Assessment of claims
The applicant gave evidence that his former migration agent prepared his application for a Protection visa based on his instructions which were true and correct. He stated that he was satisfied that his visa application was accurate and complete. He stated that there were no changes in his circumstances since he filed his visa application.
During the hearing, the Tribunal discussed with the applicant his background, his family, his education, his employment, where he lived in Pakistan, his reasons for leaving Pakistan and why he fears returning to Pakistan. The Tribunal found aspects of his evidence to be contradictory, implausible and unconvincing. He made new claims during the process. There were significant inconsistencies in his evidence. He was unable to provide a coherent and consistent account of events. His conduct prior to coming to Australia and after coming to Australia was not consistent with his claims. The Tribunal finds that he is not a reliable or credible witness for the following reasons:
First, in his Statement of Claims, the applicant claimed that he met [Ms C] at his family’s [shop] in 2015/2016, he liked her, started talking to her, she also expressed interest and they became lovers. He claimed that he later informed his brother that he liked [Ms C] and wanted to marry her. He claimed that his brother became angry, told him he could not marry outside their family and had to marry within the family. He claimed that when [Ms C] told her mother about him she refused to accept it and warned her that her father would kill him if he found out about their love affair.
In his Statement of Claims, the applicant claimed that, despite the opposition from their respective families, he and [Ms C] were determined (to continue their relationship), decided to get married and hoped that their families would accept it after they got married. He claimed that he contacted [Ms C] by telephone and arranged for her to leave her home at 1.00am [in] September 2016. He claimed that they then went to the home of his friend [Mr B] who had agreed to help them. He claimed that he subsequently found out through a friend that [Ms C]’s family had lodged a Police complaint against him at [the] Police [in] October 2016.
In his Statement of Claims, the applicant claimed that he then contacted his brother and asked for his help. He claimed that, although his brother was angry, he agreed to help him and he then made arrangements for them to register their marriage at the District Court [in] October 2016. He claimed that when they got there, they saw [Ms C]’s father, brothers and “their goons” armed with sticks and a gun. He claimed that [Mr D] ([Ms C]’s brother) fired at them but they escaped.
In his Statement of Claims, the applicant claimed that his brother took [Ms C] to a women’s refuge and took him to a safe place. He claimed that they registered a FIR against them but the Police refused to investigate the matter due to [Ms C]’s family’s political connections. He claimed that he heard that [Ms C]’s family went to the women’s refuge and forcibly took her with them. He claimed that [Ms C]’s family are looking for him and his family continues to receive threats. He claimed that he was in hiding until his family organised an Australian Student visa.
The Tribunal finds some of these claims to be implausible. Firstly, the Tribunal considers that if the applicant and [Ms C] decided to go against the wishes of their respective families and get married in the hope that their families would accept their relationship after they got married, they would have made arrangements to get married before they took the drastic step of [Ms C] leaving her family home in the middle of the night without the knowledge or consent of her parents. It was not [until] October 2016, some 7 days after [Ms C] left her parents’ home, did the applicant contact his brother and ask for his help and his brother then organised their marriage. He only contacted his brother after he found out that [Ms C]’s father had lodged a complaint against him with the Police.
Secondly, the Tribunal finds it implausible that [Ms C]’s father would have waited for 7 days after his daughter disappeared before he lodged a complaint with the Police. These issues raise concerns about the credibility of these claims.
Second, during the hearing, the applicant gave a different version of these events. He stated that he met [Ms C] in 2016 at the [shop] where he worked. They became friends and loved each other. He told his brother that he wanted to marry her but he told him he had to marry a relative. [Ms C] talked to her mother about him and was told that her father would not agree and would kill her and him. They decided they would get married and then try and convince their families.
The applicant gave evidence that in mid-December 2016 he spoke to his friend [Mr B] who agreed to help him. [Mr B] got the information, set the date for the marriage (being either [in] December 2016 or [later in] December 2016) and made all the arrangements. He stayed at [Mr B]’s home for one night, being the night prior to the date set for the marriage. A day or two prior to the date of the marriage, he went to [Ms C]’s house at about 1.00am with [Mr B]. They picked her up and took her to the home of one of [Mr B]’s family members. He then informed his brother that he was going to marry [Ms C].
The applicant gave evidence that his brother took him and [Ms C] to the Court to register their marriage. On the way there, they were attacked by [Ms C]’s father and brother. Her brother had a gun and fired at him. Her father had a stick. They managed to escape and took [Ms C] to a women’s refuge. His brother took him to Lahore where he hid at the home of his brother’s friend. He tried to contact [Ms C] by telephone on one or two occasions but was unable to do so. He has had no contact with [Ms C] since the incident in December 2016. He subsequently found out that her family had located her and taken her back home.
The applicant gave evidence that [Ms C]’s father and brother went to the [shop] looking for him. They made threats against him to his brother and also threatened his brother. As his life was in danger, his brother asked a friend to arrange for him to go overseas. He did not return to his village. When asked whether anything else had happened that he had not told the Tribunal about, he responded no. That was the only thing that happened, his life was in danger and they wanted to kill him.

There are a number of inconsistencies between the applicant’s claims in his Statement of Claims and his evidence to the Tribunal. There were inconsistencies in his evidence in relation to when [Ms C] left her home, where she was taken from there, who organised the registration of their marriage, the length of time between her leaving her home and the registration of their marriage, the length of time between the registration of the marriage and the date when he left Pakistan during which he claims he was in hiding and his failure to mention that [Ms C]’s father lodged a complaint against him at the Police Station.
The Tribunal raised as an issue with the applicant the inconsistencies in his evidence and its concerns in relation to the credibility of his claims. He responded that maybe it is because he feels tense, “did not do this correctly” and is mentally upset. The Tribunal accepts that he may have been feeling nervous, anxious or tense about the hearing and the outcome of his application for review. He has not provided any expert evidence in relation to his mental health.
The Tribunal considers that the passage of time may have impacted on the applicant’s memory and his ability to recall insignificant details of his claims. However, the Tribunal does not accept that he would forget important details of events that had a significant impact on his life such as who organised the registration of his marriage, where [Ms C] stayed after he picked her up from her home, a complaint being made against him to the Police by [Ms C]’s father and how long and where he was in hiding after the incident until he left Pakistan.
The Tribunal does not accept that the applicant’s response explains the many inconsistencies and problems in his evidence.
Third, in his Statement of Claims, the applicant claimed that [Ms C]’s father and brothers and “their goons” armed with sticks and a gun tried to stop them when they went to the District Court to register his marriage. During the hearing, he gave evidence that [Ms C] has one brother and her father and brother attacked the car they were in as they drove to the Court to register his marriage. He stated that her brother had a gun and her father had sticks. During the hearing, his brother gave evidence that [Ms C]’s father, brother and others attacked them.
The Tribunal put this information to the applicant, pursuant to s.424AA of the Act, and noted that the inconsistencies between his evidence and his brother’s evidence in relation to who attacked them raised concerns in relation to his credibility and the veracity of his claims. He responded that [Ms C]’s father and brother fired shots at them and other people were carrying sticks to beat them. He then clarified that her brother had a gun and the others had sticks.
The applicant’s response contradicted his earlier oral evidence that it was only [Ms C]’s father and brother who attacked them. Further, his evidence that she has one brother is inconsistent with his claim in his Statement of Claims that her father and brothers attacked them. These inconsistencies raise concerns in relation to his credibility and the veracity of his claims.
Fourth, in his Statement of Claims, the applicant claimed that after the incident involving [Ms C]’s father and brother [in] October 2021 [Ms C]’s family were looking for him and his family received threats. He claimed that he went into hiding and remained in hiding until he obtained the Australian Student visa.
The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 18 May 2017. It indicates that during his interview with the delegate, he claimed that whilst in hiding he went from house to house and hid in different villages and cities. He claimed that several threatening letters were sent to his home and his brother received information that people were after him.
In his application for a Protection visa (which he stated was accurate), the applicant stated that he lived at the same address in Chakwal from [month, year] (when he was born) until January 2017 (when he came to Australia). He also stated that he worked in a [shop] in Chakwal from January 2014 until January 2017.
During the hearing, the applicant initially gave evidence that prior to the incident with [Ms C]’s father and brother he lived at his family home in Chakwal since birth. After the incident, he lived with a friend of his in Chakwal for one or two weeks. He thereafter lived in Lahore with a friend of his brother for seven days or eight days prior to leaving Pakistan to come to Australia. He has not lived anywhere else in Pakistan. Later in the hearing, he stated that after the incident his brother took him straight to Lahore where he stayed with a friend of his brother. He did not return to Chakwal thereafter.
During the hearing, the applicant made no mention of his family receiving threatening letters. He stated that people at the [shop] talked about [Ms C]’s father and brother looking for him and his brother received threats at the shop.
The Tribunal raised as an issue with the applicant the inconsistencies between his evidence in his visa application in relation to where he lived in Pakistan with his claims that he feared for his life and was in hiding. He responded that he went to Lahore for a short time and also visited his home (at Chakwal) at night to see his family. When the Tribunal reminded him of his earlier evidence that he did not go back to his village, he responded that he only went to see them and then went to a friend’s house. The Tribunal does not accept this explanation.
The Tribunal raised as an issue with the applicant the inconsistencies between his evidence in his visa application in relation to where and when he worked in Pakistan with his claims that he feared for his life and was in hiding. He responded that he was working at the shop until this problem arose. After that he did not work at the shop. This response does not address the inconsistencies in his evidence.
These issues raise further concerns in relation to the applicant’s credibility and the veracity of his claims.
Fifth, during the hearing, the applicant’s brother initially gave evidence that the applicant lived at the family home (in Chakwal) until he left Pakistan to travel to Australia. He also stated that the applicant worked in the [shop] until he left Pakistan to travel to Australia. He later changed his evidence and stated that, after the incident, the applicant was in hiding and lived with a friend of his in Chakwal.
The Tribunal put this information to the applicant, pursuant to s.424AA of the Act, and noted that these inconsistencies in the evidence raise concerns in relation to the credibility of his claims. He responded that he was with his brother at his shop prior to the problem. After the problem he was in hiding in Chakwal for one or two days prior to going to Lahore. When the Tribunal pointed out that this evidence was not consistent with what he stated in his visa application, he responded that he was depressed and not aware at that time.
The applicant has not provided the Tribunal with any evidence in relation to his mental health at the time he prepared his application for a Protection visa or at the time of the hearing. The Tribunal does not accept his explanation. It does not explain the many inconsistencies within his written and oral evidence and the inconsistencies between his evidence and his brother’s evidence. These inconsistencies raise concerns in relation to his credibility and the veracity of his claims.
Sixth, following his interview with the Department, the applicant was given further time to provide additional evidence. He provided the Department with two FIRs and two newspaper articles. He did not provide any of the threatening letters he claimed were sent to his family. During the hearing, he gave evidence that his brother obtained copies of these documents and sent them to him. His brother gave evidence during the hearing. When the Tribunal asked him about the documents, he sent the applicant, he responded “what documents?” When the Tribunal noted that he sent some documents from Pakistan to his brother for his case, he responded that nothing came to mind.
The Tribunal put this information to the applicant pursuant to s.424AA of the Act. He responded that his brother is not educated and did not understand the word “document”. If he was asked a direct question he would have understood. He sent him the documents. The Tribunal accepts that he may not have understood the word “documents” and that he did send the documents to the applicant.
The first FIR that the applicant provided to the Department is dated [in] October 2016 and is a complaint from [Ms C]’s father. It indicates that [Ms C] “mysteriously vanished from the house at midnight on [date]-09-2016”, that he had found out that the applicant had abducted her and he requested that she be recovered.
An undated newspaper article from [Publication 2] reports on the FIR lodged by [Ms C]’s father at the Police Station [in] October 2016. It uses identical language used in the FIR including phrases such as “my daughter”, “I myself tried to search her from pillar to post”, “I have come to know” etc. As the complaint (FIR) was made by [Ms C]’s father and the newspaper article was written by a journalist, it is highly unlikely that the journalist would have referred to “my daughter”, “I myself tried to search …” and “I have come to know”.
It is also highly unlikely that [Ms C]’s father and the journalist would have been written two separate documents in identical terms including making the same grammatical mistakes. This tends to indicate that both documents were written by the same person.
The second FIR is dated [later in] October 2016 and is a complaint from the applicant’s brother. It indicates that at 9.30am he and his brother were going to the District Court for his brother’s marriage to [Ms C]. They came across [Ms C]’s father and brothers armed with sticks and a pistol and they “offered staunch resistance” to stop them. [Mr D] fired gunshots at them with the “vivid intention of murder” but they survived. The accused persons have strong affiliations with “political party of robust sphere of influence” and they may “pose precarious danger” to them. The wording of this FIR is not consistent with him being an uneducated person as claimed by the applicant.
An undated newspaper article from [Publication 1] reports on the FIR lodged by the applicant’s brother at the Police Station [later in] October 2016. It uses identical language used in the FIR including phrases such as they “offered staunch resistance”, with the “vivid intention of murder” and the accused persons have strong affiliations with “political party of robust sphere of influence” and they may “pose precarious danger” to them.
As the complaint (FIR) was made by the applicant’s brother and the newspaper article was written by a journalist, it is highly unlikely that they would have been written in identical terms including using unusual phrases. This tends to indicate that both documents were written by the same person.
In his evidence to the Tribunal, the applicant stated that [Ms C] has one brother. Both he and his brother gave evidence that her father and brother were involved in the attack on them. However, the FIR dated [later in] October 2016 lodged by the applicant’s brother and the newspaper article that reported on it referred to her brothers being involved in the attack on the applicant and his brother. This raises further concerns about the authenticity of these documents.
The DFAT Country Information Report on Pakistan dated 20 February 2019 states that document fraud is widespread in Pakistan. It indicates that “FIRs use standard forms with the relevant information written in by hand and are relatively simple to counterfeit. Reports exist of Police accepting bribes to verify fraudulent FIRs. DFAT does not consider the existence of an FIR to constitute evidence that the events described in the FIR actually occurred”. It also indicates that “local sources report instances where influential people have paid news organisations to publish false stories”.
The Tribunal referred to this country information and raised as an issue with the applicant its concerns in relation to the authenticity of the two FIRs and the two newspaper articles. He responded that the newspaper articles can be checked online. When the Tribunal reminded him of the country information in relation to the publishing of false stories and noted that the fact that it was online did not mean that it was true, he responded that the Police will get those people who published false articles. When the Tribunal reminded him of the country information that the Police were involved in the fraud, he did not respond.
The Tribunal is not satisfied that the two FIRs and the two newspaper articles are authentic documents.
Seventh, the applicant’s conduct in Pakistan was not consistent with his claims. The records of the Department indicate that he was granted a Student visa on 21 December 2016. However, he did not arrive in Australia [until] January 2017. The Tribunal put this information to him, pursuant to s.424AA of the Act, and noted that his delay in arriving in Australia after he was granted the Student visa is not consistent with his claims that his life was at risk and he was in hiding in fear for his life. The Tribunal noted that this raised concerns in relation to his credibility and the veracity of his claims.
The applicant responded that, at that time, they had problems with the financial arrangements. They later needed to borrow money from someone. The Tribunal finds it implausible that he or his brother would have chosen the option of applying for a Student visa for Australia if their financial resources were limited or they had financial problems and needed to get him out of Pakistan quickly. There were other cheaper and quicker options available to them, such as applying for a Visitor visa for Australia or another country, where he would not have had to provide the Department with evidence of his educational qualifications (particularly as he did not have a Bachelor degree and was enrolled in a [degree] in Australia) and evidence of his financial capacity to pay for his fees and accommodation in Australia.
The applicant’s response does not alleviate the Tribunal’s concerns.
Eighth, the applicant’s conduct in Australia was not consistent with his claims. The records of the Department indicate that he arrived in Australia [in] January 2017 on a Student visa. He did not apply for a Protection visa until 24 March 2017. That is more than 3 months later. The Tribunal put this information to him, pursuant to s.424AA of the Act, and noted that his Student visa did not allow him to live in Australia permanently. The Tribunal noted that it would expect that, if he was at risk of harm in Pakistan, he would have obtained immigration advice and lodged an application for a Protection visa soon after his arrival in Australia. His delay until 24 March 2017 to apply for protection raised concerns about his credibility and the veracity of his claims.
The applicant responded that, at the time, he was new in the country and his English was poor. He made inquiries and then came to know about it and that was the reason why it took time. Earlier in the hearing, he stated that he first obtained immigration advice from a migration agent in Australia two or three weeks after he arrived in Australia ([in] January 2017). In his Statement of Claims, he stated that after he had been in Australia for some time he met some Pakistani people who suggested that he obtain immigration advice, referred him to [a law firm] and he contacted them in March 2017.
These inconsistencies in the applicant’s evidence and his delay in applying for a Protection visa after he arrived in Australia raise concerns in relation to his credibility and the veracity of his claims.
The Tribunal has had regard to the evidence given by the applicant’s brother. The Tribunal notes that some of his evidence was consistent with the applicant’s evidence and some of his evidence was adverse to his evidence. The adverse evidence was put to the applicant pursuant to s.424AA of the Act. The Tribunal notes that the applicant’s brother is not an independent witness and has a vested interest in the outcome of the applicant’s application for review. The Tribunal also notes the applicant’s evidence that he discussed his case with his brother. These factors impact on the weight that the Tribunal places on his evidence.
The Tribunal has had regard to the submissions made by the applicant’s former migration agent.
Other considerations
The Tribunal has had regard to the Tribunal’s Guidelines on the Assessment of Credibility when assessing the applicant’s credibility.The Tribunal has also had regard to the DFAT Country Information Report on Pakistan and the Department’s Policy Guidelines to the extent that they are relevant to the decision under consideration.
Findings
Having considered all of the applicant’s claims, all the evidence and the submissions, the Tribunal finds that the applicant is not a witness of truth. The Tribunal finds that he fabricated his material claims for the purpose of obtaining a Protection visa.
The Tribunal accepts that the applicant was born on [date] at Chakwal in Punjab Province in Pakistan. The Tribunal accepts that his parents have passed away and that he has [siblings] in Pakistan. The Tribunal accepts that he has had 12 years of schooling in Pakistan. The Tribunal accepts that he worked at his brother’s [shop] until he left Pakistan. The Tribunal accepts that he lived in his family home in Chakwal all his life until he left Pakistan in January 2017.
The Tribunal accepts that the applicant may have known a woman named [Ms C]. The Tribunal does not accept that she was his girlfriend, that they were in a “love relationship” and wanted to get married against the wishes of their respective families. It follows that the Tribunal does not accept any of his claims that flow from this including that he or his brother are of adverse interest to [Ms C]’s family, members of the community, any political party or members of any political party or the Pakistani authorities.
The Tribunal does not accept that the applicant left Pakistan for any of the reasons claimed or that he fears returning to Pakistan for any of the reasons claimed. The Tribunal is not satisfied that he is at risk of serious harm or significant harm for any of the reasons claimed if he returns to Pakistan now or in the reasonably foreseeable future.
Does Australia have protection obligations to the applicant under the refugee criterion?
Having considered all of the applicant's claims, individually and cumulatively, all the evidence and the submissions and in view of the findings above, the Tribunal finds that there is no real chance that the applicant will suffer serious harm for reason of his actual or implied membership of a particular social group or any other reason set out in s.5J(1)(a) of the Act if he returns to Pakistan now or in the reasonably foreseeable future. Therefore, the Tribunal finds that he does not have a well-founded fear of persecution and is not a refugee as defined in s.5H of the Act. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.
Does Australia have protection obligations to the applicant under the complementary protection criterion?
As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether he may nevertheless meet the criterion for the grant of a Protection visa pursuant to the complementary protection criterion.
Having considered all of the applicant's claims, individually and cumulatively, all the evidence and the submissions and in view of the findings above, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Pakistan now or in the reasonably foreseeable future.

Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that he does not satisfy the criterion in s.36(2)(aa) of the Act.
CONCLUSION
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) or s.36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act and who holds a Protection visa. Accordingly, he does not satisfy the criterion in s.36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.

L. Symons
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 1052

23 March 2021

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness