1712396 (Refugee)

[2020] AATA 1286

1712396 (Refugee) [2020] AATA 1286 (9 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1712396

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Michael Hawkins

DATE:9 January 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 09 January 2020 at 12:52pm

CATCHWORDS
REFUGEE – protection visa – Pakistan – religion – conversion to Baha’ism – ceased attending Mosque – encounter with Lashkar-E-Jabbar (LeJ) – adverse information received in confidence – credibility concerns – inconsistent evidence – delay in applying for protection visa – knowledge of the Baha’i faith – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
Kavun v MIMA [2000] FCA 370
MIEA and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Subramaniam v MIMA (1998) VG310 of 1997
Velauther Selvadurai v MIEA and Anor [1994] FCA 1105
Zhang v RRT & Anor [1997] FCA 423

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 15 May 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Pakistan, applied for the visa on 9 November 2016. The delegate refused to grant the visa on the basis that the applicant is not a refugee as defined by s5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to his receiving country, there was a real risk he would suffer significant harm.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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).

6. 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.

7. 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

8. 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

9. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Background:

10. The Tribunal has obtained the following background information from the applicant’s visa application forms and evidence presented to the delegate and the decision of the delegate:

11. The applicant first arrived in Australia [in] February 2014 pursuant to a [visitor] visa. He departed Australia [in] April 2014.

12. The applicant most recently arrived in Australia [in] August 2016 pursuant to [another] visitor visa.

13. The applicant lodged a protection visa application on 10 November 2016.

    Claims:          

14. The applicant’s claims are set out in the application form of 9 November 2016 and statutory declaration of the applicant dated 9 November 2016 and are summarised in the decision of the delegate.

15. The applicant claims that he grew up in a Muslim household in Lahore, Pakistan.

16. The applicant claims the atmosphere in the applicant’s household began to change after the death of his parents.

17. The applicant claims that he and his younger sister [began] to feel that Islam and the way that it was followed in his family was affecting their quality of life due to its strictness.

18. The applicant claims that his sister was especially affected by this as they felt that Islam did not allow women to work and she was confined to the house.

19. The applicant claims that they discovered Baha’ism on social media and decided to convert as they felt that it was a more open religion which gave women more rights.

20. The applicant claims that he used to attend mosque on a regular basis but he stopped going and his neighbours began to notice.

21. The applicant claims that he has a sister, [name], who lives in Australia. He claims he came to visit her in 2014 and told her that both he and [his younger sister] have become Baha’is. She accepted this.

22. The applicant claims that upon returning to Pakistan after that visit that the situation got worse.

23. The applicant claims that he fears that if people find out that he has converted then he will be killed.

24. The applicant claims that he has not told any of his family in Pakistan about his conversion because of his fears.

    Evidence:

25. The Tribunal has before it a range of material, including, relevantly:

    • The applicants’ protection visa application forms completed and signed on 9 November 2016 (visa application) including statutory declaration dated 9 November 2016 and lodged on 10 November 2016;
    • The applicant’s identity documents being photocopy of passport and National Identity Card;
    • Documents submitted by the applicant:
    • Statutory Declaration of applicant dated 9 November 2016
    • Record of interview with the delegate dated 5 May 2017;
    • The protection visa decision record (delegate’s decision record) dated 15 May 2017; and
    • Country Information from the applicant’s submissions and other sources, as discussed at the Tribunal hearing. The Tribunal has also had regard to the DFAT Country Information Report on Pakistan, published on 20 February 2019 (the DFAT Report).

    Country of reference / receiving country:

26. The applicant claims to be a Pakistani national. Based on evidence provided to the Department by the applicant and at the hearing, and in the absence of any other evidence to the contrary, the Tribunal finds that Pakistan is his country of nationality and also his receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.

27. The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s36(3) of the Act.

    Hearing:

28. The applicant attended the hearing on 8 January 2020. The hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

29. After dispensing with the hearing preliminaries, including an exhaustive description of the requirements necessary to be made out for the grant of a Protection visa, the Tribunal discussed with the applicant that to be granted a protection visa he must either be recognised as a refugee or be a person entitled to Complementary Protection.

30. The Tribunal explained that under Australian law, to be a refugee he must have a well-founded fear of persecution in Pakistan. This means the Tribunal must be satisfied that there is a real chance that he will face serious harm if he returned to Pakistan. The harm must be directed at him for one of the following Convention reasons: race, religion, nationality, membership of a particular social group or political opinion.

31. With regard to Complementary Protection, there must be substantial grounds for believing that there is a real risk he will suffer significant harm if removed from Australia to Pakistan.

    Section 438 Certificate:

32. A preliminary issue which arose for consideration in this matter is the effect of a certificate purporting to restrict the disclosure of information pursuant to s.438 of the Act. It states that disclosure of information held at folios 83-90 and 126-127 of [file number] would be contrary to the public interest because it contains information relating to an allegation given to an officer of the Department of Immigration and Border Protection (DIBP) in confidence.

33. A copy of the Certificate was provided to the applicant.

34. The Tribunal determined the certificate to be valid, on the basis that it may identify the source and if the Tribunal did disclose it, it may deter people from coming forward to disclose information in the future.

35. The applicant did not disagree with the Tribunal’s finding.

36. The Tribunal outlined the details of the allegations as follows:

    • [Details deleted].

37. The Tribunal invited the applicant to comment upon the allegations, specifically inviting him to address whether there were reasons why the Tribunal ought disregard the allegations and the documents as a whole. He replied that it was up to the Tribunal to believe them or not believe them. The Tribunal asked for his assistance to make that determination. He replied that he has not been to the mosque since being in Australia. He then went on to add that if there is a family function at a mosque, then he would attend.  Asked what type of functions, the applicant replied that he would attend weddings or other events such as the breaking of the Ramadan fast.

38. The Tribunal noted that his claims were set out in the protection visa application forms. The Tribunal read to the applicant his claims set out in paragraphs 14 – 24 above. The Tribunal asked him whether those claims were accurate and complete. He stated they were and that he did not need to change them.

39. The Tribunal asked the applicant about the make-up of his family’s household in Pakistan.  The applicant replied that he had the primary responsibility for looking after his parents.  He added that his father was bound to bed for two years preceding his death in December 2010.  He also advised that his mother died in October 2011.  He stated that he has one brother living in [Country 1], another brother living in Pakistan (in the family home) and a sister living in [Country 2] and his other sister living in Australia.  His younger sister is living in Australia also.

40. The Tribunal asked the applicant why things deteriorated in the household after his parents died.  The applicant replied that there were financial problems.  He advised that he was the only breadwinner in the family and was looking after his sister.  He said that his brother was married and had children.  He went on to add that his brother does also work but uses his money to look after his own family.  Noting that, the Tribunal asked the applicant why things were difficult for him if his brother was looking after his own family.  He replied that his brother abuses him about family matters and for not being married.

41. The Tribunal advised the applicant that it would now discuss the matter of his religious conversion.

42. The applicant confirmed that he used to go to mosque in Pakistan regularly and quite enjoyed doing so.  However, he stopped going to mosque in about April 2014.

43. The Tribunal asked the applicant how he came to be aware of the Baha’i faith.  He replied that a friend told him about it, and then he read more about it on social media.  He also added that he attended three or four parties but then became busy at work so didn’t go to it any more.  The Tribunal then asked the applicant how he actually converted to the Baha’i faith.  He replied that he studied books and attended lectures.

44. The Tribunal sought clarification about his involvement in the Baha’i faith in Pakistan.  The applicant then clarified that his previous remarks in relation to attending parties and studying books and attending lectures actually took place in Australia after he returned in 2016.

45. The Tribunal again asked the applicant about his participation in the Baha’i faith whilst he lived in Pakistan.

46. The applicant replied that things were so strict in his house that he could not do anything.  He said that the only way he could learn anything about Baha’i was to listen to lectures that had been sent to him on his mobile phone.  He confirmed that lectures were sent to him by a friend and that he would listen to them on his mobile phone device.

47. The Tribunal asked the applicant when he started receiving the lectures on his mobile phone.  He recalled that it was in about August 2014.

48. The Tribunal confirmed that date and the fact that his only participation in the Baha’i faith was by listening to lectures on his mobile phone.  The applicant confirmed that that was the case.

49. The Tribunal then suggested to the applicant that this evidence appeared to contradict evidence that he had previously given to the Delegate in his interview.

50. The Tribunal stated to the applicant that he had told the Delegate that he had attended the temple in Pakistan once or twice in 2014.  He also spoke of his involvement in a youth program where he had to teach youths how to live according to Baha’i principles.  He stated to the Delegate that he had attended in secret and he said that he had not taken his sister with him.

51. The Tribunal asked the applicant how he might reconcile the statements made to the Tribunal with those made to the Delegate.

52. The applicant paused for some time before replying.  He recalled that he used to work in the mosque in Pakistan and then said that maybe he did attend the temple but he couldn’t really remember.  He stated that he can’t sleep well and couldn’t remember much else.

53. The Tribunal referenced the applicant’s visit to Australia in 2014.  It asked the applicant whether he had participated in Baha’i activities whilst visiting Australia then.  He replied that he had no involvement in Baha’i during that visit.

54. The Tribunal noted that the applicant returned to Australia again in August 2016.  It asked the applicant how and when he got involved with the Baha’i community then.  He replied that he began attending [a named] Baha’i Centre [in Australian City 1].  The Tribunal asked the applicant what the address was of the [Baha’i Centre].  He replied that he didn’t know the address.

55. The Tribunal asked the applicant whether he knew the people in charge of the [Baha’i Centre].  He replied that they were [Mr C] and [Ms D].  He doesn’t know their surname.

56. The Tribunal asked the applicant how often he attended the [Baha’i Centre].  He replied that he attended once a month for about two years but that he might have missed five or six months because of work commitments.

57. The Tribunal then asked the applicant about his participation in the Baha’i community following that first two years - asking how he participated during 2018 and 2019.  The applicant replied that he attended the centre once a month on Tuesdays.  He also added that he sometimes attended on a Sunday.

58. The Tribunal asked who was in charge of the centre now.  He replied that [Mr C] and [Ms D] were still there.

59. The Tribunal asked the applicant whether he had any evidence of his involvement in the community, for example a letter from the [Baha’i Centre].  He replied that he did not but that he had his membership card that he thought he received in 2016.

60. He advised that he receives monthly newsletters but could not produce any at the hearing.  He said he also receives voting papers, but that he doesn’t vote.  The Tribunal asked the applicant what the voting papers were for.  He replied that they had to vote in members.  The Tribunal asked whether he meant members of a governing committee.  The applicant agreed that was the case.

61. The Tribunal advised the applicant that this evidence appeared to also be at odds with what he had told the Delegate in interview.  The Tribunal recounted what he had told the Delegate (may 2017).  The Delegate had asked the applicant if he had attended the Baha’i Temple [in City 1] and at first the applicant replied that he had not.  The Delegate then asked him why he had not visited if he was now in a country where he was free to practice and explore this religion.  The applicant then claimed he had been twice, once in January 2017 and one other time that he could not remember.  The Delegate asked him whether he had spoken to anyone whilst he was there and he replied that he had not.

62. The Tribunal suggested to the applicant that this appears to be inconsistent with his statements to the Tribunal that he had attended monthly during the first two years after his return to Australia.  The Tribunal reminded the applicant that he said to it that he had attended once a month on Sundays for two years but might have missed five or six months because of work commitments.

63. Again, the applicant paused before responding.  He replied by stating that he had not attended at all during 2016 but did attend two or three times during 2017.  He said he started going monthly from about 2018.  The Tribunal reminded the applicant that he had said that he attended monthly on Sundays and that from 2018 (after two years) he attended monthly on Tuesdays.  He restated that he didn’t attend in 2016 or 2017 as he was very concerned about pressure from his relatives in Pakistan.

64. The Tribunal asked the applicant again when, in time, he had become interested in the Baha’i faith.  He replied that he got interested in Baha’i in August 2014 after returning from Australia after the 2014 visit.  He stated that that was when he spoke to a friend about it and started receiving and listening to lectures on his mobile phone.

65. The Tribunal replied that that response gave it some concerns as he had told the Delegate in interview that he and his sister came to Australia in February 2014 to visit their sister, and that he had told his sister that he had already begun to explore Baha’ism and told his sister that he was no longer a Muslim.

1. The Tribunal asked the applicant how he might reconcile that apparent inconsistency.  He replied that he was probably just thinking about Baha’ism when he first came to Australia.

2. The Tribunal asked the applicant about his encounter with Lashkar-E-Jabbar (LeJ).  He replied that one night, outside work, at about 10pm, two guys approached him and stole his ID.

3. The Tribunal asked the applicant which ID they had stolen.  He replied that it was his National Identity Card.

4. The Tribunal asked the applicant how he knew the two guys were from LeJ and weren’t just common thieves.  The applicant replied it was because one of them hit him across the face.  The Tribunal confirmed that he formed the view that the two men were from LeJ only because one of them had hit him.  He agreed, stating that because of that, he knew they were Taliban.

5. The Tribunal asked again whether they may have just been common thieves who robbed and attacked him.  He replied that because he was hit across the face they must have been Taliban.

6. The Tribunal again expressed its concerns that this evidence was at odds with what he had told the Delegate in interview.  It reminded the applicant that in interview he had told the Delegate that the men had tried to get him to join their organisation and stole his ID and that later he had received two letters to his home which threatened him which caused him to feel that his life was at risk.

7. The Tribunal asked the applicant whether that was the case.  The applicant replied that he doesn’t recall anything about receiving any letters.

8. The Tribunal suggested to the applicant that they might discuss the basic principles of the Baha’i faith.  It started by asking the applicant whether Baha’i’s drank alcohol.  He replied that he doesn’t but that maybe Baha’i’s do, it would be up to them individually.  The Tribunal confirmed that Baha’i’s do not drink alcohol, the reason being that God has given humans reason and that intoxicants take away that reason and lead the mind astray.

9. The Tribunal asked the applicant what the main beliefs of Baha’ism are.  He replied they were goodness and welfare and to help the community and that there was one God.  The Tribunal replied that there are three core assertions of the Baha’i faith, sometimes termed the “three onenesses’”, and are central in the teachings of the religion.  They are the oneness of God, the oneness of religion and the oneness of humanity.  They are also referred to as the unity of God, unity of religion and unity of mankind.

10. The Tribunal asked the applicant whether the Baha’i has a Holy book.

11. The applicant replied that he didn’t know what it was.  The Tribunal explained that it does have a central book written by the founder of the religion in 1873.  It is sometimes also referred to as “The Most Holy Book”, “The Book of Laws” or “The Book of Aqdas”.

12. The Tribunal asked the applicant what holidays Baha’i’s celebrated.  The applicant replied that Baha’i’s have different calendars.  The Tribunal noted that but again asked what holidays are celebrated by Baha’i’s.  The applicant replied Easter and Christmas.  The Tribunal advised that Baha’i’s celebrate the Festival of Ridvan, which is a 12 day festival that commemorates the manifestation of God.  It is also referred to as the “Most Great Festival”.

13. The Tribunal asked the applicant when the Baha’i faith commenced.  The applicant replied that he had no idea.

14. Finally, the Tribunal asked the applicant what Baha’i year are we in.  Again, the applicant had no idea.  The Tribunal explained that the current Baha’i year is 176 BE.

15. The Tribunal concluded the hearing by expressing to the applicant its grave concerns about how little the applicant knew about the Baha’i faith given his monthly attendances at the [Baha’i Centre] and his claims to have attended classes and listened to lectures and its grave doubts as to whether the applicant followed the Baha’i faith.

16. The Tribunal asked the applicant whether he had any comment to make in relation to the Tribunal’s concerns.  He replied that he had nothing else to say.

    Assessment of Claims and evidence, and findings in relation to the applicant, and the second named applicant:

17. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[1]

    [1] MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169-70.

18. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In MIEA and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

19. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’.[2] However, the Handbook also states (at paragraph 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

    [2] The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196.

20. The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.

21. The Tribunal has the strongest reservations about the applicant’s claims. The Tribunal accepts that the applicant wishes to stay in Australia to make a future for himself. The Tribunal has strong reservations about the credibility of the applicant’s claims. The numerous inconsistencies in his own evidence in this hearing, together with the inconsistencies as between the interview with the delegate, this hearing and his written claims, and the implausibility of some of his responses to other questions, causes this Tribunal to have no confidence in the integrity of the applicant’s claims. The Tribunal has formed the view that the applicant’s claims must be reviewed with the utmost scrutiny.

22. The Tribunal noted the process for the making of the application, and specifically noted that he arrived on 20 August 2016. He did not apply for a protection visa until 10 November 2016.

23. The Tribunal has had regard to the comments of Heerey J. in the Federal Court matter of Velauther Selvadurai v MIEA and Anor [1994] FCA 1105, where at paragraph 11 of the decision His Honour states:

    The applicant complained of the tribunal’s taking into account the fact that the applicant did not lodge his application for refugee status until some 20 months after he had arrived in Australia and just prior to the expiration of his visa. In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant’s alleged fear of persecution….”

24. A delay in seeking protection can support an adverse credibility finding as well as a finding that the applicant's fear is not well-founded: Zhang v RRT & Anor [1997] FCA 423; Kavun v MIMA [2000] FCA 370 and Subramaniam v MIMA (Carr J,10/3/98). In Subramaniam v MIMA (1998) VG310 of 1997, the Court held that even a three month delay in lodging a Protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant's fear of persecution. While a delay in making a Protection visa application by itself is not conclusive it reasonably remains an indication in the applicant's case that the claimed fear of harm in this regard is not genuine.

25. The Tribunal notes the delay of nearly three months and finds that this supports the view of the Tribunal that the applicant’s claims must be reviewed with the utmost scrutiny. The Tribunal accepts the applicant’s response that he made his protection visa application when he did as his visitor visa was about to expire. The Tribunal is also of the view that the applicant only applied for a protection visa as his visitor visa was about to expire and he had no other options.

26. The applicant’s evidence to the Tribunal had numerous inconsistencies. He spoke of attending the [named] Baha’i Centre monthly on a Sunday for two years after his return to Australia in August 2016. After hearing evidence of what he told the delegate, he then altered his recount to state that he attended for two years from 2018 but on a Tuesday.

27. He told the Tribunal he only became interested in Baha’i after returning to Pakistan after August 2014, but he had told his sister when in Australia before then that he was already exploring Baha’ism.

28. He told the Tribunal that he had “converted” to Baha’ism on the strength of having listened to a series of lectures sent to him on his mobile phone. He could not explain the process of conversion.

29. He told the Tribunal that listening to lectures on his mobile phone was his only interaction with Baha’ism in Pakistan, however he had told the delegate that he had participated in the Baha’i community in Lahore, having attended the temple once or twice and being involved in a youth program wherein he taught youths how to live according to Baha’i principles.

30. On the subject of Baha’i principles, and particularly the applicant’s knowledge of them, or more to the point, his complete lack of knowledge of them, it was clear to the Tribunal that the applicant had absolutely no knowledge of any of the principles or even basic facts of the Baha’i faith.

31. He had no knowledge of the address of the [Baha’i Centre] which he claimed to be attending at least monthly, and did not know the surname of the people who were in charge of the Centre (though the Tribunal accords some leniency in that latter respect).

32. So little knowledge despite his claims to have attended the Centre monthly, to have read books  and attended lectures and parties in Australia and to be unable to answer any question, however asked, about the process for conversion to Baha’ism.

33. The Tribunal also noted in passing that his protection claims made in November 2016 pre-dated his actual involvement so claimed in the [Baha’i Centre] which he claimed he attended once or twice in 2017.

34. In relation to an incident allegedly involving the LeJ, his evidence was not at all compelling. The Tribunal was simply not persuaded whether the applicant was accosted by members of the LeJ or a couple of random thieves. And he could not sustain his claims to have been threatened by letters from the LeJ addressed to him at his home.

100.   Finally, when given the opportunity to comment upon the adverse information provided to the department by an informer, to provide some form of reasonable explanation as to why someone would make such allegations against him, he could, or would, not. Whilst he maintained in his claims and in his evidence that he had told no-one but his sister about his conversion from Islam to Baha’i, the informer specifically addressed that issue. The applicant, in his response, addressed only the issue of his attendance at Mosque since being in Australia.

101.   Having considered all of the evidence before the Tribunal, having considered all of the inconsistencies in the evidence between that given to the Tribunal and that given to the interview with the delegate, and that contained in his statement relating to his Protection Visa Application, the Tribunal is satisfied that the applicant’s account and recollections of events are not credible and that his claims are not based on truthful evidence. The applicant departed Pakistan to Australia as a tourist, and after arriving here, has determined that he does not want to return to Pakistan.

102.   Given the Tribunal’s findings as to the applicant’s credibility and the credibility of his claims, the Tribunal does not accept any of the following:

• That he converted to Baha’ism in Pakistan, in Australia or at any time;
• That he follows the Baha’i faith;
• That he has any knowledge of the Baha’i faith;
• That he has ceased attending Mosque;
• That he has had any interaction with the LeJ; and /or
• That he has been threatened by the LeJ in person or by letter;

103.   After considering all the evidence the Tribunal is unable to satisfy itself that the applicant has a well-founded fear of persecution for one of the reasons mentioned in s.5J(1)(a).

Cumulative claims

104.   Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, and country information, as well as having considered the personal circumstances of the applicant as contained in his application, including that he may have been assaulted, though not for reason of an incident with the LeJ, the Tribunal finds that there is no real chance that the applicant will suffer persecution on the grounds of race, religion, nationality, membership of a particular social group or political opinion, or any other reason if he returns to Pakistan now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to Pakistan. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act. 

Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm

105.   The Tribunal has considered the applicant’s claims under complementary protection. 

106.   In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to Pakistan now or in the reasonably foreseeable future.

107.   The applicant’s claim to complementary protection is essentially the same claim he made in his application for protection as a refugee. Those claims have failed because the Tribunal did not accept that the applicant was a Baha’i convert or had any genuine interest in the Baha’i faith, that the applicant was the subject of any adverse interest, or was threatened with harm, or was ever harmed.

108.   The Tribunal is satisfied there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflected on the applicant, such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk he will suffer arbitrary deprivation of his life or the death penalty. The Tribunal finds no grounds that suggest the applicant will be subject to significant harm for any reason if he returns to Pakistan. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.

Conclusion: Refugee Criterion

109.   Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). His fear of persecution is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s.5H.

Conclusion: Complementary Protection

110.   Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that that are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan that there is a real risk that he will suffer significant harm.

Overall conclusion:

111.   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).

112.   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).

113.   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

114.   The Tribunal affirms the decision not to grant the applicant a protection visa.

Michael Hawkins
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.

…