1712475 (Refugee)

1712475 (Refugee) [2021] AATA 1528 (13 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1712475
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Rodger Shanahan
DATE:13 May 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 May 2021 at 8:47am
CATCHWORDS
REFUGEE – protection visa – Pakistan – fear of harm from ethnic political party extortionists targeting father’s business – threats and beating, friend killed, and attack on father’s business – mental health – credibility – delay in applying for protection – applied after student visa expired and two voluntary trips home with no harm – refusal of visa for third country not listed in protection visa application – no appearance at second hearing and consent to decision on papers – country information about unreliability of first incident reports – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36(2), 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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 15 May 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Pakistan, applied for the visa on 15 March 2017.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
Protection Visa Application
The applicant provided the following statement in support of his claim:
I declare and affirm that I born and raised in Karachi, my grandfather migrated from India to Karachi and settle in this part of numbered Pakistan at the time of partition in 1947. My father also born and raised in Karachi by my grandparents. My father used to be [Occupation] and well know person in the area, business was flourishing at steady pace. Unfortunately, he must wind up his business and send me to overseas due to danger to my life.
I was helping my father as well in his business. Politically this area is under influence of MQM. Once back in 2013 in absence of my father I was at my father business along with my close friend. Some of people related to MQM came to premises and demanded ransom money (Bhatta), me and my friend refused to pay and have long verbal fight. They threaten me and my friend that we will face consequence of this. I hide this matter from my father, few days later some MQM person again came when me and my friend ([Mr A]) was at premises without saying anything they brutally beaten me and my friend and threaten that they will kl us, We both were hospitalized due to injuries,
My father and friend father took matter to local police but in no vein, they did not willing to help us instead they told my father and friend father that it's better that we should be send somewhere else for time being. My father took it seriously and send me to Rawalpindi to his relatives same was with my friend as well. MQM did firing on my father business later and he left with no other option to close his business, meanwhile he tried to send me overseas, in that scenario I am here in Australia now.
Unfortunately, this was not case with my close friend [Mr A] who was killed by MQM target killers in September 2016, I was shocked and booked a last-minute flight without knowing my father, When I reach home my father was so feared and he asked me why I came after this incident I shouldn't come. I came back to Australia after 2 weeks my friend murder has put on so much depression, my father advised me not come again because he do not want to lose me like my friend. I also have fear of life and left with no other option to submit protection visa application. I hope my application will be consider in this regard.
AAT Hearing
The applicant was advised that prior to the hearing a range of documents had been provided to the Tribunal with no explanation. He said they included medical document relating to his medical issue. They showed evidence about the problems he faced when he came to Australia and why he returned to Pakistan. Asked what they supported exactly, he said that he was depressed and going through a lot of hardship which is why he returned to Pakistan. Asked if it referred to issues in Pakistan, he claimed it was about the shooting of his father’s shop in 2013. He said that there was an ultrasound report that was evidence of him being beaten. Asked if the medical report noted that he had been beaten, or whether it was just an ultrasound report , he said it was the latter. It was put to him that the ultrasound could have been conducted for any reason.
He claimed that in hospitals they would ask for an FIR before they treated you. It was put to him that one report from a mental health treatment was from Melbourne in 2014/15 and he said that he had not had mental health treatment since 2015/16/17. Asked if the mental health reports that he had given the Tribunal represented all the treatment he had received and he agreed it did. None of them mentioned incidents in Pakistan. He had an abscess on his back that made it difficult to sit for long periods. He agreed that it was relieved when he stood up and he was advised to inform the Tribunal when he felt any pain and he could resume standing.
The non-medical reports were FIRs relating to the people who came to beat him. It was put to him that sending documents with no explanation and not prior to the hearing gave the Tribunal no opportunity to examine the documents. He claimed the report was about murder – the people who attacked him had been charged with murder. His father got the document as he is a legal adviser. Asked what a legal adviser is, and whether he was a barrister or solicitor he replied ‘you can say this’. Asked whether he was a barrister or solicitor, he said he was a legal adviser for civil cases. Asked if he was a qualified lawyer, he said that he did have a law degree. Asked what university he went to he said that he didn’t know. Asked again if his father had a law degree he claimed that his didn’t and was just a legal adviser. The documents that he provided were from cases in 2018/19.
There was a map of the incidents. He knew the person who was murdered as he used to paly with him and he had measured the distance from the murder scene to his house.
The applicant claimed that if he returned to Pakistan, he would be killed by people who had done bad things to him. They are individuals who were militants from the MQM party. They are like mafia in their area. They would kill him because of things that happened in the past in 2013. There were no other reasons why they would kill him. He had no other claims.
He claimed that he was sitting at his father’s shop with a friend minding it while his father was at prayer. It was between January-March 2013. These people come around and collect money by force and threaten you if you refuse. They take stricter action if anyone reports them. They murder people if they continue to report them to police.
The people came to him and demanded money but he refused. Asked if they demanded an amount or when he had to pay. This was the first time he had faced them. Asked if they had come before he said he didn’t know. He originally said that his father was giving these people money and then said he didn’t know. He never asked his father so didn’t know what. It was put to him that this was rather strange that he wouldn’t ask and he repeated that he never asked his father.
He knew they were from MQM as they were from his area. Asked if he had minded the shop before, he said that he had. A couple of times. His brothers had before also and it was common to do that while his father was at prayers. The MQM people would come up and write the amount of money on a piece of paper – he was [Age] years-old at the time and they came up and asked him for money but he couldn’t remember the amount.
He refused and said his father was at prayers for about 30 minutes. He then said that they asked where his father was but he refused. He was asked why he didn’t tell them, he said it was privacy considerations. They also knew him and it was put to him that they would have known that his father went to prayer at that time. He claimed that perhaps this was why they came at that time as they knew he would be looking after the shop.
They went away after he said no. His father returned from prayers but he didn’t tell him – he thought it wasn’t necessary, or he didn’t feel like it or he forgot. Given he had just been extorted by MQM members while his father had been away for 30 minutes, the Tribunal found it very hard to believe he never told his father. He then said that he didn’t know what he was thinking at the time. The MQM members came back three days later and tried the same thing then they beat him.
His father returned and they saw him, then he explained what happened and took him to the medical centre to be treated. Asked if there was any evidence of his beating, he said there wasn’t. His father tried to report it to the police, but they declined to investigate because MQM was in power and recommended that the applicant leave the city. He went to Rawalpindi for a month and then returned. He had originally said the incident happened in January but he knew now it was between January – March. He returned to his home in late April because he was finishing his [Qualification 1]. His father didn’t want him to, but he needed to pass university. He went by bike to university – it was about [distance] away.
His father’s house was shot at after he left Pakistan. There were no photos and his father didn’t report it because he knew the police would not file an FIR. His father did not pay the MQM members after the incident but he didn’t know whether he was doing it before. The shop was shot at in March 2013 and was sold after and he became a legal adviser.
Asked if he had any evidence that his father had sold the shop, he said he would give the sale deeds. It was put to him that the Tribunal was more interested in bank statements that showed the money being out into his account. Asked if anything happened to him when he went to university, he said it didn’t. He left Pakistan in September 2014. He had applied for a [Country 1] visa straight after the incident but he was rejected at the interview. He could not name the exact courses at other universities in [Country 1] but didn’t know what reason they thought he was going to [Country 1]. He was also refused a visa to [Country 2] because they believed he was going to work based on his bank statement. He had not mentioned the [Country 2] refusal in his protection visa application (he had mentioned the [Country 1] refusal) but couldn’t say why.
His father then said he should apply for an Australian visa. Asked if he mentioned his [Country 1] and [Country 2] visa refusals he claimed that he couldn’t remember. It was put to him that if he mentioned he had been denied visas to two countries previously then it would be unlikely that he would be granted an Australian visa. He was asked for copies of his Australian student visa application and the refusal letters from [Country 1] and [Country 2] and he said he would try to get these.
Asked what occupation he said that his father was doing, he said that he was a businessman. It was put to him that he had sold his business and was a legal adviser – he said that his brother was guaranteeing his stay. He came to Australia in October 2014 to study at college in Melbourne. Asked how he went, he claimed that because of the stress from Pakistan and his lack of a job made study hard. Asked if he passed everything, he claimed he passed at the start and then quit later. He studied for one year out of two years as he came to Sydney in 2016. Asked if he had a copy of his academic transcript he said he would arrange for it from his college. He got a distinction and high distinction in the two subjects he studied in the first semester. He didn’t fail any subjects. It was out to him that he only studied for one semester and not one year.
He then said that he didn’t like the values of the Pakistani community he met in Australia as they were drinking and taking drugs. It was put to him that it was a liberal democracy and he had tried to go to other liberal democracies, and he said he was young and hadn’t seen this before and along with the issues in Pakistan, he said things were piling up and he became depressed.
It was put to him that the psychiatrist’s report made no mention of any issues and just referred to his financial pressures. It may well be that he had misrepresented his financial status and this made him depressed. Asked why there was no mention of the alleged beating or shooting in Pakistan ion the psychiatrist’s report, he claimed that he never thought he would be here applying for protection. He was depressed which was why he returned to Pakistan in 2016. If he committed suicide then at least his parents would have a body. It was put to him that this was sensitive but it was put to him that the report said no suicidal ideation, and he claimed that it said ‘sometimes’.
He returned to Pakistan in 2016 because he was depressed in Australia. He had stopped studying. He stayed inside the house so nothing happened to him. His father had received threats, and had moved once. He continues to go to court and nothing had happened. He was asked if it was strange that nothing had happened to his father or his brothers – he claimed that they were only after him. Asked if his father paid them the money that was attempted to be extorted from the applicant, he claimed that he hadn’t.
Asked why they didn’t attempt to harm his father as they must be angry with him too, he claimed it was because he was the one who had been beaten up. It was put to him that his had still refused to pay the MQM militants and nothing had happened to him for eight years. He said perhaps it was because he was young and was not polite. It was put to him that politeness didn’t really matter as they wanted the money.
He returned to Australia and came to Sydney because he didn’t like Melbourne. He enrolled in [a Qualification 2]. Asked when he started this, he claimed it was March 2016. He did not complete it because he had already studied it in Pakistan and the teacher said he didn’t need to come to the class, he just needed to submit the work. He never submitted the work, because he never went. He enrolled but never attended. He failed the courses. He was asked to provide the academic transcript for the college. He stayed enrolled until his visa expired.
He returned to Pakistan in September 2016 as one of his friends had been murdered by the same MQM people but the FIR never mentioned their names. He was shot on the road to his place but he had no idea why – he had opened a small gym. Asked why he thought it had anything to do with his situation, he claimed it was because they were all from the same area.
He had made sure no one in Pakistan knew he was there and he just visited the grave and the family. Asked if the death made him more fearful of what could happen to him, he agreed that it did. Asked if he then applied for protection on return to Australia he said that he didn’t because he was in shock for months. Asked if he had any medical evidence for this and whether he went to any mental health specialists he said that he didn’t. he claimed that he went to see medical people in Pakistan. Asked whether he had any evidence from an Australian health practitioner that he had shock he said that he didn’t but his health care had expired and he would have to pay for a psychologist. Asked if he was covered for GP visits he said he was and he was asked whether he attended a GP for his shock and he said he didn’t.
His visa expired in March 2017 and he applied for protection in March 2017. He was told the Tribunal had a concern that he hadn’t been studying and when his student visa expired he applied for protection. He had not been studying and said he had been working in [work sector]. It was put to him that there was a concern he was in Australia to work, he applied for protection when his visa ran out and wanted to extend his economic opportunities, he had returned twice to Pakistan without anything happening to him.
He claimed that he was too young to understand things and returned to Pakistan on a one-way ticket in 2016. It was put to him that his claim relied on his oral testimony and yet had not been truthful about his previous visa refusals. He had claimed that he was not required to attend a course in Sydney because he had covered the subject matter in Pakistan already yet he never withdrew or transferred to another course.

He had a brother and sister-in-law in [Country] who went back to Pakistan to fix his visa. Asked if any family members had applied for entry to Australia, he claimed an elder brother had (the one in [Country]) had been refused a student visa because of his age. Asked if he wanted to add anything, he claimed that things were mixed up earlier on so he was distracted. His family said that he would have a good life in Australia – it was put to him that the Tribunal appreciated he liked Australia but this was about a protection claim.
He was told about country information that said the Pakistani authorities had cracked down on MQM in Karachi since 2013 so it was strange that they should have such free reign as he claimed. he claimed that many people could say whatever they liked. It was put to him that he was a [Age 1] year-old minding his father’s shop when he refused to pay and they allegedly beat him up but it was in 2013 so he was asked why there was such an issue. He claimed that once people beat someone up they always remembered your face. He claimed that his friend and another person was killed in 2018 and 2020 and they never forget. It was put to him that the only thing that said the people in the FIR reports were the same ones as beat him up was his oral testimony, and his credibility was in question.
He claimed that he was having surgery on the 12^th of this month and was planning on getting married. He was asked again to provide academic transcripts or the results as he knew them, as well as his refusal letters, and the bank statement from his father’s receipt of funds from his business. He claimed that it may be a cash deal.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia on a student visa [in] October 2014, and he applied for protection on 15 March 2017. The Tribunal sighted a copy of his Pakistani passport as proof of his identity and his claim will be assessed accordingly.
The applicant is a [Age 2] year-old single male from Karachi in Pakistan. He claimed that if he returned to Pakistan he would be murdered by militant members of the MQM party because he had failed to pay an extortion request.
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not required to accept uncritically any and all claims made by an applicant.
I have addressed his mental health claims below, and I also do not accept that the inconsistencies and impausibilities are due to the fact that ‘things were mixed up earlier on so he was distracted’. It is not clear what was meant by this but as far as they relate to mental health issues they will be covered; other than that I do not accept that simply being distracted accounts for the lack of credibility displayed in his claims.
I found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness, and find that he fabricated most of his claim in order to be granted a protection visa.
Mental Health Issues
I have taken into account his evidence about a mental health condition related to the fear he had over his circumstances in Pakistan, however I lend it little weight in explaining the inconsistencies in the applicant’s claim..
He provided a range of medical documents prior to the hearing with no explanatory note; of these documents there was only one that dealt with mental health issues. Dated 13 July 2015 it states that the applicant suffered from depression and anxiety, noting that he was in a financial crisis, had been unemployed for two months and had exams coming up. There was no mention of any Pakistan-related trauma and it also noted that he had not previously had treatment from a mental health specialist. I am satisfied that the anxiety and depression he suffered from in 2015 was unrelated to any claimed risk of serious harm in Pakistan.
The applicant said that he had not received any treatment since that time and I am satisfied that whatever caused his depression and anxiety at the time was resolved and he no longer requires any mental health treatment. The other medical documents that he provided referred to [deleted]. Neither of them made any mention of a current or pre-existing mental health condition. I also note that amongst the documents he provided prior to hearing was a receipt from [a] Hospital in Karachi for a consultation dated 1 February 2016. Given he stated that he never received any mental health treatment after 13 July 2015 I am satisfied that this consultation was not related to any mental health treatment in Pakistan.
I am satisfied that at the time of the hearing, he was no longer receiving mental health treatment, hadn’t for more than five years and didn’t appear or claim to be in need of any. He was medically able to attend the hearing and to present his claim in a meaningful way. The medical documentation that he provided makes no mention of issues in Pakistan that may have supported his protection claim, nor of any memory problems that may have explained some of the inconsistencies in his claim. I am satisfied that the lack of credibility of the applicant was not related to any mental health condition.
Credibility Issues
There are a number of issues to do with the truthfulness of the applicant and with his willingness to provide supporting documentation when asked that I will raise here and that highlights concerns that I have with the applicant’s credibility. To begin with he claimed at hearing that he had been refused a [Country 1] and [Country 2] visa before being approved for an Australian visa. He did not reveal that he had been refused a [Country 2] visa because the authorities believed that he was coming to work and not study on his protection visa application, and there is a significant chance that he was not truthful regarding this on his Australian student visa application.
On 11 February he requested a four-week extension to gather the evidence he said that he could provide. He was told that an extension would not be granted however anything received before the matter was finalised would be taken into consideration. Neither of the following requests were satisfied:
a.He was asked to provide copies of his student transcripts in order to verify his claims. He said he was in constant contact with [College 1] and [College 2] but he never submitted any transcript; and
He said that there were media reports of the shooting of his father’s shop and of the killing of his friend [Mr A] and that his father and [Mr A]’s family respectively were sending the reports but no reports were ever received.
Whilst a failure to provide documents does not in and of itself make a claim false, the combination of failures to provide student transcripts (that he claimed he had requested) and media reports (that he claimed to have access to) raises issues regarding his overall truthfulness. Allied with his failure to highlight the refusal of his [Country 2] visa application, the Tribunal has concerns that his failure to provide such evidence is because it either doesn’t exist or because it reflects adversely on his claim.
Extortion Demand
I do not accept that the applicant was ever approached by militant members of MQM and asked to pay extortion money, that he refused to do so and that they later came back and beat up him and his friend, and that they had threatened to kill the applicant because of this. The implausible nature of the events he described and his actions subsequent to the alleged events are such that I find the claim to have been entirely fabricated.
The applicant claimed that MQM were active in his area and that he and his brothers used to mind his father’s shop while his father was at prayers. There was no indication that prior to having him mind the shop, his father had ever warned the applicant that MQM members may come to the shop and demand money, which is unusual given that the applicant also claimed that the MQM militants were known in the area and acted like mafia.
Even more surprising was the fact that after these militants had allegedly come and demanded money from the applicant during the 30-minute window when the applicant’s father was at prayers, the applicant never told his father about it. This beggars belief and, when he was asked to explain why he never told his father he was inconsistent, saying variously that he didn’t think it was necessary, he didn’t feel like it or he forgot.
Because I do not believe that the extortion event occurred in the first place I also don’t accept that it was repeated three days later and that this time he was beaten. I lend no weight to what he claimed was an ultrasound taken as a consequence of the injuries he received at the beating. The written report makes no mention of the reason for the ultrasound, it was handwritten on a form with just a name [the applicant’s given name] written on it while the image attached had no patient name attached to it. Even if I were to accept it as being genuine, there is nothing in the report that supports his claim to have been beaten.
The lack of attention paid to his father by the MQM militants despite the fact that he also refused to pay them also raises further concerns in the Tribunal’s mind. I do not accept that they only beat up the applicant because he was young and impolite. If the MQM militants were there to extort money it is reasonable to believe that they could not afford to let anyone refuse them or else the scheme would fail.
His actions subsequent to the alleged incidents are also inconsistent with someone claiming to fear serious harm for two incidents from eight years ago. He has returned to Pakistan on two occasions since then – in January 2016 because he was stressed in Australia and again in September 2016 allegedly because of the death of a friend. The fact that he would voluntarily return to Pakistan on two occasions even though he claimed to fear serious harm from MQM militants does little to give the Tribunal confidence that his fear is well-founded.
While I accept it is possible that he was homesick and anxious enough to return to Pakistan in January 2016, I do not accept that he was able to avoid harm because he told no one that he was coming, stayed home and rarely ventured out. This relies on his oral testimony which I have found lacks credibility. Not only this, but on returning to Australia in March 2016 he never applied for protection – neither did he do so in late September 2016 when he returned for the second time. Given he claimed to have gone to Pakistan for the funeral of a close friend who was killed by MQM and that this made him even more fearful about what could happen to him, his failure for a second time to apply for protection on return to Australia does little to support his claim to fear serious harm in the country he had just left.
I don’t accept that the delay the second time was because he was in shock for months. He provided no medical evidence to support this claim. I don’t accept that it was because he would have had to pay for a psychologist, given he was still covered for GP visits but didn’t avail himself of this opportunity. His submission of a protection visa application coincided with the expiration of his student visa and it was this and the consequent problems with work rights, rather than any fear of returning to Pakistan, that prompted his submission of the application.
Because I have found the account of the MQM extortion and beating to have been fabricated, it also follows that the applicant’s father’s shop was never shot at and he was forced to sell it. I also do not accept that his friend [Mr A] was gunned down by MQM militants. I place little weight on the First Incident Reports (FIR) provided by the applicant (see paragraph 59 below).I also give little weight to the map provided – it appears to be a self-generated screen shot of an urban area from Google maps or some similar program with some lines drawn on it pointing to the alleged incident site and the applicant’s alleged residence. There is no way of verifying where the screen shot is from or whether the incident and residence locations are valid.
As the applicant hasn’t raised any other claims to fear persecution and, having had regard to all the evidence, and the applicant’s claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason either now or in the reasonably foreseeable future.
Second hearing
A second hearing was scheduled for 12 May 2021 where, with respect to the alleged FIR reports provided by the applicant relating to his claim that his friend [Mr A] was gunned down by MQM militants, it was intended to put to the applicant country information that indicated that ‘DFAT does not consider the existence of a FIR to constitute evidence that the events described in the FIR actually occurred.’[1] An invitation was sent to the applicant and on the day of the hearing the Tribunal received a response from him saying that he would not attend the hearing and consented to the Tribunal making a decision on the papers.
Complementary Protection
[1] DFAT Country Information report – Pakistan, 20 February 2019, p 71.
Because I do not accept that the applicant was ever extorted for money by MQM members in Pakistan or beaten up by them, or that he was or is of any interest to them, I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.
As a consequence I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rodger Shanahan
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2021] AATA 1528

13 May 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction