1713586 (Refugee)

1713586 (Refugee) [2019] AATA 6850 (12 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1713586
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Paul Noonan
DATE:12 November 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 November 2019 at 1:38pm

CATCHWORDS
REFUGEE – protection visa – Pakistan – particular social group – inter-caste marriage – attacks and threats by applicant’s and wife’s families for marriage against their wishes – credibility – inconsistent evidence of attacks and threats and wife’s place of residence – previous student visa applications – financial support from family for student visas and study – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347

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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 8 June 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 30 March 2015. The delegate refused to grant the visa on the basis that the applicant’s claims lack credibility.
The applicant appeared before the Tribunal on 12 September 2019 to give evidence and present arguments. He was represented in this hearing by [his registered migration agent].
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 s.5J(2)–(6) and ss.5K–5LA, 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 s.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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has examined a copy of the applicant’s Pakistani passport which he supplied to the Tribunal. His passport expires [in] 2028. The Tribunal is satisfied that the applicant is a Pakistani national and that Pakistan is his receiving country for the purposes of assessing his claim for protection.
The applicant’s written claim, dated 26 March 2015, sets out that he seeks protection in Australia as he fears persecution from his own family and his wife’s family due to marrying his wife against their respective families’ wishes. Further the authorities will not protect him because tradition overrides everything and they are corrupt and will cooperate with the families should they be offered money. He will not be safe anywhere in Pakistan as members of his wife’s family work for Intelligence in Pakistan and have the means to locate him. His wife has been in hiding in Pakistan since 2012 and has been discovered four times by her family and she has been beaten and doused with acid.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background and initial credibility considerations
In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is ‘well-founded’ or that it is for the reason claimed. A fear of persecution is not ‘well-founded’ if it is merely assumed or if it is mere speculation. 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, 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. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169–70.)
In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant’s credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.
On the other hand, as stated previously, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality (see Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547).
At the commencement of the Tribunal hearing the applicant stated that he has been suffering from mental health problems manifesting as depression, anxiety and insomnia. He takes [medication] on the advice of his doctor. He has also felt better since seeing his wife [Ms A] in [Country 1] in June 2019. The applicant stated that [Ms A] travelled to [Country 1] from Islamabad in Pakistan. He confirmed he felt in a good state to give evidence and that his mental state was largely due to his enforced separation from his wife.
The Tribunal subsequently received a psychological report from the applicant dated 15 May 2017. The Tribunal noted that the applicant gave evidence that he is depressed and anxious. After examining the report the Tribunal accepts this to be the case however there was no suggestion within the report that his memory function is impaired in any way by his condition. The Tribunal has considered the applicant’s evidence in respect to his mental health and noted he exhibited some symptoms of stress during the hearing. However overall his evidence to the Tribunal was given in a coherent manner and the Tribunal does not consider that his depression and anxiety impaired his ability to give evidence to the Tribunal. The Tribunal further notes that neither the applicant nor his representative have made any such submission and that he has been professionally represented throughout his appeals process including during the hearing.
At the commencement of the hearing the applicant’s representative submitted that generally the situation in Pakistan is one of corruption in politics and the media and the situation there is generally bad. However he made no new claims in respect to his client’s situation with respect to these general observations.
At the commencement of the hearing the applicant also submitted receipts reflecting transfers of money to [Ms A] from himself. He submitted that his wife is not living with his family. He stated that if she was living with his family he would have transferred money to his family.
The applicant submitted that he worked for a reputable government department but people are just jealous of this and he has no power through his job. If he was powerful he would have been able to defend himself, make the police work and produce evidence. Further he had a permanent job offering him retirement benefits. Why would he give up that job and not go back to it unless he feared harm?
The applicant also submitted that 6 months ago a man was beheaded by his own sister-in-law in his home village. Two years ago a couple were shot in his home village. There are so many cases which don’t make the media.
The Tribunal accepts that the applicant began a relationship with [Ms A] in 2006 and that he married her [in] December 2011. There is no information on the relevant documents reflecting who attended the marriage (being a certified translation of the nikahnama or marriage certificate).
The Tribunal notes that the applicant applied for a student visa to Australia on 16 April 2009, which was refused as fraudulent on 8 August 2009. He then applied for another student visa on 20 June 2012, which was granted on 1 August 2012. The applicant arrived in Australia [in] August 2012 and subsequently applied for a protection visa on 30 March 2015. The Tribunal accepts that [Ms A] has remained in Pakistan for the entire period the applicant has been in Australia except for her recent trip to [Country 1] to spend time with the applicant.
The applicant also raised a concern in respect to an Urdu interpreter used by the Department in his interview with them in respect to his protection claim. He used the interpreter twice and the interpreter had no idea what he was saying. He confirmed that he had not raised any concerns in respect to the interpreter with the Department. The Tribunal notes that the applicant is proficient in English and does not accept that the Department has misunderstood his evidence due to interpretation problems. The Tribunal would expect the applicant would easily have been able to raise concerns in respect to interpretation at the initial Department hearing.
Immigration process and the applicant’s father
The Tribunal put to the applicant that the Department had set out in the decision record (supplied by the applicant to the Tribunal) that his initial student visa was refused as fraudulent. Further that he had not mentioned his student visa refusal in his protection claim. He had also not listed [Ms A] as his partner on his student visa application in 2012. In addition he had not informed [Ms A] of his plan to leave Pakistan for Australia as he had no need to do so until he had been successful.
The applicant refuted the Department’s finding that he submitted fake documents in respect to his student application. His migration agent in Pakistan prepared fake documents on his behalf. He had no idea why he did this. He asked why would he do so and jeopardise his job. He confirmed that he left Pakistan to [study] in Australia in order to obtain a promotion in his department in Pakistan. He now [works in Occupation 1]]. He is paying off his debt to his father for the money he spent on his visa process and as such is remitting money back to Pakistan. The applicant stated he had no need to list [Ms A] as his partner as he planned to list [Ms A] as a dependent on his student visa once in Australia.
The Tribunal finds that the applicant sought to move to Australia to undertake study in order to progress his career. The Tribunal notes that the applicant was engaging in his student visa application process while conducting a relationship with [Ms A] which was by then well known to his family. The Tribunal notes that the applicant’s student visa applications were fully supported by his father and he is remitting money back to his father. The Tribunal concludes from this evidence that the applicant enjoys the ongoing support of his family. The Tribunal considers this calls into question the credibility of the applicant’s claim that his family seek to seriously harm him due to his marriage or that his brothers attacked him when they found out about his relationship with [Ms A]. In addition the Tribunal notes that the applicant delayed applying for a protection visa for over two and a half years after entering Australia. The Tribunal put to the applicant that these factors may indicate he does not have a genuine well-founded fear of serious harm. The applicant stated that his first priority was to complete his degree and manage [Ms A]’s safety. He had no idea about his protection options.
The Tribunal has two concerns in respect to the evidence contained within this section of these reasons that, in the Tribunal’s view, call into question the applicant’s credibility in respect to his claim to fear harm.
First it is apparent that the applicant was genuinely focused upon obtaining his qualifications. He enlisted the financial support of his father to do so and has an ongoing relationship with his father as evidenced by the fact that he is paying this financial support back to his father. He then pursued his studies and it was only after an extended period of time that he lodged a claim for protection. The applicant’s father was aware of his relationship with [Ms A] when he subsequently decided to fully support the applicant’s student visa application. The Tribunal considers this strongly indicates that the applicant’s father and family do not seek to harm him due to his relationship with [Ms A], as claimed by the applicant, and calls into question the credibility of the applicant’s claims in this respect.
Secondly the Tribunal notes that the applicant has received specialised migration advice throughout this process. He was employed in a permanent government job and had substantial financial and information resources at his disposal. In such circumstances the Tribunal does not accept that the applicant was unaware of his protection options and finds that his delay in seeking protection reflects that he does not have a genuine well-founded fear of harm due to his marriage to [Ms A]. Indeed, in his evidence to the Tribunal, he stated that he was focused upon achieving a study outcome, which he intended to use to obtain a promotion at his place of employment in Pakistan. The Tribunal considers this evidence calls into question the credibility of the applicant’s claims.
Money transfers and [Ms A]’s Computerised National Identity Card (CNIC) address
The applicant submitted that [Ms A] has never resided at his family home as found by the Department and in fact has lived at various friends’ houses. The Tribunal notes that the Department found that [Ms A]’s CNIC details and addressees contained on money transfers from the applicant to [Ms A] reflected that [Ms A] resided at the applicant’s family address and therefore she was in no danger from the applicant’s family. Accordingly the applicant was also not in any danger from his family. As such the Department concluded his claims lacked credibility in part because of this evidence.
The Tribunal finds that [Ms A]’s CNIC, issued [in] June 2013, lists her name as [Ms A] (which is inclusive of the applicant’s [surname]) and her current address as [Address 1]. Her permanent address is listed as [Address 2].
The Tribunal notes that change of address details on the CNICs are self-nominated. According to the National Database & Registration Authority (NADRA) website, no forms are needed to change one’s ‘present’ (i.e. current) address, whereas the following documents are required to change one’s permanent address:
·Original CNIC/SNIC [i.e. smart national identification card]; and
·Original ID card of blood relative; or ID card of spouse with same address; or computerised utility bill with same name and address; or property document of the applicant, blood relative or spouse.[1]
[1] ‘I want to modify data on my CNIC: Address Change’, National Database & Registration Authority, n.d. (accessed 18 September 2019), 20190918160445
The applicant submitted that when a girl marries a boy, according to NADRA, if you do not submit any other address, all the information on the husband’s ID card goes directly to the wife’s identity card. He submitted that he did not want anyone to know where [Ms A] is living, so she just went to the NADRA office and she submitted her nikahnama (marriage certificate), and said that she is married to this man and asked them to change it to her husband’s name. So when her second name becomes the applicant’s name his own information goes onto that card.
The applicant submitted that [Ms A]’s details automatically transfer to his address, including his house number. All that information is copy pasted because, according to NADRA, she is married to him, so all his data is transferred to her, so it comes on the identity card. If he wished to change his address he would go and talk to NADRA, and next time when [Ms A] renews her identity card, the new address that he changed would automatically go there.
The applicant submitted that his address remains [Address 1] as he came straight from there to Australia. His NICA in Pakistan remains that address while he is not living in Pakistan and he has not changed his address.
The Tribunal finds that [Ms A] applied for her current CNIC after her marriage to the applicant as it lists the applicant’s surname. Country information indicates updating details on a CNIC is a self-nominated process. The Tribunal accepts that [Ms A] supplied her nikahnama in the process of renewing her CNIC. The Tribunal notes that the NADRA website indicates that no documents are required for a change in present address.[2] The Tribunal accepts as reasonable that [Ms A] may have supplied her husband’s family home address, for which no documentation was required as a current address as a means of preserving her anonymity. The Tribunal therefore places no weight on [Ms A]’s address on her CNIC as an indicator of her actual place of residence.
[2] Computerized National Identity Card (CNIC), National Database & Registration Authority,

In respect to money transfers, the applicant submitted a receipt from [Bank 1] being a notice of a credit card issuance, which reflects that [in] June 2015 [Ms A] was living in [Address 3]. He submitted that when his wife receives his transfers of money she just shows her National Identity Card (CNIC) which has his old address because they are married. This does not mean she lives at that address. The Tribunal accepts the applicant’s evidence in this regard as reasonable. To facilitate the transfer the Tribunal accepts that [Ms A] would merely need to present her CNIC to identify herself to the financial institution. The Tribunal therefore places no weight on the address on the money transfers as being an indicator of her actual place of residence.
[Mr B]
The applicant previously told the Department that in mid-2009 he began to receive threats from a person named [Mr B]. [Mr B] had informed him he was a friend of her brother and that [Ms A] loved him and not the applicant. He threatened he would tell [Ms A]’s brother about their relationship. The applicant informed the Department that he got an influential political friend of his to threaten [Mr B] and no more threats were received from [Mr B].
The applicant confirmed to the Tribunal that a man named [Mr B[had approached him in 2009 and warned him that he wanted him to cease his relationship with [Ms A]. He confirmed that he used an influential contact at his work to warn [Mr B] off. However he submitted that [Mr A] continued to harass [Mr B] and also gave her contact details to her brother [Mr C] and had contacted him when he first moved to Australia in conjunction with [Mr C]. The Tribunal noted that the applicant had not mentioned any further contact with [Mr B] in his prior evidence given to the Department. The applicant simply responded that he had blocked his number after the first contact. The Tribunal noted that he had previously informed the Department he had been contacted over 80 times by [Mr C] when in Australia. The applicant denied this. He stated that they had only called him once in Australia. He stated they had called him over 80 times in Pakistan.
The Tribunal considered the applicant’s varying evidence in respect to [Mr B]’s role in this matter to be troubling. The Tribunal would expect consistency in respect to the applicant’s evidence about [Mr B]’s role and that, if he had been an ongoing participant in threats made to the applicant, and a collaborator with [Ms A]’s brother [Mr C] in making ongoing threats to the applicant, then he would have told the Department about this. The fact that he did not, but now seeks to introduce an ongoing role for [Mr B], causes the Tribunal to doubt the applicant’s credibility in respect to his evidence about [Mr B].
[Mr C] and [Ms A]’s other relatives
The Tribunal noted that the applicant had informed the Department that a stranger had telephoned him at his [workplace] and asked him to come downstairs where he had introduced himself as [Mr C], [Ms A]’s brother. He was in the company of four other men. He told him to stay away from [Ms A] as she was going to marry someone of her own caste. The applicant stated that he had agreed to finish the relationship as he was scared. The Tribunal noted that the Department had questioned the plausibility of [Mr C] approaching the [workplace] to confront an employee whom they must have been aware had powerful contacts as his contact had warned off [Mr B].
The applicant now told the Tribunal that [Mr C] had approached him at his workplace and he had been beaten up during this initial contact. The Tribunal put to the applicant that his workplace is a secure workplace and it is unlikely he would be beaten up. The applicant stated he had left the building to meet [Mr C] and gone back to his car in the car park where [Mr C] had beaten him up. He could not remember when this had occurred. The applicant appeared confused in his evidence in respect to this first approach by [Mr C]. He appeared to conflate it with an attack by [Mr C] that he informed the Department about in 2011. In this account he stated that [Mr C] had ambushed him when he was leaving work and pointed a gun at him and beat him up in a car and told him to stop seeing [Ms A]. The Tribunal is concerned by the applicant’s inability to maintain a coherent story in respect to his dealings with [Mr C]. He appears to have conflated the two encounters but changed the story in respect to how he was attacked by now claiming he voluntarily went with [Mr C] to the car park where he was then beaten up. He did not mention [Mr C] having a gun in this encounter.
The Tribunal considered the applicant’s evidence in respect to [Mr C] to be highly inconsistent. The Tribunal would expect such serious events involving beatings and the alleged use of a gun outside the applicant’s place of work to be consistently recalled. The inconsistencies in the applicant’s evidence in respect to his claims, in regard to [Mr C]’s encounters with him at his place of work, cause the Tribunal to doubt the credibility of the applicant’s claims to have suffered past harm from [Mr C] and accordingly to doubt his credibility.
The applicant also submitted that [Mr C] and other relatives of [Ms A] have threatened her on several occasions, beaten her up, tracked her down and assaulted her with acid due to her refusal to cease her relationship with the applicant. He submitted photographs of a person with injuries to their hand, which he claims are evidence of [Ms A]’s acid injuries sustained in October 2012. Accompanying these photos are handwritten notes with the letterhead “[named] Medical Complex” dated [October] 2013 with the annotations that the notes relate to [Ms A] who has been treated for a chemical burn to her fingers.
The Tribunal put to the applicant the Department’s findings that the medical complex was unable to be verified and that the pictures supplied do not identify [Ms A]. The applicant reiterated that the photos are of [Ms A]. He stated that he had subsequently called [Ms A] to inquire about the medical complex. She had told him it is just a small clinic, more of a street dispensary. He submitted that in Pakistan these dispensaries are in every street.
The Tribunal has significant concerns in respect to the credibility of the evidence supplied in respect to this claimed acid attack on [Ms A]. Even if it accepted that the photos are of [Ms A] at best she has accepted treatment for a finger injury from a street dispensary. This does not indicate a significant injury. Further the Tribunal does not consider the written evidence accompanying the photos to have any evidentiary weight as they have clearly not been completed by a medical practitioner. Given these concerns in respect to the veracity of the evidence the Tribunal does not accept that [Ms A] has been attacked by her relatives in an acid attack. Had [Ms A] been attacked with acid by her relatives, in circumstances where her husband is actively seeking protection in Australia from the same relatives, the Tribunal would expect a full medical report from a verifiable and credible source to have been obtained and submitted. Accordingly the Tribunal doubted the applicant’s credibility in respect to his claim that [Ms A] has suffered an acid attack from her relatives.
Caste considerations and relevant country information in respect to marriage
The Tribunal put to the applicant that the decision of the Department (a copy of which the applicant supplied to the Tribunal) had set out significant amounts of country information that indicated honour killings in Pakistan for reasons of caste amongst Muslims not descended from Hindus are exceedingly rare. Rather honour killings are far more common for reasons related to perceived breaches of family honour, in particular perceived transgressions of honour related to relationships. The Tribunal also put to the applicant that the decision of the Department sets out country information that indicates that honour killings against women and girls for reasons of perceived breaches of family honour, such as disobeying family edicts in respect to marriage are common. The Tribunal notes that country information indicates that honour killings of men, for the same reason, do occur although at a much reduced rate.
The applicant reiterated that both his and [Ms A]’s families oppose their marriage because she is of a higher caste. He submitted that the families are trying to pretend that everything is all right in order to try and lure him back to Pakistan. They will then kill both himself and [Ms A] when he is there.
The Tribunal has significant concerns about the plausibility of the applicant’s claims in respect to this consideration irrespective of whether the feared harm is expressed for reasons of inter-caste marriage or for being an opposed love marriage. Country information indicates that honour killings perpetrated by victims’ families are a common occurrence in Pakistan.[3] The applicant has set out a narrative that he and [Ms A] have conducted an ongoing relationship for many years against the stated wishes of both his and her families and for many years with their respective families’ knowledge that this was occurring. He has claimed that [Ms A] has been confronted on many occasions by her family about this relationship but has continued to defy their wishes on the matter. Further the applicant has claimed that his own family also vehemently opposes the relationship.
[3] Asylum research Centre, Pakistan Country Report, 18 June 2018, pp.214-221
The Tribunal does not accept that [Ms A] in particular, in light of the country information pertaining to women in such situations would have escaped severe violence from her family for her continued defiance that, if she had survived, would be clearly documented and recounted in an unequivocal manner. The Tribunal has found the evidence of such claimed violence presented to be lacking in credibility and does not accept [Ms A] has been subjected to the violence claimed. The Tribunal also does not accept the applicant’s submission that she has escaped such violent retribution merely because the families wish to lure him back to Pakistan. Country information indicates that matters of family honour in Pakistan are taken very seriously and that women in particular are primarily the victims of such violence as the carrying of family honour resides with female members of families.[4] This indicates that [Ms A] would quickly fall victim to severe violence (of which evidence would be unequivocally presentable), had she continued to conduct herself in the manner submitted by the applicant and that the family would not be debating whether to enact an honour killing as late as 2016, as indicated by the applicant in his written submission dated 30 June 2016. In the Tribunal’s view these considerations also call into credibility the claims of the applicant.
[4] Department of Foreign Affairs and Trade, Country Information Report, Pakistan, 20 February 2019, p.51; Asylum research Centre, Pakistan Country Report, 18 June 2018, p.214; A Family Conspiracy: Honor Killings, Dr Phyllis Chesler, New English Review Press, 2018, p.12
In addition the applicant wrote in a submission dated 30 June 2016 that [Ms A] had obtained a warning summons against her family in October 2015 from the Court. The Tribunal put to the applicant that it would expect such an important evidentiary document to be retained and submitted. The applicant merely stated that the summons had been misplaced. The Tribunal does not accept the applicant’s assertion that such a crucial piece of evidence in support of his claim has been misplaced as reasonably plausible and rejects the applicant’s claim that [Ms A] has obtained a warning summons against her family.
Conclusion – Credibility of the applicant
After considering the applicant’s evidence and the issues considered in these reasons both individually and cumulatively the Tribunal does not accept the applicant to be a credible witness. It does not accept that he has a genuinely held well-founded fear of persecution in Pakistan as reflected by the Tribunal’s findings in respect to considerations pertaining to his student visa, the delay in applying for protection and the actions of his father. The Tribunal does not accept that he left Pakistan for fear of harm for any reason claimed, rather he primarily left Pakistan, as stated in his own evidence, to pursue his studies in order to obtain a promotion at work. In addition the Tribunal does not accept that he or [Ms A] have been attacked by [Mr C] or any other member of [Ms A]’s family or any member of his own family or that they seek to harm either himself or [Ms A] for reason of caste or his marriage to [Ms A]. Indeed the Tribunal has found that the applicant’s family have actively supported him after he was married to [Ms A] in assisting him to pursue his studies in Australia. The Tribunal makes no findings in respect to [Ms A]’s place of residence and accepts that she may well reside with a friend of the applicant. The Tribunal does not accept that this indicates in any way that she is at risk of serious harm from her family. The Tribunal finds there is no real chance of serious harm to the applicant from any member of [Ms A]’s family or any member of his own family either now or in the reasonably foreseeable future.
The Tribunal accepts that a man named [Mr B] approached the applicant in respect to his desire to pursue a relationship with [Ms A]. However the Tribunal finds that [Mr B] was warned off by the applicant’s contact at his workplace as he originally told the Department. The Tribunal rejects the applicant’s new evidence that [Mr B] continues to pursue the applicant due to its credibility finding in respect to this claim. The Tribunal finds that the claimed threat was of a personal nature and that the threat ceased once the applicant took action against [Mr B]. The Tribunal finds there is no real chance of serious harm to the applicant from [Mr B] either now or in the reasonably foreseeable future.
Failed asylum seekers returning to Pakistan
During the hearing the applicant raised a new claim of fearing harm being a Pakistani national who has spent considerable time in Western countries and then been forced to return to Pakistan as a failed asylum seeker. The applicant raised what the Tribunal considered to be somewhat vague concerns that people in such situations have been subjected to mental health breakdowns and he would not be able to easily integrate back into Pakistani society.
The Tribunal set out to the applicant that DFAT assesses that:
Returnees are typically able to reintegrate into Pakistani community without repercussions stemming from their migration attempt, although involuntary returnees who took on debt to fund their migration attempt tend to face a higher risk of financial hardship and familial shame. NGOs report that less than 0.5 per cent of returnees do not reintegrate and seek to go abroad again to seek asylum.[5]
[5] Department of Foreign Affairs and Trade, Country Information Report, Pakistan, 20 February 2019, p.68
The applicant submitted a somewhat vague answer that non-government organisations will not help him. They are corrupt. Corruption is everywhere.
The Tribunal considers there is no real chance the applicant will be harmed by being isolated, shunned or otherwise subjected to any form of harm as a result of his migration attempt. This is because he is highly educated and has established connections within government as reflected by his past government job. The Tribunal has also found he has the ongoing support of his family and he has nearly repaid all of his debt incurred in his migration attempt to his father and, given these factors, the Tribunal finds that the applicant’s fear of serious harm in respect to returning to Pakistan as a failed asylum seeker is not well-founded.
In addition DFAT assesses that returnees to Pakistan do not face a significant risk of societal violence or discrimination as a result of their attempt to migrate, or because of having lived in a Western country.[6] Given this country information and the applicant’s overall favourable factors, as outlined above, for reintegration into Pakistani society the Tribunal finds there is no real chance the applicant will be harmed for reason of his returning from a Western country in which he has spent considerable time.
[6] Department of Foreign Affairs and Trade, Country Information Report, Pakistan, 20 February 2019, p.68
For these reasons the Tribunal also does not accept the applicant’s submission that his mental health symptoms of stress, anxiety and depression would be exacerbated by his return to Pakistan for reason of his failed asylum claim or his return from a Western country, because he will not be placed under duress or harmed because of these factors.
For these reasons the Tribunal does not accept there to be a real chance that the applicant would suffer serious harm from either [Ms A]’s family or his own family, [Mr B], or from society in general if he returns to Pakistan for reason of his marriage to [Ms A] or for reason of his failed migration attempt to Australia. It follows that the Tribunal does not accept the applicant has a well-founded fear of persecution for any reason claimed if he returns to Pakistan, now or in the foreseeable future.
Complimentary protection
In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm. In this case, the Tribunal has found that the applicant is a national of Pakistan and the Tribunal therefore finds that Pakistan is the ‘receiving country’ for the purposes of s.5(1).
For the reasons set out above, the Tribunal has not accepted that the applicant has been attacked by members of [Ms A]’s or his own family or that they seek to harm him for reason of his marriage to [Ms A]. The Tribunal has not accepted there to be a real chance the applicant would face serious harm from either his or [Ms A]’s family, from [Mr B] or for reason of his return to Pakistan as a failed asylum seeker or a returnee from a Western country, if he returned to Pakistan now or in the foreseeable future. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[7] For the same reasons the Tribunal does not accept there to be a real risk that the applicant would face significant harm on this basis.
[7] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342].
For these reasons the Tribunal does not accept there to be a real risk that the applicant would face significant harm if returned to Pakistan.
OVERALL CONCLUSIONS
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 criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Paul Noonan
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.
…
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.
…
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.
…
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.
…

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Citations

1713586 (Refugee) [2019] AATA 6850

Cases Citing This Decision

Cases Cited

Statutory Material Cited

Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22

MZWMF v Minister for Immigration and Multicultural Affairs [2006] FCA 780

Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20

[2019] AATA 6850

12 November 2019

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction