1714210 (Refugee)

1714210 (Refugee) [2021] AATA 3034 (24 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1714210
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:L. Symons
DATE:24 May 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 24 May 2021 at 5:42pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – domestic violence – verbal and physical abuse by husband – fear of harm from husband and his powerful family – credibility – contradictory, implausible and unconvincing evidence and new claims made at hearing – no fear of harm indicated in earlier visa applications – short period as unlawful non-citizen – application heard together with uncle’s – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J, 36(2), 65, 424AA, 438
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 22 June 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant claims to be a citizen of Pakistan. On 29 July 2013, she was granted a [Temporary Work] visa, as her husband’s dependent. She arrived in Australia on [August] 2013. On 27 August 2015, she was granted a Bridging A visa that was valid until 16 March 2016. On 16 September 2016, she was granted a Bridging A visa in association with her application for a Visitor visa. On 13 October 2016, she was granted a [Visitor] visa that was valid until 20 December 2016. On 20 December 2016, she was granted a Bridging A visa in association with her application for a second Visitor visa. This visa expired on 25 January 2017 and she thereafter remained in Australia as an unlawful non-citizen. On 10 February 2017, she was granted a Bridging C visa in association with her application for a Protection visa and she remains on this visa.
On 6 February 2017, the applicant applied to the Department of Home Affairs (the Department) for a Protection visa. on 23 June 2017, the Department refused her application on the basis that she was not a person in respect of whom Australia owed any protection obligations. On 3 July 2017, she applied to the Tribunal for a review of that decision.
The applicant appeared before the Tribunal on 27 April 2021 to give oral evidence and present arguments. The hearing was conducted as a joint hearing with the application made by her uncle, [Mr A] as their claims arose out of the same circumstances. Both applicants consented to a joint hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
The applicant was represented in relation to the review by her lawyer, [Mr B], who attended the hearing. At the end of the hearing, he requested and was granted 2 weeks after he received an electronic copy of the recording of the hearing to provide post hearing submissions. The recording of the hearing was sent to him by email on 30 April 2021 and the post hearing submissions were due on 14 May 2021. The Tribunal has not received the post hearing submissions or a request for an extension of time to provide them. In these circumstances, the Tribunal will proceed to make a decision on the review.
The issues that arise on review are whether the applicant is owed Australia’s protection under the refugee criterion or under the complementary protection criterion.
CRITERIA FOR A PROTECTION VISA
The criteria for a Protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a Protection visa of the same class.
Section 36(2)(a) provides that a criterion for a Protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS
The applicant’s claims in her application for Protection visa lodged on 6 February 2017 are summarised as follows:
·She has been subjected to domestic violence her whole life. She did not have the opportunity to be educated in Pakistan. She married her husband in 2012. It was an arranged marriage. She has been subjected to domestic violence by her husband since the day after their wedding in 2012. He has physically and verbally abused her.
·She could not tolerate her husband’s abuse and slavery anymore and decided to end their relationship. She left him and sought protection in her uncle’s home where she still resides. When she refused to return home with him, he threatened her with severe punishment, harm and death as well as being forced to return to Pakistan.
·She cannot ask for a divorce or say anything against her husband due to her position as a woman in rural Pakistan and also as a Muslim woman.
·She cannot go to the Police in Australia because he will be arrested and brought to justice. His family will kill her mother and other family members.
·She fears returning to Pakistan. This fear is based on her previous experiences and the threats made towards her by her husband and his family. They are forcing her to live with her husband and return to Pakistan. She will be subjected to torture, serious harm and even death upon her return. Her mother in Pakistan and her uncle in Australia have been threatened.
·She is scared of her husband and his family. They are very powerful in Pakistan and can make her disappear. She knows her husband will punish her upon her return to Pakistan and nobody will be able to do anything. She will be subjected to the same abuses, violent behaviour and even death by her husband and his family. They have told her that she has brought dishonour and disrepute to their family and in society.
·She cannot trust anyone to protect her in Pakistan. It is not possible for anyone to provide her effective protection in any part of Pakistan, particularly as a woman in her situation. The authorities in Pakistan are corrupt and are connected to her husband’s family in nearly every governmental department, including the Police and Armed Forces.
·She is in danger of serious harm to her life and is in need of protection.
The applicant provided to the Department a copy of her Pakistani passport issued [in] 2012.
The applicant attended an interview with the Department on 10 May 2017 accompanied by her representative. During the interview, she reiterated and expanded on her written claims including the following:
·Her husband rarely allowed her to visit her mother and tried to isolate her from her family.
·After their arrival in Australia in August 2013, they lived with her uncle, [Mr A], in Sydney for a year. Her husband would not let her leave the house. He did not mistreat her in front of her uncle and his family.
·They subsequently left her uncle’s home and lived in their own home. He did not allow her to go out or to use the telephone. He locked her in the house and bought the household supplies. She was not allowed to contact her family and he threatened to kill her if she went to the Police.
·Her family will not help her as it is a cultural norm for married women to endure mistreatment from their husbands. She fears being harmed in Pakistan for disobeying the conventions of conservative social norms for married women.
On 15 May 2017, the delegate wrote to the applicant, put adverse information to her and invited her to comment on the information within 28 days after she was taken to have received the letter. No response was provided to the Department.
The delegate found that the applicant’s claims were not credible and that she is not a person in respect of whom Australia has any protection obligations. Her application for a Protection visa was refused on 23 June 2017.
The applicant filed with the Tribunal a copy of the Department’s Decision Record dated 23 June 2017.
Country of reference
The applicant claims to be a citizen of Pakistan and has provided a copy of her Pakistani passport to the Department and the Tribunal. In the absence of any evidence to the contrary, the Tribunal finds that she is a citizen of Pakistan. The Tribunal finds that Pakistan is her receiving country for the purpose of assessing her claims for protection under the refugee criteria and under the complementary protection criteria.
Third country protection
There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.
Assessment of claims
The applicant gave evidence that her application for a Protection visa was prepared by her lawyer based on her instructions which were true and correct. She was satisfied that her visa application was accurate and complete. There have been no changes in her circumstances since she filed her visa application.
During the hearing, the Tribunal discussed with the applicant her background, her family, her education, her employment, where she lived in Pakistan, her relationships with her husband, his family and her family and why she fears returning to Pakistan. The Tribunal found aspects of her evidence to be contradictory, implausible and unconvincing. There were significant inconsistencies between her evidence and her uncle’s evidence. There were significant inconsistencies between her evidence and the records of the Department. She made new claims during the hearing. She was unable to provide a coherent and consistent account of her relationships with her husband and his family. The Tribunal finds that she is not a reliable witness for the following reasons:
First, in her Statement of Claims, the applicant claimed that she had been subject to domestic violence all her life. Her uncle also made this claim in his Statement of Claims. During the hearing, she gave evidence that she lived with her parents prior to her marriage and had no problems. Her problems began after her marriage. This inconsistency in her evidence raises concerns in relation to her reliability as a witness and the veracity of this claim. When the Tribunal raised this as an issue with her and her uncle, she responded that she did say that before her marriage she was with her parents and had no problems. All her problems started after her marriage. Her uncle responded that what she meant was not her whole life but only after she got married. Her response does not address the issue raised with her or alleviate the Tribunal’s concerns. He is unable to give evidence of what she meant. His response does not alleviate the Tribunal’s concerns.
Second, in her Statement of Claims, the applicant claimed that she got married in 2012 in an arranged marriage. She claimed that she was subjected to domestic violence by her husband since the day after their wedding in 2012. She claimed that he physically and verbally abused her.
The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 22 June 2017 which indicates that during her interview with the Department she gave a different version of events. She stated that she got married [in] March 2012 in an arranged marriage and only met her husband 6 months before they got married. At the beginning, her husband and his family treated her well but later became cruel and over critical. Her husband rarely allowed her to visit her mother and tried to isolate her from her family. He would physically and verbally abuse her.
During the hearing, the applicant gave a third version of events. She stated that she did not meet her husband until their wedding day. She lived with her parents prior to her marriage and then moved to her husband’s home after her marriage and lived with him in Pakistan for a year. Her husband owned two houses; one in Karachi and one in Rawalpindi. Both of them sometimes lived in Karachi and sometimes lived in Rawalpindi. The Tribunal asked her when her husband was first abusive towards her. She responded that after they came to Australia, he started hitting her and using foul language. Sometimes he never came home at night.
The records of the Department indicate that the applicant’s husband was living in Australia in 2012. He left Australia for about 10 days and was back in Australia 6 days after their wedding. He did not return to Pakistan again until after she had come to Australia in August 2013. The Tribunal put this information to her and her uncle, pursuant to s.424AA of the Act, and noted that her husband could therefore not have been doing all the things she claimed that he did in Pakistan such as preventing her from seeing her mother. The Tribunal noted that this raised concerns in relation to her credibility and the veracity of her claims.
The applicant responded that her husband was in Pakistan for a few days after their marriage and then returned to Australia. Her uncle responded that he did not know about it.
The applicant’s response does not explain the significant inconsistencies in her evidence or alleviate the Tribunal’s concerns.
Third, the records of the Department indicate that during her interview with the Department the applicant claimed that shortly after her marriage her husband’s family started treating her badly. During the hearing, she gave evidence that she moved into her husband’s (family) home after her marriage. She stated that her mother in law did not have a good relationship with her, hit her, hurt her and used foul language against her.
However, in her application for a Protection visa, which she stated was accurate and complete, the applicant stated that she lived at the same address in Pakistan from birth until she left Pakistan to come to Australia in August 2013. She could therefore not have been living with her husband’s family at the time she claims they abused her and treated her badly. The Tribunal put this information to her and her uncle, pursuant to s.424AA of the Act, and noted that her visa application was not consistent with her claims and that this raised concerns in relation to her credibility and the veracity of her claims.
The applicant responded that before her marriage she lived with her parents and after her marriage she lived with her husband. Her uncle responded that he was not aware of any of this. Her response does not explain the significant inconsistencies in her evidence or alleviate the Tribunal’s concerns.
Fourth, during her interview with the Department, the applicant stated that when she arrived in Australia in 2013, she and her husband lived with her uncle for one year before moving into their own home. She claimed that her husband would not let her leave the house. She claimed that he did not mistreat her in front of her uncle and his family.
On 15 May 2017, the Department wrote to the applicant and put adverse information to her. This included information that her husband told the Department that he lived at an address in [Suburb 1] from June 2012 until July 2015. She came to Australia [in] August 2013 and there is no record with the Department that she lived at [Suburb 2] with her uncle for one year after she came to Australia [in] August 2013. She was given an opportunity to respond to this information but did not do so.
During the hearing, the applicant gave a different version of events. She stated that she lived with her husband in their own home after she came to Australia and only lived with her uncle after June 2016. Her uncle gave evidence to the Tribunal that she lived with her husband after she came to Australia and only lived with him after June 2016.
The Tribunal put this information to the applicant and her uncle, pursuant to s.424AA of the Act, and noted that the inconsistencies within the applicant’s evidence raise concerns in relation to her credibility and the veracity of her claims. She responded that it is true that she lived with her husband. She went to her uncle’s house and did not go back to her husband again. Her uncle responded that when his brother passed away the applicant went to his house and never left. Her response does not explain the inconsistency in her evidence or alleviate the Tribunal’s concerns. His response likewise does not explain the inconsistency in her evidence or alleviate the Tribunal’s concerns.
Fifth, the evidence before the Tribunal is that the applicant arrived in Australia [in] August 2013. She gave evidence to the Tribunal that she used to visit her uncle in Sydney once a month prior to June 2016. Six months after her arrival in Australia she told her uncle that her husband was beating her and abusing her.
The records of the Department indicate that the applicant’s uncle attended an interview with the Department on 30 May 2019. During that interview, he stated that the applicant did not live with him until the day she came to pay her respects after the death of one of his brothers in Pakistan in June 2016. He did not initially know she had come to Australia and before that day had only seen her in Sydney on a couple of occasions at Eid celebrations. Prior to June 2016, he did not know about any marital problems she might have had with her husband.

During the hearing, the applicant’s uncle gave a different version of events. He stated that he was involved in arranging the applicant’s wedding. He also worked with her husband in a company (in Sydney) owned by his brother.
The Tribunal put this information to the applicant and her uncle, pursuant to s.424AA of the Act, and noted that the inconsistencies in the evidence raised concerns in relation to their credibility and the veracity of their claims. She declined to respond. Her uncle responded that he did say that she came to him in June 2016 when his brother passed away. This response does not address the issue or alleviate the Tribunal’s concerns.
Sixth, the applicant has filed with the Tribunal a copy of the Department’s Decision Record. It indicates that during her interview with the Department she stated that after she and her husband left her uncle’s home and moved into their own home, her husband would not allow her to use the telephone or go out. He locked her in the house and he did the household shopping. She was not allowed to contact her family and he threatened to kill her if she went to the Police.
The records of the Department indicate that the applicant’s husband was out of Australia for over 4 weeks between October 2013 and November 2013. The Tribunal put this information to the applicant and her uncle and noted that it had serious doubts that her husband would have locked her in the house for over 4 weeks with no ability to go out and buy food. The Tribunal also noted that there was a lot she could have done during that period to seek help while her husband was out of Australia but did not. The Tribunal noted that the fact that she did not do so raises concerns about her credibility and the veracity of her claims.
The applicant responded that her husband was here and whenever he went out, he locked her up. When asked if it was her evidence that her husband locked her up in the house for over 4 weeks while he was overseas, she responded that he did not go overseas. When the Tribunal noted that was not consistent with the records of the Department, she did not respond. Her uncle responded that he did not know much. Her husband worked with his brother and then left. He did not know where he went.
The Tribunal prefers the evidence from the Department to the applicant’s evidence. The Tribunal finds her claims to be implausible and her conduct to be inconsistent with her claims. Her lack of knowledge that her husband was overseas for over 4 weeks between October 2013 and November 2013 also raises concerns about her evidence to the Tribunal that she lived with her husband after her arrival in Australia in August 2013 until June 2016, the genuineness of her marriage and the veracity of her claim that she would be at risk of harm if she returns to Pakistan for disobeying the conventions of conservative social norms for married women by separating from her husband. Her response does not alleviate the Tribunal’s concerns.
Seventh, in her Statement of Claims, the applicant claimed that she could not tolerate her husband’s abuse and slavery anymore and decided to end their relationship. She claimed that she left him and sought protection in her uncle’s home where she still resides. In her application for a Protection visa, which she stated is accurate, she stated that she separated in October 2016.
The applicant’s uncle gave evidence that one of his brothers died in June 2016 and the applicant went to his house at that time to offer her condolences. She then told him that her husband was violent towards her and she did not want to go back to him. This was 4 months before the date of separation in the applicant’s visa application.
The Tribunal put this information to the applicant and her uncle, pursuant to s.424AA of the Act, and noted that this inconsistency in their evidence raised concerns in relation to her credibility and the veracity of her claims. She responded that she left her husband in June 2016 and never went back. She stated this before and said it again today. Her uncle responded that his brother passed away in June (2016) and that is when she came to see her.
The Tribunal does not accept the explanation given by the applicant in view of her evidence that her visa application was prepared on her instructions and she was satisfied that it was accurate. This inconsistency in her evidence raises further concerns in relation to her credibility and the veracity of her claims.
Eighth, the applicant gave evidence that, after she separated from her husband, he returned to her uncle’s house twice and spoke to her uncle. She did not come out and speak to him. The Tribunal asked her uncle whether her husband returned to his house after her separated from him. He initially gave evidence that he did not. He then changed his evidence and stated that he went to his house once and he also spoke to him on the telephone.
The Tribunal put this information to the applicant and her uncle, pursuant to s.424AA of the Act, and noted that the inconsistencies in their evidence raised concerns in relation to their credibility and the veracity of their claims. The applicant declined to respond. Her uncle responded that he was in the house. He came out and had an argument with the applicant’s husband. He wanted to take her back. He told him that she did not want to return to him because of his violence towards her. His response does not address the issue or alleviate the Tribunal’s concerns.
Ninth, in her Statement of Claims, the applicant claimed that when she refused to return to her husband, he threatened her with severe punishment, harm and death as well as being forced to return to Pakistan. She claimed that her husband and his family have threatened her, her uncle and her mother. She claimed that she will be killed or will disappear if she returns to Pakistan. She claimed that her husband’s family has contacts in the Police and the Armed Forces and she cannot obtain protection from the Pakistani authorities.
The records of the Dept indicate that the applicant came to Australia on a [ Temporary Work] visa as her husband’s dependent. That visa expired on 17 September 2016. She then applied for a Visitor visa on the basis that she needed time to pack and leave Australia. This indicates that she had no concerns about returning to Pakistan. She was granted a Visitor visa on 13 October 2016 and it was valid until 20 December 2016. On 20 December 2016, she applied for a second Visitor visa on the basis that she was looking for a job that would sponsor her for a [Temporary Work ] visa.
The Tribunal put this information to the applicant and her uncle, pursuant to s.424AA of the Act, and noted that Visitor visas are temporary visas and do not give her permanent residence in Australia. The Tribunal noted that the fact that she kept applying for Visitor visas and not for a Protection visa may lead it to the conclusion that she was just trying to extend her stay in Australia and that she had no fear of harm if she returns to Pakistan. She responded that she did not know anything about immigration. Her uncle declined to respond.
The Tribunal does not accept the applicant’s explanation. The Tribunal is of the view that if she had a genuine fear of returning to Pakistan, she would have sought her uncle’s help to obtain information from a migration agent in relation to applying for a permanent visa in Australia. Her failure to do so raises concerns in relation to her credibility and the veracity of her claims.
Tenth, in her Statement of Claims, the applicant claimed that she was subject to violence from the day after her wedding and this continued in Pakistan and after she came to Australia. She claimed that, as a result of threats made to her when she separated from her husband in 2016, she feared returning to Pakistan.
The records of the Department indicate that when the applicant applied for the second Visitor visa, she was granted a Bridging visa on 20 December 2016. That visa expired on 25 January 2017. She thereafter remained in Australia as an unlawful non-citizen. She could have been deported to Pakistan during that time. She did not apply for a Protection visa until 7 February 2017. The Tribunal put this information to her and her uncle, pursuant to s.424AA of the Act, and noted that her conduct was not consistent with her claims. The Tribunal noted that this may lead it to the conclusion that her application for a Protection visa was her last resort to extend her stay in Australia and that was her reason for applying for the visa and not because she is in need of protection. The Tribunal noted that her conduct raised concerns in relation to her credibility and the veracity of her claims.
The applicant responded that she did not know anything about visas and is an illiterate person. Her uncle responded that the applicant is not able to use a computer so how could she complete an application. When asked whether he was represented by a lawyer or migration agent in relation to his previous visa applications, he responded no. When the Tribunal pointed out that that was not consistent with the records of the Department, he did not respond. The Tribunal prefers the evidence from the Department to his evidence.
The Tribunal does not accept the applicant’s explanation. Her evidence is that she was living with her uncle at the time she applied for the two Visitor visas. The Tribunal would expect that, if she genuinely feared returning to Pakistan and did not have the ability to obtain immigration advice herself, she would have sought her uncle’s assistance to obtain immigration advice from his migration agent in relation to living in Australia permanently. The Tribunal does not accept her response and it does not alleviate the Tribunal’s concerns.
Eleventh, in her Statement of Claims, the applicant claimed that when she separated from her husband and sought shelter with her uncle, threats were made against her, her uncle and her mother.
The records of the Department indicate that the applicant’s uncle arrived in Australia with his eldest son [in] June 2013 on a [Temporary Work] visa. His wife and their four other children followed [in] May 2014. His [Temporary Work] visa was valid until 4 June 2017. On 26 May 2017, he applied for Protection visas for himself, his wife and their children. The Tribunal put this information to the applicant and her uncle, pursuant to s.424AA of the Act, and noted that her uncle’s application for Protection visas was made a few days before his [Temporary Work] visa expired.
The Tribunal noted that the applicant’s uncle claimed that when he gave the applicant protection in June 2016, after she left her husband, threats were made against him by her husband and his family. However, he waited for 11 months before he sought protection. The Tribunal noted that this may lead it to the conclusion that he only applied for the Protection visas to extend his stay in Australia and not because he is in need of protection. The Tribunal noted that this raised concerns in relation to his credibility and the veracity of his claims. The applicant declined to respond. Her uncle responded that he realised he was in danger. He assumed that the applicant would return to her husband and work things out. Time passed and things did not get better so he decided to make an application. The Tribunal finds his explanation to be implausible and does not accept it.
Twelfth, in her Statement of Claims, the applicant claimed that when she separated from her husband and sought shelter with her uncle, threats were made against her, her uncle and her mother. In his Statement of Claims, her uncle claimed that he had been threatened over the telephone a number of times and that the applicant’s husband’s brother threatened to kill him if he returned to Pakistan.
The records of the Department indicate that during his interview with the Department the applicant’s uncle stated that he had not received any telephone calls from the applicant’s husband’s family. Threats were made against him through his brothers in Pakistan and not directly to him. During the hearing, he gave evidence that threats were made directly to him.
The Tribunal put this information to the applicant and her uncle, pursuant to s.424AA of the Act, and noted that these inconsistencies in her uncle’s evidence raised concerns in relation to his credibility and the veracity of his claims. She declined to respond. Her uncle responded that he realised that he had made mistakes during his interview. He was fasting, did not have breakfast and did not know what he was saying. The Tribunal does not accept his explanation as it is implausible.
Thirteenth, both the applicant and her uncle gave evidence to the Tribunal that the applicant went to her uncle’s house when his brother passed away in June 2016 to pay her respects to him. They both stated that she told her uncle that she did not want to return to her husband as he was violent towards her. They both stated that her husband became angry and made threats against both of them. They both stated that she thereafter stayed with her uncle and separated from her husband.
The Tribunal has information before it that the applicant’s husband applied for a visa in July 2016 and included the applicant as his spouse and family member in his visa application. The Tribunal put this information to the applicant and her uncle, pursuant to s.424AA of the Act, and noted that it is implausible that if the applicant and her husband were separated at the time, he was very angry with her and his family wanted her to return to Pakistan so that they could punish her, he would have wanted to obtain a visa for her so she could remain in Australia. The Tribunal noted that this raised concerns in relation to their credibility and the veracity of their claims.
The applicant responded that she does not know anything. Her uncle declined to respond. The applicant’s response does not alleviate the Tribunal’s concerns.
Fourteenth, in her Statement of Claims, the applicant claimed that she did not have the opportunity to be educated in Pakistan. She claimed that she cannot ask for a divorce or say anything against her husband due to her position as a woman in rural Pakistan and also as a Muslim woman. In her application for a Protection visa, she stated that she lived at the same address in Rawalpindi from [Year] (when she was born) until August 2013 (when she came to Australia). Rawalpindi is a large city with a population of approximately 2,281,000 people and is not a rural area.[1]
[1] Rawalpindi, Pakistan Metro Area Population 1950 – 2021, Macrotrends. (Rawalpindi, Pakistan Metro Area Population 1950-2021 | MacroTrends)
In her application for a Protection visa and at the hearing, the applicant gave evidence that she had no education in Pakistan. During her interview with the Department, she stated that she left school in Primary School. The Department wrote to her on 15 May 2017 and put adverse information to her. The Department stated that in her application for a [Temporary Work] visa she stated that she attended a Secondary High School called [Name] Secondary School in Pakistan from [Date 1] until [Date 2].
In her application for a Protection visa, the applicant provided no employment history and at the hearing she gave evidence that she had never undertaken any paid work in Pakistan. During her interview with the Department, she stated that she left school so that she could start her own business. She stated that she owned a [business] for 5 years before coming to Australia.
The Tribunal put this information to the applicant and her uncle, pursuant to s.424AA of the Act, and noted that this evidence tended to indicate that she was not an uneducated woman from rural Pakistan who had never worked as claimed. The Tribunal noted that this may lead it to the conclusion that she had provided false information to the Department and the Tribunal.
The applicant responded that she had never been to school or had any business in Pakistan. The Tribunal noted that in her application for a Protection visa she stated that her occupation was ‘[Occupation]’ and asked whether that was incorrect. She responded that she learnt how to [do a task] and [did that task] for herself and her sisters. She did not [do that task for other people]. Her uncle responded that, as far as he is aware, Rawalpindi is a big city. Some families who are poor and at the “lower level” do not send their girls to school and only send their boys to school. His response does not address the issue raised with them or alleviate the Tribunal’s concerns.
The applicant’s evidence in relation to her education in her two visa applications cannot both be correct. It tends to indicate that she changed her evidence to suit her purpose at the time and achieve a desired immigration outcome. This raises concerns about the credibility of her claims in her application for a Protection visa and by extension, the veracity of the claims made by her uncle in his application for Protection visas. Her response does not address the issues raised with her or alleviate the Tribunal’s concerns.
Fifteenth, in her Statement of Claims, the applicant claimed that she cannot ask for a divorce in Pakistan. However, despite her claim that she separated from her husband in June 2016, she has not applied for a divorce whilst resident in Australia nor does it appear that she has made any inquiries about applying for a divorce. She gave evidence to the Tribunal that she has not applied for a divorce in Australia and does not know anything about it. She knows that she has separated from her husband.
The Tribunal would expect that, if the applicant is under the belief that she cannot apply for a divorce in Pakistan and this is important to her because she fears being forced to return to a violent marriage, she would have at least made inquiries or had inquiries made on her behalf about whether she could apply for a divorce in Australia. The fact that she has not, raises further concerns in relation to the genuineness of her marriage and the veracity of her claim that she would be at risk of harm if she returns to Pakistan as a separated woman. Her response does not alleviate the Tribunal’s concerns.
Sixteenth, in her Statement of Claims, the applicant claimed that her husband’s family has made threats against her, her mother and her uncle following her separation from her husband (in June 2016). She claimed that they are trying to force her to return to Pakistan. She claimed that they are powerful in Pakistan, they have connections to nearly every government department including the Police and Armed Forces. During the hearing, she made new claims that her husband has threatened her brothers and they are now afraid for themselves and their families. She claimed that they have told her family that she should return to her in-law’s house. She claimed that she fears that if she returns to Pakistan her brothers will not help her and will take her back to her in-laws.
The applicant offered no explanation for why these new claims were not made in her visa application or during her interview with the Department or in a pre-hearing statement to the Tribunal. The Tribunal notes that she is legally represented and the Tribunal would expect her lawyer to have complied with the Tribunal’s Practice Directions and provide an updated Statement of Claims to the Tribunal prior to the hearing. In view of her evidence that her husband has made no attempts to contact her since 2016, the Tribunal asked her why she thought he would now be interested in her returning to him. She responded that he is threatening her family.
Despite her claims in relation to how powerful her husband’s family is and their connections to nearly every government department including the Police and Armed Forces, the applicant has not made any claims that her mother, father, [brothers], [sisters] or any other family member has been harmed in any way. The Tribunal would expect that harming a member of her family would have been a way to force her to return to Pakistan so as to avoid any further harm to her family members, if that was their intention.

These issues raise serious concerns in relation to the applicant’s credibility and the veracity of her claims.
The applicant’s evidence that her marriage was arranged by her family, her uncle’s evidence that he worked with her husband in Australia and arranged her wedding, her evidence in her application for a Protection visa (which she stated was accurate) that she lived at the same residence in Rawalpindi from birth in [Year] until she left Pakistan in 2013, the significant inconsistency between her evidence that she lived with her husband in Pakistan for a year after their marriage in 2012 and the Department’s movement records for her husband, the significant inconsistency between her evidence that she and her husband lived with her uncle for a year after she came to Australia in 2013 and her uncle’s evidence that she did not live with him until after she separated from her husband in June 2016, her husband’s inclusion of her as a dependent spouse in his application for a visa after she claims they separated, her immigration history in applying for two Visitor visas after her [Temporary Work] visa (dependent) expired, her indication in her first application for a Visitor visa that she needed time to pack and leave Australia, her remaining in Australia unlawfully after her Bridging visa expired, her delay in applying for a Protection visa and the fact that she has not claimed that any of her family members in Pakistan were harmed despite threats being made against them, her failure to return to Pakistan and her claims that her husband’s family are powerful and connected to the Police and Armed Forces and nearly every government department, raises concerns in relation to the genuineness of her marriage to her husband, the veracity of her claims in relation to threats made against her, her mother, her uncle and her brothers and her claims that she will face serious harm if she returns to Pakistan because she disobeyed the conventions of conservative social norms for married women by separating from her husband.
The Tribunal raised as an issue with the applicant and her uncle its doubts that she would fact serious harm, because of her separation from her husband, if she returns to Pakistan. She responded that she knows they will create problems for her if she returns to Pakistan. Her uncle responded that there was an incident in the area they live in in Pakistan. In a village, a man hit his wife with a cricket bat until he killed her. He went to gaol. His family went to her family and nothing happened after that. These cases are common in Pakistan.
Section 438 Certificate
The Tribunal informed the applicant that her file from the Department contained a Certificate under s.438 of the Act and it related to the non-disclosure of certain information. The Department has indicated that the disclosure of the information would be contrary to public interest because it contains information relating to an internal working document and business affairs and information that was given to an officer of the Department in confidence. The Tribunal informed her that some of the information is relevant to the issues in her case and, in its opinion, the s.438 Certificate is a valid Certificate.
The Tribunal noted that the applicant is already aware of some of the information as the Department wrote to her on 15 May 2017 and put adverse information to her. The Tribunal noted that she was given an opportunity to respond but did not respond. The Tribunal also noted that it had decided to exercise its discretion and disclose the gist of the information to her and would do so shortly. The Tribunal invited her to make submissions on the validity of the s.438 Certificate.
The applicant responded that it is fine. Her lawyer responded that she did not understand. He also stated that he did not receive the letter from the Department.
At the end of the hearing, the applicant’s lawyer requested and was granted 2 weeks after he received an electronic copy of the recording of the hearing to provide post hearing submissions. The recording of the hearing was sent to him by email on 30 April 2021 and the post hearing submissions were due on 14 May 2021. The applicant therefore had a further opportunity to respond, after receiving legal advice from her lawyer, if she wished to do so. The Tribunal did not receive a post hearing submission.
Although the Tribunal is of the opinion that the s.438 Certificate is a valid Certificate, it has exercised its discretion to disclose the gist of the adverse information that is subject to the s.438 Certificate to the applicant in the interests of procedural fairness and natural justice. The adverse information is referred to above. The Tribunal did not provide her with a copy of any documents.
Other considerations
The Tribunal has had regard to the Tribunal’s Guidelines on the Assessment of Credibility when assessing the applicant’s credibility. The Tribunal has also had regard to the DFAT Country Information Report on Pakistan and the Department’s Policy Guidelines to the extent that they are relevant to the decision under consideration.
Findings
Having considered all of the applicant’s claims and all the evidence, the Tribunal finds that the applicant is not a witness of truth. The Tribunal finds that she has fabricated her material claims for the purpose of obtaining a Protection visa.
The Tribunal accepts that the applicant was born on [Date 3] in Rawalpindi in Pakistan. The Tribunal accepts that her parents, [brothers] and [sisters] live in Pakistan. The Tribunal does not accept that she did not have the opportunity to be educated in Pakistan. The Tribunal does not accept that she was subjected to domestic violence her whole life. The Tribunal accepts that her family members arranged her marriage to her husband who was living in Australia at the time. The Tribunal is not satisfied, on the evidence before it, that it was a genuine marriage.
The Tribunal does not accept that the applicant ever lived with her husband in Pakistan or in Australia. It follows that the Tribunal does not accept any of her claims that flow from that. The Tribunal does not accept that she ever lived with her husband’s family in Pakistan. It follows that the Tribunal does not accept any of her claims that flow from that. As the Tribunal does not accept that she separated from her husband in June 2013, or alternatively October 2013, the Tribunal does not accept any of her claims that flow from that.
The Tribunal does not accept that the applicant is of adverse interest to or at risk of serious harm or significant harm from her husband, any members of his family, her brothers or any other member of her family because of her separation from her husband if she returns to Pakistan now or in the foreseeable future. The Tribunal does not accept that she is of adverse interest to the Pakistani Police, Armed Forces or authorities in “nearly every government department” because of her husband’s family’s connections. The Tribunal does not accept that her mother or any other member of her family is of adverse interest to her husband or any member of his family.
The Tribunal is not satisfied that the applicant is at risk of serious harm or significant harm for disobeying the conventions of conservative social norms for married women by separating from her husband if she returns to Pakistan now or in the reasonably foreseeable future.
Having considered all the evidence, the Tribunal is not satisfied that there is a real chance of serious harm or a real risk of significant harm to the applicant for any of the reasons claimed if she returns to Pakistan now or in the reasonably foreseeable future.
Does Australia have protection obligations to the applicant under the refugee criterion?
Having considered all of the applicant's claims, individually and cumulatively, all the evidence and in view of the findings above, the Tribunal is not satisfied that there is a real chance that she will suffer serious harm for reason of her membership of a particular social group or any other reason set out in s.5J(1)(a) of the Act if she returns to Pakistan now or in the reasonably foreseeable future. Therefore, the Tribunal finds that she does not have a well-founded fear of persecution and is not a refugee as defined in s.5H of the Act. Accordingly, the Tribunal finds that she does not satisfy the criterion in s.36(2)(a) of the Act.
Does Australia have protection obligations to the applicant under the complementary protection criterion?
As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether she may nevertheless meet the criterion for the grant of a Protection visa pursuant to the complementary protection criterion.
Having considered all of the applicant's claims, individually and cumulatively, all the evidence and in view of the findings above, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on her, she will be subjected to cruel or inhuman treatment or punishment or she will be subjected to degrading treatment or punishment if she returns to Pakistan now or in the reasonably foreseeable future.
Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that she will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that she does not satisfy the criterion in s.36(2)(aa) of the Act.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) or s.36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act and who holds a Protection visa. Accordingly, she does not satisfy the criterion in s.36(2) of the Act.
DECISION

100. The Tribunal affirms the decision not to grant the applicant a Protection visa.

L. Symons
Member
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36 Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:

(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2021] AATA 3034

24 May 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction