1716825 (Refugee)

[2020] AATA 3826

1716825 (Refugee) [2020] AATA 3826 (17 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1716825

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Rodger Shanahan

DATE:17 August 2020

PLACE OF DECISION:  Sydney

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

Statement made on 18 August 2020 at 7:22am

CATCHWORDS

REFUGEE – protection visa – Pakistan – land dispute with brother – mental health issues –depression – inconsistent claims – credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5, 36, 65, 424AA, 499

Migration Regulations 1994 (Cth), Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 10 July 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Pakistan, applied for the visa on 28 April 2015.

   CRITERIA FOR A PROTECTION VISA

3. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

4. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

5. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

6. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.

7. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

8. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CLAIMS AND EVIDENCE

   Protection visa application

9. The applicant provided scant detail of his claim on his protection visa application, saying that he left Pakistan for ‘safety reasons’, that his life would be at risk if he returned, that he would be physically and mentally harmed. He did not know which people would do this but it would be done to stop him working and raising awareness of the poor people in his area.

10. He sought help from the police and went to another city but ‘they’ were still following him. Unknown people were trying to stop him from doing welfare work and this caused him great stress.

    AAT Hearing

11. There were some problems with the Microsoft Teams function and it was decided that the hearing would be conducted by telephone. He was asked whether he agreed to do this and he advised that he was. Asked what serious harm would happen to him if he returned to Pakistan, he claimed that he could be killed by his brother (politically influential with a criminal background) because he had taken the applicant’s land. He was asked whether it was, and advised that this was his only claim.

12. He said he had been in Australia for 14 years and he thought in February 2013 he should return to Pakistan to work on his land but his siblings told him his land was taken by his brother who was working on it. He lived in Multan which was [number] km from his land and village. He was going to see his dad who lived in the village to seek his advice.

13. Half of his family live in [Multan].  He was being driven to see his father when he felt they were being followed and he called his father who contacted the police who then escorted him. Asked for more details he said people were on their side and speeding up, they became worried and they pulled over at a petrol station and the police came around 15 minutes later and escorted them home.  His father told him not to worry as it was probably criminals or robbers as this was Pakistan and he wasn’t concerned as a result.

14. He told his father that he wanted to return to Pakistan to work with his land and his father said that his brother had taken it and he wouldn’t give it back. That brother was living in Bahawalpur, about [number] km away from the village in the opposite direction from Multan. He told his father he was struggling in Australia and his father told him that he didn’t speak to the applicant’s brother any more. The applicant tried to talk to his brother by phone but he wouldn’t answer and he went to talk to him in person once but his brother was harsh with him.

15. Asked about the land, he claimed that he owned one and a half muraba. His father gave it to him and his siblings equally and he signed it over to them. Asked if he had the land title deeds to his property, he claimed that he could get them from Pakistan and was asked why he had not previously provided them. No answer was given.

16. His brother also took a loan out on his property from the bank without the applicant’s knowledge and even signed the papers. Asked how the bank would give him the loan without documents he claimed that he gave them fake documents and it was very easy to do in Pakistan. His brother was also a member of political parties. His family members told him two or three months ago about the loan and it may have occurred last year or earlier.

17. Asked if he informed the police or told the bank about what had occurred and that he hadn’t authorised the loan, he claimed that he hadn’t because he had been in Australia for 14 years and there was so much politicking in Pakistan but he did talk to his father. It was put to him that if someone had taken out a loan in his name and for which he was liable, surely he would have informed the police or the bank. He claimed that he wasn’t in contact with anyone except the brothers and he wasn’t told which bank the loan was taken with.

18. Asked how the family knew his brother fraudulently took out a loan from a bank but didn’t know which bank it was, he claimed that his family talked to each other and gossiped; when he talked to his father, his father told him that he knew this too.  The family were busy with their lives and thought the applicant wouldn’t be coming back. He was asked if he had any evidence to support this in terms of documents or discussions with the banks, he claimed he could. It was put to him that he had some time to do this and he said that his family told him and probably didn’t have evidence.

19. His brother was cropping on his land and he first heard about this in 2013. Asked if he had taken him to court given he had the title deed and his father knew he had given the land to the applicant, he said the legal system was different in Pakistan. His brother did these type of things and had previously done time in prison.

20. He claimed that when he was in Pakistan and made a complaint but the police didn’t include his brother’s name. He was asked if he had engaged a lawyer in Pakistan to start the legal process to get his land back and he said he was too scared and had to leave Pakistan. It was put to him that he didn’t have to be there and he could have engaged a lawyer remotely or got his family to do it. He claimed that his family had their own lives and his father was old now, around [age] years old.

21. He also claimed that people had died at the hands of his brother – he took land from a woman and he sent people there and they killed two people. Asked how old his father was, he again said he was [age]. He was born in [year] and it was put to him that he was [10 years younger than the applicant claimed]. He was asked why he hadn’t engaged a lawyer since 2013 when he found out, he claimed Pakistan was different and if he wanted to waste his money he could but it wouldn’t amount to much – he knew the applicant was not doing well financially.

22. He claimed that his family wasn’t wealthy but owned some land and were doing ‘okay’.  He was again asked why he didn’t engage a lawyer to get his land back and he said he consulted with his family and they advised against it.  The main thing for him wasn’t the land, it was his life and he felt so threatened and he ran away and felt he was best done with it.

23. Asked why he thought he would be killed by his brother after the 2013 visit. He claimed that he went back to Pakistan in 2015 as he was depressed in Australia and had some incidents here. He went back to Pakistan and thought he may return and get married. He visited his father telling him about his life and possibly returning to Pakistan and was walking in the evening one night. His father owned a factory and was walking near there when three people in a van came up and one of them took him and put him in the van and punched him, took him behind the factory and told him to leave and never come back.

24. His father told the police who came. The applicant told his father that he knew his brother was behind it and his father thought the 2013 incident was linked to his brother. Without telling anyone he went to Lahore and returned to Australia. The police just made a report that wasn’t a FIR and they wouldn’t put his brother’s name in the report.  He thought then he would make his life in Australia. He returned [in] March 2015.

25. Asked why he thought they were connected to his brother, he claimed it was because he had nothing to do with anyone there and had effectively left the country and had never had an issue with anyone there – the land was the only issue. They were trying to scare him not kill him.

26. Asked where his mother lived, he said she lived with his father in the village. He had a good relationship with his parents and respected them a lot. He talked to his mother every 3-4 months and he talked to his father at least once a month but lately with the virus he spoke two to three times a month.

27. It was put to him that the Tribunal had asked for some medical documentation and he was asked when he began seeing Dr [A]. He said he left Melbourne in 2017 and began seeing Dr [A] in 2019 – asked again when he began seeing him he said early 2019 and agreed he had been seeing Dr [A] for 18 months. Before that he was attending a clinic in [Suburb 1] but he couldn’t get the medical certificate from her as there wasn’t enough time. He then said again he was seeing Dr [A] from early 2019 and agreed he had been on the medication he had outlined since early 2019. Since he had been in Pakistan he had never been treated for psychological issues as he had never been there for more than 30 days.  He had been seeing a psychiatrist in Melbourne around 2016.

28. Before he applied for protection he had been seeing medical people from around 2014 when a friend he lived with committed suicide.  He was struggling at the time with his work and health and was stressed and went to Dr [B] and she gave him medicine and referred him to a psychiatrist.

29. He was asked why he would still be at risk in 2020 given it was five years later, he claimed that he had been targeted in 2013 as well and his brother would still target him. It was a different world in Pakistan.  He wasn’t used to living in Pakistan any more.

30. He was asked whether he mentioned these incidents he had described on his protection visa application and he said he hadn’t because a friend filled it out for him at the time. He was stressed out and didn’t know how to fill it out and his friend said just to put the main things and that he was afraid to go back. He was asked what main things he mentioned, he claimed that he put what had happened to him.

31. Asked what claim he put on his form and why he said he would be harmed, he claimed that he said he feared being killed because of a few incidents and then explained further at interview. It was put to him that in his protection visa application he claimed that people were trying to stop him from doing welfare work but at the hearing he claimed it was about a land dispute and that he was beaten. The two claims were very different which raised questions about the truthfulness of his claim. He said the land was the main issue – the welfare thing was in his mind but he didn’t think the incidents had anything to do with this.  It was put to him that there was no mention of the land dispute in his claim and he again said he spoke about his fear and mentioned the land in his interview.

32. He was advised about s 424AA and it was put to him that in his DIBP interview he was asked where he had stayed in Pakistan and he said that his dad lived alone in the village and that his mother lived with his brothers’ in Multan and that this inconsistency may raise questions about his credibility. He claimed that she sometimes stayed with her sons and the grandchildren in Multan and sometimes with his father in the countryside.

33. Also under s 424AA it was put to him that the Tribunal had spoken to Dr [A] who said he had seen the applicant for the first time last week yet he had said he had gone to Dr [A] for 18 months. He claimed that he had seen Dr [A] previously but not for his mental issues but for lower back pain but didn’t take a certificate or had a medicare card. For his mental issues he used to go to [Suburb 1]. He was asked why Dr [A] would say he had only first seen him last week and he claimed that when he went to get the certificate he asked Dr [A] to write when he went 18 months ago but he said that he couldn’t find the applicant’s medicare card on the system and he could only mention the psychological visit. He claimed he believed he went to see Dr [A] when he went to [Suburb 2]. He had paid cash.

34. It was put to him that the doctor would have him on the record as a patient because there would be patient notes and a record of the visit. He claimed that he believed he had gone to see Dr [A] 18 months ago but they never recorded his presence. He argued with Dr [A] over this. It was put to him that Dr [A] also mentioned that the applicant felt homesick – he claimed that he was [age] now and it was coming to his mind that he was living a lonely life and so he was homesick. It was put to him that the doctor had said in 2015 that he hadn’t spoken to his parents for two years. He claimed that he was depressed and he ended a relationship with a girl in Australia and didn’t speak to his mother much and they only asked him about his work or study and he was depressed and didn’t speak to them as a result. The doctor also wrote that in 2012 he returned to Pakistan and received treatment for it. He claimed a doctor there prescribed medication for his pain (later clarified as stress). He saw doctors in Australia who treated it properly.

35. Recently he had been taking anti-depressants and sleeping tablets. In terms of seeing mental health specialists since he was in Sydney since 2015 he claimed he had seen GPs and had been giving medications. He had not seen any psychiatrists or psychologists in Sydney since he had arrived. He went to two sessions in Melbourne and they didn’t help and the psychiatrists told him he didn’t need to come and just needed to take medicine and go to social groups. It was put to him that the doctor recommended he go to psychotherapy for a year and he claimed he was only allowed to go twice on his medicare card so stopped going. He didn’t feel like going to group therapy and just went to the GP.

36. His siblings were all married and one sister [married] in 2009 and he went to that wedding. His other sister was married when the applicant was [age].  He reiterated that he had a fear of his life in Pakistan and this was why he was taking medication. It was put to him that the medical notes said he was depressed because of his life in Australia, he was [an occupation] and life wasn’t turning out as he hoped.

37. Asked why his brother wanted to kill him as he had taken his land, the applicant had done nothing about the bank loan or referred him to the police or engaged a lawyer. He was asked why he was bothered and didn’t just continue to do as he wished. He claimed that Pakistan was different to Australia and that his brother was behind these incidents.  This actually happened and he had tried to make a report against his brother but he couldn’t. His brother had already killed people in a land dispute.

38. He was invited to provide additional information such as a statutory declaration about his earlier visits to his GP, land title documents or information about the Pakistani land dispute court system.

    CONSIDERATION OF CLAIMS AND EVIDENCE

39. The applicant first arrived in Australia on a student visa in March 20006 and applied for protection on 28 April 2015.  The Tribunal sighted a copy of his Pakistani passport as proof of his identity and his claim will be assessed accordingly.

40. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal originally sought to conduct the hearing via MS teams however the audio could not be connected and, believing it was reasonable to hold a hearing by telephone the applicant was asked and agreed to proceed in this manner. In arriving at this course of action the Tribunal had regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.

41. The applicant is [an age] year-old single male from Haripur in Pakistan.  He claimed that if he returned to Pakistan he would be killed by his brother who had taken over the applicant’s land.              

1. In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth.  Nor can significant inconsistencies or embellishments be lightly dismissed.  The Tribunal is not required to accept uncritically any and all claims made by an applicant.

2. I took into account medical evidence provided to the Tribunal regarding his mental health however lend it little weight in explaining the reasons for his inconsistencies and omissions. None of the reports he provided indicate any problems with memory loss or having a difficulty in recalling events.  I also note that he claimed to have been treated a Sydney-based GP since early 2019 yet when the GP was asked he advised the Tribunal that he had only seen the applicant the week before for the first time. I do not accept that applicant’s claim that he had seen the doctor previously but had paid in cash and therefore there was no record of him. Doctors take notes on their patients and if he had attended it is reasonable to believe that there would have been a record of his visit.  

3. Given this, I am satisfied that he was given a real and meaningful opportunity to participate in his hearing even though it was conducted by telephone. Overall, I found the applicant’s evidence regarding his claims to lack credibility.  For reasons set out below I did not find the applicant to be an entirely reliable, credible or truthful witness, and find that he fabricated his claims in order to be granted a protection visa.

   Land Claim

4. I do not accept that the applicant’s brother has taken the applicant’s land and taken out a bank loan against it, that the applicant was followed by unknown men in a car during a visit to Pakistan in 2013 or that he was detained, beaten and warned not to return during a 2015 visit.  To begin with, his protection visa application makes no mention of this claim. Indeed, it is quite vague and makes no mention of his brother being the threat or that he was targeted in a land dispute, simply claiming that he would be targeted for helping the poor and doping welfare work and that he didn’t know who would target him.

5. I do not accept that because he was stressed he had a friend fill it out for him. In his protection visa application he indicated that he received no help in filling out the form (folio 8), and it is reasonable to believe that he would have noted this person if they had in fact assisted him. It is also reasonable to believe that if he applied for a protection visa a month after allegedly leaving Pakistan because he had been detained, beaten and warned not to return at the time knowing that his brother had stolen his land and had a criminal past for the same and had killed people then this would have featured on his protection visa claim. 

6. Whilst I accept that the applicant was stressed due to life circumstances including the suicide of a housemate in 2012, I am not satisfied that explains the inconsistency between his protection visa claim and his oral claim at hearing.  The two claims were entirely different and he also offered no evidence that he ever worked for the poor or on welfare projects.

7. Even though he claimed that the land had been taken by 2013, this relies entirely on his own oral testimony, which I have found lacks credibility. He has also not provided any evidence that he has taken any steps to retrieve it. He had not sourced copies of the land title documents in the five years since he had applied for protection and was asked to do so by the Tribunal. The Tribunal received them post-hearing. I accept that he owns land but there is nothing in the documentation that shows when or whether it was transferred from his father, so it is of very limited value in supporting his claim other than to show that he does own land in Pakistan.  

8. He provided no evidence that his brother had taken a loan out on the land, nor did he even know which bank it was taken out with. Although he claimed he was just relaying what his family told him, given the loan would have been guaranteed against his land it is reasonable to believe that he would have asked that the family seek out more information so that he or they could intervene with the bank if it were indeed true.

9. I do not accept that he was unable to do it financially given he had not even examined what the process cost, that his family advised him against it or that his life meant more to him than the land. These all rely on his oral testimony, which I have found lacks credibility.

10. I also do not accept that he didn’t tell the bank because he had been in Australia for 14 years or that there was so much politicking. Simply being in Australia would not have precluded him from informing the police or the bank and he could have used his family members in Pakistan to support him in this. Indeed he said that he talked to his father but he did not say that he asked his father to help him with the bank or the police. I also do not accept that he did not do it because of the politicking – it was not clear what he meant by this nor how it was the cause of his inability to report the illegal behaviour. He had claimed that his brother was politically influential but I do not accept this to be the case – no other evidence was provided to support the claim and it relies on his oral evidence, which for a number of reasons outlined here I have found lacks credibility.

11. Neither has the applicant made any attempt to recover the land through legal means. Country information indicates that there are legal avenues to recover one’s land through the court system but that the process can take years to resolve given the number of claims made and the prevalence of forged documents.[1]  Given there would be a paper trail of the father’s apportioning of land to his children, it is reasonable to believe that they would have a strong case to overcome any fraudulent documents put forward.  But simply because the process is slow is no reason for not instituting legal proceedings. I do not accept that he was in fear of his life more than losing the land, given he could still have instituted proceedings whilst he was safe in Australia. 

    [1] UK Home Office Country Information and Policy Note, Pakistan: Land Disputes, January 2017

12. I do not accept that the applicant’s brother was a member of a political party, that he is politically connected or that the police had not included his name on any reports made against him. These claims rely entirely on the applicant’s oral; testimony which I have found lacks credibility. And because I do not accept that there is any land dispute with his brother I also do not accept that the applicant was ever followed by people in a vehicle in 2013 or that he was detained, beaten and warned in 2015. I have taken into account doctor’s reports that say he reported this occurrence to them, however I lend it little weight given my concerns about his credibility, particularly his willingness to falsify the length of his medical treatment by Dr [A] in Sydney.     

13. Because of the applicant’s lack of credibility and the fact that I have not accepted that his brother was a criminal who defrauded the bank and stole the applicant’s land, I also do not accept that his brother had also taken land from a woman, or that two people had been killed by men sent by his brother to resolve the dispute.

    Other Issues

14. I do not accept that he would be physically or mentally harmed by unknown people for raising the awareness of the poor in the area or for other welfare work. To begin with I do not accept that he was ever involved in welfare work. He made this claim in his written application but never expanded upon it or provided any evidence whatsoever of his alleged work with the poor or any other marginalised group.

15. I also do not accept that he would still be at risk in 2020 because his brother would still target him, it was a different world in Pakistan and he wasn’t used to living there any more. To begin with I have not accepted that his brother has ever targeted him. I also note that, while he has been in Australia for a long time he has also returned to Pakistan on several occasions, is obviously close to his family and has expressed homesickness for Pakistan (see below). Given this I cannot foresee any problems with him re-integrating into Pakistani society.

16. Although he has not made a direct claim regarding it, I will address his mental health situation for completeness’ sake. I note that the applicant received some treatment for depression and post-traumatic symptoms in Melbourne until 2016. The PTSD was referred to in a doctor’s note in August 2014 as being the result of the suicide of his housemate. In January 2016 a psychiatrist’s note stated that he alleged that he’d been abducted in Pakistan, which was also noted in his GP’s notes in August 2016, possibly in reference to the psychiatrist’s report.

17. Although he claimed to have been treated in Sydney for this he provided no evidence of this other than a visit to a GP a few days before his hearing. Post-hearing he provided copies of his medical history in Sydney, including admission to [a] Hospital – there was no mention of any prior history of mental health issues or his alleged abduction, although it did say he had been a heavy drinker and social drug user. It is reasonable to believe that he would have mentioned having a history of mental health issues if he was also telling the doctor about heavy drinking and social drug use.

18. I am willing to accept that he may have suffered from PTSD following the death of a housemate by suicide in 2012, however there is no indication that he has sought or required treatment related to this since 2016. I do not accept the diagnosis of post-traumatic stress following an abduction in Pakistan because I have found this event to have been fabricated. I am also willing to accept that he was treated for depression because of his inability to economically advance himself in Australia, his lack of residency and a relationship breakdown.

19. While I accept these are stressors I am satisfied that his situation is neither chronic nor acute given his lack and that he would be able to access suitable mental health care in Pakistan. Country information indicates that while mental health treatment is not as readily available as it is in Australia, psychiatrists and psychologists can be accessed at tertiary healthcare and private healthcare facilities, and medication is readily available.[2]  I also note that a presidential program to promote mental health in Pakistan was launched in October 2019 that will improve access to mental health.[3] 

    [2] Country Policy and Information Note, Pakistan: Medical and Healthcare Issues, August 2010

    [3] Mental Health care in Pakistan boosted by the highest office, The Lancet, 21 December 2019

20. Medical reports have indicated that he sought and received treatment on a previous visit to Pakistan and that he is homesick for Pakistan and his family. Although he claimed that he attended two psychotherapy sessions in Melbourne because that was all he was able to on his Medicare card and that he didn’t like going so just went to his GP. No written evidence was provided regarding this Medicare limit nor was any found by the Tribunal. I ma satisfied that the applicant has had limited need to access mental health providers in Australia, particularly since he has been in Sydney and that, if the applicant were to return to Pakistan I am satisfied that he would be able to access appropriate medical treatment and would be close to his family who would provide support to him.

21. As the applicant hasn’t raised any other claims to fear persecution and, having had regard to all the evidence, and the applicant’s claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason either now or in the reasonably foreseeable future.

    Complementary Protection

22. Because I do not accept that the applicant was ever working to raise awareness of the poor or on welfare work, that his brother ever stole his land, took out a loan using the land as collateral or that the applicant was ever followed, detained or beaten by people sent by his brother, or that he would be unable to access any required medical treatment in Pakistan, I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.

23. As a consequence I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).

    CONCLUDING PARAGRAPHS

24. 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).

25. 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).

26. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

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

    Rodger Shanahan
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation

    …

    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)     that is not inconsistent with Article 7 of the Covenant; or

    (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)     that is not inconsistent with Article 7 of the Covenant; or

    (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)     for the purpose of intimidating or coercing the person or a third person; or

    (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    receiving country,  in relation to a non-citizen, means:

    (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    5J     Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K    Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L    Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

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

    5LA Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (2A)A non‑citizen will suffer significant harm if:

    (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)     the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …