1716861 (Refugee)

[2017] AATA 3026

1716861 (Refugee) [2017] AATA 3026 (15 December 2017)

CORRIGENDUM

DIVISION:Migration & Refugee Division

CASE NUMBER:  1716861

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Roslyn Smidt

DATE OF DECISION:  15 December 2017

DATE CORRIGENDUM

SIGNED:12 February 2018

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

Paragraph 10 (third sentence) of the Decision Record

He visited Bangladesh again from [January] 2011 until [February] 2011.

Should read:

He visited Pakistan again from [January] 2011 until [February] 2011.

Roslyn Smidt
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1716861

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Roslyn Smidt

DATE:15 December 2017

PLACE OF DECISION:  Sydney

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

Statement made on 15 December 2017 at 2:50pm

CATCHWORDS
Refugee – Protection Visa – Pakistan – Federal Court remittal – Imputed political opinion – Affiliation with Muttahida Qaumi Movement – Secularist – Fear of violence – Credibility concerns – Lack of evidence – Inconsistent claims – Lack of basis for fear of harm

LEGISLATION
Migration Act 1958, ss 5(1), 36, 65, 417, 499
Migration Regulations 1994, 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 to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who is a citizen of Pakistan applied for the visa [in] July 2014 and the delegate refused to grant the visa [in] February 2015.

3. The Department’s decision was affirmed on 23 November 2016.  [In] July 2017 the application was remitted by the court for reconsideration as the Tribunal had erred by failing to consider the applicant’s claim that he was at risk of harm on account of general instability in Pakistan in the context of complementary protection.

4. The applicant appeared before the Tribunal on 29 November 2017 to give evidence and present arguments. The Tribunal also received oral evidence from his mother. The applicant was represented in relation to the review by his registered migration agent.

   THE RELEVANT LAW

5. 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, the applicant 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.

6. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

8. 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 a protection 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 the applicant 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’).

9. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment 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.

   BACKGROUND

10. The applicant is an [age] year old single of man of Muslim religion from Karachi in Pakistan. He was granted a sub-class 445 visa [in] June 2009 and first entered Australia [in] September 2009. He returned to Pakistan [in] October 2009 and remained there until [January] 2010 when he returned to Australia. He visited Bangladesh again from [January] 2011 until [February] 2011. He has remained in Australia since that time.

11. The applicant’s mother married an Australian permanent resident in 2007. She and his younger brother entered Australia on a Subclass 309 in April 2008. The applicant was not included in this application. At the hearing he explained that his father did not want him to leave and he did not want to leave his father alone. However, he missed his mother and brother and later applied for and was granted a sub-class 445 dependent child visa. Both the applicant’s visa and his mother’s visa were temporary. 

12. [In] April 2010 a delegate of the Minister for Immigration refused to grant the applicant, his mother and his brother permanent visas as the applicant’s mother’s relationship with her sponsor (her Australian husband) had broken down. An application for review of that decision was lodged with the Migration Review Tribunal on 4 May 2010. On 26 April 2012 a differently constituted Tribunal found that it did not have jurisdiction in the applicant’s case as he was not included in the original sub-class 309 application and had never been granted a sub-class 309 visa. The applicant’s mother and brother were granted permanent visas by the [Tribunal].

13. The applicant’s father worked as [an occupation] for [a company] before retiring a few years ago. After the applicant left Pakistan he remarried and moved to [Country 1]. His current place of residence is somewhat unclear but he appears to spend time in both [Country 1] and Pakistan. The applicant remains in occasional contact with his father.

14. The applicant applied for a protection visa [in] July 2014. His application was refused by a delegate of the Minister [in] February 2015. He applied for review of that decision on 25 February 2015. On 14 July 2016 he advised the Tribunal that he had applied for protection in order to access Ministerial intervention in his case. In light of this information a Tribunal officer contacted his representative to determine whether he wished to attend a hearing. On the 23 November 2016 the Tribunal was advised that the applicant did not wish to attend a hearing and requested a decision on evidence already provided.

15. On 23 November 2016 the Tribunal affirmed the delegate’s decision. [In] July 2017 the case was remitted for reconsideration as the Tribunal had failed to consider the applicant’s claim that he feared harm as a result of the general instability in Pakistan in the context of complementary protection.

    THE APPLICANT’S ABILITY TO PROVIDE

16. The applicant was invited to attend a hearing of the Tribunal on 22 November 2017 but failed to attend.  He provided evidence that he had been unable to attend at [a hospital] at the time. 

17. At the hearing on 29 November 2017 The Tribunal asked if the illness which had resulted in the applicant seeking medical care on 22 November 2017 was for a reason which might have any impact on his ability to provide evidence. He said that he suffered from [various medical conditions] and that was why he had gone to the hospital. However, he said that he was ready and able to provide evidence to the Tribunal.

18. During the hearing the applicant responded to the Tribunal’s questions and provided his evidence in a reasonably coherent fashion. The Tribunal is satisfied that his ability to provide evidence was not significantly hampered by his mental or emotional state.

    THE APPLICANT’S CLAIMS

19. The applicant’s protection visa application was prepared by a lawyer/registered migration agent. It states that applicant had never been personally threatened and had not suffered any physical harm in Pakistan, but he was concerned for his safety because of the dangerous and volatile situation in his homeland; because his father was affiliated with MQM [senior official, Mr A] who was killed in 2003 and because his secular views on religion and politics were not tolerated in Pakistan.

20. It was also submitted that as a result of the situation in Pakistan the applicant had been anxious and suffered from mental health issues. It was also submitted that he feared psychological harm, mental anguish and emotional torment if he is separated from his family

21. The applicant was invited to attend an interview with the delegate [in] February 2015, but did not attend and failed to provide any reason for his absence.

22. [In] December 2016 the applicant sought Ministerial intervention under s417 of the Migration Act. In a statement dated [in] December 2016 he stated that he had established a small [business] and was the backbone of his family in Australia. He added that he would be alone without family support if he returned to Pakistan because his father had remarried and was living permanently in [Country 1] with his new wife. A statement from the applicant’s father dated [in] November 2016 also states that he now lives permanently in [Country 1].

23. On 27 November 2017 the applicant’s representative provided a submission which states that the applicant would be at risk of harm if he returned to Pakistan because of political opinions imputed to him because of his association with his father and because his father had forced him to work for the MQM, in part because this work provide him (the applicant’s father) with a source of income.  The applicant said that there had been numerous incidents when he had been beaten up or verbally abused because of his affiliation with the MQM. It was also submitted that holding secular views could have serious repercussions.

24. At the beginning of hearing on 29 November 2017 the applicant provided the following documents:

    ·A copy of an Urdu language letter or report to [a police station] dated [in] 2009 accompanied by two translations which state that people were demanding that the applicant join the MQM and threatening to harm him and his family if he refused.  It also states that MQM members sometimes [vandalized his property] and got into fights with him. On one occasion he was beaten and [he suffered injuries].

    ·A medical certificate from [a medical officer] dated [in] 2009 which states that the applicant had [various injuries].

    ·A copy of an Urdu language letter or report to [a police station] dated [in] 2008 accompanied by a translation which states that the applicant was stopped on his way to work by [a number of] boys from the MQM against whom he had previously lodged a complaint [beat] him for no reason. He said that they had also followed him and threatened to kill him.

    ·A copy of an Urdu language letter or report to the [another police station] dated [earlier in] 2008 accompanied by a translation which states that the applicant had been stopped and beaten by [a number of] members of the MQM who were following him and threatening to kill him.

    ·A doctor’s certificate which appears to have been issued in 2008 which appears to state that the applicant had been treated for [various injuries].

25. The applicant’s relationship with his father was discussed. He said that his parents had separated in 2004 after which he chose to live with his father. He did not apply to accompany his mother to Australia in 2007 because his father wanted him to remain in Pakistan and he did not want to leave his father alone.

26. The applicant said that his father had been deeply involved in the MQM.  He was [a senior member] and organised activities such as [description of activities]. He said that he was a close associate of [Mr A] who held a similar position in the MQM, but in a different chapter. He also claimed that his father was [Mr A’s] right hand man. He claimed that from the age of about [age] his father forced him to [undertake various illicit activities] for the MQM. He also attended the MQM club were members met.

27. The Tribunal noted that it appeared the applicant was claiming that he had been involved in criminal activities in Pakistan and observed that it seemed unlikely that the MQM would have sent him rather than an adult to carry out the claimed activities. He said that the MQM used young people because they could be manipulated and because they wanted to build up the group for the future. He also claimed that his father had forced him to do these things because it provided him (the applicant’s father) with a source of income. 

28. The Tribunal noted that [Mr A] appeared to have held a much more senior position within the MQM than the one he claimed his father held.[1] The applicant maintained his claims were true.

    [1] [Source deleted].

29. The Tribunal noted that the applicant had claimed in his recent submissions that he had been beaten because of his association with the MQM and asked for details. The applicant said that he had been beaten twice. The first assault occurred sometime in 2008 when he refused to continue working with the MQM and he was beaten by MQM workers. After this incident he went to the police and to a doctor. The second assault was in 2009 when he was stopped by MQM workers when travelling in his father’s car. The workers wanted to use the car to carry guns and when he refused they beat him and hit him on the head with a gun. Someone saw what was happening and called the police. After that his attackers ran away.

30. Later in the hearing the documents which the applicant had provided at the beginning of the hearing were discussed. The applicant’s responses when asked about these documents were confused. However, in essence he claimed had been beaten on the three occasions indicated in the documents provided and threaten, beaten or involved in fights on a number of other occasions by members of the MQM.

31. The Tribunal noted that the applicant had previously claimed that he was at risk of harm because of his own and his father’s association with the MQM, but his evidence at the hearing appeared to relate solely to fear of the MQM itself. He said that he was fearful of the MQM and opponents of the MQM who had also threatened him, but had never harmed him.

32. The Tribunal noted that the applicant had said nothing about working for the MQM or being beaten by MQM members prior to his November 2017 submission. The applicant responded that when he arrived in Australia he thought he would be able to get permanent residency because of his relationship with his mother and his first representative had recommended that he seek access to the Minister and had not questioned him about the situation in Pakistan. The Tribunal noted that the applicant had claimed his father was a member of the MQM and a close associate of [Mr A] in his initial application and observed that his first representative was a lawyer with many years of experience in the field and it therefore seemed unlikely that he would not have sought information which might have been relevant to an application for protection. The applicant maintained that his claims were true.

33. The Tribunal advised the applicant that his failure to mention his alleged involvement in the MQM and the problems this had caused him prior to the hearing cast doubt on these claims. He was also advised of advice from DFAT which indicated that it was relatively easy to obtain fraudulent documents in Pakistan and that the late provision of the documents received at the hearing also cast doubt on their authenticity. He maintained that his claims were true and that the documents were genuine.

34. The Tribunal noted that the applicant had obtained a visa to come to Australia [in] June 2009 and but had remained in Pakistan until [September] 2009. The applicant said that his step-father had paid for his travel and did not have the funds prior to September. The Tribunal noted that the applicant had returned to Pakistan about 3 weeks after arriving in Australia remained there for about three months before returning to Australia and that he had visited Pakistan again in 2011. The applicant said his step-father had sent him back to Pakistan in 2009 because he was not ready to accommodate him in Australia and he returned in 2011 because his father was unwell.

35. The applicant claimed that during his visit in 2011 MQM members came to his house to try to force him to participate in their legal and illegal activities again, so he ran away and returned to Australia. He said that if he returned to Pakistan his father and the MQM would continue to pressure him to join in these activities and his life would be at risk if he refused. He said that the MQM was like an outlaw bikie gang and had a “blood in blood out” rule.

36. The Tribunal asked the applicant where his father currently resided. He said that his father lived in Pakistan. The Tribunal noted that according to his request for Ministerial intervention his father had remarried and resided permanently in [Country 1]. The applicant’s response was confused, but in essence he said that his father was living mostly in Pakistan and had been in Karachi when they last spoke about a week ago.

37. The applicant confirmed that he was a Muslim and said that he prayed at home. However, he said that he did not support extremism and believed in a secular state and government. The Tribunal noted that he had previously claimed that he would be at risk of harm if he returned to Pakistan because he held secular views. He said that while he was in Pakistan he had been forced to pray and preach with MQM workers and added that since his arrival in Australia he had become more secular. The Tribunal noted that the MQM was a secular political party[2] and while members might well pray together it seemed unlikely that they would have forced him to preach or participate in other religious activities. The applicant responded that the MQM might be secular in public, but they used religion to further their aims. 

    [2] DFAT Country Information Report Pakistan  15 January 2016

38. The Tribunal advised the applicant that, while it was aware of the problems caused by religious extremists in some areas in Pakistan, it understood that many middle class Muslims shared his views and that such people were not generally at risk of harm in Pakistan. The applicant agreed that this was true, but said that the future was uncertain and he could be harmed for reasons connected indirectly to religion. After some discussion it was established that the only occasion on which the applicant had experienced any problems relating to religion was in about 2006 when he expressed his views to his neighbour’s [associate] who disagreed and made a threatening comment. His father warned the [associate] to leave him alone and nothing further happened.

1. The Tribunal asked the applicant to confirm that his fears on return to Pakistan related to primarily to his claimed involvement with the MQM. He said that this was correct, but the future was uncertain and anything could happen in a place like Pakistan.

2. The applicant’s mother also gave evidence at the hearing. She said that her former husband [the applicant’s father] had also pressured her to join the MQM. She claimed that he had locked her up and forced her to wear hijab because of his membership of the MQM and abused her in other ways. The Tribunal noted that the MQM was a secular party and it seemed somewhat unlikely that her husband would have pressured her to wear hijab because he belonged to the MQM. She responded that he had wanted to show the party that he controlled his family. She also spoke about her desire to have her son remain with her in Australia and what she saw as the injustice of the decision to refuse him a permanent visa at the same time as her.

3. The Tribunal received a written submission from the applicant’s representative on 13 December 2017. In repeats the essence of the claims set out above.

   CONSIDERATION OF THE APPLICANT’S CLAIMS

4. The Tribunal did not find the applicant to be an entirely truthful or credible witness.

5. The Tribunal does not accept that the applicant’s father forced him to participate in MQM legal or illegal or religious activities or that he was threatened, beaten or otherwise abused by members of the MQM or anyone else at any time prior to his most recent arrival in Australia. It is not plausible that even an inexperienced and barely competent representative would have failed to obtain this information or that the applicant would have thought it was relevant to mention that his father was a member of the MQM, but not mentioned that he himself had been forced to participate in the criminal activities of the MQM or that he had been assaulted a number of times by MQM members. If the applicant had been forced to work for the MQM or had been threatened or abused by the MQM or anyone else the Tribunal believes that he would have provided this information to his first representative and it would have been included in his initial application. In addition the Tribunal finds the confused and contradictory nature of the applicant’s evidence at the hearing regarding the frequency and nature of these assaults a further indication that these claims are not true.

6. In reaching this conclusion the Tribunal has noted the letters and other documents provided by the applicant at the hearing. However, as pointed out at the hearing, fraudulent documents can easily be obtained in Pakistan.[3] Furthermore, the documents provided by the applicant could have easily been manufactured. In these circumstances and in light of the finding set out above and the failure to provide these documents prior to the hearing the Tribunal finds that they are not genuine and has given them no weight.

   [3] DFAT Country Information Report Pakistan  15 January 2016

7. As the Tribunal does not accept that the applicant’s father forced him to participate in MQM activities in the past there is no evidence to suggest that his father or anyone else would attempt to force him to join or participate in MQM activities of any kind if he returned to Pakistan.

8. Given the applicant’s willingness to concoct claims the Tribunal also rejects the claim that the applicant was threatened by opponents of the MQM in Pakistan because of his father’s involvement with group. The Tribunal also notes while the applicant claimed that he was fearful that he might be harmed because of his father’s involvement with the MQM in his initial application the claim that he had been personally threatened by members of the group was not mentioned until the hearing, and only after he was reminded that his earlier evidence suggested that he was fearful of opponents of the MQM. The Tribunal finds this to be a further indication that the applicant has not provided honest or accurate evidence regarding his fears in relation to the MQM.

9. The applicant is not and never has been a supporter of the MQM and there is no suggestion that he would support the group in anyway if he returned to Pakistan.  The Tribunal strongly doubts that the applicant’s father was an active or senior member of the MQM in Pakistan. In any event, even if this claim is accepted at face value there is no credible evidence before the Tribunal which suggests that the applicant experienced problems of any kind because of this in the past or that he would face problems because of his father’s past or present political views or associations if he returned to Pakistan.

10. The Tribunal is not satisfied that the applicant faces a real chance of suffering serious or significant harm on return to Pakistan because he or his father support or would be perceived to support the MQM.

11. The Tribunal accepts that the applicant holds secular views in relation to issues such as the separation of religion and politics. However, as he agreed at the hearing many middle class Pakistani’s hold similar views and this does not generally place them at risk of significant harm in Pakistan. The only problem he appears to have faced because of his views was a threat in 2006 which was never carried out. The evidence does not suggest that the applicant has or would engage in activities which would cause him significant problems with other Muslims including extremists or fundamentalists.  The Tribunal is not satisfied that he faces a real chance of suffering serious or significant harm on return to Pakistan because he holds secular views in relation to political issues or related matters.

12. The Tribunal has also considered the applicant’s claim in his initial application that he may face serious or significant harm at some time in the future because of the violent and volatile situation in Pakistan. When asked about his fears at the hearing the applicant did not repeat this claim in the same terms, but spoke about an uncertain future in which anything could happen in which anything. The Tribunal acknowledges that some areas in Pakistan (including the applicant’s city Karachi) and some sections of Pakistani society have suffered from religious, political and criminal violence in recent years. However, there is no suggestion that he or any other member of his family experienced harm in the past because of the general situation. Furthermore, the Australia Department of Foreign Affairs advises that the Pakistan military operations against terrorist and militant and criminal groups in Karachi have substantially reduced the level of generalised and sectarian violence and crime in the area.[4]  In these circumstances the Tribunal is not satisfied that the applicant faces a real chance of experiencing serious or significant harm if he returns to Pakistan because of the general situation in Pakistan in general or Karachi in particular.

    [4] DFAT Country Information Report Pakistan  15 January 2016

13. With regard to the evidence provided by the applicant’s mother, it may be that her former husband was violent towards her and pressured her to dress in a particular way in Pakistan. However, there is no credible evidence before the Tribunal which suggests that the applicant was abused by his father in the past or that he would be abused by his father in the future and the Tribunal is not satisfied that the applicant faces a real chance of experiencing serious or significant harm from his father if he returns to Pakistan.

14. Finally, the Tribunal has considered the claim that the applicant fears psychological harm, mental anguish and emotional torment if he is separated from his family in Australia. While this claim was not repeated in the same terms during the hearing both the applicant and his mother spoke of their desire to remain together as a family unit and the impact that separation would have on them. The Tribunal accepts that the applicant would be upset and distressed if he was separated from his mother and brother. However, if the applicant is separated from his family because his protection visa application fails, this would be the result of the operation of Australia’s migration laws and as such would not constitute serious harm inflicted for any of the reasons in the Convention or significant harm as defined in s. 5 (1), which requires that harm be intentionally inflicted and exclude harm arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant on arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of International Covenant on Civil and Political Rights.

15. After considering the applicant’s claims individually and cumulatively and taking account of all the relevant evidence the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the Convention or that there are substantial grounds for believing that, as a necessary and foreseeable consequence being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm.

    CONCLUDING PARAGRAPHS

16. 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 the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

17. 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).

18. 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

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

    Roslyn Smidt
    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.