1721180 (Refugee)
[2021] AATA 5467
•5 August 2021
1721180 (Refugee) [2021] AATA 5467 (5 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1721180
COUNTRY OF REFERENCE: Pakistan
MEMBER:Dr Colin Huntly
DATE:5 August 2021
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.
Statement made on 05 August 2021 at 12:46pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – political opinion – Pakistan People’s Party (PPP) –kidnapped – Tehreek-e-Taliban Pakistan (TTP) – intimidated by members of Jamaat e Islami – voluntarily returned to home country – brother killed – particular social group – women in Pakistan who teach primary school aged children – supporter of the education of women and girls – harassed by supporters of the TTP – minor political profile – delay in seeking protection – inconsistent evidence – credibility issues – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 33
Australian Citizenship Act 2007 (Cth), s 12
Migration Act 1958 (Cth), ss 5, 5AAA, 36, 65, 91, 104, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
BBK15 v MIBP [2016] FCA 680
BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184
Chan v MIEA (1989) 169 CLR 379
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
CQG15 v MIBP [2016] FCAFC 146
DAJ19 v MI [2020] FCCA 2141
Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445
MIEA v Guo (1997) 191 CLR 559
MIMA v Haji Ibrahim (2000) 204 CLR 1
MIMA v Khawar (2002) 210 CLR 1
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
MMM v the Minister for Immigration and Multicultural Affairs (1998) 90 FCR 324
MZAAJ v MIBP [2015] FCA 478
SZLGP v MIC [2008] FCA 1198
SZSHV v MIBP [2014] FCA 253
SZSPT v MIBP [2014] FCA 1245
SZTEQ v MIBP [2015] FCAFC 39
SZTES v MIBP [2014] FCCA 1765
VSAI v MIMIA [2004] FCA 1602
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 to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).
2. The applicants, who claim to be citizens of Pakistan, applied for the visas on 8 August 2013 and the delegate refused to grant the visas on 24 August 2017.
3. The applicants were represented in relation to the review by their registered migration agent. The applicants appeared before the Tribunal on three occasions to give evidence and present arguments.
4. The first hearing with the applicants was held on 22 March 2021 and the second hearing was held on 8 June 2021. Following the second hearing, the applicants were invited to make further written submissions on or before 9 July 2021. The form and content of the submissions necessitated a third and final hearing, which was held on 26 July 2021.
RELEVANT MIGRATION HISTORY
5. The applicant’s movement history is as follows:
Applicants 1–4 arrived in Australia on [date] December 2007 travelling on a [Student] visa.
Applicants 1–4 returned to Pakistan on [date] February 2009 and returned to Australia on [date] March 2009.
Applicants 1–4 returned to Pakistan on [date] January 2011 and returned to Australia on [date] April 2011.
Applicant 5 was born in Australia on [date].
Applicant 1 applied for a Protection visa in Australia on 9 August 2013 on behalf of the family unit.
Applicant 6 was born in Australia on [date] and is subsequently included as a member of the family unit for the purposes of the Protection visa application.
Application for a Protection visa was refused by a delegate of the Minister by decision dated 24 August 2017.
6. The applicant then applied to this Tribunal for a review of that refusal decision on 10 September 2017.
IDENTITY
7. Applicants 1, 2, 3 and 4 provided copies of their Pakistan passports to the Department with the application for protection. There is no reason to doubt the validity of these documents. I have reviewed these documents and have had the opportunity to interview Applicant 1 and Applicant 2 on two occasions.
Applicant 5 and Applicant 6
8. The Tribunal has received a copy of the birth certificate of secondary Applicant 5 [and] secondary [Applicant 6]. The Tribunal finds that the natural father of both applicants is Applicant 1, and their natural mother is secondary Applicant 2, both of whom are found to be citizens of Pakistan. I find that Applicants 5 and 6 were born in Western Australia to parents, both of whom are citizens of Pakistan.
9. As at the date of this decision, the eldest of these children (Applicant 5) is approximately [age].
Prima facie, the citizenship of the parents of secondary Applicant 5 and secondary Applicant 6 is determinative of the citizenship of these applicants under Australian domestic law. The relevant provision is found at s.12 of the Australian Citizenship Act 2007 as follows (underlining for emphasis):
Citizenship by birth
a.A person born in Australia is an Australian citizen if and only if:
(a) a parent of the person is an Australian citizen, or a permanent resident, at the time the person is born; or
(b) the person is ordinarily resident in Australia throughout the period of 10 years beginning on the day the person is born.
…
The biological parents of secondary Applicant 5 and secondary Applicant 6 are both citizens of Pakistan and hold no claim to alternative citizenship. Accordingly, by operation of s.12(1)(a) of the Australian Citizenship Act 2007 above, the Tribunal finds that, at the date of this decision, neither secondary Applicant 5 nor secondary Applicant 6 are Australian citizens by absorption.
In the alternative, secondary Applicant 5 and secondary Applicant 6 prima facie appear to be, citizens of Pakistan by decent by virtue of the Pakistan Citizenship Act 1951 at s.5 which provides as follows:
5. Citizenship by descent.—
Subject to the provision of section 3 a person born after the commencement of this Act, shall be a citizen of Pakistan by descent if his parent is a citizen of Pakistan at the time of his birth …
The Tribunal finds that secondary Applicant 5 and secondary Applicant 6 are both Pakistan citizens by decent by virtue of s.5 of the Pakistan Citizenship Act 1951.
On the basis of the information before the Tribunal, I find that all applicants are citizens of Pakistan, which is also their receiving country for the purposes of the refugee and complementary protection assessments.
There is nothing to suggest that the applicants have a right to enter or reside in a third country for the purposes of any assessment under s.36(3) of the Act.
WHAT IS THE BACKGROUND OF THIS APPLICATION?
Introduction
All members of the family unit, with the exception of Applicant 5 and Applicant 6, originate from the city of Abbottabad, in Abbottabad District in the Hazara region of Khyber Pakhtunkhwa province, Pakistan.
Applicant 1 seeks protection in Australia under s.36(2)(a) of the Act, and claims to hold a well‑founded fear of persecution in Pakistan now and for the foreseeable future for the essential and significant reason of his longstanding membership of, and support for, the Pakistan People’s Party (PPP) (or its provincial equivalent, the Pakistan People’s Party Parliamentarians (PPPP)); and his refusal to be recruited into the Taliban in Pakistan (TTP). He also seeks protection for the essential and significant reason of generalised politically motivated violence in the Khyber Pakhtunkhwa. Applicant 1 claims that his spouse, Applicant 2, has also been harassed by supporters of the TTP for the essential and significant reason of her employment history as a schoolteacher. Further late claims were introduced by the applicants at their first appearance in the course of this review. These late claims are considered below. The other applicants rely on the claims asserted by Applicant 1 as members of the same family unit.
Delegate’s decision
In a written decision dated 24 August 2017, a delegate of the Minister refused to grant the applicants a protection visa on credibility grounds. The delegate summarised their reasons for refusing to grant the visa as follows:[1]
Imputed Political Opinion
As discussed within Section 9 (Credibility) whilst I accept that the applicant and family supported PPP, I do not accept that he had a significant profile that the Taliban and extremist groups would seek to target him.
Given that the applicant has spent a significant part of the last nine years studying and residing in Australia, his opportunity to participate in political activities was highly restricted. As already discussed, the applicant's political profile if any appears to be relatively minor and highly localised. The duration of time the applicant has spent out of Pakistan further reduces the likelihood that he would be attributed any political profile based on his activities.
As discussed above, the applicant was willing to return home to Pakistan on two occasions despite claiming to fear harm in Pakistan. The applicant claims that he and his family received threats and were attacked because of their political profile in PPP. However, he continued to return to Pakistan from Australia, and specifically to KPK. The applicant's willingness to return to Pakistan despite numerous claimed instances of harm to him and his family is not consistent with a subjective fear of harm.
While I accept that the applicant and his family supported PPP, I do not accept that other than his involvement when he was at school in 1987, the applicant was not involved in any activities that may have brought him to the attention of the local Taliban.
The applicant's willingness to leave his family in this area of KPK and to return there repeatedly, despite claiming to fear harm, does raise concerns regarding his subjective fear of harm. Moreover, owing to the nature of his claimed political and/or anti‑Taliban activities and the significant length of time the applicant has spent out of Pakistan over the last several years, I find it unlikely that he would have been attributed a profile that would draw the adverse attention of the Taliban or extremist groups.
[1]Delegate decision record, 24 August 2017, at (12).
The Tribunal’s decision in summary
After reconsidering the application for protection afresh, I have concluded, for different reasons, that the decision should be affirmed.
In particular, I find that Applicant 1 does not face a real chance of persecution if he returns to Pakistan now and in the reasonably foreseeable future for the essential and significant reason of his actual or imputed political opinion as a former supporter of the PPP or for any other reason from any person on return to Pakistan. I have also considered the claim by Applicant 2 that she holds a well-founded fear of harm in Pakistan now or in the reasonably foreseeable future for the essential and significant reason that she is a member of a particular social group, women in Pakistan who teach primary school aged children and who support the education of women and girls. I find that Applicant 2 does not subjectively hold a genuinely well-founded fear of harm in Pakistan now and in the reasonably foreseeable future for this essential and significant reason.
I have also considered a number of late claims, namely the late claim of Applicant 1 that he faces a real risk of significant harm in Pakistan now or in the reasonably foreseeable future because he refused to be recruited into the TTP between 2007 and 2011. I have also considered the late claim of the applicants that they face a real risk of significant harm in Pakistan now or in the reasonably foreseeable future because they are blamed by Applicant 1’s family for the death of the brother of Applicant 1 in 2016. I have also considered the implied claim that the applicants hold a well-founded fear of harm for the essential and significant reason of generalised violence in Pakistan. I am not persuaded that any of these late claims engages Australia’s protection obligations.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a protection visa are set out in s.36 of the Act and Sch.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.
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).
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.
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’).
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.
Relevantly, I note DFAT Country Information Report: Pakistan (20 February 2019) addresses the general security situation at [2.66]-[2.101]. In particular, the following summary comments at [2.91] are supported by other assessments[2] and sources of credible country information:[3]
The frequency of sectarian attacks has reduced annually since the launch of Zarb‑e‑Azb and the NAP in 2014. The South Asia Terrorism Portal reports 16 incidents of sectarian violence killed 231 people and injured 691 in 2017, compared with 131 incidents killing 558 and injuring 987 in 2013 (2018 data not yet available). This trend continued in 2018, with a 40 per cent reduction in sectarian violence (12 incidents) compared to 2017.
[2]UK Home Office publication Country Policy and Information Note, Pakistan: Political parties and affiliation (December 2020).
[3]EASO (2020) Pakistan: Security Situation, Country of Origin Information Report, October 2020.
I also note that the more recent UK Home Office publication Country Policy and Information Note, Pakistan: Political parties and affiliation (December 2020) at [2.4.16] states:
In general, the risk to political leaders, supporters and activists by non-state actors is unlikely to be sufficiently serious, by its nature or repetition, to amount to persecution.
A fear of being persecuted is well-founded if there is a ‘real chance’ of a given applicant being persecuted.[4] In Chan v MIEA, Mason CJ observed that various expressions have been used in other jurisdictions to describe ‘well-founded fear’ – ‘a reasonable degree of likelihood’, ‘a real and substantial risk’, ‘a reasonable possibility’ and ‘a real chance’. His Honour saw no significant difference in these expressions, but preferred the expression ‘a real chance’ because it conveyed the notion of a substantial, as distinct from a remote chance, of persecution occurring and because it was an expression that had been explained and applied in Australia.[5]
[4]Chan v MIEA (1989) 169 CLR 379 at 389, 406–407, 396–8, 428–9. Gaudron J did not adopt the ‘real chance’ test.
[5]Chan v MIEA (1989) 169 CLR 379 at 389.
The High Court has also emphasised that although the expression ‘real chance’ clarifies the term ‘well‑founded’, it should not be used as a substitute. Accordingly, I am mindful of the Tribunal’s obligation to apply the language of the Convention.[6]
A ‘real chance’ is a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. According to Mason CJ in Chan v MIEA, the expression ‘a real chance’:[7]
… clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring. ... If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well‑founded, notwithstanding that there is less than a fifty per cent chance of persecution occurring. This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin.
[6]MIMA v Guo (1997) 191 CLR 559 at 572–3. In NACB v MIMA [2002] FCAFC 140 Sackville J (Beaumont J agreeing), referring to Guo, found that ‘decision-makers will be on very dangerous ground indeed if they employ an expression not found in the Convention (‘so remote as to be fanciful’) and assume that the negative (‘not so remote as to be fanciful’) is equivalent to the expression that is found in the Convention (‘well-founded’)’: at [58]. In SZRCI v MIAC (2012) 214 FCR 584 the Federal Court reiterated that use of language other than that in the Convention, such as ‘real chance’ will not necessarily give rise to error, and that the ultimate question is whether the phrase ‘well-founded fear of being persecuted’ was correctly applied: at [47].
[7]Chan v MIEA (1989) 169 CLR 379 at 389.
In the same case, Dawson J stated:[8]
... a fear can be well-founded without any certainty, or even probability, that it will be realized. ... A real chance is one that is not remote, regardless of whether it is less or more than 50 per cent.
[8]Chan v MIEA (1989) 169 CLR 379 at 397–398.
And Toohey J stated:[9]
A ‘real chance’ ... does not weigh the prospects of persecution but, equally, it discounts what is remote or insubstantial.
[9]Chan v MIEA (1989) 169 CLR 379 at 407.
Similarly, according to McHugh J:[10]
[A] fear may be well-founded for the purpose of the Convention and Protocol even though persecution is unlikely to occur. ... an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be ... persecuted. Obviously, a far-fetched possibility of persecution must be excluded.
[10]Chan v MIEA (1989) 169 CLR 379 at 429. However, this does not mean that the Tribunal must consider whether a 10 per cent chance of persecution has been established. In Altintas v MIEA (Federal Court of Australia, Nicholson J, 23 January 1997) the Court held at 10: ‘The ratio decidendi of Chan did not require the Tribunal to consider whether a 10 per cent chance of persecution was established. Rather the Tribunal was required to consider whether, on all the evidence before it, a “real chance” was established’.
Thus, as the High Court confirmed in MIEA v Guo, Chan establishes that a person can have a well‑founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.[11]
[11]MIEA v Guo (1997) 191 CLR 559 at 572. It is important, however, that this should not be viewed as an alternative test that there must be a risk of persecution shown on the probabilities, as that would involve an incorrect and more onerous test: see PW87/2001 v MIMA [2001] FCA 1083 at [7].
It is against the background of this judicial guidance that a decision-maker must reach the appropriate level of satisfaction for the purposes of s.36(2)(a) of the Act.
The issue in this case is whether or not Applicant 1 engages Australia’s protection obligations under s.36(2)(a) of the Act and Article 1A(2) of the Convention (the refugee criterion).
DECISION-MAKING FRAMEWORK
President’s Direction
I have had regard to the President’s Direction ‘COVID-19 Special Measures Practice Direction – Migration and Refugee Division’, 27 April 2020. I have also had regard to the President’s Direction ‘Conducting Migration and Refugee Reviews’, 1 August 2018. In particular:
that ‘members are to take all reasonable steps to complete cases allocated to them as quickly as possible’;[12] and
that ‘Generally, in reviewing a decision to refuse the grant of a protection visa, members should address only those elements of the criteria for a protection visa that are necessary to resolve the application on review.’[13]
[12]At [2.1] (consistent with AAT Act 1975 s.33(1)(b)).
[13]At [8.1].
Applicable legal principles
Applicant credibility
The task of fact-finding may involve an assessment of applicant credibility. In this context, I have been guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions.[14] In these and other decisions, the courts have made it clear that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility.
[14]E.g. Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
As noted by Nichols J in the recent Federal Circuit Court decision in DAJ19 v MI:[15]
[15][2020] FCCA 2141 (5 August 2020), at [69]–[71].
69.There can be no doubt that legal reasonableness is a necessary and essential element in making a lawful decision (Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [4], [80] [89], Minister for Immigration and Citizenship v Li [2013] HCA 18 at [26], [29], [63], [88], Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [4], [53], Minister for Immigration and Border Protection v Eden [2016] FCAFC 28 at [58]).
70.The principles relevant specifically to the consideration of an applicant’s credibility were more recently summarised by the Full Federal Court in DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 (per Kenny, Kerr and Perry JJ) (at [30]):
“30.The relevant principles can be summarised as follows.
(1)While findings as to credit are generally matters for the administrative decision maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (CQG15) at [37]-[38] (the Court). The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae (ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 (ARG15) at [83](b)). In each case it is necessary to analyse in detail what the decision‑maker has decided: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT) at [77] (Robertson J).
(2)Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis (ARG15 at [83](d)). In this regard, Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) that:
135. … A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
(Emphasis added)
(3)By way of example, in SZRKT at [78], Robertson J considered that jurisdictional error may be established where a finding on credit on an objectively minor matter of fact constitutes the basis on which the decision-maker rejects the entirety of an applicant’s evidence and claims. Furthermore, as Flick J explained in SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; (2015) 233 FCR 451 (SZVAP) at [22] (in a passage on which the appellant particularly relied), ‘[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it: WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 674 at [54].’ Equally jurisdictional error may be established by “a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document”: SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; (2009) 181 FCR 113 at [37].
(4)Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error (SZMDS at [132] (Crennan and Bell JJ)). In this regard, with respect to the significance of an illogical or irrational finding as to credit to the administrative decision necessary to establish jurisdictional error, Wigney J explained in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 (in a passage approved in CQG15 at [60]) that:
56. An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision‑making processes from scrutiny …
(citations omitted)
(5) A high degree of caution must, however, be exercised before finding that adverse findings as to credit expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: SZMDS at [96]; SZVAP at [14]-[15]. As such, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, ‘extreme’ illogicality must be demonstrated ‘measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions’ (SZRKT at [148]; see also SZMDS at [135] and CQG15 at [60]). Thus, ‘[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality’: CQG15 at [61].”
71.… the Full Federal Court in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133 (per Kenny, Griffiths and Mortimer JJ) stated at [41] (and see [22]‑[28]):
“41. For convenience, the principles which have relevance to the particular facts and circumstances here may be summarised as follows.
(a) The issue whether or not an administrative decision is affected by jurisdictional error requires a careful examination of the relevant statutory framework, with a particular emphasis on provisions which determine the decision‑maker’s powers, procedures, functions and obligations.
(b) While findings as to credit are generally matters for the administrative decision-maker, they may be amenable to judicial review on several grounds including legal unreasonableness, reaching a finding without a logical, rational or probative basis, failure to perform the required statutory task of review, and failure to take into account material critical to the formation of the requisite state of satisfaction.
(c) Whether or not a credibility finding is affected by jurisdictional error is a case specific inquiry, and should not be assessed by reference to fixed categories or formulae. Merely because a decision-maker has ignored ‘relevant material’ does not always give rise to jurisdictional error in the present context. The importance or cogency of the material, its place in an assessment of the appellant’s claim and in the performance of the statutory task are matters of fundamental importance in a protection visa case. Those matters inform an assessment of the seriousness or gravity of the error.
(d) Even if an aspect of reasoning, or a particular finding of fact, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result (such as, for example, where it is but one of several findings that independently may have led to the ultimate decision).
(e) Merely because there is no reference in the decision‑maker’s reasons for decision to particular material does not necessarily give rise to an inference that the material was not considered. Nonetheless, in the case of the Tribunal, which is required by s 430 of the Act to make a written statement setting out its reason for decision and its findings on material questions of fact, and to refer to the evidence on which such findings were based, a failure to refer to evidence that on its face bears on a finding may indicate that that evidence has not in fact been considered and, in some cases at least, disclose jurisdictional error in the decision-making (see Minister for Immigration and Multicultural Affairs v Yusuf[2001] HCA 30; 206 CLR 323 at [10] per Gleeson CJ).
(f) Considerable caution must be exercised before concluding that errors in an adverse credibility assessment result in the decision being affected by jurisdictional error, in order to avoid judicial review transgressing into the impermissible area of merits review.”
In Guo Wei Rong and Pam Run JuanvMinister for Immigration and Ethnic Affairs and McIllhatton,[16] Foster J stated that ‘care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.’[17] Numerous decisions have endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
[16](1996) 40 ALD 445.
[17]At 482.
I have also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors,[18] and the comments of the High Court on the correct approach to determining findings on credibility. Kirby J observed:[19]
First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is undesirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for a decision‑maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the ‘real chance’ of persecution required by Chan.
[18](1996) 185 CLR 259.
[19]At [25].
The Tribunal is not required to accept uncritically any or all allegations made by an applicant, nor are decision‑makers required to have rebutting evidence available before they can find that a particular factual assertion by an applicant has not been made out, nor are they obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality. In Chand v Minister for Immigration and Ethnic Affairs, the Full Court of the Federal Court observed that:
where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another.[20]
[20][1997] FCA 1198 at (11).
Nevertheless, as Burchett J counselled,[21] it is necessary to:
… understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.
[21]In Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 at [5].
The Full Court of the Federal Court has noted that ‘refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.’[22]
[22]In Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167.
Nevertheless, there is no rule that a decision-maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies,[23] nor is there a rule that a decision‑maker must hold a ‘positive state of disbelief’ before making an adverse credibility assessment in a refugee case. That being said, if the Tribunal has ‘no real doubt’ that the claimed events did not occur, it will not be necessary to consider the possibility that adverse findings might be wrong.[24]
[23]Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9.
[24]Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 241 per Sackville J (with whom North J agreed).
In addition, I am aware that if a Tribunal makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true.[25] This is sometimes referred to as the ‘what if I am wrong’ consideration. I am also mindful of the observations of Gummow and Hayne JJ in Abebe v The Commonwealth of Australia:[26]
… the fact that an Applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an Applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.
[25]MIMA v Rajalingam (1999) 93 FCR 220.
[26](1999) 197 CLR 510 at [191].
On the other hand, a decision-maker is entitled to consider whether an applicant genuinely, subjectively has a well-founded fear of persecution before examining whether such a fear is subjectively held, or to proceed on the assumption that such a fear is held.
If a decision-maker finds on the evidence that the applicant does not genuinely hold a subjective fear, there will be no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claim are satisfied. In this respect, in Iyer [27] the Tribunal had concluded that certain return visits to Sri Lanka from Australia were voluntary. This (so the Tribunal reasoned) supported a conclusion that the applicant did not have the necessary fear of persecution required by someone seeking refugee status.
[27]Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]–[34].
The Court on review confirmed that the Tribunal had applied the correct principles concerning the applicant’s fear of persecution and stated that it did not need to go any further in its analysis of the basis of the claim. This decision was affirmed on appeal.[28] I recognise that such a principle cannot be relied upon as an iron rule. However, it is potentially a useful illustration of the kind of weighing process that an objective decision‑maker must make when making findings relevant to the existence of a well‑founded fear of persecution. Credibility findings are, in practice, often central considerations when assessing an applicant’s claims or evidence. This is particularly the case when assessing an applicant’s core or ‘material’ substantive claims or evidence.
[28]Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also SDAQ v MIMA (2003) 129 FCR 137 at [19] per Cooper J.
In this respect, I note the comments of Flick J,[29] in SZSHV v MIBP [2014] FCA 253 (by reference to the former Refugee Review Tribunal) as follows:
31In the context of judicial review being undertaken of a decision of a Refugee Review Tribunal, adverse findings as to credit by the Tribunal do not shield its decision‑making processes from scrutiny. Thus, for example, in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [78], (2013) 212 FCR 99 at 121, Robertson J observed:
[78]It is not, in my opinion, the case that a finding in relation to credit may never found a conclusion of jurisdictional error, particularly where a finding on credit on an objectively minor matter of fact is the basis for a tribunal’s rejection of the entirety of an applicant’s evidence and the entirety of the applicant’s claim.
[29]Cited with approval by McKerracher, Griffiths and Rangiah JJ in CQG15 v MIBP [2016] FCAFC 146 at [41].
As highlighted by the Court in CQG15 v MIBP [2016] FCAFC 146:[30]
… Recitation of the expression that credibility is a matter [/question of fact for the Tribunal] par excellence should not be understood as precluding challenges to credibility or, indeed, other findings of fact on any basis. While there is no suggestion in this case that this is what has occurred, the frequency of adoption of the expression should not obscure the availability of challenges on recognised grounds, such as:
(a) failure to afford procedural fairness;
(b) reaching a finding without any logical or probative basis;
(c) unreasonableness; and/or
(d) jurisdictional error as discussed by Flick J in SZVAP.
[30]At [38] per McKerracher, Griffiths and Rangiah JJ [parentheses added].
The particular reference by their Honours in the extract above at (b) to the importance of making findings of fact on logical or probative grounds with specific reference to credibility findings is telling. In this respect, I note that, later in the same judgement,[31] the Court referred in a generally approving way to an observation by Gordon J in SZLGP v MIC [2008] FCA 1198 about the United States 9th Circuit Court of Appeals decision in Stoyanov v INS[32] (Stoyanov):
The Court in Stoyanov went on to state that ‘minor inconsistencies cannot support an adverse credibility finding’ and that ‘trivial errors by an asylum applicant do not constitute a valid ground upon which to base a finding that an asylum applicant is not credible’:
[31]CQG15 v MIBP [2016] FCAFC 146 at [43].
[32](9th Cir 1999) 172 F3d 731. Extract citation reference is to Stoyanov at 736.
I note also that a number of judicial caveats have been expressed when considering the manner in which credibility findings may be made in protection visa reviews and the ultimate use to which they may be put, either deliberatively or determinatively as the case may be. Firstly, as the Federal Court observed in CQG15 v MIBP [2016] FCAFC 146 at [59]-[60], one must be mindful of:
… the conclusion reached by the High Court in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611, particularly (at [131]), where Crennan and Bell JJ stated that if reasonable minds could differ as to the conclusions to be drawn from the evidence, illogicality or irrationality or unreasonableness could not arise simply because one conclusion had been preferred to another possible conclusion.
In Minister for Immigration and Border Protection v SZUXN [2016] FCA 516, Wigney J collected the following relevant principles (at [52] and [54]-[56]):
52As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, ‘extreme’ illogicality or irrationality must be shown, ‘measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions’. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 (at 22-23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.
Consideration of how credibility findings might be affected by legal unreasonableness was also considered by the Federal Court in the more recent case of BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184. The Court made the following observations of utility:[33]
32First, the relevant question for the AAT under ss.36(2)(a) and (aa), 65 and 415 of the Act is whether it is ‘satisfied’ that the criteria for a protection visa are met and as a consequence the decision of the AAT is subjective in nature: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 275-277 (Brennan CJ, Toohey, McHugh and Gummow JJ); and W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679; (2001) 185 ALR 703 (W148/00A) at [65] (Tamberlin and R D Nicholson JJ).
33Secondly, the fact that a decision-maker has expressed her or his reasons sequentially does not mean that the decision-maker has decided each factual issue in isolation from the others. To the contrary, ‘[o]rdinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole’: S20/2002 at [14] (Gleeson CJ); see also at [49] (McHugh and Gummow JJ); and Chen v Minister for Immigration and Citizenship [2011] FCAFC 56 (Chen) at [33]-[35] (the Court). Indeed, there is no necessary error in the Tribunal not considering corroborative material until after it has reached its conclusions of credibility where the Tribunal has (lawfully) found that ‘the well has been poisoned beyond redemption’: S20/2002 at [49]; and Chen at [35].
34Thirdly, notwithstanding the subjective nature of the assessment required by the AAT and the factual nature of an assessment of credibility, the AAT’s decision must still be made within the bounds of legal reasonableness.
[33]Per Rangiah, Perry and Bromwich JJ.
In addition to the foregoing judicial guidance, I have also considered the Migration and Refugee Division ‘Guidelines on the assessment of credibility’, issued in July 2015, which provides:
It is in the nature of an application for protection that determinations are made at least in part on an assessment of the applicant’s credibility and on the credibility of the claims themselves.[34]
[34]At [8].
The Guidelines also advise that:
Procedural fairness requires an applicant to be made aware of the case against him or her to be provided with an opportunity to respond to the issues arising to his or her case. The tribunal is under a duty to ensure that an applicant has an opportunity to be heard on the issues to be decided by the tribunal.
A Member should maintain and be seen to have an open mind when conducting a hearing. There is a duty to clearly and unambiguously raise with the applicant the critical issues on which his or her application may depend. An applicant may be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question.
However, the tribunal should take care to ensure that vigorous testing of the evidence and frank exposure of its weaknesses does not result in the applicant being overborne or intimidated.[35]
[35]At [17]–[19].
With respect to contradictions, inconsistencies and omissions, the Guidelines state:
Contradictions, inconsistencies and omissions may arise in the evidence before the tribunal.
The tribunal will consider all the evidence before it assesses whether contradictions or inconsistencies are material to an applicant’s claims and would lead to an adverse credibility finding.[36]
New claims and evidence
[36]At [27]–[28].
Applicants are required to present all claims and evidence to the primary decision‑maker unless they have a reasonable explanation for not doing so.
This principle is enshrined at s.5AAA of the Act, which clarifies that it is the responsibility of an applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. On this view, a Tribunal does not have any responsibility or obligation to specify or assist in specifying particulars of the claim or to establish or assist in establishing a claim. This is consistent with the well-settled proposition, referred to above, that it is for an applicant to make their own case.[37]
[37]Prasad v MIEA (1985) 6 FCR 155 at 169–70; SZBEL v MIMIA (2006) 228 CLR 152; at [40]; Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60 (Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ, 8 October 2003) at [57] and [1]; WAKK v MIMIA [2005] FCAFC 225 (Marshall, Mansfield and Siopis JJ, 1 November 2005 at [73]; MIMA v Lay Lat (2006) 151 FCR 214 at [76]; and Abebe v Commonwealth (1999) 197 CLR 510 at [187].
As a general principle, therefore, applicants are expected to present their case in full before the primary decision-maker and not to wait until after the primary decision has been made. Of particular relevance here is the ongoing requirement under s.104 of the Act for an applicant to ensure that their relevant details are correct and then to change any incorrect information at the first reasonable opportunity.
Accordingly, it may be open to the Tribunal to draw an inference unfavourable to the credibility of a claim or evidence where the Tribunal is satisfied that the applicant does not have a reasonable explanation as to why the claim was not raised or evidence not presented at the first reasonable opportunity.
In making such an assessment, I am mindful of the specific considerations mentioned in the President’s Direction relating to opportunities to raise a claim or evidence, changes in the available country information or other relevant information, relevant changes in the personal circumstances of the applicant or diagnosed medical conditions that may have impaired an applicant’s memory or self-expression.[38]
COVID-19-related claims
[38]At [9].
It is acknowledged that the international public health crisis arising from the current COVID‑19 pandemic is a factor weighing on all potential removal decisions for visa applicants in Australia. I note that this decision is not a decision on removal. However, I am also mindful that this decision has the potential to give rise to such a decision in the reasonably foreseeable future.
Accordingly, for the removal of doubt, I find that whatever measures may be applicable to the population of Pakistan generally in response to the present COVID-19 crisis do not, in the absence of additional considerations, amount to an intentional act or omission for the purposes of complementary protection provisions.[39]
CONSIDERATION OF CLAIMS AND EVIDENCE
[39]SZTAL v Minister for Immigration [2016] FCAFC 69.
Hearings
First hearing
Prior to the first hearing, the applicant’s representative made written submissions in an email dated 10 February 2021. These submissions included attachments relating to the death of Applicant 1’s brother [named] in the [named] Hospital on [date] May 2016. While these documents are remarkable in a number of respects,[40] I am prepared to give the applicant the benefit of the doubt and accept the proposition that the applicant’s brother died on [date] May 2016, as a result of a firearm incident near his home [Abbottabad], Khyber Pakhtunkhwa, Pakistan, on or about [date] April 2016.
[40]The Hospital death certificate provided by the applicant records that the deceased had been admitted to the hospital on [date] April 2016, a period of 15 days and died as a result of a firearm incident. The attached hospital fee account states that the deceased was admitted on [date] April 2016 and was discharged on [date] May 2016, a period of 6 days. The official KPK Government death certificate describes the nature of death as ‘Normal’, the reason of death as ‘Un‑natural’, the ‘Sickness Period’ as 15 days and includes a reference to a ‘Fire Arm Injury’. It is not apparent why a person suffering a firearm injury on [date] April 2016 would be admitted to hospital for emergency [surgery] seven days later.
Also attached was a copy of a PPP membership card, together with a ‘Pakistan People Party Parliamentarian’ [sic] issued ‘Certiciate of Memebership’ [sic] dated 14 January 2013 apparently signed by one ‘[President], Abbottabad’. This document relevantly states:
This is to certified that [Applicant 1] bearing [number] Resident of [is] a active member of Pakistan Peoples Party since long and in capacity of the Young Wing.
[Applicant 1] belongs to the a reutable family and and all his family members are active members to the party since fore father and they have devoted and contributed a lot for the Party.
A number of aspects of this document are remarkable,[41] leading me to place little weight on the document. I am, however, prepared to give the applicant the benefit of the doubt in his claim that his family support the Pakistan People’s Party (or the provincial ‘Pakistan Peoples Party Parliamentarians’ (PPPP)), and that he was a member of the student wing of the party while he was an undergraduate student.
[41]The incorrect spelling of the party’s name in the letterhead banner, the use of a two‑feathered arrow and the horizontal orientation of the flag’s colours all suggest that the letterhead may not be official party stationery. The eccentric spelling throughout the text of the letter suggest that it may not have been produced by an official representative of the party or someone familiar with such letters. The identifying text in the letter above that is reproduced in bold font as it appears in the letter appears to have been inexpertly and manually pasted across the relevant lines of text. The signature on the bottom of the letter also bears some evidence of inexpert manual alteration. This suggests that the content of the letter may not appear in its original or intended format.
Also attached to the pre-hearing submission are a series of identification documents relating to the secondary applicant children of the family unit.
At the first hearing with the applicants on 22 March 2021, I addressed the applicant’s representative about the legal basis relied on in the written submission lodged on 10 February 2021. This submission drew on the statutory regime applicable to protection applications lodged after 14 December 2014. As the present application for protection was lodged before this date, revised written submissions were required to be prepared.
I put to the applicants that the applicant’s original application for protection taken together with the delegate’s record of decision (a copy of which they had submitted to the Tribunal with their review application), their claims for protection in Australia appeared to be as follows:
Applicant 1:
Refers to the generalised violence in home region of KPK due, in particular, to the lawless conduct of persons and groups associated with the TTP.
Claims that PPP members and party affiliates are targeted by the TTP in his home region. The applicant’s family is known to be staunchly pro‑PPP.
Claims to have been beaten by persons or groups associated with the TTP while he was an undergraduate student in the Khyber Pakhtunkhwa because he was a student member of the PPP.
Claims that on his last return to Abbottabad, he was abducted for a period of two days by persons and groups associated with the TTP. During this time he was beaten and harassed and threats were made against him and his family. The applicant was released by these people after his father paid a ransom to his captors.
In May 2016 the applicant’s brother [was] killed by armed assassins near his house in Abbottabad. The applicant claims that the assailants were connected to the TTP.
Applicant 2
Claims that she was harassed and threatened by unnamed persons due to her work as a teacher in Abbottabad. This led to applicant to resigning as a teacher.
Applicant 1 corrected the foregoing summary in only one respect. Namely, he pointed out that he had been harassed and beaten by supporters of the political party Jamaat‑e‑Islami while a student member of the PPP during his undergraduate studies, not by members of the TTP.
I put to Applicant 1 that this was a new claim which had not been raised with either the Department or the Tribunal prior to February 2021, noting that the events described above occurred in Pakistan approximately five years after the applicant’s most recent visit to Pakistan. I asked the applicant how it was that he knew or could assert that the assailants of his brother had a connection to the TTP. The applicant responded that he assumed that they were connected to the TTP based on conversations he had had with his family in Pakistan since the death of his brother and that the identity of the assailants had not been ascertained by any of the authorities.
Applicant 2 corrected the foregoing summary by stating that she did not resign from her position as a teacher with the Pakistan government. Rather, having qualified as a teacher in 1999, she had applied for long-leave in August 2010 for a period of five years, prior to her departure from Pakistan in 2011. When questioned about the circumstances under which she had applied for long-leave, Applicant 2 stated that her mother-in-law had advised her that threats had been made against her by unknown persons during telephone messages received in the family home of Applicant 1, which was also the residential address of Applicant 2, and her two infant children at that time. Applicant 2 also stated that she suspected that she was being followed as she moved from home to work by unknown persons.
The representative’s submission refers at [25]-[27] to the death of Applicant 1’s brother in Pakistan in 2016. Certain facts are asserted in this section which are not supported by relevant first‑person evidence, or by means of a statutory declaration. The representative was reminded about the need for evidence to support such submissions. I note that the representative submissions state that police report details were being sought by Applicant 1 as at the date of the submission. I also note that the submission links the death of the applicant’s brother to TTP agents or supporters, again, not on the basis of evidence.
I took a personal history firstly from Applicant 2 and then from Applicant 1.
Applicant 2 taught [at a] primary school. She has [siblings], all living in Pakistan. All [siblings] have children and (with the exception of sister number 2 who is divorced) all are married. [Details about the siblings deleted]. Applicant’ 2’s father died in 2018. Applicant 2 is in regular contact with her family, who are all well.
Applicant 1 keeps reasonably good health, however, he has been prone to emotional lability since the death of his brother [in] 2016. Applicant 1 is the eldest of [his siblings], born to parents who are both still alive and living in Abbottabad. The parents of Applicant 1 are in reasonable health, although his mother has experienced more asthma symptoms in recent years. [Details about the siblings deleted]. He keeps in regular contact with his parents in Pakistan.
The applicant give evidence that he originally came to Australia to study as a pathway to permanent residence. He was disappointed when the course he was studying was removed from the preferred list of qualifications for the purposes of a permanent residency visa. At this point the hearing was concluded, with a further hearing to be scheduled.
On 6 April 2021 the applicant’s representative resubmitted a corrected written submission on behalf of the applicants. This included the documents referred to above. The submission also included a medical report from the General Practitioner of the family unit. This report is as follows:
This is to Certify that [Applicant 1] DOB: [date] has been seen regularly at our clinic. He is my patient for last 7–8 years. He has long history of stress, anxiety, low mood, sleeping difficulties and withdrawl from social activities. It all started after his younger brother was killed in his native country who was very near & dear to him.
He has had regular counselling along with medications for depression. He has been coming for regular follow ups. He has been attending for Mindful techniques along with psychological therapies.
I request that this gentleman be given all support possible.
This certificate supports the real evidence provided by Applicant 1 at the first hearing regarding the impact of the death of his brother [in] 2016, which was accepted in its terms. Further to this, the submission includes a Statutory Declaration sworn by Applicant 1 on 5 April 2021. This declaration relevantly states:
5)Thus, in the depressed and shocked frame of mind, it did not occur to me that I must inform the immigration about this incident. As well, as the interview for my protection visa was completed in the year 2015, I was not fully aware that I can add further information to my protection visa file that could impact its decision. As well, I was not aware of when exactly a decision would be made regarding my visa matter.
6)In fact, when I applied for the Administrative Appeals Tribunal on the 10th of September 2017, I did not know that I needed to provide this evidence. Again, while I initially applied for the review with the AAT, I made the application myself.
7)When I appointed my current representative [in] the year 2018, I was asked by her if there were any developments that she needed to be aware of. It was only at this point that I honestly realised that I needed to inform regarding my brother's death in the case.
8)I understand that a member was not constituted to my case for a long time. In the year 2021, we were informed that a member was allocated and that my case had commenced being considered. My representative then compiled all the necessary documents together and submitted them within the timeframe provided prior to the telephonic hearing.
This statement is considered further below.
The 6 April 2021 submission also included five historical online news articles regarding Taliban extremist atrocities aimed at teachers, women and girls in the Khyber Pakhtunkhwa. These articles and their relevance to the claims of the applicants are not addressed in the representative’s submissions. In addition, the representative included a copy of the DFAT Country Information Report: Pakistan, dated 20 February 2019. This document is not referenced in the representative’s written submissions.
Second hearing
At the second hearing on 8 June 2021 I summarised the foregoing and invited oral submissions from both the applicants and the representative about the online news reports, noting that four of the news reports related to attacks in Peshawar, one from 2013 and three from 2014. The fifth article related to the attempted assassination of Malala Yousafzai by the TTP in Mingora city, Swat District, Khyber Pakhtunkhwa, in 2014.
I invited the representative and the applicants to explain how these sources were relevant to their claims for protection, noting that they had departed their family home in Abbottabad, Pakistan, in April 2011. The applicants suggested that these news articles demonstrated generalised (and violent) antipathy by the TTP to the education of women and Pakistan, and the general levels of violence in Khyber Pakhtunkhwa. I accept these submissions in their terms.
Applicant 1 stated that he first began to fear persecution for the essential and significant reason of his student membership of, and ongoing support for, the PPP in Khyber Pakhtunkhwa when he was working as a volunteer in 2006 during the recovery operations after the 2005 earthquake disaster in the region. During this time, he was approached by supporters of the political party Jamaat-e-Islami and who expressed support for the TTP. These individuals pressured Applicant 1 to join cause with them and change his political allegiance. From this time forward, the applicant continued to be approached by these individuals, with invitations ultimately devolving into threats by the time of his departure from Pakistan in December 2007 on a Student [visa].
Applicant 1 states that the harassment, intimidation and threats he experienced from these persons in Pakistan prior to his departure to Australia in 2007 lead him to flee to Karachi in September and change his phone number. The applicant asserts that it was people associated with these political and religious extremists who kidnapped and beat him over a two‑day period in 2011 prior to his most recent arrival in Australia.
I note that Applicant 1 and Applicant 2 were married [in] September 2007, but that Applicant 1 departed for Australia alone soon after this, leaving his spouse behind in Abbottabad, living with his parents.
I asked the applicant why he departed Australia [in] February 2009 and returned to a place where he had previously experienced harassment, intimidation and threats. The applicant said that he took precautions to remain hidden and that his visit was brief. The applicant returned to Australia, again travelling alone, on [date] March 2009. The applicant claimed to have received threatening phone calls during this brief visit. He claimed to have reported these to local police but has no records of such a report having been made.
I asked Applicant 1 why he did not immediately apply for protection in Australia, either on arrival in 2007 or 2011. He stated that he had limited knowledge of the immigration system and was pursuing his student visa with the intention to apply for permanent residency through that pathway.
I asked Applicant 2 when she first began to fear harassment, intimidation and threats in Pakistan for the essential and significant reason of her membership of the particular social group of women teachers in Pakistan. Applicant 2 stated that her fear of harm originated shortly after her marriage in 2007. From the time her new spouse departed for Australia, she became very stressed and emotional. Her mother-in-law told her some time in 2010 that people had been making threats to her about Applicant 2 working as a teacher. Applicant 2 had no personal knowledge of this but was told that there had been anonymous phone calls to this effect. Applicant 2 also had a growing sense of being followed by strangers when she was moving between her home and her place of employment. After his return in 2011 when he was kidnapped and beaten, she was terrified, particularly after his departure again for Australia.
Applicant 2 stated that they are blamed by Applicant 1’s family for the murder of the brother of Applicant 1 in 2016. While I am satisfied that there may be some inter-familial ill‑will towards Applicant 1 from his family, I note that this claim was raised in passing, at a very late stage in proceedings and was not advanced by Applicant 1 himself. I put to the applicants that much of what was being stated was being advanced by them at an extremely late stage of proceedings, and they had not explained the lateness of raising these matters or the absence of available corroborating evidence.
Applicant 1 stated that, approximately one week after his return to Pakistan in January 2011, he was waiting for a bus when he was grabbed by TTP thugs and taken away in a [vehicle]. He was detained and beaten for two days until his father paid a ransom for his release. He was dumped approximately 5 km from home by the side of the road. After making his way home, he was treated there by a doctor and a report of the incident was made to local police by his family. I asked the applicant why he had not obtained a copy of the police report of this incident, noting that the events described had occurred more than 10 years ago. I also asked why he had remained in Pakistan for a further two and a half months. He stated that it was difficult to obtain such documents in Pakistan. The applicant stated that he needed to remain in Pakistan after his release because he had to apply for a dependent student visa for his wife and children so they could join him.
Applicant 1 stated that they had made their current representative aware of all these matters in 2018 when they had been engaged. The representative confirmed this. I explained to the agent that failing to advise either the Department or Tribunal of new claims or evidence at the first reasonable opportunity was professionally unacceptable. I accept that these matters were raised with the applicant’s representative in 2018, however, this does not explain why the applicants themselves made no reference in the initial application for protection in 2013 to any of the claims besides the harassment of Applicant 1, the generalised violence towards women’s education and the kidnapping of Applicant 1 in 2011 for two days. Even the link between the death of Applicant 1’s brother [in] 2016 and the applicant’s protection claims were not raised by the applicants with anyone in connection with their application for protection until 2018. Applicant 1 states that it had taken time for the shock of his brother’s death to pass before he connected this event in his mind with his own previous persecution in Pakistan.
I put to the applicants that their late claims raised significant credibility issues. These are in addition to the credibility issues already raised by the lateness of the initial application for protection in 2013. The applicants were invited to make further written submissions on or before 9 July 2021 addressing these matters and also explaining the representative’s role in withholding the late information after 2018. The hearing was then concluded.
Following the second hearing, further written submissions were received from the representative. The unhelpful form and content of the submissions necessitated a third and final hearing, which was held on 26 July 2021.
Third hearing
At the third and final hearing with the applicants on 26 July 2021, I recapped the previous proceedings and highlighted the remaining concerns. I addressed the representative about the unhelpful nature of written submissions and explained that I would need to canvass all the relevant issues in person with the applicants, necessitating the hearing.
The applicants repeated the evidence summarised above, providing nothing further by way of detail of nuance to their previous evidence. Applicant 2 confirmed that, during her life in Pakistan in the Abbottabad family compound of Applicant 1, she worked as a teacher until her long‑leave was approved, with the exception of [leave] in 2008 and 2009.
Applicant 1 stated that his brother told him in 2017 that his family blamed Applicant 1 for the death of his [brother]. I note that this statement and the evidence of Applicant 1 at the third hearing that he has not spoken to his family since 2019 is inconsistent with his evidence at the first hearing that he is in regular contact with his family in Pakistan. I accept that there may be some inter-familial animosity between the applicants and the Pakistan‑based family of Applicant 1.
In response to my concerns that Applicant 1’s delay in seeking protection between 2007 and 2013 did not appear to be reasonable, particularly in the context of two return visits, Applicant 1 stated that his intention was always to seek residency in Australia through the study and work pathway. I note that Applicant 1 did not apply for protection until after his Student visa was cancelled.
I put to the applicants that the late raising of family animosity in 2021 suggested that the claims may not be credible. Applicant 1 stated that this was a family matter, private and personal.
In relation to the possible link between his [brother]’s killing in 2016 and the applicant’s previous harassment by TTP thugs, the applicant stated that none of his family had ever had problems with the TTP before his kidnapping in 2011. This convinced Applicant 1 that the two things were linked. That is why he subsequently raised the issue with his representative in 2018.
Findings
Applicant 1
I find that this applicant was a student member of the PPP/PPPP while he was an undergraduate student in Pakistan. I further find that he was no more than an interested member in his local student branch of the PPP/PPPP. While I accept that Applicant 1 may have experienced harassment and a degree of intimidation from student members of Jamaat‑e‑Islami, he experienced nothing that would reach the level of either serious harm or significant harm.
While I accept that this applicant may have been approached for recruitment into the student arm of Jamaat-e-Islami prior to 2007, the applicant’s virtual absence from Pakistan since 2007 leads me to find that he ceased to be of interest to any potential agent of harm for any particularised reason since that time. Had the applicant genuinely subjectively held any well‑founded fear of harm in that country from any person for any reason, he would not have voluntarily returned there on two subsequent occasions and delayed seeking protection in Australia until after the cancellation of his Student visa in this country.
I accept that the applicant was kidnapped in Pakistan in January 2011 and was released on payment of a ransom by his father. I note relevant DFAT country information as follows:[42]
Kidnapping is common in parts of Pakistan. While in some cases kidnapping is associated with family and domestic disputes, it is also a tool linked to security and/or political agendas. Gender based violence is also common, but often goes unreported.
The Rangers and police have arrested large numbers of people allegedly involved in kidnap, robbery and extortion in Karachi in recent years (see Mutahidda Qaumi Movement). While verifiable data remains unavailable, DFAT understands serious crime across Pakistan, especially in Karachi and downtown Peshawar, has reduced significantly since Operations Zarb-e-Azb and Radd-ul-Fasaad, and the NAP.
[42]DFAT, Country Information Report Pakistan (20 February 2019) at [2.98]-[2.99].
I accept that the thugs who kidnapped the applicant and extorted his parents may have been associated with the TTP. But this does not, of itself, demonstrate that the applicant was targeted for any reason other than his family’s capacity to pay the ransom. Given that the applicant remained in Pakistan for a further two and a half months; the absence of evidence of any subsequent police report; and, the applicant’s failure to seek protection in Australia at the first reasonable subsequent opportunity satisfy me that the applicant subjectively believes his kidnapping and beatings were opportunistic and criminal rather than targeted and particularised for any Convention-related reason. The absence of particularisation beyond the capacity of the applicant’s family having an imputed capacity to pay a ransom also satisfy me that this integer of the applicant’s claims does not meet the threshold tests for complementary protection.
I do not accept the applicant’s conjecture that the killing of his brother [in] Pakistan in 2016 was in any way connected to the applicant, given that he has ordinarily resided in Australia since December 2007, spending only four months since that time in that country. I accept that there may be some inter-familial animosity between the applicants and the family of Applicant 1 in Pakistan subsequent to the death of Applicant 1’s brother, [but] I prefer the evidence of Applicant 1 that this is a private family matter and does not, in any sense, amount to a threat of harm of any kind from any of the family of Applicant 1 towards any of the applicants. I find that any suggestion that this late claim amounts to a well-founded fear of harm from any person in Pakistan towards any of the applicants now or in the reasonably foreseeable future being genuinely subjectively held by any of the applicants is without credibility.
I note that Applicant 1 has struggled emotionally concerning his kidnapping and beatings in 2011 and the violent death of his brother [in] 2016. This is entirely understandable, and I find that the evidence of Applicant 1 about his mental wellbeing having been undermined by these traumatic events to be entirely credible. I note his medical evidence above to the effect that he ‘has had regular counselling along with medications for depression. He has been coming for regular follow ups. He has been attending for Mindful techniques along with psychological therapies.’
I accept, on the basis that the applicant may continue to suffer mental health challenges on return to Pakistan, that he may require mental health treatment and support in Pakistan. Having noted that the applicants claim to have become somewhat estranged from the family of Applicant 1 in recent times, Applicant 1 has given vague and inconsistent evidence about the currency and temperature of his contacts with his family in Pakistan. I note that the applicants have an extensive family support network in Pakistan on both sides. Applicant 1 has not suggested that he would be unable to access the types of therapeutic supports in Pakistan that he has been accessing in Australia. It is, therefore, open to conclude that appropriate services are available in Pakistan to meet the health care needs of the applicant on return and that he would be in a position to seek such services. In any event, I note that inadequacy of mental health care services in a receiving country is not an intentional act or omission for the purposes of complementary protection provisions.
On the basis of the foregoing, I find that the applicant does not genuinely subjectively hold a well‑founded fear of harm from any person in Pakistan now or in the reasonably foreseeable future for any essential and significant reason relating to his student membership of the PPP/PPPP or his mental health needs or for any other reason.
Applicant 2
I find that this applicant was a primary school teacher in Pakistan between 1999 and 2010 when she was granted long-leave for a period of five years. While I accept this applicant’s evidence that she thought she was being followed on occasion when walking to and from home and work, I note that her evidence is that she experienced no direct harassment, intimidation or threats from any person at any time in Pakistan. Although the applicant claims her mother-in-law stated there had been threatening phone calls to the house about the applicant’s teaching career, the absence of any police report or corroborative evidence and the lack of personal knowledge of these threats by the applicant cause me to place little weight on this evidence.
As discussed above, I do accept that the applicants have experienced strained relationships with the family of Applicant 1 in Pakistan since the death of Applicant 1’s brother [in] 2016. I note that rejection or ostracism by one’s own family would not of itself usually constitute persecution for the purposes of a protection visa. In particular I note that the High Court, in the case of MMM v the Minister for Immigration and Multicultural Affairs (1998) 90 FCR 324 at 327, held that familial rejection could not be regarded as persecution, within the meaning of the Convention, as it is a purely private matter, and the generalised standards of civilised countries do not suggest that adults, not under a disability, have a right to protection when, for private reasons, their families reject them. This accords with the assessment of Applicant 1, discussed above.
In terms of the violent extremist outrages targeting female students and teachers in Pakistan, I note that Applicant 2 has not been engaged in the occupation of teaching since 2010 and there has been no suggestion that she would return to that occupation on return to Pakistan.
Accordingly, I find that Applicant 2 does not subjectively genuinely hold a well‑founded fear of harm in Pakistan from any person for the essential and significant reason that she is a member of a particular social group, women in Pakistan who teach primary school aged children and who support the education of women and girls, now or in the reasonably foreseeable future.
Applicant family unit claims regarding generalised violence
To the extent that the applicant’s claims might reasonably be said to raise an implied claim for protection grounded on a well-founded fear of harm for the essential and significant reason of generalised violence in the region perpetrated by agents of harm including, but not limited to, the TTP, various non-ideological criminal thugs and other non-state actors, some observations should be made.
I have had cause to consider this question on other occasions.[43] As discussed in those matters, DFAT country information regarding generalised violence in Pakistan is as follows:[44]
2.66.The security situation in Pakistan is complex, volatile, and affected by domestic politics, politically motivated violence, ethnic conflicts, sectarian violence, and international disputes with India and Afghanistan. According to the South Asian Terrorism Portal (SATP), 3684 civilians have died in terrorism-related violence between 2014 and mid-January 2019. SATP bases its statistics from media reports, so this number may understate the actual number of casualties.
2.67.Overall, there was a 29 per cent decline in the number of reported terrorist attacks in 2018 (compared to a 16 per cent decline in 2017), marking a nine‑year downward trend. Nevertheless, Pakistan continues to face security threats from insurgent, separatist and sectarian militant groups.
2.68.Up to 262 reported terrorist attacks, including 19 suicide and gun-and‑suicide coordinated attacks, killing 595 and injuring 1030, occurred in 2018 (compared to up to 370 reported attacks in 2017). The Tehreek-e-Taliban Pakistan (TTP), TTP splinter groups, and ISIL-affiliates conducted up to 171 of these attacks (compared to up to 213 attacks in 2017). Nationalist groups also carried out up to 80 attacks, killing 96 and injuring 216, in 2018 (compared to 138 in 2017), and there were up to 11 sectarian related terrorist attacks, killing 50 and injuring 45 (compared to 20 in 2017). Moreover, while there was a 21 per cent decrease in suicide attacks in 2018 (compared to 2017), the number of people killed by suicide attacks in 2018 actually increased by 11 per cent (from 286 in 2017, to 317 in 2018).
2.69.The security situation varies across the country, however, and militant attacks can occur anywhere. Balochistan faced the most significant security challenges in 2018, due to activity by both religious and nationalist non-state actors. While Khyber Pakhtunkhwa, including the former FATA, reported the highest number of terrorist attacks (125 attacks, killing 196), Balochistan reported the second highest number of attacks (115), but claimed the highest death toll (354). Sindh ranked third (12 attacks, killing 19), Gilgit-Baltistan fourth (5 attacks, killing 5), Punjab ranked fifth (4 attacks, killing 20), and Azad Jammu and Kashmir ranked last (1 attack, killing 2). The highest decrease in attacks (compared to 2017) was reported in Punjab (71 per cent decrease), followed by AJK (67 percent), Karachi (62 percent), Sindh excluding Karachi (57 percent), Balochistan (30 per cent), and Khyber Pakhtunkhwa (by 19 percent).
[43]AAT MRD Ref: 1515694 (26 September 2019) and AAT MRD Ref: 1713270 (16 April 2021).
[44]DFAT Country Information Report: Pakistan (20 February 2019) at 18.
I further note the following extract of country information:[45]
[45]DFAT Country Information Report: Pakistan (20 February 2019) at 19.
Security Operations
2.75.The Pakistan armed forces have launched several security operations in Pakistan due to terrorism and the volatile security environment. Operation Zarb‑e‑Azb commenced in June 2014 and targeted terrorist groups, including the TTP, in North Waziristan (NWA), former FATA. Zarb-e-Azb spread to other parts of the former FATA and Khyber Pakhtunkhwa, and involved the Rangers, a paramilitary security force, and intelligence operations in Balochistan and Karachi to target terrorist, separatist and criminal groups.
2.76.In December 2014, the APS attack led to the NAP, which, together with Operation Zarb-e-Azb, formed a civil-military effort to combat terrorist, separatist and criminal groups across Pakistan. The NAP ended Pakistan’s unofficial moratorium on the death penalty, established military courts to try suspected militants, targeted sources of finance for militant organisations, took measures to restrict hate speech, and committed to policy reforms, particularly in the former FATA. In 2018, the Government announced its second National Security Policy, and the Ministry of Interior is reportedly preparing NAP-2.
2.77.Observers credit Operation Zarb-e-Azb, its successor Radd-ul-Fasaad, and the NAP with a significant reduction in the number of violent and terrorism related attacks in Pakistan. In 2018, up to 262 reported terrorist attacks killed 595 people. This is a significant decrease from 2013, when the terrorist death toll included 3,000 civilians and 676 security force personnel.
2.78.In February 2017, the military announced Operation Radd-ul-Fasaad to succeed Operation Zarb-e-Azb in response to a series of separate attacks between 13 and 16 February 2017 across Lahore, Quetta, and Sehwan, which killed at least 100 people and left several hundred injured(JuA’s Ghazni Campaign). Radd-ul-Fassad expanded the role of the military in counter‑terrorism operations in Punjab. In July 2017, the military launched operation Khyber-IV in the Rajgal Valley, targeting Lashkar-e-Islam, Jammatul Ahrar (JuA) and the TTP. Khyber-IV also targeted ISIL connections across the border with Afghanistan’s Nangarhar province.
2.79.Local observers, including officials, in Khyber Pakhtunkhwa also reported a trend of increased security, a reduction in reported killings, and reduced fear within the community in 2018. Residents of Peshawar reported an increased sense of security in the evenings due to the enhanced military presence.
2.80.In the lead up to the 2018 election (May to July), 19 terrorist attacks targeted political leaders, workers and election gatherings, rallies and offices, an 87 per cent decrease from the 148 attacks recorded prior to the 2013 elections (March to May). Nevertheless, the lethality increased, with 215 deaths perpetrated by ISIL and the TTP during the 2018 election campaign, compared to 179 deaths perpetrated by nationalist groups, the Taliban and other groups in 2013. Incidents of election related political violence declined from 80 incidents in 2013 (March to May) to 13 in 2018 (May to July).
Two things emerge from an assessment of this and other comprehensive country information about the general security situation in Pakistan, namely that there is a generalised experience of religious, sectional and other forms of violence that is difficult for members of the Australian community to comprehend. The agents of harm perpetrating this generalised criminal violence include (but are not limited to): the Taliban in Pakistan; both Sunni and Shia extremists; various non-ideological criminal thugs; and other non‑state actors. Second, security operations conducted by agencies of the Pakistan state have had measurable success in addressing this environment of generalised criminal violence.
I acknowledge the applicant’s submissions about specific incidents of terrorist atrocities in 2013 and 2014 in Pakistan. These atrocities are accounted for appropriately in the country information to which I have referred above, and which I have discussed with the applicants personally at hearings. On balance, I am persuaded that the country information showing a demonstrable decline in secular violence and terrorist outrages should be preferred to the applicant’s submissions on this matter.
Regardless, I note that for the purposes of the refugee assessment, while there can be no legal presumption of state protection,[46] there is some authority for the proposition that an asylum seeker in Australia will bear a practical burden of establishing that protection is lacking.[47] I further note that the Supreme Court of Canada stated in Canada (Attorney‑General) v Ward (Ward) that in the absence of a state admission as to its inability to protect its nationals, clear and convincing evidence of a state’s inability to protect must be provided.[48] The Court continued: [49]
Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens. Security of nationals is, after all, the essence of sovereignty. Absent a situation of complete breakdown of State apparatus … it should be assumed that the State is capable of protecting a claimant.
[46]A v MIMA [1999] FCA 116 (French, Merkel and Finkelstein JJ, 23 February 1999). E.g. Koe v MIMA (1997) 74 FCR 508, Thiyagarajah v MIMA (1997) 80 FCR 543 at 567, MIMA v Prathapan (1998) 86 FCR 95, MIMA v A (1998) 156 ALR 489 (Nicholson J, 9 April 1998) and MIMA v Kobayashi (unreported, Federal Court of Australia, Foster J, 29 May 1998).
[47]E.g. SZBJH v MIAC [2007] FMCA 1395 (Scarlett FM, 3 August 2007) at [43] and SZIRA v MIAC [2007] FMCA 1082 (Nicholls FM, 7 June 2007) at [32].
[48][1993] 103 DLR (4th) 1 at 23.
[49]Canada (Attorney-General) v Ward [1993] 103 DLR (4th) 1 at 23.
In MIMA v Khawar, Kirby J referred to Ward in support of the broad proposition that as a practical matter in most cases, save those involving a complete breakdown of the agencies of the state, decision‑makers are entitled to assume (unless the contrary is proved) that the state is capable within its jurisdiction of protecting an applicant.[50] Accordingly, I have proceeded on the basis that the Pakistan state ‘is capable within its jurisdiction of protecting [the] applicant(s)’.
[50](2002) 210 CLR 1 at [115]. In A v MIMA [1999] FCA 116 (French, Merkel and Finkelstein JJ, 23 February 1999) the Full Federal Court characterised the presumption that ‘nations should be presumed capable of protecting their citizens’ as ‘a presumption without a basic fact’ and therefore as ‘a rule of law relating to the existence of a burden of proof [which] has no part to play in administrative proceedings which are inquisitorial in their nature’. Accordingly, the Court agreed with the trial judge that there was no foundation in authority or principle which should lead it to accept the existence of a presumption in terms of Ward. The apparent conflict between these cases may be explained by the different ways in which Kirby J and the Full Federal Court in A characterised the reference in Ward to the presumption of protection.
The relevant assessment of state protection in relation to a complementary protection assessment for the purposes of s.36(2B)(b) is differently framed and the assessment of the available standard of protection in a receiving country for those purposes is on the basis of ‘international standards’.[51]
[51]MIAC v MZYYL (2012) 207 FCR 211 at [36]–[37].
Nevertheless, the dispositive consideration relating to this aspect of the applicant’s claims is not the adequacy of state protection with respect to generalised violence within Pakistan. What appears to be dispositive in this instance is the reference to ‘systematic … conduct’, which reflects the jurisprudence about the meaning of persecution. For example, in Chan v MIEA, McHugh J, in the context of the previous legislative framework, stated:[52]
The notion of persecution involves selective harassment ... [It is not] a necessary element of “persecution” that the individual should be the victim of a series of acts. A single act of oppression may suffice. As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, she is “being persecuted” for the purposes of the Convention. (emphasis added)
[52]Chan v MIEA (1989) 169 CLR 225, per McHugh J at 429–430. His Honour supported this proposition by reference to Periannan Murugasu v MIEA (1987) 217 ALR 17, where Wilcox J had stated at 23 ‘[t]he word “persecuted” suggests a course of systematic conduct aimed at an individual or at a group of people. It is not enough that there be fear of being involved in incidental violence as a result of civil or communal disturbances’.
The body of case law that has subsequently developed around His Honour’s use of the expression ‘systematic conduct’ in that case is instructive.[53]
[53]See for example Mohamed v MIMA (1998) 83 FCR 234, Abdalla v MIMA [1998] FCA 1017 (Burchett, Tamberlin and Emmett JJ, 20 August 1998), Chopra v MIMA [1999] FCA 480 (Lee, Whitlam and Weinberg JJ, 23 April 1999), Haji Ibrahim v MIMA (1999) 94 FCR 259 at [25], MIMA v Hamad (1999) 87 FCR 294. In MIMA v Hamad, the Full Federal Court stated at [17]: ‘The phrase “systematic conduct” can be, and often is, used in two senses – either to refer to the motive, or evidence revealing the motive for the acts of the perpetrator or alternatively to refer to a number of acts or the volume of acts which are necessary before persecution is established.’ The Court stated that McHugh J had used the phrase in the first sense in Chan. In Haji Ibrahim, the Full Federal Court similarly observed at [25] that the word ‘systematic’ may be used in two alternative senses: ‘One sense is that of deliberate or premeditated or intended conduct, of acting or carrying out actions with a premeditated intent. The other sense is that of habitual behaviour according to a system, regular or methodical. Where those words have been used to indicate the former sense, there will be no error of law. Where those words have been used to indicate a requirement that it is necessary to show a series of incidents or a course of conduct over time involving persecution, so that persecution will not be shown to exist if there is only an isolated incident, it will demonstrate an error of law on the part of the Tribunal’. This analysis was not disturbed on appeal to the High Court: MIMA v Haji Ibrahim (2000) 204 CLR 1.
In MIMA v Haji Ibrahim, McHugh J explained that his use of the expression ‘systematic conduct’ in Chan was not intended to mean that there can be no persecution for the purposes of the Convention unless there is a systematic course of conduct by the oppressor; rather it was used as a synonym for non-random.[54] His Honour held that:[55]
It is an error to suggest that the use of the expression “systematic conduct” in either Murugasu or Chan was intended to require, as a matter of law, that an applicant had to fear organised or methodical conduct, akin to the atrocities committed by the Nazis in the Second World War. Selective harassment, which discriminates against a person for a Convention reason, is inherent in the notion of persecution. Unsystematic or random acts are non-selective. It is therefore not a prerequisite to obtaining refugee status that a person fears being persecuted on a number of occasions or “must show a series of coordinated acts directed at him or her which can be said to be not isolated but systematic”.
[54]MIMA v Haji Ibrahim (2000) 204 CLR 1 at [95].
[55]Ibid at [99].
The question of whether certain conduct is ‘systematic’ is distinct from the qualitative assessment which is required to determine whether conduct amounts to ‘serious harm’. In VSAI v MIMIA, Crennan J stated that where conduct shown to be serious harm falls to be assessed as to whether it is ‘systematic conduct’, it would be wrong to require the applicant to show anything more than that it is deliberate or premeditated, that is, motivated. It would not be necessary to show that the conduct is widespread or frequently recurring. However, Her Honour observed that frequency or regularity may be relevant to determining whether conduct amounts to ‘serious harm’ if the isolated incidents can be described as involving minimal or low level harm.[56] Similarly, the Full Federal Court observed in SZTEQ v MIBP that ‘systematic’ is used in the same way that ‘discriminatory’ is used – to direct the decision‑maker’s attention to the motivation of the alleged persecutor. It conveys deliberate behaviour on the part of the persecutor, rather than behaviour that is random or accidental.[57]
[56]VSAI v MIMIA [2004] FCA 1602 (Crennan J, 8 December 2004) at [53].
[57]SZTEQ v MIBP [2015] FCAFC 39 (Robertson, Griffiths and Mortimer JJ, 24 March 2015) at [72]. See also SZTIB v MIBP [2015] FCAFC 40 (Robertson, Griffiths and Mortimer JJ, 24 March 2015) and BZAFM v MIBP [2015] FCAFC 41 (Robertson, Griffiths and Mortimer JJ, 24 March 2015). Note that these comments are obiter.
The statutory test does not displace the general proposition that a single act may suffice, as long as it is part of a course of systematic (in the sense of non-random) conduct. While HajiIbrahim relates to an earlier legislative formulation, it remains law insofar as the meaning of ‘systematic’ is concerned.[58] The term ‘systematic’ should, therefore, be taken to mean ‘non‑random’ in the sense of being deliberate, premeditated or intended. It is not necessary that conduct be regular, organised or methodical.
[58]VQAD v MIMIA [2003] FMCA 481 (Scarlett FM, 16 October 2003) at [32]. See also VSAI v MIMIA [2004] FCA 1602 (Crennan J, 8 December 2004) at [53] and SBWD v MIAC [2007] FMCA 1156 (Lindsay FM, 20 July 2007) at [38].
Given that generalised violence evident in Pakistan is by definition random and perpetrated by unrelated criminal organisations, it lacks the requisite systematic quality that gives rise to protection obligations under the Act.
With reference to the complementary protection assessment at s.36(2(aa) of the Act, the qualification at s.36(2B)(c) provides that there is taken not to be a real risk that an applicant will suffer significant harm in a country if ‘the real risk is one faced by the population generally and is not faced by the applicant personally’. Although differently framed, this qualification bears some similarity to considerations relating to assessing whether the harm feared in a country is systematic and discriminatory.
The Federal Court’s view is that the natural and ordinary meaning of s.36(2B)(c) requires the decision‑maker to determine whether the risk is faced by the population of a country generally as opposed to the individual claiming complementary protection based on his or her individual exposure to that risk.[59] In SZSPT v MIBP the Court held that, while every citizen who broke a law of general application would necessarily face a risk of punishment personally, s.36(2B)(c) applied because it was no different from the risk faced by the population generally.[60]
[59]SZSPT v MIBP [2014] FCA 1245 (Rares J, 3 November 2014) at [11]–[13]. An application for special leave to appeal this aspect of the judgment was dismissed by the High Court: SZSPT v MIBP [2015] HCASL 114 (Kiefel J, 18 June 2015). See also comments of the court to similar effect in: the judgment at first instance in SZSPT v MIBP [2014] FCCA 1388 (Judge Raphael, 1 July 2014) at [15] (the provision would apply in a situation of ‘universal danger’, but not where the situation was ‘worse for a person of [a particular] ethnicity’); SZSFF v MIBP [2013] FCCA 1884 (Judge Lloyd-Jones, 22 November 2013) at [33], [49] (risk must be ‘faced by the individual personally in light of the individual’s specific circumstances’); SZTES v MIBP [2014] FCCA 1765 (Judge Cameron, 12 August 2014) at [24] (risk must be ‘particular to’ the individual); SZSRY v MIBP [2013] FCCA 1284 (Judge Driver, 13 December 2013) at [43] (risk must be faced ‘in light of [the applicant’s] specific circumstances’).
[60]SZSPT v MIBP [2014] FCA 1245 (Rares J, 3 November 2014). In this regard, the Court observed that there was no differential treatment as the law was one of general application and was not applied in a discriminatory manner: at [12]–[14].
The Court’s reasoning suggests that the ‘faced personally’ element of this qualification requires the individual to face a risk of differential treatment, or because of characteristics that distinguish them from the general populace.[61] This approach was also taken in MZAAJ v MIBP to the risk of harm from inadequate medical treatment.[62] Similarly, in SZTES v MIBP, the Court held that a risk faced ‘personally’ is one that is particular to the individual and is not attributable to his or her membership of the population of the country, or shared by that population group in general.[63] In BBK15 v MIBP the Court held that the ‘population of the country generally’ refers to the commonly understood concept of the general population, such that there is no requirement that the risk be faced by all members or every citizen of a country’s population for s.36(2B)(c) to apply.[64] These cases make it apparent that where a real risk is faced by an individual applicant, but it is the same as the risk faced by the general population, s.36(2B)(c) applies.
[61]Ibid at [11]–[15]. Contrast SZSFF v MIBP [2013] FCCA 1884 (Judge Lloyd-Jones, 22 November 2013), where the Court endorsed a submission by the Minister to the effect that where serious human rights violations in a particular country are so widespread or so severe that almost anyone would potentially be affected by them, this may disclose a sufficiently real and personal risk: at [34], [49]; however, these obiter comments should not be followed as they are inconsistent with other authorities including the appellate level judgment in SZSPT v MIBP [2014] FCA 1245 (Rares J, 3 November 2014). Nonetheless, in CLJ15 v MIBP [2018] FCA 1638 (Kenny J, 31 October 2018) the Court held that the Tribunal did not commit a jurisdictional error by incorrectly adopting the more generous approach endorsed in SZSFF as opposed to that in SZSPT: at [50]–[51].
[62]MZAAJ v MIBP [2015] FCA 478 (Pagone J, 18 May 2015) at [6] where the Court endorsed the Tribunal’s finding that the risk of harm was a risk faced by all Sri Lankans.
[63]SZTES v MIBP [2014] FCCA 1765 (Judge Cameron, 12 August 2014) at [23]–[24], citing SZSRY v MIBP [2013] FCCA 1284 (Judge Driver, 13 December 2013). In SZTES v MIBP, the Court found there was no error in the Tribunal’s finding that harm from insurgent attacks in Kabul was faced by the population generally and not by the applicant personally. An application for leave to appeal from the judgment was dismissed by the Federal Court: SZTES v MIBP [2015] FCA 719 (Wigney J, 17 July 2015).
[64]BBK15 v MIBP [2016] FCA 680 (Buchanan J, 8 June 2016) at [32].
Accordingly, to the extent that the applicant’s claims can be characterised as being based on a well‑founded fear of harm in Pakistan for the essential and significant reason of generalised acts of violence perpetrated by agents of harm including, but not limited to, the TTP, various non-ideological criminal thugs and other non-state actors, they do not give rise to protection obligations in Australia under either s.36(a) or s.36(aa) of the Act due to the lack of particularity of the harm that is required by these statutory provisions.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants Protection visas.
Dr Colin Huntly
Member
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