1723343 (Refugee)

1723343 (Refugee) [2021] AATA 4546 (22 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1723343
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Michael Hawkins AM
DATE:22 October 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 22 October 2021 at 7:13am

CATCHWORDS
REFUGEE – protection visa – Pakistan – fear of harm from extremist group – extortion attempts and threats – father assaulted – family relocated multiple times – status as westernised returnees – credibility – delay in applying for protection – first arrived in Australia on student visa – applications for working visas refused and withdrawn – claimed events happened after returning to home country for wedding – authenticity, form and contents of documents provided as corroboration – family returned to original home – anonymous adverse allegations given no weight – country information – member of family unit – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), r 1.12; Schedule 2
CASES
Kavun v MIMA [2000] FCA 370
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA [1994] FCA 535
Selvadurai v MIEA [1994] FCA 1105
Subramaniam v MIMA (FCA, Carr J,10 March 1998)
Subramaniam v MIMA (1998) VG310 of 1997
Zhang v RRT [1997] FCA 423
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 5 September 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants who claim to be citizens of Pakistan, applied for the visas on 12 April 2017. The delegate refused to grant the visas on the basis that the applicants are not refugees as defined by s.5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed to their receiving country, there was a real risk they would suffer significant harm.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Member of the same family unit
Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include the wife.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicants meet the refugee criterion, and if not, whether they are entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background:
The Tribunal has obtained the following background information from the applicant’s visa application forms, evidence presented to the delegate and the delegate’s decision:
The first-named applicant is [age] years old and a Pakistani national. The second-named applicant is [age] years old and a Pakistani national. The applicants are husband and wife and were married in Lahore, Pakistan on [in] January 2015.
The first-named applicant claims to be a Sunni Muslim born in Lahore City, Punjab Province in Pakistan.
The first-named applicant claims to have one brother and one sister in Australia. The applicant states that his brother and sister arrived in Australia before he did.
Immigration history of the first-named applicant
The first-named applicant first arrived in Australia [in] November 2011 pursuant to a [student visa], which expired on 8 November 2012.
The first-named applicant was granted a Bridging Visa A in connection with a second [student] visa application on 30 October 2012, which expired upon the grant of the applicant’s second [Student] visa on 8 November 2012. The second [student] visa expired on 22 December 2014.
On 21 November 2013, the first-named applicant lodged a [working visa] application, which was refused on 10 April 2014.
The first-named applicant departed Australia for Pakistan on [Date 1] January 2015 for his arranged marriage, which took place on [Date 2] January 2015. He then travelled with the second-named applicant to [Country 1] from [February] 2015 to [March] 2015 to attend a religious ritual. They then returned to Pakistan on [Date 1] March 2015 before he departed for Australia on [Date 2] March 2015.
On 9 September 2015, the first-named applicant lodged a second [working visa] application, which was withdrawn on 27 October 2015.
The first-named applicant was granted a Bridging Visa A in connection with a third [student] visa application on 11 December 2014, which expired upon the grant of the applicant’s third [student] visa on 22 December 2014. The third [student visa] visa expired on 7 July 2017.
On 12 April 2017, the first-named applicant lodged a Class XA, Subclass 866 (Protection) visa application, which was refused on 5 September 2017. The applicant was granted a Bridging Visa A in connection with the lodgement of this protection visa application on 19 April 2017, which continues to be in effect.
Immigration history of the second-named applicant
The second-named applicant first arrived in Australia [in] June 2015 as a dependent on the first-named applicant’s [student] visa.
On 12 April 2017, the second-named applicant lodged a protection visa application on the basis that she is a member of the same family unit as the first-named applicant. The protection visa application was refused on 5 September 2017. The applicant was granted a Bridging Visa A in connection with the lodgement of this protection visa application on 19 April 2017, which continues to be in effect.
Review
On 28 September 2017, the applicants applied for merits review of the delegate’s decision of 5 September 2017 to refuse to grant their applications for a protection visa.
Claims:
The applicants’ initial claims are summarised in their protection visa application, written claims and in the delegate’s decision.
The first-named applicant claims he completed his formative education from September [Year] to June 2007 in Lahore, Pakistan. He claims he has continued his studies since arriving in Australia on 12 November 2011. As of the time of the delegate’s decision, the first-named applicant was undertaking a Diploma in [Subject 1].
The first-named applicant claims he returned to Lahore, Pakistan on [Date 1] January 2015 for his arranged marriage to the second-named applicant, which took place on [Date 2] January 2015. He returned to Australia [in] March 2015.
The first-named applicant claims that on 27 January 2015, he received a ‘cash demand slip’ left at his home.
The first-named applicant claims that on 29 January 2015, ‘two gunmen on motorbikes tried to stop both him and his brother at gunpoint, but they escaped’ and reported to the police.
The first-named applicant claims that on 7 March 2015, he received ‘another threatening letter…at his home’ and reported to the police.
The first-named applicant claims that on 18 March 2015, his elderly father was returning from evening prayer when he was ‘approached by two face-covered persons who physically assaulted him and demanded money, otherwise they would commence killing family members’.
The first-named applicant claims the four incidents described above were perpetrated by people associated with the Tehrik-i-Taliban Pakistan (TTP).
The first-named applicant claims that since he returned to Australia after his wedding in Pakistan [in] January 2015, he has been advised by his family that they have been constantly relocating to different addresses to avoid further threats from the TTP.
The first-named applicant claims that in late September 2016, his family returned to Lahore, where through family contacts his family was provided police protection from 13 October 2016 to 20 February 2017.
The first-named applicant claims that on 25 February 2017, his family received a further threatening and demanding letter.
The first-named applicant claims that on 28 February 2017, two motorbike riders opened fire at his elder brother.
The first-named applicant claims that on 15 March 2017, his family received a further threatening letter from the TTP, which resulted in his father taking his family to an unknown location.
The first-named applicant fears that if he returns to Pakistan, he will be located by the TTP and killed.
Pre-Hearing Statement
The first-named applicant provided a pre-hearing statement and 26 annexures to the Tribunal on 24 August 2021.
The first-named applicant claims his interview with the Department was affected by incorrect or incomplete interpretation of his oral evidence, which led the delegate to make findings on the basis of incorrect information. He claims the interview was conducted with the assistance of an Urdu interpreter, who he claims was from a non-Urdu background and had very poor Urdu language skills. He also claims he was not able to fully express himself during the interview due to his mental health conditions.
Relocation in Pakistan
The first-named applicant claims his family have moved to nine different cities in Pakistan since 24 April 2015. He claims that over the last four years, he and his eldest brother contacted the police to seek protection and met with local politicians to influence TTP local leaders to stop targeting his family.
The first-named applicant claims that every time his family relocated, the TTP managed to track them down within six to eight months. He claims his family initially thought the TPP were tracking them through their mobile phones, so they changed their contact numbers. He claims his family later thought the TPP tracked them through the registration of the family car, so they sold the car and bought a new one.
The first-named applicant claims that despite his family’s relocations, the TPP continue to locate them. He claims the TPP and their allied groups exist all over Pakistan’s cities and there is no place he can hide and survive without being located by the TTP.
The first-named applicant states he has a genuine fear that if he returns to Pakistan, he will be executed by the TTP.
Current family situation
The first-named applicant claims his family are on the run from city to city to seek refuge from the TTP. He claims that over the last five years, the TTP were able to locate his family after each attempt by them to relocate. He claims the TTP made sure to let his family know that they have located them by sending letters.
The first-named applicant claims they received the first letter from the TTP on 15 March 2017. He claims that after receipt of this letter, his family left the family home on the same night and relocated to Faisalabad. He claims they stayed in different motels until they secured a rental property and moved in on 23 April 2017. He claims that on 21 November 2017, the TTP tracked down his father and brother. He claims his father and brother made a formal complaint application at the police station on 22 November 2017.
The first-named applicant claims his family relocated to Sahiwal on 22 November 2017 and secured a place to rent on 19 December 2017. He claims that the TTP tracked down his family again on 4 August 2018. He claims his family changed their mobile numbers, fearing the TTP were tracking them through their mobile phones.
The first-named applicant claims his family relocated to Muzafargarh on 4 August 2018 and secured a place to rent on 11 September 2018. He claims the TTP located his family on 15 May 2019. He claims his family then sold the family car and bought a new one to hide from the TTP.
The first-named applicant claims his family relocated and rented a place in Rahim Yar Khan [from] June 2019. He claims the TTP tracked down his family on 10 February 2020. He claims his family reported it to the police and lodged a complaint.
The first-named applicant claims his family relocated to Daska-Sialkot [in] March 2020. He claims that on 30 September 2020, his family received a letter at their rental property. He claims his family reported this to the police.
The first-named applicant claims his family relocated and rented a place in Mian Chanu [from] October 2020. He claims his family received another threat letter on 26 February 2021. He claims his brother made a complaint to the police and was told by the police to negotiate with the TTP as they have power and resources and the police “are failing to give” them protection.
The first-named applicant claims his family moved back to Lahore [in] March 2021 because they have no other options after moving to six different cities and being located each time by the TTP. He claims the TTP have shown his family that they have the network, capabilities and persistency to take their lives and money.
The first-named applicant claims that his family received another letter on 15 April 2021, where the TTP raised their cash demand to $2,000,000 Pakistan Rupees after his brother lodged another application for protection with the police. He claims the police asked his brother to negotiate with the TTP and pay them and that the “SHO” demanded his cut in making the deal and harassed his brother.
Why the TTP is chasing the first-named applicant and his family
The first-named applicant claims he was targeted by the TTP because he is perceived to be wealthy and an easy target for ransom, because he and two of his siblings have been living in Australia. He claims the TTP are aware of the low level of protection being provided by the state for the common man, so he is perceived to be an easy target.
The first-named applicant referred to country information which documents that the TTP has been involved in the kidnapping of people to support their expenses and survival.
Response to the delegate’s claim that the first-named applicant is an economic migrant
The first-named applicant claims he is not an economic migrant and that he has no intention to stay in Australia.
The first-named applicant claims his family are “well to do” and that his family have lived an easy life with everything provided for by his father. He claims he possesses a plot 10 marla in [an area] in Lahore, which carries a value of $[amount] Pakistan Rupees, which is roughly equivalent to AUD $130,000. He claims he also holds a share of the family home on the basis of his inheritance. He claims the value of his share of the family home is $[amount] Pakistan Rupees, which is roughly equivalent to AUD $25,000.
The first-named applicant claims his wife has a 50 percent share in a 30 Marla plot, which she inherited from her parents. He claims the value of her share is approximately $[amount] Pakistan Rupees, which is roughly equivalent to AUD $420,000.
The first-named applicant claims that his assets can easily support his family for over 10 years without him working a single day. He also claims to have an open employment offer for a managerial position from his elder brother’s friend who owns a [business].
Evidence:
The Tribunal has before it a range of material, including, relevantly:
(a)The applicants’ protection visa application of 10 April 2017;
(b)The applicants’ identity documents, being copies of their Pakistani passports, marriage certificate and the first-named applicant’s birth certificate, as provided to the Department;
(c)The protection visa decision record dated 5 September 2017 (delegate’s decision);
(d)The application for review form dated 28 September 2017;
(e)All documents submitted to the Department and contained in Department file CLF2017/29634 in relation to the applicants’ protection visa application, including:
·copies of four handwritten threatening letters issued by the TTP;
·copies of police reports;
·applications for case registration, legal action and protection;
·affidavit of [Mr A] (undated); and
·Pakistani national identity cards of [Mr B] and [Mr A];
(f)All documents submitted to the Tribunal in support of the applicants’ application for review, including:
·    a statement from the first-named applicant (undated) and all 26 annexures to that statement, which includes rental agreements, copies of the threat letters issued by the TTP, police reports, Pakistani national identity cards, the first-named applicant’s father’s death certificate, residential property transfer documents, affidavits of [Mr C], [Mr D] and [Ms E], a screenshot from [a real estate] website, and a letter from [a named business];
·    email correspondence from the applicant addressed to the Tribunal dated 1 September 2021 containing his response to the anonymous dob in, a partially redacted copy of which was provided to him by hand at the Tribunal hearing on 30 August 2021;
·    copies of the applicant’s qualification certificates;
·    an employment reference letter from the Director of [Company 1]; and
·    email correspondence between the applicant and [an education institution] dated from 31 August 2021 to 1 September 2021 concerning his studies;
(g)Country information from the applicant’s submissions and other sources, discussed below, including the Department of Foreign Affairs and Trade’s (DFAT) latest country information report on Pakistan, published on 20 February 2019 (DFAT’s latest report on Pakistan).
Country of reference / receiving country:

The applicants claim to be Pakistani nationals. Based on evidence provided to the Department by the applicants, and in the absence of any other evidence to the contrary, the Tribunal finds that Pakistan is their country of nationality and also their receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.
The Tribunal is satisfied on the basis of the evidence before it that the applicants do not have a right to enter and reside in any other country, therefore, the Tribunal finds that the applicants are not excluded from Australia’s protection obligations under s.36(3) of the Act.
Hearing:
The applicants appeared before the Tribunal on 30 August 2021 to give evidence and present arguments at an in-person hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages. Prior to the hearing commencing, the Tribunal spent some considerable time establishing and confirming that the applicants and the interpreter fully understood each other.
After dispensing with the hearing preliminaries, including an exhaustive description of the requirements necessary to be made out for the grant of a Protection visa, the Tribunal discussed with the applicants that to be granted a protection visa they must either be recognised as a refugee or be a person entitled to Complementary Protection.
The Tribunal explained that under Australian law, to be a refugee they must have a well- founded fear of persecution in Pakistan. This means the Tribunal must be satisfied that there is a real chance that they will face serious harm if they returned to Pakistan. The harm must be directed at them for one of the following Convention reasons: race, religion, nationality, membership of a particular social group or political opinion.
With regard to Complementary Protection, there must be substantial grounds for believing that there is a real risk they will suffer significant harm if removed from Australia to Pakistan.
The Tribunal discussed the applicants’ claims as summarised in the delegate’s decision and in the applicant’s pre-hearing statement. It confirmed that their claims as so summarised were not in dispute. The first-named applicant (hereinafter referred to as “the applicant”) stated that he was a member of a particular social group of overseas returnees who were perceived as having been westernised. The Tribunal asked the applicants whether those claims were accurate and complete. The applicants stated they were and that they did not need to change them.
The second-named applicant confirmed that she made no claims of her own.
The Tribunal engaged the applicant in a discussion in order to learn more about his background. The applicant stated that he obtained his secondary education in Lahore in Pakistan. He stated that in 2012 he was successful in obtaining a Diploma in [Subject 2]. The Tribunal noted that the applicant had arrived in Australia pursuant to a [student] Visa. The Tribunal also noticed that the applicant had applied on shore for a [working] Visa in November of 2013, but which was refused in April of 2014. Asked about this, the applicant stated that he was working for a franchisee of [Company 2] and that after the lodging of the application, the franchisee determined that he didn’t need a Manager.
The Tribunal noted that the applicant sought a further onshore [student] Visa which was granted on 22 December 2014. The applicant stated that he completed a Diploma in [Subject 3] in December of 2014.
The applicant stated that a friend of one of his brothers had [a business] in Pakistan and had suggested to him that he could have a job in the business when he returned to Pakistan and also suggested that the applicant complete some studies in [Subject 1]. The applicant said that he then commenced a Diploma in [Subject 1] in March of 2015. However, he did not complete the Diploma, but did obtain Certificates III and IV in [Subject 1].
The Tribunal inquired as to the applicant’s activities after completing the Certificates. The applicant advised the Tribunal that he continued studying into 2017. The Tribunal noted that his Student Visa expired on 7 July 2017.
The Tribunal also noticed that the applicant had lodged an onshore [working] Visa application in September of 2015, but that the application was withdrawn in October of 2015. Asked to explain the withdrawal of the application, the applicant stated that his brother-in-law had lodged the application but that he, the applicant, did not wish for that application to proceed.
Asked what the applicant was presently doing, he replied that he was self-employed as [an Occupation] and had been doing so since 2018.
He advised that he and his wife were renting a home at [Suburb 1].
The applicant confirmed that he had a brother and a sister in Melbourne, both of whom had arrived in Australia before he had.
Asked about his family, he replied that his father had passed away in 2018 and that his mother was still in Pakistan. He also offered that he was one of [number] children and that he was the youngest.
Assessment of claims and evidence, and findings:
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…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.
The Tribunal also accepts that ‘if the applicant's account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
The Tribunal has considered carefully all of the applicants’ claims, individually and cumulatively, and makes the findings set out herein.
The Tribunal is mindful of the Guidelines on the Assessment of Credibility (July 2015) issued by the Administrative Appeals Tribunal which note:
In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true.[1]
[1] Guidelines on the Assessment of Credibility (July 2015) Available at es-on-Assessment-of-Credibility.pdf
However, this should not lead to “an uncritical acceptance of any and all allegations made by” the applicant.[2]
[2] Harjit Singh Randhawa v. The Minister for Immigration Local Government and Ethnic Affairs, No. NG994 of 1993, Australia: Federal Court, 11 August 1994.
The Tribunal has strong reservations about the genuineness of the applicants’ claims.
The Tribunal has had regard to the comments of Heerey J. in the Federal Court matter of Velauther Selvadurai v MIEA and Anor [1994] FCA 1105, where at paragraph 11 of the decision His Honour states:
The applicant complained of the tribunal’s taking into account the fact that the applicant did not lodge his application for refugee status until some 20 months after he had arrived in Australia and just prior to the expiration of his visa. In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant’s alleged fear of persecution….”
A delay in seeking protection can support an adverse credibility finding as well as a finding that the applicant's fear is not well-founded: Zhang v RRT & Anor [1997] FCA 423; Kavun v MIMA [2000] FCA 370 and Subramaniam v MIMA (Carr J,10/3/98). In Subramaniam v MIMA (1998) VG310 of 1997, the Court held that even a three month delay in lodging a Protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant's fear of persecution. While a delay in making a Protection visa application by itself is not conclusive it reasonably remains an indication in the applicant's case that the claimed fear of harm in this regard is not genuine.
The Tribunal noted that the applicant had arrived in Australia on a Student Visa in November of 2011 and had had three Student Visas and had applied twice (unsuccessfully) for [working] Visas. It noted that the applicant had applied for a Protection Visa on 12 April 2017. The Tribunal noted that this was a delay of more than six years from his arrival in Australia and suggested to the applicant that that delay, read together with applications for so many other visas, and the imminent expiry of his current viand the imminent expiry of the then current student visa, might suggest that he had run out of visa options in order to stay in Australia and that as a consequence, his claims to protection might not be genuine.
The applicant provided a very animated response. He replied that when he came to Australia, he always had an intention to return to Pakistan. He referred to the valuable land that he had in Pakistan, it’s worth, the cost of living in Pakistan and that he didn’t really need to work in order to support his family in Pakistan. He stated that he could not work for ten years and still live comfortably. He again noted that he had a job offer in Pakistan. He also stated that if he wanted, he could have obtained any number of alternative visas, including a [working] visa. He said that his problems only began in 2015.
The Tribunal suggested to the applicant that if that was the case, then there was still a two-year delay in making a Protection Visa application and inquired about that. The applicant again provided a detailed response about how he had returned to Pakistan in 2015 to get married and had received his first threat letter just before his marriage date. He also referenced he and his brother being chased in their car by two motorbikes and being shot at. He stated that at that time he had no idea who his pursuers were. He said that further letters were received by his family and that his father was assaulted while the applicant was away. But he referred to a letter received by the family in March of 2017 that finally identified the author of the threat letters as the TTP. He claims that it was then that he realised he needed to apply for a Protection Visa because of the genuine TTP threat.
The Tribunal noted that it would consider that response and in light of whether the Tribunal accepted the applicant’s claims.
The Tribunal considered the applicant’s specific claims.
The Tribunal accepted that the applicant had travelled to Australia at the end of 2011 in order to pursue his studies.
The Tribunal noted the applicant’s statement that circumstances changed for him when he returned to Pakistan in January of 2015. The Tribunal asked the applicant to explain those circumstances. The applicant replied that he departed Australia for Pakistan [in] January 2015. He was returning to Pakistan to attend his wedding that had been arranged for him. He stated that he had not previously met his wife. He stated that invitations had been issued a month earlier and that the family had attended to the decorations that accompanied a traditional wedding.
The applicant stated that on 27 January 2015 he received his first slip. Asked what a slip was, he replied a threat letter. Asked what the threat letter said, he replied that it was a demand for 50 million lacks. The Tribunal asked what that amount represented in Australian dollars. After some discussion, he replied about $5,000.00, but the second applicant advised that 100,000 lacks is the equivalent of $1.00. (At the time of writing this decision, the Tribunal noted that based on that formula, the sum would be about $500.00 equivalent).
The applicant stated that he did not take the letter seriously as he thought it was part of a bachelor party prank. He went on to explain that his friends were very keen for him to fund a bachelor party.
The Tribunal noted from the Department file a purported copy of the threat letter with an accompanying translation which read, “I know that you have come from Australia. Give us Rupees 5,000,000 otherwise we shall kill you”.
The applicant then stated that two days later, whilst he and his brother were out shopping for a suit for the wedding, two men on motorbikes tapped on the window of their car. He then explained that his brother, who was driving, accelerated away but the motorbikes gave chase, eventually firing shots at the car.
The applicant stated that these were the same people who had made the threat to him. The Tribunal inquired as to how he could know that. The applicant agreed that it was an assumption on his part and that at that stage he had no idea who these people were.
The Tribunal asked the applicant whether he and his brother had filed a police report. The applicant replied that he had. The Tribunal asked the applicant how that police report was made. He replied that they attended the police station and made a verbal report. Asked whether the police filed a report, the applicant said they did. The Tribunal asked the applicant whether they made a statement. He said that they did. The Tribunal asked the applicant whether he was asked to sign the statement. He replied that he did. The Tribunal asked the applicant again whether he was certain that he had signed the statement. He replied that he was.

100. The applicant went on to explain that the wedding took place over four days from [Date 2] January 2015. He confirmed that there was no alcohol served at the wedding.
101. The applicant stated that he and his new wife travelled to [Country] [in] February 2015. He clarified that it was not a honeymoon, as the delegate had stated in his decision. Instead he said it was a religious ritual that they had been planning to attend and they did, staying in [Country] for 20 days. He said he and his wife returned to Pakistan [in] March 2015.
102. The Tribunal invited the applicant to go on and discuss the incidents that took place whilst he was away.
103. The applicant stated that on 7 March 2015 a further threat letter was delivered to his family. The letter stated that it was known that his children had returned and it demanded money. The applicant also stated that on 18 March 2015 his father was assaulted on his way to prayer. He told the Tribunal that his father was assaulted by two people, again he assumed they were the same two men as before. He stated that his father was told that he must “fulfil our demands or your children get killed”.
104. The Tribunal asked the applicant whether his father or brother had gone to the police to make a complaint. The applicant confirmed that they had, again confirming that the police had taken a statement and that his father had signed the statement.
105. The applicant stated that he learned of this when he returned to Pakistan [in] March 2015.
106. The Tribunal asked the applicant why he returned to Pakistan. He replied that he had to get a visa for his wife. He said that he then returned to Australia [in] March 2015 but that his wife came to Australia in June of 2015 after receiving her visa.
107. The Tribunal asked the applicant whether his wife had been harmed in any way before her departure for Australia. He replied that there were no problems with his wife or her family.
108. The Tribunal noted from the applicant’s written claims that the family continued to receive threat notices and proceeded to relocate within Pakistan. In fact, the applicant stated that the family relocated some nine times before ultimately settling back into their home on 10 March 2021. They had not moved since.
109. The Tribunal noted from the Department file that there were a series of copies of purported threat letters, statements or letters made to police and assorted rental agreements.
110. Prior to the hearing, the applicant produced further copies of purported threat letters, rental agreements and letters made to police and their respective translations.
111. The Tribunal entered into an extensive discussion with the applicant about the documents he had submitted prior to the hearing. As mentioned above, the documents were predominantly copies of lease agreements, threat letters and their translations and letters to various police stations and their translations. The Tribunal discussed at length the form, substance and purpose of each document.
112. To summarise the applicant’s statements, it would appear that each time the family relocated, it would only be a matter of time, either weeks or months, before the family was found and new threats delivered. The family would then up and leave, relocate and sign a new lease agreement. The submitted documents were generally of a common form, being a copy of a tenancy agreement of one page length, with the applicant’s brother, [Mr D], as the tenant, mostly for 12 months, a couple for 11 months and one on a monthly tenancy. Each of the leases had a purported copy of the National Identity Card of the landlord on the reverse side of them.
113. As explained, each move by the applicant’s family was preceded by a letter to the local police station.
114. The letters referred to incidents that took place on 27 November 2017, 15 May 2019, 30 September 2020, 26 February 2021 and 15 April 2021.
115. Copies of the original letter to the respective police stations are all handwritten on blank paper.
116. The threat letters submitted are all copies of handwritten notes on a various assortment of note papers of varying sizes. Each of the notes (since March 2017) are signed and underneath the signature appears the letters “TTP”. Each of the notes are written on blank paper and, interestingly, do not appear on any official letterhead of the TTP. They are all undated.
117. The Tribunal also noted with interest that not all of the purported threat letters contained demands for money, most were general statements about the power of Allah. The Tribunal notes that was is claimed to be the last note (all of the notes are undated), purportedly received on 15 April 2021, makes a demand for 20 million, but does not specify the currency.

118. The Tribunal noted additional documents submitted included references to land titles purportedly held by the applicant and the second-named applicant and supporting declarations of the applicant’s brother that the applicant’s inheritance has been duly invested on his behalf. Asked the relevance of those documents, the applicant replied that they are evidence of his land holdings and wealth in Pakistan.
119. The Tribunal discussed its many and varied concerns in relation to the documents submitted by the applicant. The first was in relation to the purported police reports. When asked during the hearing for details of how the applicant had made his police report, he replied that he had attended upon a police station, provided a verbal report to the police who wrote down his statement and asked him to sign it. The Tribunal noted that the letters submitted to it were not statements made by the police, but letters written by the applicant’s brother making a complaint. They did not accord with the practice of making a verbal statement to the police and signing a statement prepared by the police. The letters are not police reports or FIRs, (First Information Reports), which are the common practice of commencing a police complaint in Pakistan.
120. In response, the applicant stated that the practice is for a complainant to write a complaint on plain paper and that the police then copy it onto their statement. He said that the police do not give copies of that.
121. The Tribunal noted the less than satisfactory corroborative nature of the evidence tendered purportedly in support of police reports having been filed. The Tribunal noted that those letters could have been written at any time. There is simply no evidence of them having been received by the police.
122. The Tribunal discussed Country Information with the applicant as to the prevalence of fraud in Pakistan. It cited the DFAT report at paragraph 5.71, which stated that document fraud is widespread for forms of documentation not issued by competent central authorities such as NADRA.
123. At paragraph 5.73, it notes that FIRs (First Information Reports) made to police use standard forms with the relevant information written in by hand, and are relatively simple to counterfeit. Reports exist of police accepting bribes to verify fraudulent FIRs. DFAT does not consider the existence of an FIR to constitute evidence that the events described in the FIR actually occurred.
124. The Tribunal noted that notwithstanding the issue of fraud, the information about FIRs was contradictory to the claimed practice of making police reports and the inability to obtain copies of police reports as stated by the applicant. It was clear from the Country Information that copies of police reports could be obtained, but equally, verifications obtained by fraud could also be obtained.
125. The Tribunal discussed with the applicant its concerns about the purported threat letters. The Tribunal had noted that none of the letters had been written on any form of letterhead and as previously noted, were all handwritten on plain note paper of varying sizes.
126. The Tribunal considered country information it had obtained from DFAT’s latest report on Pakistan relevant to the applicants’ claims about the TTP:
2.84 Despite official disruption efforts, the TTP and its affiliated networks remained the greatest security threat to Pakistan, with the highest overall number of attacks in 2018. TTP is the largest banned group in Pakistan and was responsible for 79 terrorist attacks across the country, resulting in 185 fatalities and 3336 injuries in 2018 (compared to 70, causing 360 fatalities and 360 injuries in 2017). The TTP—effectively an umbrella organisation for predominantly Pashtun Sunni militant groups—splintered into several separate groups reflecting Operation Zarb-e-Azb, leadership tensions and the rise of ISIL. Nevertheless, in early 2017, a number of these splinter groups re-joined the TTP or pledged support for its leader. The TTP and its splinter groups maintain a separate identity from the Afghan Taliban, although they remain ideologically aligned. TTP's level of cohesion waxes and wanes depending on the leadership. Even when TTP undergoes cyclical splintering, the disparate networks remain dangerous and willing to break any short-term agreements they may reach with the Pakistani state.

127. The TTP has a wide geographical spread in Pakistan and the danger that the applicant faces from them is relative to the particular circumstances of the applicant. Overall, the TTP is present in all four of Pakistan’s provinces.[3] Punjab province, of which Lahore is the capitial, is the traditional home of Punjabi extremists such as Sipah-e-Sahaba, Jaish-e-Mohammed and Lashkar-e-Jhangvi.[4] These groups are thought to be linked with the TTP and are sometimes referred to, collectively, as ‘the Punjabi Taliban’.[5]
[3] South Asia Terrorism Portal, ‘Tehrik-e-Taliban Pakistan (TTP)’.
[4] Centre for Research and Security Studies, ‘CRSS Annual Security Report’, April 2017.
[5] The Economist, ‘Into the heartland’, 3 June 2010.
128. There is a history of criminal groups sending extortion letters to individuals in Pakistan, fraudulently claiming to be from the TTP.[6] Reporting on this in November 2013, Agence France Presse (AFP) stated that criminals were ‘exploiting the terrifying reputation of the Pakistani Taliban to extort money’ from individuals.[7] The article includes an example of a businessman in Islamabad who received an extortion letter, headed with the banner of the Pakistani Taliban and signed by a TTP chief. Although the signature and letterhead were fake, the recipient took the threat seriously and paid the ransom demanded. The TTP themselves have acknowledged the trend and have attempted to distance themselves from such letters by posting a statement in 2013 denouncing extortion attempts.[8]
[6] Agence France-Presse, ‘Pakistani extortionists cash in by posing as Taliban’, 17 November 2013.
[7] Agence France-Presse, ‘Pakistani extortionists cash in by posing as Taliban’, 17 November 2013.
[8] Agence France-Presse, ‘Pakistani extortionists cash in by posing as Taliban’, 17 November 2013.
129. Limited reporting is available specifically regarding threat letters issued by the TTP; the majority of reporting focuses on the Afghan Taliban. The limited information available indicates that the TTP and other associated groups, including the Haqqani Network, is responsible for sending threatening letters, extortion demands and death threats to individuals, despite distancing itself from sending threatening letters for the purpose of extorting money.[9]
[9] Agence France-Presse, ‘Pakistani extortionists cash in by posing as Taliban’, 17 November 2013; Gandhara, ‘Taliban See Resurgence in Northwestern Pakistan’, 23 August 2019; Critical Threats, ‘Pakistan Security Brief’, 5 March 2014; CNN, ‘The Haqqani Network, a family and a terror group’, 14 September 2009.
130. A fact-finding mission report on Pakistan published by the Austrian Federal Office for Immigration and Asylum provides as follows:[10]
The practice of sending threat letters is generally uncommon among the lower middle and lower classes and usually only high profile politicians, journalists and members of NGOs who are publicly active against militant groups receive threat letters. Here again, the local experts interviewed are of the opinion that a “low-profile” person will not receive a threat letter.
A much bigger problem seems to be the practice of extortion through which criminals and/or militants obtain money by making use of threats and intimidation. There are many reports of militants extorting money from the wealthy and it is quite obvious that only people with sufficient means will be targeted in this manner. It is also common for criminals to pretend to be militants and exploit the fear of the people in order to obtain money more easily.
[10] Austrian Federal Office for Immigration and Asylum, ‘Fact finding mission report: Pakistan’, September 2015, at 40-41.

131. The United States Department of State’s country report on terrorism provides that the TTP “likely raises most of its funds through kidnapping-for-ransom payments, extortion and other criminal activity’.[11]
[11] United States Department of State, Country Reports on Terrorism, 2019, at 301.
132. The Tribunal also considered country information cited in the applicant’s submissions:
Although each TTP faction is independently financed, the TTP funds its operations through four primary means. First, the TTP conducts kidnappings—usually of wealthy businessmen, aid workers, journalists, soldiers, and government employees—in order to gain money through ransom.[1] The TTP, which claims to condemn kidnapping for ransom, argues that abductions intended to “advance Islamic agenda” are acceptable.[2][12]
Financial sources: Sources that allow Tehrik-e-Taliban to continue are varied including, donations (from domestic and international sympathizers), illegal activities, specifically kidnapping for ransom, robbery; taxes, penalties, extortion money; funds from other terrorist organizations and exploitation of natural resources, archaeological sites.[13]
[12] Stanford Centre for International Security and Cooperation, ‘Tehrik-i-Taliban Pakistan’ (2018)
[13] International Relations Insights & Analysis, ‘Tehrik-e-Taliban – Analyzing the Network of Terror’ (January 2015)

133. The Tribunal noted that the applicant was not a high profile politician, journalist or member of an NGO. It also noted that the TTP itself distanced itself from sending threatening letters for the purposes of extorting money.
134. Asked to comment on that Country Information, the applicant said he did not believe that it could be a gang involved. He said that because of the words used, it must be the TTP.
135. The applicant went on to add that the attackers of his father in November 2017 stated they were the TTP.
136. After discussing with the applicant the concerns it had about the documents provided as evidence of support for his claims, the Tribunal discussed concerns it had in relation to the types of evidence that had not been submitted by the applicant.
137. Firstly, the Tribunal noted that no statement had been tendered from any of his family members in support of the claims that he had made about the incidents that affected them directly. There was no statement from his mother or any of his other family members who had been required to relocate up to nine times as claimed by the applicant. There was no statement from his brother who was the subject of the claimed attacks. No statement from his brother who was a lawyer attesting to or supporting the claims of the applicant.
138. There were no letters from his relatives in Australia attesting to any difficulties that they had, or limitations on their travel, back to Pakistan as a consequence of them and the applicant being in Australia.
139. There was only an “affidavit” of a [Mr A], again undated, that attests to a rental arrangement with the applicant’s brother from 29 April 2015. It reports that after four months, unknown men approached him inquiring after the tenant (the applicant’s brother). After a few days, men returned and they opened fire, though the affidavit does not report who or what was shot at. It does not identify the men. It does not connect the applicant. The second event does not connect the applicant’s brother.
140. In response to that, the applicant stated that the family had given him all of the records that he had tendered as evidence. The Tribunal countered by stating that no statement from any family member linked him to the grief they were suffering or provided direct evidence of events that had occurred.
141. The Tribunal also expressed its concern that no actual police reports, or FIRs, had been obtained, despite the numerous purported complaints that had been made, even allowing for their propensity to be fraudulently obtained.
142. It is conceivable, and in light of the country information about the prevalence of fraudulently created documents in Pakistan, highly plausible, that all of the key evidence submitted, being the lease agreements, threat letters and letters to the police stations, were prepared for the sole purpose of attempting to establish corroboration of the applicant’s claims and all of those documents lack authenticity.
143. The applicant referred to Country Information in his submission that stated that the TTP is involved in kidnapping people to support their expenses and survival. Specifically, he noted that the TTP conducts kidnappings – usually of wealthy businessmen, aid workers, journalists, soldiers and government employees – in order to gain money through ransom. The TTP, which claims to condemn kidnapping for ransom, argues that abductions intended to “advance Islamic agenda”, are acceptable.
144. In response, the Tribunal has noted that given all of the purported threat letters issued and the claim that the TTP tracked down the family on numerous occasions, prompting the family to relocate each time, there had been no kidnapping of any of the applicant’s family, the Tribunal further noting that the purported threat letters have been claimed to have been issued over a period of six years and that there had been no consequent ransom demands.
145. The Tribunal accepts the credible Country information indicating that, even where such letters are received by ordinary Pakistan citizens, they are not always authentically produced by the TTP, as the same methodology has been adopted by organised criminal gangs operating in Pakistan under the guise of TPP backed groups.
146. Given the country information about the reticence of the TTP to issue demand letters for money, and the practice of gangs or criminals fraudulently claiming to be the TTP, the prevalence of the practice of fraudulently creating documents, and the lack of any corroborative statement from any other person linking the applicant to the circumstances that have claimed to have unfolded in Pakistan to his family, and the lack of any police report or FIR evidencing complaints actually made to the police, the Tribunal is of the view that the documents submitted, including the lease agreements, the threat letters and the complaint letters to the police have been created solely for the purpose of supporting the applicant’s claims.
147. The applicant referred regularly to the wealth of the applicant and his wife and also his family, claiming that his family were “well to do”. But again, the Tribunal notes that based on the applicant’s claims, the TTP has had numerous opportunities to kidnap a family member and demand a ransom, but it has not done so. In fact, the family has now purportedly returned to its original home in Lahore. And still no family member has been kidnapped.
148. His evidence in relation to the making of his police complaint in January 2015 is inconsistent with country information about making a report, signing a statement and obtaining a copy of a FIR. The applicant was asked twice as to how the report was made – he stated he made a verbal report and signed it. This is inconsistent with the evidence tendered. No FIR’s or police reports were tendered in evidence.
149. The shortcomings in the applicants’ evidence was made clear to them during the hearing. The Tribunal advised the applicants that its decision may take a month to deliver. The Tribunal notes that it has now been nearly two months since the hearing date. The Tribunal has noted that the applicants have made at least two inquiries as to the status of the Tribunal’s decision since the hearing date. It notes that the applicants replied to the Tribunal on 1 September 2021 responding again to adverse information contained in a letter sent to the Tribunal (referred to below). However, the applicants have not adduced any additional evidence in support of their claims, or which could possibly corroborate their claims.
150. The Tribunal rejects the claims of the applicant in relation to the receipt of threat letters, attacks, relocations and police reports having been made to him or any family member.
151. Notwithstanding the Tribunal’s findings in relation to those claims, the Tribunal went on to consider the generalised claim of fearing persecution based on them being returnees from the west.
152. The Tribunal considered country information it had obtained from DFAT’s latest report on Pakistan in relation to the treatment of returnees:
Treatment of Returnees
Exit and Entry Procedures
5.33 Pakistani citizens require a valid passport to enter or exit Pakistan under Articles 3 and 4 of the Passports Act (1974).
Conditions for Returnees
5.37 DFAT understands the Ministry of Overseas Pakistanis is drafting a policy for lawful and illegitimate returnees. In practice, returnees tend to leave Pakistan on valid travel documents and therefore do not commit immigration offences under Pakistan law. Those who return voluntarily and with valid travel documentation are typically processed like any other citizen returning to Pakistan.
5.38 The government issues ‘genuine returnees’ with temporary documents when they arrive. A genuine returnee is defined as someone who exited Pakistan legally irrespective of how they entered destination countries. Those who are returned involuntarily or who travel on emergency travel documents are likely to attract attention from the authorities upon arrival. MOI will interview failed returnees and release them if their exit was deemed to be legal, but may detain those deemed to have departed illegally. People suspected of or charged with criminal offences in Pakistan are likely to face questioning on return, irrespective of whether they departed legally or not.
5.39 DFAT understands that people returned to Pakistan involuntarily are typically questioned upon arrival to ascertain whether they left the country illegally, are wanted for crimes in Pakistan, or have committed any offences while abroad. Those who left Pakistan on valid travel documentation and have not committed any other crimes are typically released within a couple of hours.
5.44 Returnees are typically able to reintegrate into Pakistani community without repercussions stemming from their migration attempt, although involuntary returnees who took on debt to fund their migration attempt tend to face a higher risk of financial hardship and familial shame. NGOs report that less than 0.5 per cent of returnees do not reintegrate and seek to go abroad again to seek asylum.
5.45 DFAT assesses that returnees to Pakistan do not face a significant risk of societal violence or discrimination as a result of their attempt to migrate, or because of having lived in a western country. Nevertheless, DFAT notes societal or official discrimination or violence can still occur due to the reason they attempted to migrate.

153. The Tribunal noted that the applicants had left Pakistan on valid passports with valid visas. They had not departed illegally.
154. In response, the applicant stated that the government still fears the TTP. He restated that he had been westernised.
155. The Tribunal noted that many Pakistan nationals studying abroad, including within Australia, return to Pakistan without incident.
156. The Tribunal had regard to the following Country Information which states:[14]
Western influence is pervasive in many parts of Pakistan, particularly in large urban centres, Western films and music are widely available (though in many cases subject to censorship) and Western-branded chains operate throughout Pakistan. Both Urdu and English are recognised as official languages, and English is taught in many schools and is widely spoken among Pakistan’s elite.

Many Pakistanis have relatives in western countries and many more aspire to migrate abroad. Those living abroad return to Pakistan frequently to visit relatives. DFAT assesses that individuals are not subject to discrimination or violence on the basis of having spent time in the West.
[14]DFAT (2016) Country Information Report: Pakistan. 15 January 2016 at [3.62].

157. And then the Tribunal reiterated the country information contained in the latest DFAT Report that stated that:
5.45 DFAT assesses that returnees to Pakistan do not face a significant risk of societal violence or discrimination as a result of their attempt to migrate, or because of having lived in a western country.

158. Accordingly, given the Tribunal’s findings above and that the applicant has returned to Pakistan once already as a voluntary returnee and has family in Pakistan the Tribunal finds that there is less than a real chance of serious harm to the applicant now or in the reasonably foreseeable future if the applicant were to return to Pakistan, on account of his belonging to the particular social group of returnees or westernised returnees.
159. The Tribunal inquired of the second applicant as to whether she wished to make a statement. The second applicant stated that she believed her life was in danger if they returned to Pakistan. She said it was a life issue and that she wanted to live safely in Australia. She stated that she cannot live a normal life if she is always living in fear and that she wanted to live a comfortable life like normal people.
160. Finally, the Tribunal discussed with the applicant a letter it had received prior to the hearing. The Tribunal provided a redacted copy of the letter to the applicant for comment.
161. In short, the letter sought to advise the Tribunal that the applicant was “playing with the visa system”. It suggested that he had never attended college and that he had applied for various visas in order to stay permanently in Australia. Whilst he was meant to be studying, he was performing cash-in-hand jobs. The letter alleges that the applicant has been working in Australia and sending all of his savings to Pakistan where he and the second-named applicant have bought residential land in Lahore where they are intending to construct their house. The letter suggested that the reason they applied to the Tribunal was to buy time so that they can earn more money. It alleges that the family has no threat from the TTP and states that the applicant’s family are still living in the same address and at the same house, further alleging that they bribed the local police in Pakistan to get the required documents.
162. Finally, the author alleges that the applicant’s brother and sister, both residing in Melbourne, have been travelling to Pakistan on a normal basis before the COVID travel restrictions. The letter went on to allege that the applicant is a Muslim religious extremist and provided copies of his Facebook profile.
163. The applicant was invited to respond.
164. In relation to the comment about him being an extremist, he suggested the claim was laughable.
165. He further added that the allegations are inaccurate and could have been made by someone who doesn’t like him. He then suggested that the allegations may have been made by the second applicant’s sister with whom they have recently had a fight.
166. The applicant reiterated this response in a letter to the Tribunal dated 1 September 2021.
167. The Tribunal advised that it was less interested in who made the claims, rather the nature of the claims, but confirmed it would not be giving the letter any weight by virtue of the nature of its anonymity and the Tribunal’s inability to test the allegations by interviewing the author of the letter.
168. In the applicant’s pre-hearing statement, he refers to his “degraded mental health condition”. However, he made no further reference to it during the hearing, and produced no evidence in support of such a condition.
169. The Tribunal has found that the applicant does not have a well-founded fear of serious harm now or in the reasonably foreseeable future if he was to return to Pakistan on the basis of the threats referred to in the applicant’s claims for protection or because of imputed political opinion based on his being westernised, or his membership of a particular social group of returnees having been westernised.
Cumulative claims
170. Having considered all of the applicants’ claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicants, the Tribunal finds that there is no real chance that the applicants will suffer persecution as a consequence of imputed political opinion based on his being westernised, or his membership of a particular social group of returnees having been westernised, or any other reason if he returns to Pakistan now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to Pakistan. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia, there is a real risk that they will suffer significant harm?
171. The Tribunal has considered the applicants’ claims under complementary protection.
172. In view of the above findings as to credibility and genuineness of the applicants’ claims and to the real chance of serious harm, the Tribunal is not satisfied that there is a real risk that the applicants will suffer significant harm because of imputed political opinion based on his being westernised, or his membership of a particular social group of returnees having been westernised, or any other reason if he returns to Pakistan now or in the reasonably foreseeable future.
173. The Tribunal accepts and understands that there is generalised violence in parts of Pakistan but, as explained to the applicant, the applicant is exposed to the same risk that all other Pakistanis are exposed to, especially in relation to the activities of criminals and gangs and others purporting to be, or to be affiliated with, the TTP. The applicant did not identify any other particular personal risk of harm to the applicant.
174. Again, and whilst not specifically claimed, the Tribunal has considered his statement relating to his degraded mental health. The Tribunal accepts that the health care system is not at a comparable level in Pakistan as it is in Australia, care is available both privately and via the public health system.[15] Consequently, the Australian Government’s removal of the appellant will not arbitrarily deprive him of his life……it will deprive him of his present access to medical treatment”.[16]
[15] DFAT Report, Section 2.
[16] SZDCD v MIBP [2019] FCA 326.
175. Accordingly, the Tribunal finds that there is no real risk that the applicant would suffer significant harm as a result of his current medical condition in the event that he returns to Pakistan.
176. In relation to the second-named applicant’s closing statement, the fact that a person may enjoy less favourable social, economic or cultural rights in another country does not, of itself, give rise to a non-refoulement obligation. It may lead to a degrading condition of existence, but that does not constitute degrading treatment for the purposes of the Act. “Treatment” does not cover degrading situations arising from socio-economic conditions. “Treatment” must represent an act or an omission of an individual or one that can at least be attributed to him or her.[17]
[17] CCPR Commentary, Manfred Nowak, NP Engel, 1993, p.157.
177. Further, and as maintained regularly during the hearing and in his claims, the applicant does own land in Pakistan, and the sale of which would enable him to maintain his family comfortably for ten years. Furthermore, the applicant has an outstanding offer of employment. The applicant will have no concerns as to his capacity to subsist in Pakistan.
178. Having considered all of the applicants’ claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicants, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Pakistan now or in the reasonably foreseeable future.
179. Accordingly, and applying the authority in MIAC v SZQRB (2013) 210 FCR 505, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa).
Conclusion: Refugee Criterion
180. Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicants will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). Their fear of persecution is not well-founded as required by s.5J of the Act and therefore they are not refugees within the meaning of s.5H.
Conclusion: Complementary Protection
181. Considering the applicants’ individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Pakistan that there is a real risk that they will suffer significant harm.
Overall conclusion
182. The second-named applicant has made no protection claims of her own and relies upon her position as a member of the same family unit as the applicant. As such, the fate of her application depends on the outcome of the applicant’s application. It follows that the second-named applicant cannot be granted a protection visa either.
183. 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), and cannot be granted the visa.
DECISION
184. The Tribunal affirms the decision not to grant the applicants protection visas.
Michael Hawkins AM
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[2021] AATA 4546

22 October 2021

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