1729412 (Refugee)

1729412 (Refugee) [2021] AATA 2986 (24 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1729412
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Tamara Hamilton-Noy
DATE:24 June 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 24 June 2021 at 11:34am
CATCHWORDS
REFUGEE – protection visa – Pakistan – fear of harm from relatives over land dispute and broken engagement – harassment, threats and assault – no action by police – family members or friends killed or injured – credibility – vague and inconsistent claims and evidence – voluntary return to home country – delay in applying for protection – applied after student visa cancelled – late provision of first information reports – no response to tribunal’s invitation to comment or appearance at hearing – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1)(a), 36(2), 65, 424A, 426A
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
Background

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 27 October 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant first arrived in Australia [in] October 2012 on a [Student] visa. The applicant departed Australia for Pakistan [in] October 2013 and returned to Australia [in] November 2013.
On 9 July 2016, the applicant’s Student visa was cancelled. On 20 July 2016, he applied for Protection.[1]
Claims and Evidence
[1] Movements and application dates taken from Department decision, a copy of which was provided by the applicant to the Tribunal.
Evidence before the Department
In his written protection application, the applicant said that he left Pakistan as he received constant life threats from his extended family. Before arriving in Australia, he stated he went through land and relationship disputes with his family, firstly when his paternal aunt illegally made a claim on land belonging to his father, which was meant to be inherited by the applicant and his brother. While a court case was pending, the ‘other side’ took matters into their own hands and threatened the applicant and his family. This dispute prompted the applicant to end his engagement to his cousin (his aunt’s niece) which had been planned from a young age. After this, he and his brother received serious direct and indirect life threats; despite lodging a report, the police took no action. Since arriving in Australia, the applicant declared, two of his close family were killed, and it is clear the murders were supported by his aunt’s family.
The applicant stated he was regularly threatened and harassed in Pakistan, as was his family. The police would not provide assistance as they do not get involved in domestic issues and police corruption is very common. The applicant stated relocating to escape harm is not an option, as his home, land and family are all in Rawalpindi where they have lived for generations, and his business there is his sole source of income. The applicant indicated he is bound to receive more threats and possible murder attempts if he returns to Pakistan.
The applicant attended an interview with the Department on 24 October 2017. The Tribunal had access to a copy of the interview recording and relevant parts of the interview are referred to below, where relevant.
A delegate of the Department found the applicant’s written and verbal claims were vague and lacking in detail, and that his account of the claimed incidents was unconvincing and inconsistent, particularly in relation to the purported killing of two family members. The delegate noted the applicant did not provide evidence to substantiate his claims and did not accept the applicant’s reasons for their delay in provision. The delegate was not satisfied any of the claimed events occurred and further found that the four year delay from arrival in Australia to protection lodgement was not consistent with a genuine fear of harm, and so was not satisfied that the applicant would face a real chance of serious harm on return to Pakistan for any of the reasons in s.5J(1)(a). Accordingly, the delegate found the applicant is not a refugee and so does not meet s.36(2)(a) of the Act. The delegate also found the applicant was not owed complementary protection. A copy of the delegate’s decision was provided by the applicant to the Tribunal.
Evidence before the Tribunal
On 31 March 2021, the applicant provided the Tribunal with a copy of a police First Information Report, in translation only and dated [October] 2013.
On 26 April 2021, the Tribunal wrote to the applicant noting it had considered the material before it but was unable to make a favourable decision on this information alone, inviting the applicant to give evidence and present arguments on 25 May 2021.
On 21 May 2021, the applicant’s representative requested an adjournment of the hearing, on the basis that the applicant was unable to take work off that day. No evidence was provided in support of the adjournment request.
On the same date, the Tribunal responded to the representative, noting that the applicant had been on notice of the hearing date since 26 April 2021. The applicant was invited to provide further evidence as to why he was unable to give evidence and present arguments to the Tribunal on the scheduled hearing date. The Tribunal also noted that it was open to the applicant to request the matter be decided on the papers, with time for written submissions provided. The Tribunal noted that the adjournment request was not granted on the information provided.
On 24 May 2021, the applicant’s representative wrote to the Tribunal, stating that the ‘applicant has advised that he is not able to attend the hearing tomorrow and requests the Department (sic) to re-consider his request to postpone the hearing to a future date’. No evidence was provided in support of the adjournment request. On 24 May 2021, the Tribunal wrote to the representative acknowledging the email of 24 May 2021 and confirming that the hearing would proceed as scheduled.
On 25 May 2021, the applicant’s representative wrote to the Tribunal, stating that the applicant was unable to attend the hearing and the Tribunal could proceed to make a decision on the papers. No documentation, which had been requested by the Tribunal to be provided in support of an adjournment request, was provided. In these circumstances and given the request made by the applicant’s representative, pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
The Tribunal wrote to the applicant under s.424A on 2 June 2021, inviting the applicant to comment on a number of matters by 16 June 2021, the details of which are outlined further below. No response was received from the applicant by 16 June 2021 and no response has been received to the s.424A correspondence at the date of this decision.
Consideration of Claims and Evidence
The relevant law
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.
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.
Assessment, reasons and findings
The applicant travelled to Australia on a Pakistani passport and has at all times claimed to be a citizen of Pakistan. The Tribunal finds the applicant is a Pakistani citizen and has assessed his claims against Pakistan as his country of nationality.
The Tribunal is prepared to accept the applicant’s written claims that he was born and lived in Rawalpindi, Punjab, that both of his parents are Pakistani citizens and that he is Sunni Muslim. The Tribunal is prepared to accept that the applicant speaks, reads and writes Urdu and English. The Tribunal is prepared to accept the applicant’s written claims that his parents, two sisters and two brothers are living in Punjab and that he has one sister living in Melbourne.
However, because of inconsistencies in the applicant’s evidence, and for other reasons set out below, the Tribunal did not accept the reasons put forward by the applicant as to why he left Pakistan and why he claims he is unable to return to Pakistan.
Firstly, the applicant’s return to Pakistan since first arriving in Australia causes the Tribunal to doubt that he left Pakistan for the reasons he claims.
The Tribunal wrote to the applicant under s.424A, regarding the information before it that the applicant had first arrived in Australia [in] October 2012 and had returned to Pakistan between [October] 2013 and [November] 2012. The Tribunal noted in its correspondence that the applicant’s return to Pakistan may cause the Tribunal to doubt that the applicant fears returning to Pakistan for the reasons he claims. The Tribunal noted that it may lead the Tribunal to doubt that the applicant left Pakistan because of a dispute with his aunt over land or a dispute with his aunt over an engagement that the applicant claims he ended. The Tribunal noted that it may cause the Tribunal to doubt that the applicant fears being harmed or killed by his aunt and her family if he returns to Pakistan now or in the reasonably foreseeable future. No response was received from the applicant to the Tribunal’s letter.
The Tribunal considers it implausible that, if the applicant had left Pakistan because of threats from his aunt’s family, that he would voluntarily return to Pakistan a year after he first arrived in Australia. The applicant’s return to Pakistan causes the Tribunal to doubt the veracity of the applicant’s claims and causes the Tribunal to doubt that the applicant fears returning to Pakistan for the reasons he claims.
Secondly, the applicant’s delay in claiming protection adds to the doubts for the Tribunal about the credibility of his claims.
The Tribunal wrote to the applicant under s.424A, noting that the applicant had first arrived in Australia [in] October 2012 and had not applied for protection until 20 July 2016. The Tribunal noted in its correspondence that the significant delay in claiming protection may lead the Tribunal to doubt that the applicant fears returning to Pakistan for the reasons he claims. The Tribunal’s correspondence noted that it may lead the Tribunal to doubt that the applicant left Pakistan because of a dispute with his aunt over land or a dispute with his aunt over an engagement that the applicant claims he ended. The correspondence noted that it may lead the Tribunal to not accept that the applicant was threatened or harmed in Pakistan and may lead the Tribunal to doubt that the applicant fears being harmed or killed by his aunt and her family if he returns to Pakistan now or in the reasonably foreseeable future. No response was received from the applicant to the Tribunal’s letter.
The Tribunal would expect the applicant to claim the protection of Australia at an early stage after arriving in Australia, if he had been threatened and targeted by his aunt and her family as he claims. The Tribunal considers it implausible that, if the applicant left Australia for the reasons he claimed, he would delay applying for protection for some almost-four years. The significant delay in the applicant claiming protection causes the Tribunal to doubt the veracity of the applicant’s claims and causes the Tribunal to doubt that the applicant fears returning to Pakistan for the reasons he claims.
Thirdly, the applicant has given inconsistent evidence about the first information reports (FIR) made in Pakistan.
In his written claims, the applicant stated that after the end of the engagement, the applicant’s family received very serious direct and indirect threats, which were directed at him and his brother. The applicant stated that an FIR was registered but that no action was taken and his parents sent him to Australia soon after.
At the Department interview, the applicant stated that there is only one FIR which was made in 2012. The applicant stated to the Department delegate, when asked if his family had gone to the police: “Dad went a couple of times actually, when we go and tell them they write simple notes of it, FIR, only one at the moment in 2012, after that whenever they go to the police, they tell them all, we gonna complain about these people and they say yeah yeah yeah ok we call you back later and after they give them a call to say this, guys come down to file a report against you, this and that, and what they do is they say, don’t file any report against us and we’ll send you some money and stuff and just tell them ok I’ll do that. So whenever my dad go to the police station they said the same thing, so he got sick of going there, there’s no point going there to ask for help.”
In contrast, the applicant provided to the Tribunal an FIR dated [October] 2013, which alleged an assault against the applicant and his friends that had occurred near the [Location] in Rawalpindi.
The Tribunal wrote to the applicant under s.424A, noting the above evidence. The Tribunal’s correspondence noted that the discrepancies in the applicant’s evidence about the FIRs he claims were prepared may lead the Tribunal to doubt that the applicant’s experiences in Pakistan were as he claims. The correspondence noted that it may lead the Tribunal to doubt that the applicant and his family had a dispute with his aunt and her family over land or over a broken engagement. The correspondence noted that it may lead the Tribunal to doubt that the applicant’s family received threats after he ended an engagement, and may lead the Tribunal to doubt that the applicant and his friends were targeted and assaulted in October 2013. The correspondence noted that it may lead the Tribunal to not accept that an FIR was prepared in relation to a family dispute over land and may lead the Tribunal to not accept that the FIR provided by the applicant to the Tribunal is a genuine document. The correspondence noted that it may lead the Tribunal to doubt that the applicant left Pakistan because of a dispute with his aunt over land or a dispute with his aunt over an engagement that the applicant claims he ended; it may lead the Tribunal to not accept the applicant’s aunt’s family has political connections or connections with extremists or that he fears being harmed by this; and it may lead the Tribunal to doubt that the applicant fears being harmed or killed by his aunt and her family if he returns to Pakistan now or in the reasonably foreseeable future. The applicant did not respond to the Tribunal’s s.424 letter.
The Tribunal accepts that the claimed events relating to the 2012 FIR and the claimed events relating to the 2013 FIR are now some time ago. However, the evidence given by the applicant that there is one FIR from 2012 about his family’s land dispute is irreconcilable with the FIR he provided to the Tribunal relating to a significant attempted assault which he claims occurred in 2013. The Tribunal considers it implausible that the applicant would describe not only different years in which an FIR was prepared (one being before he first came to Australia and the significant claimed assault being upon his return in 2013) but also significantly different circumstances for which the FIR was prepared. The Tribunal does not accept that a lapse of time explains the discrepancies in the applicant’s evidence. As a result of these discrepancies, the Tribunal has significant doubts that an FIR was prepared by the applicant or his family at all, either in relation to a land dispute with the applicant’s aunt or as a result of an attempted assault in 2013. For the same reasons, the inconsistent and irreconcilable evidence of the applicant relating to the FIRs adds further significant doubt for the Tribunal about the credibility of the applicant’s claims.
Fourthly, the applicant has given inconsistent evidence about the harm he claims to have experienced in Pakistan.
In his written claim, the applicant stated that he had experienced harm in Pakistan and that the harm was that he received ‘regular life threats, harassment’ during the time he was in Pakistan. In his Department interview, the applicant stated that he received threats and that a couple of people had punched him and hit him. In the FIR provided to the Tribunal, dated [October] 2013, the applicant stated that four armed persons had fired towards a car that he and his friends were in and the applicant escaped, that one of the persons hit his friend on the head and another hit a friend on the leg with an iron rod. The FIR stated that the applicant’s car was hit with a rod and that the applicant was ‘assassinated’ and that his friends were very badly injured.

The Tribunal wrote to the applicant under s.424A about these inconsistencies. The Tribunal’s correspondence noted that the discrepancies in the harm the applicant claimed to have experienced in Pakistan may lead the Tribunal to doubt that the applicant was threatened or harmed in Pakistan. The correspondence noted that it may lead the Tribunal to doubt that the applicant and his friends were targeted and assaulted in 2013 and may lead the Tribunal to not accept that the FIR provided by the applicant to the Tribunal is a genuine document. The correspondence noted that it may lead the Tribunal to doubt that the applicant left Pakistan because of a dispute with his aunt over land or a dispute with his aunt over an engagement that the applicant claims he ended. The correspondence noted that it may lead the Tribunal to doubt that the applicant had received threatening letters at his home in Rawalpindi and to doubt that the applicant fears being harmed or killed by his aunt and her family if he returns to Pakistan now or in the reasonably foreseeable future. No response was received from the applicant to the Tribunal’s letter.
By the time of the protection application, the applicant had experienced what he claimed in the 2013 FIR to have been a significant attempt on his life and serious injuries to two of his friends. The Tribunal considers it implausible that, if the claimed event had happened, the applicant would not have described this incident in his protection application. The applicant’s claimed harm, in his written protection application, was that he had received threats and harassment only and the failure to raise such a significant assault as part of his written claims causes the Tribunal to doubt that there was an incident in 2013 in which the applicant was fired on by four armed persons. His failure to raise this in his Department interview adds further significant doubt for the Tribunal about the claimed assault and about the applicant’s general credibility regarding his claims.
Fifthly, the applicant has given inconsistent evidence about family members having been killed since he first arrived in Australia.
In his written claims, the applicant stated that since his arrival in Australia, two of his close family members had been killed. In contrast, at the Department interview, the applicant told the Department delegate that one family member was killed and that this was his cousin [Mr A]. Later in the interview, the Department delegate noted that in his written claims he had said two family members had been killed; the applicant said in response that one is [Mr A] and this other is [Mr B] who is his friend.
The Tribunal wrote to the applicant under s.424A about these inconsistencies. The Tribunal’s correspondence noted that the discrepancies in the applicant’s evidence about who he claimed had been killed since he arrived in Australia may lead the Tribunal to doubt that anyone the applicant knows has been killed since he arrived in Australia. The correspondence noted that it may lead the Tribunal to doubt that any of the applicant’s family members or their friends had been killed as a result of a dispute between the applicant’s family and his aunt’s family, or that his aunt’s family supported murderers. The correspondence noted that it may lead the Tribunal to not accept that the applicant’s family and his aunt’s family have had a dispute over land or over an engagement that the applicant claims he has ended. The correspondence noted that it may lead the Tribunal to not accept the applicant’s aunt’s family has political connections or connections with extremists or that he fears harm because of this. The correspondence noted that it may lead the Tribunal to doubt that the applicant fears being harmed or killed by his aunt and her family if he returns to Pakistan now or in the reasonably foreseeable future. No response was received from the applicant to this information.
The Tribunal considers it implausible that, if the applicant fled Pakistan in fear of his aunt and her family and his family members were killed as a result of a dispute over land, that the applicant’s description of who in his family had been killed would vary. The inconsistencies in the applicant’s evidence about such significant harm to family members adds to the Tribunal’s significant doubts about the applicant’s credibility and about his claims.
Sixth, the applicant gave inconsistent evidence at the Department interview about any threats to his sisters.
The applicant first told the Department delegate that his sisters were threatened as well. Later in the interview, the applicant told the Department delegate that his aunt’s family had no problems with his sisters and that verbal threats were directed towards him.
The Tribunal wrote to the applicant under s.424A about these inconsistencies. The Tribunal’s correspondence noted that the discrepancies in the applicant’s evidence may lead the Tribunal to doubt that the applicant left Pakistan for the reasons he claims. The correspondence noted that it may lead the Tribunal to doubt that the applicant or his family members have been threatened as a result of a dispute between the applicant’s family and his aunt’s family. The correspondence noted that it may lead the Tribunal to not accept that the applicant’s family and his aunt’s family have a dispute over land or over an engagement the applicant claims he has ended. The correspondence noted that it may lead the Tribunal to doubt that the applicant fears being harmed or killed by his aunt and her family if he returns to Pakistan now or in the reasonably foreseeable future. No response was received from the applicant to this information.
The Tribunal did not consider it plausible that, if the applicant’s experiences in Pakistan were as he claims, his evidence would differ about any threats his sisters had received. The inconsistencies in his evidence on this point add further doubt for the Tribunal about his credibility and about his claimed experiences in Pakistan.
Seventh, the applicant has given inconsistent evidence about who he was engaged to in Pakistan.
In his written claims, the applicant stated that he was engaged by his parents to his cousin, his aunt’s niece, at a young age. Also in his written claims, he described ending his engagement with his aunt’s daughter.
In the Department interview, the applicant told the Department delegate that he was engaged to his aunt’s daughter.
The Tribunal wrote to the applicant under s.424A about these discrepancies, stating that the inconsistencies in the description of the relationship between the applicant’s aunt and the female in question may lead the Tribunal to doubt that the applicant was engaged to his aunt’s daughter or his aunt’s niece or that the applicant ended an arranged engagement. The correspondence noted that it may lead the Tribunal to doubt that the applicant and his family had a dispute with his aunt and her family over an engagement that the applicant claims he ended. The correspondence noted that it may lead the Tribunal to doubt that the applicant or his family members have been threatened as a result of a dispute between the applicant’s family and his aunt’s family and to doubt that the applicant fears being harmed or killed by his aunt and her family if he returns to Pakistan now or in the reasonably foreseeable future. No response was received from the applicant about this information.
The inconsistencies in the applicant’s evidence about who he was engaged to in Pakistan add further doubt for the Tribunal about his claimed experiences in Pakistan and his claimed reasons for not being able to return to Pakistan.
Eighth, the applicant has given inconsistent evidence about the land that is the subject of the claimed family dispute.
In his written claims, the applicant stated that the land in question, that is the subject of the claimed dispute with his aunt, was supposed to be inherited by him and his brother.
At the Department interview, the applicant told the Department delegate that the land is going to go to his brother.
The Tribunal wrote to the applicant under s.424A. The Tribunal noted that the discrepancies in the description of who the land is being inherited by may lead the Tribunal to doubt that the applicant or his brother are due to inherit land that his aunt has claimed. The correspondence noted that it may lead the Tribunal to doubt that land owned by the applicant’s family has caused a dispute with the applicant’s aunt’s family. The correspondence noted that it may lead the Tribunal to doubt that the applicant or his family members have been threatened as a result of a dispute between the applicant’s family and his aunt’s family and that it may lead the Tribunal to doubt that the applicant fears being harmed or killed by his aunt and her family if he returns to Pakistan now or in the reasonably foreseeable future. The applicant did not respond to this information.
The inconsistencies in the applicant’s evidence about who the land was supposed to be left to, which was the subject of the claimed dispute between his family and his aunt’s family, add further doubt for the Tribunal about his credibility and his claimed reasons for having left Pakistan.
For the reasons set out above, the Tribunal does not accept the claims of the applicant about his reasons for having left Pakistan. The Tribunal does not accept that the applicant was engaged to his aunt’s niece or his aunt’s daughter, or that he ended an engagement which caused conflict between his family and his aunt’s family. The Tribunal does not accept the applicant ended an engagement to his aunt’s niece or aunt’s daughter because of a land dispute or for any other reason.
The Tribunal does not accept that the applicant’s aunt wrongfully claimed land that was due to go to the applicant, or to the applicant and his brother. The Tribunal does not accept that the applicant and his family were involved in a land dispute with his aunt and her family in Pakistan. The Tribunal does not accept the applicant or any of his family members experienced threats to their life, harm or physical or mental harassment from his aunt or her family, or that his aunt’s family has political connections or connections with extremists. The Tribunal does not accept that any threats were directed to the applicant or his brother because of a land dispute. The Tribunal does not accept that the family reported any threats from his aunt to the police and does not accept that an FIR was made in 2012 or 2013 or at any other time. The Tribunal does not accept that the applicant’s father went to the police a number of times to seek assistance. The Tribunal does not accept that in October 2013 the applicant and two friends were fired on by four armed men near the [Location] in Rawalpindi, that his friends were assaulted, that the applicant’s car was damaged, that the applicant was ‘assassinated’ or that his friends were badly injured. The Tribunal finds that the FIR provided by the applicant to the Tribunal is not a genuine document and does not set out events that the applicant experienced in Pakistan. The Tribunal does not accept that any of the applicant’s family members, or close friends of any family members, have been killed as a result of a land dispute or that his aunt’s family supported any murders.
For the same reasons, the Tribunal did not accept the applicant’s claimed fear of harm if he returns to Pakistan. The Tribunal does not accept that there is an ongoing court case between the applicant’s family and his aunt’s family over a land dispute. The Tribunal does not accept that the applicant faces threats, harassment, physical or mental harm, or being murdered from his aunt, her family or any of her associates, if he returns to Pakistan now or in the reasonably foreseeable future because of a land dispute or because of a broken engagement or when his claims are considered cumulatively.
For the reasons stated above, the Tribunal does not accept the applicant faces a real chance of serious harm from his aunt or her family, if he returns to Pakistan now or in the reasonably foreseeable future, because of a land dispute between his aunt and his family or because he ended an engagement with his aunt’s niece or daughter. The Tribunal does not accept the applicant faces a real chance of persecution, for any reason, if he returns to Pakistan now or in the reasonably foreseeable future.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.
For the same reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Tamara Hamilton-Noy
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 2986

24 June 2021

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Immigration

Administrative Law

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Statutory Construction

Natural Justice

Procedural Fairness

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