1801113 (Refugee)

[2020] AATA 1885

1801113 (Refugee) [2020] AATA 1885 (14 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1801113

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Denise Connolly

DATE:14 February 2020

PLACE OF DECISION:  Sydney

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

Statement made on 14 February 2020 at 10:16am

CATCHWORDS

REFUGEE – protection visa – Pakistan – Federal Circuit Court remittal – complementary protection provisions – Peoples Student Federation member – political violence – arrest warrant – murder conviction in absentia – credibility concerns – delay in seeking protection – approached Pakistani authorities in Australia – generalised violence in Pakistan – recent improvement in situation – request for Ministerial Intervention referral – Australian citizen wife and stepchildren – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 36, 48A, 65, 417
Migration Regulations 1994, Schedule 2

CASES

SZGIZ v MIAC (2013) 212 FCR 235

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant, who claims to be a citizen of Pakistan, first applied for protection on 19 June 1998 which was refused on 29 June 1998. The Refugee Review Tribunal (RRT), as it was then known, affirmed the decision on 1 May 2000. The applicant then applied for this visa under the complementary protection provisions on 13 November 2012 and the delegate refused to grant the visa on 23 January 2015. The applicant sought review and on 4 October 2016 the Tribunal (differently constituted) affirmed the delegate’s decision. The applicant appealed to the Federal Circuit Court of Australia and [in] December 2017 the Court remitted the matter by consent with directions that the application be determined according to the law. The Consent Order notes the Minister, conceded that the decision was affected by jurisdictional error because of the failure to correctly apply the test:

   in that the test is not whether ‘all persons in Pakistan have a real risk of suffering harm, merely for reason of their residence in Pakistan’, but rather whether in light of generalised violence in Pakistan the applicant’s individual circumstances are such that he would face a real risk of significant harm should he return.

3. The applicant was represented in relation to the review by his registered migration agent.

4. The Tribunal wrote to the applicant on 17 January 2020 inviting him to a hearing on 7 February 2020. The applicant responded on 22 January 2020 advising that he would be attending the hearing with his representative.  On 31 January 2020 the applicant’s representative wrote to the Tribunal requesting that it consider referring the matter to the Minister under s.417 of the Act. It was submitted that there were strong humanitarian and compassionate reasons for granting the applicant a permanent visa to allow him to reside in Australia with his Australian wife and Australian citizen stepchildren. The representative provided a submission and various documents in support of the request that the matter be referred to the Minister for intervention.

5. The applicant appeared before the Tribunal on 7 February 2020 to give evidence and present arguments. The Tribunal also received oral evidence from his wife, [named]. The representative also attended the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

   RELEVANT LAW

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

7. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

8. However in this case s.48A of the Act is applicable. The Tribunal notes that the applicant lodged a protection visa application in June 1998 which was refused prior to the commencement of the complementary protection criterion on 24 March 2012. That decision was affirmed by the RRT in May 2000. Section 48A imposes a bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen has already made an application for a protection visa which was refused. The Full Federal Court in SZGIZ v MIAC (2013) 212 FCR 235 has held however that the operation of s.48A, as it stood at the time of this application, is confined to making a further application for a protection visa which duplicates an earlier unsuccessful application for a protection visa, in the sense that both applications raise the same essential criterion for the grant of a protection visa. In accordance with the reasoning in SZGIZ, the Tribunal finds it does not have power to consider the Refugee Convention criterion in s.36(2)(a), and has proceeded on the basis that it can only consider the applicant’s claims under the provisions in s.36(2)(aa), (b) and (c) of the Act.

9. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may meet the criteria for the grant of a protection visa if a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

10. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

11. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

12. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

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

    CLAIMS AND EVIDENCE

    Information provided to the Department

14. When making this visa application the applicant provided the following information. He was born on [date] in Lahore, Punjab, Pakistan. He is a citizen of Pakistan. He does not have the right to reside in any another country. He speaks, reads and writes in English and Urdu. His religion is Islam. He is Sunni. At the time of application he had never been married. His father at the time resided in Pakistan. He provided details of his Pakistani passport issued [in] 1996 obtained through normal procedures.  (He subsequently provided a copy of a Pakistani passport issued [in] 2013).  He applied for a tourist visa in May 1997 which was granted on 26 May 1997. He arrived in Australia as the holder of a [Tourist] visa [in] June 1997. Prior to travelling to Australia he was employed as [an occupation] in Lahore.

15. In his written application the applicant made the following claims. He had been a member of the Peoples Student Federation (PSF) in Lahore since [year] and held various positions. There was violence between the PSF and the Muslim Student Federation (MSF) and the MSF arranged police warrants for the arrest of PSF members. [In] May 1997, [an authority in] Lahore issued an order for his detention.  He fears he will be targeted by his political opponents in Pakistan because of his political activities. He also fears that he will be targeted by extremist Islamic groups for having lived in a western country since 1997 and will have attributed to him western values and culture and an imputed political opinion. He fears he will face a real risk of harm including torture, inhuman and degrading treatment if he returns to Pakistan. He fears he will not be able to get adequate state protection because the authorities are corrupt. Even if he moves to other parts of Pakistan, he will be targeted by his political opponents and government authorities.

16. In a written statement addressing his complementary protection claims, provided after the visa application was made, the applicant stated he left Pakistan due to fear of persecution and life threats. In [year] he joined PSF and held various positions while at the [named] College, starting with [Position 1] of PSF. Eventually he held the position [Position 2].  There was conflict and tension with MSF. MSF accused him of murdering two members of their political party which led to his detention. At the same time he was persecuted and tortured by Lahore Police. In May 1997 an arrest warrant was issued by the [authority] stating on detention he would be treated as ‘Class 3^rd Detinue’.

17. The applicant claims that in 1996 and 1997 when MSF led the Pakistan Muslim League in elections they persecuted PSF students and political members.  Most PSF students and leaders were taken into police custody and physically tortured without being charged. [In] January 1997 he was going to participate in election activities with others. On the way they encountered opponent MSF members. They exchanged words and clashed. MSF gunmen opened fire and in retaliation the applicant’s party fired back. Students and political members were seriously injured. After the incident police searched for him and raided his home a number of times. He had to hide and move to another city to save his life. He was traced in the other city so he moved to a tribal area towards Northeast Pakistan. He had no option but to leave the country in 1997. In his absence his brother was arrested, detained for 3 weeks, interrogated and tortured. They kept inquiring about the applicant.  MSF had the support of the police who filed false complaints against PSF members and arrest warrants were issued against PSF students and political members like himself. He was arrested [in] January 1997 but granted bail. Having now been convicted of murdering two people it would be harmful for him to go back to Pakistan. The victims’ relatives were looking for him and approached his family several times to take revenge. Recently a gunman opened fire on his home. His lawyer advised him not to return to Pakistan.

18. The applicant claims he is wanted for the murders of [Mr A] and [Mr B] and their relatives are pressuring the Muslim League Punjab State Government. Because of this his immediate family has suffered mental and physical torture for 15 years, inflicted by MSF party members. The police will not protect his family.

19. The applicant claims that he is still wanted by the authorities in Pakistan and so they will not protect him. He claims his solicitor [Solicitor C] recently told him that he was required to appear in court in relation FIR No. [number] and if he returns to Pakistan he will be arrested and serve [number] years in prison.

20. The applicant provided to the delegate the following documents:

    a.a written submission dated November 2012 repeating his claims and referring to new information in which he claims that he was blamed for the murders and is now a proclaimed defender convicted of murdering two people. The submission also refers to country information about violence in Lahore in 2011 and 2012.

    b.Proclamation Requiring the Appearance of a Person Accused dated [in] August 2012 stating that the applicant had been accused of certain offences but could not be found and that the court was satisfied he had absconded. He was therefore required to appear before the court within 15 days.

    c.A statement from the applicant’s solicitor, [Solicitor C], dated [in] September 2012, indicating the applicant was a member of the Pakistan People’s Party and President of the PSF. It states he was arrested [in] January 1997 and allowed bail [in] February 1997 in relation to the case in FIR No. [number].  It is asserted that the applicant’s life was in danger as in his absence, [in] August 2011, he was sentenced to [number] years’ imprisonment. It states that if he returned to Pakistan it is likely he would be involved in murder cases of [Mr A] and [Mr B], members of the Muslim League Group, and that their relatives are pressuring the government to investigate the applicant. It also states the applicant has now been convicted.

    d.A judgement, dated [in] August 2012, recording in relation to offences [in] January 1997, the applicant was accused of certain offences (those referred to in the Proclamation referred to above), along with [number] others, of being involved in gunfire which resulted in shots being fired at the police. It records that the applicant did not defend his case, and the prosecution adduced evidence that the applicant fired shots resulting in parties being injured, and that he is guilty of the offences. Accordingly he was convicted and sentenced to serve [number] years’ imprisonment.

    e.An order from the [authority in] Lahore dated [in] May 1997 recording that the applicant had been charged in relation to student activities which were considered to be dangerous and causing disturbance and that he should be detained.

    f.A Warrant of Arrest dated [in] January 1997 indicating the applicant should be arrested and presented at court.

    g.A release warrant dated [in] February 1997 indicating the applicant arrested [in] January 1997 and released on [an earlier date in] February.

    h.Translated newspaper articles recording that the applicant was involved in political activity.

    i.A letter from Pakistan People’s Party dated [in] October 2012 repeating the applicant’s claims that he was thought to be involved in the murder of [Mr A] and [Mr B].

    j.Other letters from the Pakistan People’s Party, dated [in] November 1998 certifying that the applicant was a worker of the People’s Student Organisation since [year] and the [Position 3] of Pakistan Students Federation, Lahore, and [in] September 1997 stating the applicant was involved in the 1997 election campaign, and [in] November 1996 indicating he was appointed as [Position 2] as a student at [his named] College.

    k.A letter from the President, People’s Youth Organisation, Punjab dated [in] October 1998 stating the applicant was an active member of the Pakistan People’s Party.

    Information provided to the previously constituted Tribunal

21. The applicant provided to the Tribunal a copy of the delegate’s decision record. The following information comes from that document unless otherwise indicated.

22. The delegate records the applicant’s migration history, summarised as follows. He arrived in Australia as the holder of a tourist visa [in] June 1997. He applied for and was granted further tourist visas in September 1997 and March 1998. In June 1998 he lodged his first protection visa application. It was refused and that decision was affirmed by the RRT in May 2000. In May 2003 he made an application for judicial review. The RRT’s decision was upheld by the Federal Magistrates Court, the Full Federal Court and the High Court of Australia. In May 2007 he lodged his first request for Ministerial Intervention. It was unsuccessful. In April 2008 he lodged a request to be allowed to lodge another protection visa application and also lodged a second Ministerial Intervention request. Those applications were unsuccessful. In June, July, August, September and October 2008 he was granted bridging visas on departure grounds. In September 2008 he lodged another application for judicial review by the Federal Magistrates Court which was unsuccessful. In December 2008 he lodged another application for Ministerial Intervention which as not referred to the Minister. He did not engage with the Department again until June 2011 when he was located by Compliance and detained. He lodged a further protection visa application on 23 October 2012 which initially was not allowed. He lodged another protection visa application on 13 November 2012 and an application for judicial review.  In July 2013 the Federal Court handed down SZGIZ, allowing the applicant to make another protection visa application on complementary grounds as the first application was made and refused before the commencement of the complementary protection provisions on 24 March 2012.

23. The delegate records that the applicant was interviewed on 29 May 2014. His oral evidence given in that interview is recorded in the decision record. The Tribunal has listened to the recording of the interview and it is satisfied that his evidence has been correctly recorded.

24. The delegate noted that there were inconsistencies in the applicant’s evidence in that he now claims to have been convicted of murder, whereas he had previously claimed, in his first protection visa application, that MSF members were seriously injured [in] January 1997. She noted he had not previously claimed in his first protection visa application that they had died as a result of injuries sustained. She found that he had provided no satisfactory explanation for the discrepancy between his current and former claims made in the first protection visa application.

25. The delegate discussed with the applicant his claim that he was charged before he left Pakistan. She referred to a document he provided from the [authority in] Lahore dated [in] May 1997 alleging he was to appear in court in relation to his student activities which were considered dangerous and causing disturbance. She asked him about the murder charge against him. He indicated the murders occurred in between 1998 and 1999. The delegate noted he now claims that as a convicted murderer his life would be in danger if he returns to Pakistan. She formed the view that he would have raised this claim during the first protection visa process, if it was true. She also noted he is now claiming that he was charged and convicted of murders which happened in 1998 to 1999. The delegate noted that it would be impossible to prove he was involved in murders in 1998 or 1999 given that he was already in Australia.

1. The delegate noted that he now claims he has been sentenced in absentia to [number] years’ imprisonment. She referred to new documents he provided, a court judgement dated [in] August 2012 and a proclamation that he was required to appear, dated [later in] August 2012.  She raised with the applicant that the RRT found he had submitted false documents in support of his application and there were concerning inconsistencies in his case. She rejected the applicant’s documentation, noting the country information indicates document fraud is very common in Pakistan. She formed the view it was highly coincidental that,15 years after the alleged offences took place and he had exhausted all avenues to remain in Australia, he would be convicted of politically motivated charges and sentenced.

2. The delegate also referred to the judgement document indicating that [in] September 2008 the case against the applicant was submitted to the court by the prosecution. She noted in his MI request [in] December 2008 he did not claim that there were charges against him presented to the court. She also noted at the interview he stated he had maintained constant contact with his lawyer and family about his fear of returning to Pakistan so he would have been aware of those charges in December 2008.

3. The delegate was not satisfied the applicant was credible. She also noted the RRT in 2000 was of the view that, if he was subjected to charges in Pakistan, this would not amount to persecution as he would be able to have a fair hearing. She referred to country information indicating Pakistan continues to have a functioning, independent judicial system.  While the delegate accepted that there was an absence of effective state protection in some areas of Pakistan, the country information indicated this was a problem outside the large urban areas. She noted that this was not relevant in the applicant’s case as he is of Lahore.

4. The delegate was also concerned about the delay in first applying for protection in Australia. She formed the view that if he was running away from death threats he would have applied for protection on arrival. She did not accept that the applicant had a political profile in Pakistan. She found his delay in seeking protection suggests his fear of persecution in Pakistan is not genuine. She formed the view the applicant had attempted to create a refugee profile in order to achieve his desired migration outcome.

5. The applicant provided a statement to the Tribunal dated 8 September 2016 in which he repeats his claims, including that he is wanted for murder and that the victims’ relatives are pressuring the Muslim League Punjab State Government. He also states that he has already been convicted for the murders and that the relatives are waiting for him to return to Pakistan so they can take revenge. He claims the family opened fire on his house. He also referred to the security situation in Pakistan and DFAT country information indicating there is a threat of terrorist attack, kidnapping and sectarian violence and that Australians should avoid certain events and areas in Pakistan. In particular he referred to an incident on 8/9 August 2016 when 60 people were killed when a bomb was detonated in a hospital in Quetta. He states that he is well integrated in the Australian community having lived here for 19 years and asks that he be allowed to remain in Australia on protection and humanitarian grounds.

6. The applicant provided documentation, most of which had been provided to the Department. He provided his Peoples Student Federation cards and photographs of himself at events.

   The decision of the previously constituted Tribunal

7. This Tribunal has a copy of the transcript of the hearing conducted by the previously constituted Tribunal on 27 September 2016.  It has read the previously constituted Tribunal’s reasons for decision dated 4 October 2016 and it is satisfied they correctly record the applicant’s oral evidence given at that hearing.

8. Having discussed at the hearing the issues on which he made adverse findings the previously constituted Tribunal member was not satisfied that the applicant was a credible witness. He did not accept the applicant’s explanation for the delay in his visa application, that he was not aware of the rules and thought he maybe would return to Pakistan.  While he accepted the applicant was a member of the People’s Students Federation, on the basis of his oral evidence at the hearing, he was not satisfied he was an active member in the way he had claimed. He formed the view his involvement was limited.  He was not satisfied the incident in January 1997 occurred however for the purpose of the decision he was willing to accept that the applicant was caught up in some political violence in January 1997, that guns were discharged by MSF members and the PSF supporters sought to defend themselves. He accepted as a result of the incident that the applicant was detained for around a month, mistreated in detention and then released [in] February 1997. He was not satisfied however that the applicant was of ongoing adverse interest to the authorities or anyone else.

9. In relation to the May 1997 arrest warrant provided with the applicant’s first protection visa application, he noted that the applicant claimed to have disappeared from Lahore and to have hidden to save his life but that he was traced to another city so he moved to the tribal area, Mansarah. He noted that the applicant claimed, while in hiding, his brother was taken into custody by the police for three weeks, beaten and tortured. He noted in his written statement dated 8 September 2016 the applicant also said that in this period the police raided his home a number of times. He also noted the applicant had said that two of his brothers worked for [the government] in Pakistan and formed the view they would have access to various legal documents. He noted the applicant indicated that a bribe was paid in order to arrange his departure from Pakistan. The Tribunal member formed the view however that if the applicant was fleeing the criminal offence he claimed to have been charged with, it was not plausible that he would have departed Pakistan on his own passport. Accordingly he formed the view the applicant’s claim to have been subjected to any charge or court process, after his release from detention in February 1997, was false. He did not accept that the applicant’s brother was detained for the reasons he claims.

10. The previously constituted Tribunal discussed with the applicant the issue that in the applicant’s second protection visa application he said he was convicted of the murder of two persons and that the victims’ families were looking for him and waiting for his return to Pakistan. He said his family had been approached several times. He said his home had been fired at on two occasions and the men’s families were pressuring the Muslim League Punjab State Government. He referred to the proclamation requiring the appearance of the applicant and noted his claims he was sentenced in absentia [in] August 2012 to [number] years’ imprisonment as indicated in a court judgement. The Tribunal member noted that this meant the applicant was convicted in August 2012 of an incident that was said to have occurred in 1998/1999. When he questioned the plausibility of this the applicant indicated he had been framed.

11. The applicant provided telephone numbers for a lawyer in Lahore, to confirm this had occurred, however when the Tribunal member attempted to contact the lawyer during the hearing he was told the lawyer had passed away in January 2016 and no one else was able to assist. The Tribunal member noted the applicant had said he had [number] brothers, all continuing to reside in Lahore. When asked why they would reside in Lahore if it was the case that they had been harassed for 20 years, the applicant claimed relocation was not possible or easy. The Tribunal member did not accept this explanation. He formed the view the fact the brothers remained in Lahore sol long after the applicant departed indicates the allegations they had been harassed are false. He noted the applicant had said that he had kept in regular contact with his brother in Pakistan and that the brother was in regular contact with the lawyer.  He noted however that the proclamation lodged by the applicant indicated that [in] September 2008 the case against the applicant was submitted to Pakistan court and yet when the applicant lodged his request [in] December 2008 he did not claim charges against him had been presented to the court (in September 2008). When this was put to him at the hearing the applicant was unable to explain the omission.

12. The Tribunal member also discussed with the applicant that it was only after the applicant was detained in June 2011 and after he had exhausted all other avenues to remain in Australia that he said he had been charged/convicted of politically motivated charges and sentenced to prison in Pakistan. The Tribunal member formed the view that timing reflects poorly on the credibility of the claim. He rejected the claim about the murder charge/conviction as false. He noted the prevalence of document fraud in Pakistan and formed the view the documents provided by the applicant regarding the [September] 2008 court case, the [August] 2012 conviction in absentia, and the suspected murders were all false.

13. The Tribunal member also discussed with the applicant that, notwithstanding his fears of being a suspected murderer and convicted felon in Pakistan, the applicant attended the Pakistan Embassy in Canberra, apparently without any problem, and obtained a new Pakistan passport issued [in] 2013. He was not satisfied the applicant would have sought a new passport if he genuinely feared the Pakistani authorities. He was not satisfied the applicant would have been able to obtain the passport without any problem if he was of adverse interest in Pakistan for the reasons claimed.

14. The Tribunal member accepted that the applicant had joined the PSF in Lahore in [year] and that while he may have been temporarily removed from school (as claimed in the hearing) he was able to return and was subsequently awarded a [degree] in [year]. He accepted that he remained a member of the Students Federation from [year] until he departed Pakistan in 1997. However he did not accept that the applicant was actively involved or was important in the Federation as claimed because he found his evidence on this issue was unpersuasive. He accepted that he was caught up in some political violence in January 1997 and that he had been detained for a month but found that once released he was of no adverse interest to the authorities or anyone else. He did not accept the applicant was the subject of any other charge or conviction after his release in February 1997. He also rejected the applicant’s claims that his family have been harassed in Pakistan or that there is any ongoing interest in his whereabouts.

15. In relation to general violence the Tribunal member was not satisfied there was a real risk the applicant would suffer significant harm in Pakistan. In relation to his residence in the West and claimed feared that he would be suspected of holding Western values and culture and of having an imputed political opinion, he was not satisfied the applicant was at real risk of suffering any harm in Pakistan for this reason. While he was not satisfied there was a real risk the applicant would suffer any harm if returned to Pakistan, he formed the view that he could safely relocate. He was not satisfied he would suffer any harm as a consequence of being a failed asylum seeker. Accordingly he was not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

    Reconsideration ordered [in] December 2017

16. As indicated above, the Federal Circuit Court of Australia remitted the matter by consent [in] December 2017 on the basis that the previously constituted Tribunal’s decision was affected by jurisdictional error because of a failure to apply the law correctly. The previously constituted Tribunal had not considered whether, in light of generalised violence in Pakistan, the applicant’s individual circumstances are such that he would face a real risk of significant harm should he return.

17. On 31 January 2020, the applicant’s representative wrote to the Tribunal asking that it refer to his case to the Minister under s.417 of the Act on the basis that there are humanitarian and compassionate reasons for granting him a permanent visa. The applicant provided a Statutory Declaration setting out his migration history in Australia and attesting that he has now married an Australian and he has Australian citizen stepchildren. Various documents and photographs were provided in support of his relationship with [his wife].  [The applicant’s wife] also provided a Statutory Declaration attested on 31 January 2020, stating she suffered domestic violence in a previous relationship. In 2018 she met the applicant and their friendship developed into a relationship. As she was not divorced she could not marry him immediately but they married in March 2019. She has had [miscarriages] and she worries that the applicant will be sent back to Pakistan. He has developed a fatherly relationship with her children. Other supporting documentation was provided including letters of support.

    Hearing on 7 February 2020

18. At the hearing the Tribunal explained that it had read the applicant’s written evidence, listened to the delegate’s interview and read the transcript of his hearing in 2016 with the previously constituted Tribunal member. Given his request that this Tribunal refer his matter for Ministerial intervention it asked if the applicant wished to discuss his claims further and provide any new evidence, or if he was abandoning those claims and merely seeking for the Tribunal to refer the matter to the Minister. The applicant indicated he had no new documentation or country information. He indicated his focus was on the Tribunal referring the matter to the Minister because his circumstances have now changed. The representative indicated this was the case.

19. The Tribunal indicated it wished to clarify some aspects of his evidence. It asked the applicant about his passport on which he relied to depart Pakistan in 1997. He indicated that when he needed to flee the agent in Pakistan got that for him, when he got all the documentation together for the applicant to come to Australia. The Tribunal questioned whether this was the case because it appeared the passport had already been issued in [1996] as he had recorded in his own visa application. The applicant indicated he could not remember. He indicated that the events occurred a long time ago and he now does not remember what happened. He indicated that he wanted the Tribunal to consider his marriage and refer the matter to the Minister.

20. The Tribunal noted that it had his documentation provided to the Department and the Tribunal and the transcript from his hearing in 2016. It also noted that he had provided to the Tribunal the delegate’s decision record. It asked the applicant if he wished for the Tribunal to rely on that information to make its findings. It indicated however that some of his evidence may be problematic and that it may be the case that this Tribunal would need to affirm the Department’s decision. The applicant indicated that he was happy for the Tribunal to rely on the oral and written evidence already provided.

21. The Tribunal asked if there was anything else he feared about returning to Pakistan. He had heard the situation in Pakistan had improved and the circumstances were better but argued that because he is [age] he did not think he would be able to secure employment in Pakistan. He indicated he works in [Industry 1] in Australia, as an employee. The Tribunal asked why he could not do that work in Pakistan. He indicated he did not think it would be suitable.

22. The Tribunal asked the applicant about his family in Pakistan. He indicated his parents are both deceased. [A relative] died of [a medical condition]. His [brothers] continue to reside in Lahore. His wife visited his family in Pakistan in December 2019.

23. The Tribunal asked the applicant about his current circumstances in Australia. He indicated his wife has suffered miscarriages, most recently in January 2020. He has [stepchildren of specified ages]. They do not see their biological father who their mother divorced in February 2019. She does not receive child support. She told the Tribunal she resided in a women’s refuge after she left her former husband and then suitable accommodation was arranged. The applicant and his wife are currently renting at [Suburb 1].

24. The Tribunal asked the representative if he wished to make any submissions. He asked that the Tribunal refer the matter to the Minister. He acknowledged that the applicant had made requests for Ministerial Intervention previously but his circumstances have now changed and they are unique and exceptional.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Nationality

25. The applicant claims to be a citizen of Pakistan and has provided to the Department and the Tribunal a copy of his Pakistani passport.  In the absence of any evidence to the contrary, the Tribunal is satisfied that the applicant is a citizen of Pakistan. The Tribunal finds that Pakistan is the receiving country for the purpose of assessing the applicant’s claims for protection. There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any other country for the purposes of the Act. 

    Does the applicant meet the complementary protection criterion?

26. The Tribunal has considered whether the applicant meets the criterion for the grant of a protection visa under the complementary protection criterion. For the following reasons the Tribunal is not satisfied the requirements under this criterion are met.

27. The Tribunal has first considered the claim that the applicant was active and an office holder in the PSF and that he was involved in conflict between the PSF and the MSF in 1997 which resulted in gunfire. It has formed the view, from the transcript of his hearing in September 2016, that his evidence regarding his involvement in the organisation is highly unpersuasive. The member asked him to describe what he did for the party. The applicant indicated he did lots of activities for the party because he had a lot of friends there. When asked for more detailed evidence he stated there were two parties, PSF and MSF and he chose PSF. He indicated he went to a few meetings where he spoke. He indicated that he could not be more expansive because it happened a long time ago. When asked if he did anything else he indicated that it was “just college life, only like the - help my brother for a couple of months in [his business]”. The Tribunal is not satisfied the applicant’s oral evidence was reflective of an officeholder of a student organisation. It does not accept that he was ever the [Position 1] or the [Position 2] of PSF as claimed. It has considered the letters of support and other documents and accepts that he may have been a member of PSF when he was a student completing his [degree]. However it is of the view, on the basis of his weak oral evidence on the claim, that the description of his role in the organisation as an officer holder has been significantly embellished, by the applicant and his witnesses. It notes his evidence that he completed his studies and from 1996 was working with his brother.  Considered overall the Tribunal is not satisfied the applicant was involved in a conflict between the PSF and the MSF in 1997 which resulted in gunfire.

28. The Tribunal also notes from the delegate’s decision record that, in his first protection visa application, the applicant indicated that people were injured during the conflict in January 1997. He did not indicate that anyone had been murdered as a consequence of the incident where guns were shot. The Tribunal finds it highly problematic that the first time the applicant mentions that he had been implicated in murders was in 2012, 15 years after the alleged event and, only after he is located by compliance and [detained]. It also notes that when this was raised with him, and he was asked about the murders by the delegate he indicated that they were said to have occurred in 1998 or 1999, after the applicant had travelled to Australia. He claims to have been framed but the Tribunal does not accept the applicant would be implicated in murders that occurred when he was not in the country. It is of the view the applicant did not mention that he was accused of murders in his first visa application in 2000 because he has subsequently manufactured this allegation to bolster his claims. It is also of the view his claim that the murders for which he has been accused in 1998 or 1999 reflects adversely on the reliability of his evidence. 

1. The Tribunal also notes the applicant has indicated that he is both wanted in relation to the murders, and that he has been convicted of the murders. It notes his own documentary evidence is inconsistent – the judgement finding him guilty of certain charges and sentencing him is dated [in] August 2012. Yet the proclamation requiring him to appear because he has been accused of those charges is dated after this, [later in] August 2012. This appears to the Tribunal to be illogical. The Tribunal takes into account the country information referred to by the delegate and set out in DFAT’s Country Information Pakistan 20 February 2019, page 71, regarding the prevalence of document fraud in Pakistan.  

2. The Tribunal is also concerned that the applicant did not mention the proclamation of [September] 2008 when he lodged his MI request [in] December 2008. When this was raised with him at his hearing with the previously constituted Tribunal he was unable to explain the omission. This Tribunal is of the view that, if the document was genuine, he would have raised it with the Department in December 2008. The Tribunal is of the view he did not raise it because the document did not exist as it has been manufactured, along with the proclamation dated [in] August 2012 and the judgement dated [earlier in] August 2012. 

3. The Tribunal also has concerns regarding the applicant’s delay in making his protection visa application, given he arrived in Australia in June 1997 but did not lodge a protection visa application for a year. It has taken into account his explanation, that he was not aware of the rules, but notes he lodged further tourist visa applications in September 1997 and March 1998 indicating engagement with the Department. This is in the context of the applicant claiming he fled Pakistan because he feared persecution. It is of the view that if he was genuinely fearful of returning to Pakistan he would have made the claim at the time. It also notes his explanation that he thought he maybe would return to Pakistan. In the Tribunal’s opinion this strongly suggests he was not fearful of returning to Pakistan. The Tribunal also notes the applicant gave misleading evidence in relation to the issue of his first Pakistani passport used to travel to Australia. He indicated that it was obtained after he had the difficulties with the authorities in 1997 when the agent assisted him to obtain the documentation he required to depart Pakistan. However in the protection visa application he states that his Pakistani passport was issued [early in] 1996, one year before the alleged problems arose. The Tribunal is not satisfied an agent organised his passport after he had problems in relation to events in January 1997. That passport had already been issued. The Tribunal also notes that the applicant approached the Pakistani authorities in Australia to obtain his new passport issued in [2013]. This was put to him at his hearing in September 2016. His explanation was that the Department wanted a passport. He had no idea why the Pakistani authorities would give him a passport without any difficulty if he was wanted for murder in Pakistan. The Tribunal is not satisfied he would have approached the Pakistani authorities in Australia if it was the case that he was wanted, and had been prosecuted and sentenced to [number] years’ imprisonment, for serious crimes. It considers his explanation unpersuasive. It is not satisfied he would have approached the Pakistani authorities if he was genuinely fearful for the reasons given. It is also not satisfied the authorities would have issued that passport to the applicant without any concerns or issues raised.

4. Given the problematic nature of the applicant’s evidence in relation to significant matters the Tribunal finds the applicant is not a witness of truth. It does not accept that the applicant was present in January 1997 when there was conflict between the PSF and the MSF. It does not accept he was accused of certain charges, or found guilty and sentenced in relation to those charges.  It has formed the view the applicant has manufactured these claims. Accordingly the Tribunal has concluded the arrest warrants dated [in] January 1997 and [May] 1997 are manufactured. It finds therefore that the applicant’s claims to have been arrested, detained, persecuted and tortured by Lahore police have also been manufactured.

5. The applicant has claimed that his family has been harassed for 20 years and one of his brothers has been detained at times because the applicant is wanted by the authorities. However it notes that his brothers continue to reside in Lahore and two brothers work for the [government] in Pakistan.  His only explanation for this is that there was nowhere to relocate safely and that people of interest are followed. The Tribunal is not persuaded this adequately explains why his brothers would remain in Lahore if it was the case that they are being harassed by authorities and the families of murder victims. It has formed the view the applicant has manufactured the claims that his brothers and family have been harassed by the authorities and others, that gunshots have been fired at the family home and that his brother has been detained.

6. The applicant has in the past provided country information regarding general violence in Lahore in 2012. However at his hearing in February 2020 he admitted that the situation has improved in Pakistan (implying it has improved in Lahore). He also told the Tribunal that his wife returned to Lahore in December 2019 to visit his family. The Tribunal is of the view this indicates the applicant is currently not fearful of general violence in Lahore.

7. The applicant has made other claims about the security situation in Pakistan, claiming he fears terrorism, kidnap and sectarian violence. He has also claimed he will be targeted by extremist Islamist groups for living in a Western country and that he will be imputed with a political opinion. The Tribunal is not satisfied the applicant is of adverse interest to the authorities or to any other person. It does not accept he has a profile such that he would be targeted. It does not accept he has political opponents.  Nor does it accept murder victims’ families have been looking for the applicant or a waiting for him to return to Pakistan It is not persuaded he genuinely fears harm by extremists. On the evidence before it, if it was the case the applicant was the victim of terrorism, kidnap, sectarian or extremist violence, the Tribunal is not satisfied this would be anything but the consequences of a random crime.   The applicant referred to a bombing in Quetta however there is no evidence to suggest he has ever lived in Quetta or intends to live there if he returns to Pakistan.  The Tribunal is not satisfied there is a real risk of significant harm because of terrorism, kidnap, sectarian or extremist violence in Lahore or anywhere in Pakistan.

8. The Tribunal accepts that the applicant has now married an Australian and has Australian citizen stepchildren. It accepts that he and his wife commenced the relationship in 2018 and they have been living together since late 2018, for just over a year. It accepts that his wife has suffered [miscarriages]. It also accepts that the applicant will be saddened by returning to Pakistan and being separated from his wife and stepchildren for a period while he considers appropriate visa options, such as a partner visa application. However it is not satisfied the applicant will suffer significant harm if he is separated from his wife who he married in March 2019 while he goes through the offshore visa application process.

9. The Tribunal notes the applicant has indicated he would not be able to secure employment in Pakistan. It notes he holds a [degree] and that he has been working in Australia as an employee in [Industry 1]. It also notes from his oral evidence to the previously constituted Tribunal that he has [number of] brothers residing in Lahore, two of whom have been or currently run a business. He also indicated he maintains regular contact with his brothers. In those circumstances the Tribunal is not satisfied the applicant would be destitute if he returns to Pakistan. It is also not satisfied that he will not be able to secure some form of employment and family support if he returns to Pakistan such that he will be able to subsist.

10. In view of these and the above findings and on all the evidence before it, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm if he returns to Pakistan.

11. On the evidence before it, 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. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act. 

12. There is no evidence before the Tribunal 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).

13. For the reasons given above the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a), (aa) for a protection visa. It follows that he is also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.

    Request that the Tribunal refer the matter for Ministerial Intervention

14. The applicant has asked the Tribunal to refer the matter to the Minister for intervention on humanitarian and compassionate grounds because he has now married an Australian who has [Australian] citizen children. The Tribunal notes he has been living with his wife since late 2018 and he married her in March 2019. It accepts that she has suffered [miscarriages]. It also accepts that he has formed a bond with her children aged [specified]. However the Tribunal is not satisfied a relationship is unique or exceptional in the way the guidelines for Ministerial Intervention intend. It also notes that the applicant may be able to apply for a Partner visa and request a waiver of condition 8503. Having regard to the guidelines for referral the Tribunal has decided not to refer the matter to the Minister. However it accepts that he may decide to pursue this option and it is satisfied the applicant’s representative will assist him with this process.

    DECISION

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

    Denise Connolly
    Member