1803087 (Refugee)
[2023] AATA 4314
•12 September 2023
1803087 (Refugee) [2023] AATA 4314 (12 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Simon Leske
CASE NUMBER: 1803087
COUNTRY OF REFERENCE: Pakistan
MEMBER:Denis Dragovic
DATE:12 September 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 12 September 2023 at 1:58pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – fear of maternal uncle – not following through with a marriage proposal with the uncle’s daughter – marriage and subsequent divorce to a non-Muslim Westerner – issuance of a fatwa – credibility concerns – timeline of events – implausibility – visa and litigation history – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 January 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Pakistan, applied for the visa on 13 December 2016. At the heart of his applicant for protection is a fear of his maternal uncle for the reason of the applicant not following through on an arranged marriage with his uncle’s daughter.
The delegate refused to grant the visa on the basis of substantial credibility concerns about the applicant’s evidence. The delegate did not accept the core basis of his claims, namely of an uncle who was seeking revenge for the reason of the applicant not following through with a marriage proposal with the uncle’s daughter.
The applicant appeared before the Tribunal on 4 and 25 August 2023 to give evidence and present arguments.
The applicant was represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant is a [age]-year-old Pakistani male from Karachi. His parents and one of his father’s brothers continue to live in the family home, a three-storey house in Karachi. He described the location of the house as being on a very busy commercial strip with a [specified business] and a [specified business] alongside the three-storey house and a mosque not far from there. Opposite the house is [specified amenities].
The applicant described his parents as religious and his father as a member of the local mosque.
On his mother’s side he has two uncles, [Mr A] and [Mr B]. The maternal uncles live about half an hour away from where his family lives. A third maternal uncle was murdered in 1998 for reasons he is unsure of, but he suspects were associated with Muttahida Qaumi Movement (MQM) politics. The applicant heard that after the murder [Mr A] had ‘dealt with it’ personally. He said that he did not know what that meant.
With regards to MQM he said that everyone is linked in some way to them. He said that if something happens, instead of going to the police they would have in the past gone to one of the small unit offices of MQM in their locality and had the issue dealt with that way.
We discussed the history of MQM and the efforts of government forces to diminish their power and the subsequent split of MQM which all happened since the applicant had left Pakistan. Arising from this discussion he acknowledged that he hasn’t been there for a long time, so he doesn’t know the current situation.
The applicant described his uncle [Mr A] as a powerful businessman. He recalled sitting in his car dealership when four men came in wearing plain clothes and asked for his uncle. They insisted on going for a test drive with him and when his uncle took them, he didn’t return for four hours. The applicant said that his other uncle found out that he had been taken by the authorities and then arranged for [Mr A] to be released. The applicant said that he was arrested by members of the Federal Investigation Agency (FIA). He believes that FIA were interested in him because his uncle is involved in selling cars originating from Afghanistan illegally and money laundering.
He described his uncle’s activities as receiving investors at the dealership who would leave their money with him to invest in cars or properties. The applicant said that he saw important people with police or army escorts come to his dealership with money and attending his uncle’s house for dinners. I put to him that this doesn’t mean that they are criminals or ‘mafia’ as he claimed in his written submissions. He responded by saying that he saw heavily armed people come to the premises.
The applicant believes that his uncle knows criminals who are involved with MQM and that he has been arrested a few times but due to his connections never convicted. He believes that his political friends help him avoid prosecution.
The applicant claims that he was engaged to his uncle [Mr A]’s daughter, [Ms C], in 2011. But while in Australia the applicant married a [Ms D] by way of an Islamic nikah according to his statutory declaration dated 26 July 2023 as well as officially according to Australia law (see Certificate of Marriage). The relationship in Australia began, according to the applicant, in early 2012. He then married [Ms D] in February 2013.
The applicant returned to Pakistan in October 2013. The applicant claimed that his parents knew about the relationship with [Ms D] before he returned to Pakistan. He claims that they warned him not to pursue the relationship, not to get married and to cut it off. I asked why his parents allowed him to return to Australia, a country where he was being led astray, away from his commitment to his relationship and away from his religion, as [Ms D] was not a Muslim. He said that they were supportive of him and his mother, in particular, saw that he was in love and acquiesced to his actions. He said that they all hoped that [Ms D] would convert to Islam some time in the future.
The applicant’s relationship with [Ms D] broke down in May 2015. I asked why he then proceeded to appeal the Department’s refusal decision for the partner visa. At the hearing the applicant said that he couldn’t recall what was motivating him, while in the written submission he indicated that it was a hope that his relationship would recover through this period.
The delegate provided the details of these appeals which are relevant to this decision and as such I include them below:
30/01/2015 Application refused – Partner visa
18/02/2015 Review commenced
([Date] March 2016 AAT decision to affirm the refusal)
24/03/2016 Judicial Review commenced
[Date]/11/2016 Judicial Review result – Application dismissed
The applicant claims that his uncle, [Mr A], found out in late October 2016 that he had been married to a non-Muslim. As a result, the applicant claims that his uncle called him over the phone, pressed him about his relationship saying that he had seen some photos of them together.
The applicant claimed at the hearing that following this call he received a fatwa in the mail directly to his house in Australia. He claimed at the hearing that it was the receipt of this ‘fatwa by mail in Australia’ that triggered his application for a protection visa which was dated 13/12/2016.
This claim aligns with the statement in his protection visa application in response to Question 90:
Mamu [uncle] managed to get Fatwa (religious pronouncement) against me for going against Islam and marrying a non-Muslim girl.
When asked about the original fatwa, as only scanned copies were provided, he said that he had it at home along with the envelope within which it came. He said that it was sent by a ‘random person’ whom he did not know. At the hearing the applicant was requested to provide a photo of the envelope to the Tribunal that same day. He agreed that this was possible and provided it as requested.
I noted to the applicant that it is either a coincidence or contrived that the fatwa would be received within weeks of his last judicial appeal failing, noting that the last judicial appeal was determined on the [date] November 2016 and according to his protection visa application form he learned of the fatwa the day before he completed the form which would make it on the 11 December 2016. The applicant said that it was coincidence.
The envelope that contained the claimed fatwa shows that it was sent via [named courier] in an express postage manner similar to DHL whereby the sender provides their details along with the details of the receiver. These are typed in a template block along with a bar code. The form appears to have been printed off of the website of [the courier] as there is a web address in the top right-hand corner. Of note is that the date alongside the section for the sender’s signature printed as a part of the waybill is 28 January 2019.
A copy of the fatwa was provided to the Tribunal. It is in the format of a question and answer. The original translation provided to the Department was questioned due to an apparent error in translation and as such a second translation was provided by the applicant to the Tribunal.
The question posed in the fatwa according to the second translation provided to the Tribunal is:
Question: According to the Plaintiff’s application and statement, the Plaintiff, [Mr A], organised the engagement of his daughter [Ms C] daughter of [Mr A] with his nephew – the son of his sister [Ms E] – [the applicant] son of [Mr F]. When [the applicant], who has been working in Australia since 2007, came to Pakistan on leave in 2011, his engagement was organised. After the event, [the applicant] returned to Australia after his leave finished. After a few years, the Plaintiff, [Mr A], received a photograph via the social media, and it was showing the wedding of his daughter’s fiancé, [the applicant], with a non-Muslim Christian girl. Considering this, the Plaintiff, [Mr A], issued [the applicant] son of [Mr F] a notice on 2 December 2016 and terminated the engagement of his daughter, [Ms C], because his daughter’s former fiancé, [the applicant] son of [Mr F], had deceived her. He had made fun of her honour and respect. Further, marrying a non-Muslim he had committed a sin. If the Plaintiff, [Mr A], had not learned about the secret marriage of [the applicant] son of [Mr F] in time, the life of his daughter, [Ms C] daughter of [Mr A], would have also been ruined, which would be an extremely bad and unethical behaviour.
The answer to this question is given as:
In light of the application of the Plaintiff, [Mr A], we, the Jamat e Islami, convict [the applicant] son of [Mr F] against [Mr A] and find him punishable for secretly marrying a non-Muslim Christian girl, and in light of the law and religion, we emphasise that if the convict/criminal, [the applicant] son of [Mr F], returns to his country, he must be severely punished, both materially and physically, so that no one else can ruin the life and future of a girl and make fun of her honour in the future, nor can any Muslim boy make fun of his religion by marrying a non- Muslim family’s girl. Further, we condemn this act and demand that [the applicant] son of [Mr F] should be brought back to the country as soon as possible and execute the punishment so that the Plaintiff can get justice.
The fatwa does not have the name of the religious scholar who gave the advice, but it has the letter head of Jamaat e Islami Pakistan. The logo is a widely recognised logo for the political party but as was put to the applicant at the hearing, it is not common and no example was able to be found of the Jamaat e Islami logo with an English translation of the name in the logo. I noted that the party is a fundamentalist Islamist party and found it strange that they would have a part of the logo in English. The applicant responded that he had seen logos in English listing MQM as an example. I noted that MQM is a secular political party. He said that what he has been told by his family and what he knows of his uncle he knew that his uncle would do anything to get him.
I noted to the applicant that country information about fatwas was received by the Tribunal from his legal representative which indicate that anyone can obtain a fatwa and that any cleric or religious scholar could issue one. I noted that there are thousands of religious scholars in Pakistan possibly hundreds of thousands and they would each be issuing fatwas and asked why he thought that this fatwa would be known to anyone other than a small group of people directly involved in this incident such as his uncle and his uncle’s contacts.
The applicant believes that as the fatwa was released by Jamaat e Islami then all of their officers and officials would know of it. I noted that it has been seven years since the date of the fatwa and wondered how they would continue to keep track of it. He said that his uncle would continue to agitate the matter.
The applicant noted two incidents that reflect his uncle’s determination. He said that his family noticed ‘random’ cars parked in front of their house. He believes that they are people sent by his uncle to observe the house just in case the applicant returned. He claims that his family started noticing these cars straight after the phone call he received in 2016 from his uncle. He claims that there were random cars observing their house around the clock. Most recently he said that random cars are parked in front of their house, but it is no longer around the clock. I noted that according to his own evidence he lived on a big commercial strip and as such there would be many cars parking there. He responded by saying that there is nothing opposite their house other than the [specified amenities]. I put to him that it could be for other reasons, such as someone local requiring security, or people just delaying going home or waiting to meet someone. He listed the businesses around his home, a [specified business], a mosque, a [specified business] and said that his father knew everyone and would have been told if any had hired security.
The second incident that he claims indicates his uncle’s determination to get him is a phone call his mother received from his uncle when his younger brother was leaving Pakistan to Dubai. He claims that his uncle called his mother and noted that her son was leaving the country and that he asked where he was going. The applicant believes that the uncle was interested in knowing whether his brother was travelling to Australia to see him. I put to him that the call could have been a call of concern to ensure that his mother knew that her son was leaving the country. The applicant said that his mother did not feel that it was a call out of concern. I also suggested that it would be counterproductive of his uncle to reveal his connections at the airport as this would only deter the applicant from returning to Pakistan which the uncle would require so as to fulfill his promise to harm him.
The uncle requires the applicant’s return as the applicant has claimed that the uncle has not married his daughter [Ms C] despite her being about [age] years old, which the applicant identified as being an ‘age where it is more difficult to attract a husband’[1], because he wants to deal with the applicant first. When this was put to him, namely, that the phone call to his mother revealing his connections in immigration and the claimed surveillance would only lead to the applicant fearing returning and possibly not returning. The applicant responded that he believes his uncle wanted to show his influence and power by letting his mother know that he had people in the airport.
[1] Statutory declaration 26 July 2023
I asked the applicant if anyone in his family had tried to resolve the issue through mediation noting country information indicates that this is done between families.[2] The applicant said that it would be more common in Peshawar or Khyber Pakhtunkhwa and not in Karachi for families to resolve issues. I noted that he had earlier said that people go to MQM to have issues resolved and asked whether someone had done that, he said that his father tried to talk to the imam at the mosque, but the imam noted that a fatwa had been written and there was nothing that could be done. He added that his father is sick. I noted that over a period of nearly 7 years it seems no one has tried to solve the issue. He acknowledged this.
[2] type="1">
The applicant claimed that his uncle had ties to both MQM and another political group, Jemaat e Islami (JI). I put to the applicant that the two are diametrically opposites, one is a secular party that includes a mix of various religion’s representatives, and the other is a staunchly Islamist Party that advocates Sharia law and has been associated with terrorism.[3] The applicant said that he is not sure if his uncle is officially associated with either party but that he has seen officials go to the uncle’s dealership. The applicant is confident that JI officials have been seen around the dealership claiming to have seen his uncle have dealings with them including attending weddings, family occasions and political speeches.
[3] Regarding JeI having ties to terrorism: as well as the Representative’s pre-hearing submission at pp16-17; and advocating Sharia Regarding MQM
I put to the applicant that it would be hard for it not to be known that the uncle was playing both sides. He said that if you need to survive in Karachi you needed to have dealings with both. The applicant acknowledged that membership of MQM requires loyalty and that leaving MQM can lead to death. He said that as a businessman he would have to have dealings with all of them including local gangs.
Findings of fact
The applicant has made several claims that have raised serious concerns about his credibility most notably the issue of the fatwa.
The applicant included in his protection visa application that there was a fatwa directed against him. He claimed at the hearing that the fatwa had triggered his visa application and similarly wrote as much in his protection visa application.
But I note that the envelope that delivered the fatwa to the applicant directly to his address in Australia from some ‘random’ person was posted in January 2019, three years after his protection visa application, which he had claimed had been triggered by the receipt of the fatwa. When this was put to the applicant at the second hearing, he said that he had received multiple copies of the same fatwa and specifically that he had received copies prior to the 28 January 2019.
He claimed that one of the envelopes that he had provided to the Tribunal, had borne another copy of the same fatwa at an earlier date which was also posted to his home address. He claimed that he had also received postal notes of packages to be picked up at the Post Office which he believes may have been more fatwas, but that he simply didn’t bother to go and collect the packages. I put to the applicant that it was strange that someone would have a notice of a delivery for a package and without knowing what the package was that they would not collect it. He said that if something was coming to him he would know about it.
I suggested that the envelope that he claimed carried an earlier fatwa was actually the hard cover envelope that sits within the flimsy plastic outer cover of the [courier’s] envelope. The applicant disagreed.
I note that the envelope he claims bore an earlier copy of the fatwa does not have any postal markings on the front and no addressee. When this was put to the applicant at the second hearing the applicant said that there was another plastic cover for it, but he simply didn’t keep the cover.
I note that in submitting to the Tribunal the photos of the envelope requested by the Tribunal immediately after the first hearing the representative wrote in the covering email, ‘Please find below a photo of envelope received by the Applicant with Fatwa letter as requested by the Member in today’s hearing.’ Relevantly, there is no mention of multiple envelopes or envelopes sent across multiple dates, but rather, simply in the singular, ‘a photo of envelope received by the Applicant.’
I note that the applicant had previously said that he had only received a single fatwa to his address in Australia and had not at any stage of the process claimed to have received multiple fatwas. For example, this is a transcript of the evidence the applicant provided at the first hearing:
Member: You’ve been aware of this threat to you since 2016?
Applicant: With my uncle, yes?
Member: When did you apply for a protection visa?
Applicant: As soon as I found out there was a fatwa against me.
Member: When did you find out that there was a fatwa against you?
Applicant: It would have been about the same time I applied for protection?
Member: Is this the fatwa that was mailed to you?
Applicant: Yep.
Member: So there was only one fatwa?
Applicant: Yes, that I’m aware of?
It is relevant to consider how the applicant has suggested the information of his relationship in Australia came to be known to his uncle who subsequently is claimed to have sought a fatwa against the applicant.
The applicant claimed that a man named [Mr G] provided the information to his uncle. [Mr G], he claimed, is the son of a friend of his uncle. According to the applicant he came to Australia and stayed with the applicant a short while before moving to another address which the applicant provided at the hearing. The applicant recalled at the hearing that [Mr G] would have left Australia in 2015 or 2016 and that he would have then told his uncle about his marriage to [Ms D].
This aligns with the applicant’s claims that he received a call from his uncle in October 2016 as per his statutory declaration dated 26 July 2023 at [38].
Using the address provided by the applicant and the name of [Mr G] the Tribunal was able to identify the movements of [Mr G] out of Australia. It was put to the applicant under s 424AA that [Mr G] last left Australia in June of 2014 and not 2015 or 2016 as he had claimed. It was explained to the applicant that this was relevant as it would suggest that [Mr G] had not mentioned anything to his uncle for some years. Noting that [Mr G] had travelled back to Pakistan also in 2013 the time period of any revelation to the uncle of the applicant’s life in Australia may be as long as three years if the applicant’s claims and timeline are to be believed. I put to the applicant that it appeared strange that [Mr G] would not say anything about the applicant to his uncle or that his uncle would not do anything until a few weeks after his last judicial review was dismissed some two or three years after [Mr G] had returned to Pakistan. The applicant requested an adjournment which was granted, and upon return he said that he wouldn’t know what happened and that he hasn’t been in touch with [Mr G].
The applicant believes that [Mr G] told his uncle and that this triggered a series of events in October 2016 including, according to his protection visa application, his parents being confronted, his brother acknowledging the truth to his uncle and the applicant being called by his uncle. But as noted above I had put to the applicant under s 424AA that [Mr G] had returned to Pakistan in 2014. I find it far-fetched that [Mr G] did not mention anything to the uncle for a few years about what would be quite an important development in the life of the uncle’s nephew, namely that he is married.
Furthermore, the fatwa provided by the applicant does not have a name to indicate the author. I explained to the applicant at the second hearing that fatwas are religious decisions by Islamic scholars. Their value is dependent upon the standing of the scholar and as such individual Muslims can seek out multiple views by different religious scholars. As contained in the country information provided by the applicant’s representative prior to the hearing, ‘any cleric or religious scholar is able to issue a fatwa.’ Importantly, this does not include institutions. A fatwa without a scholar’s name is vexing as it is not clear by whose authority the religious decision is being made.[4] He responded that it is all he received. He said that he would not know what a fatwa looks like.
[4] in addition to my personal expertise based upon holding a PhD in religion including Islamic theology from the University of St Andrews.
In addition to concerns about the lack of a name, the matter of the logo of a conservative Islamist political party being in part in English is concerning. As was put to the applicant at the hearing, no other examples of the logo of the Jamaat-e-Islami party which included English writing could be found through searches of the internet at the hearing (with the screen shown to the applicant at the time).
I also consider the plausibility of the behaviour that the uncle is alleged to have exhibited. The claim that he hasn’t married his daughter to someone else because he needs to settle the matter with the applicant is vexing. If the matter arises from an attack on his honour, as was claimed by the applicant, then to respond would be to find a more suitable suitor for his daughter and not let the matter of her lack of marriage linger as an ongoing sign of this past shame. Instead, the applicant is claiming that the uncle is not only holding off marrying his daughter until he settles the matter with him but he is taking actions that would dissuade the applicant from returning such as calling the applicant’s mother to make it known that he has contacts at the airport.
This appears to be logically counterproductive. In addition, it seems odd that if the applicant’s uncle would have such connections in immigration that he would then commit the resources to have people outside of the applicant’s home. Having said that, I accept that not all people act logically and there could be an element of pride and a desire to project power. In of itself this apparent contradiction would be of little relevance but when considered together with the other issues of concern it leads me to place some weight on it.
I have also looked at the applicant’s visa and litigation history. The applicant has studied four courses ranging across hospitality, printing and graphics, business and automotive and mechanical technology. He applied for a partner visa which didn’t progress due to his sponsor withdrawing but he nevertheless appealed it repeatedly. That the applicant’s protection visa application, triggered by a fatwa that was claimed to have been received before he applied, occurred within a few weeks of the final judicial dismissal of his partner visa adds to the concern arising from his visa history. I put to him that his visa history along with what he has described as his childhood dream to live in Australia may appear as if he was doing all he could to stay in Australia. He said that he was doing what he was doing to protect himself and that he had told the Tribunal all he could say.
When considering the applicant’s claims, I have serious doubts about his claims for all of the reasons listed above. Based upon these concerns I find that there is no legitimate fatwa against the applicant. I find that the applicant’s uncle has not deployed personnel to his family’s house or has people embedded in immigration centres in an airport. I find that the applicant’s father has not spoken to a local Imam about the fatwa nor that the applicant has received an angry and threatening phone call from his uncle. I summary, I find that none of the claimed actions that arose from the ending of the proposed marriage to [Ms C], the marriage in Australia to [Ms D], and the subsequent fatwa actually occurred.
I accept that the applicant has an uncle who was killed in 1998, that he has another uncle, [Mr A], who is a successful businessman and has been at some point in the past arrested by authorities. I accept that this uncle has political ties and that locally important people visit his dealership including with bodyguards. I accept that to be involved in business in Karachi one most likely will have some dealings with local gangs.
In considering whether the applicant has any criminal associations, I accept that his business has been involved in activities that are not necessarily legal and may have involved some engagement with criminal elements to help, for example, smuggle cars from Afghanistan into Pakistan. Such activities, I accept, led to the interest of government authorities such as FIA. I also accept that he used his connections to avoid prosecution.
I accept that this uncle has dealings with various political parties, but not as a member as his association with political parties on the ideological extremes would not go unnoticed; and that he has business interests with influential people, but ultimately that he does not hold any animosity towards the applicant.
I accept that at some stage the applicant was committed to marry [Ms C], but I do not accept that his behaviour in Australia has led to the uncle or any family member having any animosity towards the applicant as a result of the breakdown of the planned marriage.
Considerations
In turning my mind to the circumstances of the applicant upon return to Pakistan, I note that based upon my findings of fact the applicant has no profile that would expose him to serious or significant harm.
His uncle’s death from over 25 years ago is not claimed nor is there any evidence to suggest that it is family or honour related but rather directly involved with MQM politics and as such would not carry over to be a threat to the applicant as a relative where no other relative has been harmed and considering that the events that led to his death were 25 years ago.
Regarding the applicant’s uncle who has a successful business, while the uncle has had some brushes with the law in the past and engages with various political parties and influential people who have bodyguards that carry weapons, as well as having dealings with local gangs, there is no claim that any harm has befallen any extended family member. As the applicant has not claimed to be distinguishable from any other family member such that he would be harmed by anyone seeking to harm the uncle, I find that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from his relationship to his uncle.
Not accepting that the applicant’s uncle harbours any animosity towards the applicant for any reasons and there being no claims that other family members harbor any intention to harm the applicant, the applicant’s marriage and subsequent divorce to [Ms D], a non-Muslim Westerner, is not a source of any harm to the applicant.
There is no independent third-party evidence before the Tribunal that society in general in the Karachi and Sindhi context would harm a male who has legitimately married a non-Muslim Western female while abroad in an Islamic wedding and subsequently divorced her. Country information was provided of honour killings arising from illicit relationships, which is not relevant to this case as his relationship was not illicit. In addition, the country information provided relates to families pursuing the honour killing but as noted above, I have not accepted that the applicant’s family or his extended family have expressed any intention to harm the applicant for any of his actions. As such I find that the applicant’s marriage to [Ms D] and subsequent divorce will not lead to the applicant facing a real chance or serious harm or a real risk of significant harm.
Overall, I find that there is no basis upon which the applicant faces a real chance of serious harm or a real risk of significant harm.
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). 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.
Denis Dragovic
Deputy PresidentATTACHMENT - 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.
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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.
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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.
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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.
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36 Protection visas – criteria provided for by this Act
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(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.
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Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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