1803884 (Refugee)

[2023] AATA 981

1803884 (Refugee) [2023] AATA 981 (15 January 2023)

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  1803884

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:  Christine Cody

DATE:  15 January 2023

PLACE OF DECISION:  Sydney

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

Statement made on 15 January 2023 at 7:03am

CATCHWORDS
REFUGEE – protection visa – Pakistan – religion – lsmaili sect of Shia Islam – threats of harm by Sunni community – accused of blasphemy – court summons – delay in applying for protection – credibility issues – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 65, 189, 426A, 441A, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
BZADA v MIC and RRT [2013] FCA 1062

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 Home Affairs on 18 January 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). Relevant law is set out in Annexure A.

1. The applicant lodged his application for a XA-866 (Permanent Protection) visa on 29 November 2017, providing application forms to the Department. He attended an interview with the delegate on 8 December 2017.

1. The delegate refused to grant the visa on the basis that the applicant’s claims were not credible.

1. On 14 February 2018 the applicant lodged an application for review to the Tribunal, providing a copy of the delegate’s decision record and notification of the refusal of the visa application (and other documents relating to the grant of his bridging visa).

1. On 16 February 2018, the Tribunal sent the applicant an acknowledgement letter, confirming that it is important that he keep the Tribunal informed of any change in his contact details, and he was requested to provide any relevant documents or information to the Tribunal as soon as possible. No documents were provided.

1. On 9 March 2022 the Tribunal wrote to the applicant noting that his file was being prepared for allocation to a Tribunal member which may result in a hearing being scheduled. He was asked to provide any evidence relevant to his application as soon as possible, and to complete and submit a pre-hearing form. No documents were provided.

1. On 19 December 2022 the Tribunal wrote to the applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the applicant to give evidence and present arguments at a hearing on 13 January 2023 at 1pm. The invitation stated that if he did not attend the hearing, the Tribunal may make a decision on the case without further notice. The Tribunal also sent him SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.

1. The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with s 441A(5), the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the applicant about the hearing. No satisfactory reason for the non-appearance has been given.

1. In these circumstances, and pursuant to s 426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

CLAIMS AND EVDIENCE

Migration history

1. The applicant is a citizen of Pakistan. His migration history is set out in the delegate’s decision record[1]:

   [1]  Provided to Tribunal by the applicant

·     On 19/10/2011 the applicant was granted a TU-572 (Student) visa offshore (LUD: 25/03/2013)

·     On [date]/12/2021 he left Pakistan[2]

[2]  Sourced from his protection visa application form

·     On [date]/12/2011 he arrived in Australia

·     On 21/03/2013 he applied for a TU-573 (Student) visa onshore and was granted an associated WA-010 bridging visa

·     On 18/04/2013 he was granted a TU-573 (Student) visa (LUD: 15/03/2015)

·     On 13/03/2015 he applied for a TU-572 (Student) visa onshore and was granted an associated WA010 bridging visa

·     On 15/06/2015 he was granted a TU-572 (Student) visa (LUD: 18/05/2018)

·     On 21/10/2016 the applicant’s TU-572 (Student) visa was cancelled under s116; the applicant became UNC

·     On 15/11/2017 the applicant was located by NSW Police during a roadside check, detained under s189(1) of the Act and transferred to detention

·     On 29/11/2017 he applied for a XA-866 (Permanent Protection) visa

·     On 11/12/2017 the applicant was granted an associated WE050 bridging visa and released from immigration detention.

The application before the Department

Written background evidence

1. According to the application forms[3], the applicant’s background information is as follows:

   [3]  He provided two Forms which contained repeated/ similar information about his background and claims

1. The applicant was born in [year] in [Location 1] [Town 1], Khyber Pakhtunkhwa Province, (KPK), Pakistan. His religion is Shia Imam Ismaili (Aga Khani) and his ethnicity is Chitrali. He has never been married. He speaks, reads and writes in Urdu, English and Khowar (Chitrali).

2. He resided in the following locations in Pakistan:

·     [birth] to March 1999: [Location 1] [Town 1]

·     March 1999 to May 2006: [Location 2], [Town 1]

·     March 2006 to May 2008: [University 1]

·     February 2008 to May 2011: [Location 3], [Town 1]

·     May 2011 to December 2011: [Karachi]

1. He was educated in Pakistan as follows:

·     [College 1], [Class 12] in [year] at [Town 1]

·     In May 2006 he studied a [Subject 1] course at [University 1], KPK, until he withdrew in February 2008.

1. He worked in Pakistan from February 2008 to May 2011 as a Teacher at [College 2], [Location 3], [Town 1]

1. His passport was issued [in] 2010; this expired [in] 2015. His recent passport was issued [in] 2016 when he was in Australia

1. His family include his mother, [and specified siblings] who all reside in Pakistan:

1. His studies in Australia included:

·     Applicant withdrew from Bachelor of [Subject 2] at [University 2], Australia (dates of study not provided)

·     Applicant withdrew Advance Diploma in [Subject 3] from [College 1], Australia[4]

·     Applicant attained Diploma of [Subject 4] at [Institute 1], Sydney, Australia in 2013

[4]  On one form he said he withdrew from this; on another form he said he was still studying this. This does not have any bearing on the decision.

1. His occupation is “trades”. He has worked from March 2012 to November 2017 in Australia as a [occupation].

Written claims

1. The applicant’s claims in the application forms can be summarised as follows:

·     He left Pakistan as his life was not safe in this Islamic country (and he could be targeted by people from nearby countries) as his life was threatened and he was subject to a blasphemy case lodged at the instigation of [Mr A] (son of the late [Position 1] of [Region 1] at the time of Princely State Era of Chitral before independence of Pakistan).

·     The blasphemy case relates to a very old court case between [Mr A]’s family and the Ismaili community (to which the applicant belongs) about grazing land and financial entitlements from trophy hunting of ibex. [Mr A]’s family did not agree to the equitable distribution of funds and sought more in a court case. The applicant’s father represented the community and [Mr A]’s family lost the court case. This led to [Mr A] being against the applicant’s family.

·     The applicant had been teaching [Subject 5] (and related subjects) at the college in his own unique way: stating that it is his dream to prove to the people and [Mr A] the techniques of delivering knowledge through pure practical [Subject 5] “without using any language tool of communications”. A student had lodged a complaint against him for his method of teaching and [Mr A] took advantage of this for his revenge. It was alleged against the applicant that he is teaching against the Islamic ideology, which formed the basis of the blasphemy case. The applicant is defending the case.

·     The applicant has already suffered harm including being bullied for teaching such methods, damage to his equipment, he was not permitted to continue teaching at the college, and his family and community wanted him to leave the area because they were fearful that their projects and businesses would be adversely affected by association with the applicant. He had also been threatened with death and had been attacked by gunfire when crossing an area where Sunni people are the majority: he was lucky because he had his fully loaded AK47 that he always carried for his safety, and so he escaped safely.

·     He fears that if he returns he will probably receive he death penalty as a result of the blasphemy case, or he will be attacked by mobs/ lynched because he is accused of blasphemy, and he will not be able to obtain protection from his family, community or the authorities (as most of them are controlled by the Sunni ideological base of Islam). He provided examples of other people alleged to have committed blasphemous acts who had not been protected by the authorities, and who had been killed/lynched, and he noted that extremists are motivated to kill such people to ensure a good place in “paradise”. He would not be able to relocate because he would be isolated, be ashamed, have no money and no weapons to be safe, he would be excluded and he will be in danger while ever there are blasphemy laws in existence.

The interview with the delegate

1. On 08 December 2017 the applicant had an interview with the delegate. He declined using an interpreter[5]. The Tribunal has listened to the recording of the interview.

   [5]  As set out in the decision record provided to the Tribunal by the applicant

1. The delegate set out details of his claims at interview in the decision record which included some of the claims made above as well as the following additional evidence:

·     The lsmaili sect of Shia Islam is a religious minority in [Town 1] constituting about 36% of the town's population.

·     One of his [relatives] owns and runs the college at which the applicant worked as a [Subject 5] teacher from 2008 till May 2011. The applicant said that another problem for him was that the college taught both boys and girls. He said however that the college continues to operate.

·     The applicant introduced unconventional methods of teaching involving a subconscious approach to [Subject 5]. [Mr A] complained to the local mosque about the applicant's strange teaching methods claiming that they violate Islamic principles and demanded separation of boys from girls in the class.

·     The blasphemy court case against the applicant started in 2009. If found guilty, the applicant could face a death penalty. The applicant received summons from the court but did not comply with it.

·     The applicant was attacked at a music [festival] with a knife or sword. He tried to fight back and received deep cuts on his [Body Part 1]; his [Body Part 2] was broken and since then remains dislocated.

·     The applicant explained that he failed to apply for protection prior to his detention because he did not like the idea of being seen a refugee and "treated like a refugee". Besides, after his student visa was cancelled, he was planning to get admission at [a university] in [country] with help of a friend but could not collect enough money in time despite borrowing $5,000. As a result, he missed the admission deadline. Soon after he was detained.

·     The applicant cannot relocate to another area in Pakistan because, being an lsmaili, he cannot live in an adverse Sunni environment while his own community refuses to support him. Besides, the court in Peshawar may decide to bring him in by force. Therefore, he went to Australia (using savings/ proceeds from his property entitlements).

1. The applicant also made a claim at interview that his elder brother had been jailed for 1 month in 2016 because of his [stock] entering a grazing area which led to further disputes with [Mr A].

1. The delegate provided the applicant 28 days after the interview to provide further information, saying that, if he needed more time, he had to notify the delegate before the deadline has expired. The further information sought was as follows:

·     The delegate explained to the applicant that it was difficult to understand his method of teaching [Subject 5] and why exactly it attracted adverse attention of religious zealots. The applicant was requested to provide detailed written description of his teaching methods and reasons of why it attracted adverse reaction of the local Sunni community.

·     The delegate asked the applicant if he was in the position to present documentary evidence of the blasphemy court case against him. He said that he would have to contact his family members to obtain such documents.

The delegate’s decision record

1. The delegate noted that 37 days had passed and there had been no contact from the applicant and the delegate was proceeding to making the decision.

1. The delegate referred to country information, stating that according to reliable sources, Ismailis currently face a low level of violence and insecurity in Pakistan and lsmaili faith in itself does not attract persecution. It was noted that no Ismailis were killed in 2016, and there had been no reports of anti-lsmaili violence in 2017. Neither did the applicant claim that he would face persecution merely because he is an lsmaili.

1. Further country information indicated that being accused of blasphemy in Pakistan carries a high personal risk of a life-long or death sentence, or sectarian violence. Christians, Ahmadis, Hindus, and Muslims have been charged with blasphemy, with individuals reportedly using the threat of blasphemy laws to intimidate vulnerable people in personal disputes. Pakistanis accused of blasphemy face mob lynching or vigilante violence. Religious minorities such as Ahmadis, Christians and Hindus, are significantly overrepresented among those facing blasphemy charges. The delegate noted the applicant’s claim that that the accusation against him was based on his adherence to unconventional methods of teaching [Subject 5] and also teaching to girls and boys in a mixed class. The delegate did not accept that he would have been targeted over co- ed education because it was not the applicant's choice to do so; the college policy was determined by the local community and college owners, and the college is still operating.

1. The delegate raised further concerns arising from the applicant’s claims and evidence including:

·     The delegate considered that it was difficult to accept that that teaching [Subject 5] can be construed blasphemous as it is an [area] widely known to be free from religious and other ideological implications. The delegate considered that: “the applicant provided incoherent and confused explanation of his teaching methods which he claims have attracted adverse attention of Sunni fundamentalists. I was not sure if his vague responses resulted from the lack of English skills (even though he declined using an interpreter) or because he invented this part of his story. To address these doubts, I offered the applicant an opportunity to provide a detailed written description of his teaching method and reasons of why it attracted adverse reaction of the local Sunni community. The applicant agreed to do so but, to date, failed to provide such a statement.”

·     The delegate also raised concerns that the applicant had not provided any documentation about the claimed charges or court case; noting that there must have been a First Information Report (FIR) or court documents which the applicant or his lawyer if he had one would have been entitled to access. A concern was also raised that the applicant had claimed that the court dealing with his case was a court in Peshawar, because country information indicates that police may only register an FIR in their own jurisdiction, where the commission of the offence took place. That would mean however that, if an FIR was submitted against the applicant, it would have happened at a police station in [Town 1] and that the court dealing with this case would have been the [Town 1] District Court rather than a court in Peshawar.

·     The delegate also noted that A DFAT advice from September 2017 states: "In practice, blasphemy laws can be misused to settle personal or property disputes. Following an accusation, police will automatically detain the alleged blasphemer- usually in solitary confinement-ostensibly for their own safety". However, according to the applicant's testimony, he continued to live in [Town 1] and teach at [College 2] until May 2011 while the blasphemy court case against him was allegedly initiated in 2009.

·     The delegate also stated that It is also highly likely that, had the applicant been charged with blasphemy but not yet tried, his name would be placed on Exit Control List (ECL) and he would not be able to leave the country before the completion of court proceedings. Pakistani courts are known to actively use ECL placements to stop those accused of blasphemy from fleeing the country. The fact that the applicant could leave Pakistan on a passport issued in his real identity is a further indication that he was not wanted by authorities.

·     The delegate was also concerned with his delay in leaving Pakistan (2 months after the visa was granted) and his delay in claiming protection.

1. The delegate considered that the applicant is not a witness of truth and that he invented the story of being accused of blasphemy and attacked by Sunnis.

The Tribunal

1. The applicant provided an application for review form, a copy of the delegate’s decision record and notification of the refusal of his application, and documents relating to the grant of his bridging visa.

CONSIDERATION OF CLAIMS

Satisfaction of claims

1. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6

   FCR 155 at 169–70).

1. In the circumstances where an applicant does not attend a hearing to which he is invited, the Tribunal also notes the decision of the Federal Court in BZADA v MIC and RRT [2013] FCA 1062, where Rangiah J held at [21]:

As his Honour correctly found, the Tribunal was unable to reach the requisite level of satisfaction to grant the applicant a visa given his failure to attend the hearing and the Tribunal’s inability to test and examine his claims in evidence. The relevant statutory scheme (ss 65 and 36(2) of the Migration Act) requires the Tribunal to reach a requisite level of satisfaction as to the criterion set out in s 36(2). Satisfaction of the criteria for the grant of a protection visa depends not on a particular matter being established but on the Minister (or the Tribunal standing in the shoes of the Minister) attaining a state of satisfaction as to a number of matters which have to exist for Australia to owe protection obligations to an applicant.

1. The issue in this case is whether the applicant is a refugee or entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

1. The Tribunal has considered on the evidence before it whether there is a real chance that the applicant faces persecution and/or a real risk of significant harm if he returns to Pakistan.

1. The Tribunal was concerned that there were a number of inconsistencies in his claims, including as follows:

1. Firstly, in his written claims the applicant claimed that he did not relocate/ move to another part of the country to seek safety because his ethnic group community is only living in [Town 1], and because of the court case he was feeling worried and was paranoid that if he moved he would be attacked by a mass of people in a big city in a crowded area. However, in both application forms he claims to have stopped teaching in [Town 1] in May 2011, and then to have moved to Karachi where he stayed until December 2011 (when he travelled to Australia). There is no explanation as to why he would make these claims that he was fearful to relocate while at the same time claiming that he did relocate for a 7-month period.

2. Secondly, the applicant has made claims that there were blasphemy charges and a court case against him in the claims sections in both his application forms, and in his interview[6]. However, in 2 separate sections of his protection visa application forms:

·     When asked to complete Part C, Schedule A declaring any convictions, criminal charges pending or investigations, he did not complete the schedule and provided no details of the blasphemy charges or court case.

·     When asked to state in response to question 86 as to whether he has been found guilty or convicted; whether he is aware of any investigation about him; any criminal charges pending; any involvement in crimes against humanity or serious crimes where he has not been charged, he responded “no” to all of these.

[6] According to the delegate’s decision record that he provided to the Tribunal

1. Not only did he claim to have no charges against him in his forms, but when asked during his detention interview on 16 November 2017 whether he has any court cases against him in Australia or overseas, he said no.[7] There is no explanation as to why he has given inconsistent evidence about whether or not there are charges or a court case against him.

   [7] As set out in the decision record provided to the Tribunal by the applicant

1. Thirdly, the applicant claims that being accused of blasphemy meant that he was at risk of being subject to the death penalty in court proceedings, and to being physically harmed or killed by extremists/ mobs of people. Country information (as referred to by the delegate) indicates that persons accused of blasphemy can face serious harm including being on death row or being physically harmed or killed by extremists/ mobs of people. The applicant, however, remained for 2 years in Pakistan from the start of the court case in 2009, until December 2011. Except for 2 claimed attacks, he has not explained why he was not the subject of mob attacks or lynching despite remaining in the same job and location ([Town 1]) from the start of the court case in 2009, until May 2011. He has also not explained the progress of the court case in those 2 years.

1. The applicant has also claimed that he was excluded from the college, his family and his community because of their fears of the consequences of being associated with him as a person charged with blasphemy, yet he has not explained how he managed to remain in [Town 1], and teaching, for a further 18 months after he was accused of blasphemy.

1. Fourthly in his written claims he claimed that [Mr A]’s [Relative B] was the judge in Peshawar who (falsely) organised a blasphemy case against him, whereas at interview he claimed that the judge who did this was [Mr A]’s [Relative C][8].

   [8] As set out in the decision record provided to the Tribunal by the applicant

1. Further, the Tribunal has concerns with the applicant’s delay in claiming protection once he arrived in Australia. He arrived as a student in 2011 and continued to obtain student visas. However, after his after his student visa was cancelled, he did not claim protection until he was detained for being located by the police, unlawfully present. The Tribunal has considered the applicant’s explanations that he did not want to be a refugee, he wanted to organise to go and study in another country, however it does not find these persuasive. His immigration history indicates that he has had many dealings with the Department, he has experience in making applications, he claims to have studied for a number of years in Australia and that he can read, write and speak in English. The applicant could have contacted the Department to discuss his situation; instead he became and remained unlawfully present. The Tribunal does not accept his reasons for being unlawfully present.

2. The Tribunal notes that the applicant had provided with the application for review a document from the Department relating to the granting of a bridging visa to him to release him from detention. This document suggests that the applicant was not as aware of the consequences of being unlawful as he is now, and that he will abide by the conditions of his bridging visa. While considering that this was the view of the delegate granting him a bridging visa, the Tribunal is not satisfied that he could not have contacted the Department nor claimed protection instead of becoming unlawfully present. The Tribunal considers that the applicant’s delay in claiming protection in Australia until November 2017 when he was detained undermines his claims that he is in need of protection.

1. Further, the applicant provided to the Tribunal the delegate’s decision record, in which the delegate had raised a number of concerns, including as to why the applicant was targeted for mixed classes noting he was not in charge of the college that makes such decisions, why he was not taken into custody when accused of blasphemy, why his case was dealt with by Peshawar Court instead of [Town 1] District Court, how he managed to leave the country given there were blasphemy charges against him, and why teaching [Subject 5] could be considered blasphemous. The applicant provided the Tribunal those concerns (by providing the delegate’s decision record to it) and although he could have provided explanations or responses to these concerns, he has not done so.

1. The delegate’s decision record noted that the applicant had agreed to provide, after the interview, a detailed written description of his teaching methods and the reasons why they attracted adverse reaction of the local Sunni community, but he had not done so. The Tribunal notes the applicant’s assertion (in 2017 in his protection visa application) that it is his dream to bring his method of teaching to others; if this is the case it does not understand why he did not provide more detail about his claimed teaching methods and how the methods can be claimed to attract adverse reactions on the basis of religion, to either the delegate, or the Tribunal.

1. The delegate also raised concerns that the applicant had not provided any documentation about the claimed charges or court case; the Tribunal does not draw any adverse inference from the lack of production of documents from Pakistan as it accepts there could be difficulties in this. The Tribunal is, however, concerned as to why the applicant did not communicate to the delegate before the end of the 28 day period to explain why he had not been able to provide such documents. The Tribunal also notes that the applicant has not explained the progress of the charges and court case against him in the last 5 years.

1. The Tribunal notes the applicant claims to have marks on his [Body Part 1] and other physical injuries from an attack, however it does not give weight to this as it has no independent evidence of such injuries. Further, even if there are injuries on his body, this does not mean they occurred in the manner claimed by the applicant.

1. The applicant was put on notice by the hearing invitation that the Tribunal did not have enough evidence before it to make a decision in his favour. He did not take the opportunity to provide any additional detail either in writing or orally at a hearing.

1. The Tribunal notes that the applicant has not provided any update information about his circumstances since attending the interview in 2017.

1. The Tribunal accepts that the applicant travelled to Australia with a Pakistan passport[9] and that he is a Pakistan male. It does not have evidence of his studies in Australia but it is prepared to accept his assertion that he has studied a Diploma of [Subject 4] in Australia.

   [9] As set out in the delegate’s decision record

2. As set out above, the Tribunal must reach a state of satisfaction that the applicant is a person to whom protection obligations are owed. The Tribunal considers that the applicant has not provided sufficient detail or evidence to make out his claims that: he belongs to Ismaili sect of Shia nor any other religious minority; his ethnicity (Chitrali); where he resided in Pakistan before coming to Australia ([Town 1] or Karachi); that he was a [Subject 5] teacher in his [relative’s] college; that he and his family were involved in court cases, in a dispute or targeted in the manner claimed including that the applicant was bullied, the subject of blasphemy charges and a court case and that he faces the death penalty, that he was threatened or subject to attacks and that he had been injured through a knife/sword attack or his property was destroyed or he was not permitted to do his job nor that he was isolated or excluded or lonely or shamed or not offered protection from his family, the community or the authorities nor that his brother was jailed. It does not accept these claims nor any of the claims that follow from these claims. It does not accept that he fears being attacked for reasons of ethnicity or religion, nor that he fears exclusion or isolation or poverty nor does it accept that he cannot return to his home area in Pakistan, that he is subject to any charges or court proceedings, nor does it accept on the evidence before it that there is credible evidence to accept that the applicant has experienced fear or harm in Pakistan, that his family or community or his place of work have been fearful or harassed because of him, that he has a genuine fear of harm if he returns to Pakistan, nor that he faces a real chance or a real risk of any serious or significant harm in Pakistan. The Tribunal is not satisfied that the applicant has ever experienced adverse attention from the Pakistan authorities, extremists, Sunnis, his family, his place of work nor his community, or anyone else.

1. The Tribunal is not satisfied on the evidence before it that he faces a real chance of serious harm or a real risk of significant harm for any reason if he returns to Pakistan.

1. The Tribunal has considered the applicant’s claims individually, and on a cumulative basis, having regard to the findings that it is not satisfied that the applicant’s claims are made out, other than those claims accepted above, the Tribunal rejects all the various claims made and it is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion in the reasonably foreseeable future in Pakistan. Nor is the Tribunal satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, namely Pakistan, there is a real risk that the applicant will suffer significant harm.

Conclusion

1. 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).

1. 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).

1. 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

1. The Tribunal affirms the decision not to grant the applicant a protection visa.

   Christine Cody

   Member

ANNEXURE A - CRITERIA FOR A PROTECTION VISA

1. 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.

1. 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.

1. 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).

1. 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 below.

1. 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 below.

Mandatory considerations

1. 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.

Extract from Migration Act 1958

5 (1) Interpretation

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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.

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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.

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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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