1805878 (Refugee)

[2023] AATA 4371

1805878 (Refugee) [2023] AATA 4371 (4 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1805878

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Genevieve Hamilton

DATE:4 October 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 04 October 2023 at 4:00pm

CATCHWORDS
REFUGEE – protection visa – Pakistan – fear of harm from girlfriend’s family, who opposed relationship – threats and attacks, and driver killed – girlfriend taken out of university, no further contact and no evidence of harm to her – incidents happened well after that – authenticity of police reports and driver’s death certificate – delay in applying for protection – applied after arriving on student visa and failing to commence study – late claim of political opinion – country information – prevalence of document fraud – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), (4), (5), 36(2)(a), (aa), (2A), 65(1)

CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 13 December 2016.  The delegate refused to grant the visa on 14 February 2018.

3. The applicant appeared before the Tribunal on 8 September 2023 to give evidence and present arguments.

   CRITERIA FOR A PROTECTION VISA

4. Under section 65(1) of the Act a visa may be granted only if the decision maker is satisfied that the criteria for the visa prescribed in the Act are met.

5. The criteria for a protection visa are relevantly set out in s 36 of the Act.  An applicant must meet one of the alternative criteria in s 36(2). Generally speaking, they must either be a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion (s 36(2)(a)), or on ‘complementary protection’ grounds (s 36(2)(aa)), or be a member of the same family unit as such a person. 

6. Under s 36(3) Australia does not have protection obligations to an applicant who has not taken all possible steps to avail themselves of a right to enter and reside in a third country.

   Refugee

7. Refugee is defined in the Act.  A person is a refugee if they are outside the country of their nationality (of if they have no nationality, their country of former habitual residence) 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).  

8. 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.

9. The criterion in s 5J(1) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, but also imposes an objective standard, that there be a real chance the person would be persecuted.  A 'real chance' is one that is not remote or insubstantial or a far-fetched possibility: Chan Yee Kin v MIEA (1989) 169 CLR 379.

10. The persecution must involve serious harm such as a threat to the person’s life or liberty or significant physical harassment or ill treatment, significant economic hardship that threatens their capacity to subsist, or denial of access to basic services or capacity to earn a livelihood of any kind, where the denial threatens their capacity to subsist (ss 5J(4) and (5)).

11. A person does not have a well-founded fear of persecution if effective protection measures are available to them in the receiving country (ss 5J(2) and 5LA).  A person does not have a well-founded fear of persecutionif the person could take reasonable steps to modify their behaviour to avoid persecution (s 5J(3), which also gives examples of types of modifications that are not required, such as concealing one’s religion, political opinion, race or sexual orientation). 

12. In determining whether the person has a well-founded fear of persecution, any conduct engaged in by the person in Australia is to be disregarded unless they satisfy the Minister that they engaged in the conduct for a reason other than to strengthen their claim to be a refugee (s 5J(6)).

    Complementary Protection

13. If a person is found not to meet the refugee criterion, they may still be a person to whom Australia has protection obligations if there are substantial grounds to believe that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm.  S 36(2A) defines significant harm as arbitrary deprivation of life, carrying out of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment.  “Real risk” has the same meaning as “real chance”: MIAC v SZQRB [2013] FCAFC 33.

14. Under s 36(2B) Australia does not have complementary protection obligations where:

    ·it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that they will suffer significant harm;

    ·the applicant could obtain protection from an authority of the country, such that there would not be a real risk that the non-citizen will suffer significant harm; or

    ·the risk is one faced by the population of the country generally and not by the applicant personally.

    Mandatory considerations

15. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. In his protection visa application the applicant said he was born in Gujranwala, Punjab, Pakistan in [Year] and is a citizen of Pakistan.  He said his occupation was student/business.  Although he did not list any family members in his application he said he was in regular contact with his father who lives in Pakistan.  He came to Australia in April 2015 travelling on a Pakistani passport, with a student visa issued on 24 March 2015.  He lists no employment or education history. 

17. The applicant said he came to Australia for higher education but feared he would get killed or harmed by his girlfriend’s family members who are strictly against the relationship.  On 14 October 2014 he was on his motorbike when two men on another bike intercepted him.  One came at him pointing a gun and said it was the applicant’s last day.  He loaded it and hit the applicant with it.  Two other people came by in a car whom the applicant names as his rescuers.  The other guys ran away.  The applicant had a bleeding nose and went to the doctor.  On 29 December he was coming home with his own gunman and driver.  Again two armed persons on a motor bike intercepted but the driver kept going.  He was shot dead.  A police report was lodged.  The authorities can’t protect him and refused to provide police protection.  The family is rich and well connected, they can easily find him.  So he decided to move to Australia. 

18. The applicant supported his application with a written statement.  He and [Ms A] met as students.  His family agreed to the match but hers did not.  Her uncle asked him for a meeting but he was warned that the intentions were not good so he did not go.  Her parents wanted her to marry her cousin.  She declined, causing shame to her family.  Her brother and cousin threatened the applicant.  The applicant then relates the first incident referred to above.  Then on 22 October he was at home with his family at night and there was a knock on the door by someone asking for the applicant.  His father refused to open it.  They fired at the door.  His father escaped and called the police and his factory security guard.  The shopkeeper across the road later told his father there were 5 people on Hondas and they fled in a certain direction.  The applicant then recounts the 29 December incident referred to above.  The driver was taken to hospital but he passed away.  The applicant’s father asked for police protection for the whole family but it was refused.  So his father sent him to Australia.  On 10 October 2015 some unknown men attacked the factory at night.  The applicant used to stay there overnight.  They broke down the door and opened fire, shouting for the applicant to come outside.  The security guard called the applicant’s father and shot back at the assailants who fled in a certain direction as reflected in the police report.   

19. The applicant submitted the following documents:

    ·Police report case [number 1], 14 October 2014, made by the applicant.  Mentions that his assailants accused him of trying to arrange his own marriage of choice.  States that he was abused and held at gunpoint. 

    ·Police report case [number 2], 22 October 2014, made by the applicant’s farther concerning the shooting at the house.  States that [Ms A]’s father has been trying to kill his son. 

    ·Police report case [number 3], December 2014, by the applicant’s father, that his son called him to say the car had been shot at.  They took the driver to the hospital where his death was confirmed.  Names his driver and gunman. 

    ·Police report case [number 4], by the applicant’s father concerning the claimed shooting at the factory. 

    ·Agent/legal submission reiterating factual claims as above.  The applicant decided to study in Melbourne instead of Sydney because [Ms A]’s family may come to know that he is Sydney.  His education agent in Rawalpindi failed to change his enrolment, and then closed down his office.  He had all the applicant’s education documents.  A complaint had been made against the agent by another student.  The submission goes on to address the elements of the refugee and complementary protection regimes. 

    ·Death certificate of [Mr B] (claimed to be the applicant’s driver) issued by the Government of Punjab dated [December] 2014.  The nature of the death is described as normal, the reason of death is described as natural causes, but in an additional information section at the end of the document the word is added (and misspelled) “murdur”.

    ·Medical examination 14 October 2014 regarding the applicant.  Indicates he has been in a fight and was accompanied to the hospital by the police.   

20. The police reports are described as First Information Reports.  The reports in Urdu are photocopies with an original ink stamp of the police station applied.  They are submitted with English Translations by someone purporting to be a Civil Court Translator of Wazirabad (so stamped).   

21. At his protection visa interview the applicant said he and [Ms A] were in a serious relationship and wanted to marry.  She came from a conservative family and they were offended by it.  They decided to marry her to her cousin and she refused.  They met in 2011.  Her family was shamed in the community.  He was attacked three times and his driver died.  The applicant recounted the incident that occurred on 14 October 2014.  It wasn’t a robbery, the assailants were hitting him and saying it was to teach him a lesson for choosing your own marriage.  They said “we will get rid of you by any means necessary even if we have to kill you”.  They were scared off but said “we will come for you again”.  He recognised her cousin’s voice.  They were wearing masks.  He went to the hospital with the men who came in the car, they called his parents.  Dad came and then they went to the police station. 

22. The applicant then recounted the incident of 22 October.  There was a knock on the door.  They did not identify themselves when asked but said they wanted the applicant.  His father thought it did not sound like any of the applicant’s friends.  Shots were fired at the security gate.  The applicant did not know how many shots were fired.  His father left the house and fled to the factory a short way away.  The assailants said “you won’t be able to keep him safe for long”.  The security guard from the factory came and they rode off.  The shopkeeper opposite said what he had seen.  Then his father made the police report. 

23. On 29 December he was coming from university.  His father had given him a driver and a gunman for protection.  Two masked men on motorbikes with Kalashnikovs.  His driver kept going and they opened fire and killed him.  The applicant was shielded by the gunman.  They took the driver to the civil hospital, where sadly he died, and then they went to the police again. 

24. The applicant was asked why the cousin was not arrested.  The applicant said he had no information about this.  The family was wealthy with a lot of contacts. 

25. Regarding the shooting at the factory in October 2015 the applicant said he was normally the one taking care of the factory when his father was away.  The security guard said the attackers were firing at the building and calling out his name.  His father called the police and then went to the factory.  Again there were bullet holes and empty shells.  The fourth FIR was lodged but with no result. 

26. The applicant recounted the incident when [Ms A]’s uncle wanted to meet with him, in a different city.  The applicant thought it was suspicious but said ok.  But her friend contacted him and said that [Ms A] had wanted not to meet him.

27. The applicant said these were attempted honour killings.  His girlfriend’s father was notorious as a rich landlord.  The police just said find someone else and get your self safe.  [Ms A]’s family took her phone off her (that the applicant had give her) and sent her away.  He had no more contact with her since March or April 2014.  His father took his phone off him so he had no evidence of their contact. 

28. His family accepted the relationship but said he should wait until finishing his education before marrying.  [Ms A] told her mother.  Her family treated her as an asset that needed to be kept in the family.  She was probably married by now, but he could not be sure what had happened to her. 

29. There was a discussion of the wording of the death certificate.  There was also a discussion of the applicant’s delay in applying for protection.  The applicant said he didn’t know he could apply for protection.  He thought his enemies could find him at the school in Sydney because he had a visa for “Sydney” but no one would know he was in Melbourne.  The agent that was supposed to move him to a different school defrauded him and a bunch of other students.  He didn’t go to Sydney at all but flew straight to Melbourne.  He arrived in time to enrol in another college before the start of the semester. 

30. The applicant said that the enmity does not go away and being in Pakistan meant he would be killed and his family were also at risk.  There was a discussion of relocation.

31. At the Tribunal hearing the applicant said that he is Sunni but [Ms A] was Shi’a.  The Tribunal put to the applicant that this was not mentioned in his previous claims.  The applicant said it was not the main basis of his claims.  Later he said the main reason the family was so against him was because they were ashamed of their daughter’s relationship.  The Tribunal asked the applicant if he had any evidence of his relationship with [Ms A].  The applicant said he had sent his phone back to Pakistan after he came to Australia because it was locked into a contract there and he couldn’t use it.  They met at [College] which was a campus of [University] in Wazirabad.  He was studying [Subjects 1 and 2], she [Subject 1].  She was from a different caste and they like to keep marital ties within the family.  They were rich landlords, family name [Name], and she had [siblings] as well as her parents.  They lived in Jalalpur about 40 minutes away.  His last contact with her was when her family took her out of university.  The Tribunal commented that there was no evidence that anything bad had happened to her.  The applicant said he could not comment on that but honour killings were very common in Pakistan. 

32. The Tribunal asked if the police were called when he was first attacked.  The applicant said he was saved by the two people referred to.  They called his father and then they all took him to hospital.  In the second incident his father did call the police but he was not sure if they came.  Asked why he did not know if the police came he said he was in a panic.  In the third incident when his driver died, the police were at the hospital.  The Tribunal asked the applicant why the death certificate said that the driver died of natural causes, but also mentions murder.  The applicant said he could not explain this, he agreed it was unusual. 

33. The applicant said that after his driver’s death he started living in the factory and used to have friends over.  The Tribunal asked why people would be looking for him at the factory six months after he came to Australia.  The applicant said not many people knew he had left Pakistan. 

34. The Tribunal asked the applicant why all the incidents happened after his last contact with [Ms A] which he had said was in March or April 2014.  The applicant said it may have been that she was still refusing to marry her cousin.

35. The Tribunal referred to the country information which indicates that document fraud including false FIRs was common in Pakistan.  The applicant said he would have done a better job of producing fake documents if that was his intention, referring to the unusual wording of the death certificate.  He agreed that police were corrupt in Pakistan. 

36. The Tribunal asked the applicant why he did not apply for a protection visa sooner, given that he arrived in Australia in April 2015.  The applicant said he did not intend to apply for protection, he wanted to study.  The Tribunal observed that, contrarily, he did not study.  The applicant recounted his experience with the dodgy education agent in Pakistan, and said that in 2016 he went to an Australia based consultant and found out his visa had been cancelled (he was not aware before due to the correspondence having been posted to his address in Pakistan where they do not have postal delivery).  By that stage he had also run out of money.  The Tribunal put to the applicant that his failure to commence studying, when he had applied for a student visa, could reflect on his credibility generally.  The applicant said he was not very mature at the time, he didn’t really want to study in Sydney in the first place.  He didn’t know if it was safe from his enemies, and he had contacts in Melbourne. 

37. The Tribunal asked if there had been any follow up investigations to the police reports.  The applicant said he was kept in the dark about this because it made him anxious, considering that his driver had died.  The Tribunal asked the applicant why the first police report did not refer to him being hit.  The applicant said he did not pay much attention to the police reports at the time. 

38. The Tribunal provided the applicant with a copy of a non-disclosure certificate on the file which relates to an allegation that he was not studying.  The Tribunal said it gave no weight to the information as it was no more than what the applicant himself had freely stated in his claims. 

1. The applicant said in that his family were supporters of Imran Khan.  In June 2023 unidentified people called his father and were known to be looking for his house.  He sent his mother and sisters away.  Then there was a break in and they abducted his younger brother.  The perpetrators had been asking for his brother and the applicant.  His brother was missing for one week and was in police custody.  No one would give the family any information about his whereabouts.  The authorities suggested handing over the applicant instead.  His father said the applicant was not in Pakistan, and they were really surprised to hear this. 

2. The Tribunal put to the applicant that this was a new claim.  The applicant said he was not able to get documents in time.  His brother has now gone to [Country].  His uncle was also taken in by the police.  The applicant himself was not involved in politics. 

3. DFAT Country Information Report published 25 January 2022 contains the following information:

   Document fraud is widespread in Pakistan, other than for identity documents issued by NADRA, which are generally reliable. CNICs, SNICs and passports contain security features which have reduced the incidence of document fraud. Authorities have put in place measures to combat the fraudulent issuance of documents and can cancel fraudulent CNICs.

   Due to the relative ease in acquiring fraudulently obtained genuine documents, such documents are common in Pakistan. Genuine documents such as CNICs and passports can be obtained with fraudulently altered or counterfeit feeder documents. Fraudulent documents in Pakistan can include, but are not limited to, academic degrees and transcripts, bank statements, agreements, references, and ownership deeds.

   Union councils and NADRA can verify whether documents are genuine, but they may not be able to identify fraudulently obtained genuine documents. NADRA issues birth certificates, but fraudulently obtained, fraudulently altered or counterfeit certificates are still available from hospitals. FIRs (First Information Reports, an initial police record of a complaint or reported crime) use standard forms with the relevant information written in by hand and are relatively easy to counterfeit. Reports exist of police accepting bribes to verify fraudulent FIRs. DFAT does not consider the existence of an FIR as conclusive evidence the events described in the FIR actually occurred.

   FINDINGS AND REASONS

4. Based on the information in his application the Tribunal finds that the applicant’s country of nationality is Pakistan.

5. The applicant has claimed that he was harmed by the family of his girlfriend [Ms A].  Although he said they were from different sects of Islam, and different castes, he did not claim that her family objected to him for this reason but because they wanted her to marry her cousin.  This does not raise claims concerning his race, religion, nationality, membership of a particular social group, or political opinion.  

6. The applicant made a late claim that in 2023 his family was affected by political conflict associated with their support of Imran Khan, and that his name came up in that context.  The Tribunal is not satisfied that this claim is true.  The reason for this is that the applicant bound up the claim about his brother’s abduction with the implication that he himself was the target or a substitute for his brother in whatever his brother was accused of.  Considering that the applicant has been in Australia for over 8 years and has no involvement in politics himself, this was not plausible.  If the inference invited was that the family of his girlfriend were taking the opportunity to have his brother abducted by the authorities, that is also not readily believable and, with the Tribunal’s assessment below of the claims concerning [Ms A], is not accepted.  Moreover, the applicant did not inform the Tribunal of this claim until the hearing which was approximately two and a half months after the alleged abduction.  Such a serious claim the Tribunal would expect to be brought to its attention straight away. 

7. The Tribunal is not satisfied that the applicant faces a real chance of serious harm as defined in ss 5J(4) and (5) for any of the reasons specified in s 5J(1).  The applicant therefore does not have a well-founded fear of persecution as required by s.5J(1).  The Tribunal finds that the applicant is not a refugee as defined in s.5H(1). 

8. With regard to complementary protection, the Tribunal accepts that the applicant knew someone called [Ms A] at University as he was able to describe this person and her family and place of origin.  However it does not accept that he was in a relationship with her and that they wanted to marry.  Simply, there ought to be some evidence of the existence of such a relationship whether by way of photos or communications.  The applicant’s claim that evidence was on one phone that was now in Pakistan did not explain this gap – the phone could have been retrieved and evidence downloaded. 

9. It follows that the Tribunal does not accept that the applicant was harmed or threatened by [Ms A]’s family in the way claimed.  This finding is reinforced by a number of considerations. 

10. Firstly, on his own evidence the applicant last saw her in March or April 2014 when she was taken out of University by her family.  Yet all the claimed incidents harm to himself occurred well after that, which did not make much sense.  In particular, it did not make sense that her family would be looking for him at his father’s factory six months after he left Pakistan.  While they might not have known that he was out of the country they certainly would not have seen him in Pakistan or anywhere near [Ms A], nor had he had any contact with her. 

11. Secondly, the applicant did not make a protection visa application until more than 18 months after arriving in Australia.  Considering that he was in breach of his student visa by not studying, the Tribunal would have thought that if he genuinely feared harm in Pakistan he would seek to regularise his status so as not to have to return there.

12. In support of his claims, the applicant supplied four police reports.  The contents of these are to be treated with caution considering the country information cited above.  The report about the first incident alleges verbal abuse and the presence of a gun but not actually being hit, which suggests it was not made contemporaneously with the claimed incident.  This casts doubt on whether the other reports were also made at the time they purport to be. 

13. Furthermore, the applicant was unable to provide information about whether police were ever called out to these emergencies, or whether investigations were ever pursued, which considering that guns were involved and one person had allegedly died, cast doubt on the reality of the events behind them. 

14. The medical examination of the applicant indicates that he had been in a fight.  The Tribunal accepts that the applicant was in a fight, but is unable to be satisfied as to the reason for this. 

15. The death certificate of the person claimed to be the applicant’s driver states that he died of natural causes in a normal manner.  The addition of the word “murdur” is so at odds that with the stated cause of death that it can only have been tampered with. 

16. The Tribunal does not accept that any of the claimed incidents occurred in the manner claimed by the applicant and does not accept that he is at risk of being killed or harmed by [Ms A]’s family.  He made no other claims.

17. The Tribunal gives no weight to the allegation covered by the non-disclosure certificate.  It is not adverse information as it merely reflects the fact that the applicant did not study on his student visa which the applicant himself conceded in his agent’s submission and oral evidence. 

18. Having considered all the evidence the Tribunal not satisfied that the applicant faces a real risk of significant harm as defined in s 36(2A), i.e. arbitrary deprivation of life, carrying out of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment. 

19. Accordingly, the Tribunal is not satisfied there are substantial grounds to believe that there is real risk that the applicant will suffer significant harm on return to Pakistan warranting complementary protection. 

    CONCLUSION

20. 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) or s 36(2)(aa).

21. There is no suggestion that the applicant is a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa.

22. Accordingly, the applicant does not satisfy the criterion in s 36(2).

    DECISION

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

    Genevieve Hamilton
    Member