1808073 (Refugee)

[2023] AATA 3635

1808073 (Refugee) [2023] AATA 3635 (3 August 2023)

CORRIGENDUM

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr M Shamraiz Mehdi

CASE NUMBER:  1808073

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Member Nathan Goetz

DATE OF DECISION:  3 August 2023

DATE CORRIGENDUM SIGNED:            8 November 2023

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

1.    At paragraph 69 on page 10 of the decision record dated 3 August 2023, the paragraph reads as follows:

“In the protection visa application form, the applicant declared the date of his last arrival in Australia [in] April 2015. Given that he lodged the protection visa application 8 June 2017, the Tribunal was curious to understand why, if the applicant claimed that he had experience harm in India and was unwilling to return to that country, he would delay applying for a protection visa for almost two years.”

2.    The paragraph is corrected to read as follows:

“In the protection visa application form, the applicant declared the date of his last arrival in Australia [in] April 2015. Given that he lodged the protection visa application 8 June 2017, the Tribunal was curious to understand why, if the applicant claimed that he had experience harm in Pakistan and was unwilling to return to that country, he would delay applying for a protection visa for almost two years.”

Statement made on 08 November 2023 at 11:35am

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr M Shamraiz Mehdi

CASE NUMBER:  1808073

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Member Nathan Goetz

DATE:3 August 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 03 August 2023 at 2:15pm

CATCHWORDS
REFUGEE – protection visa – Pakistan – land dispute – constant life threats from extended family members – credibility concerns – claim raised first time at Tribunal hearing – voluntary return to Pakistan – delay in applying for protection – migration history – previous provision of bogus documents – information in ‘pre-hearing attendance form’ – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 424AA, 425
Migration Regulations 1994 (Cth), Schedule 2

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 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant was represented in the review by registered migration agent 1465452.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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).

6. 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.

7. 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.

8. Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations.

   BACKGROUND

9. The applicant identifies as a male citizen of Pakistan presently located in Australia.

10. On 12 November 2009 the applicant was offshore and applied for a student visa to study in Australia. This visa was refused on 9 February 2010.

11. On 13 July 2010 the applicant was offshore and applied for a student visa to study in Australia. This visa was refused on 8 November 2010.

12. On 14 July 2011 the applicant was offshore and applied for a student visa to study in Australia. On 24 November 2011 the applicant was granted the student visa.

13. He arrived in Australia [in] June 2012 holding that visa which was valid until 19 July 2013.

14. [In] February 2013 the applicant departed Australia and to Australia [in] April 2013.

15. On 18 July 2013 the applicant applied for another student visa. On 7 May 2014 that visa was refused. On 26 May 2014 the applicant applied to the Tribunal for merits review of the decision.

16. [In] September 2014 the applicant departed Australia and returned to Australia [in] December 2014.

17. [In] February 2015 the applicant departed Australia and returned to Australia [in] April 2015.

18. [In] February 2016 the Tribunal affirmed the decision to refuse to grant the student visa in AAT case 1409286.

19. [In] March 2016 the applicant applied to the Federal Circuit Court for judicial review of the Tribunal decision. [In] June 2017 the Federal Circuit Court dismissed the judicial review.

20. On 7 June 2017 the applicant applied for the protection visa that is the subject of this decision record. On 11 December 2017 the applicant participated in a delegate interview concerning his protection claims.

21. On 1 March 2018 the delegate refused to grant the applicant the protection visa. On 24 March 2018 the applicant applied to the Tribunal for merits review of the decision. It is this decision that is the subject of this decision record.

22. On 12 July 2023 the review was constituted to the Member.

23. On 18 July 2023 the Tribunal wrote to the applicant under s 425(1) of the Act and invited him to appear at a Tribunal hearing scheduled for 1:00pm on 2 August 2023 so he could give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to invite the applicant to appear at a Tribunal hearing because none of the exceptions to the hearing requirement applied: s 425(2),(3) of the Act.

24. On 2 August 2023 the applicant appeared at the Tribunal hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages. The representative did not attend the Tribunal hearing.

25. At the start of the Tribunal hearing, the applicant asked for a postponement, so he could get ‘more evidence’ in support of his claims. He suggested that this evidence could be affidavits from friends and neighbours in the village in Pakistan who would attest to the truth of the applicant’s claims. The applicant suggested to the Tribunal that he would obtain these documents if the documents provided by him to date were insufficient. He did not identify particular individuals or suggest that he had already requested material from these people which had not yet been received.

26. The Tribunal asked the applicant why he did not provide those documents when he applied for the protection visa in 2017 or provide those documents to the delegate at interview (the Tribunal observes that the applicant provided other documents, including affidavits from his mother and brother). The Tribunal also asked the applicant why he had not provided those documents when he applied to the Tribunal for review of the decision, or why he had not applied for the Tribunal hearing to be postponed earlier than the date of the hearing.

27. The applicant told the Tribunal that he did not know he did not apply for a postponement previously and did not explain why he had not provided or organised for the evidence to be provided at any of the points of time referred to previously, instead deciding on the day of the hearing he should do so. When this was explored with the applicant, he told the Tribunal that he would use whatever material had been provided to date and did not press for a postponement.

    CONSIDERATION OF CLAIMS AND EVIDENCE

28. The issue in this case is whether the applicant is a ‘refugee’ or meets the requirements for ‘complementary protection’ or is a member of the same family unit as a person who is a ‘refugee’ or meets the requirements for ‘complementary protection.’

29. The Tribunal advised the applicant at the Tribunal hearing that it was not bound by any factual finding made by the delegate and that the Tribunal would need to determine all the matters in this review for itself. The applicant told the Tribunal that he did not have any claims that he had not already raised either in his protection visa application form, his interview with the delegate, or in the material he provided to the Tribunal.

30. The Tribunal has considered all the evidence contained in the Department file, the Tribunal file, as well as the oral evidence the applicant provided at the delegate interview and Tribunal hearing. The Tribunal has also considered the delegate decision record for the 14 July 2011 student visa application, as well as the delegate and Tribunal decision records for the 18 July 2013 student visa application.

31. The Tribunal considered the applicant’s claims individually and cumulatively.

32. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Mandatory considerations

33. 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.

34. The Tribunal has considered the contents of the DFAT Country Information Report on Pakistan dated 25 January 2022.

    Identity and country of reference

35. In the protection visa application form, the applicant identified that he was born on [date] in [named district], Punjab, Pakistan and that he is a citizen of Pakistan. He claimed that he was not a citizen of any other country and that he did not have the right to enter and reside in any other country.

36. In support of his identity, the applicant provided a copy of his Pakistan passport which was issued [in] 2013 and valid for 5 years.

37. The Tribunal is satisfied based on the passport as to the applicant’s identity and citizenship. In the absence of any evidence to demonstrate that the applicant is also a citizen of any other country or has a right to enter and reside in another country, the Tribunal is satisfied that for the purpose of the protection visa assessment, the country of reference is Pakistan.

    Member of the same family unit

38. In the protection visa application form, the applicant declared that he was the only included in the protection visa application and that he was raising his own claims for protection. He did not claim to meet the requirements for a protection visa on the basis of being a member of the same family unit as a person who is a ‘refugee’ or meets ‘complementary protection.’

39. The Tribunal is satisfied on the basis of this concession, and the absence of any evidence to the contrary, that the applicant is not a member of the same family unit as a person who is a ‘refugee’ or meets the requirements for ‘complementary protection.’

    Protection claims arising from land dispute

40. In the protection visa application form, the applicant declared that he was one of [number] siblings. His family was made up of [number] sisters and a brother.

41. In the form, the applicant wrote that he was seeking protection in Australia because he received ‘constant life threats from (his) extended family members for a long time.’ He wrote that he believed that he would be harmed if he was required to permanently live in Pakistan.

42. The applicant wrote that his uncle, with the help of ‘land mafia’ illegally claimed land that was the applicant’s father. At the delegate interview, he described this person as his father’s cousin and that the land was agricultural land. At the delegate interview, the applicant said that his father’s cousin, who he identified as [Mr A], and his [number] sons were the family who were involved in the land dispute.

43. The applicant wrote that the land was supposed to be inherited by the applicant and his brother. At the delegate interview, the applicant said that after his father’s death in November 2013, the land was transferred to the applicant and his brother. At the delegate interview, the applicant said that [Mr A] and his sons occupied the land after his father’s death, which was done by that family cultivating the land. The applicant claimed at the delegate interview that the land was still being held at the date of the interview.

44. The applicant wrote that the matter escalated after the matter could not be resolved through dialogue. At the delegate interview, the applicant described this as ‘sitting together to sort out the problem.’ The applicant wrote that a court case was filed concerning the possession of the land, which was ongoing.

45. At the Tribunal hearing, the Tribunal asked the applicant to detail what was involved in ‘sitting together to sort out the problem.’ The applicant told the Tribunal that he was not involved in this.

46. The applicant wrote that during this time, his father’s cousin and associates took matters into their own hands and made threats against the applicant and his family. The applicant wrote that before his arrival in Australia, his family received direct and indirect threats. When the situation was serious, the family reported the matter to police, but police took no action. The applicant wrote that he found out that his father’s cousin has strong links with land mafia who threated the family via phone calls.

47. At the delegate interview, the applicant said that his brother was physically attacked in March 2015 but not harmed. It was in the afternoon and the father’s cousin’s three sons came to the house, together with three or four unknown people. The applicant also claimed that an uncle wo was supporting the applicant’s family was attacked with sticks and guns, hospitalised and died in late 2016. He told the delegate that these were the two physical attacks.

48. The applicant wrote that he received regular life threats and harassment during the time he was in Pakistan and during his visits to Pakistan.

49. The applicant wrote that upon his return to Pakistan, he would be targeted by the land mafia, or hired assassins because of a desire to have the land transferred to his uncle’s cousin. The applicant wrote that this would be done due political affiliations.

50. The applicant wrote that police tried to distance themselves from the issue, which the applicant believe happened because of political affiliations. Despite this, the applicant detailed that there was a registered First Information Report made by family members against his father’s cousin’s uncle, but no progress had been made by the police in all the years since it was registered. At the delegate interview, he said he could not recall the exact date it was that he went to the police, but that he would send the documents to the delegate which would advise this.

51. The applicant wrote that the family had been living in the area for generations and it was not an option to leave their home and relocate to another area to seek safety. Doing so would allow his father’s cousin to occupy the land, which was described as the only source of income.

52. In corroboration of his protection claims, the applicant indicated in the protection visa application form that he would provide corroborative documents, such as evidence of ownership of the land, evidence of the police report, evidence of threats made against the applicant and his family, and statements of family members, as well as a detailed statement of claim at a later time.

53. At that later time, the applicant provided several documents, including:

    ·     An affidavit of his mother, which is in English and attested to in Pakistan, dated [October] 2017. In that affidavit, the applicant’s mother wrote that her son’s circumstances in Pakistan are not good and that his opponents often come to her home to enquire about him. The opponents threaten that if the applicant is found in Pakistan he will be killed. The applicant provided this document to the delegate after the interview.

    ·     An affidavit from his brother, which is in English and attested to in Pakistan, dated [October] 2017. In that affidavit, the applicant’s brother wrote that his brother’s circumstances in Pakistan are not good and that his opponents often come to his home to enquire about him. The opponents threaten that if the applicant is found in Pakistan he will be killed. The applicant provided this document to the delegate after the interview. The applicant provided this document to the delegate after the interview.

    ·     A document in English that appears to be a statement of claim in a case initiated [in] December 2014 under the name of the applicant, his mother and brother in the Court of Senior Civil Judge, in the [named] District, Pakistan. Ten respondents are named. In that document, it was pleaded that the applicant, his mother and brother were the registered owners of particular land in Pakistan, and that the defendants disposed the plaintiffs from the land [in] April 2014 armed with deadly weapons. The claim suggested that attempts to resolve the dispute prior to the statement of claim being filed had not been successful. The claim requested that a decree be passed to remedy the situation with possession being acknowledged as laying with the applicants, and the respondents from being permanently restrained from interfering with the property. The applicant provided this document to the delegate after the interview.

    ·     A document in English that appears to be a petition initiated [in] October 2017 under the name of the applicant’s brother, in the Court of Sessions Judge, in the [named district], Pakistan, for registration of a case against 6 named persons, and a collection of unknown persons concerning a complaint made by the applicant’s brother on 20 March 2015. The application attached to that petition detailed that a suit had been filed concerning the possession of the land, and that on 20 March 2015 the respondents assaulted the applicant’s brother and threatened to kill the applicant because of the land dispute. The statement detailed that the applicant remained safe because he was not at the house at the time, noting that the applicant and his mother were in Islamabad at a hospital. The applicant provided this document to the delegate after the interview.

    ·     A document in English that appears to be a court filing related to the complaint made by the applicant’s brother concerning the assault on 20 March 2015. It suggested that the police officer involved in the case was not in cahoots with the respondents which is why the case had not progressed. The document appeared to be dated 4 April 2015 and was a request for the court to direct that the registration of the case. The applicant provided this document to the delegate after the interview.

    ·     A document in English that appears to be an ‘Expert Opinion’ from the Medical Superintendent of [Hospital 1] in Pakistan dated [in] March 2017 referring an x-ray to a radiologist for [Mr B], as well as illustrations of a male body with markings on particular areas of the body. There was also what appeared to be a list of seven injuries in correlation to the illustrations. The injuries varied from abrasions, bruises, and swelling. The applicant provided this document to the delegate after the interview.

    ·     A document in English that appears to be a ‘First Information Report’ dated [in] February 2017 from the [named] Police Station in Pakistan on petition from [Mr C] against six named respondents and unnamed respondents. In that document, it was alleged that the respondents came to a premises where [Mr B] was assaulted and caused property damage. The applicant provided this document to the delegate after the interview.

    ·     A document in English that appears to be a ‘First Information Report’ dated [August] 2016 from the [named] Police Station in Pakistan on a petition from [Mr C] against seven named respondents. In that document, it was alleged that the respondents abducted the petitioner’s son on 2 August 2016. Attempts to have the son resulted in assaults of the petitioner and [Mr B]. The report said that the motive for the events was due to the respondent occupied land owned by the applicant, who was identified as a relative, and noted that a civil proceeding had been lodged and that the attacks were revenge. The applicant provided this document to the delegate after the interview.

    ·     A document in English that appears to be a ‘Suit for possession with permanent injunction’ dated 4 April 2015 that appears to relate to a complaint that the police had not registered a First Information Report against the defendants.

    ·     A document in English that appears to be a ‘petition’ lodged in the Court of Sessions Judge, Empowered, dated [in] November 2014 on complaint from the applicant’s brother against the station house office of the [named] police station, and various respondents, which is includes a ‘Suit for possession with permanent injunction.’

    ·     A document in English that appears to be a case initiated in the Court of Senior Civil Judge’ by the applicant, his brother and mother, against various defendants filed [in] November 2014.

1. The applicant also provided to the Tribunal on 27 July 2023 a statement where he claimed that he had applied for a bridging visa to return to Pakistan to attend his mother’s funeral in February 2022 but just before his departure, family warned him not to go because they were getting threats concerning the applicant. Movement records show that the applicant was granted a bridging visa that allowed him to depart from, and return to, Australia [in] March 2022 which was valid until 5 July 2023. He wrote that despite being granted permission to travel back to Pakistan, he did not do so due to fears concerning his safety.

   Credibility concern – Raising experience of physical harm in Pakistan for the first time at Tribunal hearing

2. At the Tribunal hearing, the applicant raised for the first time that he himself had been physically assaulted in connection with the land dispute. He said that this occurred in November 2014 (during the second time he returned to Pakistan from Australia). The applicant told the Tribunal that the attack happened about 12 months after his father’s death. He said that this occurred at the courthouse and that he, his brother, and two friends who were with them were assaulted by the family members who had occupied the land, as well as the land mafia. The assault involved the applicant being slapped, kicked and hit. He told the Tribunal that the attack lasted five minutes before the attackers saw police walking toward the group, and the attackers fled. The applicant said that the police were bribed by the land mafia to refuse to take a formal complaint about the incident. The applicant told the Tribunal that this was the only time he was physically harmed in relation to the land disputed. The applicant told the Tribunal that the attack made him feel ‘petrified,’ that he experienced ‘extreme mental distress’ as a result of the incident, and that as a result of this incident, he knew that his persecutors ‘wanted to kill me.’

3. The Tribunal was surprised by the applicant’s oral evidence about this event, because he had not detailed it in his protection visa application form that he and his brother had been assaulted in November 2014. Nor had the applicant detailed at the interview with the delegate that he himself had been physically assaulted in connection with the land dispute. In fact, at the delegate interview, the applicant told the delegate that there were only two instances where there was physical harm, namely, the assault of his brother in March 2015, and the assault of an uncle (who was helping the applicant’s family regarding the dispute) in late 2016 which resulted in the uncle’s hospitalisation and death. The fact that the claimed assault from November 2014 had never been mentioned before suggested to the Tribunal that it was invented at the Tribunal hearing by the applicant to lend credibility to his claims and to counter any suggestion that the applicant would not be harmed on his return to Pakistan. It also suggested that the applicant had a flexible approach to the truth and was prepared to invent evidence to get a protection visa.

4. In response to the Tribunal’s concern about the applicant’s truthfulness, and in response to the Tribunal’s concern that the applicant may have fabricated his protection claims in order to get the visa, the applicant responded that ‘he had told all the details to his representative.’ The applicant then went on to talk about the fact that the representative had not forwarded documents to the delegate prior to the interview, and that he had done that himself. The Tribunal accepts that it was the applicant himself who forwarded documents to the delegate and that the applicant did so because, according to what he said to the delegate, his representative was overseas at the time and could not be contacted.

5. The Tribunal is not, however, persuaded that the applicant told his representative about the November 2014 incident and that the representative failed to put this before the delegate or the Tribunal. The protection visa application form identifies that the applicant received assistance from his representative with the protection visa application. The Tribunal is not persuaded that a representative would be advised of specific instances of serious harm that the applicant had suffered in Pakistan but decide not to detail those instances in the form despite being directed to do so. Further, the applicant was asked about specific physical harm in Pakistan during the delegate interview, and he disclosed no physical harm against himself, instead talking about physical harm suffered by others. The applicant provided no explanation about why he failed to tell the delegate about the physical harm he suffered.

6. The Tribunal is satisfied that reason the applicant did not previously raise the instance of physical harm he claimed to suffer in November 2014 is because the applicant invented that incident at the Tribunal hearing. The Tribunal is satisfied that this shows that the applicant has a flexible approach to the truth.

7. In combination with the other concerns the Tribunal has about the applicant’s credibility discussed in this decision record, the Tribunal is satisfied that the applicant’s protection claims have been manufactured in their entirety and that there is no truth to them.

   Credibility concern – Return to Pakistan despite claimed fear of harm

8. In the protection visa application form, the applicant declared that he had returned to Pakistan since his initial arrival in Australia. This is confirmed by immigration records which demonstrate that the applicant was outside of Australia during the following periods:

   ·     He departed Australia [in] February 2013 and returned to Australia [in] April 2013

   ·     He departed Australia [in] September 2014 and returned [in] December 2014.

   ·     He departed Australia [in] February 2015 and returned to Australia [in] April 2015.

9. The applicant did not claim in the protection visa application form to have been in any country other than Pakistan and Australia, meaning that each time he left Australia, he returned to Pakistan. The applicant confirmed at the delegate interview that he returned to Pakistan on each of the occasions.

10. At both the delegate interview and in a submission dated 27 July 2023, the applicant detailed that he was able to avoid harm in Pakistan on the last occasion he was in Pakistan because he was with his mother in Islamabad.

11. At the Tribunal hearing, the applicant confirmed that his father died in November 2013 but that the dispute had been going on for some time. None of the material suggests that there was any harm directed at the applicant’s family prior to the applicant’s father’s death in November 2013. It was, according to the applicant’s oral evidence at the Tribunal hearing, three to four months after his father’s death that the land was occupied by his deceased father’s cousin and family. With that in mind, it is unremarkable that the applicant would return to Pakistan in February 2013 and remain there until April 2013.

12. However, the same could not be said about his return trip to Pakistan in September 2014 to December 2014, given the applicant’s oral evidence to the Tribunal about what happened to him in November 2014 while he was in Pakistan.

13. To the Tribunal’s way of thinking, if the applicant had experienced the harm he claimed to have experienced in November 2014 (and left Pakistan a month later to return to Australia), it is highly unlikely that the applicant would return to Pakistan three months later. The applicant’s oral evidence to the Tribunal that he was in Islamabad with his mother for her medical care during his third trip to Pakistan was consistent with that provided to the delegate at interview, but the Tribunal is not persuaded that the applicant would take the risk of returning to Pakistan if his claims were genuine, even if he was to be based in Islamabad during this time (although noting that the applicant told the Tribunal he would ‘sneak back’ into his village during that last visit).

14. The Tribunal struggles to accept that the applicant would take the risk of returning to Pakistan when he claims that he would be unable to locate within Pakistan to avoid harm as a basis for the grant of the protection visa. According to his oral evidence, his village was only a ‘2 or 3 hours’ drive to Islamabad and his persecutors would likely be able to find him there (which is why he is unable to relocate within Pakistan and in need of protection in Australia). The Tribunal is satisfied that if there was any truth to the applicant’s protection claims, he would not have returned to Pakistan in 2015.

15. In combination with the other concerns the Tribunal has about the applicant’s credibility discussed in this decision record, the Tribunal is satisfied that the applicant’s protection claims have been manufactured in their entirety and that there is no truth to them.

    Delay in applying for protection visa – Delay indicative that the claims are not genuine

16. In the protection visa application form, the applicant declared the date of his last arrival in Australia was [in] April 2015. Given that he lodged the protection visa application 8 June 2017, the Tribunal was curious to understand why, if the applicant claimed that he had experience harm in India and was unwilling to return to that country, he would delay applying for a protection visa for almost two years.

17. The delegate and the applicant discussed the timing of the applicant’s protection visa application. The applicant told the delegate that he did not apply for a protection visa sooner because the family were trying to resolve the issue through dialogue.  The applicant told the delegate that he did not take the physical attack on his brother seriously and it was only when an uncle (who was helping the applicant’s family with the dispute) died that he took the threats seriously and lodged the protection visa application.

18. At the Tribunal hearing, the applicant repeated what he had said to the delegate in response to the Tribunal’s concern that the delay in applying for the protection visa may be indicative that his claims were not genuine. The Tribunal is not persuaded that the applicant’s ‘hope to get an outcome from the court’ is attributable to the delay and that it was only when the uncle who had been assisting the family with the issue had been killed that the applicant decided it was unsafe for him to return to Pakistan. The Tribunal is not satisfied that the applicant would have waited until the family member was hurt and died to lodge a protection visa if his protection claims were true. The Tribunal’s assessment is if there was any truth to the applicant’s claims about he himself being physically harmed in November 2014, the applicant would have lodged a protection visa upon his return to Australia in December 2014, and not waited for approximately two and a half years to apply for protection in Australia.

19. In combination with the other concerns the Tribunal has about the applicant’s credibility discussed in this decision record, the Tribunal is satisfied that the applicant’s protection claims have been manufactured in their entirety and that there is no truth to them.

    Migration history – Past visa applications Indicative that the applicant is a failed student and seeking to remain in Australia for purposes not connected with Australia’s protection obligations

20. In the protection visa application form, the applicant detailed that he had previously been granted student visas and had some student visa applications refused. As noted in the background information, the applicant has applied for student visas to study in Australia.

21. The applicant did not detail his educational achievements in Australia in the protection form but spoke at the delegate interview about them. The applicant spoke about completing a diploma of [Discipline 1], an advanced diploma in [Discipline 1], as well as completing a certificate III in [Occupation 1], telling the delegate that he was undertaking a certificate IV in [Occupation 1] but that he stopped studying at the time the Tribunal affirmed the decision to refuse to grant him the student visa.

22. The delegate discussed the fact that an [Occupation 1] is a popular option for international students to achieve permanent residency in Australia. The Tribunal understands that this type of industry is on the relevant skilled occupation list which can allow a person to be granted permanent residency in Australia. The delegate discussed with the applicant the fact that his employment history in Bangladesh as a [Occupation 2] and the [Discipline 1] courses he completed in Australia were very different to being a [Occupation 1]. The delegate suggested to the applicant that in light of the applicant most recently studying to be an [Occupation 1], it may suggest that the applicant wanted to permanently migrate to Australia, with the inference being that in light of the applicant being refused the student visa, he had lodged the protection visa application not because his claims were genuine, but because he hoped to achieve the desired outcome of permanent residency in this country that was no longer available to him through his studies as an [Occupation 1]. The applicant disputed that this was the case, telling the delegate that he planned to operate a [Occupation 1] business in Pakistan as a secondary business to his [Occupation 2] career.

23. In combination with the other concerns the Tribunal has about the applicant’s credibility discussed in this decision record, the Tribunal is satisfied that the applicant’s protection claims have been manufactured in their entirety and that there is no truth to them.

    Previously demonstrated dishonesty indicative that the applicant is not a witness of truth and prepared to fabricate evidence in order to achieve a migration outcome

24. In the protection visa application form, the applicant declared that he had previously had applications for Australian visas refused. He identified the visas that were refused as student visas. At the delegate interview, the applicant discussed the circumstances of the refusal of two student visas.

25. Concerning a student visa that the applicant applied for on 13 July 2010 when he was offshore, that was refused by a delegate on 8 November 2010. According to the decision record, the applicant had provided letters from [Bank 1] in Pakistan and from [Bank 2] to demonstrate that the applicant had access to sufficient funds to meet his education and living expenses while in Australia.

26. Checks by Australian Government officials confirmed that no such accounts existed. The decision record demonstrates that the delegate had serious concerns that the bank documents provided were genuine. The visa was refused on the basis that the applicant did not have access to acceptable funds to meet his course and living expenses in Australia per cl 572.223 of Schedule 2 to the Regulations.

27. Concerning a student visa that the applicant applied for on 18 July 2013 when he was onshore, that was refused by a delegate on 7 May 2014. According to the delegate decision (which was affirmed by the Tribunal on merits review), the applicant provided a letter from [Bank 3] to demonstrate that the applicant had access to sufficient funds to meet his education and living expenses while in Australia.

28. Checks by Australian Government officials confirmed that the letter was not genuine.

29. Although this evidence itself was not a ‘reason or part of the reason for affirming the decision under review’ because the evidence itself (that is, providing bogus documents) did not mean that the applicant did not have a well-founded fear of persecution in Pakistan or that there was a real risk the applicant would suffer significant harm as a result of his removal from Australia to Pakistan, the Tribunal decided to adopt the s 424AA procedure and raise its concerns about this evidence with the applicant through that process.

30. The Tribunal’s reasoning process concerning the fact that the applicant had previously provided false documents in order to achieve a migration outcome, namely the granting of a student visa, and that he was prepared to provide untruths in order to achieve a migration outcome. The Tribunal’s reasoning process was that, given the applicant had engaged in this conduct in the past, he would be prepared to do so again. That is to say, the applicant was prepared to manufacture his protections claims in order to be granted a protection visa.

31. The Tribunal notes that the previous student visa refusals were discussed by the delegate. The applicant’s response was that the first student visa was refused because the ‘verification system’ was ‘not good’ and that the second student visa was refused because ‘his mother closed the account.’ As the Tribunal understood those answers, the applicant was not conceding that the documents produced were fraudulent.

32. In response to the Tribunal’s concern that he had provided false documents in the past, and that the Tribunal may reason that any of the documents he provided in support of his protection claims may also be false, the applicant repeated what he had said to the delegate about the documents, adding that smaller banks in Pakistan are like post offices and documents can be difficult, and that for [Bank 3], the account had been closed by his mother and the bank manager was ‘playing with (me)’ by not issuing a letter because the account was closed. The applicant told the Tribunal that the documents produced in support of his protection visa application were genuine.

33. The Tribunal considered the applicant’s response but was not persuaded by it. Having read through the decision records, the Tribunal is satisfied that the documents produced by the applicant in support of the student visa applications were fake. The Tribunal is not persuaded that they were genuine.

34. In combination with the other concerns the Tribunal has about the applicant’s credibility discussed in this decision record, the Tribunal is satisfied that the documents provided in support of the applicant’s protection claims are fake and generated in order to lend credibility to the applicant’s protection claims. The Tribunal is not satisfied that the documents are genuine.

    Document produced by the applicant in response to ‘pre-hearing attendance form’ that suggests his protection claims are manufactured

35. As part of the Tribunal registry’s practice following constitution of matters to Members, the registry sends out a ‘pre-hearing attendance form’ to assist in the case management of reviews. The registry did so in this case on 11 July 2023.

36. On 18 July 2023, the applicant responded to the letter, indicating that he was planning to travel to Malaysia and was waiting for a new passport to arrive. This was something that may affect whether the review should be listed within the next three months.  He attached a document which was titled ‘Mother Death Cert and Medical reports.pdf’

37. The ‘Death Registration Certificate’ was a Government of Punjab, Pakistan document which showed that the applicant’s mother, [Ms D], born on [date], died [in] February 2022 and the date of her burial/last rite was on [date] February 2022. She died of natural causes in [Village 1].

38. The Death Registration Certificate noted the applicant’s mother’s address in Pakistan, as well as her husband’s information. Her husband’s name was recorded as [Mr E], which is the same name as the applicant provided for his father in the protection visa application form.

39. Included in the Certificate were the details of ‘the applicant.’ ‘The applicant’ being the person who applied for the Death Registration Certificate. The certificate registers an entry and issue date of both 1 March 2022, and that the person who applied for the Death Registration Certificate was [Mr E], who is identified as ‘the husband.’ The CNIC Number is the name for ‘the applicant’ who applied for the certificate, and the person who is identified in the section of the certificate under ‘husband’s information.’

1. In response to the Tribunal’s concern about how his father, who supposedly died almost 10 years ago, was able to apply for the applicant’s mother’s death certificate in Pakistan, the applicant responded that whoever went to the registry to obtain his mother’s death certificate took his father’s identification card because that person had no other cards. The applicant suggested it was the fault of the person who registered the death certificate.

2. The applicant told the Tribunal that he was aware of the issue on the face of the document (which, in the Tribunal’s assessment, appeared to undermine all of the applicant’s claims, given the protection claims stemmed from land occupation following the death of the applicant’s father) and that he would not have provided the death certificate if his father was still alive because it would have undermined the protection claims. The applicant’s argument appeared to be that no one would be foolish enough to provide a document themselves in those circumstances.

3. The Tribunal has considered the applicant’s response but is not persuaded by it. If there was any truth to the applicant being aware of the fact that his father’s name was put as the information on a death certificate issued in 2022, the Tribunal is satisfied that the applicant would have addressed this at the time he submitted the document, or in a pre-hearing submission. The applicant did not do so. The Tribunal is satisfied that the applicant did not do so because he was not aware that his father was the informant for the death certificate of the applicant’s mother. The Tribunal is satisfied that the reason the applicant’s father is nominated as the informant is because the applicant’s father did obtain the death certificate for the applicant’s mother. The Tribunal is not satisfied that the applicant’s father died in November 2013 as claimed. As the Tribunal is not satisfied that the applicant’s father died as claimed, it follows that the Tribunal does not accept that any of the claimed events giving rise to protection claims subsequent to that event are true.

4. In combination with the other concerns the Tribunal has about the applicant’s credibility discussed in this decision record, the Tribunal is satisfied that the applicant’s protection claims have been manufactured in their entirety and that there is no truth to them.

   CONCLUSION

5. The Tribunal is not satisfied that the applicant is a witness of truth for the reasons given above. The Tribunal does not accept that there was a land dispute between the applicant’s family and the applicant’s father’s family, that land was occupied by that family, that court proceedings in relation to the dispute or any police action (or inaction) occurred as a result of the dispute.

6. The Tribunal is not satisfied the applicant, or any of his family were harmed in connection with that dispute, that the applicant left Pakistan on the last time he departed because he had experienced harm in that country for any reason, or that the reason he refuses to return to Pakistan is because he has a genuine fear of harm because of the land dispute (or for any reason).

7. The Tribunal is not satisfied that there is any truth to the applicant’s protection claims. The Tribunal’s assessment is that the claims were manufactured in their entirety. There is no truth to them. The Tribunal’s assessment is that the applicant is of no adverse interest to any person, group or authority in Pakistan.

   Refugee

100.   For the reasons given above, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution in Pakistan due to his race, religion, nationality, membership of a particular social group, or political opinion.

101.   Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.

Complementary protection

102.   For the reasons give above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Pakistan, there is a real risk the applicant will suffer significant harm.

103.   Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.

Member of the same family unit

104.   For the reasons given above, the Tribunal is not satisfied that the applicant is a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act.

105.   Therefore, the applicant is not a person who satisfies s 36(2)(b) or (c) of the Act.

DECISION

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

Nathan Goetz
Member

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country,  in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)     conceal an innate or immutable characteristic of the person; or

(c)     without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and

(c)     the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)     a threat to the person’s life or liberty;

(b)     significant physical harassment of the person;

(c)     significant physical ill‑treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)     the characteristic is not a fear of persecution.

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)     protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)     the person can access the protection; and

(b)     the protection is durable; and

(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

…