1819904 (Refugee)
[2019] AATA 6828
•14 October 2019
1819904 (Refugee) [2019] AATA 6828 (14 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1819904
COUNTRY OF REFERENCE: Pakistan
MEMBER:Jason Pennell
DATE:14 October 2019
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa
Statement made on 14 October 2019 at 3.28pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – Federal Circuit Court remittal – particular social group – person in a love relationship – religion – Sunni Muslim – apostatised faith – researched Almadiyya faith – assaulted by relative – fiancé murdered – lack of medical evidence provided – inconsistent evidence – mental health claim – claim of vulnerable person – lack of knowledge about religion – threats lacking in detail – delay in making claim – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 5AAA, 36, 65, 91R, 91S, 351, 359A, 375A, 499
Migration Regulations 1994 (Cth), r 2.41, Schedule 2CASES
Applicant A v MIEA (1997) 190 CLR 225
AXC17 v Minister or Immigration & Anor [2018] FCCA
Chan v MIEA (1989) 169 CLR 379
Kavan v MIMA [2000] FCA 370
Liu v MIMA [2001] FCA 257
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIEA v Wu Shan Liang (1996) 185 CLR 259
MIMA v Darboy [1998] FCA 931
MIMA v Zheng [2000] FCA 50
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Pei Lan He v MIMA [2001] FCA 446
Prasad v MIEA (1985) 6 FCR 155
Subramanium v MIMA (1998) VG310 of 1997
VCAD v MIMIA [2004] FCA 1005
Wang v MIMA (2000) 105 FCR 548
Zhang v RRT & Anor [1997] FCA 423Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
1.This is an application for review of a decision made by a delegate of the Minister for Immigration on 7 August 2015 to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 visa under s.65 of the Migration Act 1958 (the Act).
2.The visa applicant applied for the visa on 2 May 2014. The delegate refused to grant the visa on the basis that he was not satisfied that the applicant was a person to whom Australia has protection obligations as outlined in s. 36(a) or (aa) of the Migration Act 1958 (the Act).
3.The applicant appeared before the Tribunal on 20 August 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
4.The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
5.For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Criteria for a protection visa
6.Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
7.Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
‘owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.’
8.Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
9.There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
10.Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant,[1] and systematic and discriminatory conduct.[2] Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
[1] s.91R(1)(b)
[2] s.91R(1)(c) of the Act
11.Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
12.Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared.[3]
[3] s.91R(1)(a) of the Act
13.Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
14.In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
15.Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
16.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 a protection 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 the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
17.‘Significant harm’ for these purposes is exhaustively defined in s.36(2A).[4] A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally.[5]
[4] s.5(1) of the Act
[5] s.36(2B) of the Act
Section 499 Ministerial Direction
18.In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicants’ migration history
19.The applicant arrived in Australia [in] February 2009 holding a [student visa]. His subsequent application for a [student] visa was refused on 15 August 2011. The applicant sought judicial review of the department’s decision at the Migration Review Tribunal (MRT) on 7 September 2011. The MRT affirmed the decision to refuse the applicants [student] visa on 13 June 2013.
20.The applicant submitted an application for Ministerial Intervention pursuant to s.351 of the Act on 19 July 2013. The request for Ministerial Intervention was not considered on 9 April 2014.
21.On 2 May 2014 the applicant made application for a Protection visa and a bridging visa E was granted under 050.212(3)(a) grounds associated (050.511) to his Protection visa application.
Country of Reference
22.The Tribunal file No 1512331[6] contains a photocopy of the applicant's Pakistan passport in Pakistan expiring [in] 2020. It shows that he was born on [date] in Gujranwala Pakistan. There is no evidence to suggest that he has a right to enter and reside, whether temporarily or permanently, in any other country.
[6] Tribunal file No 1512331 @ f.84
23.Accordingly, the Tribunal finds that the applicants are citizens of Pakistan and that their protection claims will be assessed against Pakistan as the country of reference and 'receiving country' respectively.
Applicant’s statement of facts.
24.The applicant was born in Gujranwala Pakistan and claims to be a Sunni Muslim. He has two brother and three sisters who all remain living in Pakistan. The applicant’s evidence was that his mother and father continue to live in Gujranwala. His father is [retired] and his mother was engaged in home duties.
25.Prior to arriving in Australia the applicant attended school until the 10th grade at [High School 1] Gujranwala Pakistan. His evidence was that he then attended [College 1] where he completed [Qualification 1] in [year]. The applicant claims that he speaks reads and writes Urdu and English. In addition he claims that he speaks Punjabi.
26.The applicant claims that when he was a student at [College 1] he formed a relationship with a fellow student [Ms A]. His evidence to the Tribunal was that he met [Ms A] in 2004 when he commenced his studies at the College. He said that they would meet every second day in a coffee shop or at the market. He claimed that after a period of time he proposed that they get married. Despite his statement that he was madly in love with [Ms A] his evidence to the Tribunal was that they had been seeing each other for a while and that he liked her so he proposed they get married. The applicant’s evidence was that he proposed in a coffee shop in Pakistan in or about the end of 2008. However, was not able to provide any details of the coffee shop including its name and location.
27.The applicant’s evidence was that when he proposed to [Ms A], she explained to him that she belonged to the Ahmadiyya faith and as a result it would be difficult for them to get married. The applicant stated that he offered to speak to her family and as a result he meet with her father a few days later at [Ms A’s] family home. Despite his evidence at the previous Tribunal hearing that meet [Ms A’s] parents, his evidence was that he only met her father and not her mother. Nevertheless, the applicant was not able to tell the Tribunal the name of [Ms A’s] father or his occupation. In addition, he did not know if she had any brothers or sisters but stated that he believed she had one brother and one sister.
28.The applicant’s evidence was that [Ms A’s] father explained to him that it would be difficult for them to get married but if he was to pursue a marital relationship with her it was necessary for him to learn about and convert to the Ahmadiyya faith. As a result the applicant claimed that he studied the Ahmadiyya faith. The applicant was able to provide the Tribunal broad details in relation to the Ahmadiyya faith. However, save to say that he downloaded a few articles from the internet the applicant was not able to tell the Tribunal about any books or other texts he had read in relation to the religion. He claimed that he was in possession of the research material for approximately 5 to 6 months before destroying them.
29.The applicant’s evidence was that he told his mother about [Ms A] and the fact that he had proposed to her. Mother advised the applicant to stay away from [Ms A]. As a result, the applicant’s evidence was that after 2008 he stayed in touch with [Ms A] on the phone and did not meet her very often.
30.The applicant evidence that his [Relative 1] is a member of the Jamaaat-e-Islami and [an official] of the political party in his local area. The applicant claims that his [Relative 1] assaulted him as a result of having found his research material into the Ahmadiyya faith. The applicant claims that as a result of the attack his[Relative 1] broke his arm.
31.The applicant then claims that as a result of [Relative 1’s] attack on him his father sent him away as he was concerned about his welfare. The applicant arrived in Australia [in] February 2009 holding a [student] visa to commence [Course 1]. The applicant was enrolled in [Course 1] for a short time before discontinuing the course and then enrolled in [another course] at [a college] in [City 1]. He did not complete the course and was only enrolled for a period of approximately 6 months. In [year] the applicant studied [another course]. At the end of 2011 he travelled to Pakistan. The applicant’s claimed that when he returned to Australia his enrollment had been cancelled.[7] In 2012 the applicant applied for enrollment tin [a university] but was refused. The MRT affirmed the decision to refuse the applicants visa on 13 June 2013.
[7] Migration Review Tribunal decision dated 12 June 2013 @ [44]
32.The applicant visited Pakistan in 2012 and again in 2013. The applicant claims that during his visit in 2013 the applicant’s [Relative 1] learned of his relationship with [Ms A] by the discovering religious material disposed of by the applicant and his father.
33.The applicant returned to Australia and his father was incarcerated in Pakistan resulting for the lodgement of a First Information Report (FIR) initiated by the applicant’s [Relative 1].
34.The applicant claims that his [Relative 1] killed [Ms A] and lodged a further FIR against the applicant.
35.The applicant claims that if he returns to Pakistan he will suffer serious and/or significant harm from [Relative 1] by reason of his relationship with [Ms A] and his research into the Ahmadiyya faith.
The Country Information
36.In assessing this decision the Tribunal has considered the available country information. I paragraph it has considered the Department of Foreign Affairs and Trade Country Information Report – Pakistan dated 20 February 2019 (‘the DFAT Report) which states
Ahmadis[8]
[8] DFAT Report @ p.38
3.113 Ahmadiyya is a religious movement based on Islam founded in the Punjab in the late 1800s by Mirza Ghulam Ahmad. Ahmadis consider themselves Muslims, follow the teachings of the Quran, and believe Ghulam Ahmad was the Mahdi (a prophet who would appear at the time of the second coming of Jesus Christ, and fill the world with justice and equality prior to the Day of Judgement). Sunni and Shi’a Muslims believe the Prophet Muhammad was the last of the prophets, and many consider Ahmadis heretics.
3.114 Ahmadis are not readily identifiable by their appearance, language or names. Many Ahmadis do not publicly identify for fear of persecution, maintain a low profile in the community to avoid societal discrimination and violence, and refuse to take part in the census. Estimates of the number of Ahmadis in Pakistan range between 500,000 and 4 million. Media articles on the national census reported 167,000 Ahmadis in Pakistan.
3.115 Most Ahmadis live in Punjab. Rabwah, Punjab is considered the Pakistan headquarters of the Ahmadi community (population is around 95 per cent Ahmadi). According to the UK Home Office, the main population centres for Ahmadis in Pakistan, aside from Rabwah, are Sialkot, Quetta, Multan, Rawalpindi, Karachi, Lahore and Faisalabad. Pakistan’s Ahmadi community is relatively well educated and prosperous, and community leaders are very active political and diplomatic lobbyists. Many Ahmadis live overseas and the community has an active diaspora in Australia. Leaders of the movement, including the current Supreme Head, Hazrat Mirza Masroor Ahmad, have resided in the UK since 1984.
3.116 Ahmadis face high levels of official discrimination in Pakistan and are not able to practise their religion freely. In 1974, the Pakistan government amended the Constitution to state explicitly that Ahmadis were considered non-Muslims. In 1984, the government of General Muhammad Zia ul-Haq promulgated Ordinance XX, which banned Ahmadis from: publicly practising their faith; using non-Ahmadi mosques or public prayer rooms for worship; using Islamic texts for their prayers; performing the Muslim call to prayer; producing, publishing or disseminating religious materials; using the traditional Islamic greeting in public; seeking converts; and publicly quoting from the Quran. Ordinance XX also banned Ahmadis from identifying or ‘posing’ as Muslims.
3.117 In practice, the community reports Ahmadis can be charged for using the standard Islamic greeting or naming their child Muhammad. Punishment for Ordinance XX offences is up to three years’ imprisonment and a fine. Ahmadis are exempt from the 2.5 per cent zakat deductions on personal income mandatory for Muslims in Pakistan.
3.118 In 2018, the government asked Princeton University economist, Dr Atif Mian to step down from the prime minister’s Economic Advisory Council following mounting pressure from religio-political parties against the appointment of Dr Mian, who is an Ahmadi.
3.119 In 2017, Police prosecuted 77 Ahmadis under anti-Ahmadi legislation, and nine Ahmadis were in prison on faith-related charges in 2017. Ahmadis claim prosecutors and judges discriminate against community members by trying them under blasphemy laws, which carry more severe sentences than Ordinance XX offences. Retired Captain Muhammad Safdar, former prime minister's son in law and a member of then-ruling PML-N, also accused Ahmadis of acting against the country's interests in 2017. Safdar called for action against the Ahmadi community, and stated Ahmadis were ‘a threat to this country, its Constitution and ideology’.
3.120 Community representatives claim police arrested four Ahmadis in May 2014 for allegedly tearing an anti-Ahmadiyya poster. Police failed to intervene when a student from a local madrassa fatally shot one of the detainees in police custody inside the police station. Following a request from a local politician, the High Court revised the charges against the three surviving detainees to a more serious one of insulting the Holy Prophet, for which they subsequently received death sentences. The three remain in prison and the community continues to advocate for their release.
3.121 Two police FIRs, dated 1989 and 2018, are currently listed against the entire Ahmadi community. The second FIR, issued during an Ahmadi festival on 23 March 2018, ordered Ahmadis not to look happy in public, distribute sweets or wear new clothes. DFAT is aware of reports of: police entering Ahmadi places of worship to dismantle minarets (symbols of Islamic mosques) and removing Arabic inscriptions of Islamic texts from the walls; mobs setting fire to Ahmadi places of worship, desecrating graves and disinterring remains; and authorities handing over Ahmadi places of worship to non-Ahmadi groups, and closing down Ahmadi publications.
3.122 On 5 December 2016, officers from the counter terrorism department of the Punjab police raided Ahmadi headquarters in Rabwah, arresting four Ahmadis on suspicion of publishing banned magazines. One security guard was reportedly beaten during the raid. On 12 December 2016, a crowd of around 1,000 people attacked an Ahmadi place of worship in Chakwal, burning religious books and other items. One Ahmadi man died from cardiac arrest during the attack, while a stray bullet killed one non-Ahmadi man. The Ahmadiyya mosque in Dulmial, District Chakwal remains locked.
3.123 The UK Home Office reports that authorities are using anti-terror legislation to ban and seize Ahmadi publications as ‘hate literature’. The legislation allows security officials to arrest suspected authors and distributors of ‘hate literature’ without notice and without access to bail. The penalty is five years’ imprisonment. A ban on the written works of Ghulam Ahmad continued in 2018, as did a publishing ban on the Ahmadiyya daily ‘The Alfazl’ and community periodicals ‘Ansarullah’, ‘Misbah’, ‘Khalid’, ‘Tashheez’ and ‘Tahrik Jadid.’
3.124 Ahmadis can face difficulties when applying for or requesting changes to official documentation. When Ahmadis register for a CNIC, they sign as Muslim by default on the CNIC form. However, after marriage Ahmadis must update their marital status on their CNIC, requiring presentation of a marriage certificate. Although the government recognises Ahmadi marriage certificates as legal, presentation of the Ahmadi marriage certificate by a person registered as Muslim on a CNIC can lead to claims of apostasy. Community members claim that, in one case, an Ahmadi seeking to change his CNIC was threatened with apostasy charges and paid a bribe equivalent to AUD 20,000 to rectify the ‘administrative error’ on his registration. Ahmadis report similar problems when seeking amendments to Pakistan Origin Card (see Other Forms of Identification). In 2018, Justice Shaukat Aziz Saddiqui asked NADRA to provide the court with all private CNIC data for all Ahmadis, and ordered NADRA not to change any Ahmadi’s religion on their CNIC without a court order. Justice Saddiqui also asked NADRA to publish a list of Ahmadis, especially those in government positions.
3.125 DFAT is aware of claims that census officials in 2017 officially recorded some Ahmadi families in Lahore as Muslims, and later accused them of apostasy. Ahmadis applying for passports can avoid apostasy accusations by marking their religion as ‘other’, rather than ‘Muslim’.
3.126 Ahmadis wishing to vote must register on a separate Ahmadi list, which specifies they are not Muslim. Other religious groups such as Christians do not face the same restrictions. In the lead-up to the 2013 elections, many Ahmadis refused to register and were unable to vote. Applications for official documentation, including passports and CNICS, contain information about religious affiliation, and people who identify as Muslim have to explicitly denounce Ghulam Ahmad as a false prophet and Ahmadiyya followers as non-Muslims. If unwilling to sign, Ahmadis are unable to access a passport to travel to complete the Hajj.
3.127 In October 2017, the government passed an amendment to the Elections Act, changing the language of the electoral oath by replacing the words ‘I solemnly swear’ with ‘I believe’ in a proclamation of Muhammad as the religion’s last prophet. This facilitated Ahmadis’ ability to vote. The law removed the requirement for Ahmadis to register separately and placed them on joint lists prepared by NADRA. The change caused public outcry, and prompted large demonstrations and accusations the government was weakening its stance on Ahmadis. Protesters, led by the conservative Tehreek-e-Laibbak Pakistan (TLP), protested in Islamabad stating the change was blasphemous and anti-Ahmadi material circulated in the media. Following community pressure, the government cited clerical error and quickly restored the earlier wording to the oath in the Elections Act, 2017, and revised the electoral law to reincorporate Ahmadi registration requirements. The government also declared 2018 ‘The Year of Awareness of End of Prophethood’. The AJK Provincial Assembly passed a resolution to incorporate the federal government’s anti-Ahmadi laws into the provincial interim constitution.
3.128 The protest over the language of the electoral law language reflects the sensitivity of Islam in Pakistan and the growing support base of political Muslim groups, including those with extremist ideologies or connections. Many local and international observers say that heightened religiosity in the 2018 election campaign has increased societal discrimination against Ahmadis, which may manifest in more violence. Human rights advocates and Ahmadis alike considered the situation for Ahmadis in 2018 was worse than ever before. As Pakistan has transitioned to democracy, the situation for Ahmadis has worsened.
3.129 Violence against Ahmadis by militant groups has been relatively rare in recent years. This partly reflects a general improvement in the security situation, the relatively high socio-economic status of many Ahmadis, and the difficulty of identifying Ahmadi solely from their appearance. Nonetheless, violent attacks on Ahmadis can and do occur. Unknown gunmen killed three Ahmadis in separate sectarian attacks in Punjab between March and May 2017, and half (three out of a total six) of total faith-based violent incidents across Pakistan in 2018 targeted the Ahmadi community (see Security Situation). Media reports anti-Ahmadi group, Aalami Majlis Tahaffuze Khatme Nabuwwat (AMTKN), is one of the main banned organisations involved in attacks and threats against, and the killing of Ahmadis, both in Pakistan and overseas (United Kingdom). Media reports allege MTKN is also active in its efforts to advocate for more restrictions on the Ahmadi community in Pakistan.
3.130 The problems faced by Ahmadis in nominating their religion create administrative problems accessing many services. Ahmadi students have to register as Muslim or non-Muslim for their high school examinations. In Rabwah, students can elect to register with the Aga Khan Examination Board instead, which does not require a declaration of religion. Ahmadis in government schools and in other cities do not have this option. Ahmadis seeking to open bank accounts face similar registration issues, although many Ahmadis in Pakistan do have bank accounts.
3.131 Ahmadis claim to face significant employment discrimination. Most Ahmadis do not declare their religion in the workplace, as those discovered face hostility and discrimination, including dismissal. Non-Ahmadi parents discriminate against Ahmadi teachers and pupils in schools. Ahmadi patients can also face discrimination when obtaining medical treatment.
3.132 Government policy restricts Ahmadis joining government service, and imposes career ceilings for those who do obtain public sector jobs. In the military, which is widely regarded as the most meritocratic institution in Pakistan, Ahmadis face an ‘unwritten’ promotion ceiling at brigadier level.
3.133 Public advocates for the Ahmadi community face significant risk of violence; although the community claims some political leaders privately support them.
3.134 Ahmadis report they feel safest in Rabwah, although an Ahmadi who had drawn adverse official or societal attention would not be safe there. Ahmadis face the highest risk of discrimination and violence in rural villages where no extended Ahmadi community exists, although the security of individuals largely depends on the attitude of the local cleric. Ahmadis report the highest levels of discrimination in rural areas in Punjab. After Punjab, Ahmadis consider Karachi to be the most dangerous location.
3.135 Human rights groups consider Ahmadis to be the most vulnerable group in Pakistan, due to legal discrimination and growing religious intolerance. DFAT assesses that Ahmadis in Pakistan face a high risk of official discrimination, which affects their ability to practise their religion freely and limits the extent of their political and social engagement. DFAT assesses that Ahmadis face a high risk of societal discrimination and violence, which intensified in late 2017 and increased in 2018 as a result of the major Khatm-e-Nabuwat protests at the end of 2017 and the 2018 election.
Prevalence of Fraud[9]
5.70 CNICs, SNICs and passports contain a number of 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.
5.71 Document fraud is widespread for forms of documentation not issued by a competent central authority such as NADRA. Due to the relative ease in acquiring fraudulently obtained genuine documents, such documents are common in Pakistan and are generally preferred over counterfeit documents, as they are difficult to detect. Fraudulently obtained genuine documents, such as CNICs and passports, can be obtained with fraudulent (altered or counterfeit) feeder documents. Types of documents historically found to be fraudulent in Pakistan include, but are not limited to, documents regarding academic qualifications such as degrees and transcripts, bank statements, agreements, references, and ownership deeds.
5.72 Union councils and NADRA can verify fraudulent documents, although detection is difficult where genuine documents were obtained with fraudulently altered or counterfeited primary documents. NADRA now issues birth certificates, but fraudulently obtained, fraudulently altered or counterfeit certificates are still possible as long as hospitals retain the authority to issue birth certificates.
5.73 FIRs use standard forms with the relevant information written in by hand, and are relatively simple to counterfeit. Reports exist of police accepting bribes to verify fraudulent FIRs. DFAT does not consider the existence of an FIR to constitute evidence that the events described in the FIR actually occurred.
5.74 Fraudulently altered or counterfeit school records, birth certificates, death certificates, medical records, bank records and other documents are common. Local sources report instances where influential people have paid news organisations to publish false stories.
5.75 As self-declaration as an Afghan is the only requirement to apply for an ACC, it is possible for an individual not in either the NADRA or MORR databases to fraudulently obtain an ACC (see Afghan Refugees).
5.76 Corruption is also common (see Corruption), however in August 2015, the FIA reportedly investigated allegations of NADRA officials issuing fake CNICs to militants in return for bribes as low as USD 100. Since then, MoI has increased its oversight of NADRA and implemented tough measures against fraud within NADRA. DFAT assesses that government efforts have reduced the incidence of bribery and fraud, but have not eliminated it
[9] DFAT Report @ p.37
The applicant’s protection claims
37.The issue in this case is whether the applicant meets the criteria set out in either of s.36(2)(a) or s.36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
38.The applicant set out his initial claims for protection in his visa application on 2 May 2014 summarised as follows:
a)He left Pakistan to obtain an education.
b)He has not been personally harmed yet he and his family have received many threats (unspecified) that he will be harmed if he returns. He was almost attacked when in Pakistan “last March” and spent two weeks in hiding. Some of his family members were attacked.
c)He fears he will be physically harmed or tortured if he goes back and there have been many incidents of people trying to extort money.
d)There are many extremist groups who resort to violence threats, and kidnap rich people and political opponents for money.
e)Because he has stayed in Australia for a long time “they” think he has a lot of money and fears he will be harmed as a result.
f)His father is involved in politics and other extremist parties are unhappy with his political involvement and his parents fear they will harm him to gain revenge.
39.On 29 May 2015 the applicant provided to the Department a detailed statement of his claims, summarised by the delegate[10] as follows:
a)The applicant formed a relationship with a fellow student and discovered that she belonged to the Ahmadiyya faith.
b)In order to maintain the relationship and seek approval to marry, the applicant was required to research the Ahmadiyya faith with the intention of converting.
c)The applicant’s [Relative 1] is an active member of Jamaat-e-Islami.
d)The applicant’s [Relative 1] discovered that he was researching the Ahmadiyya faith and subsequently assaulted the applicant.
e)The applicant’s father sent him away as he was concerned about his welfare.
f)The applicant visited Pakistan in 2012 and again in 2013. During the latter visit, the applicant’s [Relative 1] learnt of the applicant’s relationships with his Ahmadi girlfriend, through the location of religious material disposed of by the applicant and his father.
g)The applicant returned to Australia and his father was incarcerated in Pakistan resulting from the lodgement of a First Information Report (FIR) initiated by the applicant’s [Relative 1].
h)The applicant’s [Relative 1] killed the applicant’s girlfriend and lodged a further FIR against the applicant.
[10] As recorded in the decision record, a copy of which the applicant provided to the Tribunal on review.
40.Material provided by the applicant to the Department in support of the visa application included copies of the two FIRs, dated [April] 2013 and [April] 2014 respectively, with the complainant in both identified as ‘[name deleted]’, purportedly the applicant’s [Relative 1]. Also provided were copies of various news articles about alleged persecution of Ahmadis in Pakistan.
CONSIDERATION OF CLAIMS AND EVIDENCE
Credibility
41.When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. All this is taken into account in these findings.
42.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[11]. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[12]
[11] s.5AAA Migration Act 1958.
[12] MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169-70.)
43.A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[13] Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
[13] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J @ p482
44.If the applicant's account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[14] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
[14] The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196
Accepted Facts
45.Based on the oral evidence provided at the hearing the Tribunal accepts and finds that:
(a)The applicant was born in Gujranwala Pakistan.
(b)The applicant is a Sunni Muslim.
(c)The applicant claims that he speaks reads and writes Urdu and English. In addition he claims that he speaks Punjabi.
(d)The applicant parents together with his two brothers and three sisters all remain living in Pakistan.
(e)The applicant attended school at [High School 1] Gujranwala Pakistan.
(f)The applicant attended [College 1] where he completed [Qualification 1] in [date].
Applicant’s Refugee Claim
Relevant Grounds
46.The applicant claims arise from relationship with [Ms A] and his research into the Ahmadiyya faith. The applicant claimed in his submission that his claim falls within the scope of s.91R(1)(a) of the Act by reason of his membership of a particular social group. That is as a person who has entered into a ‘love relationship’.[15]
[15] Applicants submissions AAT File No 1512331 @f41
47.It is necessary that as a result of the applicant’s membership of a social group that he share a certain characteristics or elements which unite him with a particular group which sets it apart from society at large. That is to say, not only must the applicant with her group exhibit some common element, it must unite them, making them a cognisable group within their society.[16]
[16] Applicant A v MIEA (1997) 190 CLR 225 per Dawson J at 241, McHugh J at 264-266 and Gummow J at 285.
48.While it may be said that by having entered into a ‘love relationship’ the applicant may share some characteristic’s or element’s with other people within society, the Tribunal does not accept that any such elements could be described as being so distinct as to set them apart from society at large as to unite them and make them a consignable group in society. As such the Tribunal finds that he is not a member of a particular social group as claimed by reason of having entered a ‘love relationship’ as claimed.
49.However, although not expressed by the applicant it may argued that he falls within the scope of the s.91R9(1)(a) by reason of his religion, as a Sunni Muslim. The scope of ‘religion’ within the context of the Convention has been considered by the Federal Court in several cases including MIMA v Darboy[17] and Wang v MIMA.[18] In MIMA v Darboy the Federal Court referred to the following passage from the High Court’s judgment in Church of the New Faith:
‘The canons of conduct which he accepts as valid for himself in order to give effect to his belief in the supernatural are no less a part of his religion than the belief itself. Conversely, unless there be a real connexion between a person’s belief in the supernatural and particular conduct in which that person engages, that conduct cannot itself be characterised as religious.’
[17] [1998] FCA 931 (Moore J, 6 August 1998).
[18] (2000) 105 FCR 548. Followed in Liu v MIMA [2001] FCA 257 (Cooper J, 16 March 2001) at [19]-[22].
50.The question of whether an applicant has a well-founded fear of being persecuted for reasons of religion may arise in a variety of factual circumstances and will often depend on the motivation of the persecutor or in circumstances where fear is by the operation of generally applicable laws, whether there is a persecutory intent or nature to those laws or to the way they are applied.[19]
[19] See VCAD v MIMIA [2004] FCA 1005 (Kenny J, 4 August 2004) at [35] where Kenny J held that where an applicant has avoided military service for religious reasons there may be a well-founded fear of persecution for reasons of religion if a law, neutral on its face, has an indirect discriminatory effect or indirectly inflicts disproportionate injury, for reasons of religion.
51.Persecution for reasons of religion will often involve prohibition against, restrictions on, or punishment for, a particular religious practice.[20] Whether an applicant has a well-founded fear of being persecuted for reasons of religion requires an assessment in the light of all the circumstances, including, where relevant, the ‘central tenets’ of the religion, how the applicant would be likely to manifest his or her religious beliefs and the likelihood of that manifestation attracting a persecutory reaction from the authorities.[21]
[20] Wang v MIMA (2000) 105 FCR 548; Woudneh v Inder (unreported, Federal Court of Australia, Gray J, 16 September 1988); MIMA v Zheng [2000] FCA 50 ( per Hill, Whitlam & Carr JJ, 10 February 2000)
[21] Pei Lan He v MIMA [2001] FCA 446 (Ryan J, 23 April 2001).
52.In this case it was open to the applicant to claims that as a Sunni Muslim he has been the subject of attack by [Relative 1] by reason that he had apostatised his faith by being in a relationship with [Ms A] and having investigated and researched the Ahmadiyya faith for the purposes of maintaining the relationship. The Tribunal therefore accepts that his claims falls within the scope of s.91R(1)(a) of the Act by reason of his religion.
Applicant’s well-founded fear.
53.In Chan v MIEA[22] the Court held that ‘well-founded fear’ involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution. Justice Dawson noted that the phrase ‘well-founded fear of being persecuted...’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[23]
[22] (1989) 169 CLR 379 at 396.
[23] (1989) 169 CLR 379 at 396. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ.
54.The subjective element of ‘well-founded fear’ concerns the state of mind of the applicant. That is, whether an applicant has a genuine fear is a question of fact. In this case based on the evidence of the applicant the Tribunal accepts that the applicant has a subjective fear of being harmed of being persecuted in the event that he returns to Iran.
55.However, to hold a ‘well-founded fear of persecution’ on an objective basis the applicant’s claim must be more than merely plausible or credible. In Chan v MIEA, Dawson J [24]stated:
“Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.’
[24] Chan v MIEA (1989) 169 CLR 379 per Dawson J at p.397
56. In MIEA v Guo, the Court stated that: [25]
[25] MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293.
‘Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.’
57.Accordingly, the applicant claims that he that he is a person who has a well-founded fear of persecution, pursuant to s.91R(1)(a) of the Act by reason of his religion. He says that in the event he is returned to Pakistan there is a real chance he will suffer serious harm by his [Relative 1] as a result of having apostatised his faith by having a relationship with [Ms A] and having investigated and researched the Ahmadiyya faith.
58.For the reason expressed in this decision the Tribunal finds that the applicant does not have a ‘well-founded fear of persecution’ in the event that he returns to Pakistan due to the fact that his claim is not plausible or credible on an objective basis.
s.375A of the Act Certificate
59.In the course of the Tribunal hearing the Tribunal referred the applicant to an issue identified by the Federal Circuit Court (‘the Court’) in relation to a document that appeared to the Court to have been provided to the Tribunal by the Department under cover of a certificate pursuant to s.375A of the Act.[26] The Tribunal advised the applicant that having read and considered the departments and Tribunals files in relation to the applicant’s application for a protection visa it was not able to locate any such a certificate.
[26] AXC17 v Minister or Immigration & Anor [2018] FCCA 1843 @ [9]
60.Nevertheless, the Tribunal referred the applicant to the Migration Review Tribunal decision dated 12 June 2013 in relation to the applicant’s student visa. In that decision the MRT referred to a letter sent by the department to the applicant under s.359A of the Act by which the applicant was invited to comment on or respond to the adverse information referred to by the Court, being the fact that the applicant appeared to have relied on fraudulent documents in his application for a student a student visa. The applicant confirmed to the Tribunal that the Court was referring to the same information as referred to in the MRT decision.
61.The Tribunal made it plan to the applicant that in its consideration of this matter it would not have any regard to the adverse information due to the fact that, in the Tribunals view, it was information that was not relevant to the applicant’s application for protection visa in circumstances where it had been considered and determined by the MRT. Accordingly it would not be taken into account by the Tribunal in determining this matter. Accordingly, the Tribunal has not given any weight to the adverse information adverse to the applicant in its determination of this matter.
Applicants answers to the department as to any hospital treatment
62.At the Tribunal hearing the applicant referred to the delegate’s decision in which it was noted that he had failed to inform the department on his application for a student visa that he had been hospitalized and received treatment for the injuries he received as a result of being attacked by [Relative 1].[27] The applicant confirmed to the Tribunal that there was no particular reason for him to have omitted the information other than he did not think it important at the time. The Tribunal informed the applicant that it would not take into his answer to the department in relation to his hospitalization or medical treatment for the purposes of this decision. As such, the Tribunal makes no finding in relation to the applicant’s response to question 17 of his student visa application as to any hospitalization or medical treatment and accordingly does not give any weight to his answer that is adverse to the applicant.
Applicant’s Delay
[27] Delegates decision dated 7 August 2015 @ p.7; AAT file No 1512331 @ F.9
63.Delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm.[28] Even a three month delay in lodging a protection visa application has been held to be a legitimate matter to be taken into account when assessing the genuineness or depth of an applicant’s fear of persecution.[29]
[28] Zhang v RRT & Anor [1997] FCA 423; Kavan v MIMA [2000] FCA 370.
[29] Subramanium v MIMA (1998) VG310 of 1997.
64.In this case the applicant arrived in Australia [in] February 2009 holding a [student] visa. The applicant’s subsequent application for the same visa was refused on 15 August 2011. The applicant sought judicial review of the department’s decision at the MRT on 7 September 2011 and the MRT affirmed the decision to refuse the applicants visa on 13 June 2013.
65.The applicant then submitted an application for Ministerial Intervention pursuant to s.351 of the Act on 19 July 2013. The request for Ministerial Intervention was not considered on 9 April 2014.
66.The issue of the applicant’s delay in making his protection visa application was raised at the hearing. The applicant’s evidence was that he made the claim for protection as he feared he would be harmed by his [Relative 1] by reason that he had issued the second FIR against him. The Tribunal notes the country information which states that the existence of an FIR does not constitute evidence that the events described in the FIR actually occurred.[30]
[30] DFAT Report @ f.38
67.Nevertheless, despite the applicant’s claims that he was attacked by [Relative 1] and had his arm broken as a result of [Relative 1]'s discovery of his research material into the Ahmadiyya faith in 2009 and his evidence that his father had arranged for him to study in Australia to escape his [Relative 1] the applicant made no application for a Protection visa until 2 May 2014. That is, approximately five years after arriving in Australia. Instead of making an application for a protection visa at the first available opportunity, the applicant made multiple attempts to maintain his [student] visa.
68.While the Tribunal is aware that vulnerable asylum seekers will have difficulties in providing documents or expressing their fears, in this case the Tribunal has some reservations about the credibility of the applicant’s evidence based on the circumstances in which the applicant applied for a protection visa particularly, based on the available country information, as to the authenticity of the FIR’s provided by the applicant. In circumstances where the applicant has returned to Pakistan in 2011 and 2013 and the country information stating that FIR’s are not evidence of the events described having actually, the Tribunal has some concern in relation to his delay in making his protection visa application.
69.Therefore, based on the applicants delay in making his application for protection, the Tribunal, on an objective basis, has reservations about genuineness or depth of the applicant’s fear of persecution[31] as claimed.
[31] Subramanium v MIMA (1998) VG310 of 1997.
The applicant’s refugee claim
70.In his oral evidence to the Tribunal the applicant claimed in essence to fear serious harm on return to Pakistan from his [Relative 1] and members of groups associated with [Relative 1], such as the Jamaat-e-Islami because of his relationship with [Ms A] who followed the Ahmadiyya faith and because of his plans to convert (to the Ahmadiyya faith.) He told the Tribunal that he first met [Ms A] at university in Punjab in 2004, they began a relationship a few months later, and he proposed to her in 2008, prior to coming to Australia to study in February 2009. When he proposed she told him she followed the Ahmadiyya faith, which meant it would be difficult to marry, given the applicant follows Sunni Islam. The applicant was surprised but still wanted to marry [Ms A]. As a result the applicant met with her father who him to study Ahmadiyya. The applicant said he then downloaded material about Ahmadiyya on his computer at home, printed out some of the material and started to study the religion.
71.However one day in 2008 his [Relative 1] saw some of the Ahmadiyya reading material on his computer table in his bedroom and attacked him by hitting him with an iron rod and fractured his arm. The applicant was taken to a nearby hospital by his father (who had been in the house at the time of the attack) where he was operated on. The applicant said over the next four months he received inpatient and outpatient care in relation to his broken arm. The applicant stayed living at his parents’ home in Gujranwala after he was released from hospital and said he did not have any further contact with [Relative 1]. Despite his alleged prolonged stay in hospital for a broken arm the applicant did not provide any supporting evidence that he suffered a broken arm or that he was treated in the hospital as claimed. The applicant claimed in his submission that he was unable to obtain any treating documents from the hospital. However, in his evidence to the Tribunal the applicant admitted that despite previous requests by the department and the Tribunal he had made no attempt to obtain any medical documents in support of his claim.
72.The applicant claimed that he received threatening phone calls from members of Jamaat-e-Islami whom [Relative 1] was heavily involved with during a visit home in 2012 and that his father also had received threatening phone calls. The callers threatened to kill the applicant because he had taken an interest in Ahmadiyya. When asked if he received further threats or if anything happened during his second visit home in 2013 the applicant replied that he did not remember.
73.The applicant said his [Relative 1] shot [Ms A] dead [in] April 2014 in Pakistan when he came to know that she was Ahmadi, noting that [Relative 1] is very religious and powerful. His mother told the applicant over the phone. He has had no contact with his parents since.
74.When asked why he remains fearful of his [Relative 1] (and others associated with him) on return to Pakistan, the applicant mentioned an FIR taken out against him by [Relative 1] whilst in Australia accusing him of having a connection with the Ahmadi group and representing Islam in a bad way. The applicant did not elaborate how it was said that he had a connection to an Ahmadi group or how he had represented Islam in a bad way. He could not recall the date of the FIR but said it was lodged after [Ms A] was killed.
75.[Relative 1] allegedly lodged an FIR against his father earlier, which resulted in his father being arrested and spending a few days in gaol before his release on bail. The applicant told the Tribunal that he does not know what happened since, because he is not in contact with his family. The FIR related to his father destroying (that is burning then dumping in the rubbish) the Ahmadi material the applicant had downloaded. The applicant could not ember when his father destroyed the material, but confirmed it was the material he had downloaded in 2008, and said when asked that he was unsure if it was before or after he left Pakistan (in February 2009).
76.In oral submissions to the Tribunal the applicant’s representative stated, among other things, that the applicant’s [Relative 1] was a particularly powerful figure in Pakistan, as head of a committee called [Organisation 1] whose purpose was to persecute Ahmadis, as mentioned in the FIR dated [April] 2013 provided. To emphasise the impact of the applicant’s exploration of Ahmadiyya, it was submitted that the applicant’s [Relative 1] were heavily involved in the Sunni faith and that his grandfather was a ‘molvi’. In his written statement to the Department the applicant stated, among other things, that his grandfather was a 'molvi'; that after his grandfather died his [Relative 1] continued that task and is a very active member of the Jamaat-e-Islami; and that being ‘Nazam’ (leader) of that group in [Colony 1 in] Gujranwala he is very rigid and fundamental in his religious views. In addition it was submitted that the Jamaat-e-Islami have close connections to the Taliban.[32]
[32] Applicant’s submission @ p.9; AAT File 1512331 @ f.41
77.At hearing the representative submitted that the blasphemy charge against the applicant by [Relative 1] remains outstanding (referring to the FIR provided dated [April] 2014), and there is a concern it may be reinstated at any point. The applicant said at hearing it was set as a trap for when he returns; that he does not know its status; and that he is unable to get further details because he is not in contact with his family any more. The representative stated that there is plenty of material about the position of minorities in Pakistan (Ahmadis). As well, the fact that the applicant’s [Relative 1] jailed his own [relative] (the applicant’s father) gives an indication of the extent he would go to protect the family’s honour, as does the fact the applicant was attacked and injured by his [Relative 1]. On this matter, the representative stated that the applicant was unable to provide documents evidencing his stay in hospital because there is no one in Pakistan to get them for him. In his post hearing submission the representative said that the applicant also did not have funds to get a lawyer to help obtain the documents.
78.In a post-hearing written submission[33] provided to the Tribunal by email dated 30 November 2016[34] the applicant’s representative made the following key points as summarised below.
·The applicant fears serious harm on return to Pakistan because of his intention to convert to the Ahmadi faith/imputed religious opinion (which is not recognised under Pakistani laws and there are laws under the Penal code that discriminate against Ahmadis and other religious minorities[35]); his intention to enter into a love marriage; and the dishonour which has been caused to his extended family, namely his [Relative 1] and the family members aligned with [Relative 1] (noting they are a conservative family of religious scholars and Molvis).
·The applicant faces blasphemy charges in Pakistan, lodged by his [Relative 1] on behalf of [Organisation 1] (noting the FIR issued with respect to blasphemy charges dated April 2014). The applicant instructs that his [brother] received an order from the police instructing the applicant to attend the police station by a due date then the court summons would be issued; however the applicant was in Australia at the time and did not attend; since then his family have disowned him and he has had no further contact. Further, his family have been constantly threatened by the applicant’s [Relative 1] and [Relative 1] has used his power to jail the applicant’s father.
·The applicant fears these false allegations, related to the blasphemy charges, may form the basis of further prosecution by the legal system.
·The applicant overtly challenged majority religious principles by expressing his intent to convert; this brought about persecutory behaviour by his family members, specifically [Relative 1]; [Relative 1] is a Nazim and head of [Organisation 1]; man of power and influence; wealthy and has contact with Jamaat-e-Islami. The applicant’s [Relative 1] and the organisation he belongs to are tasked with persecuting and harassing non-believers, including the applicant.
·The applicant fears he could be charged with blasphemy as a consequence of the fact that he had material in his possession which was indicative of his intention to convert to the Ahmadiyya faith, contrary to his the Sunni Muslim faith and to the conservative religious principles practised by his family members, particularly [Relative 1].
[33] AAT file 1512331 @ f.43
[34] Op Cit @ f.83
[35] Referring to sections 295 and 298 of the Penal Code.
79.To support his contention that the applicant’s fears of series harm on return to Pakistan are well founded, the representative on 30 November 2016 also submitted to the Tribunal country information from a variety of sources including about the security situation in Pakistan, sectarian violence, and mistreatment of Ahmadis which the Tribunal has taken into account where relevant.
80.The Tribunal has significant concerns about the plausibility of the applicant’s evidence about the claimed events in Pakistan and as a result the genuineness of the documents he has produced in support of his claims for the following reasons.
a)The applicant claimed to have been in an ongoing relationship with [Ms A] from the time they met at university in or about 2004 until the time that she was murdered by [Relative 1]. Hi evidence to the Tribunal was that he propped to her in a coffee shop in late 2008 because he liked her and they had been seeing each other for a while. Her response to him was that it would be difficult for them to marry because she was of the Ahmadiyya faith. From the applicant’s evidence for him to continue to have a relationship with her it was necessary for him to covert to her faith. The applicant’s evidence was that after his [Relative 1] attacked him in later 2008 he no longer had any contact with [Ms A] other than speaking to her on the phone from time to time. The applicant arrived in Australia [in] February 2009 and his evidence was that after he arrived in Australia he did not have any contact with her. His evidence was that he did not see her or contact her during his visits to Pakistan in 2012 and 2013. The applicant’s own evidence therefore was that he had no further contact with [Ms A] from the time he arrived in Australia. In addition, he confirmed to the Tribunal that after his [Relative 1‘s] attack, he had made no any further attempt to convert to the Ahmadiyya faith. In such circumstances it is difficult to believe that the applicant had any ongoing relationship with [Ms A] as claimed. Therefore, while the Tribunal is prepared to accept that the applicant did have a relationship as claimed up until late 2008, it finds that he had no ongoing relationship with [Ms A] for the time that he arrived in Australia in February 2009.
b)Initially the applicant’s evidence to the Tribunal was that [Relative 1] attacked him because he had come to know of his relationship with [Ms A]. His evidence was that [Relative 1] or members of the Jamaat-e-Islami had seen him with [Ms A] in the street together. However, when it was put to the applicant that his previous evidence to the delegate and at the previous Tribunal hearing was that [Relative 1] had attacked him after discovering his research material into Ahmadiyya faith at his home, the applicant confirmed that this was the case. The applicant claimed that due to the stress of [Ms A] having been killed his memory had been affected. As a result the Tribunal does not accept the applicant’s evidence that [Relative 1] or members of the Jamaat-e-Islami had come to know of his relationship with [Ms A] as a result of having seen them in the street.
c)Despite having claimed to have studied the Ahmadiyya faith the applicant demonstrated only a limited knowledge about the religion at the hearing. He claimed that in Pakistan he downloaded Ahmadiyya books and ‘other material’ from the internet but was not able to give any examples. He said that it was a long time ago and he does not remember. While the Tribunal accepts that it was a long time ago, it would expect the applicant to remember at least one particular book or ‘other material’ given the importance of allegedly exploring another religion to the point of conversion and the fact he claimed in his written statement to the Department that he ‘continually’ read material and books ‘in depth’, and afterwards ‘gained true knowledge of Ahmadiyya.’ The applicant was able to inform the Tribunal that the Ahmadiyya faith was banned in Pakistan. He stated that the religion was started by Mirza Ghulam Ahmad and that it was different for Sunni Islam as Ahmadi’s believe in all the divine prophets, including Jesus. However he did not provide any further details, for example if there are different sects or if they believe in the five pillars of Islam. The applicant claimed that while he did read the material but he had not memorised it. The applicant claimed that as a result of the death of [Ms A] he had not been able to remember much. In addition the applicant’s submissions[36] state that, unlike his grandfather and [Relative 1] and that, the applicant is not a scholar. While the Tribunal does not expect the applicant to have memorised particular religious doctrine or to demonstrate knowledge of the religion as an academic or scholar might, it would expect him to have more than a basic knowledge of the religion given that he claims to have read material about it ‘in-depth’ and that he was seriously considering converting to that religion. Accordingly, the Tribunal does not accept that the applicant had downloaded Ahmadiyya books and ‘other material’ from the internet for the purposes of continuing his relationship with [Ms A] as claimed.
[36] AAT file 1512331 @ f.43
d)The applicant’s claimed that his family had received t threats his parents received over the phone and harassment from the applicant’s [Relative 1] and/or members of Jamaat-e-Islami because of his interest in Ahmadiyya. The applicant’s evidence in relation to the threats to his family was vague and lacking in detail. For example whilst he stated that they were harassed by them, he was unable to state when the threats or harassment started, or provide any details or context. He claimed he does not know when the threats stopped because his parents disowned him after [Ms A] was killed in April 2014 and he has had no further contact with his family. Therefore, the Tribunal does not accept that the applicant’s evidence and finds that that they were not threatened as claimed
e)Elements of the applicant’s oral evidence about his alleged relationship with [Ms A] were illogical and at times internally inconsistent. For instance, he said at hearing that he told his mother about his relationship with [Ms A] (and that she followed the Ahmadi faith) before he had proposed to her, yet he also stated that [Ms A] only told him about her Ahmadi faith when he proposed (consistent with what he stated in his written statement to the Department). The applicant claims to have been in a relationship with [Ms A] for 2004, but his evidence to the Tribunal was that he had no contact with from February 2009 when he arrived in Australia. The applicant’s evidence to the Tribunal in 2017 was that he did not see [Ms A] during his visits home to Pakistan in 2012 and 2013 but they spoke on the phone. However, when asked how his [Relative 1] found out about his relationship with [Ms A] (which, he claims, was the reason he waited until 2014 to take out an FIR against the applicant), he speculated that [Relative 1’s] ‘people’ may have seen him when he met up with her during his visit to Pakistan in 2013. However, his evidence to the Tribunal was that he did not see [Ms A] and had no contact with her during visits to Pakistan in both 2012 and 2013.
f)The applicant’s evidence was that after he had arrived in Australia he had not received any threats from [Relative 1]. The applicant returned home to Pakistan from Australia in 2012 and 2013, which indicates that he did not have a fear of serious harm at those times. The applicant’s evidence was that he returned to Pakistan in 2012 because he was home sick and wanted to see his family. The applicant’s evidence during the hearing was that he did not receive any threats from [Relative 1] or any member of the Jamaat-e-Islami during the visit, nor did he receive any threats upon his return to Australia. In addition, despite stating in his statement that he returned to Pakistan to see [Ms A],[37] his evidence to the Tribunal was that he had no contact with her during his return to Pakistan in 2012.
g)The applicant’s evidence was that he returned to Pakistan in 2013 because his father, who was diabetic, was sick and in hospital. The applicant did not provide any evidence of this father’s medical condition. Even if the Tribunal accepts the applicant’s claims that his father was sick it is of the view that the applicant would not have returned to Pakistan at this time if there was a real chance that he would be seriously harmed as claimed. The applicant did not receive any threats but claimed that he was hiding from [Relative 1] during the visit. Once again the applicant’s evidence was that he had no contact with [Ms A].
h)The applicant’s oral evidence about the circumstances of [Ms A’s] death was vague and at times inconsistent and implausible. For instance he knew when she was allegedly shot and by whom ([Relative 1]), but was unable provide any details or circumstances surrounding her death. The applicant claimed that because he was in Australia and was not aware of the circumstances of her death. He said that he was told of her death by his brother. The Tribunal accepts the applicant was in Australia at the time that he claims [Ms A] was killed. However if his fiancé had been killed as claimed, the Tribunal would have expected him to find out as much as possible about the incident. His limited knowledge about the particulars of [Ms A’s] death at hearing is in contrast to [Ms A] in the street and shot her dead on her way back home from the market.[38] The applicant’s evidence to the Tribunal was that was that the last contact he had with [Relative 1] was when he was attacked in 2008. However, in his written statement [39]the applicant stated that after [Relative 1] had killed [Ms A] ‘he rang me over the phone and informed me and abused me a lot.’
i)The Tribunal is also concerned as to the applicant’s failure to explain how or when [Relative 1] found out about his relationship with [Ms A] in the first place and that she was of the Ahmadiyya faith. The applicant did not provide any eveidece to the Tribunal which indicated that [Relative 1] knew of his relationship with [Ms A] or that she was in fact Ahmadi. In his statement he claims that [Relative 1] discovered that [Ms A] was Ahmadi on his visit in 2013, but does not explain how he came to know of her faith. This is particularly problematic as his evidence to the Tribunal was that during his visit in 2013 he did not have any contact with [Relative 1]. The applicant speculated at the hearing that it may have been through members of the Jamaat-e-Islami, however he was unable to explain how they knew or even how [Relative 1] knew that [Ms A] was Ahmadi.
j)The applicant provided two sets of written claims to the Department that are very different (as detailed above): the first (in his visa application) focus primarily on leaving Pakistan to obtain an education and that he and his family would face harm due to perceived wealth given he has been overseas for a long time. He stated that he and his family have received threats but did not specify from whom and in relation to what matters. He made no mention of having a relationship with an Ahmadi woman, of exploring conversion, and experiencing threats as a result. Nor did he mention that his [Relative 1] murdered his fiancé as later claimed, which the Tribunal considers is a significant omission. In his oral evidence at the previous Tribunal hearing the applicant said that in his initial application he mentioned that things were happening to his family and they were harassed by other people. He also explained that at that time his story was not ready. It was submitted that although [Ms A’s] death occurred before the visa application, the applicant did not know until after he had made the application. At the hearing the applicant did not provide any specific evidence in relation to his initial claims but maintained his claims as detailed in his application. In any event, if [Ms A’s] death was not until after he lodged his application for a protection visa on 2 May 2014, the Tribunal would have expected that rather than referring in vague term of his family being harassed, he would have specifically referred to his relationship with her and his claimed exploration of the Ahmadi religion, and the alleged problems that resulted from the applicant’s [Relative 1] and members of the Jamaat-e-Islami including threatening phone calls.
k)Further, the applicant’s failure to mention his central claims regarding alleged problems stemming from his relationship with an Ahmadi woman in Pakistan in previous dealings with the Department[40] and Tribunal[41] after the alleged problems began casts doubts on the veracity of his core protection claims. At hearing the applicant said because he came to Australia on a student visa, and wanted to continue his studies, he wanted to get back his student visa at that time and as such did not make an application for a protection visa. It was submitted that he was also not aware at that time that he could make a protection visa application or that he had the presence of mind or guidance to raise these issues at that time. This Tribunal does not accept this explanation. It would expect that a person in fear of being seriously harmed upon returning to their country would make an application for protection visa at the earliest possible time rather than persist with maintaining a student visa which is temporary in nature and at the expiry of which a person must return to their country of origin.
l)The applicant’s oral evidence at hearing that his family home was burnt down along with other houses belonging to Ahmadis in [Colony 1] in Gujranwala was vague and unconvincing. In fact it appears to be contrary to the country information which suggests that violence against Ahmadis by militant groups has been relatively rare in recent years. This partly reflects a general improvement in the security situation, the relatively high socio-economic status of many Ahmadis, and the difficulty of identifying Ahmadi solely from their appearance. [42]The applicant did not provide any evidence as to when this occurred, by whom, apart from saying it was members of his [Relative 1's] group, or why their house was burnt if Ahmadis were targeted, except to speculate that it was because he had a link with Ahmadis. The applicant claims in his statement that as a result of his contact with the Ahmadi family, the police detained his whole family and tortured them including breaking his sisters finger. The applicant did not provide any supporting evidence in relation to his family being detained and tortured by police as claimed. In fact the applicant’s claim as to his family torture was vague and lacking in any details at why his family were targeted as claimed.
m)The timing and chronology of alleged events in Pakistan in some respects does not make sense. For instance, the applicant told the Tribunal that he downloaded Ahmadiyya reading material in 2008, on advice from [Ms A’s] father, and that it was this material that his father had burnt and thrown in the bin five years later, in 2013, allegedly witnessed by two imams on the morning of [April] 2013 according to information contained in the FIR dated [April] 2013 provided by the applicant.[43] It is unclear to the Tribunal why the applicant’s father would have kept Ahmadiyya material for five years, particularly given his claims that it was dangerous to do so.
[37] Applicant’s statement Department File [source deleted] @ f 153.
[38] Applicant’s statement Department File [source deleted] @ f 152.
[39] ibid
[40] Specifically in his request for Ministerial Intervention dated 17 July 2013 and during an interview with a Status Resolution Officer on 6 August 2013, as set out in the delegate’s decision record, a copy of which the applicant provided to the Tribunal on review.
[41] At a hearing at the Tribunal (differently constituted) on 23 April 2013 in relation to a review of a decision to refuse to grant him a student visa, as recorded in the MRT decision record dated 12 June 2013 (MRT No. 1109348).
[42] DFAT Report @ 38.
[43] First Information Report dated [April] 2013; Department File [source deleted] @ f.149
81.At hearing to explain some of these concerns, the applicant said that he felt responsible for [Ms A’s] death; he got scared when she was killed; and that he is stressed, self-medicated, and has trouble sleeping. He claimed that he has trouble with his memory and feels very sad and angry because of [Ms A’s] death. In effect he is broken and damaged by the traumatic experience, which explains why he is vague and not consistent in his evidence. He urged the Tribunal to consider its ‘protocol’[44] regarding vulnerable persons. It was submitted that he applicant has been under a lot of stress and it is difficult for him to talk about [Ms A]; that he has issues with memory and mental health issues related to his own experiences and stemming from her death. The applicant has not provided any medical report in relation to his mental health. While the Tribunal accepts the applicant may have experienced some stress and anxiety as a result of these proceedings, when he appeared before the Tribunal he was lucid and able understand all the questions put to him through the course of the hearing. Accordingly the Tribunal is not satisfied that such anxiety or the fact that he claims to have ‘self-medicated’ explains the fact that he was not able to provide the tribunal with coherent and consistent evidence in support of his claims.
[44] Presumably referring to the Tribunal’s Vulnerability Guidelines
82.As a result, due to the lack of evidence in relation to the death of [Ms A] and the vague and inconsistent nature of his evidence as detailed above, the Tribunal does not accept that he was in a relationship with [Ms A] or that she was killed by his[Relative 1] as claimed. As such it does not accept that the applicant experienced trauma which has affected his ability to give evidence to the Tribunal.
83.Accordingly, the Tribunal does not accept the applicant’s claims to have had a relationship with an Ahmadi woman in Pakistan and to have considered converting to the Ahmadiyya religion, including by researching the religion and reading books and other material. It follows that it does not accept that he was ever threatened – directly or indirectly via his parents – on this basis by his [Relative 1], members of the Jamaat-e-Islamia or anyone else in the past in Pakistan or that he was harmed, including having his arm broken by [Relative 1]. The Tribunal also does not accept that the applicant’s [Relative 1] killed [Ms A] as claimed. Nor does the Tribunal accept that any members of the applicant’s family have been threatened or harmed by the applicant’s [Relative 1], the police, members of extremist groups or anyone else as a result.
84.The Tribunal also does not accept that the applicant’s [Relative 1] lodged an FIR against him, accusing him of blasphemy, or that his [Relative 1] lodged an FIR against his father. It follows that the Tribunal does not accept that the applicant’s father was arrested, jailed and released on bail in relation to this matter (or any matter), that his sister was tortured by police, or that their family home was burnt down in a targeted attack against Ahmadi homes in Gujranwala as claimed.
85.The Tribunal is willing to accept that the applicant’s [Relative 1] and father may be involved with Jamaat-e-Islami and [Relative 1] with [Organisation 1] as claimed in his oral evidence to the Tribunal and written statement to the Department. And possibly that [Relative 1] was the chairman of the committee formed to “hunt the Ahmadi families” as claimed in his written statement to the Department. However given its finding above that the applicant was not in a relationship with an Ahmadi woman and was not considering converting, the Tribunal does not accept that he was imputed with a pro-Ahmadi opinion and finds that he does not face a real chance of serious harm by [Relative 1] or members of these or any other groups or political parties on return to Pakistan in the reasonably foreseeable future.
86.In reaching this conclusion the Tribunal has had regard to the copies of the FIRs the applicant has provided. The first FIR dated [April] 2013, relates to an application by the applicant’s [Relative 1] on behalf of [Organisation 1]. According to the translated copy provided, it stated, among other things, that his [relative] is in company of Qadianis; preaches Qadianism publicly and abuses Islamic religion; that some Imams saw a pile of burnt papers - Quranic verses - thrown from the applicant’s house and when his father was questioned he admitted that the papers burnt, torn and thrown into litter by his son (the applicant). However this information is inconsistent with the applicant’s oral evidence at hearing that his father was seen burning the papers and throwing them in the bin, not the applicant. For these reasons, when combined with other credibility concerns above and the country information that reports that FIR’s do not constitute evidence that that the events in the FIR actually occurred[45], the Tribunal gives this FIR no weight.
[45] DFAT Report @71
87.At the Tribunal hearing the applicant explained that the second FIR dated [April] 2014 was taken out against him by [Relative 1] whilst he was in Australia. He said that [Relative 1] accused him of having a connection with the Ahmadi group and representing Islam in a bad way. His oral evidence about this matter was vague and lacking in detail, for instance he was unable to explain the timing or context or explain exactly why it was taken out then. He merely indicated that [Relative 1] was prepared to make up the FIR to punish him for his actions. The translation of the FIR indicates that the applicant was involved in non-Muslim activities and absconded from the country; that the applicant had called his [Relative 1] on that day from Australia and used abusive language against prophet Muhammad and Islam; and that [Relative 1] requested a blasphemy case be registered against the applicant for crimes under “295/13/34 PPC”. For these reasons, when combined with other credibility concerns above and the relevant country information in relation to FIR’s,[46] the Tribunal gives no weight to the FIR.
[46] ibid
88.The Tribunal notes that in his protection visa application the applicant claimed to fear he will be harmed because of his perceived wealth given he had lived abroad for a long time on return to Pakistan. He made no mention of this alleged fear at the Tribunal hearing, and the Tribunal notes that he has not claimed that he experienced any problems on this basis from anyone when he visited Pakistan in 2012 and 2013. The Tribunal accepts that he may be perceived to be wealthy or come from a wealthy family because he lived (and studied) abroad however there is no information before the Tribunal to indicate that he would face a real chance of serious harm on this basis on return. In addition there is no country information which suggests that he would be subjected to systematic and discriminatory harm as a result of any perceived wealth as a result of him having travelled and studied abroad. For these reasons the Tribunal finds remote the chance the applicant would face serious harm on return to Pakistan because of his perceived wealth given he lived abroad for a long time, in the foreseeable future.
89.In his oral submission to the Tribunal the representative argued that although the Tribunal does not have an objective assessment of applicant’s mental health, there are concerns that if the applicant returns to Pakistan with no family support he is vulnerable. As mentioned, given no medical evidence has been provided, the Tribunal does not accept the applicant has serious mental health problems. Even if the Tribunal was satisfied that he does have a mental health problem (which it specifically does not) there is no evidence that the applicant would be denied access to mental health facilities in Pakistan on a systematically or discriminatorily basis. That is, he would be able to access any available mental health facilities on the same basis as other citizens of Pakistan. For reasons above the Tribunal does not accept the applicant’s claims to have been in a relationship with [Ms A], that [Relative 1] killed her, nor that his family members have disowned him as a result. It therefore does not accept that he would have no family support on return to Pakistan, nor that he is particularly vulnerable for any reason.
90.On the evidence before it and for reasons set out above, the Tribunal does not find that the applicant faces a real chance of serious harm from [Relative 1], members of Jamaat-e-Islami or anyone else on account of his actual or imputed Ahmadi religion, his relationship with an Ahmadi woman, any perception of him as a person who is not a good Muslim, because of his intention to convert to the Ahmadi faith, because of his intention to enter into a love marriage, because he has brought dishonour to the family, or any other reason on return to Pakistan now or in the reasonably foreseeable future.
Initial claims.
91.In the applicant’s initial claims for protection he has claimed that ‘his father is involved in politics and other extremist parties are unhappy with his political involvement and his parents fear they will harm him to gain revenge’. He did not elaborate at hearing about this claim or provide any further details and given the limited information about this matter the Tribunal does not accept that his father fears serious harm from extremist parties in Pakistan as claimed initially.
92.Accordingly, the Tribunal finds that the there is no real chance the applicant will suffer serious harm in the event he is returned to Pakistan by reason from his [Relative 1] and members of groups associated with [Relative 1], such as the Jamaat-e-Islami because of his relationship with [Ms A] who followed the Ahmadiyya faith and because of his plans, as a Sunni Muslim, to convert to the Ahmadiyya faith.
93.Therefore, having considered Article 1A(2) of the Convention and s. 91R of the Act alongside the available country information as well as the applicant’s accepted circumstances, the Tribunal finds that there is no a real chance the applicant will suffer serious harm for any convention reason. That is, the Tribunal finds that he does not face a real chance of serious harm, now or into the reasonably foreseeable future, for any reason, and therefore does not have a well-founded fear of persecution.
94.As such, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
95.In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm. In this case, the Tribunal has found that the applicant is a national of Pakistan and the Tribunal therefore finds that Pakistan is the ‘receiving country’ for the purposes of s.5(1).
96.The Tribunal having found that the applicant is a refugee has considered the applicant’s claim under the complementary protection provisions because of events in Pakistan in the past, injuries the applicant suffered, and the extent of the applicant’s [Relative 1’s] power and his connection with the Jamaat-e-Islami and leadership of the group whose main purpose is to find and persecute Ahmadis, who do not have protection under the law in Pakistan. He submitted that the applicant faces a risk of harm as an imputed Ahmadi, because he caused dishonour (to his family) and also because of the outstanding blasphemy charges against him. In his post hearing submission the representative argued that the applicant will face attacks from his [Relative 1] for causing dishonour to the family name and thereby adversely affecting the standing of his conservative family. The applicant advised he fears being mistreated and degraded by his [Relative 1] and his associates.
97.For the reasons set out above, the Tribunal has not accepted the applicant’s claims to have been in a relationship with an Ahmadi woman, to have considered converting to Ahmadiyya, to have been threatened, harmed or otherwise targeted for harm in the past in Pakistan, by [Relative 1], members of the Jamaat-e-Islami or anyone else for these reasons. It has not accepted that [Relative 1] killed his fiancé or has lodged a blasphemy case against him. Nor has it accepted there to be a real chance that the applicant will suffer serious harm on the basis of his actual or imputed Ahmadi religion now or in the reasonably foreseeable future. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[47] For the same reasons the Tribunal does not accept that there is a real risk the applicant will suffer significant harm for any reason relating to his imputed Ahmadi faith, his relationship with an Ahmadi woman, or any perception of him as a person who is not a good Muslim, as a necessary and foreseeable consequence of the applicant’s being removed from Australia to Pakistan. The Tribunal accepts that as the applicant has lived abroad, he may be perceived as having some money, but it does not accept there is a real risk that he will suffer significant harm on this basis if he returns to Pakistan, noting that there is no information before the Tribunal indicating that such persons are targeted for significant harm in Pakistan. Nor does the Tribunal accept there is a real risk the applicant will suffer significant harm for any other reason as a necessary and foreseeable consequence of his removal to Pakistan. Therefore the applicant does not satisfy the criterion set out in s.36(2)(aa).
[47] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].
98.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 the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
99.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).
100.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
101.The Tribunal affirms the decision not to grant the applicant a Protection visa
Jason Pennell
Senior Member
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Appeal
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