1900850 (Refugee)

1900850 (Refugee) [2019] AATA 3921 (1 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1900850
COUNTRY OF REFERENCE:                  Pakistan
MEMBER:Nora Lamont
DATE:1 March 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 01 March 2019 at 10:15am
CATCHWORDS
REFUGEE – protection visa – Pakistan – violent father – engaged in fights – no experience of harm – delay in applying for protection – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 424AA, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 10 January 2019 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Pakistan, applied for the visa on 17 December 2018.
The applicant appeared before the Tribunal on 28 February 2019 to give evidence and present arguments.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
According to the information on the Departmental file and confirmed at the Tribunal hearing, the applicant was born on [date] in Multan Punjab Pakistan. He has never been married.
The applicant has a long immigration history as detailed in the delegates decision as follows:[1]
[1] AAT Folio page 15
·[Day]/9/2010 Arrived in Australia on a [Student] visa
·02/12/2012 [Student] visa ceased
·31/12/2012 Bridging visa D granted (ceased 08/01/2013)
·31/12/2012 [Student] visa application lodged. Associated Bridging visa C granted
·10/01/2013 [Student] visa application lodged refused
·11/12/2013 Refusal of [student] visa application affirmed by the MRT
·17/01/2014 Associated Bridging visa C ceased
·18/01/2014 Applicant became an unlawful non-citizen
·04/12/2018 Applicant located and placed in immigration detention
·17/12/2018 Permanent Protection (subclass 866) visa application lodged. Bridging visa E application refused on 20/12/2018
The applicant presented his initial claims for protection in his visa application and are accurately summarised by the delegate as follows: [2]
·The applicant observed his father fighting with his brothers and other local people throughout his life.
·In 2009, the applicant’s father fought with people in the next street and the applicant became involved.
·The applicant’s father did not want him to become further involved with the fighting so he sent the applicant to Australia on a student visa.
·The applicant did not experience harm in Pakistan.
·The applicant’s father did not allow him to move elsewhere in Pakistan.
·The applicant’s father wants the applicant to return to Pakistan but the applicant does not want to return to the old fashioned ways. He would have no choice but to stand with his father and fight.
·The authorities would not protect the applicant because although his father is brave, he is not as powerful as others.
·The applicant cannot relocate in Pakistan because ‘dad wouldn’t go from there’.
[2] AAT Folio page 15
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J (1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to his receiving country of Pakistan, there is a real risk that he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant travelled to Australia on a valid Pakistan passport and states that he is a national of Pakistan. The delegate had no concerns about the applicant’s identity. Therefore the Tribunal has assessed the applicant’s claims against Pakistan as his country of nationality and receiving country.
Tribunal Hearing
At the Tribunal hearing the applicant said he grew up in Multan, he has a [number of siblings] and completed year [number] at school. After high school he enrolled in a couple courses but did not complete them. His father had [number] shops and he worked for his father in the shop. When he arrived in Australia he was enrolled in a [specified] course but he did not like it and after three days he started working in [Occupation 1]. He then tried to get into a different course but he could not get into.
He wanted to do [a different] course for [specified discipline] but his application was refused. He appealed for review at the MRT and that decision was affirmed. In 2012 he began [Occupation 2] and worked there until 2015. From 2015 until 2018 he did not have steady employment and he was doing some casual work and living with a friend in [Suburb 1]. He did not want to go back to Pakistan. The applicant said during this time he was doing drugs.
In December 2018 he was hungry and had not eaten for four days so he went to the police station looking for help. It was then when he was placed in immigration detention. The applicant said that he also was caught driving a car with stolen plates, and that he had been to court over owing [$amount] in tolls. He said that the latest bill payment he had seen was for $[amount].
The applicant stated that his dad was always fighting because he used alcohol and drugs, He is older now but he can’t control the drugs and he forgets. He gets violent and angry. The applicant said his father is the youngest in his family and he cannot be controlled by anyone. The applicant said his father was violent towards him and his younger brother but not towards his mother or sister.
The applicant talked about the incident in 2009 and explained that in his home area people would sit out on their front fences at night and talk, but his father did not approve of this and he told them to get off the fence. There were about 10 people and he was asleep when his younger brother woke him up and told him that his father was in a fight. He got involved in the fight and there was stabbing with broken bottles. No one was killed.
After the fight the applicant said that his father wanted him to come to Australia but he did not want to come. However, the applicant thought he could make some money in Australia and he started sending money back to his family. He sent his father a lot of money and his father bought plots of land and gold for his mother.
While he was in Australia the applicant said that his father made more enemies and his father was in a serious fight and received a head injury. This occurred around 18 months ago. He doesn’t have a long term memory now. After his father’s injury his father lost a lot of his savings and the land that he had bought. He used to have [number] shops and a house but now he only has one shop with a house above it. His father’s friend took all of his stuff form him the house, the plots, the shops. The applicant said that his father tried to stop it but his friend was politically connected to [a senior official] and when he went to the police but they are easily bribed and nothing was done.
The Tribunal asked the applicant if it was true that he said he did not experience harm in Pakistan and he said that he did not experience any harm. When asked if he could move to another area in Pakistan the applicant said that his mother would never leave and that he would have to go home to live as his father would not let them move.
The applicant said his father was old fashioned and he can’t cope with anything. The applicant said he cannot control his father and he fears that when he goes back he will start a fight and he won’t be able to stop him and it won’t be a good life.
The applicant said that he would like to live in Medina and take his mother as she has never been there. The applicant said that it wasn’t his decision to come to Australia but it is his decision to live here a long time.
424AA
The Tribunal put to the applicant some adverse information it had about the applicant’s migration history and the period of almost five years when he was unlawful. The Tribunal put to the applicant that he was unlawful for a period of almost five years during which time he made no attempt to regulate his status at all. It was not until he was placed in immigration detention that he applied for a protection visa. This is relevant as it leads the Tribunal to believe that the applicant only made protection claims as a last attempt to stay in the country. The applicant was in Australia for nine years before applying or a protection visa.
The Tribunal explained that this information casts doubt on the genuiness of his claims to fear persecution and that such a delay undermines his credibility. The Tribunal invited the applicant to comment or respond to the information and gave the applicant the opportunity to respond or comment, but if he wished he could request more time and the Tribunal would consider this.
The applicant said he would respond. He said that when he appeared before the MRT he tried to explain his situation but the member said she was sorry but there was not anything she could do for him.
Credibility
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
‘Care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted’.
The Tribunal also accepts that 'if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt'. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
‘The benefit of the doubt should, however, 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’.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers.
The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)
Findings
The Tribunal accepts that the applicant was born in Pakistan in [year] as claimed. It also accepts that the applicant has [siblings] and parents in Multan Pakistan. The Tribunal accepts that the applicant completed year [number] and then tried various courses both in Pakistan and Australia but never completed any of them.
However the Tribunal has serious credibility concerns about the claims put by the applicant in his written claims and elaborated at the Tribunal hearing.
The Tribunal accepts that the applicant’s father drinks and takes drugs and that the applicant’s father fights with his family and with the neighbours. However, despite this the applicant has not claimed harm in the past in Pakistan due to his father or for any other reason. Further, his father has suffered a brain injury and is according to the applicant cannot remember things and is weak. This counteracts the applicant’s concerns expressed that if he is returned to Pakistan he will have to fight with his father. It appears from the applicant’s own evidence that his father has lost not only much of his property but also his ability to continue to fight. Therefore, the Tribunal does accept that if the applicant returns to Pakistan his father’s combative nature will escalate or that the applicant will be involved in fights within the neighbourhood or with his father’s family.
The applicant in his written claims said that he cannot move as his father would not. During the hearing the applicant said that he would like to move to Medina in Saudi Arabia as his mother would like it, and he could live there. The applicant is almost [age] years old and has been living in Australia and for the most part he has been able to survive and hold down jobs. The Tribunal finds the applicant will not have trouble finding work or finding a place to live.
Further, the applicant has been living apart from his family for nine years and away from the fighting that had occurred in his home area with his father. The Tribunal finds that the applicant who is now almost [age] years old could return and not engage in his father’s fighting if his father is well enough to continue that lifestyle after his serious injury. The applicant’s own brother has not been involved in his father’s fighting so there is no reason why the applicant needs to engage in this behavior. The applicant himself recounted that he was only involved in one instance and he was woken by his brother, his father did not invite him nor did his father encourage him to participate.
The Tribunal put to the applicant his nine year delay in applying for protection under 424AA of the Migration Act as the Tribunal has drawn an adverse inference from the nine year delay in applying for protection. It is a reasonable expectation that a person who has a genuine fear and believes that he will suffer serious or significant harm upon return to his home country would apply for a protection visa as soon as practicable not apply for a second student visa, then remain unlawful for almost five years before applying for protection. For these reasons the Tribunal does not find the applicant to be credible.
The Tribunal does not accept that any challenge the applicant may face on return to Pakistan will amount to a real chance of serious harm in the reasonably foreseeable future or a real risk of significant harm, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan.
Given these findings the Tribunal does not accept that if the applicant returns to Pakistan he will face a real chance of persecution from his father or anyone associated with his father or from the people his father fights with. The Tribunal finds that the applicant does not face a well-founded fear of persecution as per s.5J(1) of the Act and therefore the applicant is not a refugee within the meaning of s.5H(1).
Nor does the Tribunal accept that there are grounds for believing that as a necessary and foreseeable consequence of being returned to Pakistan, there is a real risk that the applicant will suffer significant harm from his father or his associates or anyone connected to his father’s fighting. The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in s.36(2)(aa).
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Nora Lamont
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:    For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:    For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)    the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2019] AATA 3921

1 March 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Appeal