1926472 (Refugee)
[2025] ARTA 1101
•22 January 2025
1926472 (REFUGEE) [2025] ARTA 1101 (22 JANUARY 2025)
DECISION AND
REASONS FOR DECISION
Representative: Mr Mahalingam Sutharshan (MARN: 0961664)
Respondent:Minister for Immigration and Multicultural Affairs
Tribunal Number: 1926472
Tribunal:General Member P Millar
Date:22 January 2025
Place:Sydney
Decision:The Tribunal affirms the decisions under review.
Statement made on 22 January 2025 at 2:51pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – family land dispute – relatives killed – applicant named in police report and pressured and threatened by other relatives – father’s role in negotiating resolution – inconsistent claims and evidence – authenticity of police report – returns after studying in another country – delay in applying for protection – members of family unit wife and child – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 359A
Migration Regulations 1994 (Cth), Schedule 2CASE
MIAC v SZQRB (2013) 210 FCR 505Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 August 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act). The first named applicant (“the applicant”) is a [Age] year old male. The second named applicant is his wife (“the applicant's wife”) and the third named applicant is their child. The applicants, who the Tribunal finds are nationals of Pakistan, applied for the visas on 15 December 2017.[1] The applicants appeared before the Tribunal on 13 November 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu (Pakistan) and English languages. At times the applicant elected to communicate with the Tribunal directly in English. The Tribunal is satisfied that the applicant participated effectively in the hearing. The applicants were represented in relation to the review. The representative attended the Tribunal hearing.
[1] The Tribunal’s findings on citizenship are based on the Pakistan passports of the first and second named applicants produced at the hearing. The Tribunal’s finding on citizenship with respect to the third named applicant is based on that person's parents being Pakistan citizens and therefore citizenship occurring through descent (Pakistan Citizenship Act 1951, Government of Pakistan, 18 April 2000, Section 5).
On 14 October 2024, the AAT became the Administrative Review Tribunal (“the Tribunal”). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (“the Transitional Act”), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
Criteria for 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 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
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 themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
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.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (“DFAT”) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.[2]
[2] Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan 25 January 2022.
CONSIDERATION OF CLAIMS AND EVIDENCE
According to the applicant’s evidence to the Department and the Tribunal, the applicant claims protection on the ground that if he returns to Pakistan, he will be harmed by members of related families and Pakistan authorities due to a dispute over land.[3] The Tribunal holds concerns about the applicant’s credibility. Before discussing those concerns, the Tribunal sets out the evidence given by the applicant at the hearing in support of his protection claims.
The applicant's account of events
[3] The applicant's evidence to the Department and the Tribunal comprises his protection visa application form; his statutory declaration made on 14 December 2017; his evidence when interviewed by the delegate for which there is an audio recording and to which the Tribunal has listened; his statement dated 6 November 2024 and his evidence at the Tribunal hearing. The Department file contains a “disclosure checklist” stating that there was information that fell within s 438(1)(a) and s 438(1)(b) of the Act but no actual documents were specified and no certificates of non-disclosure were issued.
To the Tribunal, the applicant gave the following account of events on which his protection claims are based. The applicant comes from a village in Faisalabad. In the [Decade] a dispute arose over 50 acres of land in that village. The dispute was between the family of the applicant’s father’s sister (“the paternal aunt”) and the family of [Mr A] (“the [A] family”) the head of which was the brother of the paternal aunt’s husband. Both families were of the same caste, including the applicant’s father. At that time the dispute between the two family groups was verbal. Then in 2007 the paternal aunt’s son [Mr B – Given name] (“the applicant’s cousin [Mr B]”) murdered a member of the [A] family. The person killed had been a main character in the dispute.
Following this incident, the applicant’s cousin [Mr B], the paternal aunt and their family left the native village. The applicant heard that the family had gone to live in Karachi. The [A] family were influential, close to the Pakistan Muslim League (N) political party including a local member of parliament from that party. They went to the police and reported the murder. The police then issued a First Information Report (“FIR”) naming the applicant’s cousin [Mr B] and mentioning unknown people as also involved. After this incident the police came and questioned the applicant’s father as they looked for the applicant's cousin [Mr B].
After a few months, what the applicant referred to as “pressure” on the applicant’s father by police increased and they took away some animals the applicant's father had on nearby land. This action by the police was driven by the [A] family. In 2008 the applicant's cousin [Mr B] murdered another member of the [A] family. That family became angrier and had the police issue another FIR in relation to that killing naming the applicant's father as one of the persons responsible. They told the applicant's father that he had been helping the applicant’s cousin [Mr B].
The applicant’s father and mother then left the native village and stayed in the district of Lahore. The applicant's parents both worked as [occupation]s at [workplaces] close to the native village. Following the second murder in 2008 and on moving to live in Lahore, they both ceased their work. After one year, the applicant’s father's name was removed from the FIR issued for the 2008 murder. This was because the [A] family said that if he promised to help find the applicant’s cousin [Mr B] his name would be erased. The applicant's father agreed with that. He returned to his work at the [workplace] and his mother returned to her [workplace] where she [worked]. In that year before his return, police had been going to the [workplace] looking for him as there were lots of spies in that area.
After his name was removed from the FIR, police still came to the applicant's father and gave him a “hard time”. In that respect they would keep coming and if they met him they would say that although his name was removed from the FIR, whenever they could not find anyone they would come and see him and his family. Through this action by the police, the [A] family continued to apply pressure on the applicant’s father. Then, “the issue went to a different direction”. In this respect, a few years after the murder in 2008, police arrested and imprisoned the father of the applicant's cousin [Mr B]. When this happened, the applicant's cousin [Mr B] telephoned the applicant's father and asked him for money including to obtain bail for [Mr B]’s father. The applicant’s father refused that request and the applicant’s cousin [Mr B] said that he could do to everyone what he had done to the members of the [A] family. The applicant understood this to be a threat from his cousin [Mr B] to harm his family.
The applicant’s cousin [Mr B] would make these threatening telephone calls every week. Over time the applicant’s cousin [Mr B] would call other people in the native village saying that the applicant’s father was of no help and if he got information about the applicant’s father's sons, he would harm them. The applicant's cousin [Mr B] still makes these threats to the applicant's father. After the applicant's father's name was removed from the FIR for the second murder in 2008, because he did not give information to them, the [A] family then said that although they could not put his name back on the FIR, they knew that his sons were outside Pakistan. They said that if his sons returned their names would be put onto the FIR and they would catch them. These threats were made by the [A] family to elders of the native village who passed them on to the applicant’s father.
These threats arose in late 2017 in response to the murder of another member of the [A] family by the applicant's cousin [Mr B]. Those threats were made because the applicant's father had not helped them find the applicant's cousin [Mr B]. The police continued to pressure the applicant’s father, this being done by unofficial visits to the native village where they would look for his father. Also, after this murder in late 2017, threats made by the applicant's cousin [Mr B] increased as he believed that he could take land in the name of the applicant's father. This included threats to say that the applicant and his brothers were the next targets.
At a final stage of his evidence the applicant said that he was afraid to return to Pakistan because he and his family will be threatened, the police will catch and imprison him and his family and his cousin [Mr B] and the [A] family would kill him and his family.
Credibility concerns
Inconsistent evidence about the involvement of the applicant’s father in the dispute
To the delegate, the applicant gave evidence about a dispute over land between his paternal aunt with her son [Mr B] and the [A] family. He said that, prior to the first murder that took place in 2007, a number of times there were disputes between the applicant’s paternal aunt and the [A] family and the applicant’s father would get involved to try and resolve them. Because of that involvement the [A] family looked down on him and said he should not be involved as such. The applicant said that after the first murder and because his father had been involved in the dispute, the [A] family told him to find the applicant's cousin [Mr B]. To the delegate, the applicant again said that his father was involved in these disputes as he would go and try to resolve and settle problems. He said that this was due to his father being the brother of the paternal aunt and being educated, unlike his father’s other brothers.
In contrast to this evidence, when asked by the Tribunal what role his father played in this dispute prior to the 2007 murder, the applicant said that his father was not involved in the dispute. When asked if he played any role in the dispute, the applicant said that the Panchayat, made up of village elders including the applicant’s father, would meet and decide what was to be done. For this dispute the Panchayat would speak to the two families involved as a group. In essence, according to his evidence to the Tribunal, the applicant's father was not personally involved in the land dispute beyond meeting with other village elders. To the delegate, the applicant's father was personally involved in the dispute by going to the parties and trying to resolve the quarrels that arose.
The Tribunal regards that evidence as inconsistent and this was put to the applicant pursuant to s 359A of the Act by letter dated 19 November 2024. In response, in a statement dated 3 December 2024, the applicant denied any inconsistency in his evidence on this issue. He submitted that he told the delegate that his father was asked to resolve the dispute through negotiation. He claimed that this is exactly what he told the Tribunal. This is because he told the Tribunal that his father would engage in negotiation as a member of the Panchayat. He claimed that as a relative of the applicant’s cousin [Mr B], it would be reasonable to state that he was involved actively in negotiation. He said that was what he meant when telling the delegate that his father was asked to resolve the dispute. He claimed that he said the same thing to the Tribunal; that is that his father was asked to resolve the dispute because his father was a member of the Panchayat and a relative of the applicant's cousin [Mr B].
In this recent statement, the applicant claims that his father was actively involved in negotiation in the dispute through his membership of the Panchayat and as the relative of the applicant’s cousin [Mr B]. However, to the delegate, the applicant only mentioned his father being involved to resolve disputes between the two families in question. To the delegate the applicant did not mention his father's sole role as being a member of a group of village elders referred to as the Panchayat as he claimed to the Tribunal. To the delegate it was his father who was involved in resolution of disputes by himself, but, to the Tribunal, it was his father as a member of a group of village elders who spoke to the families as a group.
Those accounts are inconsistent and, if relating a truthful account, the applicant can be reasonably expected to give consistent evidence about how his father was involved in resolution of the dispute between the two families. His failure to do so casts concern over the credibility of his evidence on which his protection claims are based.
Inconsistent evidence about pressure from the [A] family
The Tribunal asked the applicant what action the [A] family took against the applicant’s father after the murder in 2007. In response, the applicant said that the police came and questioned his father. He said that it was through the action of the police that the [A] family put pressure on his father. The Tribunal has set out above the applicant's evidence about how pressure from the [A] family was inflicted on the applicant’s father from 2007. In essence, the police would come to question the applicant’s father and gave him what the applicant called a “hard time”. After the murder in late 2017 the police continued to try to locate the applicant’s father in the native village. The applicant's evidence was that what he referred to as pressure from that family was imposed through action taken by the police.
In contrast to that account, in his statutory declaration, the applicant said that because of the murder in 2007, the [A] family became angry with the applicant’s cousin [Mr B]'s family and “his relatives from his cousin’s mother's side” which the Tribunal understood to include the applicant’s father. In the declaration the applicant said how, after the killing in 2007, police filed a murder case against his cousin [Mr B] and the [A] family “became angrier and wanted to take revenge against the killing”. The applicant then said (verbatim):
[They] started threatening my father as well. They suspected that my father was the one who was protecting [the applicant’s cousin B] and looking after the murder case”.
In the declaration the applicant went on to state that his father's name was in an FIR related to one of the murders and how, following the murder in August 2017, the [A] family wanted revenge by killing any members of “[his cousin Mr B’s] mother’s side”, believing that “we” protect them by providing various support. The applicant’s statutory declaration is detailed and yet he made no mention of his account to the Tribunal that in fact it was the police acting for that family who pressured his father. In particular, in his declaration, he said that in response to the 2007 murder, the [A] family threatened his father, whereas to the Tribunal he said their pressure was not direct but rather imposed through the police.
The Tribunal acknowledges that in his declaration the applicant did say police filed cases in relation to the murders by the applicant’s cousin [Mr B]. What concerns the Tribunal is that his declaration did not contain the claims he put to the Tribunal that the police pressured his father by either going to him and questioning him or, at a later stage, looking for him in his native village. When the Tribunal put this discrepancy to the applicant, the applicant repeated his evidence at the hearing that the [A] family applied pressure through the police and, in addition, “back channels" meaning village elders were spoken to and threats were made through them to the applicant’s father. Through those elders the [A] family referred to the applicant’s father getting his children to study, stating they would see how they go and then put them in jail as well.
Although the applicant makes those claims in his statutory declaration, he made no mention of the police putting pressure on his father on behalf of the [A] family as he described that to the Tribunal. According to his declaration, threats, harassment or pressure from the [A] family were made directly by them. That is inconsistent with the account he gave the Tribunal about that matter. That reflects adversely on the applicant’s credibility because, if relating a truthful account, the applicant should be able to give a consistent account as to from whom and how pressure was put on his father in relation to the murders that intensified the dispute between the two families and increased the risk of harm for the applicant and his family.
Inconsistent evidence about the number of murders
In his evidence at the hearing the applicant gave an account of murders carried out by his cousin [Mr B] in relation to the dispute over land in the native village. The applicant gave evidence about murders taking place in 2007, 2008 and 2017. After giving that evidence, the Tribunal asked the applicant how many people his cousin [Mr B] murdered. In response, the applicant said that [Mr B] murdered three people. The Tribunal put to the applicant that in his statutory declaration he said that after the murders in 2007 and 2008, his cousin [Mr B] “again killed another person belonged to the other family named [Mr C] along with his servants”. In his declaration, the applicant said that “during that time" the [A] family was focusing on capturing his cousin [Mr B] and killing him. In his declaration the applicant then said that due to those issues his father had him sent abroad for study to [Country 1].
In response, the applicant said that he did not mention this murder in his evidence to that point because the person [Mr C] was not actually a member of either family in the dispute but, rather, was a bodyguard for one of the two victims in 2007 or 2008. The Tribunal rejects that response because in his declaration the applicant states that the cousin “again” killed another person from “the other family”. He did not state that the person killed was in fact from neither family in this dispute.
Even if that was the case, when asked how many people were murdered by his cousin, the Tribunal could reasonably expect the applicant to state that in total four people were murdered given all murders emerge from the dispute between the two families. It was after he gave evidence about the murder in 2017 that the Tribunal asked him how many murders did the applicant's cousin [Mr B] commit. His inconsistent evidence on that issue reflects adversely on his credibility.
Inconsistent evidence related to the FIR issued in 2008
In support of his claims, the applicant submitted to the Department a copy of the FIR that he claims was issued by the police in 2008 following the second murder committed by the applicant's cousin [Mr B]. The Tribunal put to the applicant country information to the effect that false documents are prevalent in Pakistan and that includes documents issued by the police. In this respect, DFAT stated:
“Document fraud is widespread in Pakistan, other than for identity documents issued by NADRA, which are generally reliable. CNICs, SNICs and passports contain security features which have reduced the incidence of document fraud. Authorities have put in place measures to combat the fraudulent issuance of documents and can cancel fraudulent CNICs.
Due to the relative ease in acquiring fraudulently obtained genuine documents, such documents are common in Pakistan. Genuine documents such as CNICs and passports can be obtained with fraudulently altered or counterfeit feeder documents. Fraudulent documents in Pakistan can include, but are not limited to, academic degrees and transcripts, bank statements, agreements, references, and ownership deeds.”[4]
[4] See Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan 25 January 2022 at 5.52, 5.53.
With respect to FIRs, DFAT stated:
“FIRs (First Information Reports, an initial police record of a complaint or reported crime) use standard forms with the relevant information written in by hand and are relatively easy to counterfeit. Reports exist of police accepting bribes to verify fraudulent FIRs. DFAT does not consider the existence of an FIR as conclusive evidence the events described in the FIR actually occurred.”[5]
[5] See Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan 25 January 2022 at 5.54.
In response, the applicant said that the FIR is part of the record of the police who were still trying to catch his cousin [Mr B]. The applicant then said that he got help from the police to obtain this FIR because that document contained his father’s name. As stated above, to the Tribunal, the applicant said that following the murder in 2008 the FIR was issued by police and it named the applicant's father as being a party to that murder. To the Tribunal he said that it was one year later when the applicant's father's name was removed from that FIR. The Tribunal put to the applicant that according to the English translation of this FIR his father was not named in that document. This concerned the Tribunal because the document is dated [January] 2008 which is when the Tribunal understands this second murder took place.
In response, the applicant said that his father’s name should be in that document. He then examined the FIR in Urdu and said that the reference to an unidentified person on a motorcycle, said to have hit the victim, was, in effect, a reference to his father. The Tribunal asked the applicant why, if this was a reference to his father, his father was not actually named in the document. In response, the applicant said that in the FIR they “put unknown people a lot”. He then said that this FIR was the first one, an initial FIR where the “unknown person” is mentioned and his father’s name was then added.
The applicant then said that, if necessary, he would have the police produce an FIR where his father was specifically named. The Tribunal again asked the applicant why this FIR he produced did not contain his father's name. In response, the applicant said that in this FIR they have written “unknown people” and when his father did not help them, they had his name put into that document. The Tribunal then put to the applicant that in his statutory declaration, after referring to the first murder in 2007 and the second murder in 2008, he said (Verbatim):
“When the [A] family could not find my cousin [Mr B] they lodged a FIR which included many people's name including my father's name when the first incident happened. However latter they removed my father's name.”
The Tribunal put to the applicant that according to that evidence his father was named in an FIR in relation to the first murder and that was inconsistent with his evidence that his father was named in an FIR in relation to the second murder. In response, the applicant said that in the “first one” they wrote “unknown people” and after the “second one” they put in his father’s name, but the FIR was done “originally”. The Tribunal asked the applicant whether for the first murder in 2007 an FIR was issued and his father was named in it. In response, he said that his father was not named in relation to the first murder. In relation to the second murder, his father was not named in the FIR issued initially. Another FIR was subsequently issued in which his father was named. The applicant then said that if the FIR he produced was false he could easily have had his father's name inserted into it.
The Tribunal finds the applicant’s evidence on this issue to be inconsistent. His initial evidence to the Tribunal was that after the second murder an FIR was issued and his father was named in that document. He said that one year later his father's name was removed after offering to assist locating the applicant's cousin [Mr B]. Only when shown the FIR he submitted to the Department did the applicant then change that account to say that in fact his father was not named in the original FIR issued for this murder. If relating a truthful account, the applicant would have put forward that evidence initially when asked what happened after the second murder.
Further, in his statutory declaration the applicant said that his father was named in an FIR issued in relation to the first incident or murder. That is inconsistent with his account to the Tribunal that it was in relation to the second murder that his father was named in an FIR. The applicant did not explain that discrepancy and only repeated his account given to the Tribunal. The naming of his father in an FIR and its subsequent removal, claimed to have occurred some years ago, is nevertheless an important event in the applicant’s account on which his protection claims are based. His inconsistent evidence again casts concern over the credibility of that account.
With his response to the Tribunal’s letter dated 19 November 2024, the applicant provided a further FIR dated 23 February 2008 relating to the second murder by the applicant's cousin in which the applicant’s father is named as a perpetrator and maternal uncle of the applicant's cousin [Mr B]. In this document the complainants state that the applicant's father and others have made the complainants’ lives unbearable and they feel a threat to their lives from the applicant's father and the other accused. The complainants request the police to arrest them.
The production of this document does not resolve the inconsistency in the applicant's evidence about his father being named in an FIR. The applicant has produced this document to attempt to corroborate his new claim that in the original FIR his father was not named and was then named in a subsequent FIR. This does not explain why in his initial evidence the applicant made no claim to the Tribunal that following the second murder, an FIR was issued in which his father was not originally named.
The Tribunal understood from his evidence at the hearing that the FIR he submitted to the Department was meant to be evidence of his father being named as a perpetrator following the second murder. As stated above, that document does not contain his father's name and the applicant conceded that at the hearing. Overall, the applicant’s evidence on this matter is inconsistent and the contents of the FIRs provided do not overcome or resolve that inconsistency. In addition, country information indicates that document fraud is widespread in Pakistan, with FIRs being easy to counterfeit and police accepting bribes to verify fraudulent ones. On all of those grounds, the Tribunal does not give weight to these FIRs produced by the applicant.
Inconsistent evidence about where the applicant and his family lived in Pakistan
In his protection visa application (at page 12), the applicant stated that from January 2013 until June 2013 his residential address was [Village 1, Town] in Faisalabad.[6] To the Tribunal, the applicant said that this was a piece of land on which the family had animals and which was “adjacent” to their native village, [Village 2], where the land in dispute was located. In his application for a Subclass 476 Visa made in December 2015 (at page 11) the applicant declared his wife's place of residence as [Village 1, Town] commencing in July 2005. In “Form 80 personal particulars for assessment including character assessment”, lodged in relation to the visa application made by the applicant, the applicant's wife said that from August 2015 her address was [Village 1, Town] and that was her current address at the time this form was completed which was on 8 January 2016.
[6] In his protection visa application form the applicant said that from June 2013 until June 2016 the applicant lived in [Country 1] and then gave residential addresses in Australia from June 2016.
In a similar form completed by the applicant on 9 January 2016, he stated that from February 2013 until June 2013 his address was [Village 1, Town]. In “Form 1221 additional personal particulars information”, completed by the applicant on 5 March 2016, he declared that he was born in [Village 1, Town] and that was his current residential address. Finally, in a written statement from the applicant’s father dated 6 November 2024, his father said “we lives in [Village 1, Town]”, he inherited lands in his native village and there was a dispute over land leading to various murders by the applicant's cousin [Mr B]. At the end of this statement the applicant’s father again gave a contact phone number and then stated “[Village 1, Town]”. The applicant’s father did not say in his statement that he and the applicant’s mother went to live elsewhere in fear of harm.
This information is relevant because to the Tribunal the applicant said that from the time of the second murder in 2008 his parents stopped living in their native village and went to live in what he called the district of Lahore. The applicant said that he himself did not live in the native village after the first murder in 2007 and instead was at a school in another part of Pakistan and then, after that period, when in Pakistan, he was staying with an aunt in Lahore including with his wife after they married. Pursuant to s 359A of the Act, by letter dated 19 November 2024, the Tribunal put to the applicant that his evidence to the Tribunal and his evidence in these other documents about where he lived in Pakistan was inconsistent.
In his statement dated 3 December 2024 the applicant said that he and his wife married in August 2015 and for his visitor visa application he understood that her address had to be his family address. The statement that from 2005 she was living at that address was incorrect as in that year she was in a [school] in her native city of [City 1]. In that visitor visa application, the applicant meant that her address was his family address from August 2015 when they married. The applicant said that he could provide his wife’s educational certificates confirming that she studied in [City 1] from 2005 until 2015. The Tribunal records that in her evidence at the hearing, the applicant's wife said that she lived in the city of [City 1] prior to her marriage in 2015.
In this statement, the applicant also said that Village 1 and Village 2 were near to each other under which [Town] is the town. The applicant said his family had land in both villages and land adjacent to Village 2 was in dispute. The applicant said that in his visitor visa application he gave his “permanent address” as “[Village 1]” because that was the family’s permanent address and if “the authorities want to verify they can verify [the family’s] permanent address”. The Tribunal understands from this submission that this is also why his wife specified her address as Village 1 from August 2015 (in Form 80 referred to above). The applicant said that a temporary address was for a shorter period of time and, in his culture, a permanent address is provided as his address because it is easy to verify.
The Tribunal is willing to accept the applicant’s submission that with respect to his wife’s place of residence, he meant to state that from 2015, once they married, not 2005, she lived at his family address. The Tribunal is not concerned with evidence about the name of the village in which the applicant and his family had lived and the name of the area of land that was in dispute. What concerns the Tribunal is that in his protection visa application, his application for a visitor visa, the forms mentioned lodged with that visitor visa application, the applicant names Village 1 as his place of residence at the times mentioned in those documents.
The applicant said he named that village because it is a “permanent address” that could be verified by authorities. The Tribunal rejects that response because the different forms make clear that what was required was the address where the applicant was residing. The “Form 1221” required the applicant to specify the address where he currently lived at the time of completing that form. Some of those forms stated that the address where the applicant resided included temporary accommodation (for example Form 80 completed by the applicant and his protection visa application form completed with the assistance of his representative). Given that those forms require the applicant to specify where he lived the Tribunal does not accept that he would give the address of what was his native village where he claimed he was not living.
While he claimed that to do so was easy for authorities to verify and in accordance with his culture, in his protection visa application and the Form 80 completed by him the applicant gave more than one previous residential address for Pakistan.[7] That was in addition to declaring his native village as an address of residence and also claiming he only declared what was a permanent address. On these grounds the Tribunal concludes that the addresses put forward in these different forms are inconsistent with the applicant’s evidence at the hearing that from approximately 2007 he stopped living in his native village. The applicant has not provided a satisfactory explanation for that discrepancy.
[7] In his protection visa application the applicant declared a residential address as [City 2] and not his native village from December 1988 until April 2009 and from December 2007 until April 2009. In that form, the applicant said that from June 2013 until June 2016 he lived in [Country 1] (not in Lahore where he told the Tribunal he lived from January 2016 to June 2016).
A further ground for making that finding is the statement from his father in which, as stated above, he said that he lives in [Town] the town in which the native village exists (be it Village 1 or Village 2) and in which he makes no clear specific claim that he stopped living in that native village from 2008. For all of these reasons, the Tribunal finds the applicant's evidence about where he resided in Pakistan is inconsistent and casts significant concern over the credibility of his claim that he and his family had to stop living in his native village following the murders carried out by his cousin [Mr B].
This finding is confirmed by the mobile evidence given by the applicant at the beginning of the hearing when asked where his parents were living in Pakistan. The applicant said that his parents used to live in the native village but were no longer living there. He then said that they spent time in Lahore and Islamabad, before saying that they were at present living in Islamabad. Further in his evidence, when asked when his parents stopped living in Lahore, he said that they are still living in what he referred to as “Lahore district”. He said that his parents did go a few times to stay in Islamabad for a short period but would then return to Lahore district because spies would say that his father was in “this place”. Further in his evidence, the applicant said that, in fact, his father went to Islamabad only once for a few months after the murder that took place in August 2017. As this demonstrates, his evidence as to where his parents lived was changing and inconsistent.
Concerns related to the behaviour of [Mr B] and the police
It was the applicant’s evidence that from 2007 his cousin [Mr B] went into hiding from the police following which [Mr B]’s father was imprisoned. The applicant said that [Mr B]’s father was still in prison and when the Tribunal asked him if the police were still looking for his cousin [Mr B], the applicant said that was correct. Further in his evidence, the applicant said that his cousin [Mr B] continued to make threats to the applicant’s father and then said that in approximately May 2024 [Mr B] came and stayed for one month on the land the subject of the dispute.
The Tribunal had difficulty accepting that his cousin [Mr B] would be willing to return to the native village where he could be found and remain there for one month on the land the subject of the dispute. The Tribunal also had difficulty accepting that the police who he said were looking for his cousin [Mr B] did not arrest him in that time. When these concerns were put to the applicant, he said that his cousin [Mr B] may have had the backing of a powerful politician and was not scared of the police who perhaps did not work independently. He also said that the police did not come and arrest [Mr B] possibly because his cousin [Mr B] had given money to them.
The Tribunal was not persuaded by these responses because it was the applicant’s evidence that to avoid being apprehended by the police his cousin [Mr B] had fled from the native village after the first murder in 2007. If that was the case, the Tribunal does not believe that he returned to the native village because he was not scared of the police. With respect to his claim that his cousin [Mr B] had the support of a powerful politician, if that was the case, one could ask why he was also in hiding having committed four murders.
His claims about police not working independently and possibly being bribed are not accepted given the applicant’s evidence that the [A] family were powerful in terms of their political connections and had used the police to apply pressure to the applicant’s father through their claimed power and influence. For these reasons, the Tribunal does not accept this claim made by the applicant about the behaviour of his cousin [Mr B] and the police in May 2024 and this is a further concern over the applicant’s credibility.
The Tribunal also needs to add a further concern in relation to the applicant’s claim that following the fourth murder that he said took place in August 2017, the police were coming to the native village looking for the applicant’s father. The Tribunal is concerned that if that was the case, the applicant's father had never actually been apprehended by the police. That concern arises from what was, in effect, the proximity of the applicant’s father to the native village.
The applicant said that his father worked as [an occupation] at a [workplace] rear the native village and only retired from that work four years ago. He said that the location in Lahore where his father went to live after fleeing from the native village in 2008 was only a two hour drive from Faisalabad, the district in which his native village was located. In addition, in his initial evidence, he said that a few times his parents stayed in Islamabad for a short period but would return to Lahore district because spies would say that he was in “this place”. This suggested that his father was under observation and could be found.
With respect to the police going to the native village to find his father, the applicant said his father was not harmed or arrested by police in Lahore because they are different from the police who were going to the native village to find him. He said that had those police known his father was in Lahore they would have gone there to apprehend him. Considering the applicant's claims that the [A] family were highly influential and the police were acting for them, one could reasonably expect that the police in Lahore where the applicant’s father was living would have been notified and approached him. The fact that the applicant's father has not been approached by police in this period reflects poorly on the credibility of the applicant’s claim that the police were looking for his father in the native village.
A further concern held by the Tribunal is the applicant's evidence that his cousin [Mr B], following the imprisonment of his father, made threats to the applicant’s father to harm him and family members. It was the applicant’s evidence that his cousin [Mr B] continued to make those threats, yet he has never actually harmed or even approached the applicant’s father who has remained in Pakistan. As stated above the applicant said that his father lived in the Lahore district only a two hour drive from the native village. The Tribunal recognises that the applicant's cousin [Mr B] has been in hiding and might not have the resources to find the applicant’s father, unlike the police. However, the applicant’s cousin [Mr B] has been able to locate other people who he murdered and elected to spend one month on the land in dispute in the native village. In addition, in his statement dated 6 November 2024, the applicant said that his cousin [Mr B] “has contacts in other parts of Pakistan” and therefore the applicant could not safely live in other areas away from his native village.
Again, the Tribunal had difficulty accepting the credibility of the applicant's claims that his cousin [Mr B] made threats to harm the applicant’s family a “few years” after the second murder in 2008. To date his cousin [Mr B] has not even physically approached the applicant’s father let alone harmed him. When this concern was put to the applicant by the Tribunal, the applicant said his cousin [Mr B] made threats through elders in the native village and stated a young one would be attacked. Further, the applicant said threats increased in intensity from 2016.
Even if it was the case, it remains of concern that the applicant's cousin [Mr B] has never approached the applicant’s father or harmed him. While the threats may have shifted to threats to harm the sons of the applicant’s father, the Tribunal remains concerned that the applicant’s cousin [Mr B] would not have at the least approached the applicant’s father in person to exert pressure on his sons. That remains the case whether or not threats were made directly to the applicant’s father over the telephone as the applicant said they had been made in earlier years or through the elders in the native village.
The delegate held the same concern on this matter. When put to the applicant at the interview with the delegate, the applicant said that the problem started in the [Decade], the first murder was in 2007 and another murder occurred in 2017. The applicant said that therefore there was a gap but these events still happened. That response still does not explain and overcome the concern that for a number of years the applicant’s father lived at the same location being a two hour drive from the applicant’s native village but was never approached by the applicant's cousin [Mr B]. That is not consistent with the applicant's claims that his cousin [Mr B] continually threatened to harm the applicant's father and his family and that reflects adversely on the credibility of that claim.
Concerns related to the applicant returning to Pakistan
When asked where he was living when the murder took place in 2007, the applicant said that before that incident the disputing families would punch and slap each other. This caused his parents to be worried and so for a few months he was sent to Lahore for his safety before then attending college in [City 3] in another part of Pakistan from 2000 until 2008. In his time in Lahore he prepared for an exam to be admitted to that college.
The applicant said that after he completed his study at the school in 2008, he had planned to then undertake study in Lahore. However, following the murder in 2008 and because of the dispute between the families, the applicant’s father told him to go to [Country 1] because both sides of the dispute could harm him in Pakistan. The applicant went to stay with an aunt in Lahore for a few months before leaving Pakistan in April 2008 and living in [Country 1].
When asked why he came to Australia in June 2016, the applicant said that he had a visa and he wanted to secure his life. He said that he could not remain in [Country 1]. The applicant said that he got married in August 2015, but he could not return to Pakistan for any wedding ceremony. When asked why he would not return to Pakistan and instead chose to come to Australia, the applicant said that his father told him the police would arrest him because the [A] family would put his name on the FIR for the murder in 2008. In addition, there was the threat from his cousin [Mr B].
At this point, the Tribunal put to the applicant that when his time to remain in [Country 1] had expired, he chose to return to Pakistan in 2016. In response, the applicant said that he returned to Pakistan because he was in the process of applying for the visa to come to Australia and he wanted to bring his wife with him. He said that he stayed in Lahore for less than one month. To the delegate, on this issue, the applicant gave a similar response adding that his cousin [Mr B] did not know he was in Pakistan at that time. The Tribunal asked the applicant on what occasions did he return to Pakistan through this period that he resided in [Country 1] from 2008 until 2016. In response, the applicant said that he returned to Pakistan to see his parents in 2010, 2013 and 2016.
The applicant said that in 2010 he stayed with an aunt in Lahore. He said that his return journey in 2013 was due to holidays and a semester break from his study in [Country 1]. To the delegate, he said that he returned to Pakistan on this occasion because he could not renew his passport in [Country 1]. For that reason, he went first to Karachi then Lahore, renewed his passport and left Pakistan. The Tribunal asked the applicant whether he feared for his safety returning to Pakistan in 2013. In response, the applicant said that the threat to safety was always there, but it increased after the murder in late 2017 by his cousin. The Tribunal put to the applicant that entries in his passport indicated that he was in Pakistan from January 2016 until June 2016 a period of approximately five months. In response, the applicant said that the purpose of that journey was to bring his wife to Australia. He stayed with an aunt in Lahore and waited for his visa for Australia to be issued.
The Tribunal adds that according to the applicant, also for their safety, his two brothers left Pakistan having first gone to [Country 1], with one brother now living in [Country 2] and the other in [Country 3]. It was the applicant’s evidence that as early as 2007 if not before there was concern for his safety held at least by his parents who sent him to another part of Pakistan for his education. It was the applicant's evidence that it was for his safety he was to go to [Country 1] in 2008 and remain there. Again, the Tribunal acknowledges his claims that threats and risk of harm increased after the murder in August 2017. However, the Tribunal has set out above how from 2007 onwards threats of harm were made by various parties causing fear for the applicant’s safety including his choice not to return to Pakistan in August 2015 for a wedding ceremony.
Notwithstanding those claims the applicant did return to Pakistan on three occasions, one occasion being for a semester break holiday and the final occasion for as long as five months. The applicant’s willingness to do so casts concern over the credibility of his claims about threats made and risk of harm to him and his family, even allowing for his claim that on those return journeys he did not stay in the native village. The Tribunal acknowledges his claims that in relation to that last return journey he could not stay in [Country 1] and was applying for a visa to come to Australia. Even so, the Tribunal still holds concerns about these journeys, the time he remained there and the fact that he did not suffer any harm.
When the Tribunal put these concerns to the applicant, he said that it was in 2016 when threats increased in intensity. The Tribunal acknowledges that claim and, as stated above, his claim that danger increased after the fourth murder was committed in August 2017. However, it was the applicant's evidence that for his safety he was sent out of Pakistan as early as 2008. In 2015 he could not go back to Pakistan for his marriage due to fear of being arrested at the behest of the [A] family. Yet, he was there for approximately five months in early 2016. This willingness to return and remain in Pakistan, in particular, on this last occasion in 2016, casts concern over the credibility of his claims that individuals from both families in the dispute wanted to harm him. Accordingly, the applicant’s return journeys to Pakistan, in particular, the journey in early 2016 in which he was not harmed cast concern over the credibility of his claims to be at risk of harm from the two families and the police.
Delay in applying for protection
The Tribunal’s concerns with respect to the applicant’s willingness to return to Pakistan when he did were enhanced by the fact that the applicant arrived in Australia in June 2016 but did not apply for protection until December 2017 almost 18 months later. As stated above, the applicant said that he chose to come to Australia because his father told him that he was at risk of harm from the police and his cousin [Mr B]. When this concern was put to the applicant at the hearing, he said that on arrival in Australia he did not know about protection visas or the rules for making an application.
He had assumed that protection visas were only available to asylum seekers who came to Australia by boat. When asked what enquiries he made on arrival in Australia, he said that he did a bit of research before meeting his current representative who explained how protection visa applications were made. Through that representative he learned it was not necessary for an applicant to arrive in Australia by boat to make that application.
The Tribunal can understand that someone in the applicant’s position on arrival to Australia may not know about applying for a protection visa until receiving legal advice. However, if the applicant was genuinely in fear of harm in Pakistan as he claimed that he was on his arrival to Australia, the Tribunal could reasonably expect the applicant to have obtained that relevant legal advice and applied for protection much sooner than he did. This is particularly so when in his statutory declaration he said that he found the representative through a “google search”. If that was the case, one could expect that the applicant would have conducted that search soon after arriving in Australia.
In his declaration he referred to being mentally stressed and not knowing what to do and “then decid[ing] to seek immigration advice”. If the applicant was genuinely in fear of harm in Pakistan and had come to Australia for that reason and if he was under mental stress, the Tribunal could reasonably expect him to make enquiries and seek advice soon after his arrival as to how he could stay in Australia permanently and avoid returning to Pakistan. The Tribunal finds the period of 18 months between his arrival and applying for a protection visa casts further concern over the credibility of his claims to be at risk of harm in Pakistan.
Again, the Tribunal has considered his claim that following the fourth murder in August 2017 the risk to his safety increased, but as stated above, he chose not to return to Pakistan in August 2015 for his marriage due to fear for his safety. It was his evidence that he did not want to remain in Pakistan because of the risk to his safety. To the delegate, on this same issue, the representative submitted that the applicant did not come to Australia to obtain a protection visa. The representative submitted that in 2017 circumstances changed due to another murder by the applicant’s cousin [Mr B] which led to the applicant obtaining legal advice and then making a protection visa application.
The Tribunal rejects that submission because in his evidence to the Tribunal at the hearing the applicant said that when he left Pakistan and came to Australia, he was in fear of harm from his cousin [Mr B] and the police acting on behalf of the [A] family. Although the applicant may not have known about applying for a protection visa at the time he left Pakistan, his evidence nevertheless was that he was in fear of harm there. If that was truly the case, the Tribunal could reasonably expect the applicant to have made enquiries on arrival in Australia, obtain advice and apply for protection long before he did.
FINDINGS
Findings on credibility
Considered cumulatively, the concerns that the Tribunal holds about the applicant’s credibility lead the Tribunal to find that his evidence is not credible and the account of events on which his protection claims are based is false. Therefore the Tribunal disbelieves the applicant's claims that his family was involved in a dispute over land; that a cousin murdered a number of people in relation to that dispute; that the cousin's father was imprisoned on that basis; that the cousin and a family involved in the dispute threatened to harm the applicant’s father as well as the applicant himself and that the police questioned the applicant’s father, held an adverse interest in him and the applicant and were seeking to apprehend them.
Accordingly, the Tribunal finds that there is no credible evidence that the applicant suffered harm in Pakistan and there is no credible evidence that any state or non-state agent seeks to harm him, his wife and child. There is no credible evidence as to why the applicant left Pakistan to come to Australia and why he does not want to return to Pakistan. In reaching this finding on credibility, the Tribunal took into consideration the evidence of the applicant's wife and documents submitted by the applicant being a written statement from his father and a statement from a lawyer in Pakistan.
To the Tribunal, the applicant's wife said that on marrying the applicant she learned that there was danger to the applicant and his family from the cousin [Mr B] who had committed murders and asked the applicant’s family for help. She said that there was also danger from the [A] family who were influential with political connections. In her evidence, the applicant's wife said that the marriage was online and there was no ceremony at that time. Finally, the applicant's wife said that at some point after her marriage she stayed with the applicant’s aunt in Lahore.
Generally, the evidence of the applicant’s wife is consistent with the evidence given by the applicant on his protection claims. However, her evidence does not overcome or outweigh the concerns the Tribunal holds about the credibility of the applicant’s evidence. Those concerns relate to inconsistency in evidence on important issues along with significant concerns related to the behaviour of certain parties central to the applicant’s protection claims, namely, himself, his cousin [Mr B] and the police. Accordingly, on those grounds, the Tribunal finds the evidence of the applicant's wife to the effect that the applicant and his family are in danger due to a dispute over land is also not credible.
In a written statement from the applicant’s father dated 6 November 2024, the applicant’s father gives a broadly similar account to the one given by the applicant on which his protection claims are based. That includes claims made by the applicant's father that in approximately May 2024 the applicant's cousin [Mr B] came and stayed on the disputed land in the native village for one month. That also includes a claim that to save their lives the applicant's father sent his sons out of Pakistan, a claim consistent with the applicant’s claim that he left Pakistan for his safety.
For the reasons given above, the Tribunal does not accept that the applicant's cousin [Mr B] came and stayed on the disputed land earlier in 2024. The claim that the applicant left Pakistan for his safety is inconsistent with the delay on his part in applying for protection. Again, as with the evidence from the applicant's wife, the claims made by the applicant's father do not overcome or outweigh the concerns discussed above about the applicant’s credibility. That is particularly so for those concerns related to the behaviour of the applicant, his cousin [Mr B] and the police. The Tribunal has given reasons above why those concerns reflect adversely on the applicant's credibility. The fact that the applicant's father would give the same account as the applicant on those matters would not lead the Tribunal to overlook the concerns it holds.
With respect to those concerns relating to inconsistency in the applicant's evidence, in response to the hearing invitation the telephone number of the applicant's father was provided. The Tribunal has chosen not to take evidence from the applicant's father over the telephone. Although no submissions were made as to what evidence the applicant's father intended to give over the telephone beyond his written statement, the Tribunal would be willing to accept that the applicant’s father over the telephone would repeat the same claims made in his statement. The Tribunal would also be willing to accept that, in addition, with respect to the matters discussed above in which the Tribunal finds the applicant has given inconsistent evidence, his father may purport to give the same account as the applicant. That would include claiming to live away from the native village notwithstanding in his written statement the applicant’s father claiming he still lives in that village.
Even if in giving evidence over the telephone the applicant's father might purport to give an account consistent with what the applicant claims is what occurred, that would not explain or excuse the applicant giving inconsistent evidence on those matters; matters on which, if relating a truthful account, the applicant could be reasonably expected to give consistent evidence. The cumulative effect of the Tribunal’s concerns on the applicant’s credibility is substantial and significant and the claims made by the applicant's father similar to those made by the applicant do not outweigh or overcome that cumulative impact on his credibility. Accordingly, the Tribunal disbelieves the claims made by the applicant’s father in the statement dated 6 November 2024.
Finally, the Tribunal has also taken into consideration a document provided after the hearing by the applicant being a statement from an “Advocate High Court” in Pakistan (“the advocate”). With this statement were copies of documents relating to the identity of the advocate and his membership of a Bar Council. In the statement, the advocate said that the applicant's father now resides at [City 2], a different location from the native village and was “nominated” in an FIR dated 28 January 2008 in which the applicant's cousin [Mr B] is also declared as an offender.
The advocate also said that the cousin [Mr B] was declared as an offender in an FIR dated 15 August 2007 and in another FIR dated 11 September 2007. The advocate then said that the applicant's father and his three sons were all under severe threats for loss of their lives from the applicant's cousin [Mr B]. Attached to the statement was a document dated 30 November 2024 from an inspector at a police station in Pakistan making the same claims about the applicant's father and the applicant's cousin [Mr B] being named in the FIRs mentioned by the advocate.
The contents of these documents are broadly similar to the claims made by the applicant. However, the contents of these documents must be considered along with the concerns that the Tribunal holds about the applicant's credibility. Those concerns include his inconsistent evidence about his father being named in the FIR related to the second murder committed by the applicant's cousin [Mr B] in 2008. Due to that inconsistent evidence and also country information about the prevalence of fraudulent documents in Pakistan including FIRs, the Tribunal did not give weight to the FIRs that the applicant produced.
The contents of these documents from the advocate (including the attached statement from a police inspector) do not explain or excuse the applicant’s inconsistent evidence about his father being named in an FIR as well as all of the other concerns that the Tribunal holds about the applicant’s credibility. On those grounds and, in addition, taking into consideration the country information about the prevalence of fraudulent documents in Pakistan, the Tribunal does not give weight to the documents from the advocate including the attached statement from a police inspector.
In his statutory declaration the applicant said that he and his wife were stressed and suffered “mental depression”. This included his wife being stressed in relation to pregnancy as claimed at his interview with the delegate. On that issue, the applicant provided documents relating to medication prescribed to the applicant's wife in November 2024 including for partial epileptic seizures and a document from a hospital stating that the applicant's wife was pregnant and she was expected to give birth in April 2025. No claims were made nor evidence put forward that the applicant’s wife is at risk of harm in Pakistan due to her current state of health.
Although the applicant claimed that he and his wife suffered depression, no medical evidence was put forward in support of that claim. The documents provided indicate the applicant's wife is taking medication and is pregnant. Even if the medication related to the couple being under stress, there is no credible evidence as to the cause of that or her epileptic seizures. For the reasons given above, the Tribunal disbelieves the applicant's claims about why he left Pakistan and why he does not want to return there. The applicant and his wife may well be anxious about their immigration status in Australia. However, with their immigration status resolved any stress or anxiety could also be resolved on return to Pakistan.
For the sake of completeness, the Tribunal records that, pursuant to s 359A of the Act, by letter dated 19 November 2024 the Tribunal put to the applicant that to the delegate when asked what he knew about his cousin [Mr B], he appeared to have said that his cousin’s name had been cleared for the murders he committed and there were no allegations against him. That was inconsistent with his evidence to the Tribunal that the police were still trying to apprehend his cousin [Mr B] whose father remained in jail.
In response, in his statement dated 3 December 2024, the applicant said that he never gave that evidence to the delegate and the interpreter had incorrectly translated his evidence to say that his cousin [Mr B] “had been cleared”. The Tribunal is willing to accept that response from the applicant and does not draw any adverse inference against him on that matter. The Tribunal has set out above its concerns about the applicant's credibility which, considered cumulatively, lead the Tribunal to find that the evidence on which his protection claims are based is not credible.
Findings on merits
Do the applicants satisfy the refugee criterion for protection?
In his statement dated 6 November 2024 the applicant said that his and his wife’s passports have expired along with identity cards which would require him to go to his native village for “attestation”. His representative made similar submissions at the interview with the delegate. Country information indicates that Pakistan citizens residing overseas can obtain identity cards that enable visa free entry to Pakistan and recognition of citizenship and can also obtain passports.[8]
[8] Department of Foreign Affairs and Trade, DFAT Country Information Report Pakistan 25 January 2022, at 5.33, 5.44.
At any rate, the Tribunal understands these claims by the applicant to relate to his protection claims of being at risk of suffering harm on return to his native village. For the reasons given above, the Tribunal disbelieves the applicant's claims that he is at risk of suffering harm on return to Pakistan and his native village. Even if it was the case that the applicant had to return to his native village to be issued with official documents, there is not a real chance that he will suffer serious harm.
In this respect, the Tribunal repeats its findings that there is no credible evidence that the applicant suffered harm in Pakistan and there is no credible evidence that any state or non-state agent seeks to harm him, his wife or child. The Tribunal repeats its finding that there is no credible evidence as to why the applicant left Pakistan and why he does not want to return there. For those reasons given, there is not a real chance that the applicant, his wife and child will suffer serious harm on return to his native village in Pakistan in the reasonably foreseeable future. Accordingly, the Tribunal finds that the applicants do not have a well-founded fear of persecution and do not meet the refugee criterion in s 36(2)(a).
Do the applicants satisfy the complementary protection criterion for protection?
Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). For the same reasons that the Tribunal finds that there is not a real chance that the applicants will suffer serious harm in Pakistan, the Tribunal also finds that there is not a real risk that the applicants will suffer significant harm in Pakistan.[9] Accordingly, there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to the receiving country, Pakistan, there is a real risk that the applicants will suffer significant harm. Therefore the applicants do not meet the complementary protection criterion in s 36(2)(aa).
[9] MIAC v SZQRB (2013) 210 FCR 505.
CONCLUSIONS
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decisions not to grant the applicants protection visas.
Date of hearing: 13 November 2024
Representative for the applicant: Mr M Suthershan
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36 Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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