1926967 (Refugee)
[2024] AATA 4396
•26 August 2024
1926967 (Refugee) [2024] AATA 4396 (26 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mrs Mahalakshmi Saikumar (MARN: 1572358)
CASE NUMBER: 1926967
COUNTRY OF REFERENCE: Pakistan
MEMBER:Samira Kamandi
DATE:26 August 2024
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 26 August 2024 at 12:06pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – religion – Shi’a Muslim in Sunni majority country –attacked after religious event and son shot, and threatened after reporting to police – attacks on children and sister’s death after applicant’s departure, and children living in hiding – police inaction – fear of persecution and harm from mainstream and extremist groups –capacity to subsist – age and no work experience – mental health and treatment – credibility – inconsistent claims and evidence – sales of houses, financial transactions and address on son’s identity card – country information – prevalence of document fraud – current security situation – moderate risk, decline in attacks and increased police security – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 424A
Migration Regulations 1994 (Cth), Schedule 2CASES
Abebe v Commonwealth (1999) 197 CLR 510
Chand v MIEA [1997] FCA 1198
Guo Wei Rong and Pan Run Juan v MIEA (1996) 40 ALD 445
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
MIEA v Wu Shan Liang (1996) 185 CLR 259
MIMA v Rajalingam (1999) 93 FCR 220
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
The applicant is a citizen of Pakistan. She has been residing in Lahore, Punjab, in Pakistan since she was [age] years of age and is of Shia faith. The applicant was married in 1990. Her husband passed away in 1999. She has 3 children, 2 of whom (a son and a daughter) remain in Lahore, Pakistan and her other son is in Australia.
The applicant arrived in Australia [in] October 2017 on a Tourist Stream Visitor (subclass FA-600) visa. She applied for a protection visa on 16 January 2018. Her protection visa application was refused by a delegate of the Minister for Home Affairs (the delegate) on 30 August 2019 under s 65 of the Migration Act 1958 (Cth) (the Act).
On 24 September 2019, the applicant applied for review of the delegate’s decision with the Administrative Appeals Tribunal (the Tribunal). This is a decision of that review application by the Tribunal.
CLAIMS AND EVIDENCE
Evidence before the delegate
The applicant was assisted by her migration agent in preparation of her protection visa application and at the interview with the delegate on 21 January 2019. The delegate was also provided with submissions and documentary evidence (listed below), which included written submissions prepared by her migration agent dated 21 December 2017 and 19 January 2019, and post interview submissions dated 24 January 2019.
The applicant’s claims before the delegate can be summarised as follows:
·The applicant is from Lahore city in the Punjab province of Pakistan. She is a Shia Muslim, a minority religious group in Pakistan, subjected to historical persecution by Wahabi groups and extremist groups, including Sipah-e-Sahaba (SSP) and Lashkar-e-Jhangvi (LeJ).
·In April 2016, the applicant, her [son], and [daughter], attended a religious procession in a Shia mosque in Lahore. On the way back from the event, the car they were travelling in was blocked and they were physically confronted and intimidated by a group of men on motorbikes. The men made derogatory comments, calling the applicant’s son a ‘Shia Kafir’. He was beaten and shot at which injured his leg. The applicant’s son was admitted into hospital for treatment.
·The applicant’s brother, who was also travelling back from the event, noted one of the motorbike’s licence numbers and recognised 3 of the men as belonging to the SSP group. A police complaint was lodged, and the applicant and her children resided with her brother due to fear for their safety, where they remained for a few months and then returned to their family home. The police did not arrest the culprits.
·About 2 months after the incident (June 2016), the applicant received a call from an anonymous person threatening her with death if she did not withdraw the police complaint. Due to fear, the applicant and her children moved to an ‘unknown location’ within Lahore.
·The applicant’s son in Australia completed his studies and applied for a visa for the applicant to come to Australia and attend his graduation ceremony. The applicant was granted a Tourist Stream Visitor (subclass FA-600) visa on 29 September 2017.
·On 21 October 2017, the applicant’s sister who was on her way to meet the applicant’s son who was arriving in Pakistan from Australia, was hit by a car (a hit and run accident). People who were at the scene called an ambulance and the applicant’s sister was admitted into hospital but died from her injuries on 6 November 2017. The people who called the ambulance went to the police station to lodge a first information report (FIR). While they were told that a complaint would be registered, no record was obtained.
·On the same date, the applicant received a call with the caller saying ‘oh, are you still alive?’. The applicant’s sister was mistaken for the applicant and attacked. The applicant was shocked and depressed about the incident and unable to talk to anyone about it. The applicant departed Pakistan and arrived in Australia [in] October 2017. She sold her family home in Lahore prior to coming to Australia. Her children remain in Lahore, Pakistan.
·On 3 May 2018, the applicant’s son and daughter in Pakistan were attacked by hooded assailants while returning from the imambargah. The assailants had a sharp (apparently wooden) stick and tried to attack the applicant’s son and the daughter’s wrist. They were injured but were able to escape. The next morning (4 May 2018) the applicant’s injured son went to the police station to lodge a complaint. The police refused to accept a complaint stating that he should have lodged a complaint immediately after the incident.
·The applicant fears persecution at the hands of anti-Shia terrorist groups because of her Shia religion if returned to Pakistan. The reporting of the April 2016 incident infuriated the perpetrators. They are likely to gather further support from the Sunni Muslim community to target her and her immediate family members.
·The Pakistani government is reluctant to support Shia Muslims suffering persecution.
·The applicant considers the Punjab province as the safest place for Shia Muslims in Pakistan. She will not be able to relocate to another area due to risk of harm to Shias in Pakistan. While she has a sister residing in Quetta, her life is also in danger and her sister’s son remains mostly confined to his home due to risk of persecution. Her sister’s sister-in-law died in a bomb blast in Quetta.
·The applicant has never worked and as an elderly female with no work experience, she will not be able to secure employment. The proceeds from the sale of her family home in 2017 were used to pay the police for acting in relation to the complaint about the April 2016 incident, which she paid in instalments, and to pay the attackers in exchange for ceasing to target her family. She has no money to support herself if returned to Pakistan.
·The applicant is receiving medical treatment for mental issues of a post-traumatic nature.
In support of her claims, the applicant’s migration agent provided the delegate with the following documents:
·A copy of a sale of property agreement in relation to a property at [Location] in Lahore made on 14 October 2017.
·A copy of an undated letter said to be from the General Secretary of the Shia Muslim Association in Lahore.
·An English translation of an FIR dated [April] 2016 regarding the claimed incident on 21 April 2016.
·A document titled ‘True Urdu to English Translation’ and a slip titled ‘online complaint’ dated 3 May 2018.
·A copy of a death registration certificate claimed to be that of the applicant’s sister who died on 6 November 2017.
·A further copy of a death certificate issued by [Hospital 1] Lahore, claimed to be in relation to the applicant’s sister, indicating that she was admitted on 21 October 2017 and died on 6 November 2017.
·A photograph of a woman at a hospital claimed to be a photograph of the applicant’s sister prior to her death.
·A statutory declaration by the applicant regarding her sister’s name, dated 20 January 2019.
·A copy of a medical certificate from [Dr A], regarding the applicant’s mental health, dated 18 January 2019.
·Copies of 2 death certificates claimed to be in relation to the death of the applicant’s sister’s relative in Quetta in 2013.
·Copies of photographs of weapons, an unidentified person holding a weapon, and 2 unidentified men.
·A copy of a news report published in Al Jazeera about a bomb blast in Quetta, published on 10 January 2018.
·A copy of a report published by the Immigration and Refugee Board of Canada published on 9 January 2014 titled ‘Pakistan: How Shia Muslims differ from Sunnis; treatment of Shias, particularly in Lahore and Multan; government response to violence against Shia Muslims (2010 December 2013”.
The delegate’s decision
The applicant provided the Tribunal with a copy of the delegate’s decision dated 30 August 2019. The delegate’s decision indicates that the applicant applied for a Tourist Stream Visitor (subclass FA-600) visa on 26 July 2017, which was granted on 29 September 2017.
The delegate accepted that the applicant is a Shia Muslim from Lahore in the Punjab province of Pakistan, and that one of her distant relatives was killed in a bomb blast in Quetta in 2013. In noting several significant inconsistencies in the applicant’s evidence and supporting documents, the evolving nature of her evidence, and her evidence that she remained living in the same area after the claimed events, the delegate did not accept that the claimed incident in April 2016 occurred or that the applicant was targeted, received threatening calls, went into hiding, or that her sister was killed because of a deliberate hit and run accident targeting the applicant.
While the delegate expressed concerns about the applicant’s claim that her son and daughter were attacked in May 2018, the delegate found that the incident was a random incident due to generalised violence which has been linked to the applicant’s circumstances to enhance her claims for protection. In giving the applicant the benefit of the doubt, the delegate also accepted that the applicant had experienced some symptoms of anxiety, particularly in response to her visa status in Australia.
In considering the applicant’s circumstances and referencing country information reports about the situation in Pakistan at the time, including availability of health services, the delegate was not satisfied that the applicant faced a real chance of serious harm or was at a real risk of significant harm if returned to Pakistan.
Review application
Evidence and documents provided to the Tribunal
On 24 September 2019, the applicant lodged a review application with the Tribunal.
On 28 February 2022, the Tribunal was emailed the following documents:
·Copies of 3 photographs of what appears to be inside a hospital and a wounded leg.
·Copies of the English translation of ‘exterior reports’ and a ‘front desk online complaint’ regarding a claimed incident on 2 October 2020.
·Copies of what appears to be records from [Hospital 2] in Lahore and a medical legal examination certificate.
On 22 May 2022, the Tribunal was provided with the following additional documents:
·Copies of the applicant’s birth certificate (and English translation) and renewed Pakistani passport issued [in] 2023.
·A copy of a letter from the applicant’s general practitioner dated 15 May 2024.
·Copies of a referral and a mental health treatment plan dated 8 May 2024, and a copy of a psychologist’s report dated 20 May 2024.
·A copy of a psychiatrist’s report relating to the applicant’s son dated 6 February 2024.
·Copies of the applicant’s son’s Australian passport and citizenship certificate.
·A written submission prepared by the applicant’s representative dated 6 May 2024.
The applicant was invited to a hearing before the Tribunal on 29 May 2024 (the first hearing). The applicant attended the hearing with her representative.
Following the first hearing, the applicant was invited under s 424A of the Act to respond and comment on information that I considered may be the reason or part of the reason for affirming the decision to refuse her a protection visa.
After a request for an extension of time to provide a response, which was granted, on 26 June 2024, the applicant responded to the invitation in writing, by way of providing a statutory declaration, dated 24 June 2024. I have considered the responses and comments in my assessment of the applicant’s claims and, where relevant, have referred to them below.
The applicant was invited to a further hearing on 28 June 2024. The applicant’s representative requested for the hearing to be postponed due to her unavailability. The request was granted, and the applicant was invited to a hearing on 26 July 2024. This hearing was further postponed to 16 August 2024.
The applicant and her representative attended the hearing on 16 August 2024 (the second hearing). The applicant also requested for her Australian citizen son to attend as a support person. The applicant’s son attended the hearing, and it was confirmed that he was only present to provide the applicant with moral support and was not giving evidence in support of the applicant’s case.
Prior to the second hearing, the Tribunal was provided with additional yearly ‘case formulation and treatment plan for GP’ notes prepared by the applicant’s psychologist for the period between 2019 and 2024. I have referred to these treatment plan notes in my assessment below.
The hearings
The hearings were held in person at the Tribunal’s Perth Registry and with the assistance of an interpreter in the Urdu and English languages. The applicant and the interpreter confirmed that they understood each other and there were no issues raised regarding the communication between the applicant and the interpreter. However, after a break at the second hearing which was to allow the applicant’s representative to discuss issues with the applicant and to clarify her claims, the applicant’s representative indicated that the applicant had informed her that at times she was unable to fully understand what was relayed to her by the interpreter. After some discussion, it was agreed that we all speak in short sentences and allow the interpreter to interpret exactly what is said. In engaging in this manner, the applicant confirmed that she understood what was interpreted and I also took additional steps to ensure that the applicant understood what was discussed, and I repeated pertinent information to ensure the applicant understood the nature of my questions and concerns.
Capacity to give evidence
Given that the Tribunal has been provided with reports from the applicant’s psychologist and general practitioner indicating that she suffers from mental health symptoms, at the commencement of the hearings, I asked the applicant if she felt well enough to continue with the hearings. The applicant confirmed that she was well and willing to continue with the hearings. The applicant’s representative agreed, and I note that the applicant was able to respond to my questions and at no time indicated that she was feeling unwell or overwhelmed nor requested breaks or to adjourn the hearing.
In addition to her evidence at the hearing, the applicant was also provided with an invitation to comment on information that if relied upon may form the reason or part of the reason for refusal of her protection visa application, which she responded to with the assistance of representative. The applicant was also granted an extension to provide her response and the second hearing was postponed allowing the applicant’s representative to be present and support the applicant at the second hearing.
At the commencement of the first hearing, I explained the purpose of the hearing and the criteria for the grant of a protection visa. I also explained that I was not bound by the findings of the delegate and that I would be assessing the evidence and information before me, including the applicant’s evidence given at the hearing, in determining her review application. I indicated that all aspects of the applicant’s claims were an issue before me and that she should not assume that anything that was accepted by the delegate will also be accepted by me. I further expressed that I would be discussing any concerns or issues that I may have with her claims or evidence with the applicant to allow her and her migration agent to understand the issues and provide their responses and any further information that they wished for me to take into consideration. The applicant expressed her understanding of these matters and indicated that she had no questions in this regard.
Aspects of the criteria for protection under the Act were further referred to at the second hearing. I also discussed with the applicant aspects of my concerns put to her in the first hearing and in the invitation from the Tribunal. She was given breaks to discuss issues with her representative who also had the opportunity to, and did, provide oral submissions on her behalf at the hearings.
I am satisfied that the applicant had capacity to give evidence at the hearings and that she had a real and meaningful opportunity to engage with the process and to present her claims and evidence. She has had ample opportunity, with the assistance of her representative, to respond to issues and my concerns discussed at the hearings. Where relevant, the applicant’s evidence given at the hearings is discussed below.
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 (Cth). 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether there is a real chance that the applicant will suffer serious harm if returned to Pakistan for reasons of her race, religion, nationality, membership of a particular social group or political opinion or, alternatively, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Pakistan there is a real risk that she will suffer significant harm.
For the following reasons, I have decided to affirm the decision under review.
FINDINGS AND REASONS
Country of reference
The applicant has consistently claimed to be a citizen of Pakistan. The applicant has provided certified copies of her Pakistani passport (including her renewed passport obtained while in Australia issued [in] 2023) and National Identity Card.
At the first hearing, contrary to the information in her protection visa application, the applicant stated that she was born in [Country] and returned to Pakistan with her family when she was [age] years old. The Tribunal was provided with the applicant’s birth certificate (and English translation) which indicates that the applicant was born at ‘[Hospital 3]’. The applicant confirmed that while she was born in [Country], she is not a citizen of the country and has been residing in Pakistan after her family’s return to Pakistan when she was [age] years of age.
I accept that the applicant is a national of Pakistan, and that Pakistan is the receiving country for the purposes of this assessment.
Mental health
The delegate was provided with a short medical certificate dated 18 January 2019 from the applicant’s general practitioner [Dr A]. The certificate is dated 2 days prior to the applicant’s interview with the delegate on 21 January 2019. The certificate indicates that the applicant was receiving medical treatment for mental health issues that developed after a serious life-threatening incident in Pakistan. The letter does not outline when the applicant started receiving the treatment, the nature of the treatment, nor does it include any information about the applicant’s diagnosis or treatment plan. As noted in the delegate’s decision, at the interview the applicant confirmed that she had not seen a specialist or any other health provider in this regard nor been prescribed with any medication for her mental health.
No further information was provided to the delegate nor to the Tribunal after the applicant’s review application lodged on 24 September 2019.
On 29 April 2024, days after having been invited to attend a hearing before the Tribunal, the applicant provided the Tribunal with a further letter from [Dr A] dated 15 May 2024, indicating that the applicant had been a regular patient of [Dr A] since 2018 and that she is under treatment for physical and psychological medical issues. While [Dr A] writes that the applicant developed psychological issues while in Pakistan and is extremely apprehensive of returning to Pakistan and wants to remain in Australia to undergo appropriate treatment, he does not outline any past or future treatment plans nor provide any indication of the applicant’s diagnoses or prognosis.
Prior to the second hearing held on 16 August 2024, the applicant’s representative provided the Tribunal with copies of documents titled ‘case formulation and treatment plan for GP’ from [Counselling & Psychological Services] for the period between 26 November 2019 and 20 May 2024. These documents indicate that they were produced for the referring doctor and is based on the information provided by the patient. The document dated 26 November 2019 indicates that the applicant was referred by her doctor on 24 September 2019, which I note is the date that the applicant lodged her review application with the Tribunal. The documents note the applicant’s self-reported symptoms and that her symptoms are consistent with ‘PTSD with mixed anxiety and depression’. The documents note the same recommendations, namely that the applicant should stay under the psychologist’s treatment, engage in regular physical and relaxation exercises and to take medication regularly ‘if prescribed’. The documents note that the applicant’s sessions were provided under Medicare and that she had 6 sessions in 2019, 10 sessions in 2020, 6 sessions in 2021, 10 sessions in 2022, 10 sessions in 2023, and 6 sessions in 2024.
These documents appear to have been produced by the psychologist on a yearly basis and include information about self-reported events in the applicant’s life and events in Pakistan. They largely include very similar information and do not provide any details about the applicant’s prognoses, change in her condition or symptoms, and do not indicate that the applicant’s treatment has changed or been tailored to her needs. The documents do not indicate if the applicant has been referred to any other health practitioners or prescribed medication.
In addition to the above noted historical documents, the Tribunal has also been provided with a mental health plan prepared by [Dr A] on 8 May 2024. The mental health plan refers to information relayed by the applicant about her experiences in Pakistan and notes ‘depression/PTSD’ as the applicant’s main symptom.
The latest document from [Counselling & Psychological Services] dated 20 May 2024, like the previous documents, outlines the applicant’s self-reported experiences in Pakistan and indicates that the applicant’s symptoms are consistent with PTSD with mixed anxiety and depression. The report indicates that the applicant consulted the psychologist for 7 sessions under Medicare in 2024, recommends that the applicant engage in mindfulness/deep breathing and psychoeducation for dealing with irrational thinking. It also indicates that the applicant should continue her treatment with her doctor and consideration to be given to prescribing her antidepressant therapy/medication.
At the first hearing, I asked about the relevance of the applicant’s medical information to her claims for protection. The applicant’s representative indicated that the purpose of this information was for the Tribunal to be mindful of the applicant’s mental health condition when assessing the applicant’s claims. The applicant did not raise any claims on this basis.
At the second hearing, I enquired about the relevance of the additional reports from [Counselling & Psychological Services] provided prior to the hearing and whether the applicant was raising any claims about her mental health condition or accessing services in Pakistan. The applicant’s representative indicated that while the applicant was not raising any claims in this regard, these reports were obtained due to the Tribunal’s concerns about the credibility of the applicant’s claims and were to be considered in assessing the credibility of the applicant’s claims.
As explained at the second hearing, while these documents include information about her circumstances in Pakistan and claimed events after her arrival in Australia, the information in these reports is based on what the applicant reported to the psychologist, and I do not consider it corroborates her claims or establishes the veracity of her claims. The applicant’s representative expressed her understanding and did not add anything further.
Later during the second hearing, the applicant’s representative indicated that the applicant also suffers from additional health issues and that the cost of accessing medication and health services and the unavailability of anyone in Pakistan to look after her should be considered.
I asked the applicant about her other health conditions, and she indicated that she has had high blood pressure and cholesterol in Pakistan and is on medication. She was diagnosed with diabetes in Australia and takes medication. She also suffers from hot flushes and urinary conditions. As confirmed at the hearing, the applicant is not claiming that she will not be able to access health services, including mental health services, should she require such services/medication on return to Pakistan, but claims that due to lack of support and financial means, these matters are to be considered in assessing her circumstances on return to Pakistan.
On the evidence set out above, I accept that the applicant has been referred to a psychologist under Medicare mental health plan by her doctor. I note that she was first referred for treatment in September 2019 after refusal of her protection visa application and the lodgement of her review application with the Tribunal. While I note that the documents produced by the psychologist, which were provided weeks before the second hearing, indicate that the applicant has used allocated sessions of treatment in line with her Medicare mental health plans, as noted above, these documents are largely written in the same terms, are general in nature, and do not include any meaningful details about any changes in her conditions or treatment plan. In addition, until the very recent document produced on 25 May 2024, shortly prior to her first hearing before the Tribunal, there is no indication that the psychologist recommended medication to treat the applicant’s mental health conditions/symptoms.
While I accept that the applicant has been referred to a psychologist under a Medicare mental health plan, as noted at the hearing, they do not refer to, and I do not accept, that the applicant has been under any other treatment such as by a psychiatrist or prescribed medication. I accept that the applicant suffers from other health conditions referred to above and that she has been under treatment for those conditions in Pakistan and in Australia.
While not raised as an express claim, as expressed at the hearing, country information[1] indicates that the applicant is able to access mental health services and medication for her longstanding conditions if returned to Pakistan. There is no information to indicate that she will be denied access to health care in Pakistan for any of the reasons in s 5J(1) of the Act. The applicant’s representative agreed and did not add anything further and confirmed that she was not concerned about lack of access to healthcare or feared any harm on this basis.
[1] DFAT, “DFAT Country Information Report – Pakistan”, 25 January 2022, 20220125094359.
As set out below, I have considered the applicant’s health conditions in assessing her claims for protection and as part of her overall circumstances if returned to Pakistan now or in the reasonably foreseeable future.
Credibility assessment
In determining whether the applicant is entitled to protection in Australia, it is necessary for the Tribunal to make findings of fact on relevant matters. The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility.
The courts have made it clear for some time that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility.[2] The Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant may answer questions.
[2] Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, MIEA v Guo (1997) 191 CLR 559, Abebe v Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Guo Wei Rong and Pan Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v MIMA (1998) 86 FCR 547 and MIMA v Rajalingam (1999) 93 FCR 220.
Further, in assessing the credibility of an applicant’s claims, the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[3] If the Tribunal 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.[4] 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.[5]
[3] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019.
[4] MIMA v Rajalingam (1999) 93 FCR 220.
[5] 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.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well‑founded’ or that it is for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to ‘significant harm’. It is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims, or to establish, or assist the applicant in establishing, his or her claims. Nor is the Tribunal required to accept uncritically any or all the allegations made by the applicant.[6]
[6] MIEA v Guo (1997) 191 CLR 559; Prasad v MIEA (1985) 6 FCR 155; s 5AAA of the Act.
I am mindful that lapse of memory due to passage of time, and other matters such as an applicant’s health conditions and general background information relating to their specific circumstances, such as their education and cultural and language barriers, needs to be accounted for in assessing their protection visa claims and credibility.
While in general terms minor inconsistencies, omissions, or mistakes, on their own should not lead to adverse credibility findings, in this case, I have come to the conclusion that the very problematic nature of the applicant’s evidence regarding key aspects of her claims severely detracts from the credibility of the claimed events in Pakistan.
As discussed below, the numerous inconsistencies, omissions, and evolving nature of her evidence, together with a lack of any persuasive explanations for the inconsistencies and omissions in her evidence, has led me to conclude that the applicant has not been truthful during the process of her protection visa application and has provided false or misleading information to bolster her claims for protection. While the applicant has been given several opportunities to provide further information and respond to concerns regarding the problematic nature of her evidence, which the applicant has done with the assistance of her representative, the concerns remain, and some have been amplified by further problematic and at times implausible explanations.
Events in Pakistan
The applicant’s claims for protection relate to an incident which she claims occurred in April 2016. At the hearings before the Tribunal, the applicant confirmed that prior to this incident neither she nor any members of her family had ever faced any issues with the authorities, Sunni extremists, or any other group for reasons of their Shia religion or otherwise.
In essence, the applicant claims that on 21 April 2016, on their way back from a religious event at the mosque, the car in which she and her son and daughter were travelling, was stopped by men on motorbikes. The applicant’s son, who came out of the car to determine the reason why they were stopped by these men, was called a ‘kafir’, beaten, and shot in the leg. The attackers were identified as members of the extremist Sunni group, and while the matter was reported to the police, the police did not take any action. The attackers continued to call and threatened the applicant, causing her to live with her brother and at an unknown address that was locked from the outside to give the impression that no one was living at the property. The attackers wanted the applicant to withdraw the police complaint. The applicant was fearful for her and her children’s safety, causing her to sell her family home in October 2017 prior to her departure from Pakistan. The applicant also claims that, on 21 October 2017, days prior to her arrival in Australia [in] October 2017, her sister, who was involved in a hit and run accident, was deliberately targeted by the attackers who mistook the applicant’s sister for the applicant.
At the interview before the delegate, the applicant gave inconsistent evidence about the claimed events. The applicant was informed of the inconsistencies in her evidence during her interview with the delegate and her representative also addressed those issues in post-interview submissions to the delegate.
Before the Tribunal, the applicant gave evidence that differed to her evidence provided to the delegate at the interview and in her various submissions, including evidence in the post-interview submission responding to the delegate’s concerns raised at the interview.
The problematic nature of the applicant’s evidence has caused me to question the credibility of her claims. As discussed in the paragraphs above, I wrote to the applicant outlining my concerns about several aspects of her claims and evidence, provided her with the particulars of the information that caused me concern, explained the relevance of that information to the review of her protection visa application and gave her with an opportunity to respond to my concerns. It has been explained to the applicant that, subject to her comments, if I relied on the information provided by her, that information may be the reason or part of the reason for affirming the delegate’s decision and may lead me to concluded that she is not a person in respect of whom Australia owes protection under s 36(2) of the Act.
The applicant and her representative were given another opportunity to add anything further they wished to be considered at the second hearing.
I have outlined the issues raised with the applicant at the hearings and information put to her in the s 424A invitation for comment, in the paragraphs below. I have also addressed the applicant’s responses provided at the hearings and in her written responses prepared with the assistance of her representative.
April 2016 incident
The information in support of the applicant’s protection visa application, indicates that in April 2016, the applicant, her son, and her daughter attended a religious procession at a Shia Mosque not far from where they lived. After the event they were on their way to her brother’s house which was located about 2 kilometres from the mosque. When they were close to her brother’s house, the car they were travelling in was stopped by 4 men on motorbikes, who were supported by an additional 3 men. The applicant claims that her son got out of the car to see what was happening. Her son was called ‘kafir’, beaten, and shot in the leg. The applicant’s brother, who was nearby, noted the attackers’ numberplate and recognised them as members of the SSP and reported the matter to the police.
Contrary to the above, the applicant’s evidence before the delegate was that on this occasion, they were travelling to her sister’s house. The car was stopped when it was about 8 to 10 kilometres from the mosque by 4 men, accompanied by another 40 to 50 people. In addition, the applicant stated that she was beaten and that she took her daughter to her sister’s house to be safe. She stated that the attackers identified themselves while attacking her son and introduced a further claim that apart from the police report filed by her brother, she also lodged a complaint to the ‘SP’ police office, which is specifically for women to lodge complaints.
At the first hearing before the Tribunal, when questioned about this incident, the applicant gave further inconsistent evidence in this regard. The applicant stated that the car was stopped by 3 men when they were close to her sister’s house which was about 70 steps from the location of the incident. She also stated that the men were firing shots in the air and that people were scared to assist. The applicant also introduced a further claim that a shopkeeper nearby identified the people and confirmed their names to her brother; that she took her son inside her sister’s house; that a cousin who was familiar with the police called the police and that the police came to the house and told the applicant to take her son to the hospital. She also said that her nephew drove her and her son to the hospital where a police representative was present.
The document referred to as the First Information Report (FIR) and claimed to have been lodged by the applicant’s brother, indicates that the incident occurred while the applicant and her children were travelling from her sister’s house and refers to the attack occurring when she entered the house. Furthermore, the report refers to the applicant’s son pressing the horn which instigated the fight which involved 3 men (identified by name) and a further 3 to 4 unknown people and that when neighbours came out, the attackers ran away.
As outlined above, the applicant has given differing accounts of where the claimed incident occurred, the number of attackers and how they were identified, and her evidence about this claimed incident has significantly evolved over time, in that she has added information that was not included in her evidence before the delegate.
The applicant has been given opportunities to respond to the inconsistent and evolving nature of her evidence about an incident which she claims was the start of her problems in Pakistan and caused her to fear for her safety and to seek protection in Australia. In response to the Tribunal’s invitation to comment on her evidence in this regard, the applicant maintains that the incident occurred on her way to her sister’s house and that the initial submission prepared by her representative, which refers to her being on her way to her brother’s house, was a mistake and that the applicant made an error in not correcting this information.
Regarding the distance between the incident and her sister’s house, in her written response to the Tribunal, the applicant confirms that the distance was about 2 kilometres. She also submits that describing the distance between the location of the incident and her sister’s house as 70 steps is not inconsistent with information previously provided to the delegate. I do not share the view that describing the location of the incident as 2 kilometres or 70 steps from her sister’s house is not inconsistent and do not accept that the discrepancies in the applicant’s evidence in this regard is explained by interpretation errors, which is alluded to in the submission.
Regarding the inconsistencies between her evidence and what is included in the FIR, the applicant simply states that what she has claimed is correct and that the FIR contains incorrect information. She further submits that she believes that the police have purposely worded the FIR in such a way to ensure that there is no suggestion that the attack was religiously motivated. I do not accept this explanation and further note that it does not address my concerns about the discrepancies in the applicant’s evidence about how the attackers were identified.
Regarding the number of attackers, the applicant states that she was under the impression that the delegate was asking her about the total number of people at the scene, including bystanders. I do not accept this explanation. The delegate specifically asked about the number of attackers, and it is not apparent to me that the applicant was in any way misled to give an indication of the total number of people, including bystanders.
Apart from restating that she was beaten and that her nephew assisted her to take her son to the hospital, she has not offered any explanation as to why she had not mentioned this information, or the information that she also made a complaint with the ladies ‘SP’ office regarding this incident, in the submission attached to her protection visa application.
As discussed with the applicant, the information in the FIR does not accord with her evidence about the incident. In addition, as noted at the second hearing, country information[7] indicates that document fraud in Pakistan is common and widespread. It is reported that documents such as police reports are relatively simple to counterfeit and there is existence of police accepting bribes to verify fraudulent documents, including FIRs. While the applicant referred to corruption in the police force, the applicant or her representative did not address the fact that they have provided supporting documents that do not accord with the applicant’s own evidence. The applicant’s evidence that police in Pakistan are corrupt further supports a conclusion that police do provide false or fabricated incident reports.
[7] DFAT, “Country Information Report: Pakistan”, 20 February 2019, 20190220093409.
The letter claimed to be from the General Secretary of Imambargah is not dated. The writer indicates that the applicant’s son was shot outside the mosque, which does not corroborate the applicant’s evidence about the location where her son was shot. The writer also indicates that the attackers were members of a SSP group and that the police do not give attention to complaints lodged by Shia Muslims against Sunni Muslims, without giving examples or referring to any evidence in support of these assertions. At the first hearing, in noting that the letter is not dated, I asked when the applicant received the letter. She initially said that she could not remember and then said that they asked for the letter after she arrived in Australia. The applicant stated that as she was in shock after arriving in Australia and could not speak, her son in Australia started asking around and the General Secretary, who is well known in the area, was asked to give a letter supporting her evidence. When I mentioned that the writer indicates that he witnessed the incident, the applicant introduced a new claim that the General Secretary was at the scene. While I accept that the applicant’s son requested the letter in support of the applicant’s protection visa application, I do not accept the applicant’s evidence that the writer witnessed the claimed incident. It appears to me that the General Secretary was asked for a letter of support and included information that the applicant or her son requested to be included in the letter. I cannot give this letter any corroborative weight.
At the first hearing, the applicant also claimed that the photographs of what appears to be inside a hospital and a wounded knee, which do not identify any person or include evidence of when they were taken, are evidence of her son having been shot and taken to the hospital. The applicant claims that the photographs were taken at the hospital and that while the hospital did not give them any documents, such as a discharge letter, they were provided with these photographs. The applicant was unable to explain why the hospital took these photographs and gave them to them without any further documentation about her son’s injury or the circumstances of his injury. As explained to the applicant at the hearings, these photographs do not include any information about when and where they were taken, nor do they identify any person. I do not accept that the photographs were taken by the hospital and given to the applicant or the applicant’s family as claimed. I cannot give these photographs weight in assessing the applicant’s claim.
While I am mindful of the passage of time and the applicant’s claims surrounding her mental distress and reliance on her son and representative to put forward her claims, I am not satisfied that the problematic nature of her evidence, including the discrepancies between her evidence and information in the FIR provided in support of her claims, can be overlooked. I also found her explanations, including written explanations prepared with the assistance of her representative, in response to my concerns unconvincing.
Applicant’s residential address and claimed threatening calls
While the information in the applicant’s protection visa application indicates that she resided at the same address (her family home located at [Location]) from 1997 until her departure in October 2017, which she confirmed at the interview with the delegate, in her submissions to the delegate she claimed that following the incident she and her children stayed at her brother’s house for a few months. She claimed that she received a threatening call, about 2 months after the incident, to withdraw the police complaint, which prompted her and her children to move to an unknown location within the same city. She did not disclose the address to anyone and locked the door from the outside to give the impression that no one was living there.
Before the delegate, the applicant claimed that she received many threatening calls about a month and 4 days after the incident, after which the applicant sent her children to live with her brother while she remained at her family home. She introduced new claims that the unknown callers were offering her a peace deal if she withdrew the police complaint and that she was offered bribes. She further stated that she requested to meet with the people making the calls in the presence of the police and that the police case was finalised in June or July 2017. In addition, the applicant also claimed that she moved in with her sister in Quetta about a year after the incident and remained there for 6 months, information which was not included in her protection visa application.
At the first hearing before the Tribunal, the applicant claimed that after returning from the hospital with her son, they were dropped off at their family home, where she resided with her children until her departure in October 2017. Regarding the timing of the threatening calls, the applicant said that she received threatening calls a few days after the incident which continued until her son came from Australia in October 2017. She did not mention that she resided with her brother after the incident or that she moved in with her sister in Quetta for 6 months a year after the incident. The applicant gave further inconsistent evidence that she used to travel to and stay with her brother and sister for 10 to 15 days at a time to pass time. In addition, contrary to her evidence before the delegate, the applicant stated that she withdrew the police complaint at the end of 2016, that she had to go to court with her son and brother to facilitate the withdrawal, which, again, is information not presented to the delegate.
In response to the contradictory nature of her residential history after the claimed incident in April 2016, she explained that she did not keep an exact record of her stays at anyone’s houses, and that what she has provided to the delegate was to the best of her memory and knowledge, and that the reason she did not vacate the property was due to fear of thugs occupying the property. The applicant’s explanation for the differing accounts of when she received threatening calls, is that she did not keep a record of frequency of the threatening calls and that she was under psychological pressure.
While I am willing to accept that the minor discrepancies in recalling events that occurred in the past is to be allowed for given that the applicant did not keep an exact record of her visits and stays at her siblings’ houses, I do not accept the applicant’s explanations that she had given varying accounts of where she stayed/resided after the incident because of a lapse in memory or lack of keeping exact records. Her explanation that she did not vacate her family home after the incident due to fear of thugs occupying the property does not address the varying accounts of where and for how long she stayed at various addresses after the incident. In addition, this appears to contradict her evidence that she did leave the house and resided with her sister in Quetta for 6 months.
I also do not accept that a lapse in memory or failure to keep accurate records about when she received threatening calls resulted in her giving significantly inconsistent evidence in this regard. I note that at no time did the applicant indicate that she could not recall when she first received threatening calls, but rather gave specific time frames such as 2 months, or 1 month and 4 days after the claimed incident.
In addition, while the applicant submits that she had no option but to withdraw the police case, she did not address the contradictory nature of her evidence about when the matter was withdrawn/resolved, nor did she provide an explanation as to why she did not include the information about going to court with her son and brother to facilitate the withdrawal in her protection visa application or submissions provided prior to or after her interview with the delegate. While the applicant was given a further opportunity at the second hearing to supplement her written responses, she declined to do so.
Furthermore, the applicant has submitted photographs of 2 men standing side by side and sitting on a couch, photographs of a man holding a gun, and photographs of weapons laid on a table. At the first hearing, the applicant was asked about these photographs and stated that they were sent to her by post and are photographs of the attackers. I noted that given that they wanted the applicant to withdraw the police complaint, were targeting and wanted to harm the applicant, and did not identify themselves when making threatening calls, why would they send photographs of their faces and weapons to the applicant. The applicant was unable to explain. As expressed at the hearings, these photographs do not have any details, such as identifiers of the persons photographed and when or where they were taken. They appear to be photographs of unknown people and some weapons which could have been obtained from anywhere. I do not accept that these photographs are of the attackers or that they were sent to the applicant by post as claimed. As put to the applicant at the hearings, I cannot give them weight in assessing the credibility of the applicant’s claims.
I consider the inconsistent nature of the applicant’s evidence about her residential history after the claimed incident in April 2016, the timing and frequency of the claimed threatening calls, and her evidence about the withdrawal of the claimed police complaint, which in my view has significantly evolved over time, to detract from the credibility of the claimed events and the credibility of her claimed circumstances prior to her departure from Pakistan.
Sale of the applicant’s family home and children’s residence after her departure from Pakistan
Information provided with the applicant’s protection visa application includes a document titled ‘agreement to sell’ which indicates that she agreed to sell the family home on 14 October 2017, and affirmed that she was the absolute owner of the property. The document is signed by the applicant, the buyer, and 2 witnesses.
In a submission to the delegate, the applicant stated that the sale of the property was completed in March 2018, after which her children moved out of the house. It was also claimed that the proceeds of the sale of this property was used to pay the police the money they demanded to act against the attackers and to the attackers as ransom in exchange for ceasing to target her family.
At the hearing before the Tribunal, the applicant said that she asked her son in Australia to come to Pakistan in October 2017 to sign the contract of sale of her family home, which she claimed was given to her children by her mother-in-law, and they all had to sign the agreement to facilitate the sale. This information is inconsistent with the information in the agreement to sell the property referred to above, which does not indicate that the applicant’s children were the owners of the property nor include their signatures to facilitate the sale of the property.
Contrary to her evidence before the delegate, at the first hearing before the Tribunal the applicant gave inconsistent evidence about what the proceeds of sale was used for, in that she stated that after her arrival in Australia and upon completion of the sale in March 2018, the proceeds were provided to her brother who used it to pay for her children’s expenses, and did not mention, as was the case before the delegate, that the proceeds of the sale were used to pay bribes to the attackers or to the police.
In addition, while the applicant claimed that her children in Pakistan vacated the property and the property was handed over to the seller in March 2018, Australian Government AUSTRAC records in the Department’s file, which include information about money transfers from the applicant’s son in Australia to her son in Pakistan, indicate that her son in Pakistan was residing in the family home up until at least October 2018.
In response to the above observations, the applicant reiterates that the property was given to her children as a gift by her mother-in-law and explains that she signed the sale agreement in the presence of her children. The applicant states that the property was vacated in March 2018 and the money from the proceeds of the sale was used for her children’s daily expenditure and given to the police as demanded. I am not satisfied with these explanations. These explanations do not account for her evidence at the hearing that her son in Australia had to come to Pakistan to sign the sale agreement. Further, there is nothing to establish her assertion that she had to sign, or in fact did sign, the sale agreement in the presence of all her children, or that this was a requirement which led her to require her son in Australia to return to Pakistan at a time when the applicant claims that she and her children in Pakistan were fearful for their safety. In addition, her explanation about the use of the proceeds of sale does not engage with my concern about the contradictory nature of her evidence in this regard.
In accordance with s 424A of the Act, the applicant was advised that while she claims that her children in Pakistan vacated the property and the property was handed over to the seller in March 2018, Australian Government AUSTRAC records in the Department’s file include information about money transfers from her son in Australia to her son in Pakistan, which indicates that her son in Pakistan was residing in the family home up until at least October 2018.
Regarding the information in AUSTRAC records, the applicant maintains that her children vacated the property in March 2018, after which they were hiding at different places. It is claimed that due to her son moving from place to place, he was unable to change his address on his National Identity Card (NIC), which was used to access the money sent to him from his brother in Australia. The applicant submits that it can be verified on Google that the procedure for changing an address on a NIC requires a tenancy agreement for the new address, a utility bill in the name of the applicant or a family member, together with the identity card of a family member resident at the same address. The applicant has not provided the link for the website claimed to verify her assertion.
The information from the Consulate General and Trade Commission of Pakistan in Sydney, Australia[8] about how to change an address on a NIC with NADRA in Pakistan indicates that an address can be permanently changed by provision of any of the documents, including an affidavit along with a copy of the NIC and property document from the house owner. As discussed with the applicant at the second hearing, the information on the official NADRA website indicates that, apart from producing a tenancy agreement or utility bills, the applicant’s children can provide an affidavit together with the property owner’s NIC and property document to facilitate the change of address. At that point, the applicant introduced a new explanation for her son’s failure to change his address on his NIC by asserting that if the police found out about her children’s new address, they would have given that information to the attackers who are after her family. At the second hearing, I raised that this was not part of her explanation prior to that point and appears to be a further attempt to explain the issue. While the applicant’s representative agreed that this was not included in the applicant’s responses to my concerns, she did not offer an explanation as to why this was the case. I consider that the applicant put this forward after having been advised that her son could have changed his address via other avenues than those suggested by her.
[8] Nadra Modification | Consulate General & Trade Commission of Pakistan, Sydney, Australia (pakconsulate.org.au) accessed on 3 July 2024.
I do not accept that the applicant’s son did not change his address on his national identity card because he could not or that he feared that the new address would be passed on to the attackers. Even in accepting that the applicant’s son in Pakistan failed to change his address on his NIC, which may explain the address noted on the AUSTRAC records, the inconsistencies in the applicant’s evidence about the use of the proceeds of the sale of the property, and her son’s return from Australia to Pakistan days prior to her departure in October 2017, detracts from the credibility of the applicant’s claims that at the time she feared for her and her children’s safety or that she sold her family home in the circumstances claimed.
Rental properties in Pakistan
100. In her protection visa application lodged in January 2018, the applicant claims that after the death of her husband she supported herself with rent monies received from properties owned by her and her husband. Before the delegate, she claimed that in addition to her family home, she owned another 2 properties, and that she sold one of these properties when she sent her son to Australia, which I note was in 2014. She also claimed that she sold the other in October 2016 because of the incident in April 2016. I note this information was not mentioned in her protection visa application lodged in January 2018.
101. At the first hearing before the Tribunal, the applicant said that she sold one house in 2016 after the April 2016 incident and the other in early 2017. She indicated that she did not have the sale agreements for these properties because she did not bring anything with her and that ‘the kids’ lost some of their stuff.
102. In addition to the above inconsistencies about the claimed timing of the sale of these properties, as put to the applicant under s 424A of the Act, the applicant’s now Australian citizen son’s statement provided in support of her visitor visa application, which was granted in September 2017, indicates that at the time she was receiving proceeds from rental properties in Pakistan, which was her source of income, and that she would be able to support herself during her stay in Australia. As explained to the applicant, this is contrary to her evidence that she sold the property in 2014 when she sent her son to study in Australia, or October 2016, or in early 2017, and that she has no means of supporting herself if returned to Pakistan.
103. In response to the above concerns, the applicant submits that as claimed at the hearing, she sold one property in 2016 and the other in 2017. She states that she does not have the sale deeds because they lost ‘stuff’ in between transporting ‘things’ from place to place and that her children looked everywhere but were unable to locate the sale deeds. This does not explain the applicant’s evidence that she sold one property in 2014 to send her son to study in Australia.
104. Regarding the discrepancy between her son’s statement in support of her visitor visa application and her evidence that she was receiving rent from her properties in September 2017 and was able to support herself during her stay in Australia, the applicant claims that her son was unaware of the sale of the properties and the circumstances of his family in Australia. She explains that her son in Australia is the most sensitive of the 3 children and that after the 2016 incident he failed a couple of his subjects. I do not accept the applicant’s explanation in this regard. Apart from the contradictory nature of her evidence and lack of any evidence to support her claim that she has sold the properties, there is no explanation as to why her protection visa application lodged in January 2018, which indicates that after the death of her husband she supported herself with rent monies from her properties, did not indicate that the properties were sold prior to her arrival in Australia. In addition, I do not accept that the applicant’s son in Australia would have been unaware of the sale of these properties, particularly given that the applicant claims that one was sold to assist her son to study in Australia. I am of the view that, as with other claims discussed below, the applicant has not been truthful in this regard and has given evidence with a view to bolster her claims for protection.
105. While I accept that the applicant and her husband own properties as claimed and that she used the money from rental proceeds of this property to support herself after her husband’s death, I do not accept the applicant’s evidence that she sold the properties as claimed and that she does not have access to income from these properties to support herself if returned to Pakistan.
Death of sister in 2017
106. While not raised in her protection visa application, in a submission to the delegate in January 2019, the applicant claimed that on 21 October 2017, her sister was on her way to pick up the applicant’s son returning from Australia to Pakistan. She was involved in a ‘hit and run’ incident which resulted in her death in November 2017. The applicant claimed that she received an anonymous call on the day of the incident which indicated to her that her sister was targeted because she was mistaken for the applicant.
107. At the first hearing before the Tribunal, the applicant gave evidence inconsistent with the above. She stated that on 21 October 2017, her sister came to her house because the applicant was hosting a religious ceremony. Her sister wanted to visit the applicant’s son who had arrived from Australia, and on her way back home from the applicant’s house, she was in an accident.
108. In response to the contradictory nature of her evidence, the applicant claims that the information presented to the delegate was a mistake. She submits that her English is poor and that she heavily relied on her son to check the information and that he has erroneously missed these statements. I am not persuaded that the significant contradictions can be explained by the applicant’s son making a mistake or failing to check the accuracy of the information. The discrepancies in the applicant’s evidence, which relates to an event claimed to have involved the applicant’s son, are significant. I also note that the death certificates, and a photograph of a woman in hospital (not dated or identifying the person as the applicant’s sister) do not establish that the applicant’s sister’s death occurred in the circumstances claimed by the applicant.
109. In addition, the applicant’s evidence, which she claims to be the correct version of events, is that she was hosting a religious event at her family home. This undermines her claims that at the time she was fearing for her and her children’s safety, that she was living at her house discreetly by placing a lock on the outside of the property, and that she was living at different places with her siblings to avoid the attackers.
110. While I accept that the applicant’s sister may have been involved in an accident and passed away in November 2017, I do not accept that she was targeted because she was mistaken for the applicant or that she died in the circumstances claimed.
May 2018 incident
111. In her January 2019 submission to the delegate, the applicant claimed that on 3 May 2018, her son and daughter in Pakistan were attacked by hooded motorcyclists on their return from Imambargah to their aunt’s home. They sustained injuries but were too scared to go to the hospital or report the matter to the police and went home. She claimed that they went to the police station the next day, but the police refused to accept the complaint because they did not report the incident immediately after it occurred.
112. At the interview before the delegate, the applicant stated that her children were travelling from their uncle’s house to their aunt’s house when they were attacked, and that only her daughter was hit by the attackers.
113. At the first hearing before the Tribunal, the applicant provided further inconsistent evidence indicating that after the attack her children hid in a safe place for 3 hours before going to the police to file a report, which the police did not accept.
114. In addition to the inconsistencies in her evidence, while the applicant claims that the police did not file a report, she provided the delegate with a document which appears to be a report made by her son to the authorities requesting the arrest of the attackers.
115. These inconsistencies, which I consider to be significant, were put to the applicant for comment. In response, the applicant asserts that she thinks that her son, who assisted her with her submissions, made mistakes in explaining the incident, and that the document is just a receipt received by her son in Pakistan and not a police report. I do not find the applicant’s explanation persuasive. There are not only inconsistencies between the applicant’s evidence in her submission to the delegate and her oral evidence, but there are also significant inconsistencies in her oral evidence before the Tribunal. Her explanation that her son made mistakes in assisting her with her submission, does not explain the inconsistencies in her oral evidence. My concerns about the credibility of this claim remain.
116. In addition, the document claimed to be a police receipt, is titled ‘True Urdu to English translation’. The original document is not submitted and while the document appears to be a translation of an Urdu document, it includes stamps which do not appear to relate to the translation services. Given my concerns about the applicant’s evidence and the document provided, together with country information about document fraud in Pakistan cited above, I am not of the view that the document substantiates the applicant’s claim in this regard. I do not accept that the claimed incident occurred.
October 2020 incident
117. In her submission to the Tribunal in May 2024, the applicant claims that on 2 October 2020, her children in Pakistan were attacked by 2 men while stopping at a new bakery on their way to visit their uncle. The applicant claims that her daughter was shot in her left arm and her son was shot in his left leg. They were hospitalised and subsequently released.
118. At the first hearing before the Tribunal, the applicant claimed that although her children sustained gunshot wounds, they went to the police station to file a report. As discussed with the applicant at the hearing, she has provided 2 police reports regarding this incident, both of which note the date of the report as 2 October 2010.
119. In addition, while the applicant claims that her son and daughter do not leave the house since the April 2016 incident, do not work and are supported by a friend in Pakistan who pays for their expenses and that the applicant assists by paying for their rent, one of the police reports indicates that her children in Pakistan make money by taking part in religious processions.
120. In response to my observations about the applicant’s evidence regarding this incident and the supporting documentary evidence, the applicant maintains that her children went to the police station after being shot before going to the hospital because they were fearful that they would not be treated in hospital without a police report. The applicant has not provided any evidence, and there is no evidence before me, to substantiate her assertion that a hospital in Pakistan would turn away patients with bullet wounds without a police report. In addition, I find it highly implausible that the applicant’s children managed to go to the police station to report the matter, then took themselves to the hospital for treatment, without any assistance given that they were shot in the limbs as claimed. I am not convinced of the credibility of this claim.
121. While the applicant claims that her children have been in hiding and do not work, the information that they were visiting a new bakery and travelling on a motorbike from place to place, in my view, undermines that claim. In her submission to the Tribunal, contrary to her evidence at the first hearing, the applicant in an attempt to validate the authenticity of the information in the police reports, indicated that her children need to stay connected with the Shia community and have received opportunities to earn money by taking part in religious processions. I consider that if this was the case, that the applicant would have mentioned this when she was expressly asked about how her children were supporting themselves and their source of income.
122. While the applicant claims that the police reports supplied notes the date of the complaint as 2 October 2020, I note that one report notes the date of the incident as 1 October 2010 while the other notes the date of the incident as 2 October 2020. In addition, one report notes the ‘investigation date and report’ as 12 October 2020, while the other notes the date as 16 October 2020, and both reports note the ‘starting report’ date as 2 October 2010. Given these issues, considered together with country information about document fraud in Pakistan cited above, I do not accept that these documents are of any assistance in establishing the applicant’s claim.
123. Furthermore, as discussed at the hearing, the hospital records provided in support of this claim do not substantiate the veracity of the applicant’s claim that her children were injured in the circumstances claimed. The hospital notes from the Government of Punjab Health Department is unclear and it is difficult to make out the content. At the hearing, the applicant’s representative agreed with my observation and indicated that the copy was provided to her by the applicant. The document said to be from [Hospital 2], indicates that the applicant’s children attended on 3 October 2020, which is the day after the claimed incident, and provides no information about the reason for their visit, their injuries or treatment or when they were discharged. As explained to the applicant at the hearing, they appear to be emergency slips and cannot be given much weight in assessing the veracity of her claims that her children were shot as claimed or in the circumstances claimed.
124. On the evidence before me, I do not accept that the claimed October 2020 event occurred, or that the applicant’s adult children in Pakistan are in hiding and do not engage in activities or paid employment as claimed. I further note the applicant’s evidence at the second hearing, that her son is involved with and attends religious processions at the mosque, which also spill into the streets. This further detracts from the overall credibility of the applicant’s claims that her children in Pakistan are in hiding and do not take part in any activities.
Siblings in Pakistan
125. In her submission to the Tribunal, the applicant claims that her remaining sister and brother in Pakistan live within a ‘Shiite Mosque Compound as a sanctuary for protection from persecution by people of other Islamic sub faiths’. They do not go out of the compound unless it is unavoidable.
126. At the first hearing before the Tribunal, the applicant did not mention this when asked about the whereabouts of her siblings in Pakistan. She stated that her brother and sister reside at their houses in Lahore, that her sister resides about 10 minutes’ drive from her brother and that they go to the mosque and practise their religion and have not faced any issues nor been prevented from practising their religion.
127. In response to the discrepancy in her evidence in this regard, the applicant submits that it is her children who reside within the Shia Mosque compound, not her siblings as referred to in her submission. I do not accept this explanation. This is contradictory to the applicant’s evidence at the first hearing about her children’s circumstances in Pakistan, in that they are living at relatives’ homes, and that a friend who the applicant has known since her vocational training, which she completed in [Year], takes care of her children’s expenses. I consider that if her children were living at a mosque compound that she would have mentioned this.
128. On the applicant’s evidence, I do not accept that any of her family members, siblings, or children, reside at a compound at a mosque. I consider this to also be a further attempt by the applicant to bolster her claim for protection.
Overall assessment and findings
129. As set out above, like the delegate, I have significant concerns about the credibility of the applicant’s claims. My concerns about the credibility of the applicant’s claims and some of the documentary evidence relating to claimed incidents of harm in 2016, 2018, and 2020, are so numerous that I do not consider that they can be overlooked as minor inconsistencies or omissions that can be explained by a lapse in memory, passage of time, or attributed to the process of giving evidence through an interpreter or can be explained by the stress of giving evidence, her mental health conditions, or making mistakes in the written submissions. Not only has the applicant’s evidence evolved over time, but she has also not provided any reasonable or rational explanations for the concerns that have adversely affected the credibility of her evidence and her overall credibility.
[27] DFAT, ‘DFAT Country Information Report – Pakistan’, 25 January 2022, 20220125094359.
152. I accept that Shias have in the past been the subject of sectarian violence, that militants are still active in parts of Pakistan, and that there are concerns more generally about the security situation in Pakistan given its proximity to Afghanistan and other factors such as political instability and the historical nature of ethnic conflict and sectarian violence within the country. I note the applicant’s evidence that one of her distant relatives and members of the Shia community were killed in a bomb blast in Quetta in 2013 and accept that targeted attacks of Shias were more frequent in the past.
153. While I accept that militant attacks still occur in Pakistan, that sectarian violence can occur and that the risk of attacks on Shia communities cannot be said to have been completely eliminated, given the applicant’s overall profile and that she will very likely be returning to her local area in the Punjab province where her adult children and siblings and a friend remain, I am not satisfied the risk of harm to the applicant rises to a real chance. I consider the improvements in the security situation in Pakistan, the government’s efforts to curb militancy and terrorist attacks, the shift in militants’ efforts to attack security personnel and leaders, and the reduction in sectarian violence in recent years, as significant in assessing the applicant’s risk of harm in the reasonably foreseeable future.
154. While not of itself determinative, apart from the claimed incidents, which I do not accept, there is also no credible evidence before me that the applicant’s family members residing in her local area, or any other members of the Shia community in the area, have encountered any incidents of harm due to their Shia religion.
155. Considering the applicant’s overall profile and my findings about the claimed past incidents, I am not satisfied that there is a real chance that the applicant will be targeted or attacked by Sunni militants or the Sunni population for any reason, including her Shia religion. I also consider that her chances of suffering any harm due to sectarian violence or religious motivated attacks in the foreseeable future to be no more than remote. I do not accept that as a Shia, the applicant will be denied access to protection by the Pakistani authorities or that there is a real chance that she would face any harm at the hands of the authorities for reasons of her religion or otherwise.
Additional matters
156. As set out above, prior to the second hearing, the applicant was put on notice that I had concerns about her claims that she has no means of supporting herself. She was put on notice that I had concerns about her claims that she has no financial means to support herself and about her family circumstances in Pakistan.
157. At the second hearing, the applicant’s representative raised claims that if the applicant is returned to Pakistan she has no family support or means to support herself. It is submitted that she never worked and that after her husband’s death she relied on income from her and her husband’s rental properties which she no longer owns. She only has 2 siblings, who are in their [Decades], in Pakistan, and that her brother is no longer willing to support her because he does not want any troubles. I also note that the submissions prepared by the applicant’s representative refers to her as a widowed woman and having raised her children on her own.
158. I accept that the applicant’s husband passed away in 1999 and that she raised her children on her own. While the applicant completed high school and completed 2 years of vocational training, I accept that she did not work in Pakistan and stayed at home to bring up her children. Her evidence is that she was living in Pakistan with her children until her eldest son’s departure for Australia in 2014, after which she continued to reside with her two other children, at the family home, until her departure for Australia in October 2017. As noted in her protection visa application, after her husband’s death she supported herself and her children by rental incomes from 2 properties owned by her and her husband and she also received support from her eldest son and brother. As noted above, I do not accept that she has sold the properties and is no longer in receipt of any rental income as claimed. While I acknowledge that the applicant’s siblings are in their [Decades], given that I do not accept her claims about having been attacked or that she is wanted by the attackers, I do not accept that her siblings would not want to assist her or be of moral support to her because they do not want any troubles.
159. The applicant’s evidence, which I accept, is that she has been living with and financially supported by her son in Australia since her arrival in October 2017.
160. The applicant provided the Tribunal with documentary evidence that her now Australian citizen son was involved in a car accident in 2020. The information indicates that prior to the accident he was working as [an occupation 1] and also as [an occupation 2], and that due to back pain he stopped working as [an occupation 1] in December 2023 but due to financial necessity has continued with [occupation 2]. I note that the applicant’s son has been assessed as having suffered 13 per cent whole person impairment for the purposes of what appears to be a workers’ compensation claim regarding his work-related injury in 2020. At the hearing, the applicant confirmed that her son was injured in 2020, after which he had to discontinue working as [an occupation 1] but he continues to work as [an occupation 2] for about 4 to 5 hours per day.
161. I accept that that the applicant’s Australian son has reduced his working hours since December 2023 but continues to work as [an occupation 2] to support himself and that the applicant continues to reside with her son.
162. Given my concerns about the credibility of the applicant’s evidence and finding that she has not been truthful about her circumstances during the process of her protection visa application, I do not accept that the applicant’s adult children in Pakistan have been living in hiding and do not engage in any form of employment or are financially dependent on the applicant’s son in Australia or other relatives or friends financially.
163. On the applicant’s evidence, she has had the support of her Australian son, financially and emotionally, and there is no indication that he will not continue to offer her support if she returned to Pakistan. She has 2 siblings and 2 adult children living in Pakistan, and on her evidence, she received monthly payments from her brother as compensation for her inherence from her father. I note that she has been able to financially support herself and her children after the death of her husband in 1999. I also note that she has in the past been able to access medication for her health conditions. I do not accept that she has sold her rental properties in Pakistan, and in my view, she continues to receive rental income from these sources and has family support available to her if returned to Pakistan. I am not of the view that she will not have access to financial means to access healthcare or purchase medication or will not have family support to assist her with her healthcare needs, as claimed at the hearing.
164. While not expressly claimed, as referred to at the hearing, country information indicates that the situation for women in Pakistan is not ideal. Nonetheless, I must assess the applicant’s circumstances on return in assessing whether she faces a real chance of serious harm or is at a real risk of significant harm if returned to Pakistan, that including considering her past experiences, her family and financial situation, and other vulnerabilities.
165. Country information[28] indicates that rates of gender-based violence in Pakistan is high and that women, particularly those residing in rural areas, face restrictions in personal, economic, and social activities outside of the home. However, women in cities, including Lahore where the applicant resided and her family remains, enjoy relative freedom. There is no information to indicate that widowed women in Pakistan are targeted and the applicant’s evidence does not indicate that as a widowed women living in Lahore for several years and bringing up her children, she faced any issues or difficulties. I note that the applicant was educated in Lahore and apart from her claims relating to the April 2016 incident, which I do not accept, there is no evidence that she or her daughter faced any issues as women living in Pakistan. I also note that her circumstances, in that she has access to financial and familial support, do not render her vulnerable to gender-based violence.
[28] DFAT, ‘DFAT Country Information Report – Pakistan’, 25 January 2022, 20220125094359.
166. Considering the applicant’s particular circumstances, her past experiences and what I have accepted of her claims, in the context of country information before me, I am not satisfied that the applicant would be subject to significant economic hardship of a level that would threaten her capacity to subsist, or that she would not be able to access healthcare or medication due to her financial circumstances or otherwise, or that she would face any issues or difficulties as a widowed woman that would amount to serious harm, if returned to Pakistan now or in the reasonably foreseeable future.
167. At the conclusion of the hearing, the applicant’s representative confirmed that there were no other claims to discuss and that all claims and issues raised at the hearings and various submissions to the delegate and the Tribunal had been discussed. The applicant and her representative confirmed that they had nothing further to add.
Conclusion
168. In light of what I have accepted of the applicant’s claims and considering her particular circumstances, and her overall profile in the context of the country information cited above, I am not satisfied that the applicant faces a real chance of persecution in the reasonably foreseeable future, for the reasons claimed or any claims arising on the material before me. I am not satisfied that the applicant has a well-founded fear of persecution within the meaning of s 5J of the Act.
The applicant does not meet the requirements of the definition of refugee in s 5H(1). The applicant does not meet the criteria under s 36(2)(a) of the Act.
170. The Federal Court[29] has held that the ‘real risk’ test imposes the same standards as the ‘real chance’ test. As set out above, I have not accepted the applicant’s claims of past harm in Pakistan due to lack of credibility and I have found that she did not face any harm while residing in Pakistan. As set out above, I am not satisfied that the applicant faces a real chance of serious harm for any reasons, including for reasons of her religion, the general security situation in Pakistan, lack of financial or family support, as a widowed woman, or due to her health/mental health symptoms/conditions. Given my findings and reasons above, I am also not satisfied that there is a real risk that the applicant would face significant harm or that any treatment or challenges that she may face on return to Pakistan would amount to significant harm as defined under the Act.
[29] MIAC v SZQRB (2013) 210 FCR 505.
171. I am also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that she will suffer significant harm for any reason. I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Under s 36(2)(b) or s 36(2)(c) of the Act, an applicant may meet the criteria for a protection visa if they are a member of the same family unit as a person who (i) is mentioned in s 36(2)(a) or (aa) and (ii) holds a protection visa of the same class as that applied for by the applicant.
The applicant has not claimed and there is no suggestion that she satisfies s 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2) of the Act.
DECISION
174. The Tribunal affirms the decision not to grant the applicant a protection visa.
Samira Kamandi
MemberATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36 Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…
20210714090736.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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