1931115 (Refugee)

[2022] AATA 652

1931115 (Refugee) [2022] AATA 652 (10 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1931115

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Paul Noonan

DATE:10 January 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 10 January 2022 at 3:05pm

CATCHWORDS
REFUGEE – protection visa – Pakistan – Federal Court remittal – particular social group – person sought by extremists due to reporting their actions to the authorities – credibility concerns – document examination report – health claims – general fear of attack against mosque by extremists – generalised fear of violence and terrorism – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 91R, 91S, 424A, 438
Migration Regulations 1994 (Cth), Schedule 2

CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who claims to be a citizen of Pakistan, applied for the visa on 24 March 2014, after first arriving in Australia [in] February 2014 on a [temporary] visa.

3. The Tribunal accepts, on the basis of his passport retained on the Tribunal record and the delegate’s assessment as such, that the applicant is a citizen of Pakistan and has assessed his claims against that country.

4. As per the applicant’s protection visa application, dated 24 March 2014, to the Department, the applicant is a [age] year old male born on [date] in Lahore, Punjab Province, Pakistan.

5. On 1 June 2015 the delegate refused to grant the visa on the basis that the applicant was not a credible witness with respect to key aspects of his claims and that as a result he did not have a well-founded fear of persecution in Pakistan. The delegate was also satisfied that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Pakistan there is a real risk that he will suffer significant harm. The applicant subsequently appealed this decision.

6. On 5 September 2016 the Tribunal (differently constituted) affirmed the delegate’s decision as it did not find the applicant’s claims and associated evidence credible. The applicant appealed that decision.

7. On 9 October 2019 the matter was remitted by consent, with the Federal Court orders noting that:

   The First Respondent concedes that the Second Respondent denied the applicant procedural fairness and that this constituted a jurisdictional error of the kind found in the case of MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081, in circumstances where:

   (a) a delegate of the First Respondent issued a certificate pursuant to s 438 (1)(a) of the Migration Act 1958 (Cth) on 1 June 2015 and the existence of the certificate was not disclosed to the applicant in the course of the review by the Second Respondent; and

   (b)   at least some of the documents the subject of the certificate were relevant, or potentially relevant, to the issues arising on the review by the Second Respondent.

8. The applicant listed Urdu and Punjabi as languages spoken, but did not tick that he could read or write these languages.

9. The applicant states in the protection visa application that he belongs to the ‘Pakistani’ ethnic group and is of the Islamic faith. The applicant states he was married [in] August 2003. In his statement he mentions he has [number of] children.  The applicant provided the Tribunal with a copy of the delegate’s decision.

10. The hearing was scheduled during the COVID-19 pandemic and the Tribunal determined it was reasonable in the circumstances to hold a hearing by video conference. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conference. However the Tribunal adjourned the matter after some time in the video conference and held a further subsequent hearing in person.

11. The applicant appeared before the Tribunal (as presently constituted) on 14 October 2021 by video conference to present evidence and arguments in support of his claims. The Tribunal adjourned the hearing and reconvened on 16 December 2021 to discuss the application further in person. The applicant is unrepresented in this matter. The applicant did not call any witnesses to appear before the Tribunal in this matter. The Tribunal was assisted throughout the hearings by an interpreter in the Urdu and English languages.

    RELEVANT LAW

12. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, the applicant 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.

    Refugee criterion

13. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

14. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

15. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

16. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

17. Second, an applicant must fear persecution. Under s 91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s 91R(1)(b)), and systematic and discriminatory conduct (s 91R(1)(c)). Examples of ‘serious harm’ are set out in s 91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

18. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

19. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s 91R(1)(a) of the Act.

20. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

21. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

22. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

23. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’).

24. ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.

25. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.

    Mandatory considerations

26. 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

    Decision summary

27. The issue in this case is whether the applicant engages Australia’s protection obligations because he has a well-founded fear of persecution in Pakistan for the essential or significant reason of his membership of a particular social group. That is, a person sought by extremists due to reporting their actions to the authorities. The applicant has also raised claims, as set out in his written claims below, to fear harm due to his health, due to a general fear of attack against his mosque by extremists and a generalised fear of violence and terrorism in Pakistan. In the alternative, the issue is whether the applicant satisfies the requirements for a protection visa in Australia on complementary grounds.

28. The applicant’s claims for protection are contained in a Statutory Declaration dated 6 May 2014. It reads as follows:

    I, [the applicant], of [Address 1], do solemnly and sincerely declare the following:

    1.     I make this declaration in support of my application for a Protection visa.

    My Background

    2.     I was born in Lahore, Pakistan on [date] and have spent all my life living in Lahore up until last year. I have never been to University and have been a small general store owner in Lahore from 2000-2014. My store supplied goods such as milk, bread, sweets and basic food beverages. My parents were both born in Lahore, where they lived the majority of their life, the yahve both since passed away. I have one brother and one sister. I am married and have [number of] children. I am a citizen of Pakistan and I have provided my passport and citizenship details as part of this application. I identify as a member of the Jat community. I am Sunni Muslim.

    When I left my country?

    3.     I arrived in Australia by plane [in] March 2014 on a tourist visa, the tourist visa was lodged by a travel agent in Islamabad (Application ID – [number], Grant ID – [number]. I transited through [City 1], [Country 1] on my way to Australia. There was a nine hour halt at the airport in [City 1]. I have not left Australia since I arrived here [in] March, 2014. I applied for a protection visa only 3 weeks after I arrived in Australia and at no stage have I ever been unlawful, the DIPB has received my application, I have provided the DIBP letter dated 25 March2014 acknowledging receipt of valid application for PV (class XA) (Application ID –[number], Client ID – [number]. I was granted an interview on the 11th May 2015 with the DIBP.

    Why I left my country.

    4.     I am a devout Muslim and I attend prayers at my local mosque five times a day which I have done all my life. This Mosque is very near to my home. In late January 2014, for several days I noticed a man who was not a regular to the Mosque standing around the mosque talking on his phone. He was acting very strangely and looked suspicious. On the third day I heard him talking on his phone about the amount of people at the mosque at different times. I also noticed that he had a gun in his belt. Due to the high incidence of religious-based violence and random terrorist type attacks in Pakistan, I felt understandably fearful and nervous of this man. I've been going to the Mosque all my life and no one carries a gun to a mosque unless they are a dangerous person. I was afraid he was planning to attack the mosque or the members of my religious community.

    5.     This fear is why on the third day of seeing this suspicious man, [in] January 2014, I decided to call the police and inform them about this man and his suspicious activities. I telephoned the police to report the man on the emergency number '15'. I spoke to a police man who told me that he would give this report to the nearest police station. I gave them my name and address as part of the report. The police attended the Mosque after a little while in a police car. The man was still there and they put him in their car and took him away. They spoke to me about what I had seen and heard. They did not write a formal report or take a formal statement at this time. I again told them my name and address so they had my contact details.

    6.     On [date] January 2014 as I was walking to my sister's house in Lahore which is 25-30 kilometres from the mosque, four men came up behind me on two motorcycles. I had never seen those men before. They stopped in front of me and started verbally abusing me. They were angry and were claiming that I had called the police on their friend and proceeded to attack me. They knew my name. They said 'you got our man caught' and 'we will kill you'. I have no idea how they knew that I had been the one to report their friend. The only thing I can think is that the police have told them my name. In this attack I was threatened with physical violence and then repeatedly punched and kicked in the stomach, chest and head. They punched me on my face. I fell to the ground and they started kicking me around my stomach and my chest. I  was shouting out for help. This attack took place in a public place and after a few minutes multiple people came to my rescue and broke up the attack. I believe that if these bystanders had not intervened the men would have either beaten me to death or kidnapped me and taken me away somewhere. At that point in time the four men jumped back on their motorcycles and drove away. While I did not sustain any long term physical injuries, I was left bruised and battered for a two week period.

    7.     After this incident I was left scared and confused. I was in a state of shock at the sudden and alarming nature of the attack. While I did not suffer serious physical injuries I was left emotionally scarred, tormented and disturbed. This attack left me very anxious and in fear for my life. I was scared that they would come after me again and if there was no one around the next time they came, I could be seriously injured or killed. After the attack I reported this incident to the police. I have provided the report of the police in this application. There is one incorrect detail in the translation of this report. I do not know if this detail is in the original language report as I cannot read. I have been told that the English translation of the report says that the men had firearms. I did not see any weapons on the men who attacked me. They attacked me with their fists and kicked me. The only gun I saw was the one which the man outside my mosque had several days before. I am unsure why this detail is recorded in the report as this is not my memory of events. This may have been incorrectly recorded by the police but I was not aware of this until the English translation was explained to me as I could not read to check what the police initially recorded.

    8.     I am a Muslim man and belong to Ahl-e-Sunnat (Sunni) group. I believe one of the reasons I was attacked was that I reported a suspicious person at my Mosque. In Pakistan Muslim groups and Mosques are regularly targeted in random attacks by those who disagree with their beliefs. I believe this person who I reported may have been planning an attack like this and was against the religious group that I belong to. I also believe I was targeted because I spoke out and reported his behaviour to the police.

    9.     I am particularly afraid because the two incidents are clearly related. These men are organised. This group of men found me and attacked me three days after reporting the suspicious person. They were able to find me 30 kilometres from my mosque when I was going to visit my sister. It seemed like they knew where my sister lived and knew of my movements. They knew I had spoken to the police and reported their friend. This makes me really concerned because my report to the police was clearly not confidential and put me at risk. The fact that two incidents were 30 kilometres from each other highlighted to me that I faced a real risk of serious harm. After this second incident I made a police report. I have submitted a copy of this report with my application form. Even though I made this report, I was still fearful for my life because it's my belief that the authorities did not have the ability or the inclination to protect me as evidenced by the current climate in Pakistan which is shrouded in corruption and chaos. It is believed by the majority of citizens that authorities would not protect their citizens.

    10.  Pakistan is a country that currently is a place of significant unrest. Pakistan continues to face multiple internal threats to peace and is in a lawless state. The Pakistan Muslim League-Nawaz (PML-N) government came into office with an ambitious agenda of development and promised peace. However these efforts have stalled or reversed in a number of areas and the government today faces mass-protests from a number of domestic political opponents. The main factor in many of these conflicts is the weakness of the Pakistani state and its inability- or reluctance - to prevent and contain the actions of all violent sub-state actors. My personal experience of my report to the police becoming known to these men shows to me that the police are unable to protect me. In December of 2014 Pakistan was ranked the 8th most dangerous country in the world as ranked by the Country Threat Index (CTI) compiled by IntelCenter, a Washington-based . In this assessment they looked at the volume of terrorist activity, videos, photos, incidents and the number of people killed and injured in a country over the previous 30 days.

    My experiences of Persecution:

    11.  As stated I was attacked by four men who found me and took revenge on me after I reported their friend's suspicious activity around my local mosque to the police. I made a police report of the incident which is attached to this application dated [in] January 2014. It is my belief that the group of people who attacked me were targeting my Mosque and were therefore against my religious group. I fear therefore that I may be harmed or even killed due to my association with this Mosque, which is being targeted by these men.

    12.  However I believe I am at even greater personal risk because these violent men know I reported them to the police and are likely to harm me for this reason. I was not seriously physically injured in the attack, however as a result of the attack I was left in a state of mental despair. My country is one of the most dangerous countries in the world and even prior to this attack I was thinking of trying to leave Pakistan. However after this attack I knew I had no choice but to leave and stay away. I bought a plane ticket to Australia. I have [number of] young children and a wife to protect. I had already been targeted. I am so fearful of my life and my family's life I fled Pakistan on the basis of this fear and I am in search of a safer life for me and my family. The main reason I left alone was that I did not have the financial means to bring my family with me and so I was forced to leave them alone in Pakistan. I had sold a plot of land to afford the visa and the plane ticket. I had to pay a large fee to the agent to arrange the visa. I was told by the agent this was a [specific type of] visa which meant I could work when I got to Australia. But I believe it was really just a normal visitor visa. I left the money that was left over from the land sale to my wife to look after the family. I cannot return to Pakistan because I believe I will be targeted and the subject of serious violence by these men or their associates. Following the attack I fled to Australia [in] March 2014 on a plane in a desperate search for some safety. I am in regular contact with my family and I want to bring my family to a safer place where they can live without fear.

    13.  My fear of returning to Pakistan has been further established by events since I left the country. On or around [date] March 2014 (when I was in Australia) my family home was attacked by gun fire. My wife and children were in my home at the time it was shot. My brother was in the building but he lives on the first floor. My family reside on the ground floor. I have provided photos of the house with the bullet marks in the walls as an attachment to my original application. My family has fled from our family home since this event and are now in hiding in another area of Lahore. I do not want to reveal where they are in hiding for fear of them being found and killed. I believe that the same group of men who attacked me [in] January 2014 were responsible for this second attack on my family [in] March, 2014. The reason I believe this is because my wife and brother heard the men shout out my name as they shot at the house and they heard them shout out threats like 'we will kill [the applicant]' and 'how dare he get our man caught'. My wife called my brother for help. He lodged a police report about this incident. My wife and my brother both told me about this on the telephone. The police came and saw the house. I do not know of any further action taken by the police in this matter.

    14.  I do not believe the police can give me adequate protection. When I reported my suspicions to the police, it only meant that the violence against me escalated. I have heard no confirmation that these men have been arrested or what has happened to the man I originally reported. It is my belief that some members of the police force are connected to the terrorist groups who attack religious buildings such as mosques. The country information I have provided also supports the fact that the authorities are not able to effectively protect individuals from violence from non-state actors. Therefore I cannot seek meaningful protection from the authorities in Pakistan. This is why I am seeking protection from Australia.

    15.  There are no other areas of Pakistan that are safe for me and my family; it is an incredibly dangerous and unstable country. The people who attacked me knew my name and were able to quickly find me 30 kilometres from my mosque at my sister's house, which I rarely visit. They seemed highly organised and got this information very quickly. They even found my house and attacked my house with guns. I don't how big their group is. I don't know how they obtained information about me and my police report so quickly. I am suspicious due to their ability to get this information that they have contacts within the police. I believe they will be able to find me wherever I go in Pakistan. My family are all based in Lahore and I have run a small shop in Lahore as my means of supporting my family. I have only one brother and one sister who live in Lahore. I have always lived in Lahore and have no contacts or family in other areas. If there was anywhere else in Pakistan which I believed would be safe I would have sent my family there to hide.

    16.  As well as my general fear that my mosque is the target for religious-based violence, I fear I will be attacked again if I am forced to go back to Pakistan by the same violent group who have clearly singled me out to be targeted before. The fact that the same group of people attacked my family home, expressing anger that I had reported their friend, shows me that they will continue to try to take revenge on me or my family. I believe if I return to Pakistan they will find me again and they will kill me. I have a well-founded fear of being persecuted because of my association with my Mosque, my actions in trying to prevent religious-based violence, or my status as an individual who has reported violent men to the authorities.

    17.  I am outside the country of my nationality and am unable owing to my fear to return to my country of origin. This fear is well founded because both my family and I have been the victim of violent attacks due to my actions in trying to prevent religious-based violence or terrorism at my mosque. The fact that I have been individually targeted for reprisals means that there is a real and significant chance that if I was forced to return to Pakistan I would face. significant harm and possible death. There is no way that the authorities in Pakistan can provide meaningful protection to me because of the current climate in Pakistan which is in the top 10 most dangerous countries in the world at the moment.

    Time in Australia

    18.  As stated I arrived in Australia [in] March 2014. I have had a difficult time since being in Australia. I have been lawful in Australia from the moment I arrived and I applied for protection with three weeks of arrival so I have not delayed this application. I miss my family terribly. I have left my wife and my [number] beloved children in one of the most dangerous countries in the world in the hope that I can find a better life and protect them in the future. This has been a traumatic experience for me and as a result I have suffered some serious physical health problems which I have provided evidence of from numerous doctors. I suffer from Tuberculosis and some severe spinal problems (as documented in this application) and these conditions along with my separation from my family and country have contributed to a very difficult and painful life in Australia so far.

    19.  I have a well-founded fear of persecution because of because of my association with my Mosque, my actions in trying to prevent religious-based violence, or my status as an individual who has reported violent men to the authorities. I seek protection from Australia based on my real risk of being subject to further attacks if l was to be forced to return to Pakistan.

    AND I make this solemn declaration by virtue of the Statutory Declarations Act 1959 as amended and subject to the penalties provided by that Act for the making of false statements in statutory declarations, conscientiously believing the statements contained in this declaration to be true in every respect.

29.   Prior to the hearing the Tribunal wrote to the applicant on 6 August 2021 and informed him that it considers a non-disclosure report, dated 1 June 2015, issued under s 438(1) with respect to a document examination report contained on the applicant’s file to be invalid. The Tribunal attached the document examination report and noted it contained potentially adverse information.

1. On 26 August 2021 the Tribunal received the following response to its letter of 6 August 2021 from the applicant:

   Dear sir,
   In reply to your email in which you asked about the credibility of my submitted police reports, As you aware that I am an illiterate person and do not know much about the official things. I discuss this issue to my family members is pakistan and they contact the relative persons of these police reports. According to them the points raise from your side are not a issue.
   1. In majority (sic) of police report they stamping on same place.
   2. The wording of both police reports are samilor (sic) because they are interrelated.
   Moreover, we are attested both police reports by magistrate.
   If I can do anything else for your stratification, Please let me know. I will try my best to slove this issue and we can discuss more when I will come for interview.
   
   Regard,
   [the applicant]”

2. The applicant attached untranslated copies of the original police reports with a stamp “[name] – Civil Judge 1^st Class Lahore”, dated [in] August 2021.

3. Following the first hearing the Tribunal wrote to the applicant under s 424A with respect to the document examination report as follows:

   The information contained in this document examination report is relevant because it may cause the Tribunal to doubt the truthfulness of your evidence and to consider that your claims lack credibility. It may lead the Tribunal to not accept that you were attacked as claimed. The particular information in the examination report relevant to the Tribunal’s considerations in this regard are as follows:

   ·     the examiner concluded that the reports were produced from the same copying or printing device citing identical line break and trash markings.

   ·     the police reports claim to have been produced from separate police stations and accordingly could not have been printed from the same device.

   ·     that an original source document has been used to produce each fraudulent report as replica source marks are contained on each report in the form of stamp markings.

   ·     That the purported wet stamps on each document are in identical positions indicating they have been fraudulently entered.

   The Tribunal also notes that you have subsequently submitted claimed attestation stamps as to the police reports authenticity by a judge in Pakistan. The Tribunal is concerned that the claimed attestation stamps have no official insignia or accompanying letter or independent verification of their authenticity.
   This would be the reason, or part of the reason, why the Tribunal would affirm the decision under review. If the Tribunal relies on this information in making its decision, it may not accept that you have a well-founded fear of persecution if you return to Pakistan or that there is a real risk that you will suffer significant harm as a necessary and foreseeable consequence of you being removed from Australia to Pakistan.
   You are invited to give comments at the forthcoming hearing or respond to the above information in writing prior to the hearing…

4. No further response was received from the applicant in writing and the Tribunal discussed its concerns with the applicant during the subsequent hearing.

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

   The Tribunal hearing

6. The applicant stated that he has worked as a [Occupation 1] in Australia for the past five years. He stated that he is still married and his wife and children live with his brother-in-law in Lahore. All the children attend a local school. His family house is rented out.

   Claim - a person sought by extremists due to reporting their actions to the authorities.

7. The Tribunal acknowledges the importance of adopting a reasonable approach when making findings of credibility.[1]  However the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, that it is ‘well-founded’ or that it is for the reason claimed.  Rather it remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. 

   [1] Guo v MIEA (1996) 64 FCR 151, per Foster J at 194 (Full Federal Court)

8. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at [482]:

   …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

9. The Tribunal also accepts that ‘if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

   The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible, and must not run counter to generally known facts.

10. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

11. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

12. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547).

13. The Tribunal has significant concerns with respect to the credibility of the applicant’s evidence about this claim as follows.

14. Firstly, the Tribunal discussed the subject of the non-disclosure certificate being the document examination report, produced by a forensic document examiner of the Department of Immigration and Border Protection, dated 27 May 2015, with respect to two Pakistan police reports he submitted to the Department which were deemed to be fraudulent. The applicant submitted that he had the documents attested as to their authenticity by a judge in Pakistan. He pointed to the stamps on the re-submitted certificates. The Tribunal has carefully examined the document examination report and, as put to the applicant, considers that he has not adequately rebutted the examiner’s conclusions. In particular the examiner concluded that the reports were produced from the same copying or printing device. The Tribunal accepts the documents have been fraudulently produced as the police reports claim to have been produced from separate police stations and accordingly could not have been printed from the same device. In addition, the Tribunal accepts the officer’s conclusion that an original source document has been used to produce each fraudulent report as replica source marks are contained on each report in the form of stamp markings. The applicant responded to the Tribunal’s concerns by submitting that he is not that educated such that he can explain each aspect of the documents. The Tribunal put to the applicant that it may consider his claims not credible on the basis of these fraudulent police reports. The applicant merely asserted that he had subsequently sent the original reports to be attested and submitted them to the Tribunal. The Tribunal does not accept that the claimed attestation stamps prove that the police reports were not fraudulently obtained as they have no official insignia or accompanying letter or independent verification of their authenticity, and accordingly the Tribunal places far greater weight upon the document examiner’s report’s conclusions that the police reports are fraudulent.

15. The Tribunal finds that the applicant has submitted fraudulently produced police reports to bolster his claims to have suffered harm in the past in Pakistan due to his claimed reporting of a person loitering near his local mosque. The Tribunal considers this considerably undermines the applicant’s credibility with respect to this claim.

16. Secondly, when questioned, the applicant had no idea as to the identity of the man he claims to have reported or the group he was aligned to. He has no idea what has become of the man or his associates who he claims subsequently attacked him and his family home. The Tribunal put to the applicant that it may consider it highly implausible that he would have no idea as to their identity or the group they represent if he had been directly confronted by them and also if his family was continuing to be attacked by them or at risk of being harmed as he claims. The applicant submitted that he had simply not made any inquiries to ascertain the mosque man’s identity or the identity of his associates or their group. The Tribunal considers it highly implausible that the applicant would be disinterested in establishing the identity of the man or his associated group if he had suffered attacks as claimed, that the group’s identity would not be revealed in a subsequent attack on him or that he would not make inquiries with police, who he claims arrested the man at his instigation, if he and his family were genuinely at risk of harm from the group or persons associated with the claimed man at the mosque. This is especially implausible in circumstances where the applicant has decided to flee Pakistan and apply for protection in another country due to the claimed actions of the mosque man’s associates. It is far more plausible that the applicant has no idea as to the identity of the mosque man or his associates, and not sought to make any inquiries to establish their identity and group, because they do not exist.

17. Thirdly, the applicant submitted photos of chips in a wall which he claims were bullet hole markings made when his family home was attacked by the mosque man’s group or associates. The Tribunal put to the applicant that this could be of any wall. The applicant stated that he asked his brother to take photos and this is what he sent. The Tribunal finds it implausible that the applicant would not arrange or request further and more specifically identifiable photographs identifying his actual house and the claimed bullet holes. The Tribunal considers that it is far more plausible that these photos are of a random wall with markings that have then been submitted falsely to boost the applicant’s claims.

18. Fourthly, the applicant’s family have lived without incident for many years in the same city and the applicant somewhat contradicted his earlier claims by stating that they are in no current danger because they live with his brother-in-law in another part of the city. He has rented the family home out which has not been attacked again. The Tribunal noted that it may appear implausible that, if he was being actively sought by extremists as he claims, his family would be able to safely reside in the same city for many years without approach and his house would remain as an asset of his and unharmed. The applicant merely responded emotionally and unhelpfully that if the Tribunal wants to send him back it may as well kill him here. The Tribunal considers it far more plausible that the applicant’s family resides safely in Lahore and has done so for many years because he is of no adverse interest to extremists and not merely because they reside with the applicant’s brother-in-law.

19. The Tribunal has considered the supporting affidavits from the applicant’s brother-in-law and wife but these merely set out that the applicant has fled Pakistan due to fear of harm from extremists without providing any detailed evidence or submissions. The Tribunal considers these affidavits do not assist in any way in verifying the claims of the applicant by providing detailed corroborative evidence and further they are not from impartial sources. As such the Tribunal gives considerably more weight to its findings with respect to the credibility of the applicant.

20. For these reasons, considered individually and cumulatively, the Tribunal is satisfied that the applicant is simply a Sunni man who has not reported a suspicious man at his local mosque. Nor has he subsequently suffered harm at the hands of that man’s group or associates as claimed. As such the Tribunal finds that the applicant is of no adverse interest to any religiously terrorist motivated person or persons associated with an extremist man at the mosque. As such the Tribunal is satisfied that, should the applicant be required to return to Pakistan, there is no real chance that he will be targeted for serious harm for reason of being a member of a particular social group being a person sought by extremists due to reporting their actions to the authorities.

    Claim – Health claims

21. In his written claims the applicant stated that he suffered serious physical health problems. However, the applicant informed the Tribunal that he works in [a business] in Australia as a [Occupation 1]. The applicant stated that he occasionally has back problems. He has no other health problems. The Tribunal asked the applicant if he has any reason to fear harm should he be required to return to Pakistan for reason of his health. The applicant stated that he does not. The Tribunal is satisfied and so finds that there is no real chance that the applicant will suffer serious harm for reason of his health should he be required to return to Pakistan.

    Claim – General fear of harm due to his mosque being targeted for attack by extremists

22. The applicant confirmed to the Tribunal that the local mosque which he claims was the subject of suspicious activity by extremists no longer exists. On this basis the Tribunal finds that there is no real chance that the applicant will suffer serious harm for reason of his local mosque being targeted by extremists should he be required to return to Pakistan.

    Claim – General violence in Pakistan and violence by terrorists

23. The Tribunal noted that the applicant is Sunni Muslim and that Sunni are the majority in Pakistan.[2] The Tribunal noted the applicant’s claims in 2014 and asked the applicant if he feared harm for reason of generalised violence or general terrorist related violence should he be required to return to Pakistan. The applicant stated that he did. The Tribunal put to the applicant that DFAT assessments with respect to the security situation and related statistics reflect that it is primarily minority religious groups, high profile politicians or security personnel who are actively targeted by extremists or are the victims of generalised violence.[3] The applicant merely reiterated that he fears harm from his claimed extremist assailants. On the basis that the applicant belongs to the majority Sunni Muslim faith and the country information with respect to the general security situation that reflects that people of the Sunni Muslim faith are not actively targeted for persecution, the Tribunal finds that there is no real chance that the applicant will suffer serious harm for reason of generalised violence in Pakistan or targeted violence by terrorists should he be required to return to Pakistan.

    [2] DFAT Country Information Report – Pakistan, 20 February 2019, p. 33

    [3] DFAT Country Information Report – Pakistan, 20 February 2019, p. 18

    Complementary protection

24. In considering whether the applicant meets the complementary protection criterion under s 36(2)(aa), the Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm.

25. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well‑founded fear’ in the Refugee Convention definition.[4] For the same reasons, the Tribunal does not accept there to be a real risk that the applicant would face significant harm on this basis for the reasons claimed if returned to Pakistan.

    [4] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342]

    OVERALL CONCLUSIONS

26. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

27. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

28. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2).

    DECISION

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

    Paul Noonan
    Member