1934366 (Refugee)

1934366 (Refugee) [2021] AATA 365 (7 January 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1934366
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Dr Colin Huntly
DATE:7 January 2021
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 07 January 2021 at 8:40am
CATCHWORDS
REFUGEE – protection visa – Pakistan – fear of harm from criminal gang – kidnapped and ransomed – refusal to cooperate with prosecuting authorities after threats from gang – criminal proceeding for non-cooperation and making false statements – credibility – vague, inconsistent and illogical evidence – travel under different names despite holding valid passport – no harm to brother, wife or children in home country – incorrect and incomplete information in application – representative’s conduct – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J(1)(a), 36(2), 65
Migration Regulations 1994 (Cth), Schedule 2
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 December 2019 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
Applicant migration history
The applicant first applied on 2 September 2013 to enter Australia under a false Pakistan identity ([Alias 1]) as a dependant applicant on a Higher Education (TU-573) student visa. This application was refused on 4 December 2013.
The applicant arrived in Australia unlawfully [in] September 2019 using a false Pakistan identity using the passport of another Pakistan citizen ([Mr A]). The applicant was not immigration cleared and was placed in immigration detention.
On 1 October 2019 the applicant applied for a Safe Haven Enterprise (subclass 790) protection visa (SHEV).
The applicant’s SHEV application was refused by a delegate of the Minister by written decision dated 3 December 2019.
The applicant seeks review of the delegate’s decision by this Tribunal.
Proceedings before the Tribunal
The applicant appeared before the Tribunal to give evidence and present arguments at three hearings over six days, all by video link from [an Immigration Detention Centre]. The Tribunal was unable to hold in-person hearings due to Departmental policy relating to detainee movement due to the COVID-19 pandemic.
On the morning of his first hearing on 23 April 2020, the Tribunal received advice from the applicant’s nominated representative that they no longer acted for the applicant and would not be attending the scheduled hearing. This matter is addressed separately below. Shortly after commencing the first hearing, the applicant confirmed that he had become aware that the representative had withdrawn from the application and the Tribunal adjourned the hearing to allow the applicant to make alternative arrangements. The first hearing was subsequently resumed and completed on 20 May 2020. At this hearing, the applicant confirmed that he wished to proceed without representation.
A second hearing on 12 August 2020 was adjourned due to interpreter difficulties and resumed and completed on 24 August 2020.
A third hearing on 7 December 2020 was adjourned due to a loss of electronic signal and resumed and completed on 11 December 2020.
As indicated, the applicant was not represented in this application by a registered migration agent. Issues arising from applicant representation are addressed separately below. The Tribunal was assisted in the hearings by the services of an interpreter fluent in both the English and Urdu languages.
Identity and receiving country
The applicant provided a copy of his Pakistan passport to the Department with his application for protection. I have reviewed this passport and, as indicated above, have had the opportunity to interview the applicant at three hearings, held over six dates.
Based on the information before me, I find that the applicant is a citizen of Pakistan, which is also the receiving country for the purposes of the refugee and complementary assessments.
In light of the findings made below, it has not been necessary to make findings pursuant to s.36(3) of the Act relating to third country protection.
WHAT IS THE BACKGROUND OF THIS APPLICATION?
Introduction
The applicant originates from Wah Cantt. (by way of Rawalpindi), Punjab province, Pakistan.
He seeks protection in Australia and claims to engage Australia’s protection obligations for the essential and significant reason of his being kidnapped and seriously harmed by criminal thugs in Pakistan as retribution for having given evidence against them in criminal proceedings in that Country. The applicant claims that he cannot access effective protection in Pakistan because there are outstanding proceedings in that country because he refused to give evidence against the criminal thugs due to threats made against him by those agents of harm.
Delegate’s decision
In a written decision dated 3 December 2019, a delegate of the Minister refused to grant the applicant a protection visa. The delegate summarised his reasons for refusing to grant the visa as follows:[1]
While the above information indicates issues in security and judicial processes in Pakistan, I find the applicant, as stated, has not been further harmed due to taking legal action against his claimed kidnappers. While I accept the applicant was kidnapped in 2012, and that he may still be attending court hearings in Pakistan, I find that the applicant has fabricated his claims of recent problems and that he does not genuinely fear for his life in Pakistan for the reasons claimed. I find that he does not have credible fears of being harmed in Pakistan.
Given the applicant and his family have continued residing in the same city, including residing in a house close to their family house for the last 2 years, I find that the information before me indicates that the applicant would be able to return to Pakistan and live in his stated residential address in Pakistan.
[1]Delegate decision record, 3 December 2020, at (12).
Tribunal’s decision in summary
After considering the application for protection afresh, I have concluded, for different reasons, that the decision should be affirmed.
In particular, I have made a number of adverse findings relating to the credibility of the applicant’s core claims for protection. As is discussed in detail below, in part my findings have been made due to certain corroborating evidence that the applicant has adduced. Some of this evidence was unsatisfactory in its terms, some was inexplicably illogical and some has been deprived of persuasive force because of the existence of inconsistent statements made by the applicant. In the course of this decision I have found, for reasons explained below, that the applicant is not generally a witness of truth.
I have considered the applicant’s claims for protection under the refugee criteria at s.36(2)(a) of the Act and have found that they lack the necessary nexus with the refugee criterion at s.5J(1)(a) of the Act. I have further considered the applicant’s claims for protection under the complementary protection criteria, individually and then cumulatively and I find that the applicant does not face a real chance of serious harm in Pakistan now or for the foreseeable future from any agent of harm for any reason.
Agent’s conduct
As noted above, the applicant’s representative, an Australian lawyer and a registered migration agent, advised the Tribunal on the morning of the first hearing on 23 April 2020, that they were no longer representing the applicant in this application. The relevant email correspondence reads as follows:
We are withdrawing as the applicant’s representative; [the applicant] will still be attending his AAT hearing today via teleconference.
Attached is a signed AAT withdrawal form, confirming that we no longer act for the review applicant.
Should you have any queries, please contact the writer.
Attached to this correspondence is a “change of representative” form, bearing the same date and signed by the representative.
Following a brief hearing with the applicant via video-conference later the same date, the Tribunal sent the following email to the representative:
The Tribunal notes your advice of 23 April 2020 by email that you no longer act for the above applicant.
The Tribunal notes that you and the applicant were advised of this hearing on 14 April 2020 by email.
At the hearing on 23 April 2020 at 1 :00pm WST, the applicant stated under solemn affirmation that he had no notice that you no longer acted for him in this matter. As a result, the Tribunal and applicant have been put to the avoidable inconvenience of adjourning this hearing to another date so that the full circumstances can be ascertained.
Please advise how, why and when precisely you ceased to act for the applicant and provide confirmation of the precise details whereby the applicant was made aware of this by you.
We seek this information on or before 7 May 2020.
As at the date of this decision, no response has been received from the representative. The Tribunal has been so concerned about the representative’s conduct in this matter that it takes the unusual step of referring to it directly in this decision. The Tribunal is not a supervisory authority either with respect to migration agent conduct or the professional conduct of Australian legal practitioners. However, it is hoped that by highlighting this, particularly egregious, lack of professional conduct on the part of the applicant’s representative, that further inquiries might be made by the relevant authorities.
It must be of concern that an Australian legal practitioner practicing in the migration jurisdiction should conduct themselves with such discourtesy towards both their client and the Tribunal. The Tribunal notes that, despite granting the applicant a reasonable opportunity to secure alternative representation following this withdrawal of representation, the applicant subsequently elected not to appoint a representative after 23 April 2020.
No inference adverse to the applicant has been drawn with respect to these matters in the course of this review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c). That is, they must either be a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or be 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) of the Act, 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
Applicant’s claims
First hearing
As indicated above, on commencing the first hearing on 23 April 2020 it became apparent that the applicant did not know that his representative had withdrawn his services earlier that same day. I discussed the summary of the applicant’s protection claims made in his original application for protection from the delegate’s record of decision at Part 4. A copy of this decision record had been submitted to the Tribunal by the applicant with his application for review.
Claims
The relevant summary of the applicant’s protection claims is as follows:
·The applicant was doing business in Pakistan and owns many houses and blocks of land including heritage properties.
·The applicant was kidnapped in November 2012 and his family was made to pay a ransom for his release. He was released after 4 days of being detained.
·The incident was registered with the police and a copy of the First Information Report (FIR) in Urdu was submitted.
·His kidnappers were arrested and taken to court, however after many threats during the trial, the applicant did not pursue the case.
·The last kidnapper was arrested in 2017 when he returned from [Country] but because the applicant was under threat he refused to identify the last kidnapper.
·The Anti-Terrorist Court ordered criminal proceeding against the applicant for lying and not cooperating with the Courts. This matter is pending in the Court.
·The matter was reported on [deleted].
·The kidnappers registered an FIR against the applicant in 2018 and accused him of shooting at their home which was false considering the applicant was at another location and had provided CCTV footage [as] evidence of where he was located.
·[In] March 2019, that applicant was kidnapped again by the same group of people. They took him from the park when he was jogging. As far as he remembers there was a group of 2 girls and 2 boys jogging.
·The applicant’s kidnappers are serious criminals with political connections and have spent a large amount of money defending themselves against the applicant.
·[In] July 2019, the applicant’s parents paid the equivalent of AU$[Amount] dollars for his release and promised through a third party to pay a further $[Amount] by December 2019 after selling one of their shops in the commercial plaza. The kidnappers threatened to kill the applicant if this payment was not made.
·The applicant’s family bought a passport and Australian visa for him to travel to Australia under the name of [Mr A]. The reason he came to Australia was because his sister is studying in Australia.
·The applicant’s mother emailed the Department on 01 October 2019 with a statement and attached FIR reports in Urdu from 2012 and 2018.
The applicant provided the delegate with further evidence relevant to his claims for protection prior to the delegate making the decision under review. In part, these new submissions included information about the applicant being the subject of a bench warrant issued by the Pakistan Anti-Terrorist Court for making false statements in the prosecution of his alleged kidnappers. The Department put certain adverse information to the applicant in an interview held on 23 October 2019.
In response to the adverse information put to the applicant further information was provided to the delegate. This information suggested that, in 2018, the applicant had been the subject of false criminal charges made against him by his 2012 kidnappers. After receiving further threats and surviving a second kidnapping by the same individuals in early 2019, a second ransom was paid to the kidnappers. The applicant changed his 2012 statement to police regarding his kidnapping and was subsequently charged with making a false statement. A bench warrant was issued for the applicant when he failed to testify against the final accused from the 2012 kidnapping charges. The applicant supplied a number of First Information Reports and other documents relating to the foregoing events.
Significantly, the Anti-Terrorism Court (Rawalpindi) summons on which the applicant relies is dated [November] 2019. This summons names the applicant, his elder brother (and business partner) [Mr B] and another business associate [Mr C].
Prior to resumption of the first hearing, the applicant submitted a letter dated 4 May 2020, bearing the letterhead of ‘[Mr D], Member Cantonment Board Ward No. [Number].’
At the outset of the hearing I noted that both the ‘Public Secretariat’ address given, and the ‘Chief Coordinator’ identified, on the document did not match publicly available information posted on the Rawalpindi Cantonment Board website (rcb.gov.pk). I referred to the DFAT reports of the prevalence of document fraud in Pakistan and noted that these reports were also referred to by the delegate in the record of decision which the applicant had provided to the Tribunal with his application for review.
I pointed out to the applicant that I could not place much weight on such a document, given that the applicant had no knowledge of its origins beyond having had it supplied to him by his brother, [Mr B], from Pakistan.
In response to these comments, the applicant subsequently responded by email, in an attachment dated 29 August 2020, in the following terms:
Dear sir He is elected member of our area and also one of the influential and politically family background his one is serving Chairman Union Council [Number, Location] Islamabad and 2 cousins have remained MPA and MNA from National Assembly and still one cousin [Mr E] is Divisional president of Rawalpindi sir he knows us and he helped us on many occasion and well aware about my circumstances that is why he given me reference letter in his personal capacity and now he also given his affidavit after appearing to Notary public and Magistrate.
His board send you an email and I was in Bee which confirms his Membership and Email address so if you still have any doubt about that letter which he provided me as a refrence you can write him directly at [Email address] and can cc to [email protected]. or can call him at [Telephone number] type="1">
I have considered this submission and the letter to which it relates and I am satisfied that the letter dated 4 May 2020 effectively restates selective portions of the applicant’s own narrative. I also note that the letter dated 4 May 2020 attests to states of mind and circumstances about which the author of the letter could have no personal knowledge. Given that the applicant himself has no personal knowledge of the circumstances by which the letter was prepared or procured, I am content to proceed in reliance upon the applicant’s own evidence relating to the events on which he relies in his claims for protection in Australia. While I accept the letter, I give it minimal weight with respect to the deliberative task before the Tribunal.
At the resumption of the first hearing with the Tribunal on 20 May 2020, I confirmed with the applicant that he intended to proceed with his application without representation until otherwise advised.
I put to the applicant that the documents that were submitted in support of his application for protection, and the narrative he had provided were confusing and difficult to understand. I asked the applicant whom it was that he feared would harm him on return to Pakistan. The applicant referred to ‘a group’. The applicant stated that this group of unknown criminal thugs represented a personal threat to him, because he had previously been kidnapped and a ransom had been extorted from his family to secure the applicant’s safe release.
The applicant’s evidence about whether the persons who had kidnapped him in 2012 and 2019 were the same people who had been convicted of the kidnapping in 2013 was not presented in a logical manner, was vague and internally inconsistent.
The applicant suggested that the persons who had been charged with his 2012 kidnapping had made false charges against him in 2018 and had kidnapped him again in 2019. Depending on which of the applicant’s narratives is relied upon, his alleged abductors in 2019 were either the same people who were charged with his 2012 abduction, or unknown persons.
I put to the applicant that his application for protection required an assessment of his basic credibility and the credibility of his claims for protection.
I noted that, if the applicant’s evidence was accepted, he is from a wealthy family in Pakistan; he was targeted by criminals associated with the Pakistan mafia seeking to profit by extortion through kidnapping; he was abducted for four days by persons known to him (or unknown to him in 2012) and his brother reported the matter to police. However, in 2019 the applicant claims that was abducted for three months (or three days or four months, depending on which of the applicant’s statements is accepted) by the same persons or different persons and did not report the matter to police. I pointed out that it was not logical to suggest that he would report such an abduction in 2012 but not report a similar abduction in 2019, particularly when the 2012 abduction and extortion complaint was investigated by Pakistan police, with subsequent arrests, prosecutions and convictions. I put to the applicant that the changing nature and illogicality of his evidence suggested that it was not credible.
I put to the applicant that (if his evidence was accepted), for whatever reason, he was the subject of a summons under pain of arrest, issued by the Anti-Terrorism Court in Rawalpindi. at the time he left Pakistan lawfully on his journey to Australia. I asked if the applicant had any documents relating to these events other than what was already on the files in my possession. The applicant stated that he had nothing beyond what had already been submitted to the Department. I invited the applicant to provide any further documents relating to the legal issues to which the applicant had referred.
The applicant confirmed that there was nothing in the documents before the Tribunal that needed to be changed. I asked the applicant if he had anything further that he wished to add to his claims for protection. The applicant stated that there was nothing further to add to his claims for protection. He stated that in 2019, a portion of his ransom was paid three days after his abduction in March securing his release, with the balance being paid to his abductors in July. I pointed out that this was not what was written in the applicant’s statement of claims attached to his application for protection and referred to in the delegate’s record of decision. The applicant asserted that this was an error made by his former representative, who assisted the applicant to prepare the statement.
Credibility concerns
I suggested to the applicant that credibility concerns were central to the delegate’s decision refusing the applicant’s application for protection.[2] I also put to the applicant that the delegate’s observation that there was a considerable time delay between the kidnapping in 2012 and the applicant’s departure from that country in 2019 appeared to be one a reasonable person might make. I also noted that the applicant was able to secure an appropriate police response to his abduction in 2013. An additional credibility concern expressed by the delegate related to the applicant’s willingness to attempt entry into Australia under an assumed identity on two occasions despite holding a valid Pakistan passport.
[2] Decision record at (10)-(11).
I suggested that, while a final determination of his application for review had yet to be made by the Tribunal, the applicant’s conduct outlined above reflected poorly on his credibility and these were matters which would need to be carefully addressed in future hearings.
Second hearing
As indicated above, on commencing the second hearing it became clear that proceedings would have to be adjourned due to interpreter difficulties. Accordingly, the hearing was adjourned to, and resumed and completed on, 24 August 2020.
At the resumed second hearing I took the applicant to the bundle of supporting documents that he had submitted to the Tribunal in support of his application for protection. This bundle included documents purporting to relate to the 2012 abduction of the applicant and the police investigation and judicial proceedings arising out of this matter.
Included in the bundle there are a number of documents written in Urdu, together with transcripts of these documents. After some questioning about the contents of these documents, the applicant acknowledged that they had been provided to him by his brother [Mr B]. The applicant had limited personal knowledge of the origins, authenticity or content of these documents. I note that, viewed beneficially, the documents might be characterised as being broadly consistent with the applicant’s narrative with respect to his 2012 abduction and the subsequent legal proceedings arising from this.
I note in this bundle, there is a transcript of a [deleted] dated 7 February 2018 and relied upon by the applicant. This contains commentary of a Police Officer [who] refers to [Mr B] as [an ‘Occupation]’. The transcript identifies one of the five alleged abductors of the applicant as ‘[Mr G]’, a former employee of the applicant. [Mr G] is named as one of the persons who collected the ransom in person from the applicant’s brother [Mr B]. Based on the submissions provided by the applicant, I also note that none of the allegations contained in this transcript appear to have been found credible in subsequent legal proceedings and all charges appear to have been dismissed against those accused.
If the attached documents are authentic, judgement was delivered (by [a] Judge in the Anti-Terrorism Court in Rawalpindi), [in] August 2013 following a trial of three of the five accused persons (including [Mr G]) on charges arising from the alleged abduction of the applicant in 2012. According to the extract of judgement, while both the applicant and his brother [Mr B] had identified the accused persons at a police identity parade as the perpetrators of the abduction and extortion, they recanted this testimony during the trial and were treated as hostile witnesses by prosecution counsel. All three accused persons before the court at that time were found not guilty and immediately released.
In sworn statements, subsequently submitted to the Anti-Terrorism Court dated 31 January 2019, the applicant and his brother both stated respectively:
It is correct that [in] 12.2017 I identify the accused [Mr I] during ID parade held at [a] Jail. Volunteered that I identified accused [Mr I] due to misunderstanding. It is incorrect to suggest that I affected compromise with the accused. Hence, I deposed falsely.
And:
It is correct that [in] 12.2017 ID parade of was conducted of accused [Mr I] at [a] Jail. It is correct that I identified the accused [Mr I] [in the ID parade as accused. It is not in my knowledge that [in] 01.2018 accused [Mr I] got recovered a ransom amount of Rs.[Amount] from his house. It is incorrect to suggest that I affected compromise with the accused, hence, I deposed falsely.
It is of significance that prior to the trial the applicant and his brother gave sworn evidence against the accused (including in identity parades) while at the trial, when called to give evidence, both brothers claimed that ‘none of the accused present in the court today were involved in [the applicant’s] abduction in any manner.’
Regarding the changed testimony of the applicant in this matter, in an unsigned submission included with his document bundle, the applicant stated:[3]
We change our Statement in Court due to life threats and helps/favour 2^nd accused [Mr I] who admitted his crime of [kidnapping] (our Statement in Court).
[3] At [11].
I also note the bundle of documents contains a transcript of a remarkable character reference purporting to be from an ‘Ex-[Rank] Punjab Police’ from Rawalpindi Police Headquarters who retired from a senior position with that agency in December 2015, in the following terms:
I [name deleted] National Identity Card [Number], am the retired Police officer and served Punjab Police Pakistan almost last [number] years. I retired from Punjab Police as [Rank] Head Quarter Rawalpindi Dated [in] 2015.
I confirmed that I know [the applicant] and his whole family since almost last 20 years they are very respectable and known family in Rawalpindi/Wah Cantt.
I confirmed [the applicant] was kidnapped in year 2012 and his brother registered an FIR in Police Station [Suburb] Wah Cantt, at that time I was working as a [Police] at Special Branch, His family paid a Ransom amount for his release and he recovered after almost 3 to 4 days and later he changed his statement in court just for to release kidnappers just due to threats which he received during that time.
Later in Year 2019 [the applicant] was again kidnapped by the same group after several threats and this time he and his family did not told to anyone Even did not take the help from Police or agencies just for his life safety and paid ransom amount.
I am giving this statement in the best of my knowledge and if you need any information regarding him you can contact me any time in below number.
I note that this statement attests to facts that cannot reasonably be in the personal experience of the person represented as its author. I note the specificity of the statement where it asserts that ‘later he changed his statement in court just for to release kidnappers just due to threats which he received during that time.’
I note that this statement runs entirely contrary to the applicant’s sworn statement and sworn evidence to the Anti-Terrorism Court in Rawalpindi in 2013 and attests to the applicant’s state of mind. I also note that, by the terms of the statement itself, the maker of the statement would have been in a senior position of Police responsibility in the Special Branch and would have been in a position to assist the prosecuting authorities both in 2013 and later in 2018 and 2019. Accordingly, I do not accord this document any probative weight in the present context.
I also note that the applicant has provided a support letter from his mother in Pakistan. This letter is understandably strenuous in supporting her son’s claims for protection in Australia because of circumstances arising from the alleged abduction of the applicant, the payment of ransom monies to the kidnappers, the lodgement of an FIR against five persons and charges made by both the applicant and his brother [Mr B], which were subsequently recanted. However, the complete lack of reference to [Mr B] in any of these statements is striking. This is because, by all accounts, [Mr B] was equally implicated in the same conduct as the applicant and, presumably has an equivalent profile in Pakistan as that of the applicant, with due allowance for individual circumstances.
It appears from the applicant’s submissions that the charges against the remaining two accused persons who had escaped the jurisdiction prior to the 2013 trial have either been dismissed by orders of [a judge] of the Anti-Terrorism Court in Rawalpindi, dated [February] 2019 (regarding [named person]), or were likely to be dismissed subsequently (regarding [another named person] who, at that time appears to have been resident in [Country]).
Once again operating on the assumption the documents submitted by the applicant are credible, following police investigations into the recanted testimony of the applicant and his brother [Mr B] referred to in the [August] 2013 Anti-Terrorism Court judgement, summonses under pain of arrest were issued [in] November 2018 relating to the alleged false testimony in this case given by both brothers. I note that there appear to be two different summonses issued by the same judicial officer [on] the same day under the same case references and offences. No explanation for this apparent anomaly have been given. One summons lists the applicant and ‘[Mr C]’ as subjects, giving a summons date of [Date 1] November 2019. The other summons lists the same individuals, but also lists [Mr B] as subjects of the summons and giving a different summons date of [Date 2] November 2019.
Coincidentally, on the same day that the foregoing summonses were issued ([November] 2018), it appears that one [Mr N] lodged a FIR at the same police station to which the foregoing summonses were addressed. The FIR states that the complainant had done business in Australia with one ‘[Mr O]’ for more than five years, but that civil proceedings were under way between the parties and relationships had deteriorated (‘soared’). Shots had been fired at the home of the complainant and he alleged that he had identified the perpetrators as ‘rental killers of [Mr O]’. The complaint suggests that the armed thugs shouted threats against the applicant, his brother [Mr B] and one ‘[name deleted]’.
After referring to the foregoing document bundle, I questioned the applicant about his personal circumstances in Pakistan. The applicant stated that he had been targeted by his initial kidnappers who lodged a ‘fake FIR’ against him, alleging that the applicant had discharged a firearm at them. The applicant claimed that, by means of closed circuit TV footage, he had been able to prove these charges false. Nevertheless, the applicant persisted in his claims that he was subjected to a second kidnapping and ransom by the same persons, or parties unknown operating as part of the same ‘group’ in 2019.
In response to direct questioning, the applicant disclosed that he was married to a woman who was resident in Pakistan. With this person, he had [two children].
When asked about legal proceedings relating to the 2012 kidnapping and extortion, the applicant re-iterated that he had been pressured to change his testimony. The nature of the applicant’s recall suggests that, in general terms, the prosecution took place and the cases against the accused were dismissed in court due to the changed testimony of the applicant and his brother [Mr B]. It is of significance, then, that the applicant may have departed Pakistan when he himself was facing prosecution for giving false testimony.
Credibility concerns
I put to the applicant that a number of aspects of his narrative lacked credibility. Despite claiming to be a target for extortion due to his profile as a wealthy and successful business man in Wah Cantt., he made no attempt to increase his personal security, relocate within Pakistan, travel to another country and that he departed, leaving behind a wife and two infant children. I also noted that his bother [Mr B] had apparently remained in Pakistan without any adverse consequences to him either from criminal thugs or the prosecuting authorities. I asked the applicant to reflect on these concerns prior to the next hearing and invited him to respond in writing.
Third hearing
As indicated above, a third hearing was held with the applicant on 7 December 2020 and was partially completed on that date before being interrupted by a loss of electronic signal.
At the hearing, I took more personal history from the applicant. He is the son of wealthy parents who initially operated retail businesses in Rawalpindi, Pakistan. The nature of their business shifted to property development and retail leasing. The applicant has an older brother, [Mr B], who is married with [children] and living in Rawalpindi. The applicant’s older sister lives in [City] with her Australian citizen husband where they operate a [business]. The applicant’s wife and children live in Rawalpindi with the parents of the applicant’s wife. The applicant has a younger sister who is a student and who lives with her parents in Rawalpindi.
The applicant has business interests of his own, in addition to shared business interests with his older brother and his parents. He claims to have no business interests outside of Pakistan, but has lent small amounts of money to individuals within and outside of Pakistan.
I asked the applicant whom he fears as agents of harm in Pakistan and he stated that he feared harm from his former kidnappers. I asked the applicant why his brother [Mr B] did not also fear harm from these individuals or for giving false evidence in criminal proceedings in Pakistan. The applicant stated that his brother [Mr B] was in the process of liquidating his Pakistan assets and was trying to apply for a business visa in Australia.
Refugee criterion finding
I put to the applicant that nothing in his claims appeared to suggest a nexus with any of the categories in the refugee criterion at s.5J(1)(a) of the Act. The applicant made no submissions in response to this proposition. Accordingly, having considered all of the evidence referred to above, I find that the applicant does not hold a well-founded fear of persecution in Pakistan for any reason from any person now or in the reasonably foreseeable future for the purposes of s.5H of the Act. The applicant does not, therefore meet the criteria of a refugee as defined at s.5H of the Act.
It follows that the applicant does not meet the criteria for a protection visa at s.36(2)(a) of the Act.
Credibility concerns
I asked the applicant about the application made in 2013 on the applicant’s behalf for a student visa under the false name of [Alias 1]. The applicant claimed that this application was made without his full knowledge by an unscrupulous agent.
I asked the applicant how he arrived in Australia unlawfully in 2019. The applicant claimed that he was under a lot of stress after his second abduction and he acted out of deep fear and confusion.
I pointed out that, by leaving Pakistan lawfully and changing his travel identity in [Country] in transit to Australia to that of ‘[Mr A]’, the applicant’s conduct did not appear to be at all confused, but rather deliberate and calculated. As the applicant’s sister had travelled lawfully to Australia some five years earlier and given the evidence referred to above that [Mr B] had both experience of the [work sector] business and personal investments in Australia at the time of his departure, the applicant had the means to depart Pakistan and the necessary insight as to how one might lawfully enter Australia.

I note that the applicant included an undated written submission in the bundle of documents provided to the Tribunal and referred to above. In part, this written submission incorrectly refers to [Mr A] as ‘[misspelling]’ and stated as follows:
I am telling you now about [Mr A] whose Identity I used for travelling to Australia, He landed at Islamabad airport on Dated [Date 1] September 2019 while his family is living near to Lahore airport why he landed at Islamabad airport, I received him at Islamabad airport and he stayed in Islamabad at [a] Hotel Islamabad [URL] almost 3 days he stayed at same hotel from [Date 1] September to [Date 2] September and then he again came back and stayed from [Date 3] September till [Date 4] September 2019 (Letter from [the] Hotel is attached) and handover me all documentation, Passport, his family details, Family Registration Certificates even all the documents which he used to get his 1st visa, all CoEs valid and previous and after taking money he prepared me and allow me to travel on the same return ticket which [Mr A] used for coming to Pakistan (return Air Ticket is attached)which we changed before to travel but the ticket number is same not only this he check in on dated [Date 3] on the same passport at hotel while he claimed his passport was stolen, Dear Sir you can see that how I can get all these documents without [Mr A] permission, FRC of [Mr A] and Hotel data I can provide which proof he stayed in Rawalpindi. Sir he came to Pakistan just for some days just to meet his family than why he stayed in Rawalpindi he makes fraud and put me in trouble how I get his all personal details.
I questioned the applicant about his dealings with [Mr A]. The applicant stated that this individual was a cousin of the business partner of the applicant’s brother [Mr B], with whom he shared joint ownership in a [business] in South Australia. [Mr A] resided in Australia as a worker in this business. In other words, the false identity together with numerous corroborating documents used by the applicant to enter Australia was provided by an employee of the applicant’s brother, [Mr B]. None of this information supports the applicant’s assertion that his unlawful arrival in Australia was either spontaneous or the result of confused thinking on his part.
The applicant also indicated that the ‘fake’ FIR laid against him in 2018 was made by [Mr N]. This person was a sometime business associate of both [Mr A] and the applicant’s brother [Mr B]. I noted that the common denominator in all relevant matters appeared to be the applicant’s brother [Mr B], who continued to reside with his family in Rawalpindi.
I asked the applicant why he did not report his claimed second abduction and ransom in 2019 to Pakistan police. The applicant stated that he was not satisfied with the outcome of the 2012 complaint to police. I pointed out that, accepting the applicant’s own evidence, that matter had been appropriately investigated and prosecuted and was only unsuccessful because the applicant and his brother [Mr B] had changed their evidence during the trial and had been found to be unsatisfactory witnesses. Accordingly, it could not be claimed by the applicant that Pakistan could not evince a reasonably effective police force, an appropriate criminal law or reasonably impartial judicial system based on the applicant’s personal experience in that instance. Shortly after this, the video link with the applicant was lost and the hearing was adjourned.
At the resumption of the third hearing on 11 December 2020 I reminded the applicant of the various credibility issues referred to above relating to his claims and conduct relevant to the review. I noted that he had answered question 32 on his Form 866C when applying for protection as having never been married. He acknowledged that this was not correct.
The applicant also acknowledged that he had not answered question 39 correctly either, relating to his ‘other family members who are in Australia or overseas and have not been included’ in the application for protection. Specifically, there is no mention of his own wife and two children, his youngest sibling is not mentioned and the country of residence was omitted for his listed brother and sister. The applicant indicated that this was due to confusion on his part at the time when he completed the form.
I put to the applicant that the nature of the omissions from responses at question 32and question 39 appeared more in the nature of deliberate deception than simple confusion on his part. In response, the applicant acknowledged that he had lied on the form so that his family members would not be affected by his disclosures.
I put to the applicant that he had not answered question 52 truthfully relating to how he obtained the travel document of [Mr A]. The applicant stated that he did not expect the person from whom he had obtained the documents to report them as being stolen. The applicant likewise acknowledged that his answer to question 55 about previously using lost or stolen travel documents was not correct. He had applied for a student visa in Australia in 2013 under a false name. In the same context, the applicant acknowledged that his previous exclusion in 2013 should have been reported at question 60.
I took the applicant to questions 86 and 87 of his Form 866C, which are both signed and dated by the applicant on 1 October 2019. The applicant acknowledged that, contrary to his solemn declaration, in a number of important respects discussed above, his application was not truthful and honest in every way or complete, correct and up to date in every detail. I put it to the applicant that his conduct and claims raised the question in the mind of a reasonable person whether he could be considered a witness of truth. In response, the applicant stated ‘Yes, you are right’.
I invited the applicant to make further submissions in response to matters put to him at the hearing if he wished. As at the date of this decision, no submissions have been received relating to credibility concerns put to the applicant at the hearings.
Credibility issues considered
By his own admission, the applicant and his brother [Mr B] gave false testimony in the course of judicial proceedings in Pakistan in 2013. This resulted in the applicant and his brother being declared hostile witnesses on motion of counsel for the prosecution and the subsequent dismissal of the proceedings against the accused. The applicant claims that he faced prosecution for giving false testimony relating to these proceedings at the time when he left Pakistan lawfully in 2019. Despite this, I note that the summons documents on which he seeks to rely relating to the outstanding charges against him are anomalous as discussed above. I also note that the applicant’s brother [Mr B] continues to reside in the same part of Rawalpindi with his family.
I also note that the applicant departed Pakistan without his wife and two children. Indeed, the applicant does not appear to have disclosed the existence of his wife and children prior to being directly questioned by me about his relationship status in the course of review proceedings. It is not credible to suggest that a person who genuinely feared harm from Pakistan ’mafia’ (as the applicant claims) because of his profile and wealth in that country would leave his vulnerable family unprotected in the same city he now claims to have fled in fear for his life.
In addition to his acknowledged false testimony in criminal proceedings in Pakistan, I note that he attempted to secure unlawful entry into this country by means of a deliberate and well considered plan in concert with business associates of his brother [Mr B] aimed at deceiving immigration officials. Further, the applicant subsequently engaged in deliberate conduct in the course of this application for protection aimed at shielding other members of his family from scrutiny by immigration officials in Australia. When it was put to the applicant that his conduct generally was not that which one could reasonably ascribe to a witness of truth, the applicant conceded the point.
On the basis of these considerations I find that the applicant is not a witness of truth.
I further find that, although the applicant may have been the target of abduction and extortion in 2012 by the five persons who were charged by Pakistan police and prosecuted through the Anti-Terrorism Court in Rawalpindi, he was not abducted for ransom by any persons in Pakistan in 2019.
Given the applicant’s evidence that the applicant’s brother [Mr B] has not been prosecuted for anything arising out of the prosecutions that were abandoned in 2013 due to the changed testimony of both the applicant and his brother [Mr B], and given that his entire family in Pakistan (including his wife and two infant children) remain unharmed, I find that the applicant does not hold a well-founded fear of harm in Pakistan for any reason from any person now or in the reasonably foreseeable future.
Complementary protection criteria finding
It is acknowledged that the international public health crisis arising from the current COVID-19 pandemic is a factor weighing on all potential removal decisions for visa applicants in Australia. I note that this decision is not a decision on removal. However, I am also mindful that this decision has the potential to give rise to such a decision in the reasonably foreseeable future. Accordingly, for the removal of doubt, I find that whatever measures may be applicable to the population of Pakistan generally in response to the present COVID-19 crisis do not, in the absence of additional considerations, amount to an intentional act or omission for the purposes of complementary protection provisions.
It follows that I am not satisfied that Australia owes the applicant any protection obligations because 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 the applicant will suffer significant harm from any person, for any reason now or in the reasonably foreseeable future.

100. Accordingly the applicant does not meet the criteria for a protection visa at s.36(2)(aa) of the Act.
CONCLUDING PARAGRAPHS
101. As discussed 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).
102. 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).
103. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
104. The Tribunal affirms the decision not to grant the applicant a protection visa.
Dr Colin Huntly
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

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.
…

[2021] AATA 365

7 January 2021

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction