2000934 (Refugee)

[2022] AATA 2527

2000934 (Refugee) [2022] AATA 2527 (23 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:Mr George Vassiliou (MARN: 0746634)

CASE NUMBER:  2000934

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Denis Dragovic

DATE:23 June 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 23 June 2022 at 8:50am

CATCHWORDS

REFUFEE – protection visa – Pakistan – Federal Circuit Court remittal – imputed political opinion – family of a high-ranking government official – armed assault – fear of kidnapping – delay in applying for protection – Australian citizen child – security situation in Pakistan – request for Ministerial Intervention – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 91, 425, 499
Migration Regulations 1994, Schedule 2

CASES

BMY18 v Minister for Home Affairs [2019] FCAFC 189
DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64

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

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, and I accept, to be a citizen of Pakistan, applied for the visa on 15 August 2014 and the delegate refused to grant the visa on 26 August 2016.

3. The delegate found that the applicant would not face threats against his life if he were to return to Pakistan. The case was appealed but was found to have been submitted out of time and as such that the Tribunal did not have jurisdiction. The applicant appealed this decision to the Federal Circuit Court of Australia. The decision was remitted by consent for the following reasons:

   The Minister concedes that the decision of the Tribunal is affected by jurisdictional error of the type identified in DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 (DFQ17) at [41]–[65] per Perram J and BMY18 v Minister for Home Affairs [2019] FCAFC 189 (BMY18) at [32]–[35] per Reeves, Perram and Charlesworth JJ. In circumstances where the letter notifying the applicant of the decision of the Tribunal’s delegate to refuse to grant the applicant a visa did not clearly state the time by which the application to the Tribunal was to be made as required by subparagraph 66(2)(d)(ii) of the Migration Act 1958 (Cth), the Tribunal erred in concluding that the applicant was notified of the delegate's refusal decision in accordance with the statutory requirements (at [2]-[3]), that the review application was out of time, and that it had no jurisdiction to entertain the review application (at [9]-[11]).

4. The case was subsequently constituted to this member and an invitation to attend a video hearing for the 23 May 2022 was sent. The Tribunal received correspondence from the representative on the 18 May 2022. The representative wrote, ‘Please be advised that I cannot take part in Video conferencing. I do not have the facility to do this I have asked my client to come to my office and we can take art (sic) in the interview by phone.’

5. I accepted this request and exercised my discretion to hold the hearing by telephone. I determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. I 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 telephone. I am satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

6. The applicant appeared before the Tribunal on 23 May 2022 to give evidence and present arguments.

7. The applicant was represented in relation to the review.

   RELEVANT LAW

8. 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

9. 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).

10. 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.

11. 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.

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

13. 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.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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

19. 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’).

20. ‘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.

21. 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

22. 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

24. The representative stated that the applicant had been homeless in the past and that neither the applicant nor the representative had access to the documents submitted to the Department. I noted to the applicant at the hearing that the file was sparse with the only relevant documents within the Departmental file being a First Incident Report (FIR) from Pakistan that the applicant had submitted, the visa application, the delegate’s decision and the applicant’s passport. I summarised the key points from the documents verbally as well as shared my screen with the applicant and representative as and when relevant. The documents were also emailed to the representative by the Tribunal during the hearing and confirmed to have been received by the representative during the hearing. As noted, the applicant attended the representative’s offices for the hearing and as such had access to the documents as they were being discussed. I have considered whether these circumstances may have inhibited the applicant’s right to ‘give evidence and present arguments’ under s 425 and find that it had not.

25. The applicant is [an age]-year-old man from Quetta, Pakistan. He said that he was born and raised there and finished [school] there before coming to Australia. His ethnicity is Punjabi, but he said that his parents lived in Quetta as his father had lived there for work and his grandparents are from there. He said that he was born in Karachi in [specified year] but travelled back to Quetta with his parents. I accept this narration as fact.

26. The applicant’s father retired in 2008 and has since then been living in the same house in Quetta that the applicant grew up in. I accept this as fact.

27. The applicant claims that he was stabbed when he was very young. He said that he doesn’t know who the attackers were, and that he doesn’t know why he was attacked. I accept this as fact.

28. The applicant said that sometime around 2008 when he was in Quetta he was threatened by people in a car. He claims that they wanted him to tell his father about them. He said that he told his father who went to look for them, but they couldn’t find them. I accept this as fact.

29. The applicant has one brother who lives with his father and a sister who lives with her husband also in Quetta. The applicant acknowledged that his father and brother have not been threatened or harmed since his father’s retirement. I accept this as fact.

30. According to the applicant, his father held a number of positions in his career including that of [Official A]; [Official B] of [Town 1], a rural area [distance] from Quetta in Balochistan; and a role as [Official C].

31. Immediately before the father’s retirement he was posted to [Town 1] whereas the applicant and the remainder of the family lived in Quetta. The applicant claimed that his father had told him how at one stage some armed men attacked his home in [Town 1 variant] and tried to kill or kidnap him, but the police heard the gunfire and came and arrested the people. I accept this as fact.

32. The applicant’s father is claimed to be largely isolated at home. When he last spoke to him 2 months ago, the applicant said that his father didn’t mention any threats and the applicant doesn’t know why he is isolating. He subsequently said that his father is old and has some disabilities and that it is for the reasons of his disabilities that he has isolated at home. I accept that the applicant’s father is elderly and is isolated at home due to disabilities.

    Considerations

33. The applicant fears returning to Pakistan because he claims that his father received a lot of threats in the past arising from his father’s position as a high-ranking government official. The applicant fears that as a result of his father’s past the applicant will be kidnapped or killed.

34. I put to the applicant that his brother and father are living in the same house that they have been living in for many years and they have not been harmed, to which the applicant acknowledged that this was true. I asked him why he believes that he would be targeted when they have not been. He acknowledged that, of course it has been a long time, and no one will think about him.

35. The applicant had submitted a FIR at the Departmental stage. The FIR described a situation in 2014 in which the applicant’s father reported to the police that some ‘unknown persons conducted firing at his house’.

36. In discussing this FIR I shared my screen with the applicant to ensure he had access to the document.

37. The FIR had some concerning aspects to it including that it seemed to suggest that the applicant was residing with the applicant’s father at the time. I asked how it could be that the applicant was residing with the informant of the FIR if he was residing in Australia at the time. He first said that it was written in such a way as it was his postal address. I noted that further down it states, ‘Some unknown persons conducted firing at his house/get, therefore he came to report the matter because he wanted to save his son [the applicant].’ I noted that this also suggested that the applicant was there when instead he was in Australia. The applicant said that he doesn’t have an answer to this issue.

38. The applicant said that he obtained the document by asking his brother to provide anything which could help in his application for a protection visa.

39. I noted to the applicant country information states that obtaining fraudulent documents is easy:

    5.54 FIRs (First Information Reports, an initial police record of a complaint or reported crime) use standard forms with the relevant information written in by hand and are relatively easy to counterfeit. Reports exist of police accepting bribes to verify fraudulent FIRs. DFAT does not consider the existence of an FIR as conclusive evidence the events described in the FIR actually occurred.[1]

    The applicant responded that he was not aware of this.

    [1] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Pakistan’, 2022

40. I put to him that I was concerned that this was a fraudulent document. The applicant said that he isn’t aware of fraudulent documents.

41. I note that the FIR has substantial flaws, it references the presence of the applicant when he was in Australia. I am not convinced by the applicant’s attempt at explaining this vexing issue as it is not convincing. The FIR describes an attack on the applicant’s father’s house and yet the applicant at the hearing had claimed that his brother and father had not been targeted in their home in Quetta. I find it troubling that the applicant would appear to have forgotten such an incident. I note that country information states that FIRs are ‘relatively easy to counterfeit’. Based upon my concerns, the country information pertaining to the ease with which such documents can be obtained and the applicant’s inability to provide further information to clarify any of the concerns I had raised, I find that the FIR is fraudulent and does not describe an actual event.

42. I asked the applicant why it took him three years to lodge a protection visa application. He said that in his first year of education he ceased studying. He said that he initially thought that his father would be able to support his education, but this didn’t eventuate and instead he became homeless. He said that as he couldn’t continue his studies in Australia, he put in his refugee application. I note that this was three years after the applicant had arrived. I acknowledge that the applicant may have hoped for his residency in Australia to continue by way of a student visa and hence he did not immediately apply for protection but considering that he stated that he was unable to continue studies after his first year and yet he applied after three years is of concern. I place some weight on the applicant’s slow move towards claiming protection.

43. I asked why he thought that his father’s enemies would want to harm him considering that his involvement with the government ended fourteen years ago. He said that he is not sure what will happen in the future.

44. I find that any enemies that his father may have created through his career as an official in Pakistan prior to his retirement in 2008 would not lead to any level of harm flowing through to the applicant for the reason that neither the father nor his other son have been targeted since the father’s retirement fourteen years ago and the applicant’s own admission that no one would remember him. This is reinforced by the applicant’s delayed moves to apply for protection. As such I find that the applicant does not face a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of removal arising from his father’s past.

1. I have also considered the applicant’s own past. Regarding the earlier incident in which he was stabbed, I had accepted that it had occurred as narrated which was that it was a very long time ago. I note that since then, while he was still living in Pakistan, he did not encounter any further harm from those individuals. Regarding the second incident in which men in a car threatened him for reasons relating to his father, for the reasons explained in the above paragraph, I find that any enemies of his father would not seek to harm the son. As such I find that for the reasons of his own past, the applicant does not face a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of removal.

2. The applicant also said that he doesn’t want to return to Pakistan because of his [age]-year-old child who is an Australian citizen by way of the child’s mother who is of [specified] heritage. The applicant said that the child lives in [Suburb 1] with her mother. The applicant’s daughter does not speak Urdu. The daughter and mother could not visit him in Pakistan, he believes, as the mother would not want to travel to Pakistan. The applicant claimed that he had shared custody with the child seeing her from Friday evening to Sunday. Supporting evidence was provided and as such I accept it as fact.

3. I accept that the child, who does not speak any language spoken in Pakistan, would not travel with her mother to Pakistan into the reasonably foreseeable future. As such there is no possible risk to the applicant that could arise due to the mother or child’s presence in Pakistan.

4. The residual risk is psychological and emotional harm of being separated from them. Even were thus to rise to the level of serious or significant harm, the harm does not have a refugee nexus as is required by the Refugee Convention by way of the then Act’s s 36(2)(a) nor is there an intentionality to cause significant harm by another as is required under Complementary Protection (s 36(2)(aa)). As such I find that the applicant having an Australian citizen daughter who resides in Australia will not lead to the applicant facing a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of removal.

5. I also discussed with the applicant at the hearing the general security situation in Pakistan regarding terrorism and how it may impact his risk profile.

6. I acknowledged that country information indicated the security situation was bad when the applicant left Pakistan but that it has substantially improved through the intervention of government forces and that the military had not deemed it necessary to deploy to Quetta to fight against the Taliban.[2] The applicant responded by saying that he was not aware of the security situation in Quetta as it has been a long time and acknowledged that a lot had changed since he had left but was unsure whether for the better or worse. I put to him that the country information indicates that the general security situation is quite good to which he said that he doesn’t know because he doesn’t listen to the news.

   [2] South Asia Terrorism Portal: Quetta and and Pakistan Institute of Peace Studies Pak Institute for Peace Studies, ‘Pakistan Security Report 2021’, PIPS Research Journal Conflict Studies available at

7. While the removal of Imran Khan as Prime Minister has created political volatility, as was argued by the representative in his oral submissions at the hearing, no evidence is available[3] nor was any submitted to suggest that the overall security situation for people of the applicant’s profile who would be returning to Quetta would see a change in their risk profile arising from the change of government or any other change observable into the reasonably foreseeable future.

   [3] Google, Refworld CISNET

8. Having considered the general security situation I find that the situation is not such that any fears that have been discussed above that the applicant has would have their risk profile impacted nor that the applicant faces a real chance of serious harm or a real risk of significant harm arising from the general security situation.

9. I noted that in the original application the applicant had mentioned an ‘Ahmadi friend’. I asked if he had an Ahmadi friend to which he said that he did not have one.

10. I have considered the applicant’s overall situation cumulatively including that he has a father who retired fourteen years ago from senior positions in the local and provincial governments who may have established some enemies, that his father was attacked in the past, that the applicant was attacked when he was younger and that he has an Australian citizen child. I note that these particular circumstances of the individual do not sit in the abstract but must be considered within the backdrop of the security situation in Quetta, Pakistan. As such I reviewed the security situation in the country and found that the situation is not such that his profile would rise to a level of risk that would trigger Australia’s protection obligations.

11. 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 the Refugees Convention. Therefore, the applicant does not satisfy the criterion set out in s 36(2)(a).

12. 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).

13. 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).

14. The representative requested the Tribunal supports the applicant’s request for Ministerial Intervention based upon the applicant parenting an Australian citizen child. The Tribunal requested that the applicant provide evidence of any parenting obligations that the applicant is obliged to maintain.

15. The evidence of the relationship between the applicant and an Australian citizen child provided to the Tribunal included:

    a.A statement by the child’s mother stating that the applicant pays child support and that he sees his daughter every second Friday through to Sunday.

    b.A statement by the child’s mother declaring that the applicant is the biological father of the child.

    c.A copy of a child support account statement showing the applicant paying child support.

    d.A birth certificate of the child showing the applicant as the father.

16. In considering the request to support the applicant’s call for Ministerial Intervention I have reviewed the latest policy guidance.

17. I note that under the policy guidance for Minister's guidelines on ministerial powers (s351, s417 and s501J) and specifically the heading of Cases that should be brought to my attention: Unique or exceptional circumstances is listed the circumstance of:

    ·strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident

18. I note that the applicant is the father of an Australian citizen child and that he contributes to her financial security as well as provides a parenting role. I note that the child’s mother is an Australia citizen, and she has written to the Tribunal providing information regarding the applicant’s role in raising the child, implicitly supporting his cause.

19. I note that relevant to this applicant, under the heading of Inappropriate to consider is one consideration:

    ·the person has had a remittal or a set aside decision from a relevant review tribunal or a court.

20. I accept that this decision will lead to this criterion being triggered. But I note that without a remittal or set aside decision there would not be a need for a request for Ministerial Intervention, as such I have, possibly presumptuously, set aside this consideration and have decided to support the applicant’s request.

    DECISION

21. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Denis Dragovic
    Senior Member