2018361 (Refugee)
[2023] AATA 4695
•30 October 2023
2018361 (Refugee) [2023] AATA 4695 (30 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Rokhan Akbar (MARN: 1467818)
CASE NUMBER: 2018361
COUNTRY OF REFERENCE: Afghanistan
MEMBER:Wayne Pennell
DATE:30 October 2023
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 30 October 2023 at 11:19am
CATCHWORDS
REFUGEE – protection visa – Afghanistan/Pakistan – claim as Afghani citizen – born in Pakistan and grew up in border area of Afghanistan – brother killed by Taliban and applicant and siblings departed to Pakistan – fear of harm from Taliban because of work with brother – inconsistent, implausible and late claims and evidence – date of birth – timing of departure from Afghanistan – authenticity of Afghani tazkiras and Pakistani passport – previous visa application for third country not declared – claim that wife responsible for application without applicant’s knowledge – neurological condition, treatment and effect of medication on memory – treatment in Pakistan years before claimed departure from Afghanistan – finding that applicant Pakistani citizen – late claim of fear of harm from wife’s family – adverse inference drawn – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 423A, 424AA
Migration Regulations 1994 (Cth), Schedule 2CASES
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Re Prasad v MIEA (1985) 6 FCR 155Any 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 a review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) to refuse to grant the applicant a protection visa (‘the visa’) under section 65 of the Migration Act 1958 (Cth) (‘the Act’).[1]
[1]On 15 December 2020.
The applicant, who claims to be a citizen of Afghanistan, applied for the visa on 10 September 2020. The delegate refused to grant the visa on the basis that he was not a refugee as defined by the Act[2] and he was not a person in respect of whom Australia has protection obligations.[3]
[2]Migration Act 1958 (Cth), s 5H.
[3]Migration Act 1958 (Cth), s 36(2)(a); s 36(2)(aa).
The applicant appeared before the Tribunal on 28 September 2023 (‘first review hearing’) and 17 October 2023 (‘second review hearing’) to give evidence and present arguments, and the Tribunal hearings were conducted with the assistance of an interpreter in Pashto and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearings by remote conferencing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in the Act[4] and Schedule 2 to the Migration Regulations1994 (Cth). An applicant for the visa must meet one of the alternative criteria as provided in the Act.[5] 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.
[4]Migration Act 1958 (Cth), s 36.
[5]Migration Act1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).
The Act 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, or the Tribunal at a review hearing, is satisfied Australia has protection obligations because the person is a refugee.[6]
[6]Migration Act1958 (Cth), s 36(2)(a).
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.[7] 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.[8]
[7]Migration Act1958 (Cth), s 5H(1)(a).
[8]Migration Act1958 (Cth), s 5H(1)(b).
The Act also provides that 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, and 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.[9] 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 the Act, which are extracted in the attachment to this decision.[10]
[9]Migration Act 1958 (Cth), s 5J(1).
[10]Migration Act 1958 (Cth), s 5J(2) – s 5J(6) and s 5K – s 5LA.
If a person is found not to meet the refugee criterion in the Act,[11] that person may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm (‘the complementary protection criterion’).[12] 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 expressly provided in the Act, which are extracted in the attachment to this decision.[13]
[11]Migration Act 1958 (Cth), s 36(2)(a).
[12]Migration Act 1958 (Cth), s 36(2)(aa).
[13]Migration Act 1958 (Cth), s 36(2A) and s 36(2B).
The Act makes provision for, and clearly defines that a non-citizen will suffer significant harm if: they will be arbitrarily deprived of their life; or the death penalty will be carried out on that person; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.[14]
[14]Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhuman treatment or punishment and degrading treatment and punishment are further defined in the Migration Act 1958 (Cth), s 5(1).
Notwithstanding that, the Act goes on to provide certain circumstances where there is taken not to be a real risk that the person will suffer significant harm in a country if the Minister is satisfied that: it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.[15]
[15]Migration Act 1958 (Cth), s 36(2B).
MANDATORY CONSIDERATIONS
In accordance with Ministerial Direction No. 84 made under the Act,[16] 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.
[16]Migration Act 1958 (Cth), s 499.
APPLICANT’S BACKGROUND AND CLAIMS
The applicant claims to be a citizen of Afghanistan; however, for the explanations given later in these reasons, the Tribunal is not satisfied that he is an Afghan citizen.
At present, the applicant lives in [City 1] and he is employed in [a workplace] as [an Occupation 1]. He provided a number of personal references attesting to his generally good character. Those references are discussed later in these reasons.
The applicant described his background and history. He said that his father was [Mr A] and his mother was [Ms B]. Both of his parents were born in Afghanistan and were Afghan citizens, however they are now deceased.
He claimed that he was born in Pakistan, and there has been various dates of birth recorded for him. Those dates range from [Date, Year 1], [Date, Year 2], [Date 1, Year 3], [Date 2, Year 3], and at the review hearing, he told the Tribunal that he was born on [Date 3, Year 3]. The Tribunal understands that the actual recording of the day and month of a child born in Afghanistan is not recorded, just the year of birth; and this would in some way explain the year [3], and how [2] could be also construed as the year of birth.
However, the Tribunal does not accept that such an error could be made when the year [1] is used. The applicant tried to explain this discrepancy in his statement of claim that he thought the case officer allocated to him when he arrived in Australia may have recorded that birth date from the Pakistani passport he used to leave Pakistan. He said that this passport was not his, and it was a false passport arranged by his wife’s brother. If that is to be accepted, then clearly the applicant is not immune to being in someway connected to his photograph and name being used to obtain Pakistan passports, and on his admissions, they were arranged unbeknownst to him by his wife and his wife’s brother. Perhaps that is a mere coincidence that he was blissfully unaware, however the Tribunal is not minded to accept such as hypothesis.
Furthermore, the applicant’s comment about the Departmental case officer allocating the [Year 1] date of birth may have been recorded from the false Pakistan passport arranged by his brother-in-law is not consistent with comments that he had made that when coming to Australia, the boat he was in capsized and he lost his Tazkira and passport.
The applicant claimed that he was of Pashtun ethnicity and his religion is Sunni. He never had any formal schooling. The village where his parents lived in Afghanistan was reasonably close to the Pakistan border and the village’s medical facilities were inadequate for his birth. His mother travelled across the border into Pakistan to [Town] where he was born. After his birth, his mother too him back to Afghanistan and was raised by his parents in [Village], although his parents passed away when he was very young.
He said that he was the [birth order] of [children] in his family; he had [brothers] and [sisters]. After his parents passed away, he remained living with his family in Afghanistan until 2007 when he and his siblings escaped across the border into Pakistan after the Taliban killed his brother.
The Applicant went on to claim that he and his family stayed in a refugee camp at [City 2] in Pakistan for three years. It was during his time in the camp that he met his wife. She is a Pakistan citizen and was in the camp because she was [an Occupation 2]. He said that he remained in Pakistan until he left to travel to Australia. In his statement of claims, he said that he left Pakistan [in] February 2013, arriving in Australia [in] April 2013.
After being in the refugee camp, he married his wife on [Date] in Pakistan. They moved to Kohat where they lived until his departure from Pakistan. Their daughter was born on [Date]. He said that at present, his wife and their daughter still live in Pakistan.
In his statutory declaration dated 18 August 2016,[17] the applicant described the composition of his family. He stated that he has [a] brother called [Mr C], and he has four sisters called [Ms D-G]. He also described in his statutory declaration that [Mr C] was the head of the family, and he claimed that he did not know where the members of his family lived.
[17]At paragraph 8.
The Tribunal notes that in a later statement of claim,[18] he said that all his siblings were married and living in Pakistan, and he made a further claim that he is responsible for the care of one of his sisters who has a disability. As the Tribunal discovered during his testimony at the review hearing, there were several occasions during his evidence that he referred to his interactions with his ‘brother-in-law’, which he described as his sister’s husband. He also told the Tribunal that he is in contact with his sister [Ms F] and they speak on the phone sometimes once a week or every fortnight. On any reasonable assessment of his claims and his evidence, the Tribunal does not accept that he does not know where members of his family are, and the Tribunal is satisfied that they all live in Pakistan.
[18]At paragraph 33.
He went on to say that he had one other older brother called [Mr H], who is deceased. His evidence at the review hearing was that [Mr H] owned a [product] shop and he sold [products] to the Afghan Army. He claimed that he frequently assisted [Mr H] at his shop.
The applicant said that in 2007, he became aware that the Taliban had warned [Mr H] to stop selling the produce to the army and made threats against him. Because [Mr H] ignored the threats, the Taliban blew up his shop with [Mr H] inside and he was killed. The applicant claimed that luckily, he was not feeling well that day and he had stayed at home instead of going to the shop as he usually did.
The Tribunal observes that although the applicant’s claim about his brother being killed by the Taliban remains consistent, what has changed in his version relates to his brother’s interaction with the Taliban. In his entry interview in 2013, he said that the Taliban threats had been delivered to his brother by way of a letter. Yet during the review hearing, he told the Tribunal that the Taliban sent a mediator to speak to his brother and try to convince him to stop selling produce to the Afghan Army.
The applicant described that prior to departing Afghanistan, he did not personally experience harm, however had he been at his brother’s shop on the day it was destroyed by a bomb, he would have been killed, or at the very least severely injured. He claimed that the Taliban knew he worked at his brother’s shop and it was only a matter of luck that he was not there at the time of the bombing. Because the Taliban knew he worked at the shop, it is likely that he was also the Taliban’s intended target.
However, noticeably within the statutory declaration, his statement of claims and his testimony at the review hearing, the applicant does not specifically reference any occasion when the Taliban or any of its members approached him, nor have they spoken to him or communicated with him by any means, and nor did they threaten him in any way.
The applicant claimed that after his brother [Mr H] was killed, there was no point in seeking help from the police because the police could not protect themselves let alone civilians. Because there was no person in authority for him to approach for assistance, he and his other siblings left Afghanistan 10 days after [Mr H] was killed. Together, they crossed over into Pakistan where they spent the next three years in a refugee camp at [City 2]. What he told the Tribunal in regard to the timing of how long he left Afghanistan after his brother was killed is something that he has contradicted himself on. A more in depth discussion and analysis of thus point is conducted later in these Reasons.
The applicant went on to claim that if he were forced to return Afghanistan, he fears that because he worked in his brother’s shop all those years ago, he would be subjected to harm, including detention and being killed. He said that the Taliban are vengeful people and they have a network of supporters and informers throughout the country that keeps them informed of the whereabouts of people who the Taliban are interested in. He claimed that even if he returned to Afghanistan and relocated to another part of the country, because of that Taliban network he will be found and killed.
The applicant also claimed that since 1991, he has suffered from epilepsy. He has been treated for that illness and has been prescribed medication. He said that it was his belief that if he returned to Afghanistan, his illness would prevent him from working and would make him dependent on his family. He claimed that in Afghanistan, there was no government assistance available for epilepsy and he could suffer a seizure at any time. Those seizures make it difficult to lead a normal social life and his illness would attract social stigma if he returned to live in Afghanistan. He claimed that he has no family in Afghanistan to help him.
THE EVIDENCE
Brother’s death
The applicant discussed with the Tribunal what he claims were the circumstances surrounding his brother being killed by the Taliban. This same topic was also discussed with him by the Department during his entry interviews in 2013 and his interview with the Department in 2017.
The Tribunal finds that his version of how the Taliban threats were delivered to his brother differed greatly. During the entry interview in 2013, he claimed that his brother had been killed by the Taliban for selling produce to the Afghan Army and the Taliban had warned him to stop, and when he did not, they killed him by bombing his store. He described that the Taliban threats were delivered by the Taliban sending his brother threatening letters.
During the first review hearing, the applicant repeated his claim that prior to his brother’s death, the Taliban had threatened his brother. However, on this occasion he said that the Taliban sent a mediator to talk to his brother, and sometime later a bomb exploded in his brother’s shop killing him. The Tribunal finds that the claimed circumstances of the threats differed greatly to what he initially disclosed to the Departmental in an entry interview on 22 May 2013.
Subject to the section 424AA of the Act, the inconsistencies identified within the versions he provided the Tribunal and the Department were outlined to him and he was again asked about the Taliban threats. He said that the threats were delivered to his brother by other people. When asked about why there was such an inconsistency between his entry interview, his initial testimony at the first review hearing and what he was telling the Tribunal at the second hearing, he explained that his memory was affected by the medication he was on, but he thought that his brother was sent a letter.
The applicant claimed that during his entry interview his memory was affected by mediation he was prescribed for his epilepsy. He also claimed what he told the Department through the interpreter was misinterpreted.
The Tribunal does not accept those explanations. Although the Tribunal accepts that he suffers from epilepsy, and he has been prescribed medication for that condition, there is no evidence to show that 2013 his memory was affected by any medication, or indeed that his memory has ever been impacted by the mediation.
In respect to the allegation that he was misinterpreted, the interpreter used was a suitably qualified and NNATI approved interpreter and the responses the applicant made to the Department’s questions were spontaneous, and he appeared lucid throughout that interview. There was no suggestion that he did not understand the questions and the Tribunal does not accept that he was misinterpreted when he gave his responses.
The inconsistency within the versions told by the applicant about the methods used by the Taliban to threaten his brother may by itself in isolation be considered slight or insignificant in respect to the overall case, however this inconsistency is among many such inconsistencies within the versions he gave about a number of things. The Tribunal is troubled by the impact of the accumulated affect so far as the veracity of the applicant’s claims.
Applicant’s alleged departure from Afghanistan
It has always been the applicant’s claim that he is an Afghan citizen and after his brother was killed, he and the other members of his family travelled across the border into Pakistan to a refugee camp at [City 2]. Subject to the section 424AA of the Act, the inconsistencies identified within the versions he provided the Tribunal and the Department were outlined to him.
What is clear from the recording of the entry interview conducted between the applicant and the Departmental officer on 24 May 2013 was the applicant being specifically asked about when it was that he left Afghanistan and went to Pakistan. The questioning was unambiguous, it was clear and in the Tribunal’s view particularly framed in such a way that when interpreted, there could be no doubt as to what was being asked. Simply put, the applicant was asked to explain when he left Afghanistan and moved into Pakistan. His clear response was that he went to Pakistan one to two years after his brother’s death.
In a statutory declaration later provided by the applicant,[19] he said that his departure from Afghanistan took place 10 days after his brother was killed. When asked by the Tribunal about this same issue, he confirmed what he had claimed in his statutory declaration. When the discrepancy between both versions was identified to him, he told the Tribunal that he could not remember saying to the Departmental that he left one to two years after his brother was killed, and he suggested that what he told the Departmental in 2013 could have been misinterpreted. The Tribunal does not accept that it was simply a matter of misinterpretation by the interpreter, after all, there is a massive difference in time between 10 days and a period of one to two years.
[19]Date 18 August 2016.
The Tribunal also notes the timing of when his earlier disclosure of the 10 day period was made. That comment during his entry interview was made approximately six weeks after he arrived in Australia. Although it is recognised that he was only just arrived in a foreign country, when the interview recording is carefully listened to, the tone and manner of his responses suggested that he was relaxed, his voice appeared very calm and his answers (through the interpreter) were spontaneous.
The Tribunal also notes that the applicant has claimed during the review hearings that his epilepsy medication might have impacted upon his memory, however he has produced no medical evidence from a suitably qualified medical practitioner to clarify that at the time he was interviewed on 24 May 2013, or during the time of the review hearings his memory could have been impacted in any way by prescription medication. The Tribunal does not accept that claim.
A further consideration for the Tribunal is that his initial disclosure during the entry interview on 24 May 2013 was made at a time much closer to any claimed relocation by the applicant from Afghanistan to Pakistan. It is a plausible concept to consider that his memory in 2013 of an event which happened a number of years previously would be superior to his memory of the same event some 10 years later in 2023.
The also Tribunal finds that a significant degree of inconsistency exists between the versions he provided. When carefully considering those inconsistencies, the Tribunal is inclined to place greater weight on his recorded admissions in 2013 and rejects his subsequent evidence in a statutory declaration and at the review hearings. If indeed the applicant is an Afghan citizen as claimed, (which other credible evidence suggests otherwise) the Tribunal is inclined to accept that his initial admissions is a more realistic proposition than his later claims.
This is a further example of the applicant’s evidence changing and being inconsistent with what he has already said. If he were indeed an Afghan citizen as he claimed; and he left Afghanistan in 2007 because his brother was killed by the Taliban; and he went into Pakistan to escape; these are all things which would have been significant events in his life. For the applicant to first say in 2013 that he left one to two years after his brother’s death and then change that version to it being just 10 days after his death is in the Tribunal’s view, a glaring inconsistency which gives every hallmark of the applicant changing his version to suit his claims.
When coupling this inconsistency with other inconsistent information or evidence he provided, the Tribunal finds that his evidence about this issue brings into question his credibility and the veracity of his evidence. The Tribunal does not accept that he was misinterpreted by the interpreter. His evidence at the review hearings was not convincing, and the Tribunal does not accept what he said about any supposed departure from Afghanistan is credible.
Tazkiras
A significant issue in regard to this case is whether the applicant is indeed an Afghan citizen as he claimed, or whether he is a Pakistani citizen as some of the credible evidence suggests. To support his argument that he is from Afghanistan, the applicant has provided his Tazkira.
A Tazkira is an important identification document for Afghan citizens and serves as a confirmation that a person is an Afghan citizen. The most recent DFAT County Information Report on Afghanistan (‘the DFAT report’)[20] provides information in regard to Tazkiras, and for example, a Tazkira is required for employment; for admission to schools and universities as well as for obtaining approval to run a business, and to buy, rent and sell property. Tazkiras function as the primary document necessary to obtain other forms of identification.
[20]Date 27 June 2019.
In Afghanistan, the National Statistics and Information Authority (‘NSIA’) is responsible for issuing Tazkiras. In May 2018, the official launch of the electronic Tazkira took place with the new e-Tazkira cards containing a watermark security feature and a microchip.
The e-Tazkira is a rectangular plastic card that includes the bearer’s photograph and signature. The card, which is valid for five or 10 years, contains printed data in English, Dari and Pashto, including the bearer’s full name, person identification number, place and date of birth, issuing authority, and dates of issue and expiry.
Earlier Tazkiras were printed on plain paper, and included the names of the bearer and who his or her father and grandfather were, as well as the holder’s date and place of birth, place of residency, type of occupation and military service status. Tazkiras also include physical descriptions of the bearer for identification purposes, including a photograph as well as their height, the colour of their eyes, eyebrows, skin, and hair, and notes about any disabilities. Other than stamped seals, they do not include any security features. Issuing officers at district population registration offices complete Tazkiras manually and the biographical information in Tazkiras varies according to the individual issuing officer, and is often incomplete.[21] The Tazkiras held by the applicant are the earlier versions.
[21]The DFAT Country Information Report, Afghanistan, 27 June 2019, page 52, paragraphs 5.46 to 5.48.
Other country information available to the Tribunal indicates that the most thorough verification of the applicant’s identity occurs during the initial application for a Tazkira. A birth certificate should be presented for the Tazkira to be issued, but the majority of people do not have one. If the applicant does not have a birth certificate, the Tazkira of a male family member on the father’s side (father, brother, uncle or male cousin) must be presented.[22]
[22]Landinfo Country of Origin Information Centre, Report Afghanistan: Tazkera, passports and other ID documents, 22 May 2019, page 7,
The Tribunal has been provided with two Tazkiras purporting to have been issued to the applicant. The applicant provided the first Tazkira to the Department, and the second Tazkira to the Tribunal at the time of the first review hearing. Both Tazkiras have been translated into the English language and as discussed below, for both Tazkiras, there is an ‘untranslated’ copy and a ‘translated’ copy.
In the Tribunal’s view, there has been a legitimate concern raised in respect to the authenticity of the Tazkiras. Document fraud is a major issue in Afghanistan and the DFAT report outlines that because the process for obtaining some documents is decentralised to the provincial level, and because the documentation itself generally does not contain robust security features, the system is vulnerable to fraud. Genuine documents can be issued based on false information, with supporting forms of documentation such as school, academic, or banking records easily forged. This is particularly problematic in the case of Tazkiras, given they are the primary document used to obtain other forms of identification.[23]
The first Tazkira
[23]The DFAT Country Information Report, Afghanistan, 20 June 2019, page 53, paragraph 5.54.
The first translated Tazkira, serial [number 1] was certified on 28 June 2016 by a NAATI accredited paraprofessional translator in the English and Pashto languages. It contains the applicant’s photograph. He is distinguishable in that photograph as he has a moustache and his hair parted in the middle and the identifying photograph has a distinguishable blue background. The Tribunal notes that the serial number and the photograph are identical to the serial number and photograph shown on the untranslated version.
The translated Tazkira identifies that it was issued [in] May 2012 in the Province of Paktia, [District] in Afghanistan. The village is not nominated, however the house number is recorded as [Village], which is the same location recorded as the applicant’s place of birth. The applicant said that [Village] was where his father was born. He explained that Tazkiras usually record the place of birth for the father of the individual being issued with a Tazkira, even though the holder is born in a different location or outside Afghanistan. In that regard, the Tribunal accepts this is a plausible explanation in respect to the recording of his place of birth.
Quite correctly, he explained that a Tazkira is a primary identity document issued to a national of Afghanistan. As a Tazkira is not a birth certificate, it can be issued at any stage or age of the person who applies for it. A Tazkira usually records a person’s age in accordance with their physical appearance at the time the Tazkira is issued. He said that his Tazkira was issued in 2012. His age is recorded as being [Age] years old in 2012, which means he was born in [Year 3].
The Tribunal asked the applicant during the first review hearing for the spelling of the province where he originated from, and he nominated the same province as shown on the Tazkira, but he spelt it as Paktira, which is a slight variation to the province name on the Tazkira. The Tribunal accepts that it is the same province, just with a different spelling.
The Tazkira identifies the applicant’s name as [the applicant], his father’s name as [Mr A] and his grandfather’s name as [Mr I]. The applicant’s physical description is provided and his date of birth is indicated as “[Age] years old in 2012 from physical appearance”. His religion is identified as Islam, his nationality as Afghan, his occupation is stated as being a labourer and he is recorded as being married.
At the bottom of the first Tazkira there is provision for the signature of the Clerk in Charge, and the Chief of Department. There is also provision made on the Tazkira for the applicant to provide his thumbprint, or a signature. Noticeably, on the untranslated version, although there appear to be signatures from Afghan officials, there is no signature or thumbprint of the applicant’s.
Another feature of the untranslated Tazkira was the positioning of Afghanistan’s national emblem at the top right corner of the document. On the translated version, that emblem has not been replicated. The Tribunal does not take issue with the missing emblem on the translated version as there would not be a need in these circumstances to copy the emblem across to the translated version.
The second Tazkira
The second untranslated and translated Tazkiras are numbered [2]. The translated Tazkira was issued [in] February 2020 and does not appear to have been certified by a NAATI translator. It is noted by the Tribunal that the design of the document is in a slightly different style to the first Tazkira. For example; in the first Tazkira, in the top right-hand side of the page is Afghanistan’s national emblem, whereas in the second Tazkira, in addition to the national emblem there is an additional and different emblem embossed into the top left-hand corner. The Tribunal understands and accepts that this is a new version of the Tazkira.
An assessment of the second Tazkira shows that there is a photograph of the applicant in each of the untranslated and translated documents. However, concerningly for the Tribunal, those two photographs are distinctly different. The photograph on the untranslated document is identical to the photograph shown in the untranslated and translated first Tazkira.
That is, the photograph has a distinctive blue background and the applicant has a moustache and his hair is parted in the middle. However, on the translated copy of the second Tazkira, the photograph of the applicant has a white background, and he is shown without a moustache and his hair is combed differently. He also appears to be much older than he is in the other photographs.
Much of the information contained in the translated second Tazkira appears to match the information in the translated first Tazkira. However, the Tribunal pays particular attention to the description given to the applicant’s age. As already identified in the first Tazkira, his age was described as “[Age] years old in 2012 from physical appearance”.
Bearing in mind that the second Tazkira was issued eight years after the first Tazkira, the second translated Tazkira describes the applicant’s age as “[Age] year old of 1391 same to [Age] year old of 2012”. At the first review hearing, the applicant could not explain why the second Tazkira would reference his age of [Age] in 2012 when that particular Tazkira was issued in 2020. Nor was it explained why the photographs differed between the untranslated document and the translated document.
In respect to the reference to ‘1391’, this figure was explained in the applicant’s statement of claims that it relates to the Shamsi calendar, and 1391 corresponds with the Gregorian calendar year of 2012. The Tribunal accepts that explanation.
The topic about the two Tazkiras was discussed with the applicant in both the first and second review hearings.
The evidence
The starting point is that within his statement of claim, the applicant indicated that the first Tazkira was issued to him in 2012.[24] His claim is that he lost his original Tazkira during his journey to Australia when the boat he was on capsized. He also claimed that just like his Tazkira, his Afghanistan passport was also lost when the boat capsized.
[24]Statement of Claim, paragraph 15 filed 10 September 2020.
In the first review hearing, the applicant told the Tribunal that the first Tazkira was issued to him in 2007 when he was in Afghanistan. He also said that perhaps someone else, like his brother-in-law, participated in bringing it to him from Afghanistan. That differs to what he had earlier said to the Department.
During the second review hearing, the topic of the Tazkiras was again discussed with him and subject to second 424AA of the Act, he was invited to make comments or respond to information in respect to earlier comments he made about the first Tazkira in his entry interview on 22 May 2013, as well in his interview with the Department on 10 April 2017. During those interviews, the applicant was assisted by a NAATI accredited interpreter in the Pashto and English languages.
In his 2013 entry interview, the applicant was asked specifically when he obtained his Tazkira. His response at that time was to say that he obtained it ‘a year ago’ from the Paktira province in Afghanistan. Given that the interview took place in May 2013, this could only have meant that he was referring to sometime in 2012. He was also asked how he got it, and he responded by saying that his father-in-law was a businessman who regularly travelled into Afghanistan, and he got the Tazkira for him.
When asked in the second review hearing to clarify his evidence about the first Tazkira, he said that it was issued in 2012. However, this time his evidence changed and he said that his sister’s husband (his brother-in-law) obtained the Tazkira for him. When details of the country information were put to him that only people such as his father, uncle and brother who are directly related to him were able to obtain a Tazkira on his behalf, he said that his brother-in-law took his old Tazkira with him as identification.
The Tribunal is aware that during an interview with the Department on 10 April 2017, the applicant was also asked about the first Tazkira. On that occasion, he said that his brother [Mr C] got the Tazkira for him. He explained that this happened in either 2010 or 2012, but he was unsure of the exact time as his memory was affected by his [Medical condition] medication. He said that he did not know why [Mr C] got the Tazkira for him, but because the applicant was ill, [Mr C] got a Tazkira application form for him and the applicant put his fingerprint on the form. He said that [Mr C] took the form to the army office and obtained the Tazkira.
When challenged on the inconsistencies in his evidence, he said that it was correct that [Mr C] took the Tazkira form to the army office. He did not go himself because he was sick at the time and he gave his fingerprint on the form, however he told the Tribunal that it was not 2010 or 2012 as he had earlier said, but rather this happened in 2007.
In respect to the second Tazkira which the applicant gave to the Tribunal during the first review hearing, he said that on the date the Tazkira was issued ([February] 2020), his sister’s husband was in Afghanistan and went to Paktira province where he got the Tazkira for the applicant. Having very carefully assessed the country information, along with the applicant’s testimony in regard to how he came into possession of the second Tazkira, the Tribunal does not accept the applicant’s explanation as to his sister’s husband obtaining the Tazkira for him.
When asked about the differing photographs showing the translated and untranslated copies of the second Tazkira, he said that when it was being translated he was asked to provide a new photograph. The Tribunal does not accept that explanation as a translated copy is by the very definition, a copy. There is no explanation why the translator would need a new photograph to complete the translation or do anything more than translate and copy the original, and the photograph would have simply been a ‘cut and paste’ on to the translated version.
The applicant told the Tribunal that he regularly contacts his sister in Pakistan. He claimed that it was his sister’s husband who was the brother-in-law he referred to as being the person who obtained the second Tazkira for him. Notwithstanding that he says that he is in regular contact with his sister, there no evidence provided by her or the applicant’s brother-in-law to authenticate the applicant’s claim of how the Tazkira was sourced in Afghanistan during February 2020.
On that point, the Tribunal notes the reliable country information which provides that if someone other than the applicant is obtaining a Tazkira on his behalf, that person should be a male family member on his father’s side such as his brother, uncle or male cousin. Having considered this information in combination with the questionable statement in the Tazkira that the applicant was “[Age] year old of 1391 same to [Age] year old of 2012”, the Tribunal does not accept that the second Tazkira is a genuine document.
Discussion and findings
When discussing the first Tazkira dated [May] 2012, the applicant told the Tribunal that he and the remainder of his siblings left Afghanistan in 2007 and his movement across the border into Pakistan was undertaken legally. He stayed for three years in a refugee camp at [City 2]. He has never returned to Afghanistan.
The first Tazkira cannot be the Tazkira the applicant obtained in Afghanistan with the assistance of his brother Masood because he confirmed that neither he nor any of his siblings have returned to Afghanistan since they left in 2007.
The Tribunal is concerned about the credibility of the applicant’s explanations regarding how the Tazkiras were obtained as the versions he has provided to the Department and the Tribunal are inconsistent. He previously said that his father-in-law was a businessman and he obtained the Tazkira for him during one of his many business trips across the border into Afghanistan. That purportedly occurred in about 2012.
Subsequent to that explanation, he said that he was unable to recall when he obtained the Tazkira but he insisted that his older brother, [Mr C], obtained the applicant’s fingerprint and photograph and took that identification to the “army office” in Paktia when the applicant and his family were still living in Afghanistan. Coupled with all that was his evidence that his Tazkira was lost when the boat he was on capsized on his way to Australia in 2013. It is puzzling how he could now be in possession of a 2012 Tazkira if his evidence about losing his identification documents in that manner he described did actually occur.
The Tribunal finds that it cannot be the case that when a new Tazkira was issued, the authorities in Afghanistan dated it 2012 because that was when it was first issued. If that was the case, this would mean that the second Tazkira would also be dated 2012 and not 2020 as it clearly is.
The applicant tried to explain the noticeable inconsistency of what he told the Department as a misunderstanding and a translation error. He claimed that he had never mentioned that his father-in-law had collected the Tazkira for him, it was in fact his brother-in-law who arranged and obtaining his Tazkira.
The applicant also claimed that his wife tried to travel to Afghanistan to verify the applicant’s current Tazkira, however, because of the instability, insecurity and tension on both sides of the border, she was unable to do so. The Tribunal notes the applicant says that his wife appealed to the Pakistan Human Rights Commission (‘Pakistan HRC’) about not being able to cross into Afghanistan because it would have been too dangerous and risky for her to travel to Afghanistan. The applicant provided a letter from the Pakistan HRC confirming this.
In submissions made on his behalf by his representative, it was suggested that a male relative could obtain a copy of the applicant’s Tazkira just as long as they had a copy of his father’s Tazkira. The Tribunal understands that this submission was in reference to the applicant’s claim that his brother-in-law obtained the Tazkira, however the Tribunal has difficulty in accepting that argument as the applicant had told the Tribunal that his father passed aware when the applicant was very young.
When careful consideration is given to the evidence regarding the Tazkiras, along with the country information, the Tribunal considers that there are fundamental questions which arise as to the authenticity of that Tazkiras. The inconsistent statements made by the applicant only serve to satisfy the Tribunal that significant doubt exists as to the origins of those documents, and when that is assessed along with the credible and reliable country information contained within the DFAT report in respect to document fraud being a major issue in Afghanistan, the Tribunal rejects the applicant’s evidence about the origins of the documents and finds that the Tazkiras are not genuine and authentic documents.
Applicant’s Pakistani passport
Information is available to show that the applicant was issued a legitimate Pakistan passport in his name with the date of birth of [Date, Year 1]. The passport shows that he is of Pakistani nationality with a Pakistani citizenship number (‘CNIC’). The official Pakistani government website provides that a CNIC, or as known as a Computerized National Identity Card is issued to the citizens of Pakistan. It is a blend of state-of-the-art technology and well-defined business rules to guarantee its authenticity and validity, with every citizen of Pakistan, 18 years and above, being eligible for a CNIC.[25]
[25]>
The Department undertook a match of the applicant’s fingerprints with the Five Country Conference (‘FCC’). The resulting fingerprint match report from the FCC confirmed that the applicant applied for a visa to [Country 1] using the same passport. That application was made in Islamabad. The Australian High Commission in Islamabad advised the Department that the Islamabad Passport Office confirmed that the applicant’s passport was legitimately issued by the Pakistani Government, and it was confirmed that the applicant has a CNIC. The information also confirmed that the name of the applicant’s father was [Mr A].
It is significant that some of the information provided to the Department matches the information provided by the applicant’s wife in her affidavit in which she confirmed that she and the applicant went to Islamabad and they went to the [Country 1] where they submitted documents. His wife does not deny that an application was made for a [Country 1] visa for the applicant, but claims that the applicant was unaware why they went to the embassy, and was unaware the purpose of providing his fingerprints and photograph was for a passport. The applicant’s wife also confirmed in her affidavit the identity of the applicant’s father, who was also referenced in the applicant’s CNIC.
The features of that information provided to the Department raised questions surrounding the applicant’s claim that he was an Afghan citizen, and there were suspicions that he is in fact a citizen of Pakistan. Because of the information received by the Department about him being issued with a Pakistani passport, the applicant was informed by the delegate that the Department had received a fingerprint match report in relation to his fingerprints through the FCC High Value Data Sharing Protocol.
This report contained information relating to the applicant’s travel and migration history and it confirmed that in 2012, the applicant had applied for a visa to [Country 1] using a genuinely issued Pakistani passport under his name, although his date of birth was recorded on the passport as [Date, Year 1].
One consideration is that if the applicant is a Pakistani citizen, he is not legally entitled to hold an Afghan Tazkira, and this again brings into question the authenticity of the Tazkiras and adds weight to them not being genuine or authentic documents.[26]
Applicant’s evidence – first review hearing
[26]Letter sent to the applicant dated 1 June 2017 pursuant to the Migration Act 1958 (Cth), s 57.
In response to the allegations in respect to the Pakistani passport being issued to him, during the first review hearing the applicant claimed that when he arrived in Pakistan he stayed in a refugee camp in [City 2]. This is where he met his wife. He explained that his wife is a Pakistani national and a Punjabi by ethnicity. She was [working] at a [workplace] in [City 2] when they met. He claims that he is illiterate.
He said that in 2010, he married his wife in an Islamic marriage ceremony and they have a daughter. Despite previously saying that he did not know where members of his family were in Pakistan, his submissions include a reference to him being financially responsible for one of his sisters, who is intellectually disabled and he is in regular contact with another of his sisters. Again, this is another example of the inconsistencies in the applicant’s versions of the evidence.
100. The applicant went on to claim that all of his wife’s family members opposed him marrying his wife because he was an Afghan national, except one of her brothers called [Mr J]. After their marriage, it became known to his wife that one of her cousins had intended to marry her. Because she married the applicant, her cousin became jealous and made threats to harm her and the applicant. He claimed that he was never told about this by his wife or [Mr J].
101. Importantly, the applicant did not claim during the first review hearing that his wife family did any more than have an opposition to the applicant marrying his wife, apart from her cousin who made threats which he did not know about. There was no reference to him having a fear that his life was at risk because his wife’s family have a connection to the Taliban as he was to later claim.
102. He claimed that to save them both from being harmed by her cousin, his wife applied for a student visa to [Country 1]. Her intention was to sponsor the applicant on the same visa to accompany her to [Country 1]; however, his travel to [Country 1] on that visa was only possible if he had a Pakistani passport and Pakistani identification.
103. He said that [Mr J] knew a people smuggler and arranged the applicant’s Pakistani identity card and a Pakistani passport. This was carried out for the express purpose of the applicant accompanying his wife to [Country 1], however he claimed that he was completely oblivious to all of this as his wife planned it all and she and [Mr J] did not tell him about the passport, or their intended move to [Country 1]. This is something that the Tribunal finds implausible as Pakistan is a patriarchal society where men are the primary authority figures and women are subordinate.[27]
[27]National Library of Medicine, Gender roles and their influence on life prospects for women in urban Karachi, Pakistan: a qualitative study, 2 November 2011, The applicant then claimed that his wife told him to provide her with his photograph and his fingerprints at an office. He did not disclose what office, or where that office was located. Remarkably, he claimed that when the delegate told him about this information in 2017, he had no knowledge of the passport being issued to him. It was only after he was told by the delegate that he contacted his wife and she disclosed the ‘whole story’ to him.
105. The applicant proceeded to explain to the Tribunal that he was an illiterate man and he followed his wife’s instructions entirely for the purpose of obtaining him a Pakistani Identity Card and passport. He also claimed that he did not know, and was not aware of, any of the threats made by his wife’s cousin because his wife did not tell him of those threats. He went on to claim that he also did not have any knowledge of his wife arranging a Pakistani National Identity Card, as well as a Pakistani passport for him. He said that he has never seen the identity card, nor the Pakistani passport, as the people smuggler never gave him the documents, or even showed them to him.
106. The applicant said that his wife takes full responsibility for making the entire arrangement with the help of her brother, and he reiterated that he had no knowledge of anything that they had planned, and the Pakistani identity card and passport were fully arranged and paid for by his wife.
107. In support of the claims outlined above, the applicant provided an affidavit from his wife. That affidavit is dated 9 June 2017. The Tribunal particularly notes that within his wife’s affidavit, she makes reference to the applicant and herself going together to the [Country 1] Embassy. Although she does not identify where in Pakistan the [Country 1] Embassy is located, the Tribunal notes that the [Country 1] Government website provides that the [Country 1] Embassy or High Commission is located in both Karachi and Islamabad. Karachi is approximately 20 hours’ drive from Kohat, where they lived, and Islamabad is about 4 hours’ drive away.
Applicant’s evidence – second review hearing
108. Subject to section 424AA of the Act, the applicant was invited during the second review hearing to comment on or respond to information that Tribunal was in possession of. That information is outlined in paragraphs 92 and 93 of these Reasons.
109. It was outlined to him that when he took part in an entry interview on 22 May 2013, he told the Department that he left Afghanisan legally and he had a passport. When asked where that passport was, he said that it had been lost when the boat he was on capsized on his way to Australia.
110. The applicant told the Tribunal during the hearing that he did not have a passport when he departed Afghanistan, he only had his Tazkira. He argued that it must have been a misinterpretation when he responded to that question. He also said that he only found out about the Pakistani passport when the Department wrote to him on 1 June 2017 and outlined the information about his fingerprints being associated with an application to [Country 1] for a student visa for his wife.
111. It appears that when he was alerted by the Department as to their discovery about [Country 1] application, the applicant contacted his wife and arranged for her to provide an affidavit. A copy of that affidavit was provided to the Tribunal and it outlines:
1. That I am [an Occupation 2] and I was appointed in the year 2009 in [City 2], Kurram Agency. During this period I came in contact with [the applicant] son of [Mr A] who is an Afghan National and was settled in Pakistan. For sometime our meetings continue and later on we arrived at the conclusion of marriage. But my other family members are not willing to marry me with an Afghan National but my brother agreed with me because he is an educated and open minded person. As a result we got married on[Date] under Islamic Law. My one cousin was also interested to marry me, but when I got married with an Afghan National he was irritated and started to threaten me to death. My husband is an illiterate person, he had no knowledge of these matters.(threatened letter is hereby attached with)
2. That under these circumstances my brother advised me to shift to [Country 1] on student visa and I also a coupled with my husband and I was ready to sponsor him. I asked my brother that how my husband will accompany me as he is Afghan and he does not possess Pakistani Identity Card and Pakistani Passport. Then my brother told me that he knows an agent who deals in Visa business and he managed to procure Pakistani Identity Card and Pakistani Passport to which I agreed and my brother contacted the agent and he claimed 3000 U.S Dollars as his wages under these circumstances I was under compulsion because except my brother no one in my family was agree with my marriage and except my brother none was present to support me.
3. I manage 3000 U.S Dollars and paid for Pakistani Identity Card and Pakistani Passport for my husband, all the proceedings were conducted by me, excepting Finger Prints and went to with my husband and submitted documents in [Country 1] Embassy. Excepting this my husband did not knows anything.
4. Whatever is done which I have done myself and paid 3000 U.S Dollars to the agent and got the needful as my husband is Afghani National by birth.
5. I submit this Affidavit that I am shameful for doing such Act. Due to me my husband was put in trouble and I requested for excuse.
112. The Tribunal notes that within her affidavit, his wife said that all the proceedings in respect to the passport were conducted by her, and that she and the applicant went to the [Country 1] Embassy and submitted documents. She does not deny that she applied for a visa to [Country 1] and that she intended for the applicant to travel with her. She concedes that she and the applicant went to the [Country 1] Embassy where she submitted documents, but claimed that the applicant did not know anything about it. The Tribunal’s view is that this is a convenient omission.
Discussion and findings
113. Regardless of the destination they went to, it is not plausible that the applicant was oblivious to the plan to obtain a visa for them both to relocate to [Country 1], given that his wife disclosed in her affidavit that she went with her husband to the [Country 1] Embassy to submit his fingerprints and documents.
114. The applicant’s claim about having no knowledge is not convincing and the Tribunal does not accept that he was as naïve as he suggests as to the reason he had to provide fingerprints and documents to the [Country 1] Embassy. It is not a plausible or believable explanation that he did not ask his wife:
(a)why they were making a trip to Islamabad which takes about four hours by car;
(b)why he had to give his fingerprints and have his photograph taken; and
(c)why she took him to the [Country 1] Embassy in Islamabad.
115. Notwithstanding the applicant’s claims he had no knowledge that his wife, with the help of her brother, arranged for a people smuggler to source a Pakistani passport for his travel to [Country 1], it seems that from his own disclosures during his initial entry interview with the Department that he was certainly aware of, or complicit in, arranging and sourcing a Pakistani passport from a people smuggler for his travel to Australia.
116. During that entry interview, he said that prior to travelling to Australia, he had never travelled outside Afghanistan or Pakistan. When asked about his departure from Afghanistan and his entry into Pakistan, he said that this occurred legally because he had his passport. He was then specifically asked where his passport was, to which he replied that everything was lost (including his passport) when the boat he was in capsized.
117. He then disclosed that he left Kohat in Pakistan on [Day 1] February 2013 and his departure from Pakistan occurred illegally on [Day 2] February 2013. He also said that he had been provided with a passport.
118. When he left Pakistan he went to [Country 2], and although he could not remember the date he left Indonesia, he was sure he stayed there for about two months. His entry into Indonesia was illegal because he entered by speed boat. He also said that he was then given an Indian passport by the people smugglers.
119. During the second review hearing, the applicant was invited to respond to or comment on information the Tribunal was in possession of in respect to what he had disclosed to the Department . When responding to that information, the applicant said that unbeknown to him, his wife organised for him to go with her to [Country 1]. He said that he never saw the Pakistani passport issued to him for that purpose.
120. He went on to say that he had a good relationship with his wife and when she asked him to have his photograph and fingerprints taken, he did not question why. She had arranged an agent to help but she was not with him when he had his photograph and fingerprints taken. He just followed what his wife told him to do. The Tribunal does not accept that claim and as already outlined in these Reasons, Pakistan is a patriarchal society where men are the primary authority figures and women are subordinate.
121. The Tribunal was aware that the [Country 1] High Commission office was in Islamabad which is about a three hour drive from where the applicant and his wife lived in Kohat. It seems from what the applicant was telling the Tribunal that his trip to Islamabad was the first time he had ever visited that city, and he and his wife arrived around noon. He then went to see the agent to give his fingerprints and have his photographs taken.
122. He went on to admit that his wife went to the [Country 1] Embassy to make her application for a student visa, but he denied that he went to the Embassy with her. He said that the only place he and his wife went to together was the Fedex office to post the photograph and fingerprints. As the Tribunal earlier identified, his Pakistani passport was a source document for the [Country 1] visa application. It is not plausible, and nor is it believable, that he was able to be issued with a passport by an agency the same day he gave his fingerprints and photograph. What is more probable scenario is that his passport had been issued to him prior to him travelling with his wife from Kohat where he lived to Islamabad.
123. At the conclusion of the second review hearing, the applicant’s representative submitted that when the applicant’s wife mentioned in her affidavit that she and the applicant went to the [Country 1] Embassy, because the applicant was an illiterate man, he would not know that he had been to the Embassy.
124. That submission appears to be a concession that indeed the applicant did go to the Embassy as his wife said in her affidavit. It was also submitted that perhaps the applicant’s wife made a mistake when she said in her affidavit that they went to the Embassy, she instead meant that they went to an agency to submit her application for the [Country 1] visa.
125. The Tribunal rejects that submission and finds that her affidavit is clear and unambiguous as to her explanation that she and the applicant both went to the [Country 1] Embassy. What is clear is that it was the applicant who introduced his wife’s affidavit into evidence and used it to support his claims that he had no knowledge of the Pakistan passport, and he claims that he did he know about her application for a [Country 1] visa, yet there have been two occasions when his application has been before the Tribunal for hearings, and he never called her as a witness. On one hand the applicant introduced his wife’s affidavit to refute the information which outlines that he is a Pakistani citizen and held a Pakistani passport, yet now he says that the Tribunal should not accept his wife’s affidavit because she made a mistake. The Tribunal repeats that he has been afforded every opportunity to produce his wife as a witness, but did not take those opportunities. Therefore, the Tribunal is satisfied that the applicant did go with his wife to the [Country 1] Embassy in Islamabad.
126. In respect to the claim that the applicant is an illiterate man, the Tribunal has not been provided with any evidence to support that he was. The Tribunal had the opportunity to listen to the interviews he undertook with the Department and in all of those interviews he responded spontaneously to the questions posed to him, he appeared lucid in the manner in which he responded, and he gave every indication that he understood all of the questions posed to him and he was able to appropriately analyse each of those questions to be able to respond.
127. The Tribunal had the opportunity during both review hearing days to appraise and assess him when he appeared before the Tribunal. On each of those occasions he clearly understood what was being asked of him. and on many occasions he appeared frustrated with the interpreter and started responding directly with the Tribunal with his answers.
128. The Tribunal does not accept that the applicant had no knowledge about why he had his photograph and fingerprints taken in Pakistan. Nor does the Tribunal accept that he had no knowledge of a Pakistani passport being issued in his name or that he had no knowledge that his wife had applied for a [Country 1] visa.
129. When carefully assessing what transpired when the Department alerted the applicant of the existence of the information about his Pakistani passport and his wife student visa application to the [Country 1], the Tribunal’s is satisfied that the evidence shows that he was caught out by that information and it had exposed him as being a person who was able to be granted a Pakistani passport, thus meaning that he was not an Afghan citizen as he claimed. When that damning information was put before him, he arranged for his wife to provide her affidavit purporting to disassociate him from any knowledge of such things.
130. After carefully assessing the evidence provided by the applicant, along with the other available evidence, the Tribunal does not accept that the applicant had no knowledge about why he had his photograph and fingerprints taken. Nor does the Tribunal accept that he had no knowledge of a Pakistani passport being issued in his name or that he had no knowledge that his wife’s application to for a student visa to [Country 1].
131. The Tribunal is also satisfied (and so finds) that the applicant was issued with a legitimate Pakistani passport and he possesses a genuine CNIC. The Tribunal is also satisfied, and so finds, that to be issued with that passport, this solidifies that he is a citizen of Pakistan and not an Afghan citizen as he claims.
Supporting material
132. To support his application, the applicant provided to the Tribunal a number of what the Tribunal considers to be ‘character references’ from various people, including:
(a)[Mr K] MP, Federal Member for [Electorate];
(b)[Mr L], [Organisation];
(c)[Mr M];[28]
[28]Two identical copies of [Mr M]’s reference were provided to the Tribunal.
(d)[Mr N].
133. [Mr K] is the applicant’s local Federal member of parliament. His said in his reference that the applicant has been part of the [City 1] community since 2016, and holds a very important position within the [Work sector] as a certified [Occupation 1]. Overall, [Mr K] attests to the applicant being of good character. What [Mr K] does not refer to is whether he is aware of the applicant’s protection claims, or is aware of the concerns or doubt being raised in respect to whether the applicant is indeed from Afghanistan as he claims.
134. [Mr L], from [Organisation], provided a reference for the applicant. Similar to [Mr K]’s reference, comments were made as to the applicant’s good character, and his involvement with the [Organisation]. He referred to the applicant being a citizen of Afghanistan, but does not otherwise make any comment or reference as to whether he is aware of the applicant’s claims as to why he seeks asylum in Australia.
135. [Mr M] commented in his reference that he has known the applicant for seven years and he is a work colleague. He attested to the overall good character and work ethic of the applicant and, interestingly, he said “I have seen [the applicant’s] passport and can verify that he is who he says he is”. No further explanation is provided about that comment and the applicant did not make [Mr M] available as a witness in the review hearing. The Tribunal notes that the applicant’s position is that he does not have a passport.
136. [Mr N] was the applicant’s neighbour when the applicant first moved to [City 1]. He said that they have known each other for about 10 years, and the applicant was a good neighbour who had assisted him.
137. Having carefully assessed the information contained within the character references, the Tribunal is of the view that cumulatively they carry a certain amount of weight in respect to the character and work ethic of the applicant, but not a determinative level of weight in regard to a favourable finding about the applicant being a person in respect of whom Australia has protection obligations.
Medical evidence
138. The applicant says that since about 1991 he has suffered epilepsy, and this condition sometimes impacts upon his memory. He has provided a short report from his general practitioner, [Dr O], who stated that the applicant suffers from epilepsy and for that condition, he is prescribed Phenobarbital and Tegretol.
139. The applicant has provided documentation regarding a medical imaging appointment to attend the [City 1] Hospital Medical Imaging Department on 4 October 2023 for an MRI scan of his brain;[29] and a medical referral for the applicant to attend the medical outpatients clinic at [City 1] Hospital on 25 October 2023 for an EEG procedure.[30]
[29]Dated 28 August 2023.
[30]Dated 11 August 2023.
140. [Dr P] provided a short medical report.[31] He practises at the same clinic as [Dr O]. Dr Jindai’s report also indicates that the applicant suffers from epilepsy, is regularly seen by a doctor and is on medication for his condition. It is observed that the applicant’s date of birth is recorded as [Date, Year 1], whereas [Dr O] has him recorded as being born on [Date, Year 2]. Dr Jindai’s report records that the applicant had some ‘exacerbations’ in 2007, with his last recorded episode in May 2020.
[31]Dated 10 November 2020.
141. With regard to the applicant’s evidence that he suffers from epilepsy, this is supported by the medical reports outlined above. The Tribunal notes that apart from the applicant saying that on occasions his memory has been impacted by epilepsy, there is nothing within the medical reports which definitively support that claim. It is also noted that he holds full-time employment and it appears from the evidence that his condition does not impact upon his work.
142. Two medical certificates from [Dr Q] of the Department of Surgery, [Medical College 1], Pakistan were made available for assessment by the Tribunal. Both reports were handwritten and dated during the period when the applicant lived in Pakistan. Because of the style of handwriting, the Tribunal is unable to ascertain what is written on either certificate.
143. Also made available to the Tribunal was a medical certificate from [Dr R], Head of the Psychiatry Department, [Medical College 2] and visiting Psychriatist at [ Hospital] in Peshawar.[32] This report was also dated from when the applicant lived in Pakistan. [Dr R]’s report outlined that the applicant had been under his care since 1992 and that he is taking medication, including Mezicarb, Propanol, Phenobarb and Zafnol, which are essential medications for the applicant’s health.
[32]Dated 20 November 2012.
144. In respect to [Dr R]’s report, the applicant submitted that it is correct that he has been a patient of [Dr R] since 1992. He explained that he was taken to the doctor for treatment in 1992 as the medical facilities were better in Peshawar than in Afghanistan. Since then, [Dr R] prescribed medications to him until he departed Pakistan.
145. The Tribunal does not accept that explanation provided by the applicant in respect to him travelling across the border for treatment by [Dr R]. The Tribunal particularly notes that in his statement of claims, the applicant provided an explanation as to why he would suffer serious harm if he returned to Afghanisan. He claimed that his health would suffer as he would not have proper medical treatment available in Afghanistan for his condition. However, in that explanation, he was completely silent on, and failed to explain that, because of the alleged poor or inadequate provision of treatment for his condition in Afghanistan, for a 15-year period between 1992 and 2007 he travelled to Pakistan to be treated by [Dr R]. The Tribunal does not accept that such a significant issue could simply be overlooked by the applicant, or explained away as a loss of memory.
146. In concluding the discussion on the medical evidence, the Tribunal accepts that since the early 1990s, at least by 1992, the applicant has suffered from epilepsy and is currently a patient of a medical practice in [City 1]. It is also accepted that he has been prescribed medication for his condition.
147. In respect to the applicant’s claims that he travelled from the Paktia province of where he lived in Afghanistan to be treated by [Dr R] in Peshawar, the Tribunal finds that it is implausible that such an arduous journey would be undertaken considering the significant distance between those localities. Peshawar is well over an eight hour drive, whereas Kabul, a large city and capital of Afghanistan is only three hours’ drive away. This factor, along with other factors discussed in these reasons including those discussed about the Pakistani passport leads the Tribunal to a conclusion that the applicant is not an Afghan citizen as claimed, but rather a Pakistani citizen.
CONCLUSION AND REFUGEE FINDINGS
148. The mere fact that the applicant claims he has a fear of persecution for a particular reason does not establish either the genuineness of his asserted fear, or that it is well-founded, or that it is for the reason claimed. Similarly, because the applicant claims he faces a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to significant harm. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out.
149. The Tribunal is not required to make the applicant’s case for him. It is his responsibility to specify all particulars of his claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim.[33] Nor is the Tribunal required to accept uncritically any and all the allegations he makes.[34]
[33]Migration Act 1958 (Cth), s 5AAA.
[34]Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596; Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169–170.
Tazkiras
150. Having given very careful consideration to the evidence in this matter, the Tribunal accepts that the applicant may be of Pashtun ethnicity, and a Sunni Muslim. When that same careful consideration is given to the evidence discussed in respect to both the first and second Tazkiras, and the varying examples provided by the applicant as to how they were sourced, and the circumstances in which they were sourced, the Tribunal finds that those examples and the evidence he provided are not convincing and lack credibility. Therefore, the Tribunal finds that the Tazkiras are not authentic.
Death of the applicant’s brother [Mr H]
151. Outlined earlier in these reasons are particulars relating to the applicant’s claim that his brother [Mr H] was killed by the Taliban in 2007. He claimed that [Mr H] owned a [shop] and he sold [products] to the Afghanistan Army. Frequently, the applicant assisted Mohammad at his shop.
152. The applicant claimed that in 2007, Mohammad started receiving warnings and threats from the Taliban. This related to Mohammad selling produce to the Afghan Army. As the Tribunal identified earlier, the applicant has provided differing accounts of the methods employed by the Taliban to deliver their threat to Mohammad. He initially said that the threats were made through letters sent to [Mr H], and later said that the threats were delivered in person by a mediator sent to speak to [Mr H] by the Taliban.
153. The applicant also claimed that because [Mr H] ignored the threats, the Taliban blew up his shop, killing [Mr H], who was inside. Fortuitously for the applicant, he said that he was not feeling well that day and he stayed at home instead of going to the shop as he usually did.
154. The applicant has consistently claimed that he is an Afghan citizen, who left the country because of the Taliban targeting and killing his brother [Mr H] in 2007. He said that he and the remaining siblings fled across the border into Pakistan where they lived for three years in a refugee camp at [City 2].
155. When his claims and evidence are carefully analysed, particularly in regard to the circumstances of [Mr H]’s death, the threats [Mr H] allegedly received and the method in which those threats were purportedly delivered, doubts arise. One earlier claim he made was that the Taliban sent letters to [Mr H], but that later changed when the applicant testified at the review hearing that the Taliban sent a mediator to speak to [Mr H]. The Tribunal finds that it is not feasible that, in relation to an issue as important as the issue of the threats and the method of their delivery, particularly as they directly relate to the purported death of his brother, the applicant would not be able to specifically recall how those threats were actually delivered. Instead, he gave two completely different scenarios.
156. There is no independent evidence, or indeed any evidence at all apart from the applicant’s testimony that he had a brother called [Mr H] who was killed by the Taliban. The applicant said that he was in regular contact with one of his sisters, and his wife. He also had a good rapport with his wife’s brother. Notwithstanding that, none of those three people provided any evidence to support the applicant’s claims about his brother being killed.
157. The applicant provided varying versions as to when he departed Afghanistan after what he said was his brother’s death. In his entry interview, he could not remember the year that his brother was killed, but he said that he left Afghanistan approximately one to two years after his brother was killed. However, to support his application made sometime later, he claimed he and his family fled to Pakistan 10 days after his brother’s death. His brother’s death and the need for him and his family to flee Afghanistan would undoubtedly have been a significant event in his life, if true, yet he mentioned two periods which are significantly different in relation to the amount of time between his brother’s death and when they left. It is inconceivable that there is any other rational explanation for that inconsistency apart from a lack of veracity.
Applicant’s citizenship
158. The Tribunal has serious doubts as to the veracity of the applicant’s claims and the explanations and evidence he has provided throughout this matter. The Tribunal does not accept that his brother was killed by the Taliban, or that he fled Afghanistan and lived for three years in a refugee camp in [City 2]. All of this supposedly occurred during the time that he was under the care and treatment of [Dr R], who reported that the applicant had been a patient of his since 1992. [Dr R] is based in Peshawar in Pakistan, and to travel from the Afghan province where the applicant implies he lived to Peshawar is an eight hour drive.
159. In respect to his marriage to his wife, the Tribunal accepts that he married his wife as he claimed and that they have a daughter. However, the Tribunal does not accept that he is a citizen of Afghanistan or that he lived in a refugee camp at [City 2] for three years when taking into consideration him being issued a Pakistani passport in 2012. There was no difficulty experienced by him in obtaining the Pakistani passport issued to him in respect to his wife’s application for a visa to [Country 1], and the Tribunal finds that the applicant’s claim that he had no knowledge as to why his wife wanted his photograph and fingerprints lacks credibility. He said that his wife took him to an ‘office’, however his wife disclosed that they went to the [Country 1] Embassy and submitted the documents. If the Tribunal accepts (and it does) those comments made in his wife’s affidavit about them visiting the [Country 1] Embassy, it is inconceivable that he was oblivious to the purpose of them going there.
160. In respect to the Pakistani passport issued to him, if it is to be accepted (which it is) that an application was made to the [Country 1] Embassy for a visa for the applicant and a Pakistani passport issued to him was a source document for his identification. That then shows that the passport used in that application would have already been issued to the applicant prior to he and his wife going to Islamabad to visit the [Country 1] Embassy. His claim that he was blissfully unaware of this all taking place, and his only role was to visit an agency in Islamabad to provide his fingerprints and photograph is in the Tribunal’s view, a fanciful claim at best. If he had only ever been to Islamabad on one occasion, he went to the Fedex office to post the fingerprints and photograph, then it does not then explain how those fingerprints and photograph metamorphosised into a passport on that same day to allow for the passport to be used at the [Country 1] Embassy in a visa application.
161. Having carefully considered all of the features of the claims made by the applicant as to the circumstances behind the Pakistani passport being issued to him, the Tribunal finds that his evidence is not believable and lacks credibility for the reasons explained above.
Marriage between Pakistani women and Afghan men
162. The applicant claimed that he is an Afghan citizen and is married to a Pakistani wife who is a citizen of Pakistan. Apart from a claim that his wife’s cousin wanted to marry her and had made threats, his evidence is that he was oblivious to those alleged threats as he claims his wife kept that information secret from him. If that claim were to be true as suggested by the applicant, it is obvious that there was a significant period of time when he lived with his wife in Pakistan and he experienced no harm, either from her cousin or anyone else.
163. Country information available to the Tribunal identified that if he was an Afghan and is married to a Pakistani woman as he claimed, there is no impediment to him returning to, and living with, his wife and child in Pakistan.
164. In an online news article published by the Khyber Pakhtunkhwa News on 20 January 2017, it was reported that the Pakistan government was considering giving special legal status to those Afghan nationals who had married Pakistani women.
165. The Khyber Pakhtunkhwa News article stated:
PESHAWAR: Secretary of Ministry of States and Frontier Regions (SAFRON) Shahzad Ahmad Arbab has said that government was considering to give special legal status to those Afghan nationals who married to Pakistani women.
Following the repatriation Afghan refugees, Pakistani women married to Afghan men refused to accompany their spouse to Afghanistan and demanded of the government to give Pakistani nationality to their husbands. They had held protest demonstrations for acceptance of their demands.
Talking to media, Arbab said that government will soon give legal status to those Afghan nationals who have married to Pakistani women and didn’t want to go to Afghanistan with their Afghan spouses. There are number of cases of inter-marriages between Pakistani women to Afghans reported in recent past in which they refused to leave Pakistan.
He said that the government was also show flexibility towards Afghan traders and students which will further strengthen Pak-Afghan relation.[35]
[35]Afghans married to Pakistani women to get special legal status, Khyber Pakhtunkhwa News, Ali T, 20 January 2017, More recently, reports from Pakistan are that the Peshawar High Court in Pakistan has declared that a Pakistani woman’s Afghan husband was entitled to be issued with a Pakistan Origin Card by the National Database and Registration Authority in light of a Federal Shariat Court judgement.
167. The petitioner had challenged the provisions within the Pakistan Citizenship Act that allows Pakistani citizenship for foreign wives of Pakistani men, but does not provide the same for foreign husbands of Pakistani women. The petitioner claimed that the law discriminated against Pakistani women.
168. The petitioner had requested the court declare that it was unconstitutional and discriminatory that the wife of a Pakistani national was entitled to the country’s citizenship, but the same was denied to the foreign husband of a Pakistani woman.
169. Referring to the relevant portion of a Federal Shariat Court judgement delivered in 2008, the court observed that section 10 of the Pakistan Citizenship Act 1951 was clearly unconstitutional and un-Islamic.[36]
[36]Pakistani woman’s Afghan husband entitled to Pakistan Origin Card: PHC, Dawn, 12 October 2022, The country information makes clear that, because of a recent Pakistan High Court case, Afghan men married to Pakistani women are entitled to Pakistani citizenship.
171. Subject to section 424AA of the Act, the applicant was asked during the second review hearing to comment on or respond to the country information outlined above. He explained that he cannot go back to Pakistan because his life is at risk from his wife’s family. It was at this point that he introduced a new claim and said that his wife’s family were very rich and they did not like him because his wife’s cousin was in love with the applicant’s wife and wanted to marry her. He added that his wife’s family have a connection to the Taliban and he thinks his life would be at risk.
172. All of this of course is a new claim, none of it was previously raised with the Department or with the Tribunal and there is no independent evidence before the Tribunal to support this claim.
173. Section 423A of the Act provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence. If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made or evidence not presented before the primary decision was made.
174. The applicant had no excuse for the late claim not being raised at an earlier time. His position has always been that he was an Afghan citizen who is married to a Pakistani wife, and he still made that claim even though evidence shows that he was issued with a Pakistani passport and had been the subject of an application for a visa to [Country 1]. His explanations about all of that has already been canvassed in these reasons with the Tribunal reaching an adverse conclusion as to the veracity of that claim. In respect to his response to the country information on this issue, the Tribunal is satisfied (and so finds) that he only raised the late claim when confronted with the country information that showed that even if he was an Afghan as he claimed, he was still entitled to reside in Pakistan. The Tribunal is overwhelmingly satisfied that the new claim was nothing more than a desperate illustration of the applicant manufacturing a claim to suit his narrative, and the Tribunal is satisfied of an unfavourable inference as to the credibility of that claim, and the new claim is rejected.
175. The applicant also said that if he returned to Pakistan, because he is an Afghan, he would be forced by the Pakistani government to go back to Afghanistan. The Tribunal is aware of reports that the Pakistan government has ordered all undocumented immigrants, including 1.73 million Afghan nations, to voluntarily leave Pakistan of face deportation. Having already found that he is not an Afghan citizen, the Tribunal is satisfied that this does not apply to him.
Findings
176. Having given very careful consideration to the evidence provided in this application, the Tribunal finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Pakistan, a real risk exists that he would suffer significant harm or there is a real chance that he would suffer serious harm.
177. Having regard to, and carefully considering all the evidence, in particular the facts as outlined above, the Tribunal finds that the applicant is not a person in respect of whom Australia has protection obligations as defined in the Act.[37]
[37]Migration Act 1958 (Cth), s 36(2).
178. Therefore, the Tribunal does not accept that the applicant is a refugee as defined in section 5H of the Act, nor has the applicant satisfied the criterion as provided in section 36(2)(a) of the Act, and Australia does not have protection obligations in relation to him.
COMPLEMENTARY PROTECTION CONSIDERATIONS
179. Having already concluded that the applicant does not meet the refugee criterion as provided by the Act,[38] the Tribunal has considered the alternative criterion.[39] In considering the alternative criterion, an assessment was undertaken as to whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed to Pakistan, there is a real risk that he will suffer significant harm as it is defined in the Act.[40]
[38]Migration Act 1958 (Cth), s 36(2)(a).
[39]Migration Act 1958 (Cth), s 36(2)(aa).
[40]Migration Act 1958 (Cth), s 36(2A).
180. Because of the findings already outlined, the Tribunal is not satisfied that in the reasonably foreseeable future there is a real risk that the applicant would suffer significant harm for any of the reasons he claims if he returned to Pakistan. Helpfully, the courts have discussed the test for ‘real risk’ and determined that the real risk test imposes the same standard as the real chance test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[41]
[41]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.
181. Having considered all of the applicant’s claims, individually and cumulatively, along with the evidence, the Tribunal does not accept that if he returns to Pakistan now or in the reasonably foreseeable future he will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to torture or to cruel or inhuman treatment or punishment, nor will he be subjected to degrading treatment or punishment.
CONCLUSION: REFUGEE CRITERION
182. Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds that there is not a real chance the applicant will be persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group. The Tribunal finds that his fear of persecution is not well-founded as required by section 5J of the Act and, therefore, he is not a refugee within the meaning of section 5H of the Act.
CONCLUSION: COMPLEMENTARY PROTECTION CRITERION
183. Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds there are not substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Pakistan, he will be exposed to a real risk of suffering significant harm.
OVERALL CONCLUSION
184. 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 section 36(2)(a) of the Act.
185. Having concluded that the applicant does not meet the refugee criterion in section 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in section 36(2)(aa). The Tribunal is not satisfied that he is a person in respect of whom Australia has protection obligations under section 36(2)(aa) of the Act.
186. There is no suggestion that the applicant satisfies section 36(2) based on being a member of the same family unit as a person who satisfies section 36(2)(a) or section 36(2)(aa) of the Act and who holds a protection visa. Accordingly, he does not satisfy the criteria in section 36(2) of the Act.
DECISION
187. The Tribunal affirms the decision not to grant the applicant a protection visa.
Wayne Pennell
Senior MemberATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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.
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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.
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5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36 Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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Key Legal Topics
Areas of Law
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Immigration
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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Citations2018361 (Refugee) [2023] AATA 4695
Cases Citing This Decision0
Cases Cited3
Statutory Material Cited0
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140