2108880 (Refugee)

2108880 (Refugee) [2021] AATA 4214 (23 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:2108880

COUNTRY OF REFERENCE: Pakistan
MEMBER:Rodger Shanahan
DATE:23 September 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 23 September 2021 at 12:29pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – particular social group – honour killing – applicant’s wife committed suicide – threats from wife’s family – detention – internal relocation – marriage registration – legal proceedings – return visits to Pakistan – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 July 2021 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Pakistan, applied for the visa on 21 May 2021.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
The following claims were made in his May 2021 protection visa application:
Frightened of enemies in Pakistan. The girl I married before (my first wife) committed suicide. Her brothers blamed me for her suicide so they accused me of murder so I fled. They have been threatening me all the time. More information will be provided in my statutory declaration later.
Once I was falsely accused of murder. Once I was in jail for 4 months. Then I posted bail. During the trial and upon appeal I was in jail for 11 months. The [Court] found I was not guilty and let me go. Once I was released from prison I suffered psychological harm. I was threatened to be killed by my former wife's brothers. I was scared. I could not go out at night. I had to keep where I was going secret.
In Pakistan the police do not protect me. There is no law that could protect me from my enemies so I had no choice but to run. You can only report after something has happened like if they hurt me. They were trying but I was escaping, it was difficult.
I left Swat and went to Karachi but It was easy to discover. I felt scared. It is a dangerous city for me. Generally it is an unsafe city. It is hard to be safe in Pakistan for me. My enemies will chase me. They have many people part of the family that can hurt me outside of the village. More information will be provided in my statutory declaration later.
I fear I will be killed by my enemies. I cannot work there or do anything without fear. More information will be provided in my statutory declaration later.
I fear I will be murdered. It is tradition in my village that enemies like mine will not give up until they take revenge. More information will be provided in my statutory declaration later. More information will be provided in my statutory declaration later.
They will not interfere. They will just tell me to be careful because the enemies are also link to Taliban. They can get support from Taliban if someone from authority will try to hurt them.
There is no place in Pakistan where I will not be harmed. My enemies will not give up until they take revenge. They will find me and they will kill me. It is easy to find people in Pakistan. I have a large family and it is not easy to move and keep our location quiet.
AAT Hearing
The applicant claimed that he had been accused of murdering his wife when she actually suicided. She had four brothers and nothing had been settled to the present day. Any time he had spent in Pakistan was very fearful and he had never stepped foot outside the house. Asked what he thought they would do to him, he claimed that they would kill him as they had not signed an agreement and said that if they saw him they would kill him. He had this fear since he had come out of jail. He came out of jail in 1995. This was his only claim but then he said that one of the brothers was just like a Taliban in the way he dressed and conducted himself. From 2007-2012 the Taliban occupied the area he was living in. Now the Taliban have taken over Afghanistan the people where he is from think the Taliban will take them over. Asked what he thought this meant for him, he claimed that this brother would now seek help from the Taliban to kill the applicant.
The applicant then said that it was daytime and he was at school. It was winter and the days were short. School went from 9-3.15; he was in [Grade] at that time. He was [age] years old. He was married 13 months before the incident. Asked if he had a record of his marriage, he claimed that he didn’t remember the date of the wedding. Asked again if he had a marriage certificate or record of his marriage, he claimed there was no written paperwork and the clergy would just say prayers. Asked if they registered the marriage with the Pakistani government, he said that it wasn’t.
Asked whether all marriages had to be registered, he said there was no reason and at that stage marriages weren’t registered. Asked if his previous marriage was noted on his current marriage registration, and he said there was no mention of the previous marriage on the current registration. Asked if there was a place on the current registration where previous marriages had to be registered, he said there was none. His current marriage was an Islamic one with a contract, but there was no mention of previous marriages.
He was asked if he had any evidence that he was previously married and he stated that he didn’t have anything on him but he could ask his family. There was no evidence as such, it was just verbal. His previous wife’s name was [name] but she was known as [alias]. His teacher came to him at school and said there had been an incident at home – when he got home her brothers had come to their house and taken her body away. He told his parents that he would go to their house to see her body.
She committed suicide with a pistol that belonged to his family. In Pakistan every family has a pistol and the government gives people a licence for them. They are for protection – it’s in most but not all houses. It is for protection against intruders. His parents told him not to go to the wife’s family house as the brothers looked angry and the police came that night and said the brothers had accused the applicant of killing their sister.
He then went to jail for four months and was then bailed. The brothers appealed and he again went to jail and the applicant’s father then appealed in [Court 1] and they passed the judgment that there was nothing in the case and the case should be finished within two months. Asked what he meant by ‘finishing it’ he said the lower court should clear the case as there was no evidence to support the case.
He was asked if he had any evidence to support this claims all that had been provided were some photocopies of court documents that appeared to be a decision about bail but there was nothing to indicate what case it referred to, no mention of his wife’s name or the charge, and no evidence of a finalised court decision relating to murder. He said that he had sent the information and it was put to him that there was no court decision in the documents, only talk about bail.
He said that after this decision, the session judge then released the applicant. It was put to him that there must be some official documents saying that he had been found not guilty. Asked if he had been found not guilty, he claimed that he sent the court’s decision and said it was a short decision. It was put to him that there appeared to be no indication in any of the alleged court documents that there was a decision about his charge so unless he could provide something more compelling the Tribunal was unlikely to give much weight to what he had given it. He said that he had submitted whatever paperwork he had from the courts.
It was put to him that country information indicated that fraudulent documents were easily obtainable in Pakistan so the Tribunal needed to satisfy itself that the documents were genuine. He said he had no idea how to get fake documents.
He had been released from jail in 1995. Asked why he thought the brothers were going to kill him given it had been 26 years since he had been released and nothing had happened to him. He said this was because he hadn’t spent much time in Pakistan – he had been indoors whenever he was in Pakistan. He was 15 months in [Country 1] and had spent 20 years on the ship. He had made sure he stayed at hime whenever he was at home. He never went out. Asked how many years he had lived in his village out of the last 26, he claimed he had sent the documents as to when he was away. He was at home about two and a half months at home between trips on the ship.
Asked again approximately how long he had been at home in the last 26 years, he said he had spent 150 months on the ship. It was put to him that this was 12 and a half years so (taking away 15 months in [Country 1]) he spent about 12 years in his village of the last 26. He agreed this may be right but it not consecutive and he lived in fear all the time and never went out at night. It was put to him that if they hadn’t killed him during the 12 years he had spent out of the last 26 in his village then perhaps this was because they weren’t actually interested in targeting him.
He claimed that he was Pashtun and animosity goes on for generations. If he was killed then his children would try to take revenge. This was why he tried to leave Pakistan so his children wouldn’t continue with revenge. It was put to him again that given no one had touched him in a cumulative 12 years of living in the village it didn’t appear believable that he was under any threat. He repeated that he never gave them any opportunity to harm him. His family always lived in fear – he was sick of living in fear and his family was now living in peace.
Asked why the brothers didn’t just come to his house and kill him – he had said in his statement that it was easy to find people in Pakistan, yet they ever found him even though he was staying at home. Either it wasn’t easy to find people or no one was after him. He said the brothers had not forgiven him and will take revenge at some stage.
The applicant had [number] children and [specified siblings]. Asked why the brothers had not kidnapped one of his siblings, children or his wife and held them in order to force him to come out so they could kill him. He said the revenge was against him not his family. It was put to him that they could just kidnap his loved ones to force him out, not kill them. He claimed it was possible they may do this just as the member came up with the idea – it was put to him that they had 26 years to come up with this idea but hadn’t. He said it might happen in the future.
It was put to him that the Tribunal had to judge whether his fear was well-founded and saying that something might happen in the future when nothing had in the last 26 years, wasn’t a very strong argument. He repeated that he had been living in fear for 26 years but since he had been in Australia he felt safe.
He came to Australia by ship. It was a [deleted] ship and [a number] of them applied for protection at the same time. He was related to one person, who was his [Relative A]. Asked if it was just coincidental that they all applied for protection at the same time, he said they never consulted each other. Asked if it was a coincidence that [number] people from the same ship applied for protection at the same time he said he had no idea of their situation. It was put to him that it was hard to believe that [number] people from the same ship would independently decide to apply for protection independent of each other, particularly given he was closely related top one of them. He said he had no reason and he applied for his own reasons.
He had been to Australia before but had never been off the ship as the rules were strict. He worked in the [ships] and had been to Australia 20-25 times. Asked if he had been to other first-world countries he said that he had been to [several specified] countries. In Australia he would stay for loading, mostly a day or perhaps two or three days. Perhaps longer outside the port. He was never allowed off the ship during any of these visits as they feared crews would leave. There were always cameras or people watching. He had never tried to get off the ship.- he thought about it but was fearful of being caught and losing his job. It was put to him that he feared losing his life in Pakistan so his claim that he feared losing his job over losing his life didn’t appear to a valid reason for not making an attempt.
He said that he had to think of his family and feed them and there were cameras and people watching so he would have been unsuccessful. It was put to him that he also couldn’t feed his family if he was dead so it was strange that he kept on returning to a place where he feared being killed. He claimed that if he attempted he would have been reported and not allowed to go back on the ship. It was put to him that he wasn’t physically restrained and could have worked off at any stage and reported to a police station. He claimed the gangway was brought up so couldn’t be used and there were three people at night guarding the gangplank. He was never required to guard the gangplank – this was done by ordinary seamen. He assisted [in other roles].
Asked if he ever tried to apply for a visitor’s visa as well as his maritime visa and then meet the ship at the next port after staying for a visit. He said there was no such thing as one couldn’t get another visa as well as a maritime via. It was put to him that country information indicated that one could have both. He said that he never knew about this. He was asked if he came up with other options such as telling the company he would fly to Australia and meet the ship there and apply for asylum once he got there. He said he had no idea as a company in Karachi did all the administrative arrangements. It was put to him that he didn’t appear to have done much research into how he could have applied for asylum in a country he had visited more than 20 times. He said that he never thought about doing this.
He reiterated that animosities in his area of Pakistan never vanished. If he was killed then his children would have to take over and so on. He had come to Australia to stop this cycle. He said he would peacefully live in Australia. Asked how he found out about applying for protection, he said that they were put in quarantine and were told to get help from [a named agency] and they filled out a form as to why they didn’t want to go back and they guided them how to apply. He had been given a number and called them. Asked how he got the number and knew to call them, he said there were [number] people and he was given the number by someone else they were staying with. Asked if he had tried to find such a group before he came to Australia, he claimed that Immigration took them to quarantine where they had a COVID test and then were taken to a hotel and then they called the number and a lawyer filled the forms for them.
Asked if he knew what was in the form he said that he was aware of the statement that he made. It was put to him that he said in the form that he would expand on what he said in his statutory declaration but no such declaration had been made – he was asked if he done one. He said he wasn’t aware of any such thing. It was also mentioned that he had suffered psychological harm and he was asked if he had any record of mental health treatment in Pakistan of Australia. He said he had suffered mental tension but had nothing to prove it. Asked if he had sought any treatment since being detained in Australia, he said that he had no disease that required him to see a doctor, he only had mental tension.
He said that the Taliban would come back to his area and one of his first wife’s was also from the Taliban and the Tribunal should keep this in mind. Asked why his brothers hadn’t been targeted if this dispute was based on families, and he claimed that they lived and worked elsewhere and they also hid when they came home. It was put to him that he had said that it was easy to find people in Pakistan and he couldn’t hide without being found, so it was strange that his brothers hadn’t been found. He said that he was the target and not his brothers and while his brothers were careful, the applicant was the real target.

His first wife’s brothers were in the village (one) and the other three roamed, they were in Karachi or the village. He was asked how he could live in the same village as one of his protagonists for 12 years without ever being found which appeared strange. He said that he lived like a prisoner and never left the house. Asked if it was a big or small village and he said it was quite [large] in Swat. He was told about s 424AA and it was put to him that in his interview he had said that he stayed in his village (as opposed to Karachi) because it was small and everyone knew everyone in the village and he felt safe there. If everyone knew everyone in the village (presumably including his first wife’s brother), it appeared strange that he could live there for 12 years and have [number] children yet the brother(s) never know that he was there.
He said he didn’t mean everyone knew everyone else, just that he could recognise people on the street, which he wouldn’t in a place like Karachi. He again said that he lived like a prisoner and had no freedom to do anything. He had not given them the opportunity to harm him. He was given until 31 August to provide additional evidence in support of his claim.
He was asked why he never applied for protection when he was in [Country 2], and he claimed that in [Country 2] he knew nothing about it or that he could apply for protection. Asked what he did to find out whether he could apply for protection in [Country 2] given he claimed to be killed in his home village, he claimed that he had been there and was outside and he was more scared of people there than anything. Their faces and the way he was looked at meant it wasn’t an option for him. They were allowed off the ship and to walk around for a few hours – he had been there a lot of times and was allowed off the ship five or six times. He didn’t really write these things down so he didn’t remember. It was put to him that there was a concern about his claim if he was in a refugee-accepting country and didn’t apply for protection. He again said he had a real fear and was giving the true story.
Post-hearing letter and submission
A letter was sent to the applicant post-hearing raising concerns that the claim that his wife committed suicide or even died at all was false and that he should provide copies of her death certificate, relevant court documents and on what basis the marriage certificate showed him to be a widower. He provided a response and attached seven translated documents that were scanned copies of handwritten documents.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia on a maritime visa [in] May 2021 and applied for protection on 21 May 2021. This was refused by the delegate on 5 July 2021. The Tribunal sighted a copy of his Pakistani passport as proof of his identity and his claim will be assessed accordingly.
The Tribunal exercised its discretion to hold the hearing by Microsoft Teams audio. The hearing was held during the COVID-19 pandemic. In arriving at this course of action the Tribunal had regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by this means.
The applicant had asked for an adjournment of the hearing as he had been released from detention after his initial hearing invitation had been sent and wished to seek legal advice, his case was complex, things were done remotely due to COVID and he was going to borrow money from a friend . He did not say how long he required – in response it was put to him that he had months to organise legal representation while in detention (and had not sought an adjournment while he was in detention) and to seek funds to pay for it, Brisbane was not in COVID lockdown and the case on the face of it did not appear to be overly complex. The Tribunal would need more compelling reasons as to why it needed to be adjourned and the length of adjournment that he sought. The applicant asked again for an unspecified adjournment but said that if it wasn’t granted he would attend on the directed date.
The applicant is [an age] year-old married father of [number children]. He claimed that if he returned to Pakistan he would be killed by the brothers of his first wife whom had wrongly accused him of killing their sister when she had in fact died by suicide. He had no other claims.
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not required to accept uncritically any and all claims made by an applicant.
I found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness, and find that he fabricated his claim in order to be granted a protection visa.
Death of First Wife
I do not accept that the applicant was married to a woman who committed suicide, and that he was subsequently falsely accused and charged with her murder before being acquitted and then re-marrying. The applicant has provided a significant number of documents in support of this claim. I have however given greater weight to concerns over the authenticity of the documents in question, some inconsistencies between the documents and his claim, and the implausibility of his overall claim in coming to my finding that his claim regarding having a first wife and her being killed has been fabricated.
I have taken into account the legal documents that he provided in support of his claim. These included screen shots of what he claimed were court documents showing his acquittal, various police, injury and death reports, a letter from his school and from the examining medical officer, a court document and a letter from the [provincial authority] stating that according to their records his previous wife had died [in] 1993. Court documents that the applicant said had been provided as part of the application were located by the Tribunal and have been taken into account in arriving at my finding. I have also taken into account (post hearing) written testaments from a range of people in Pakistan who claimed that they know the applicant and that he was acquitted of his wife’s murder but that his life is still in danger.
I can however, lend these documents little weight. To begin with country information says that document fraud is widespread for documents not issued by a competent central authority such as NADRA and that police FIR (First Incident Reports) are relatively simple to counterfeit and that DFAT considers that the existence of an FIR does not constitute evidence that the event described actually occurred.[1] The other documents he has provided also lack basic security features.
[1] DFAT Country Information Report – Pakistan, September 2019, p 71.
The court documents are screen shots of papers allegedly from [Court 1] around 1994. They are typewritten with some handwriting – all are in English. The documents refer to applications for bail and the need to conclude a trial in the lower court within two months (this was allegedly signed on 1 August 1994). None of them refer to the crime for which he was allegedly remanded (murder), nor do they mention the deceased at any stage. There is no information concerning the alleged crime.
Other court documents were provided that were allegedly the short and long versions of the [court] verdict and was an acquittal dated [in] 1995. The court verdict is entirely hand-written and goes into detail regarding the crime. I note that while the applicant claimed that his first wife died of a suicide with a pistol, the court documents (and the police reports) talk of a single gunshot wound entering from the back and exiting from the front, caused by a [specified] rifle. The judge ruled it a murder that occurred in the woman’s family-in-law house and that the applicant couldn’t be found guilty given there were other family members in the house
The Tribunal’s concerns regarding his claim that his first wife committed suicide begin with the applicant having no record or evidence that he was married, other than the references in the court documents whose veracity I have already called into question. He claimed that when he was married there was no need to register any marriage and it was just done verbally with a cleric. I accept that it is possible that he may not ever have registered the marriage.
He also provided a current marriage certificate. The marriage certificate is a photocopy of what appears to be a computer-generated document however there are again concerns over its veracity. There is another concern in that the applicant said at hearing that there was no record of a previous marriage on his current marriage certificate, nor any place that noted previous marriages, yet the document that he provided shows him as a ‘widower’ in the section entitled ‘marital status’. Not only is this at odds with what he claimed regarding whether previous marriages were noted on a new marriage certificate, but it also rises concerns that if there was no record of his first marriage given it had never been registered, then why he would be described as a widower.
I have taken into account the document he claimed came from the [provincial authority] that noted the date of death of his first wife and that he was a widower. Besides my concerns already noted regarding its veracity given the prevalence of fraudulent documents in Pakistan, it also raises questions as to how the Council was aware that the applicant was married if the marriage had never been registered. Alternately, if there was a record of the marriage that allowed the Council to base their letter on, then why the marriage certificate was never provided to the Tribunal.
The alleged court documents are also at odds with his claim that his wife committed suicide with a pistol. The judgment refers to the fact that it was a murder given the nature of the entry and exit wound. The weapon was also a rifle rather than a pistol.
There is also no way of verifying to any degree of certainty that the testaments he offered post-hearing reflect the truth, or were written by someone who knew the events described. I do however note that one of them talks about the fact the applicant’s life is in danger despite the presence of ‘personal security guards’ which is inconsistent with any of the information given by the applicant in his claims.
Brother’s Revenge
My finding that the applicant was never married to someone who was shot and killed for which he was accused is strengthened by the implausibility of his own actions and those of the applicant’s alleged brothers-in-law.
I find the actions of the applicant to be entirely inconsistent with someone who fears being targeted by the family of his first wife. Despite claiming that he was targeted by three brothers, one of whom he claimed was linked to the (presumably Pakistani) Taliban, over the death of their sister, he was able to live cumulatively for 12 years in the village, come and go for his work as a sailor, and father [number] children without ever having been targeted by the family seems completely implausible.
This was despite the fact that he claimed one of the brothers lived in the village and the other two came and went from the village. It is also inconsistent with his claim in his written statement that there was nowhere safe for him in Pakistan, that it was easy to find people in Pakistan and in his interview where he described his village as being small where everyone knew each other. I have taken into his account that he meant that he meant people could recognise, rather than know each other in his village. If people could recognise each other then it is reasonable to believe that in the cumulative 12 years that he was there then people would have at least seen him coming and going and word would have gotten around (particularly to the brothers who he claimed were actively looking for him) that he was in the village. I find his claim that despite this, he was able to elude the brothers by staying at home for 12 years and not venturing out to be so implausible as to completely lack credibility.
The fact that no move has been made against any of the applicant’s siblings or family in the past 26 years also adds to concerns on the part of the Tribunal that the applicant has fabricated the story. I do not accept that this is because the dispute is with him – it is reasonable to believe that if for some reason he was hiding too well in his own house to be found, then kidnapping a family member in order to get him to reveal himself may have been though if as an option by the brothers some time during the past 26 years. I also note that the alleged court document, while it exonerated the applicant, still found the woman had been murdered in her family-in-law’s house (while other members of the family-in-law were living in the house) which it is reasonable to believe would have given the dead woman’s brothers even more incentive to target the applicant’s siblings or other family members.
I also note that the applicant also failed to apply for protection even though he travelled to, and left the ship several times in [Country 2], a refugee-accepting country. I do not accept that he felt unsafe there when he looked at people and didn’t think it was an option to apply for protection. The fact that he never even looked at asylum options in countries to which he travelled as a sailor, despite claiming to have been in fear of his life for the past 26 years, defies belief.
Because I do not accept that the applicant was ever married to a woman who he was falsely accused of killing, it follows that he never has been, is or will be of interest to the alleged first-wife’s brothers, that they would not try to kill him if they saw him, that he never had a need to or failed to sign an agreement with them or that he never set foot outside his house. It also follows that there would be no long-term desire to exact revenge in the Pashtun tradition.
The fact that [number] Pakistani crew members of same ship also independently decided to apply for protection at the same time as the applicant without each others’ knowledge also defies belief, particularly given that one of them is the [Relative A] of the applicant.
Other Issues
I do not accept that the applicant suffers from any mental health issues. He claimed that he suffered from ‘mental tension’ but had not sought any medical help in either Pakistan or Australia. He was lucid throughout and I do not believe there were any medical issues that could account for his inconsistencies.
As the applicant hasn’t raised any other claims to fear persecution and, having had regard to all the evidence, and the applicant’s claims both singularly and cumulatively, the Tribunal finds that there is not a real chance that the applicant will suffer serious harm for any reason either now or in the reasonably foreseeable future.
Complementary Protection
Because I do not accept that the applicant was ever accused of killing his first wife, or that her brothers want revenge as a result, I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.
As a consequence I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rodger Shanahan
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2021] AATA 4214

23 September 2021

Key Legal Topics

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Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Standing