2202455 (Refugee)

2202455 (Refugee) [2022] AATA 1358 (19 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2202455
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Luke Hardy
DATE:19 April 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 19 April 2022 at 4:33pm
CATCHWORDS
REFUGEE – Protection visa – Pakistan – criminal charges – faces honour killing at the hands of relatives – an individual local criminal act of violence – inconsistent evidence –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 5AAA, 36, 65, 425, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, [Mr A], is a citizen of Pakistan. He arrived in Australia on [date] July 2017 on a student visa. He has made two return trips to Pakistan. His student visa was cancelled on 19 December 2019 when he was arrested and charged in two matters involving alleged [Offence 1]. He has been in remand or immigration detention since then.
[Mr A] lodged a protection visa application on 9 December 2021. The delegate refused to grant the visa on 21 February 2022. [Mr A] then sought review by this Tribunal and the matter was constituted to me.
For the purposes of this review, [Mr A] submitted a copy of the delegate’s decision, which contains a summary of his written and oral evidence to the Department of Home Affairs (the Department) along with key issues raised and relevant country information relied upon in that decision.
I find that the review application is a valid one.
[Mr A] appeared before the Tribunal by videoconference on 5 and 13 April 2022 to give evidence and present arguments.
The Tribunal hearing was facilitated by interpreters in the Urdu-English medium.
I am satisfied that [Mr A] was given a fair opportunity to present his claims for protection.
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, he or she 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: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she 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 that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she 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.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration - PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines - and relevant 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues
The key issue in this case is whether, on accepted evidence, [Mr A] is entitled to Australia’s protection as a refugee or, if not, on complementary protection grounds.
For the following reasons, I have concluded that the decision under review should be affirmed.
Claims
In his original protection visa (PV) application, [Mr A], who comes from Punjab, claimed that he belongs to an extended family with strict Muslim values and prominent involvement in politics. He claimed that he faces honour killing at the hands or command of his uncles because of the apprehended shame he has brought upon his family in the matters of the alleged [offences] that he is alleged to have committed here in Australia. He claimed that honour killings are common in Pakistan, are under-reported and of little interest to the authorities there, in spite of being prohibited under Pakistani law. [Mr A] also claimed he cannot relocate safely within Pakistan to avoid being harmed due to his family’s social access and networks.
As at the time of his original protection visa application in December 2021, he did not suggest that any relative had disclosed any intention or threat to kill him, but he did claim that a cousin was murdered in an honour killing in 2013 and an aunt faced the same fate in 1993. He claimed his father died in a “revenge” killing in 2001 for belonging to a family that had killed a member of someone else’s family.
[Mr A] claimed in his December 2021 protection visa application that his uncles would likely make his death look like an accident. This struck me as odd because the reported trend in honour killings is for targets of honour killings to be female, and for their families to let it be known that they have restored honour by doing away with them, commonly over “offences” such as alleged marital infidelity, refusal to submit to an arranged marriage, demanding a divorce, perceived flirtatious behaviour and being raped.[1]
[1] Pakistan: Honour Killings of Women and Girls, Amnesty International, 31 August 1999
As at the time of his protection visa interview with the delegate, [Mr A] did not suggest that any member of his extended family had openly declared an intention to kill him or have him killed. He did say that one uncle, who he had contacted in December 2019 for a loan to cover lawyer fees in relation to an offence that he had only described as a “fight,” suddenly cut all contact with him. He said that he believed this happened because the uncle found out the real reason for his arrest, being the more shameful [Offence 1].
[Mr A] explained to the delegate that between the time he was arrested and charged with [Offence 1] and the time his uncle cut contact with him, a [social media] group to which he belonged published a [news] website story about the alleged [offences] naming him as the accused in both matters. He claimed to the delegate members of his extended family would have seen that [social media] post, while he sat in remand, as they followed him and all posts in which he was tagged. He said that this was how his uncles found out about the actual criminal charges against him.
I will return to this matter of the [social media] page later in this decision record: it is somewhat of a factual linchpin in the structure of [Mr A]’s claims.
Around the time of his protection visa interview with the delegate, [Mr A] submitted two purported (and purportedly relevant) police First Information Reports (FIRs) to argue that several revenge and honour killings had occurred in his extended family in recent years. He also submitted screen captures of some local Australian news sources’ stories relating to the two alleged [offences] in which he was indeed named.
Particularly in relation to his references to a cousin or cousins having been murdered, and also in relation to the two FIRs, [Mr A] claimed the delegate became confused and conflated facts relating to three separate cousins into one or two. I can see that this may have occurred. At the Tribunal hearing, I went slowly with [Mr A] through his accounts relating to three different cousins, all of whom he said were murdered at the direction of their respective fathers.
The first cousin was called [Mr B] who was killed on the orders of his own father in 2010, or 2011 or 2012, for leaving his wife, although not divorcing her, and marrying a second woman with whom he moved away. [Mr A] explained to me that the law in Pakistan, favouring Islamic customs and mores, allows a man to have up to four wives, which made me wonder just what his allegedly strict Muslim family found so offensive. Responding to this concern, [Mr A] said that although [Mr B] would have been allowed to have a second wife under the law, this is not usually done. I put to him that I still did not understand why [Mr B]’s own family would have killed him rather, say, than the first wife’s family, say, for leaving her unsupported. In response, [Mr A] said that the woman for whom [Mr B] left his first wife was a Christian. I asked, then, why this would have been such a catastrophe, given that any children of [Mr B]’s second wife would still be Muslim and also given that it is common for Christian wives of Muslim husbands pragmatically, or under duress, to convert at least nominally to Islam.[2] In response, [Mr A] said that such a practice is not as commonplace as I was positing.
[2] “Each year, 1,000 Pakistani girls forcibly converted to Islam,” AP News, 28 December 2020,
[Mr A] provided additional information about [Mr B], telling me that the latter was for a time working in [Country 1] until his father exploited a joint protocol between Pakistan and [Country 1] and had him extradited to Pakistan on a trumped-up charge, whereupon there was “almost like a kidnapping situation” that led around six months later to his murder.
The second person called a cousin who was murdered in what [Mr A] called an honour killing was called [Mr C], who [Mr A] described as having been relatively uneducated and generally antisocial, involving himself in gang-like coercion against local members of political parties to which he was opposed. He said [Mr C] was about [age] years old at the time of his killing at the command of his father. However, nothing [Mr A] told me about [Mr C] even remotely suggested that [Mr C] was murdered by or at the behest of his own family in a matter of tainted family honour. This is because, in other parts of his evidence, the assault and killing of political foes was something in which, [Mr A] suggested, at least one uncle was occasionally involved.
With the first FIR in front of me, I asked [Mr A] for the name of [Mr C]’s father, who had purportedly him killed. [Mr A] said [Mr C]’s father was named [Mr D], or [Mr D variation 1]. He added that this man was also known simply as [Mr D variation 2] or [Mr E], and also [another alias]. I put to [Mr A] that the father of [Mr C] is differently named in the first FIR (he is named [Mr D variation 3]). I also put to [Mr A] that the deponent and witness in this FIR was named [Mr D variation 1], son of [Mr E], who identified himself as [Mr C]’s maternal uncle and identified [Mr C] clearly as someone else’s son. I noted that there was another [Mr C] reported to be present at the scene of the killing, [Mr C] “son of [Mr F],” but observed that it was only “[Mr C] son of [Mr D variation 3]” who was killed. I put to [Mr A] that this FIR contained information that seemed inconsistent with his claims. In response, [Mr A] said that FIRs are allowed in Pakistan to be lodged in anyone’s name, the police not paying much attention to strict details of identification. This struck me as odd in the claimed circumstances, as the police would potentially want to be able to call on deponents as witnesses in court. In any event, this FIR reads like the deponent knows precisely who everyone concerned is and who his father is. I asked [Mr A] if he was saying that FIRs in Pakistan are commonly susceptible to arbitrary and unchecked data entry and he said they are. I then put to [Mr A] that this information had to the potential to lead a reasonable person to the view that this FIR might not be a document on which one could confidently rely. In reply, he said that this was what happens in Pakistan and why allegations and charges seldom lead to convictions.
The other problem I put to [Mr A] was that the person alleged to have ordered or directed the murder of [Mr C] was the person who brought the matter, as an apparently innocent bystander, to the attention of the police. I put to [Mr A] that a particularly devious person might order a killing to be carried out by apparently unknown persons in front of him and then report the matter to the police posing as an innocent bystander, although this seemed a little far-fetched in the claimed circumstances and, in any event, did not appear to be what happened according to his claims so far. In response, [Mr A] said that any family name can be given in a report like this, which response was not helpful in explaining why the [Mr C] reported killed in the FIR was called “[Mr C] son of [Mr D variation 3]” instead of, say, “[Mr C] son of [Mr D variation 1].
I drew [Mr A]’s attention to the delegate having given weight to independent information as to the prevalence of easily obtainable fake documentation in Pakistan. In reply, [Mr A] said he agreed that forgeries are indeed easily available in Pakistan for a price but asserted that this FIR was genuine and had been formally lodged with the police in July 2021.
[Mr A] later emphasised that [Mr C]’s father was [Mr D variation 3], and not [Mr D variation 1], but this was not consistent with his first answer to my question seeking the name of that person.
None of the evidence about this alleged cousin [Mr C] suggested to me that he was murdered in an honour killing by his father. Given [Mr A]’s evidence of [Mr C]’s alleged involvement in the criminal side of political activities, it might more likely have been an act of revenge by political opponents who were not related in any way to his family.
[Mr A] told me that the third person he called a cousin, who had been a teenager, had been killed for associating with a female student at his school. He said this cousin was named [G] and he stressed that [G] was a male, and not a female as suggested by the translation of the second FIR produced in evidence to the Department, notwithstanding the abundance of independent sites on the Internet that state clearly that “[G]” is a girl’s name in Pakistan, none of them suggesting that it is ever given to a boy.[3]
[3] For example: [source deleted]
After an adjournment during the second of the two hearings, [Mr A] submitted a screen capture of a photocopy of the original Urdu version of this FIR to support his contention regarding the translator of the document having wrongly identified [G]’s gender and, in one instance given the wrong date for the incident [G] reported in the FIR. [Mr A] said this screen shot had been sent to him, at his request, by his lawyer in Pakistan. He took me to where the dates in the Urdu document were all consistent, and I could see that, in this document in this format at this time, they were indeed consistent, describing the incident as having occurred in March 2020, rather than six years before the report was purportedly made. [Mr A] said the document also identified [G] as a male, rather than as a female, as suggested by the translation on file. I indicated to [Mr A] that I was prepared to accept without further investigation that [G] was identified as male in this manifestation of the purported original FIR, the question of what weight to give the FIR being a separate matter.
This FIR reports an armed attack on [G]’s home by two unknown gunmen in which [G]’s father, two sisters and brother were shot to death, his mother and maternal uncle and himself the only survivors of the attack, [G] albeit sustaining a gunshot wound to his wrist. On a fair initial reading, this did not obviously appear to be a report of a targeted attempt by [G]’s own family to kill him alone over his having consorted with a Christian student at his school, given the killing of so many other family members, including one who was reportedly fleeing the scene. When I put this to [Mr A], he said something very surprising in the claimed circumstances: he said that the incident in this second FIR was not one involving his family. He said it was more of a general example of murder in Pakistan. I then asked [Mr A] why he had even submitted it purporting it to be the report of the killing of one of his cousins and, in reply, he said he had done so to help give some perspective in support of his claims.
[Mr A] initially said that his “male” teenage cousin [G] attended a Christian school. The delegate had evidently found it unlikely that a strict Muslim family would send their son to a Christian school, and apparently found that this problem weighed cumulatively against [Mr A]. I asked [Mr A] the name of the school his cousin had attended and he said he did not know its name; he said it was a Christian school that taught classes in the English medium, rather than Urdu. He then told me that he never told the delegate that this cousin’s school was a Christian school, appearing here to indicate that this construction was the result of the delegate confusing the evidence about all the cousins he had described at the protection interview. However, when I asked him how it had come to pass that the delegate identified the school as a Christian school without being told that it was in fact a Christian school, [Mr A] said that the delegate might have misunderstood or that he himself might have made a mistake. In any event, he was now claiming what the delegate had recorded: that this teenage cousin went to a Christian school and that his strict Muslim family sent him there because all the best schools in Pakistan are Christian schools. He emphasised that [G] attended the school not for religious instruction but to learn all his courses including “Chemistry and Science” in English. I put to him that in such circumstances it might be normal for the children at that school to be expected to practice conversation with each other in English. In response, [Mr A], having just said that he did not even know which particular school it was, said that none of the students spoke English while attending the school. I put to him that this would be absurd, given that parents were paying to have their children educated in, and through, English. In response, [Mr A] said vaguely that this was a Pakistani version of an English-medium school where everybody spoke Urdu. I put to him that even so, families sending their children to such schools would expect that their children converse with each other and maybe even interact socially; in reply, he said, “No.” I asked [Mr A] if [G] might merely have been talking about “Chemistry and Science” with this Christian girl. In reply, he said he did not know. He said [G]’s brother caught [G] texting with the girl on his mobile telephone and, apparently, then denounced him to their parents. It seemed odd to me, then, that [G]’s brother and father were both killed purportedly, in this case, by their own family.

I asked [Mr A] for more information about the alleged [social media] page. He said it was a group page called [name deleted]. I was able to locate this group easily without any of the ID clearance issues that, as [Mr A] previously claimed, had prevented his friend from accessing in December 2021. However, I was only permitted to see the last month’s posts. A person would have to join or ask [social media] for an alternate means of access. [Mr A] told me that the friend who he engaged in December 2021 to search the group’s scroll was also a Pakistani. Evidently, he did not join the group and he was not given access.
[Mr A] told me that this friend was a housemate called [Mr H], commonly known as [Mr H shortened]. A statement from [Mr H] was recently submitted in evidence. In it, [Mr H] asserts that [Mr A]’s cousin contacted him via [social media] and asked after [Mr A], whereupon that cousin’s father, [Mr A]’s uncle, took over the telephone and told him that he had seen the truth about [Mr A] (being accused of [Offence 1], rather than having been in a “fight”) on [social media] and ordered that [Mr A] not try to contact the family again. [Mr H] did not provide a date for this exchange but the context, and [Mr A]’s oral testimony indicates that the call occurred no more recently than January 2020. The next thing [Mr H] says in his statement is that he reported the post naming [Mr A] to [social media] “admin” and soon had it taken down permanently.
I asked [Mr A] to tell me how his cousin in Pakistan would have seen the [social media] post naming him as the [Offence 1] suspect and he said that, as soon as the post appeared in December 2019, his cousin would have seen it because that cousin is able to see every post on [social media] in which he, [Mr A], is “tagged,” as [social media] parlance goes. Allowing [social media] “friends” to every post in which one is “tagged” is an optional feature than can be limited or switched off but which [Mr A] claimed he had not modified with regard to this particular cousin.
[Mr A] claimed to me that the post naming him as an alleged [offender] only “stayed up” on [social media] for two weeks in December 2019. He said he had told the delegate that the post naming him had been deleted, although there is no mention of this in the primary decision record. In any event, he told me that he asked for the post to be deleted back in December 2019 and was made aware of its deletion at that time.
This begs the question as to why [Mr A] engaged someone like [Mr H] to try to access the (already deleted) post on the newsfeed of the [social media] group [in] December 2021: the whole exercise evidently conducted at [Mr A]’s behest, apparently to address a concern raised by the delegate at interview, appears to have been entirely disingenuous, as well as being wholly incongruous with the knowledge that the post in question had been deleted two years earlier.
[Mr A] submitted another statement, this one an affidavit dated 2 April 2022 from his sister in Pakistan in which she claims her uncles have told her and her mother that they intend to harm [Mr A] if he ever returns to Pakistan. She asks the Australian government to keep him here where he will be safe.
I asked [Mr A] when the trial [is] expected to be held and he said [it] is expected to commence in August 2022. I asked him if he thought it might make a difference to his chances the honour killing not being carried out if he is acquitted and he said he hoped it would.
[Mr A] also submitted photographs of men he identified as politically-connected uncles and their political comrades. He argues in his evidence that such people would stop at nothing to protect their high reputation.
Findings in relation to s.36(2)(a) of the Act
In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[4] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[5]
[4] MIMA v Rajalingam (1999) 93 FCR 220.
[5] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[6] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a 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 the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[7]
[6] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70
[7] Sun v MIBP [2016] FCAFC 52 at [69].
I find that [Mr A]’s claims relate to an individual local criminal act of violence, in response to actions on his part, that specific relatives of his are alleged to be intending to carry out against him. I find that his claims argue the state will not protect him because the state is not interested in intervening in internal family affairs. None of these claims have a nexus with s.5J(1)(a) of the Act: they are all about individual violence in a context similar to revenge.
In any event, I find that I cannot rely on [Mr A]’s claims. [Mr A] insists that a specific [social media] post in a specific group page was seen by his cousin in Pakistan and brought to the attention of his murderous uncles. However, he has given such inconsistent evidence about the reasons why he cannot produce evidence of that post that I am unable to accept that it was ever posted. I am consequently unable to accept that his cousin ever saw such a post, and since [Mr A] is so adamant that that was the way his cousin learned of the charges against him here in Australia. Accordingly, I find that I cannot rely on the evidence suggesting that [Mr A]’s relatives have learned the true nature and content of the charges against him.
For clarity, I give no weight either to the evidence of the alleged December 2021 effort to access the alleged [social media] post or to the witness statement attesting that the post was “taken down” in late 2019. I give negative weight to the incongruity of [Mr A] saying he sought access to a post in December 2021 that he knew had been deleted in 2019.
I find myself all the more confident in these conclusions because the first of the FIRs discussed above contains information discordant with [Mr A]’s oral evidence. In addition, it does not support his claim about his cousin [Mr C] having been murdered in an honour killing. In addition, [Mr A]’s evidence about the arbitrariness of the police’s data gathering in regard to FIRs does not help me to be confident in the reliability of this purported FIR or of its relevance to his claimed circumstances.
With regard to the second FIR, I can accept that [Mr A] showed me an Urdu-language document containing congruous dates and a reference to [G] being a male, I give more weight to independent evidence about [G] being a name given to females, making it hard for me to give any weight to the document submitted during the hearing adjournment. In any event, I am not satisfied that the actions described in the FIR are indicative of an attempted internal family honour killing of the deponent [G], whether that person be male or female.
In addition, I am not satisfied that I can rely on [Mr A]’s oral testimony about [G] having been killed for talking to a Christian girl who attended the same Christian school to which “his” supposedly strict Muslim family sent “him.” He struck me as improvising his evidence about an English-medium school attended by students who never speak to each other either in English or Urdu.
In view of my concerns about [Mr A]’s reliability as a witness in this matter, I give no weight to the statement made by his sister.
I give no weight in this matter to the “uncle” photographs submitted by [Mr A] or to the arguments explaining them.
Having considered all of the evidence before me in its entirety, I am not satisfied that [Mr A] faces a real chance of being persecuted in Pakistan in the reasonably foreseeable future for any reason cited in s.5J(1)(a) of the Act. His claimed fear of being persecuted in Pakistan is not well founded. He is not a refugee.
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Findings in relation to s.36(2)(aa) of the Act
Having concluded that [Mr A] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa), whereby a person who is found not to meet the refugee criterion in s.36(2)(a) may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
Relevant to this, s.36(2)(aa) refers to a “real risk” of an applicant suffering significant harm. 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 (ref. MIAC v SZQRB [2013] FCAFC 33).
“Significant harm” for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. “Cruel or inhuman treatment or punishment”, “degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act.
Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment. Essentially, according to s.5(1) of the Act, all three of these forms of “significant harm” require that there be an intention to inflict harm by some act or omission. Torture 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 ICCPR.
“Cruel or inhuman treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. “Degrading treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one 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 ICCPR.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Accepting that [Mr A] is a national of Pakistan, I find that Pakistan is the receiving country in this matter.
[Mr A]’s claims to complementary protection are essentially the same as his refugee claims. Those claims are tainted by lack of credibility and have failed to meet the “real chance” test. In view of the “real risk” test imposing the same standard as the “real chance” test, [Mr A]’s refugee claims can no more succeed here as complementary protection claims.
Having considered all of the evidence before me in its entirety, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence being removed from Australia to Pakistan, there is a real risk that [Mr A] will suffer significant harm.
Accordingly, I am not satisfied that [Mr A] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Other findings
There is no suggestion that [Mr A] 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, he does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Luke Hardy
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.
…

[2022] AATA 1358

19 April 2022

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

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Appeal