1619641 (Refugee)

1619641 (Refugee) [2021] AATA 3230 (25 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1619641
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Denise Connolly
DATE:25 June 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 25 June 2021 at 5:45pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – religion – practising Shia Muslim – father and uncle killed by Sunni extremists and applicant and other relatives threatened and attacked – particular social group – relationship with a transgender person – break of betrothal with cousin – perceived gay or LGBTIQ+ member – perceived as transgressing traditional norms of Pakistan society – credibility concerns – delay in applying for protection – migration history – inconsistent evidence – documentation about attacks on applicant and relatives – father’s conversion and death – country information – decrease in sectarian violence – prevalence of document fraud – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 Immigration and Border Protection on 11 November 2016 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 13 January 2016. The delegate refused to grant the visa on the basis that the applicant was not a person in respect of whom Australia has protection obligations.
There is a checklist on the Department’s physical files which indicates there is a relevant s.438 certificate however there is no non-disclosure certificate on file. In December 2020 a Tribunal officer followed this up with the Department who advised that there was an error on the checklist and there was no non-disclosure certificate issued in this case. The Department then provided an amended checklist confirming there is no non-disclosure certificate.
CLAIMS AND EVIDENCE
Evidence to the Department
When making the visa application the applicant made the following claims. He was born on [Date 1] in Abbottabad, Khyber Pakhtunkhwa Province (KPK), Pakistan. He speaks, reads and writes in English, Urdu and Hindko. He is a Shia Muslim. He has never been married. His father is deceased. His mother and 2 sisters reside in Abbottabad. He has weekly phone contact with his relatives in Pakistan. He has an uncle, an Australian citizen, who resides in the ACT. The applicant also resides in the ACT. He arrived in Australia as the holder of a Pakistani passport issued by the authorities [in] 2008.
The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that he first arrived in Australia [in] October 2009 as the holding a student visa granted in September 2009.
The applicant made the following claims in his visa application. He was born to parents belonging to different sects. His mother is Shia and his father was Sunni. His father converted to Shia Islam to marry his mother because “he was in love with her, and somehow wanted to marry her”. The family underwent “family turmoil due to the union, where the applicant’s father’s side almost disowned him and severed family ties”. The applicant’s parents faced extremist threats and intimidation due to his father’s conversion. They moved to another city to escape Sunni extremist groups. The relocation did not deter the extremists. They chased the applicant’s father, demanding he return to the Sunni faith or “face dire consequences”. The applicant’s father did not want to go against the word given to his mother and remained Shia. He was killed in 1991, shot by an unknown gunman.
The applicant was [age] years old when his father was killed. His mother moved in with her brother. The applicant and his sisters followed Sunni Islam as his mother feared for their safety. He studied Sunni Islam until grade 11 but converted to Shia Islam upon entering college. However he was prevented from following its teachings due to his mother’s fear. The applicant is attracted to the ideals of Shia Islam now, believing that the genuine Islamic values are upheld by the Shia sect. He wants to pay respect to his deceased father and his mother by following the Shia religion. He does not want to convert back to Sunni Islam. He believes if his faith is uncovered in Pakistan, he will be targeted.
The applicant cannot seek help from the authorities as the Shia-Sunni conflict has affected the whole bureaucracy in Pakistan and “there is too much antipathy towards Shia followers”. Relocation is not an option given what happened to his father. He is convinced he will be hunted down like his father and killed.
The applicant claims he left Pakistan to attain a higher education in Australia. He wanted to enhance his knowledge and skills to become a better person and return home to serve his mother. However when he went to Pakistan in November 2012 to attend his grandfather’s funeral, he narrowly escaped a life-threatening attack. Fortunately, they were unarmed but they attacked him and hit him. He managed to escape. Apart from suffering internal and external injuries, he suffered a forceful punch to his [ear]. He sought medical advice regarding his hearing capacity. He went to the police and they registered an FIR, but no action was taken. The applicant then went into hiding after the attack.
The applicant claims two members of his family, his father and maternal uncle, have been murdered and recently his family members were attacked in the mosque.
The applicant claims his roots are in [Town 1] (in Abbottabad) and his properties, business and relatives are all based in Abbottabad. His sisters are all married and living in the same city. It would be almost impossible to wind up everything and relocate.
Evidence to the Tribunal
The applicant provided to the Tribunal a copy of the delegate’s decision record. It records that the applicant was interviewed by the delegate on 30 June 2016. The Tribunal has listened to the recording of interview. Aspects of his oral evidence are recorded in the decision record.
The decision record sets out the applicant’s migration history. The applicant arrived in Australia in October 2009 as the holder of a [student] visa. On 12 October 2010 his [student] visa was cancelled for unsatisfactory course progress and non-payment of fees. The Department accepted the applicant’s grandfather had died and the cancellation was revoked on the basis of exceptional circumstances beyond the applicant’s control. The applicant’s [student] visa was made valid until 15 March 2014. [In] November 2012 the applicant departed Australia and returned [in] January 2013. He applied for a [second student] visa on 21 March 2014. It was refused on 7 May 2014. The then known Migration Review Tribunal (MRT), differently constituted, affirmed the delegate’s decision to refuse the visa [in] November 2014. The applicant sought Ministerial intervention on 1 December 2014. The outcome was recorded as “Not considered” on 1 December 2015. The applicant applied for protection on 13 January 2016.
The delegate accepted the applicant is a Shia Muslim but did not accept he or his family had any profile of note. She did not accept that he had been attacked because of his religious adherence or that his father had been killed in 1991 because he converted from Sunni to Shia. She did not accept the applicant’s family had been targeted by Sunni extremists.
The delegate referred to country information indicating that while some extremist groups target Shia Muslims, their houses of worship and their religious leaders, it also indicated they enjoy freedom of religion in Pakistan as a mainstream Muslim sect. She noted there were incidents of sectarian violence but it had reduced since 2013 and most of the incidents were against ethnic Hazaras. She noted anti-Shia violence in Pakistan was prominent in Balochistan, particularly in Quetta where the minority Hazara communities were easily identifiable and bore the brunt of discrimination, targeted killings and suicide bombings. She noted however that the applicant is not of Hazara ethnicity.
The delegate recorded that she had serious doubts the applicant was pursued by militants when he returned to Pakistan in November 2012. She noted in his written statement he indicated he narrowly escaped with his life and was bashed. She noted however that he remained in Pakistan for over two months. She formed the view he would not have returned to Pakistan in 2012 if he and his family faced extremist threats in the past, and that he would have left Pakistan immediately after being pursued by militants if it had occurred.
The delegate recorded that the applicant’s evidence at interview was vague and evolving. She did not accept he had been targeted by Islamic militants. She formed the view the documentation he provided did not establish any sectarian motive. She did not accept he was attacked. In relation to his oral evidence that there were incidents involving the deaths of his maternal relatives, she found there was no evidence that their deaths were perpetrated by Sunni extremists or that they had been targeted in attacks. She placed little weight on the documents he provided, including the police issued FIRs, and referred to country information about the high incidence of document fraud in Pakistan.
The delegate took into account that the applicant had delayed making his protection visa application for 3 years after he last entered Australia. This was despite claiming at the interview that initially sought a visa to Australia because he feared for his safety in Pakistan. In her view his student visa refusal prompted his application. She formed the view that if he had genuine claims he would have made his application earlier. The delay in making the application cast doubt on his claims to be fleeing persecution in Pakistan. She concluded he had fabricated his claims that he and his family members had been harmed.
The delegate also doubted that the applicant had any significant profile in Shia communities in Pakistan. She noted, in Australia, he had not been actively participated in Shia events, suggesting he is not a particularly ardent follower of the Shia religion. She was not satisfied there was evidence linking the death of his father to sectarian violence or retaliation for conversion. She found therefore that the applicant was an ordinary Shia Muslim in Pakistan and therefore considered the situation faced by the broader Shia communities in Pakistan.
The delegate noted the country information indicates that Shias make up about 20% of Pakistan’s population of 190 million. There are millions of Shias in Pakistan practising their religion and they are at no risk of being targeted by extremists. She was satisfied the applicant’s own profile is insignificant and he would not draw the attention of fundamentalists if he returned to Pakistan. She also noted the Shia population is spread throughout Pakistan and while they do not constitute a majority in any of Pakistan’s provinces they do form a majority in the region of Gilgit-Baltistan. She noted that significant numbers of Shias are located in particular areas in Pakistan including in major cities and that the Shia and Sunni communities are generally well integrated.
The delegate noted the Department of Foreign Affairs and Trade (DFAT) reported that Pakistan’s laws provide for state protection of a person’s religious beliefs and places. She formed the view there is a willingness by the authorities to protect Shias although their capacity was constrained by the vast number of Shias in Pakistan and the fact that their population is widely dispersed. She noted that terrorist attacks in the KPK had decreased by 60% over the previous four years and the homicide rate had decreased by 42%.
The delegate was satisfied that the applicant could avail himself of protection by the authorities in certain parts of Pakistan. She noted at interview he said relocation was not a viable alternative for him as militants have a presence throughout the country. She did not accept this and found that he had no profile in the Shia communities that would cause him to be singled out by Sunni extremists. She noted he demonstrated resourcefulness and the ability to provide for himself throughout his time in Australia. While she accepted there was a level of crime and violence associated with religious tension in Pakistan, that violence was largely perpetrated by outlaw criminal organisations and not endorsed by the State. She noted the country information indicates the Pakistani government is taking every step possible to counteract sectarian violence in the country which confirms there is a willingness by Pakistani authorities to protection Shias. She referred to various decisions made by the authorities to pre-empt communal tensions and counter community level violence.
The delegate did not accept the applicant had suffered harm or had been threatened in Pakistan in the past on account of his Shia faith. She accepted that he will continue to practice his faith in Pakistan but was not satisfied there was a real chance he would suffer persecution on that ground. Nor was she satisfied there were substantial grounds for believing that there was a real risk he would suffer significant harm if he returned to Pakistan in the foreseeable future.
The applicant provided to the delegate various documents including the following:
·an affidavit from [Mr A], cousin, claiming that paternal cousins of the applicant sustained firearm injuries during an attack by extremists on in March 2015. He attested that the applicant’s maternal uncle was murdered in [Town 1], and the case was registered at the police station. He was of the view the applicant’s life was in danger as “his whole family is on the hit list of extremists”.
·Affidavit from [Mr B], cousin making identical claims to those above.
·Letter from [a] Hospital dated 27 March 2015 claiming that on that date [Mr C] and [Mr D] suffered multiple firearm injuries requiring surgery.
·Identical operation reports dated 27 March 2015 for [Mr C] and [Mr D].
·Newspaper articles about the shootings.
·FIR, complainant, [Mr C] said to have been registered on 27 March 2015 at 6PM by [Mr C] (the same day it is alleged he underwent surgery for bullet wounds).
·Family registration papers and a reference from an Islamic studies school stating that the applicant belongs to the Shia sect.
·Documents indicating the applicant has property interests which had been the subject of an inheritance.
·Newspaper articles indicating the Taliban had threatened businesses in Abbottabad for money, and a Taliban member had been killed.
·FIR dated [in] June 2014, complainant, [Ms E], the applicant’s mother, recording that previously her brother, [Mr F], had been tortured and beaten and her husband killed and then her brother was shot and killed. She also reported that after the brother’s death they realised his mobile phone was missing and she received calls from the same mobile phone threatening that the applicant would be killed.
·Death certificate for [Mr F], indicating his death was due to a gunshot wound.
·FIR registered 20 January 2013, complainant [Mr F], reporting that the applicant was in Abbottabad in December 2012 for his grandfather’s funeral and while shopping in the bazaar on 20 January 2013 he was attacked by unknown people who brutally beat him. It was reported that the complainant had been receiving threats for a long time from religious extremists who intended to kill the whole family.
·Medical certificate stating the applicant was taken to hospital on 20 January 2013. His condition was very critical having been brutally beaten, resulting in hearing loss.
·FIR dated [in] June 1991, complainant, the applicant’s mother, reporting that her husband who had taken refuge in an army camp, and while travelling was fired at by religious extremists and died.
Prehearing submissions
In a statutory declaration attested 22 November 2020 the applicant made the following claims. The targeted attacks against Shias continue in Pakistan. He does not practise the religion, however, since he was born into a Shia family, he will continue to be considered a Shia. As a result, if he returns to Pakistan, he will face serious harm.
The applicant’s brother-in-law is active in politics and is a local leader in [Town 1] KPK of the Pakistan Tehreek-e-Insaf (PTI) political party. His other brother-in-law has a [business] and he frequently visits other areas of Pakistan for business.
The applicant’s paternal relatives are Sunni Muslims. One of his father’s brothers, [Mr H], is a [leader] in the PTI in Abbottabad. His other paternal uncle is a retired [Occupation 1] and actively involved in Tablighi Jamaat (an Islamic missionary movement) activities. On his maternal side, they are very strict Shia Muslims. One of his maternal uncles has close connections with the Imambargah.
The applicant is in a relationship with a transgender woman, [Mr H], born [Date 2] in [Country 1]. They met on a dating app in April or May 2019, and started talking. They met up a few days later. A few days after this, she told the applicant she was transgender. He was initially shocked and confused, hesitant about if he should continue to see her due to his religion and culture. However, [Mr H] showed him love and care through their conversations and he started liking her. They met again the next week and started their sexual relationship, which continued “very often”. For his birthday, [Mr H] gave him perfume and they decided to commit to the relationship. He moved in with her in June 2019. At the time she was living with some friends. They found their own place on 5 September 2019, leasing together and have lived together ever since. During the relationship they have travelled to Melbourne, Sydney and [Town 2]. The applicant has met [Mr H]’s family. Her mother accepts him as her son-in-law. [Mr H]’s sister is also transgender. Her family and friends are happy about the relationship and they are socially accepted among their friends and relatives. One of the applicant’s uncles who lives in Australia has no issues with the relationship. The applicant never “felt that caring and loving feeling” until he met [Mr H]. He is open about his relationship with [Mr H].
About 3-4 months before preparing the November 2020 statutory declaration, the applicant told his mother that he was in a relationship with [Mr H]. She was initially worried about the religious and cultural issues and, when she found out about [Mr H]’s sexuality, she became angry and confused. However she is now ok with it, as long as he is happy, but started worrying about what would happen to him if his uncles became aware of him. This “became a reality” when his uncles were informed about his relationship by some Pakistanis living in Canberra. Since he is open about his relationship with [Mr H], the people in Canberra must have seen them together and passed the information to his uncles in Pakistan. They verbally abused him when they found out and kicked his mother out. They said that he had ruined their reputation, gone crazy and committed a sin against Islam.
When the applicant went to Pakistan in 2012, he executed a power of attorney, appointing his uncle to look after his property. At that time, they had a good relationship and there was an agreement that he would marry his uncle’s daughter, [Ms I]. When the uncle heard about his relationship with [Mr H], he became very angry and threatened his mother. Prior to that, his mother has given his uncle money to buy a shop from him but after this incident he denied receiving the money from the applicant’s family. The applicant’s uncle told his mother that since he had power of attorney, he would transfer all of the applicant’s properties to his own name. The applicant’s uncle warned his mother that he had committed blasphemous dishonourable activities and ruined his daughter’s life. The uncle said he would inform the police and use his connections to make sure the applicant gets “due punishment”. The uncle told the mother that in order to protect their political, religious and societal reputation, the applicant should be killed.

The applicant fears that if he returns to Pakistan, now or in the foreseeable future, he will face serious or significant harm, including killing, torture, degradation, inhuman and cruel treatment from his maternal and paternal relatives, as well as Islamic extremists from both the Sunni and Shia sects due to:
·His relationship with a transgender woman,
·his inter-faith, inter-racial and trans-border relationship with [Mr H],
·the perception that he has abandoned Islam due to his relationship with [Mr H],
·the fact he will be considered “LGBT”,
·the fact he will be killed on the basis that he has ruined the reputation of Islam, his family’s honour and societal honour (honour killing), and
·he will be forced to abandon his relationship with [Mr H] and marry [Ms I].
The applicant claimed his relationship with [Mr H] is long term and committed, and they intend to formalize their relationship. If he relocates in Pakistan with [Mr H], he will continue to face harm. He cannot get effective protection because the police will not protect his relationship with [Mr H].
The applicant provided various “selfie” photographs of himself and [Mr H]. He also provided numerous text exchanges between the parties.
The applicant provided statutory declarations attested by [Mr H], consistent with the applicant’s own statutory declaration with respect to the relationship. [Mr H] stated that he is a transgender person. He stated the applicant told his mother about [Mr H] and initially she was not accepting of their relationship due to [Mr H]’s gender identity. However she soon accepted it as the applicant was happy with [Mr H] but she worries that the rest of the applicant’s family in Pakistan will find out about the relationship.
In her statutory declaration, [Ms J], [Mr H]’s mother, stated that she supports her transgender child through whom she met the applicant. She has dinner and lunch with them from time to time. She understood that the applicant faced serious harm in Pakistan due to his relationship.
In her statutory declaration, [Ms K], [Mr H]’s friend, stated [Mr H] is transgender and in a relationship with the applicant. She frequently had dinner and lunch with them. She fears for the applicant’s safety, on the basis of the relationship, if he returns to Pakistan. He had told her that he fears he will be targeted and killed by Islamic extremists and his relatives, who will consider the relationship to be anti-Islam.
In her statutory declaration, [Ms L], [Mr H]’s sister, stated that she met the applicant through [Mr H]. She described [Mr H]’s and the applicant’s expressed fear about the applicant returning to Pakistan, because their relationship is prohibited.
The applicant provided photographs of the applicant and [Mr H] in social settings. He provided receipts in his name only for 3 nights in [Location 1] in July 2019, a night’s stay in [Suburb 1] in October 2020, and in his and [Mr H]’s names for a night in [Suburb 2] in September 2020.
The applicant provided a Flatmate agreement, in the applicant’s and [Mr H]’s names, dated September 2019 for a room at a property in [Suburb 3], shared with 4 other tenants.
On 1 December 2020 the applicant’s representative made written submissions and provided country information, submitting that the applicant is a practising Shia Muslim who is in a relationship with a transgender person who fears serious harm in Pakistan on the basis of:
·religion and
·as a member of particular social groups:
i.LGBTIQ+ in Pakistan or perceived gay or LGBTIQ+ member
ii.People who are perceived as transgressing traditional norms of Pakistan society.
The representative also submitted various articles and references from a range of sources asserting that Shias in Pakistan continue to be persecuted and targeted. The country information is discussed in more detail below.
Hearing on 29 January 2021
At the hearing the Tribunal discussed with the applicant the requirements of the law and raised concerns with him about aspects of his evidence. The following is a summary of his oral evidence.
The Tribunal noted the applicant has hearing loss. It confirmed with him that he was able to hear clearly. The hearing was conducted with the assistance of an interpreter in the English and Urdu languages however the applicant chose to give most of his evidence in English. The Tribunal is satisfied he was able to do this effectively and engage in the hearing process in a meaningful way.
The Tribunal asked the applicant about his hearing loss. At first he could not remember when he started suffered the hearing loss. He then indicated it was when he was attacked. He said in the first weeks after the attack it was fine but then he started to realise he had hearing loss. He could not remember when it happened. He indicated he has not yet seen an ENT in Australia.
The Tribunal asked the applicant about his family in Pakistan. The applicant stated his mother has now moved to a family home that had been under construction. She had been living in [Town 3] and [Town 1]. She currently lives in a new house near his sister, who visits her a few times a week. She is not working. She gets income from assets and she sold a business. The applicant has two sisters, both married. Neither work as they have children. They are financially comfortable. His other sister lives nearby in [Location 2] (in Abbottabad).
The applicant indicated that he currently lives in [Suburb 4], ACT with [Mr H]. He is not working. He last worked when he applied to the MRT in relation to his student visa refusal, a very long time ago. He is financially supported by his mother and uncle and income from businesses. His mother owns shops and land on which they grow crops and have animals. His mother is considered wealthy by Pakistani standards.
The Tribunal asked the applicant about his migration to Australia. He indicated he came in 2009 to study. He has achieved a Diploma of [Subject] and completed an ELICOS (English) course. He intended to start a Bachelor of [Subject], but he did not get a chance because of problems he had with his student visa. The Tribunal noted the applicant held a student visa from 2009 to 2014 and he had completed only one diploma in that time. It asked if he had been a successful student in Australia. He indicated he was never given a chance. He tried his best but his visa application was refused because his then agent had not provided documents in time. He acknowledged that his first student visa had been cancelled but the decision was revoked. The Tribunal asked about that cancellation and the circumstances leading to the revocation. He indicated that his family’s business had burnt down and there had been cash flow issues. The Tribunal asked if there was any other reason. He indicated that there had been conflict and trouble in his family. The Tribunal noted the applicant had not mentioned that his grandfather had died. The applicant indicated that was also a circumstance. He indicated he went back to Pakistan as a result of his grandfather’s death because there were issues arising with the government and his uncle in relation to property he inherited. Everything had been owned by his grandfather but it could not be transferred to the applicant until he went back to Pakistan. He stayed for about 3 months. The Tribunal asked why he stayed for that long if he feared being in Pakistan. He indicated that the date to transfer the properties kept changing. He lived with his uncle and mother. He incurred an injury to his ear while he was there as someone hit him on the head. It happened in [Town 1] outside his uncle’s [shop]. He was standing outside, not doing anything. There was an argument in the shop about religion and a fight started outside. Men were punching his uncle and he tried to push them away but they started beating him. He passed out. He woke up in hospital and was discharged three days later. He could not remember the date. He suffered bleeding from the ear, imbalance and dizziness.
The Tribunal asked the applicant about his current Shia practice in Australia. He indicated that he just prays at home. He does not attend other activities, although sometimes he goes to his nearest mosque to pray. The Tribunal asked which mosque he attends. He indicated he goes to the [Suburb 3] mosque because it is closest to him. He gets there by bus and walking. He does not have a driver’s license.
The Tribunal asked the applicant when he first felt fear in Pakistan. He indicated it was after he was last there. He did not take it was seriously when he was there, but when he got back he heard things had got worse. The Tribunal asked if he was not fearful when he was assaulted. He said it was just one of those things; he saw it every day. He was not fearful because he did not know the background to the attack.
The Tribunal asked if the applicant currently fears returning to Pakistan because he is Shia. He stated people argue about religion there. When he got out of hospital they said the attackers were going to kill everyone. He thought it was just a threat. He grew up in the environment and he was not scared of dying.
The Tribunal noted that the applicant had attended a hearing at the MRT in October 2014 in relation to his student visa refusal. It explained to the applicant that when asked by the Member what he thought about returning home, he indicated he would be happy to do so. It read to the applicant part of the transcript of that hearing:
A: (my course) was due to finish in 27/7/2014, but I actually failed it because when my visa was refused and I was so tanked and I had so many problems because my mum was sick and she was in home and had a heart attack and I couldn’t do anything and I couldn’t continue my study and that’s why I failed it, I talked to the college and they gave me a chance to re-do it so I can start my Bachelors”
(The Tribunal asked whether he thought of returning home)
A: “No, because... yeah a few times actually a few times I thought about it but I didn’t tell my mum my visa was refused because of the heart attack. I can’t even talk with her. I mean I don’t want to tell them, she sent me here to study and I don’t think I can tell my mum that I’m coming home….I am happy to go back to my country any time”
The Tribunal raised its concern that the applicant did not mention to the MRT that his uncle was murdered in June 2014, nor that he had been attacked during his last visit to Pakistan. It explained it may find that, if the claim that his uncle was shot and killed in June 2014 was true, he would have informed the MRT, and not said that he was happy to go back to his country at any time. The applicant indicated that he grew up in that environment and he was not scared of dying. He could not remember the date his uncle was murdered. It is a different situation in Pakistan, as you understand that your family is in danger. He was not worried about going home to be with them in that situation. He subsequently amended his evidence and indicated that back then he did have a fear but he was under pressure at the time.
The Tribunal asked the applicant about his financial arrangements in Pakistan. He indicated he owns six shops and land in Pakistan. His uncle from his father’s side managed the shops for him. However recently the situation changed and at the moment the uncle is taking everything and his mother is supporting him. He has his own money from the shops and his own savings. He indicated he has 500,000 rupees in the bank in Pakistan, and 25,000 rupees goes into that account monthly.
The Tribunal explained to the applicant that it may be concerned he applied for protection because his student visa was refused and this was an application of last resort. The applicant stated that when his student visa was refused he told his mother and she was okay with it. Then she told him about the issues in Pakistan. He was not aware of protection visas. He spoke to a migration agent and they told him about his options.
The Tribunal raised with the applicant the DFAT country information indicating document fraud in Pakistan is prevalent. It explained it may not accept the documents he has provided are genuine. The applicant acknowledged that he could get any documents in Pakistan. However he claimed that his documents are genuine. He then repeated the claim that someone hit him and he passed out. He has a scar on [his head] where he had stitches. He had no other injuries.
The Tribunal noted that various country information indicates that the circumstances for Shias in Pakistan have improved. It raised with the applicant the most recent DFAT country information report indicating that significant numbers of Shias live in various cities and that Shia and Sunni communities are generally well integrated. It explained that overall DFAT assesses that most Shia in Pakistan face a low risk of sectarian violence. The applicant acknowledged that what the report says may be true. However he indicated that if you make an enemy he will always be your enemy. They will find a way of getting revenge. The Tribunal asked the applicant if he has any enemies. The applicant referred to the police report and indicated his enemy is the Taliban. He indicated the police wanted to arrest the perpetrators after the FIR was made in 2014 but the perpetrators disappeared.
The Tribunal noted that DFAT also reports that the highly visible presence of paramilitary rangers has led to a significant decrease in sectarian violence and that the KPK has seen a significant reduction in militant violence in recent years. It referred to various reports indicating sectarian violence and attacks had decreased. It explained that according to the South Asia Terrorism Portal, three was one incident of sectarian violence in 2017 killing 3 people, and no incidents of sectarian violence between 1 January and 6 May 2018. It noted overall DFAT assesses that KPK has a low level of sectarian violence, within the context of a moderate level of militant and criminal violence across the province. The Tribunal explained DFAT reports that the Pakistani military provides escort services for Shia pilgrims to protect them from attacks, significantly mitigating the risk of violence. The applicant indicated that the government is trying to stop the violence but if you live in the community you understand that there is always war; while people say it is safe, it is not really. The Tribunal asked the applicant why his businesses had not been targeted, noting his evidence was that they continue to make income on which he relied for support. The applicant indicated the businesses are under the care of his Sunni family on his father’s side. He never went to the shops; they were always managed by his uncle. He does not know his tenants.
The Tribunal noted the applicant’s new claim that his brother-in-law is active in politics. It asked why he did not raise this previously. The applicant indicated his brother-in-law started in politics about five or six years ago and was not politically active at the time of visa application. The Tribunal asked if his brother-in-law holds a position of power. He indicated he is member of a committee looking after a government office and land, [an Occupation 2] and a member of the PTI party which is in power in that area. The Tribunal asked why this affects the applicant. He indicated that before it was okay but now it is different because of his relationship with [Mr H]. They avoid talking to him now.
The Tribunal asked the applicant about his other brother-in-law’s [business], noting his evidence that his father was involved in [work sector]. The applicant indicated it is a different business. His brother-in-law has about 10 to 12 [workers] and takes care of [a work function] in major areas. He does not speak to him but he speaks to his sister who looks after his mother. He volunteered that he speaks to his mother regularly because he worries and misses her. She has been sick. She takes medication for diabetes and high blood pressure.
The Tribunal noted in his statutory declaration the applicant said his paternal uncle was killed by Sunni extremists. It asked why. He indicated it is because he was Shia. This uncle was killed in 2014.
The Tribunal asked the applicant if he had any relationships in Pakistan before he came to Australia. He indicated he had none. It noted that he had indicated in his submission that he was betrothed to marry a Pakistani cousin. He claimed that, a long time ago, it was arranged he marry a cousin, [Ms I], the daughter of a maternal uncle. She was a child at the time and he was 15 or 16. His family in Pakistan expected he would marry her until they found out about his relationship with [Mr H] about five months ago. The Tribunal questioned how they found out. He indicated that people in Canberra had leaked it and his uncle was told. The Tribunal asked the applicant how he knows this. He indicated that his mother called him and asked “what have you done?” indicating she had been told about the relationship. He lied. He told her it was fake. However the uncle got it confirmed and his mother was kicked out. The Tribunal noted his earlier evidence that his mother moved because her new house was under construction and it had been finished. The applicant indicated she went to live with her sister because work still needed to be done on that house. The Tribunal asked when this happened. He thought it was in April.
The Tribunal asked the applicant about his relationships in Australia. He indicated that he was in a relationship with a [Nationality] woman, a student, for one year. They broke up and he was in another relationship with a different [Nationality] woman, [Ms M], for 5 years. She is a permanent resident. The Tribunal asked the applicant what his family thought about that relationship. He claimed that none of his friends knew about those relationships so his family did not know. The Tribunal questioned how that could be if he had been in the second relationship for so long. The applicant indicated he never talked to anyone about [Ms M]. The Tribunal raised its concern that no one would know about the 5 year relationship with [Ms M] but everyone knows about his relationship with [Mr H]. The applicant indicated that until now [Mr H] dressed as a woman so he was not concerned.
The Tribunal asked the applicant about the relationship with [Ms M]. He said he lived with her in [Town 3] for about 5 years. She is [an Occupation 3]. The relationship ended because of his visa issues. She wanted to marry. She supported him for 5 years. The relationship started around the time of the MRT application (2014) and ended about two years ago (2019). The Tribunal noted that the applicant had indicated on his protection visa application that he had never been married or in a de facto relationship. It asked why he did not disclose his de facto relationship with [Ms M] in that application. The applicant indicated that when he was filling out the application he was thinking she was still studying and it might affect her. She kept asking him to apply for a partner visa and not to worry about his protection application. He could not remember when she was granted permanent residence. The Tribunal asked why he pursued his protection application if he was in a relationship with a permanent resident. He indicated he was scared that, if he married her, his uncle might do something to his mother. He also was concerned that the relationship might not last. He told her that he would marry her but he wanted to fix his visa first. The Tribunal asked if they had registered the relationship. He indicated the relationship was registered but he could not remember when. He registered the relationship because she wanted him to apply for a partner visa.
The Tribunal asked if his former partner knows [Mr H], who is also [Nationality]. The applicant indicated [Ms M]’s good friend is a friend of [Mr H]’s mother, and lives with [Mr H]’s mother. The Tribunal noted this might suggest [Ms M] also knows [Mr H]’s mother. He agreed they probably do know each other because her best friend lives with [Mr H]’s mother.

The Tribunal took evidence from [Mr H], in the applicant’s presence, regarding his relationship with the applicant. He described himself as being in a same-sex, same-gender relationship with the applicant. The Tribunal asked [Mr H] if he identified as transgender. He responded that he identifies as a gay man who likes to cross-dress sometimes. He indicated he should be addressed as “Mr”. The Tribunal put to [Mr H] that this is different to the claim made by the applicant that he was in a relationship with a transgender woman, noting the applicant provided photos to the Tribunal of [Mr H] dressed in women’s clothing. He indicated this was a misunderstanding. He said that those photos were taken when he looked good, as he dressed up as a woman sometimes when he went out.
The Tribunal asked the applicant about the circumstances of meeting [Mr H]. He indicated that they met on a dating app about 6 or 8 months before the hearing. The Tribunal asked what sort of relationship the applicant was looking for. He claimed that he was sad and worried and wanted to move on. He was looking for a relationship to help him forget and move on. He wrote that he was looking for a friend/partner. The Tribunal asked about the applicant’s sexual identity on the app. He stated he was straight. The Tribunal asked why, in those circumstances, [Mr H] contacted the applicant given he identifies as a gay man. The applicant indicated that [Mr H] messaged him and asked if they could talk. The applicant was always interested in transgender women. [Mr H], in makeup, looks like a woman. He indicated this was the secret of his; he was always attracted to transgender. The Tribunal asked the applicant about [Mr H]’s gender identity. He indicated he is transgender. The Tribunal asked the applicant why [Mr H] sought to be addressed as “Mr” and told the Tribunal he identifies as a gay man. The applicant then amended his evidence and claimed [Mr H] identifies as a gay man who sometimes likes to cross-dress. The Tribunal asked the applicant how he himself now identifies. He indicated he would not mind if he was gay but inside he considers himself to be straight.
The Tribunal asked the applicant if he continues to be in a relationship with [Ms M]. The applicant denied this and stated the relationship registration was withdrawn. He claimed they have not spoken since they broke up. He volunteered that he has not told his mother he is not going to marry his cousin.
The Tribunal asked the applicant how he reconciles being in a relationship with [Mr H] and being Shia. He stated, when it comes to religion, he practises by praying. The relationship does not hurt anybody. He will be punished and he is okay with that.
The Tribunal asked the applicant what he has told his family about the relationship. The applicant stated his mother asked him if he is in a relationship with [Mr H]. He told them that she is transgender because he did not want them to know he is in a relationship with a man.
The Tribunal noted the applicant had indicated his father’s cousin in Australia has no issue with the relationship however he also indicated that he had not mentioned it to his father’s cousin. It asked how his father’s cousin knows about it. The applicant indicated that he found out from another uncle. His mother said they had spoken about it and he was okay with it. He told the Tribunal that the father’s cousin is Shia. The Tribunal asked if the father’s cousin knew about [Ms M]. He said that he did not know. He then said he was not close to him. He drinks and goes to the club so he is not religious.
The Tribunal noted the applicant claimed his mother is okay with the relationship but he also claimed that his uncle had abused her and kicked her out because of the relationship. The Tribunal indicated it may find these claims are inconsistent casting doubt on the reliability of his evidence. The applicant indicated that his mother was very upset and sad however she maintains regular contact with him. She wants him to stop the relationship but he told her that he is in love and it would be hard for him to leave. He indicated he used to stay away from these people but not now. The Tribunal asked who “these people” are. He stated he is attracted to transgender people and gay men. He did not understand the terms gay, cross and trans but he was always attracted to them.
The Tribunal noted the applicant has indicated that he intends to formalise his relationship with [Mr H]. It noted that he is now able to marry [Mr H] in Australia and asked if he intends to do that. The applicant confirmed that the relationship is not registered. He indicated they do plan to marry, maybe in 2 years, because [Mr H] first wants to study.
The Tribunal asked the applicant to tell it what he has in common with [Mr H], what they share and any conflict in their relationship. The applicant indicated they love to cuddle. With respect to their common interests they like food and travel. The Tribunal asked how they have been travelling given the COVID restrictions. The applicant indicated they went to Melbourne but he could not remember when. They stayed in Airbnb accommodation for a week. The Tribunal asked what they did in Melbourne. The applicant indicated they drove on the Great Ocean Road in his friend’s car. The applicant did the driving. The Tribunal noted that he had previously stated he does not have a license. The applicant indicated he has an international licence which he has been renewing for 9 years. He claimed they also went shopping for clothes. The Tribunal asked about any conflict in the relationship. He indicated there were many conflicts because he is lazy. He indicated he does not want to go out or do anything and [Mr H] is frustrated by this. However they apologise after they fight. The Tribunal asked about the grocery shopping and the applicant indicated he does not do it. He washes the dishes, cooks and keeps the house clean, but [Mr H] also does these things.
The Tribunal asked the applicant when they started living together. He could not remember. He then indicated they met in April and moved in together after a week. The Tribunal asked why they started cohabiting so soon. He indicated he started sleeping there. He was living at [Address] with a man from Pakistan for a short time. He told the man he was leaving. He gave no notice. He told him to use his bond as rent. At the time [Mr H] was working at a [Workplace 1], doing one shift a week. He wasn’t earning much, about $20 an hour so about $140 to $160 a week in total. The Tribunal asked if his employment has changed since. The applicant indicated it has as he has moved to another area and is working in a [Workplace 2]. He does not know when he got that work.
The Tribunal noted the applicant has indicated he may be the victim of honour killing. It explained that it may not consider this claim if it does not accept the claims about the relationship and the events in Pakistan since he claims to have started the relationship. The applicant indicated his uncle reacted and this makes him worried. He feels like he has to check the locks because someone is watching. His uncle threatened to harm him because he is in a same-sex relationship. His uncle is also angry with the applicant for wasting his cousin’s time. He said that after she finished her study, they were going to marry. He was told many people have asked for her hand during this time but they thought she was going to marry the applicant and come to Australia.
The Tribunal noted the applicant does not have a permanent visa so asked how he was going to sponsor his cousin to come to Australia. He claimed this is what he told his uncle. He also indicated he was not into the marriage with the cousin. They grew up together. He did not want to marry her. The Tribunal asked how old he was at the time of the betrothal. He indicated she was in year 11, so 15 or 16. He has known her since her birth.
The Tribunal took further evidence from [Mr H]. It asked when he met the applicant. He indicated they met on 2 June 2019. Their first contact was by dating app in May. After about one month they moved in together. In that first month they hung out together at the lake and at the mountains lookout and eating together. The Tribunal asked [Mr H] if [the applicant] was working at the time they moved in together. Initially he said he didn’t know and then said “probably nothing”. The applicant showed him around Canberra. They took buses. The Tribunal asked [Mr H] if the applicant had ever driven him in a car. Initially he said “no”. He then corrected his evidence and said “yes” and that the applicant had an international licence and drove on their trips in Sydney and Melbourne. He indicated that the applicant knew good restaurants in Canberra that he had gone to with his ex-girlfriend and friends. He denied having met [Ms M], although he acknowledged that his family and his mother’s friend know her. He indicated Canberra is so small everyone knows each other. The Tribunal asked [Mr H] why he had never met her, if [Ms M] is known by his family. He stated his mother is friends with [Ms M]’s friend but his mother had never met [Ms M].
The Tribunal asked [Mr H] about his employment. He indicated that he works part-time in a [Workplace 3] and has done so since October 2020. His first employment in Australia was at [Workplace 4] from February 2016 to 2018. He was also [doing a job task] for a [Workplace 5] and worked in a [Workplace 6] in 2017. He worked in a [Workplace 7] in 2018. The Tribunal asked the applicant if he had undertaken any other work. He indicated he worked in a [Workplace 1] in [Suburb 3] but finished there in the first quarter of 2019. He worked there for about 20 hours per week. After that he was in receipt of Centrelink payments from October 2020. He was not on Centrelink from early 2019 until October 2020. The Tribunal asked about his income support in that period. He indicated it was just from friends and family. When asked why he had not sought income support from Centrelink from 2019 until October 2020 he indicated he was depressed and did not go out and did not see his friends. He claimed he did not go anywhere for 6 months.
The Tribunal explained to the applicant that [Mr H]’s evidence appears to conflict with the applicant’s description of the relationship. The applicant indicated that during the relationship [Mr H] cut connections with everyone when he was depressed and he had to force [Mr H] to go to Centrelink and ask him to disclose the relationship. However a friend told [Mr H] that Centrelink would make him get the applicant to support him instead of receiving income support. The applicant confirmed that the relationship has not been disclosed to Centrelink.
The Tribunal put to the applicant apparent inconsistencies in the oral evidence regarding the timing of the relationship. The applicant indicated it is very hard for couples to remember exactly when a relationship started. He indicated that normal people like him don’t remember those things. He indicated he cannot remember anything to do with numbers. He failed maths. The Tribunal also noted the evidence about the [Workplace 1] employment is inconsistent. He indicated he did not know the date [Mr H] finished working at the [Workplace 1], but that he walked him to work sometimes so he must have left the job sometime after they met. Having hearing [Mr H]’s oral evidence, the applicant amended his earlier evidence and indicated [Mr H] was undertaking two or three shifts; 20 hours a week.
The Tribunal asked the applicant what he intends to do about the relationship if the protection visa application is unsuccessful. The applicant indicated they were not thinking about that at the moment, but had decided a long time ago that they would go for a partner visa. They spoke about the conditions in Pakistan and [Mr H] said that he would like the applicant to apply for a partner visa. The Tribunal asked the applicant, if that is the case, why he did not apply for a partner visa with [Ms M] who he was with for 5 years. The applicant said he was being careful but now everything is against him and he does not care so much anymore; now that everyone knows about his relationship with [Mr H].
The Tribunal put to the applicant the inconsistent evidence given by [Mr H] that the applicant did go out to restaurants with [Ms M], while the applicant said he did not go out with her as he did not want people to know about the relationship. The applicant stated that he did go to restaurants and travelled a lot with [Ms M], but she, and [Mr H], have never met his friends or his Pakistani community. The applicant stated he only knows 2 people in Canberra and he does not have contact with people from his village. He does not message them or have them on Facebook. If he sees them on the street, he turns away. This has always been the case since he moved to Canberra.
The Tribunal asked the applicant about his uncle in Pakistan and why he is fearful of him, and whether he has ever harmed anyone else. The applicant indicated there were fights about property, and he believes the uncle would harm people. His uncle fights his own brothers because of property.
With respect to relocation, the applicant indicated he will still be targeted although he acknowledged, if he is not known, he will be fine. However he claimed that, once they find out about him, they will harm him. He then indicated his fear is not about his uncle; it is about [Mr H]. He cannot take [Mr H] with him to Pakistan because he would not be able to hide the relationship. The Tribunal noted that, if [Mr H] does not go to Pakistan, he does not need to hide the relationship. The applicant indicated he will not get support there. The Tribunal suggested that financially nothing will change as his mother is still supporting him now despite knowing about the relationship. He then stated his mother is not ok with the relationship and asks him to come back to his religion. He does not have community support there and cannot function without [Mr H]. He indicated that, if he was in a relationship with a woman, he would be happy to go back to Pakistan.
The Tribunal put to the applicant that if he needs to go offshore to make the partner visa application, and the relationship is deemed to be genuine, then any time he spends in Pakistan would be temporary. He indicated that he could not do it, it was not possible for him. If he was in a relationship with a woman and returned to Pakistan, telling his family that he couldn’t marry his cousin because of his relationship, there would not be an issue. The Tribunal asked why the applicant said earlier that there would be an issue. The applicant said there would still be an issue, but people would settle down and give their daughter to someone else. It would not be as big as if he returned to Pakistan in a relationship with a man. If he is in a same-sex relationship, it is against the religion and he would not be considered a Muslim anymore. It isn’t just his uncle; it is everyone’s belief.
The Tribunal referred to the country information and asked the applicant if he agreed that the circumstances for Shias in Pakistan had improved. It put to the applicant his own evidence given to the MRT in 2014, that he was happy to go back to Pakistan, even after his uncle had been killed, and that he sounded happy to go back if it wasn’t for his mother’s disappointment regarding his studies ceasing. The applicant stated that sometimes when he is confused, stressed or under pressure he tends to miss things, and it is not until he leaves the situation that he remembers everything and what he should have said.
The Tribunal asked the applicant if he had any other evidence that he wished to have taken into account. The applicant indicated he had no further evidence to give; he could not think of anything else.
The Tribunal asked [Mr H] if he had anything further to add. He indicated that the applicant was right about the [Workplace 1] issue; they met while he was working there. It was in the first quarter of 2019, so probably at the beginning of the year. [Mr H] indicated he did not know what he would do if the applicant leaves the country as he can’t live without him; he is all [Mr H] has.
The representative indicated that he wanted time to make written submissions. There was a discussion about the purpose of those submissions and whether a partner visa application could be made onshore. The representative said he wanted to seek instructions and make submissions on issues raised by the Tribunal. The representative indicated they would not be providing new evidence or information.
The applicant indicated to the Tribunal that if his protection visa application is unsuccessful he will seek to make a partner visa application onshore. The representative then drew attention to other requirements of an onshore partner visa application. The Tribunal explained that it was not going through the process to test whether the applicant meets those requirements. The representative indicated he wanted time to address discrepancies. The Tribunal reminded the representative that it had given the applicant an opportunity to comment on inconsistencies in the evidence. The Tribunal explained to the applicant that if new evidence was provided in any post hearing submission it may have concerns about its reliability, particularly if it contradicts or is inconsistent with what the applicant told the Tribunal at the hearing. The Tribunal offered the applicant a few days to make submissions. The representative sought more time because he wanted to listen to the hearing recording. The Tribunal agreed to give the applicant a week to provide written submissions.
Post hearing submissions
The applicant responded on 5 February 2021 and made the following submissions. He objected to the Tribunal indicating it may have concerns if new evidence is provided in a post hearing submission. He submitted that the Tribunal did not take reasonable steps to contact his witnesses. He submitted that the inconsistencies in his and [Mr H]’s evidence were minor and partly due to the passage of time and his memory issues. He was of the view the Tribunal did not raise any concerns relating to his witness statements and documents in support of his case and assumed there were no credibility issues related to his relationship with [Mr H].
With respect to the “[Workplace 1]” issue, he indicated the mistake was minor. In relation to the partner visa issue, he indicated that, if the Tribunal refuses his application, they will think about a partner visa. However he believes he will face harm on the basis of his relationship with [Mr H]. He claimed that the Tribunal indicated he should go back to Pakistan to apply for a partner visa but noted he has the option of applying onshore, provided there are compelling reasons. He submitted that he is in an emotional, caring and physical relationship with [Mr H], which they believe is “divine” and they want to formalise the relationship. He believes the inconsistencies in their evidence were minor and the Tribunal should not draw adverse concerns on the basis of those inconsistencies.
The applicant acknowledged that he went to restaurants with his ex-girlfriend, [Ms M], but did not go with friends.
Regarding relocation in Pakistan, he indicated he fears this because he is Shia and he fears his uncle’s revenge because of his relationship, so relocation is not an option.
The Tribunal noted that it had asked both the applicant and the representative at the end of the hearing if there was any other evidence the applicant wished to have taken into account. Neither the applicant nor the representative drew to the Tribunal’s attention that there had been a request that the Tribunal take evidence from the applicant’s witnesses. However as the applicant had requested, prior to the hearing, that it take evidence from witnesses, and as the applicant indicated he assumed the Tribunal held no concerns about his evidence regarding his relationship with [Mr H], it formed the view it was appropriate and fair to have another hearing to address those issues and other concerns it had about some of the applicant’s evidence.
Hearing on 23 March 2021

The Tribunal raised with the applicant his submission that it did not take reasonable steps to call his witnesses. It acknowledged that the applicant had sent to the Tribunal a list of witnesses, but noted at the first hearing he had been asked if there was any other evidence to take into account and he stated no. The Tribunal stated for the record that it did not refuse to call witnesses at the last hearing and it was not prompted to call the witnesses. However it acknowledged that the applicant had, prior to the hearing, indicated he wanted his witnesses to give evidence so, for that and other reasons, decided it was fair to have another hearing.
The Tribunal also noted from the applicant’s submission that it was suggested the Tribunal stated he should go back to Pakistan. The Tribunal noted that it did not say the applicant should go back to Pakistan to make a partner visa application, but asked the applicant why he could not go back. It explained that this is a question it must ask as it is an issue it needs to consider.
The Tribunal also noted the applicant’s submission that the Tribunal did not raise any concerns about the witness statements and documents in relation to the applicant’s current relationship with [Mr H]. The Tribunal noted that it did ask him several questions about the relationship at the first hearing, as it had not yet made any findings on this issue, and that it did, and still does, have concerns about the relationship. It clarified for the applicant that in asking those questions the Tribunal was indicating its concern about possible credibility issues regarding his claims to be in a relationship with [Mr H]. It suggested the applicant speak with his representative to understand that, in asking questions, the Tribunal is indicating it may have concerns about the evidence.
The Tribunal advised the applicant that there are some further issues it would like to raise, having reviewed the evidence in preparation for the second hearing.

100. The Tribunal asked [Mr H] how he would like to be addressed, and he replied “[Mr H]”.
101. The Tribunal noted to the applicant that the Airbnb bookings for Sydney were only in his name, and so may not give them any weight as to demonstrating the relationship. The applicant responded that when he made a booking, it was in his account, and he was not required or asked to provide his partner’s details. He noted that since COVID however, Airbnb requires a partner’s name on the bookings.
102. The Tribunal asked the applicant about the address on the September 2019 Flatmate agreement. The applicant gave an address in [Suburb 3]. It noted the applicant had spoken about [Suburb 3] at the last hearing, as the location for the mosque he attends. It asked why the applicant would find accommodation in the same suburb as the mosque if he is Shia and if he was trying to be discreet about his relationship with [Mr H]. The applicant stated that there are a number of reasons for living in [Suburb 3]. At the time when they met, [Mr H] was working at the [Workplace 1] in [Suburb 3]. The mosque is a bit away from that [area]. When they met, [Mr H] was already living in [Suburb 3]. When they moved in together, they moved closer to the [Workplace 1] so [Mr H] could walk to work. The applicant stated that [Mr H] then got a job at [Workplace 3] in [Suburb 3].
103. The Tribunal asked, if they did not have a car, why the [Mr H] stated in his statutory declaration that the applicant drove him around when they first met. The applicant stated he borrowed his friend’s car, as the friend had gone home to visit his family and he let the applicant use the car while he was away. The applicant indicated he and [Mr H] had sex in his friend’s car. The Tribunal asked the applicant why he would use a friend’s car to have sex with [Mr H]. The applicant stated this was because his friend was not in Australia at the time and did not know the applicant was using his car for this purpose. He said it was human nature and, in the moment, he did not think about anything else.
104. The Tribunal asked the applicant when he first met [Mr H] face to face. He indicated it was about May. The Tribunal asked the applicant where they first met in person, and he responded that they either drove to Mount Ainslie or to a park in Belconnen. The Tribunal asked again where they first met, and the applicant stated it was at [Mr H]’s residence, when he went to pick him up. The Tribunal asked the applicant who he thought he was meeting, in terms of gender, after the phone contact. The applicant stated that [Mr H] had a couple of pictures but they were a bit hazy. He was not aware at the time of [Mr H]’s sexual orientation. He had not made up his mind at the time about whether he was meeting a woman or man. He stated that [Mr H] occasionally cross dresses.
105. The Tribunal noted that at the last hearing, [Mr H] confirmed he identified as a gay man. The applicant agreed he identifies as a gay man. The Tribunal asked the applicant to clarify why he did not know whether he was meeting a woman or a man. The applicant indicated [Mr H] was in female clothing in his photos, and from his looks, he could not tell his gender. The Tribunal indicated to the applicant that it may form the view most straight men would want to know whether they were meeting a cisgender[1] woman or a transgender woman. The Tribunal asked the applicant if he asked [Mr H] about his gender, and he said no. When asked why not, the applicant stated that since coming to Australia, he has been with a lot of people, and has had two relationships and he would never ask a woman these questions. He said this was not a nice thing to ask. The Tribunal asked if the applicant was not sure of [Mr H]’s gender when he met him, and the applicant claimed he was not. He said for him it was disrespectful to ask these questions.
[1] Denoting or relating to a person whose sense of personal identity and gender corresponds with their birth sex. Oxford Dictionaries, cisgender - definition of cisgender in English from the Oxford dictionary (oxforddictionaries.com)
106. The Tribunal asked the applicant, if he identified as a straight man on the dating app, who he thought would respond to his profile. He said he has been on a lot of dating websites and a lot of gay and transgender people know that some straight men do not want to be penetrated by another man, but do like to penetrate other men even though they are straight. The Tribunal noted this was not the question it had asked, and asked again who he as a straight man would expect to respond to his profile on a dating app. The applicant stated it could be anybody. The Tribunal asked how long he had been relating to [Mr H] before he found out [Mr H]’s gender. He said it was four or five days later but he was confused because he of the way [Mr H] spoke and dressed, so finally he asked him. The Tribunal asked how [Mr H] was dressed the first time they met. The applicant stated he was dressed in women’s clothing. When asked about the second time, the applicant said he was dressed in unisex clothing and he could not really tell. He asked [Mr H]’s age, which was 18, and so he was confused. He thought maybe he was not fully mature. The Tribunal stated it had not made its findings yet but made clear its concerns about his evidence regarding the relationship with [Mr H].
107. The Tribunal asked the applicant about the two different operation reports from [the] Hospital, Abbottabad that he submitted for his two cousins who were allegedly shot. The applicant submitted those reports about his cousins, [Mr C] and [Mr D]. The Tribunal put to the applicant that the reports are identical, apart from the purported patients, and raised its concern that, if two people were shot and had surgery, it would be highly unlikely that their medical reports would be identical. The applicant acknowledged this but claimed that, at the hospital, the people cannot speak English so they just take the report given to them about their operation. He claimed the doctors in these cases said it was the same case and for the information to be copied across to the other person’s report. The Tribunal asked how the applicant knew what the doctors had said. He said this was from his experience in the past with his family and medical reports they had received. He said this was how hospitals work in Pakistan. The Tribunal advised the applicant it may not be satisfied with this explanation for the two identical medical reports.
108. The Tribunal raised its concern that the FIR report on the Department’s file indicates the complainant, [Mr C], his cousin said to have been shot and had surgery, made the complaint during the time that he was supposedly having surgery. The Tribunal advised the applicant it may form the view that if someone is seriously injured with gunshot wounds and requires emergency surgery, they would not be in a position to, on the same day, go to the police to make an FIR. The applicant claimed that, with incidents relating to fights and gunshots that end up in the emergency room, the police are present. The hospital has a police department and the statement is usually taken from the complainant before surgery, especially if the person is in a position to speak, and if the doctor allows it. The Tribunal advised it may not be satisfied that the complainant could make a statement after being seriously injured from gunshot wounds. It also noted the FIR indicates the complaint was made at the police station.
109. The Tribunal asked the applicant to clarify who told his mother about his relationship with [Mr H]. He stated that he told his mother himself. The Tribunal asked the applicant what he told his mother. The applicant said that his uncle was forcing him to return to Pakistan to marry his cousin, and his mother advised him that they were pressuring her as well. The applicant then told his mother he was in a relationship in Australia and that he was in love. He told his mother it was very difficult for him to leave his partner and then he explained to her that his partner was not a female. She was very angry, and not okay with it and will not accept it. When asked how he described [Mr H] to his mother, the applicant indicated he told her his partner is male. He could not remember when he told her, but said they were calling him a lot about the marriage. When asked if they called while he was with [Ms M], the applicant said they did call from time to time but he did not want to say anything about her until they were going to get married and then he would let them know about her. The Tribunal put to the applicant that his evidence about telling his mother was different to that given at the first hearing. The applicant said she would ask him about the marriage every time they spoke and this was a normal conversation that parents have with their children.
110. The Tribunal explained that it had difficulty understanding why he did not tell the family he was with a woman for 5 years, even though it would be less undesirable than his relationship with a man, but then told his family straight away about his relationship with [Mr H]. The applicant said the reason for this was that he wanted to ‘end it with my uncle’. When asked what this meant, he said he could not find any other way to tell him, there was a lot of stress with the power of attorney situation and he had to get over it.
111. The Tribunal explained to the applicant that it may not be satisfied he is in a relationship with [Mr H] as described, and that the evidence provided to the Tribunal may not be sufficient to persuade it about nature of the relationship. It asked the applicant if he had any other evidence about the relationship. He stated that he has text messages, which show conversations and fights that reflect a relationship. He said he provided only some of the texts to the Tribunal but that he has their conversations since the day they met.
112. The Tribunal noted that one of the reasons the applicant’s representative asked for more time at the end of the last hearing was to make further submissions regarding evidence on the [Workplace 1]. It noted the [Workplace 1] is in the same suburb as the mosque and his home, and that if he was trying to be discreet, he might not live in this suburb, especially in a Muslim community that does not support the relationship. The applicant claimed that he does not know anyone in [Suburb 3]. The Tribunal noted he attends the mosque there. He claimed it was like going to church where no-one knows him. The Tribunal suggested they might recognise him at his mosque, but the applicant denied this. He claimed in his previous relationship, he lived in [Town 3] for 5 years and was not in contact with any friends. The Tribunal asked how he borrowed his friend’s car if he had no contact with friends. He stated that after he broke up with [Ms M], he moved to [Suburb 5], having found a room online, and became friends with a housemate. He did not plan on entering another relationship so soon, so he rented a single room. He was friends with the housemate for a few months before he went overseas, and the applicant borrowed his car. The housemate went overseas about a few weeks or a month before the applicant met [Mr H].
113. The Tribunal explained to the applicant the provision regarding reasonable modification of behaviour to avoid a real chance of persecution in the receiving country. It noted it had asked the applicant whether he would apply for a partner visa if he was unsuccessful in his protection visa application, and it understood that he may do so, and he may be required to go offshore if there are no compelling reasons to grant the visa. It indicated that, in those circumstances, if he went offshore temporarily while waiting for a partner visa application to be processed, it may form the view he could be discreet, relocating for the time he is there, away from his uncle, and not living with [Mr H]. It asked the applicant to comment on this suggestion. The applicant indicated it is not that easy, as it is a completely different world. He would not be able to rent a house unless he disclosed his relationship to the person he would be living with. He would require identification for every person in the house. The Tribunal asked why [Mr H] would need to go to Pakistan with him. He said he has spoken many times with [Mr H] and there is no other way the applicant would return to Pakistan without him as [Mr H] has said the only option is that he goes to Pakistan with the applicant, even if they die there. The Tribunal raised the possibility that [Mr H] may not be able to go to Pakistan. The applicant said that [Mr H] said he will go crazy without the applicant and he will not let that happen.
114. The Tribunal asked the applicant if there was anything else he wanted to say before the witnesses were called. The applicant stated his relationship is genuine and his love is true. He wants to spend his life with [Mr H] and he can provide ‘tons’ of messages, photos and videos with him and the family. They celebrated Valentine’s Day with [Mr H]’s mother and sister. He is openly in a relationship with [Mr H] in Canberra, living together for 1 year and 4 months. He was asked how long after they started dating before they were openly out about the relationship. He indicated they have been openly out after a couple of months, but he could not remember exactly. However he and [Ms M] never left [Town 3], only to go to [Suburb 6] for groceries. The Tribunal asked the applicant why in a 5-year committed relationship he was so discreet with [Ms M], but in a shorter relationship with [Mr H] he was open about it. The applicant said, at the time he was with [Ms M], his uncle was not ‘going crazy’, forcing him to marry his daughter. It was only when he was being asked all the time and his family was asking about his life through other people in Australia, that he had to end the secret.
115. The Tribunal asked the applicant when he met [Ms J], [Mr H]’s mother. He indicated he could not remember, but said it was in her house when he and [Mr H] were moving in together. The Tribunal asked if [Ms J] knows [Ms M]. At first, the applicant said “no”, then stated “maybe no”, then stated “I don’t know”, then stated “I don’t think so”. He indicated it depends if [Mr H] told his mother about [Ms M]. He indicated she may know the name of his ex-partner, but he did not think she knew her personally.
116. The Tribunal called [Ms J], to give evidence. The Tribunal asked [Ms J] if she prepared the written statement for the Tribunal and if she had read it recently. She replied yes. It asked if she has it with her, and she replied yes. It asked when she became aware of [Mr H]’s sexuality. [Ms J] replied, last year in 2019 or 2020. She said that [Mr H] told her that he has a boyfriend, [the applicant]. The Tribunal asked her what she wanted to tell the Tribunal. She said that she knows about [Mr H]’s relationship with the applicant and that it is okay with her. The Tribunal asked if there was anything else she wanted to say. She said she accepts them and accepts her child and his gender. Sometimes she visits the applicant and [Mr H]. She then indicated it was once a week. The Tribunal asked [Ms J] about [Mr H]’s gender. She responded that he is bisexual. She then stated he is a gay man.
117. The Tribunal asked the applicant about meeting [Mr H]’s sister, [Ms L]. He indicated he first met [Ms L] the day after he met [Mr H] as they were living together with another friend in [Suburb 7]. The Tribunal enquired how far this was from the [Workplace 1]. The applicant advised it was about 4 minutes’ drive, about 20-30 minutes’ walking, and 10 minutes by bus. The Tribunal asked where [Ms L] was working when he met her. He indicated she does not work; she is on Centrelink. She identifies as a transgender woman as she was born a man. She is taking medication and hormones to transition from male to female. She gets her medication from [Country] as it is cheaper. When asked if she knows [Ms M], the applicant said no.
118. The Tribunal then called [Ms L]. [Ms L] calls [Mr H] her sister but he is a gay man. She met the applicant two years ago at her friend’s house when she lived there with [Mr H]. The friend’s name is [Ms N]. The house was in [Suburb 3]. A woman named [Ms O] also lived there, and [Ms N]’s child, [Ms P]. The Tribunal asked [Ms L] if she knows anyone named [Ms M]. She replied that she is the applicant’s ex. She has not met her. The Tribunal asked if she had any other evidence to give in relation to the applicant’s case. She said no.
119. The applicant told the Tribunal [Mr H] and [Ms K] have been friends since attending [School] in the ACT. [Ms K] is on Centrelink payments. The applicant did not know if she had ever worked. He met [Ms K] last Valentine’s Day.
120. The Tribunal called [Ms K]. The Tribunal asked her if she was able to give evidence for Mr [Surname] and she did not know who the Tribunal was referring to. It explained to her that she signed a statutory declaration for the applicant, whose family name is [Surname] and asked why she did not know his family name. She indicated she knew him only by his first name, [Second given name]. The Tribunal asked who wrote her statutory declaration where she indicated she knew his family name. She said [Mr H] told her. The Tribunal asked if [Mr H] told her what to put in the statutory declaration. She said no. The Tribunal asked how she knew the applicant’s full name, as she did not refer to him only as [Given name] in the statutory declaration, but the applicant’s whole name. She also stated in the statutory declaration the applicant had told her about his fears. It asked where she got this information from. She said she was not sure. The Tribunal asked what she wanted to tell it regarding the applicant’s case. She stated the applicant does not have a job at the moment. When asked why she wanted to tell the Tribunal this, she stated she thought it would help.

·Extract from the 2019 DFAT Report on Pakistan, which notes that ‘LGBTI people face a high risk of official and societal discrimination’. [17]
·Extract from the 2020 US Department of State Report on issues of violence and discrimination based on sexual orientation and gender identity in Pakistan and notes that these crimes often go unreported and attract little police action.[18]
·A news article, reporting ‘510 women, 259 men fell prey to ‘honour’ killing during five years in Sindh’. The article reports on ‘loopholes in laws’ concerning honour killings including ‘faulty investigation, very low rate of conviction, ineffective deterrence of the law and criminal justice.
[10] ‘Extremist groups trying to eliminate Shia Muslims from Pakistan’, News24, 13 September 2020.
[11] Minority Rights Group, Shi’a become latest target of Pakistan’s extremist Islamic factions; murders, hate speech and numerous blasphemy allegation sow seeds of long-term religious tension, 20 October 2020.
[12] European Asylum Support Office, Pakistan Security Situation, October 2020.
[13] ‘US Report: Pakistan Doing Too Little to Counter Terrorism’, US News, 26 June 2020.
[14] ‘Islamic State Expanding its Presence in South Asia Under Pakistan’s Patronage, Say Experts’, Republic World, 30 September 2020.
[15] ‘Pakistan sees an alarming resurgence of terror groups across country’, India Today, 20 October 2020.
[16] ‘What role does the State play in Pakistan’s anti-Shia hysteria?’, The Diplomat, 17 September 2020.
[17] DFAT Country Report Pakistan, 20 February 2019.
[18] US Department of State, 2020 Country Reports on Human Rights Practices: Pakistan, 20 March 2021.

217. The Tribunal has read the country information, which includes general claims that sectarian attacks against civilians, and particularly Shias, are a growing threat in Pakistan. However the Tribunal notes this is not supported by other country information which analyses statistics on sectarian attacks in Pakistan. It notes the PAK Institute for Peace Studies[19] reports that there were less than 10 attacks in Abbottabad (population over 1.33 million[20]) in 2019 and suicide attacks in Pakistan had reduced to 4 in 2019 from 46 in 2013 when the applicant had returned to Pakistan. The numbers of Pakistani citizens to lose their lives due to suicide attacks, over the whole of Pakistan, has reduced significantly since the applicant returned from Pakistan, from 695 in 2013 to 55 in 2019. Also the incidents of sectarian violence have reduced from 220 to 14. PIPS also reports that the vast majority of attacks in 2020 have been targeting security forces including the police. Of the 79 attacks in KPK in 2020, 50 were targeting security forces, and 8 were targeting tribal elders and political leaders. Shia religious scholars and communities were targeted and 8 were killed in a targeted madrassa (an Islamic school).[21] However none of these attacks occurred in Abbottabad.
[19] PIPS, Pakistan Security Report, 2019, 5 January 2020, p 97
[20] European Asylum Support Office, Pakistan Security Situation, October 2020, p 75
[21] PIPS, Pakistan Security Report, 2020, January 2021, p 18
218. It has been reported by the International Crisis Group[22] that there has been an ongoing reduction in extremist violence due to the National Action Plan (NAP) and the counterterrorism department. There have also been numerous security operations against extremist groups in the Punjab province bordering KPK, resulting in a significant improvement in the security situation since 2016.[23]
[22] ICG, Pakistan’s Jihadist Heartland – Southern Punjab, 30 May 2016 CIS38A80122212
[23] SATP, “Pakistan Timeline (Terrorist Activities) – 2019, 20200825094850
219. As discussed with the applicant at the hearing the Tribunal notes that the EASO report referred to by the representative does not report any recent incidents in Abbottabad.
220. The Tribunal finds the events in Karachi are not relevant to the applicant as there is no suggestion he will live in Karachi if he returns to Pakistan.
221. There is no evidence before the Tribunal to indicate the applicant is Ahmadi so the country information relating to the persecution of Ahmadis is not relevant in his case.
222. The Tribunal notes DFAT assesses that most Shia in Pakistan face a low risk of sectarian violence. This risk can vary depending on geographic location and for members of specific groups and is greater for high profile Shia Muslims. The Tribunal accepts there are still terrorist organisations and extremists in Pakistan who target security forces and police, journalists, political and religious leaders and tribal elders.[24] However PIPS also reports that continuous anti-militant operational and surveillance campaigns by security forces and police counter-terrorism departments, as well as counter-extremism actions taken under the NAP, have led to a declining trend in attacks and fatalities since 2013.[25] While the threat of terrorism has not been completely eliminated it has significantly reduced since the applicant chose to return to Pakistan in 2012 where he remained for 2½ months. The Tribunal is not satisfied the applicant has any religious or political profile in Pakistan such that he would face anything but a low risk of sectarian violence.
[24] European Asylum Support Office, Pakistan Security Situation, October 2020; PIPS Pakistan Security Report, 2020, January 2021
[25] PIPS, Pakistan Security Report, 2020, January 2021, p 11
223. The applicant has claimed the authorities will not protect him because of the Shia/Sunni conflict affecting the bureaucracy. Having regard to the country information discussed above the Tribunal does not accept that the authorities will not protect him because of the conflict. It is clear the Pakistani authorities are making concerted, effective efforts to protect from extremists and terrorist activities Shia Muslims and all Pakistani citizens. DFAT reports that the Pakistani military provides escort services for Shia pilgrims to protect them from attacks, significantly mitigating the risk of violence.
224. The applicant has claimed one of his maternal uncles has close connections with the Imambargah. He provided no reliable supporting evidence. Given its serious concerns about his credibility, it does not accept he has an uncle who has close connections to the Imambargah or a profile such that he, or the applicant, would attract the attention of extremists.
225. Having considered all the country information before it, and finding that the applicant would return to Abbottabad and practise his religion as he currently does, by praying at home and sometimes going to the mosque, the Tribunal is not satisfied the applicant has a religious or political profile such that there is a real chance he would be targeted and harmed by extremists because of his Shia religion, if he was to return to Pakistan in the foreseeable future.
Other claims made by the applicant
226. With respect to the blasphemy claim, the Tribunal has considered the country information regarding the treatment of LGBTI people in Pakistan and honour killings in Sindh but it is not satisfied these are relevant to the applicant’s circumstances, as it does not accept he will have a profile as an LGBTI person. Nor is it satisfied there is reliable evidence to suggest the applicant will be accused of blasphemy for any other reason.
227. The applicant has claimed that if he returns to Pakistan [Mr H] will go with him and they will be identified as a gay couple and targeted. The Tribunal does not accept [Mr H] has any intention of going to Pakistan as it is not satisfied he and the applicant are in a same sex relationship. The Tribunal is not satisfied the applicant faces a real chance of serious harm in Pakistan on the basis of his sexuality or a relationship with [Mr H].
228. The applicant has claimed he cannot relocate, given what happened to his father, and because his properties, business and relatives are all based in Abbottabad. The Tribunal is not satisfied the applicant will need to consider relocation. It is satisfied the applicant will be able to return to Abbottabad and live with his family or in one of his properties and practise his Shia religion as he currently does. It is not satisfied there is a real chance the applicant will suffer serious harm on the basis of his religion, his sexuality, or for any other reason, if he returns to Abbottabad in the foreseeable future.
229. 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).
Complementary protection criterion
230. As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, it has considered whether he meets the criterion for the grant of a protection visa under the complementary protection criterion.
231. The applicant’s claims for complementary protection are the same as those put forward in relation to his refugee claims. The Tribunal has not accepted that the applicant, or any member of his family, has suffered any harm in the past because of their Shia religion. Nor has it accepted that the applicant is in a same sex relationship, or a relationship with a transgender person, or that he will have any profile for being in a relationship with [Mr H], if he returns to Abbottabad in the reasonably foreseeable future. It has not accepted he will be considered to have committed blasphemy. It has not accepted he will have a political or religious profile or an imputed political opinion in Abbottabad such that he will attract the attention of extremists or terrorists.
232. The Tribunal notes the applicant writes in English, Urdu and Hindko. He completed his secondary education in Pakistan and has a diploma in business. He has several businesses and properties, and financial support from his family, which he claims to have relied on to support himself in Australia since 2014. The Tribunal is satisfied the applicant will be able to continue to rely on this income and support if he returns to Abbottabad in the reasonably foreseeable future. It is satisfied he will be able to subsist and will not suffer or be subjected to torture or cruel or inhuman treatment or punishment, or degrading treatment or punishment. There is no evidence to suggest the applicant will be arbitrarily deprived of life, or that the death penalty will be carried out if he returns to Abbottabad in the reasonably foreseeable future.
233. For the reasons given in relation to the ‘real chance’ test the Tribunal is not satisfied there is a real risk the applicant would suffer significant harm in the reasonably foreseeable future for any of the reasons made in his claims if he resides in Abbottabad on his return to Pakistan.
234. 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).
235. 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
236. The Tribunal affirms the decision not to grant the applicant a protection visa.
Denise Connolly
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 3230

25 June 2021

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction