1708219 (Refugee)

1708219 (Refugee) [2020] AATA 5514 (16 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1708219
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Meena Sripathy
DATE:16 November 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 November 2020 at 4:44pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – fear of harm from relatives over property dispute – father killed and brother injured – credibility – inconsistent evidence – documents showing father died some time before – police report about father’s claimed killing provided to tribunal – no reasonable explanation for not providing it to department – country information about fraudulent documents – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 36, 65, 423A, 424AA
Migration Regulations 1994 (Cth), Schedule 2
CASES
Applicant A v MIEA [1997] HCA 4; (1997) 190 CLR 225; 142 ALR 331
MIMA v Rajalingam (1993) FCR 220
Selvadurai v MIEA (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 7 April 2017 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 26 September 2016. The delegate refused to grant the visa because the delegate was not satisfied there was a real chance the applicant would be subject to persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion if he were to return to Pakistan now or in the reasonably foreseeable future, or that there were substantial grounds to believe there is a real risk he will suffer significant harm.
The applicant appeared before the Tribunal in person on 4 November 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages. The applicant was represented in relation to the review by his registered migration agent, who appeared by telephone.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
Information contained in the application form indicates the applicant is a [Age] year old single man from Karachi, Sindh Province, Pakistan. He states that he speaks, reads and writes English and Urdu. He is Sunni Muslim. He has a mother, [sisters] and one brother residing in Pakistan and one sister residing in Australia. The applicant provided one residential address in Pakistan and from birth until he came to Australia. He completed higher secondary school in Pakistan and in Australia completed an Advanced Diploma course and at the time of application was enrolled in a Bachelor of [Subject] course.
In his reasons for leaving his country and fear of returning, he stated that his father was killed by a targeted killing and he fears the same fate if he returns. He stated he was unable to relocate because he is afraid of persecution.
In a detailed letter dated 17 October 2016, lodged with the Department, the applicant provided the following further information:
·He is from Karachi, Pakistan and has [sisters] and one [brother].
·His father migrated from Khyber Pakhtunkhwa (KPK) to Karachi in 1993 when he was [Age 1] years old to start his business and educate his family.
·They own [properties] in Karachi and land and a house at his father’s native place in KPK.
·He came to Australia as a student for higher education.
·After completing one semester of his Bachelor’s degree in [Subject] he returned to Pakistan in October 2013 to see his sick mother.
·While there he observed property related disputes between his family and relatives, so his family forced him to leave the country and return to Australia to continue his studies.
·His uncle wants two properties that are located in Karachi in his name as he is running a shop in one of the properties and while the applicant was there his uncle was forcing him to ask his father to transfer the two properties into his name.
·The applicant was engaged to be married to his uncle’s daughter.
·His father had [brothers] and the property he owned in KPK was being used by his uncles when they migrated to Karachi. His father was receiving life threats through telephone calls and through relatives.
·[In] July 2014 his father was shot by his relatives in Karachi because his uncles wanted these properties.
·After his death the applicant’s [brother] went to their native place to get possession of the land in KPK, as they were to be transferred to him and the applicant after the death of their father, and was threatened.
·His brother tried to reach out to the local government but was unsuccessful because his uncles had great influence in local government bodies and because local laws required all the children of the deceased to present. Because of this the applicant’s mother did not allow him to return due to the serious conflicts and threats.
·After his father’s death, he felt a lot of stress and broke off the engagement with his cousin. He could not study any longer and was stressed about his financial needs.
·His [brother] needed the properties despite the threats against him, but he was shot and seriously injured and is now on best rest.
·Now the applicant is the only person who can take possession of the property, and after his death the ownership can be transferred to his uncles.
·His uncles and his companions have a strong association with the Awami National Party (ANP) which is trying to reveal the nexus between the army and terrorists on social media and public rallies.
·The applicant fears assassination if he returns to Pakistan.
·He cannot relocate to any of the other provinces in Pakistan. He belongs to [a] caste which is spread across the country and considered one of the largest tribes in KPK and Punjab and he ahs relatives in all of these places. Law and order is worse in Baluchistan and people don’t allow migrants from other states there.
The applicant’s representative provided written submissions on 4 April 2017 and the following additional documents were provided:
·A death certificate for the applicant’s father, indicating his death [in] July 2014 and cause of death as “target killing’.
·Various lease documents
·Court order dated [February] 2006 relating to a Petition under s278 Succession Act 1925 for grant of Letters of Administration relating to the estate of [Mr A], son of [Mr B] by [Mr C] (applicant’s brother)
·Medical Certificate relating to [Mr C], being admitted to [a] Hospital [in] April 2016 for injury from ‘gunshot due to bullet stuck in [body part]’
·Document titled “Undertaking” dated 29/5/2014 by [Mr A] distributing his property to his two sons, [Mr C] and [the applicant]
The applicant was interviewed by an officer of the Department on 4 April 2017. An audio recording of the interview is included in the Department file and the Tribunal has listened to it. Details of information provided at the interview are included in the delegate’s decision record.
On 7 April 2017 a decision was made to refuse the application. The delegate was not satisfied the applicant’s claims that he feared harm from members of his extended family for reasons of a private property dispute was for any of the reasons provided in s5J(1)(a) and therefore the applicant is not a refugee as defined in s5H and was also not satisfied there were substantial grounds for believing there is a real risk he would suffer significant harm in the absence of any credible threat or objective evidence of danger to him.
Evidence before the Tribunal
On 12 October 2020 the applicant submitted to the Tribunal:
·Translation and copy of a Police Report (First Information Report) regarding an incident [in] July 2014
·Translation and copy of a Police Report (First Information Report) regarding an incident [in] April 2016
On 28 October 2020 the applicant’s representative provided a written submission; attaching the First Information Reports previously submitted and other property documents previously submitted to the Department. Also submitted by the representative in support of the applicant’s case are two newspaper articles [Title 1, Newspaper 1, Date 1]; [Title 2, Newspaper 2, Date 2].
The applicant’s representative’s submissions took issue with the delegate’s conclusions and application of the law to the applicant’s case, pointing out that contrary to the delegate’s assertion that there was no basis for the delay in seeking protection, the applicant’s fear of harm only arose after his father’s death and his brother’s shooting incident . He continues to be fearful because the property which is the subject of the dispute is still there and therefore the incentive to harm him continues. The representative argues that the judgement in Applicant A supports the applicant’s case.
On 1 November 2020 a supplementary submission was provided, together with a copy of High Court judgement in Applicant A v Minister for Immigration & Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225; (1997) 142 ALR 331 (24). Although purporting to apply the judgement to the applicant’s facts, the submission provides little to no analysis, nor are any submissions made to articulate a particular social group to which it is claimed the applicant belongs or how the harm he fears, or inability to obtain state protection, can be attributed to his membership of this particular social group to the extent it is relied on as the specified Convention-related or s5J(1) reason.
Tribunal hearing 4 November 2020
The applicant provided the following oral evidence at the hearing. He has lived at two addresses in Pakistan before he came to Australia in February 2011. He resided in [Location] KPK from birth until the age of [Number] years and after that at the address in Karachi provided in the application, where his brother and mother continue to reside to this date. Prior to coming to Australia, he worked in a [Workplace] from 2007 until 2011, and was studying until around 2009. He ceased study in Pakistan because he could not manage to work and study at the same time.
The Tribunal asked the applicant about his circumstances in Australia. He came here to study in February 2011 and completed a Diploma and Advanced Diploma of [Subject]. The Tribunal noted that it had before it the decision of the AAT in his student visa cancellation case and asked if the study history provided there was accurate. He agreed that it was. The Tribunal noted that at the hearing in that matter he indicated he wanted to continue with his study in Australia and it notes the cancellation was set aside in July 2016. The applicant confirmed that he did not engage in any study after that. He said he wanted to but his financial situation did not permit it. The Tribunal noted the present application was lodged in September 2016.
The applicant lives in [Suburb] with friends. He has been at this address for over 4 years. He is working as [an Occupation 1] on a permanent part time basis. Before this he has worked in [Work sector] jobs and as [an Occupation 2].
In Australia he has a sister, who lives separately with her family. He has no other family in Australia.
In Pakistan he has one brother, his mother and [sisters]. Two of his sisters married after he came to Australia. They were both married together in November 2013. He travelled to Pakistan for the wedding, as did his sister who lives here. The rest of his siblings were all married before he came to Australia in 2011. His brother lives in the family owned property he lived at before he came to Australia. His mother lives between the various children in Karachi.
The Tribunal asked the applicant about the properties owned by his family. He said apart from the apartment they live in, there is another property which comprises a shop and a residence. It is rented out and generates an income which his brother lives on. He said presently the shop is empty, but the residence is rented out. It is not rented to any family member. Apart from these properties in Karachi, they have a house and a share in a family landholding of his father’s family in KPK. The applicant confirmed that the property documents provided to the Department and Tribunal included a lease agreement relating to the Karachi apartment which is leased from the government on a long term basis.
The Tribunal asked the applicant about the “Court Order” document submitted by him to the Department and Tribunal granting Letters of Administration to the applicant’s brother relating to the estate of his late father. These documents indicate his father died in December 1993. It put to him that this document appears to contradict his claim, and documentary evidence he provided to support that claim (the death certificate and police report), that his father was killed in 2014. In response the applicant reiterated that his father was killed in July 2014. In relation to the court document he submitted, he stated that this document was drafted by lawyers as a means of fast tracking the transfer of the property and he does not know anything else about it. He said his brother provided these documents to him to establish the properties that his father had. When asked who owns these properties now, he said that it is still before the courts and has not been transferred.
The Tribunal asked the applicant who was the financial sponsor for his student visa application? He said it was his brother. When asked if his father is mentioned at all in that application he said he is not.
The Tribunal asked the applicant about the police report documents provided for the first time to the Tribunal, noting that these were provided to the Tribunal in October 2020. It asked why they were not provided or mentioned earlier with his application before the Department. The applicant said he did not have these documents at that time. He said his representative asked the delegate for additional time to provide evidence and this was not granted. The Tribunal asked the representative about the timing of the provision of these documents. The representative said the documents were translated in 2018 and he believed they were uploaded to the Tribunal’s portal in 2018 and more recently submitted again. The Tribunal indicated it would check its records about that.
The applicant was put on notice of s423A which requires the Tribunal to draw an adverse inference about the credibility of evidence not provided before the department if not satisfied there is a reasonable explanation for the late submission. In response the applicant said he needed time to obtain the evidence and only got it later and then provided it.
The Tribunal asked if any further action has been taken regarding the complaints made to police or whether the family has chased the police up about it. He said nothing further has happened because it involved unknown assailants and the police were unable to do anything. He then said sometimes the police have come to the house and harassed them. When asked why they would do that, if they were the victims, he said because they are associated with local political parties. The Tribunal asked what it had to do with political parties. The applicant said his uncle [Mr D] has connections with the ANP which is strong in KPK and also involved in Karachi. He provided no other explanation of the relevance of these political connections to his claims.
The applicant confirmed that [Mr D] is the uncle he fears harm from. He is the only surviving paternal uncle of the applicant. He is also the father of the cousin to whom he was engaged. The Tribunal asked the applicant about this engagement. He said they were promised to each other when they were children. No formal engagement had ever taken place. The applicant called it off in 2014 by telling his mother and brother he cannot go through with the marriage. He does not know if she is married by now. No one in his family keeps any contact with this uncle or their family.

The Tribunal asked if his brother has been to KPK. He said he did once after their father’s death, and there was a meeting of all the family where the land dispute came up. After that he was shot at in Karachi. He has not returned to KPK since then.
The Tribunal asked the applicant what, and who, he is afraid of now. He is afraid of his uncle because of what happened to his father and his brother. He is afraid they will attack him also. The reason for his fear is because of the dispute over the property and also because he broke off the engagement with his uncle’s daughter. His mother told him not to return because they will not spare him. The Tribunal asked why he cannot live elsewhere in Pakistan outside Karachi and KPK. He said he cannot unless he changes his identity otherwise they will locate him wherever he goes. The Tribunal noted that no one else in his family has suffered any harm in recent years which suggests there is no ongoing interest from his uncle, and they are not in contact with him. The applicant said that they will come after him for the reasons he has stated.
The Tribunal explained to the applicant a critical issue in this case is whether it accepts his claim that his father was killed by his uncle in 2014 given contradictory evidence he has provided that his father died in 1993 and concerns it has about the credibility of the supporting documents provided. If it rejects this claim, it would also reject his claim of fear of harm on this basis upon return. If it were to accept his claim that his father and brother were attacked, the next issue is the motivation for this harm. If it is not for one of the 5 specified reasons, he may not meet the refugee criteria. The Tribunal also put to the applicant another issue arising in his case is whether, if arguing his claims are on the basis of a particular social group being his family, he can meet the criteria in light of s5K which applies to particular social group as family. Further, an issue arises as to whether there is an objective basis for the feared harm.
Following an adjournment, the applicant came back and told the Tribunal that contrary to the information indicating his father died in 1993, this is the year he moved from KPK to Karachi. He repeated his claim that the court order document was obtained on the basis of papers prepared by a solicitor to facilitate early transfer of his father’s property and do not contain correct information.
He repeated his fear upon return is that his uncle will harm him because of the property dispute and because he broke off the engagement with his daughter.
The Tribunal put to the applicant under s424AA particulars of information he provided in his student visa cancellation hearing before the AAT (differently constituted) relating to his knowledge of the matter of his father’s death, threats against his brother, and his subjective fears about returning to Pakistan. It explained the relevance of this information and consequences of this Tribunal relying on it in this review. The Tribunal informed the applicant he could comment or respond to the information now or request additional time, which the Tribunal would consider. The applicant indicated he wanted additional time to respond and the Tribunal agreed to allow him a period of one week after the hearing.
On 11 November 2020 the Tribunal received a written response from the applicant’s representative setting out the applicant’s response to the information put to him under s424AA at the hearing. The representative also made submissions addressing s5K of the Act and the applicant’s arguments relating to his membership of a particular social group consisting of his family. These matters are discussed in further detail in the discussion below. No further evidence was provided or submissions made addressing the issue of when his father died.
CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS
Nationality
On the basis of the evidence of his passport, a copy of which was sighted by the Tribunal, and the absence of any other information to cast doubt about the validity of this documentation, the Tribunal accepts the applicant is a national of Pakistan and considers Pakistan is the country of nationality and the receiving country for the purpose of assessing his claims against the refugee and complementary protection criteria respectively.
Consideration of applicant’s claims
When assessing claims made by an applicant the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of credibility of the applicant. When doing so the Tribunal is mindful of the difficulties faced by refugee applicants, including issues relating to use of interpreters, nervousness and anxiety in the environment of interviews and hearings, and memory and recollection issues resulting from the lapse of time or other reasons. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. The Tribunal is mindful that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1993) FCR 220). However it is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. (see Selvadurai v MIEA& Anor (1994) 34 ALD 347 at 348).
In the present case the applicant’s claims are that his father was murdered over a family property dispute and he believes his paternal uncle was responsible. He claims his elder brother was also shot at and he believes this was related to the same property dispute and his paternal uncle was also responsible. He claims, because of these incidents he called off the engagement between himself and his paternal uncle’s daughter. The applicant fears harm from his paternal uncle because of the family property dispute, on the basis of what happened to his father and brother, and also because he called off the marriage with his uncle’s daughter. He also claims his paternal uncle has connections with the Awami National League and for this reason he cannot obtain protection from police or relocate anywhere else in the country to avoid harm.
The Tribunal has carefully considered the claims and evidence submitted by the applicant in support of his application. For the following reasons it rejects his claims that his father was killed and brother injured over a family property dispute.
It has serious doubts about the claim that his father was murdered over a family property dispute and that his paternal uncle was responsible for his death, firstly, because of contradictory documentary evidence submitted by the applicant. The applicant’s claim is contradicted by the evidence of the “Court Order” document granting Letters of Administration to his brother in respect of the estate of his late father, who is stated to have deceased in December 1993. This document, dated 22 February 2006 appears to be genuine and authentic, showing numerous stamps cross marked by signatures and attested by a Notary Public in Karachi. The supporting Affidavit by his brother, indicates his father died from a heart attack.
Secondly, the evidence provided to support the claim of his father’s more recent death, does not appear to be genuine or authentic. The Tribunal has a number of concerns about the death certificate extract document provided by the applicant to support his claims which indicates his father’s death [in] July 2014. This document refers to the cause of death as “target killing” despite there being no demonstrated evidence of this by the applicant’s own claims, and the date referred to in the document for issuance of receipt is18 June 2014 which pre-dates the claimed date of death. Country sources before the Tribunal indicate that fraudulently altered or counterfeit school records, birth certificates, death certificates, medical records, bank records and other documents are common in Pakistan[1] and so given these concerns, it is entirely possible he obtained this document to support his claim.
[1] DFAT Country Information Report Pakistan, 20 February 2019, paragraph 5.74
To further add to the Tribunal’s credibility concerns, the applicant submitted for the first time to the Tribunal, in October 2020, a First Information Report of the incident of a shooting of a person by the name of [Mr A], having never previously mentioned the existence of a police report before the Department. As discussed with the applicant at the hearing, s423A of the Act requires it to draw an adverse credibility finding regarding evidence not provided to the Department unless a reasonable explanation is given for the late submission. The applicant’s explanation was only that he did not have this evidence at that time and only obtained it later. The representative submitted that it was translated in 2018 and he believed it was uploaded to the Tribunal soon after that. Having checked Tribunal records, it appears the document was provided for the first time on 12 October 2020. Country information indicates FIRs use standard forms with the relevant information written in by hand, and are relatively simple to counterfeit and the Tribunal notes that, given this, DFAT does not consider the existence of an FIR to constitute evidence that the events described in the FIR actually occurred.[2] Therefore, having considered the applicant’s explanations, and the above mentioned concerns, the Tribunal does not consider a reasonable explanation for providing this evidence so late has been provided and accordingly, rejects the evidence of the police reports as lacking in credibility.
[2] DFAT Country Information Report Pakistan, 20 February 2019, paragraph 5.73
The Tribunal notes that it had clearly put the applicant on notice of its concern about the veracity of his claim that his father was murdered in July 2014 at the hearing. It specifically asked who his financial sponsor was for his student visa application and whether his father provided any documents for that application which may indicate that he was still alive at that time. The applicant replied that his brother was his financial sponsor and that his father provided no documents. In his post hearing submissions, he provided no further comment or evidence to address the Tribunal’s concern about this matter.
The Tribunal has considered that he raised the claim of his father’s death in July 2014 in the context of his student visa cancellation review hearing before the AAT (differently constituted) in March 2016, and provided the same purported death certificate evidence. The Tribunal considers the evidence he gave about this in that matter adds to its concerns about the veracity of his claims. In his evidence at that hearing, he stated, inconsistently with his current evidence, that he had no personal knowledge of the dispute between his father and uncle and only heard about through relatives, and that apart from his father no other relatives had been harmed and he was not fearful of harm from the authorities in Pakistan for reasons of his religion or any other reason. Subsequently to that decision, he claimed his brother was shot and he lodged a protection visa application. The Tribunal has considered the applicant’s submissions in his post hearing 424AA response about the timing of his subjective fear of harm and that the later incident on his brother justified the making of the present application. The Tribunal observes that he relied on the claim of having recently lost his father in his student cancellation review to argue for the exercise of the discretion not to cancel his visa, and given the self serving purpose of the claim in that application, it does not consider that this earlier disclosure provides strong support for the veracity of the claim, in the face of the contradictory documentation now available and the concerns referred to above.
Therefore, on the evidence before the Tribunal, and for the reasons explained above, it does not accept that his father was killed by gunshot [in] July 2014. It finds, on the contrary, the applicant’s father died in December 1993 by heart attack.
Having rejected this claim, the Tribunal similarly has concerns about the applicant’s claim that his brother was shot at [in] April 2016 and that this had anything to do with a family property dispute or his paternal uncle. The Tribunal rejects, as lacking credibility, the evidence of the police report provided to the Tribunal on 12 October 2020 on the basis that no reasonable explanation has been provided for not providing it, nor even mentioning that a FIR complaint had been made, earlier in his written or oral evidence to the Department.
Having rejected the applicant’s claims that his father was murdered and brother shot at, the Tribunal is not satisfied that applicant faces a real chance of serious harm from his paternal uncle or at the instigation of his uncle over a family property dispute. His own evidence to the Tribunal was that the family’s properties in Karachi are rented out to non family members and neither his mother or brother have had any recent contact with the paternal uncle. In the absence of any other credible evidence or basis to support a fear of physical harm by his uncle, the Tribunal is not satisfied there is a real chance he will be harmed by this relative because he decided not to marry his daughter. The applicant’s own evidence is that he was never formally engaged to his cousin, only having been promised in childhood. Even if the Tribunal were to accept that the applicant had decided not to marry his cousin, there is no evidence before the Tribunal to indicate that he faces harm upon return for this reason, particularly given the substantial passage of time since he made that decision (6 years ago). On his own evidence he has no information about the cousin and whether she remains unmarried, because his family has no contact with them. This supports that there is no adverse interest or consequences for the applicant’s family on this basis.
Despite rejecting his claim that his father was murdered and brother shot at over the family property issue, the Tribunal has considered whether there is any other basis for the applicant to fear harm by his paternal uncle. It acknowledges that family property disputes have lead to violence in Pakistan, as evidenced by the news articles provided by the applicant’s representative. However, in the absence of any credible evidence that there is such a dispute in the applicant’s family, or that his paternal uncle has any history of violence or association with violence, it is not satisfied that the applicant faces a real chance of serious harm by this person or anyone associated with him for this or any other reason.
The Tribunal has considered the applicant’s claim that his uncle is well connected with the Awami National League. He made no claim that he (the applicant) supported or opposed this party or any other party or political group and made no claim that he would be targeted for harm for reasons of this or any other political opinion. He also provided no evidence to support that his uncle had or has any political affiliation with the Awami National League. On the limited evidence before it therefore, the Tribunal is unable to make any determinative findings about the uncle’s political affiliations and considers it is unnecessary to do for the purposes of assessing the applicant’s protection claims.
Given the above conclusions and findings it is unnecessary to consider the issues of the motivation for any harm feared, or whether there is a necessary nexus to any of the specified reasons in s5J(1) of the Act. Specifically, it is unnecessary for the Tribunal to consider whether the harm feared by the applicant is for reasons of his family, and the application of s5K to his claims. To the extent that he claimed to fear harm from his uncle because of what his uncle did to his father and brother, and his fear of harm was because he is the son of his father, he would appear to be relying on membership of the family as the reason for the harm feared. However, even if the Tribunal accepted that harm was perpetrated upon his father for reasons of a family property dispute, the effect of s5K is that a person who is pursued because he or she is a relative of a person targeted for a reason other than those specified in s.5J(1)(a) (race, religion, nationality, membership of a particular social group, political opinion) will not have a well-founded fear of being persecuted within the meaning of s.5J.
Having rejected the applicant’s claims relating to the circumstances of death of his father and attack on his brother, and considering all of the applicant’s claims individually and cumulatively, the Tribunal is not satisfied he faces a real chance of serious harm from his paternal uncle or anyone else, upon return to Pakistan for any reason specified in s5J(1).
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). On the basis of the findings above rejecting the applicant’s claims that his father was killed in July 2014 at the hands of his paternal uncle, and that his brother was shot at over the same claimed family property dispute, the Tribunal is not satisfied there are substantial grounds for believing there is a real risk the applicant will suffer significant harm. The Tribunal is also not satisfied there is a real risk he will face significant harm because the applicant called off the engagement with his paternal uncle’s daughter or for any other reason. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Meena Sripathy
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.
…

[2020] AATA 5514

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