1716676 (Refugee)

1716676 (Refugee) [2022] AATA 2361 (28 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1716676
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Simone Burford
DATE:28 June 2022
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 28 June 2022 at 11:59am

CATCHWORDS
REFUGEE – protection visa – Pakistan – fear of harm from family members and religious groups because of love marriage between cousins once removed – applicant threatened and attacked by militant religious extremists and second applicant beaten by family – credibility – inconsistent and implausible claims and evidence – families’ knowledge of relationship, consent to marriage and participation in wedding – members of family unit – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5J, 36, 65, 424A
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth (1999) 197 CLR 510
BEH15 v MIBP [2019] FCAFC 184
CQG15 v MIBP [2016] FCAFC 146
DAO v MIBP [2018] FCAFC 2
FCS17 v MHA (2020) 276 FCR 644
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Lay Lat (2006) 151 FCR 214
MIMA v Rajalingam (1999) 93 FCR 220
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60
Selvadurai v MIEA (1994) 34 ALD 347
SZATV v MIAC (2007) 233 CLR 18
SZBEL v MIMIA (2006) 228 CLR 152
SZFDV v MIAC (2007) 233 CLR 51
WAKK v MIMIA [2005] FCAFC 225
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 5 July 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (the Act).
Background
The first applicant is a [Age 1]-year-old Pakistani citizen who was born in Abbottabad, Pakistan. He is married and has three children who were all born in Australia. His spouse (the second applicant) and two eldest children (the third and fourth applicants) are included in this review application. The second applicant is a [Age 2]-year-old Pakistani citizen who was born in Abbottabad, Pakistan. The third and fourth applicants are [Age 3] and [Age 4] years old respectively. A third child who is around [Age 5] years old is not included in the application.
The first applicant first arrived in Australia in May 2007 as the holder of a student visa. The second applicant first arrived in Australia [in] September 2012 as a dependant on the first applicant’s student visa.
The applicants applied for the protection visas on 17 March 2015.
At the hearing the applicants confirmed that this is the second application for a protection visa lodged by the first and second applicants. The first application for a protection visa was lodged on 9 December 2013. That application was withdrawn on 10 March 2014.
On 5 July 2017 a delegate of the Minister refused the second protection visa application. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Protection claims
The applicants detailed their claims for protection in their applications for protection. The delegate’s decision, dated 5 July 2017, contains a summary of the claims made in the application and during the first and second applicants’ interviews with the Department. The applicants provided a copy of the delegate’s decision to the Tribunal.
The second and third applicants did not make any claims of their own.
Initial claims detailed by the first applicant in the protection visa application are:
·They got married even though members of their family and in-laws were against the wedding.
·They received lots of threats, opposition and pressure from religious parties and most of their relatives.
·If they return to Pakistan they will be shot as their marriage is an unacceptable sin and a very big crime. The first applicant has disobeyed his family and for religious groups a “love marriage” means the applicant is not a Muslim.
·The first applicant and his wife have suffered a significant amount of stress and mental anxiety. One religious group tried to kill him because love marriage is a big sin and crime for which the punishment is death. The applicant’s wife was beaten and hurt badly by her family members and was nearly dead in the name of honour killing.
·The applicants tried to contact police but the authorities were unable to provide any assistance/security because of religious militants group who were involved.
·If the applicants moved to another state or site in Pakistan those parties will/could chase and kill them. In Pakistan there is interstate conflict between the people in the name of language and religion.
·If the first applicant and his wife return to Pakistan they will be treated like they did a big crime and a sin because love marriage is unacceptable. They fear that the second applicant’s relatives/family members, religious parties and militant groups can kill them in the name of honour killing. They didn’t like that the first applicant got a qualification from Australia.
·In Pakistan, everybody, including authorities, are scared of militant groups and being killed every now and then, including school children, so the applicants do not think that they can protect their family, especially as the first applicant belongs to the Khyber Pakhtoon Khuwa state.
·The applicants cannot relocate within Pakistan because of interstate conflict; many incidents of killing have been reported of people who try to live and survive in another state.
The second, third and fourth applicants did not make their own claims for protection in their application forms.
Interview and submissions to the Department
The first and second applicants attended an interview with the Department on 25 September 2015. Prior to the interview, the applicants submitted the following documents to the Department:
·Identity documents, including:
o   Birth certificate for the third applicant – born in Western Australia in [Year 1];
o   Birth certificate for the fourth applicant – born in Western Australia in [Year 2];
o   Birth certificate for the first applicant;
o   Pakistani passports for the first, second and third applicants.
·Marriage certificate for the first and second applicants.
·National Identity Card for the first, second and third applicants.
·Education documents for the first applicant, including:
o   Advanced Diploma of [Subject 1] awarded to the first applicant on 6 November 2013;
o   Statement of Results for Advanced Diploma of [Subject 1] for the first applicant;
o   Confirmation of enrolment for IELTS Preparation course;
o   Statement of Attainment issued on 17 January 2013;
o   Confirmation of enrolment for Advanced Diploma of [Subject 1];
o   Diploma of [Subject 2] awarded to the first applicant on 17 June 2011;
o   Statement of Results for Diploma of [Subject 2];
o   Letter from [College 1] confirming enrolment of the first applicant in Certificate III in [Subject 3], dated 26 July 2010;
o   Transcript of Results for Certificate III in [Subject 3];
o   Record of Achievement from [College 2] dated 26 June 2009;
o   Letter confirming enrolment at [College 2] dated 30 May 2011;
o   Statement of Achievement from [College 2] dated 26 June 2009;
o   Certificate IV in [Subject 2] from [College 3] dated 25 November 2008;
o   Academic record for Certificate IV in [Subject 2] dated 24 November 2008;
o   Letter of release from [College 4] dated 16 October 2007;
o   Academic transcript from [College 4] dated 16 October 2007;
o   Certificate of Achievement in English for Academic Purposes awarded on 3 August 2007;
o   Documents relating to the first applicant’s secondary education in Abbottabad;
o   IELTS test results for test undertaken on 28 May 2011.
·West Australian Driver’s Licence issued to the first applicant.
·A summary of the first applicant’s expenditure bills.
The delegate’s decision
On 5 July 2017, a delegate of the Minister refused the protection visa applications. Before the delegate, the second, third and fourth applicants were dependant applicants not making claims of their own.
The delegate accepted:
·The applicants’ identities and nationalities as citizens of Pakistan;
·The first applicant had married the second applicant and both families fiercely oppose this marriage and threatened them;
·The first applicant married his wife for love;
·The first applicant has family living in Karachi, Mansehra and Abbottabad, Pakistan;
·The first applicant did not report the threats from his family and his in-laws to the police.
The delegate did not accept:
·That religious groups in Pakistan attempted to kill the first applicant because he married for love; or
·That the first applicant's family put a gun to his wife's head. The delegate did not accept this claim due to the inconsistent version of events provided by both the first applicant and second applicant at their protection interviews in relation to this incident.
Based on these findings, the delegate was not satisfied the first applicant faced a real chance of persecution for one or more of the reasons mentioned in s 5J(1)(a) of the Act. Therefore, the first applicant was not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act.
The delegate was satisfied that there were substantial grounds for believing that the first applicant faced a real risk of significant harm as required by s 36(2)(aa), however, the delegate found that the first applicant could relocate in Pakistan, including to Lahore or Karachi, where they would face only a remote chance of harm. As the delegate found that it would be reasonable for the first applicant to relocate as outlined in s 36(2B)(a) of the Act, there was taken not to be a real risk that the first applicant will suffer significant harm, and the delegate found the first applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(aa) of the Act.
Review application
On 31 July 2017 the applicants applied to the Tribunal for a review of the delegate’s decision. The applicants were not represented in relation to the review.
Submissions to the Tribunal
The applicants submitted the following information to the Tribunal in support of the application for review:
·A statement from the first applicant dated 28 February 2021;
·Identity documents, including for a child born on [Date 1] who is not an applicant for the visa;
·Confirmation that the third and fourth applicants attend [School] in [Suburb 1];
·An affidavit from [Mr A], Advocate, Union Council [Suburb 2], dated 4 January 2018;
·Three untranslated documents;
·Three untranslated receipts;
·An ‘International consent form’ in the name of [Mr B] dated 15 November 2020;
·Three ‘Immovable asset’ certificates relating to the following properties in Pakistan:
o   a two storey house at [Address 1], [Suburb 2], Abbottabad, Pakistan in the name of the first applicant;
o   a two storey house at [Address 2], [Suburb 2], Abbottabad, Pakistan;
o   a commercial plot at [Address 3], [Suburb 2], Abbottabad, Pakistan;
·Country information:
o   ‘Engaged couple murdered for ‘honour’ over accusation of taking pictures together’, Dawn, 3 December 2018;
o   ‘Karachi honour killing: Bodies of electrocuted couple to be exhumed tomorrow, say police’, Dawn, 12 September 2017;
·Email from the first applicant dated 1 June 2021 regarding inability to relocate in Pakistan and the second applicant’s state of mind requiring anti-depressants and sleeping pills and attaching:
o   Communication from Pakistan Telecommunications Authority dated 1 February 2009 titled ‘New System for Activation of SIM launched’;
o   Copy of a prescription in the name of the second applicant for ‘Diazepam’ dated 1 June 2021;
o   A medical certificate for the second applicant dated 1 June 2021 indicating that the second applicant attended for a ‘medical condition’ and was not fit for work from 30/5/2021 to 2/6/2021. That certificate was signed by [Dr C] of [Medical centre 1];
o   A blank Sui Southern Gas Company Ltd ‘Application for domestic connection’;
·Statement from the first applicant on 17 August 2021 (in response to an invitation issued pursuant to s 424A of the Act).
Proceedings before the Tribunal
The first and second applicants attended a hearing before the Tribunal on 4 June 2021 to give evidence and make submissions in support of the review application. The third and fourth applicants, who are minors, did not attend the hearing.
The applicants indicated in their hearing response form and at the commencement of the hearing they did not require the assistance of an interpreter at the hearing. However, based on the initial interactions with the applicants, and in particular the second applicant’s responses to initial questions put directly to her, the Tribunal formed the view that while the first applicant was proficient in English, the second applicant’s participation in the hearing would be better supported with the assistance of an interpreter. Accordingly, the hearing was adjourned briefly while an interpreter was engaged. The hearing then proceeded with the assistance of a telephone interpreter fluent in the English and Urdu languages.
At the hearing the Tribunal explained the hearing process and the material before it. The Tribunal noted the applicants had provided a copy of the delegate’s decision with their application for review. The Tribunal noted that it was independent from the Department and that it was looking at all the information afresh and did not rely on the findings of the delegate, either accepting or denying elements of the applicants’ claims. The Tribunal explained that the applicants should not assume that any of their claims have been accepted by the Tribunal, even if they had been accepted or not addressed directly by the delegate. The Tribunal indicated that it considered that all aspects of the applicants’ claims were in issue before it.
The Tribunal discussed with the applicants whether there were any changes to their claims as expressed in their application and at the interview with the delegate. The Tribunal discussed with the applicants the information on which they were seeking to rely in support of their claims and their intention to call witnesses in support of the application.
The Tribunal also took evidence regarding the applicants’ background and circumstances in Australia and Pakistan. The Tribunal initially took evidence from the second applicant. The Tribunal adjourned that evidence to take evidence from the first applicant on matters covered with the second applicant. The Tribunal indicated it would be necessary to return on another occasion to question the applicants further as time did not permit the evidence of both witnesses to be completed at that hearing. The Tribunal notes that during questioning of the second applicant, the Tribunal raised concerns regarding inconsistencies in the second applicant’s evidence before the Tribunal and the evidence she gave during her interview with the Department.
The evidence provided by the first and second applicants at the hearing is considered further below.
The hearing was adjourned part-way through the first applicant’s evidence. Tribunal records indicate that following giving evidence, the second applicant was observed by Tribunal staff to be in distress waiting outside the hearing room while the first applicant gave evidence. . Medical assistance was called to attend to the second applicant. The Tribunal was made aware of this following the adjournment of the hearing.
On 3 August 2021 the Tribunal invited the applicants to respond to information arising from the first hearing, which the Tribunal considered would be the reason or part of the reason for affirming the decision under review. The applicants responded to that invitation on 17 August 2021. This information and the applicants’ response is considered further below.
The applicants were invited to attend a further hearing on 30 August 2021 but they did not attend. The Tribunal received a Hearing Response Form via email on 20 August 2021 from the first applicant, which indicated that none of the applicants would be attending the hearing. It stated in part:
My partner is suffering from anxiety and depression and she cannot handle the pressure and stress of the situation. In her last hearing she got so depressed and anxious that respected member was forced to call an ambulance for her. I am still coping up with the trauma she has faced on the day. And I am looking forward (sic) the kids on the top of my work and I am overwhelmed by the situation and per the doctor advice I will not be attending the hearing.
The response also stated: ‘Because the trauma and stress of the hearing process along with the fear of refusal of visa has given my partner attack of panic and depression, so we won’t be able to attend the hearing.’ No other documents accompanied the Hearing Response Form.
The Tribunal requested the applicants provide the doctor’s advice referred to in the Hearing Response Form. On 24 August 2021 the applicants provided a medical certificate dated 24 August 2021 stating the second applicant had a medical condition and was unfit for work/stressing events from 24 August 2021 to 24 September 2021. The certificate was signed by [Dr D], [Medical centre 2]. Also provided was a copy of a letter from [Dr D] to [Mr E] (dated 24 August 2021) referring the second applicant for opinion and management of ‘anxiety/panic attack?PTSD since her father passed away’. The applicants also provided copies of prescriptions in the name of the second applicant for ‘Oxazepam’ (dated 24 August 2021) and ‘Diazepam’ (dated 1 June 2021) (previously provided) and a copy of an ambulance account for a call out on 4 June 2021 (first Tribunal hearing date). The applicants also provided another copy of the medical certificate for the second applicant dated 1 June 2021, indicating that she attended the practice for a ‘medical condition’ and was not fit for work from 30 May 2021 to 2 June 2021. That certificate was signed by [Dr C] of [Medical Practice 1]. The first applicant indicated in his email to the Tribunal on 24 August 2021 that as his wife was unable to work he would be ‘looking after my kids and my work commitments’.
The Tribunal considered this material and advised the applicants in writing on 26 August 2021 that it no longer required the second applicant to attend the hearing on 30 August 2021. The Tribunal sought confirmation that the second applicant did not wish to attend any further hearings before the Tribunal and advised that if this was correct the Tribunal would proceed to decide the review without taking any further action to enable the second applicant to appear before it. The Tribunal invited the second applicant to provide any further submissions in writing by 8 October 2021. No further submissions from or relating to the second applicant were received by this date or the date of this decision.
In that correspondence, the Tribunal indicated to the first applicant that:
You have indicated that you are unable to attend the hearing on 30 August 2021 due to work and childcare commitments. The Tribunal notes you were sent the hearing invitation on 5 August 2021. Accordingly, you had in excess of 3 weeks notice of the hearing date. The Member considers that this is sufficient time for you to make arrangements to enable you to attend the hearing on 30 August 2021. Please note that if you do not attend the hearing the Tribunal may proceed to make a decision on your review application without taking any further action to enable you to appear before the Tribunal.

No further response was received by the Tribunal from the first applicant prior to the hearing or by the date of this decision.
The applicants did not appear at the scheduled hearing on 30 August 2021. Tribunal records indicate that three attempts were made to contact the first applicant at the time of the scheduled hearing. The calls were not answered. No further information has been submitted by the applicants at the time of decision.
In light of the first applicant’s non-attendance at the resumed hearing, the indication that the second applicant did not intend to attend any further hearings, and the lack of any further information provided by the applicants, including in response to the invitation to the second applicant to make submissions in writing, the Tribunal has proceeded to make a decision on the review without taking any further action to enable the applicants to appear before it.
Applicant identity and country of reference
The applicants claim to be citizens of Pakistan. As noted earlier, the applicants provided a copy of their Pakistani passports to the Department and to the Tribunal. The delegate accepted the applicants’ identities. There is nothing before the Tribunal to suggest that the applicants are not the persons identified in the relevant applications for protection.
The Tribunal finds that the applicants are citizens of Pakistan, which is also their receiving country for the purposes of the refugee and complementary protection assessments.
EVIDENCE
The issue in this case is whether the first and second applicants have a well-found fear of persecution due to their membership of a particular social group as ‘Pakistani Muslims who entered into a love marriage’, as ‘Pakistanis who have been educated in a Western country’ or for any other reason or if complementary protection provisions apply to them.
At the interview with the Department the second applicant provided evidence, which is summarised as follows:
·The first and second applicants grew up as neighbours. They are the same religion (Sunni) and ethnicity (Gujer).
·She lived with her mother (House [1]) until she was married to the first applicant. She moved to his house and stayed there for six months, until coming to Australia.
·Her father owns their house and her parents, sisters and her [Age 6] year-old brother continue to live there. She did not undertake paid work in Pakistan.
·The first and second applicants are relatives; the first applicant is her mother’s cousin.
·She was not sure when they first met but thought it was in 2007 or 2008.
·Her family did not pay a dowry. It was a love marriage, not arranged, and both their families were against it and they tortured her.
·They had a small wedding ceremony, included the cleric and not many other people:
o   Both sets of parents attended and siblings.
o   The Nikah was performed and there was no party afterwards.
o   When asked about the witnesses named on their marriage certificate, she said [Mr F] (a neighbour) and the first applicant’s brother were his witnesses. Her grandfather and two of her uncles were her witnesses.
·Following the ceremony they lived together in his house [2] for about 4 months, and after the first applicant left for Australia she lived in Pakistan for a further 2 months. After her husband returned to Australia (July 2012) she remained living in [2] while waiting for her visa for Australia. This was between March and September 2012.
·She sometimes talks to her parents but they don’t talk much because of the marriage. She has called them to say sorry but her father hates her after the marriage. She last contacted her sister three weeks ago and had last contacted the first applicant’s siblings 2 or 3 months ago.
·She has family in Islamabad, Karachi and Lahore but does not know them or their names. She did not visit them often. She has a sister and maternal aunt living in [Country 1]. Her sister moved to [Country 1] before she was married. She got married and is living in [Country 1] permanently. She has no family in Australia.
·After she was married, her father and brother beat her for being in a ‘love marriage’ as it was bad in Muslim society. She could not recall dates, but it was after her husband had left for Australia, during the period she was waiting for her visa. On one occasion her father put a gun to her head and other times he and her brother would beat her with their hands and a stick.
·The first applicant’s family did not do anything to intervene and were also unhappy with the marriage. When asked why her family did not prevent them from marrying, she said ‘if you do something like that in front of family it is very bad’; that’s why her family waited until after the wedding and then tortured her. Relatives and neighbours were around and helped her get free.
·Their families opposed the marriage because they are not ‘good’ with each other and a love marriage is not acceptable to them. She fears harm from her mother, father, brother and uncle. They were not happy with the marriage and she fears they would also harm her children.
·It would be very expensive to live in another city like Islamabad.
·The first applicant’s brother is also opposed to the marriage and has threatened their lives. When asked why the first applicant’s family allowed her to live with them if they also opposed the marriage, she said that when living at the first applicant’s family house she lived separately from them and had little to do with them.
At the interview with the Department the first applicant provided evidence, which is summarised as follows:
·He met the second applicant in 2008. His wife lived close to his place in Abbottabad, in the same street but he doesn’t know the exact address. The second applicant’s father and his father are distant relatives, perhaps second cousins. He met his wife on his first trip back to Pakistan in 2008. Nobody knew about his relationship with her.
·His mother died in 2005 or 2004. His father died in July 2007.
·They sought their family’s permission and when he told his family, most of them did not agree. When asked why they did not agree, the first applicant said it was maybe because of background issues or because they wanted him to marry someone of their choosing.
·Some of the second applicant’s family were also not happy; her father and brother and some of her uncles. They continued with the marriage without permission from her father and immediate family. They were able to rely on the support of other family members to get married. When asked why her brothers opposed the marriage, he said he was never told directly but came to know from a relative that maybe they wanted her to marry someone else, or maybe they don’t like him.
·When asked why the marriage was permitted to proceed in face of this opposition, he said he got married with the help of friends and relatives and he knew he could take his wife with him to Australia.
·The first applicant’s friends and some family members (including his brothers and sister) attended the wedding. The second applicant’s uncle and some relatives also attended. Her parents were there for a short time but were not happy.
·The first applicant’s witnesses were his brother and a close friend of his father. The ceremony was held near the city, outside his village. After the wedding they lived together in a different house, on the same land as their family house [1]. Their house was close to his family’s house. They lived there from their marriage until July 2012. His wife lived in that house by herself after he returned to Australia. Her parents live in their family house.
·The first applicant’s [brothers] live at [1]. His sisters are married and living at their husband’s houses in Karachi, Manshra and Abbottabad. His uncle and his family live in [Country 1], and some cousins live in [Country 2].
·He travelled to Australia in 2007 to get a good qualification. His brother provided financial support using funds from the family [company]. He ceased studying in 2013 as he had completed an Advanced Diploma of [Subject 2] and applied for a 457 visa.
·He returned to Pakistan three times between 2007 and 2012 to see his family and to see the second applicant. On the third visit he returned for a holiday and to marry the second applicant.
·He applied for a protection visa in 2013 but withdrew the application because he had a chance to apply for a 457 visa.
·He was threatened by militant religious extremists who oppose love marriages. The second applicant’s relatives had told the militant group of their love marriage. About one month after he was married, he was attacked by armed religious extremists. He was able to evade an attack by three or four militants by running away.
·After their marriage and after he returned to Australia, his wife was threatened and attacked by her uncles, through her brother. He had kept their marriage quiet and they had not attacked until after he had returned to Australia.
·She did not report this to the police and did not seek medical attention. Her family didn’t know that she was going to Australia. When asked why they were not targeted whilst living in Pakistan, he said they did not go out often as he knew what they could do.
·When asked about his reasons for delaying the protection application he said the first time he was focused on his studies and he intended to apply for a graduate visa. Also he did not encounter any problems on his first two trips to Pakistan.
·When asked why he would still be targeted on return to Pakistan, he said the relatives of the second applicant still ask why she didn’t marry according to their wishes.
·When asked how he had managed to live in Pakistan for four months whilst living close to both families, he said it was very hard for him. He said the relatives who are wishing to harm them do not live next door; they live somewhere else. He said the second applicant’s brother was not directly involved and used other people to do things to them.
·He cannot relocate to another area of Pakistan as there is ethnic conflict and violence in Pakistan and authorities cannot protect them and are in danger from militants themselves.
As noted above, the Tribunal took evidence from the first and second applicants (separately) at the first hearing. That evidence was incomplete when the hearing was adjourned to another day. The applicants did not attend the adjourned hearing.
At the first hearing, the Tribunal initially took evidence from the second applicant regarding her family circumstances and background in Pakistan and the circumstances of the first and second applicants’ marriage. The Tribunal then took evidence from the first applicant covering similar ground.
The second applicant gave evidence on these issues, which is summarised as follows:
·The second applicant is a Sunni and of Gujer ethnicity. She completed school through to year 12 (college).
·Before the marriage she lived with her family in [Suburb 2]. Her father died in January 2021. Her mother remains living in the same house with her brother and one sister. Two other sisters live in Karachi and [Country 1].
·Her extended family lives nearby in [Suburb 2]. Her maternal uncles ([Mr F], [Mr G], [Mr H], [Mr I] and [Mr J]) live nearby (next door) and her paternal uncle lived with her family ([Mr K]).
·Following her marriage she was living with her in-laws. She said her marriage was a love marriage and happened without the consent of their family. She said her brother and family said ‘we will kill your husband first and then you’ so she was living with her in-laws. She said her [brothers in law], their wives and children were living at that house, in [Suburb 2]. She said the house was near her parents’ house. Her in-laws’ house was number [3] and she thought her parents’ house was [1]/[2] /[3].
·She said they married on [Date 2] at her in-laws’ home. Her in-laws were present.
·She has been extremely worried and disturbed since the refusal of her visa because of threats her brother and family have made. She said efforts were made to convince her family to consent but they refused. She said the Chairman of the District Council was also contacted to step in and help with acquiring the consent but that didn’t work either. She said her father passed away and they did not inform her or consider it necessary for her to participate in the funeral.
·The Tribunal asked how she met her husband and she said they were distant cousins. They knew each other since childhood. The Tribunal asked how often they would see each other and she said, ‘Probably 2 or 3 times a week.’ She said they talked over the phone when he came to Australia.
·The Tribunal asked how often they saw each other when they were children and she said they lived in the same area and would see each other ‘regularly’. She said when they got to be teenagers ‘we realised the whole thing started’. She said this was when they were around 18 or 19. She said they had a ‘feeling’. When he came to Australia, they started talking. She later said they were talking ‘a little bit’ before he came to Australia, when they bumped into each other on the street.
·The Tribunal asked how she was able to speak to him when he called the home number and she said she ‘answered accidentally’ and it was coincidental that they spoke. She couldn’t recall when this was. The Tribunal asked if he had arranged to ring her home to speak to her before he went to Australia and she said ‘Yes’. The Tribunal asked who he had organised this with and she said no one knew in the house and no fight had occurred yet. The Tribunal asked whether this contact would be considered unusual and she said that ‘before marriage they weren’t any issues. After marriage issues started.’
·The Tribunal asked when they decided to marry and she said her in-laws were involved in her marriage. She said when the first applicant returned from Australia they decided to marry. The Tribunal asked who raised the marriage with her and she said the decision was taken by both of them mutually. This was in 2012. She said he sought permission from her parents at the beginning of 2012 when he returned to Pakistan. She said her father and brother and uncles wouldn’t agree to the marriage. They were against a love marriage as a matter of honour and religion.
·The Tribunal asked what the issue was and she said ‘prior to this whole thing there were some issues’ between the two families. She said she then ‘eloped’. The Tribunal asked what she meant by that and she said she went to her in-laws’ house and the Nikah was performed ‘in a discreet manner’ and then she moved into her in-laws’ house.
·She said her in-laws, the brothers of her husband and close friends attended the marriage. The Tribunal asked if any of her family were present and she said ‘no’. The Tribunal clarified that none of her family were present. She said her father and brother would not allow it. She said this was what she had told the Department. The Tribunal asked who her witnesses to the marriage were and she said, ‘her husband’s cousin’.
·The Tribunal raised a concern that the names on the wedding certificate were the same as her uncle’s. She said the surname was different. The Tribunal asked what her husband’s uncle’s surname was and she said she didn’t know.
·The Tribunal asked why her husband’s family were willing to participate in a wedding against her family’s wishes and without their consent, which she said was against the traditions of their religion. She said her in-laws are now deceased and that in Pakistan the issue or the matter of honour is one that is considered by the girl’s family.
·She said they loved each other and could not live without each other and that is why his family consented.
·She said that after that the first applicant applied for her visa and a fight had occurred. She said before he returned to Australia ‘small and trivial things’ happened but after he left ‘big things’ happened. She said her brother came and had a weapon to one side and said he would kill her husband when he came back, and kill her. She said her brother brought his friends with him. She said they were hitting, beating and bashing her. There was a big fight and her brother hit her and fought with her in-laws.
·She said no one complained to police because her visa was being granted and they didn’t want any issues. No one needed medical treatment. She said this went on every second or third day until she left for Australia. She said the fights continued between them and they tried to get an agreement through the council but they were not agreeing to it. No one had been to the authorities because her family had political power.
·She was last in contact with her family when her father passed away. Her mother told her about it. She said she had been contacting them to remedy issues but they were not accepting it. She said they know she has children but her family has no contact with them. When the Tribunal queried this she said her brother had not allowed her mother to have contact with her children since her father died. Prior to that they had some contact. She said she had contact with her husband’s family once every one to 2 months.
At this point the witness’ evidence was adjourned. The Tribunal then took evidence from the first applicant covering similar ground.
The first applicant gave evidence on these issues, summarised as follows:
·The first applicant is a Sunni and of Gujer ethnicity. He came to Australia on a student visa in 2007 to study [Subject 2].
·Before coming to Australia he lived with his family in [Suburb 2]. He worked on and off in transport.
·His parents are deceased. His [brothers] live in [Suburb 2]. His elder sister lives in [Suburb 3]. He told the Tribunal he was in regular contact with his family.
·He owns properties in [Suburb 2] which are managed for him by his brother. These are the properties mentioned in the documents submitted to the Tribunal. The most recent was purchased 2 or 3 years ago. All were purchased following the marriage.
·He and his wife are relatives and met as children. As they lived nearby, they saw each other all the time as children.
·The Tribunal asked what contact he had with the second applicant after he moved to Australia and he said he liked her, so he married her. The Tribunal asked if they had contact between 2007 and 2012 and he said ‘hardly’. He said he saw her at family gatherings when he returned, at their homes and at other peoples’ homes. The Tribunal asked if he raised marriage with her prior to 2012 and he said he thought he did. He said they would meet sometimes in the street as she was [an Occupation] and came and went from the house.
·He said in 2009 or 2010 he talked to his family about it but the elder brother did not agree He thought it was because he didn’t like her family. The other brothers convinced the older brother ‘it was OK’ and, in the end, he accepted it ‘50/50’. He said his father had gone to the second applicant’s family to raise marriage between the couple a long time ago and was denied. This was while he was still at college in Pakistan, in Year 11 or 12. He said his mother was pressing the marriage. The Tribunal asked if the second applicant knew about this approach and he said ‘yes’.
·He said his family, that is, his brother, raised it with her family in 2010. He said his brother met with the second applicant’s parents. He said the mother and father ‘decided we can marry’. The mother and father consented but her brother did not. It was agreed they would marry before he left to return to Australia.
·The Tribunal asked how they contacted one another and he said it was by phone on her father’s mobile number.
·His family attended the wedding but his elder brother was there ‘by force’. The second applicant’s brother did not agree and did not attend. Some of the uncles were there but not all. Her father was there for the Nikah. The food was the next day or the day after that.
·The Nikah was witnessed by his father’s friends and one relative, his mother’s brother, [Mr F].
·With respect to the evidence submitted, the first applicant indicated the Communication from Pakistan Telecommunications Authority dated 1 February 2009 titled ‘New System for Activation of SIM launched’ showed they could be tracked in Pakistan and would be unable to relocate there.

During evidence before the Tribunal the first and second applicants’ responses were inconsistent in significant aspects, including with prior evidence provided to the Department, and caused the Tribunal to have concerns that the claims of fearing harm on the basis of having entered into a love marriage in Pakistan were implausible, not consistent with the history of the relationship and not credible.
The Tribunal outlined these concerns in detail to the applicants in writing following the adjournment, pursuant to s 424A of the Act. The Tribunal notes that it did so to give the applicants notice of the concerns and an opportunity to comment or respond to them prior to a resumed hearing.
The first area of information concerned evidence regarding family members present at the first and second applicants’ wedding. The particulars of the information on this issue put to the applicants in writing were:
·In the first applicant’s application for protection, he claimed that he was at risk of harm from the second applicant’s family members and religious groups in Pakistan because the first applicant and the second applicant married for love and not through an arrangement according to Islamic tradition in Pakistan. The first applicant claimed his family members are opposed to his marriage on this basis.
·At the hearing on 4 June 2021, the Tribunal asked the second applicant about her family members. She provided details of her immediate family members and was also asked about her extended family members, including her uncles. She said a paternal uncle, [Mr K], lived with her family. She identified five maternal uncles, [Mr F], [Mr G], [Mr H], [Mr I] and [Mr J], who she said lived next door/adjacent to her family’s home.
·At the hearing on 4 June 2021, the second applicant told the Tribunal that her in-laws, the first applicant’s brothers and close friends, were present at the first and second applicants’ wedding. She told the Tribunal that none of her family members were present at the wedding. She confirmed this answer several times. Further, she told the Tribunal she ‘eloped’ by having a discreet ceremony at her in-laws’ home after which she lived at their home.
·When asked who witnessed the wedding, the second applicant told the Tribunal it was ‘my husband’s cousins’. The Tribunal asked again whether anyone from her family was present and she said her brother and father would not allow it. The Tribunal asked whether this was what she told the Department at the interview and she said ‘yes’.
·The Tribunal raised a concern with the second applicant that the witnesses listed on the Nikah Nama, registered 16 March 2012, which was provided by the applicants in support of the application for protection, appeared to have the same names as the names of the second applicant’s maternal uncles. The second applicant told the Tribunal that their surnames were different and that they (the witnesses) were the first applicant’s cousins. She said she did not know the surnames of her husband’s cousins.
·The first applicant also gave evidence at the hearing on 4 June 2021. He told the Tribunal there was a Nikah at his home and then a feast several days later. When asked who was present at the wedding, the first applicant told the Tribunal that the second applicant’s brother did not support the marriage and was only present at the Nikah. He said her father was there for the Nikah. He said that some but not all of the second applicant’s uncles were present at the wedding ceremony. When asked who the witnesses listed on the Nikah Nama were, the first applicant said his father, a friend and a relative. He also identified the witnesses [Mr F], [Mr J] and [Mr G] as the second applicant’s maternal uncles. He also told the Tribunal the second applicant’s older brother was a witness on the Nikah Nama. He said that the second applicant’s maternal uncles were also related to him as the first and second applicants were related through their mothers.
·Further, in her interview with the Department on 25 September 2015, the second applicant told the Department that her parents attended the wedding ceremony but they were not happy. She also said that her brother and sister were present. This was not consistent with her evidence before the Tribunal.
The second area of information concerned evidence regarding the first and second applicants’ relationship history. The particulars of the information on this issue arising from the first hearing and put to the applicants in writing were:
·In the application for protection and in interviews with the Department, it was claimed that the first and second applicants first met in May 2009 when the first applicant returned to Pakistan from Australia.
·At the hearing before the Tribunal on 4 June 2021 the first and second applicants said they had known each other since they were children as they were relatives.
·The second applicant said they would see each other regularly when they were younger. When they got to be teenagers ‘the whole thing started’. She said they started talking when the first applicant came to Australia. She said she accidentally answered the phone when the first applicant called her house and spoke ‘coincidentally’. She said before the marriage there weren’t any issues but they started after the marriage. She said that when he returned from Australia they decided to marry but her family were not supportive. She said the first applicant sought permission from her mother and father at the beginning of 2012 but her father, brother and uncles would not agree. She said she and the first applicant had agreed to marry in 2012. She said she went over to her in-laws’ house and got married.
·When asked how she was able to do this without her family’s consent she said she ‘eloped’. When asked what she meant by that, she said that she did the Nikah ‘in a discreet manner’ at her in-laws and then lived with them after the wedding.
·The first applicant told the Tribunal at the hearing that his father had first approached the second applicant’s family about marriage before he came to Australia, a long time ago when he was in year 11 or year 12. He said this was his mother’s and his idea. This approach was denied by the second applicant’s family.
·This was before his mother passed away. He said the second applicant knew about this approach. He said in 2009-2010 he talked to his siblings about it. He said he thought his older brother was opposed because he did not like the second applicant’s family. They convinced his older brother it was ok. In 2010, while he was in Pakistan on a visit, his brother and sister raised the possibility of a marriage again with the second applicant’s father and mother. He said the mother and father consented to the marriage but the second applicant’s brother was ‘not good’ about it. The marriage was agreed ‘in part’ before he returned to Australia from that trip. He said the second applicant was aware of this as she would have been told about it by her family. He returned to Pakistan in 2012 for the marriage. In the meantime, the applicants were communicating through the first applicant calling the second applicant on her father’s mobile phone in the evenings when her father was home.
The Tribunal indicated that this information was relevant to the review because inconsistent accounts by the applicants of the marriage, and in particular the level of participation of their families in the arrangement and conduct of the marriage, may cause the Tribunal to doubt the credibility of their claims to be at risk of harm from their families due to having entered into a love match in Pakistan. Further, evidence that family members participated in their wedding may cause the Tribunal to doubt that they were opposed to the marriage as claimed. The Tribunal explained that inconsistent accounts of the events surrounding their marriage may also cause the Tribunal to doubt the truthfulness of their evidence and claims regarding their marriage and to consider that their claims lack credibility.
The Tribunal went on to explain that if accepted, this information may cause the Tribunal not to accept that the first and second applicants have a well-founded fear of persecution if they return to Pakistan or that there is a real risk that they will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Pakistan, due to being in a love marriage or a marriage not supported by their families. If the Tribunal accepts the information, it would be the reason or part of the reason for affirming the decision under review.
In response to the invitation to comment or respond to this information, the first applicant provided the following statement, which in light of the first applicant’s later non-attendance at the hearing, the Tribunal reproduces in full:
Thanks for inviting me to respond to some confusions created because of lack of understanding of languages and unawareness of marriage rituals back home in Pakistan which are spread over several days and events.
As per the conversation quoted in the reference letter which states the contradiction, I would like to clarify it one by one regarding the first contradiction quoted that as per my statement we met in 2009 this has been misunderstood I reckon as me and my partner belong from a small village of [Suburb 2] in District Abbottabad. It is small village consisting of not more than few thousand people and everyone knows each other. My statement regarding meeting her in 2009 is in the context of the connection and my inclination towards her to get married as I saw her after a prolonged period of quite a few years as we knew each other as kids but in our society after a certain age boys and girls are separated and any sort of interaction is disliked and discouraged.
As per my statement I pursued my family members to take my proposal in 2009 after establishing that bonding and relationship with my partner in 2009. The second contradiction stated of participation of my partners family members in our marriage is created because of the lack of knowledge of traditions of marriages in Pakistan, and the anxiety issues of my wife which she has faced a lot during the hearing process which is evident and can be checked with the members of tribunal hearing the case as she sometimes cant handle the pressure of the situations and might have said something because of the certain brain fades and pressure of the situation just for example as it has been mentioned in the letter second applicant brother was a witness in Nikahnama this is against the evidence presented and his name can not be found in Nikahnama.
I would further simplify the situation for your understanding and will let you know about the dangers of prosecution we face if we have to return to Pakistan. As quoted in the above statement my partners has a paternal uncle named [Mr K] who has 3 sons [Mr L], [Mr M] and [Mr N] as I my Father-in-law is a renowned and a person of wealth his brother [Mr K] wanted one of his sons to marry my partner so he can have a huge share of my Father-in-law wealth in form of heritance and upon this happening he was the biggest threat towards me and my family.
Regarding the presence of relatives and family members at the Nikah my wife statement was caused because of lack of clarity in the question or may be she misunderstood the question in its entirety. As she eloped from her house and the nikah ceremony was organised discretely none of her female family members were present at the wedding as in our village male any female are separated and they do not share a same place or hall for Nikah my wife was in my house and upon me informing his father and brother that we will be doing Nikah they participated in the Nikah but they did not had any interaction with my wife and no one else from her family participated. As per my previous statement her father was ready for the marriage but he was under immense pressure and threats from his brother side that he did not supported us openly
My partner brother was at first reluctant and hesitant but upon his father interfering and convincing him to participate in the Nikah he did it just because my Father-in-law influence. But unfortunately my Father-in-law has passed away last year in we have lost the only supporter and well-wisher in my wife family. My partner’s brother is under immense pressure and due to continuous brain washing from his Uncle and his cousins and have made this a matter of his honour. Her uncle sons are still keen to kill me and my wife so they can make a name for themselves in the society and also\ keep all the wealth and property which should be inherited by my wife in the first place. My wife was deprived of even saying a final goodbye to her father and perform his last rituals and all of her inheritance has been confiscated by his brother and cousins. In case of me returning back alongside my family we will be under extreme danger because of their greed and sense of revenge towards me and my family.
In the correspondence, the first applicant offered to provide further details, however, the Tribunal notes he decided not to attend at the resumed hearing before the Tribunal when invited to do so. In such circumstances, the Tribunal was unable to put to the first applicant concerns regarding the response and other aspects of the applicants’ claims. These are detailed further below.
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 (Cth) (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.
Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. The Full Federal Court has held that the reference to ‘all areas of a receiving country’ means all areas ‘where there is safe human habitation and to which safe access is lawfully possible’, and that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’: FCS17 v MHA (2020) 276 FCR 644 at [80]–[81].
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.
Under s 36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. The Tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The Tribunal notes that at the time of the first hearing the current DFAT Country Information Report: Pakistan was dated 20 February 2019 (the 2019 DFAT Report). In January 2022, DFAT released an updated country information report for Pakistan – the Country Information Report: Pakistan dated 25 January 2022 (the 2022 DFAT Report). The Tribunal considered the content of that report with respect to the applicant’s claims. The Tribunal considers that the general content of the 2022 DFAT Report as it relates to the applicants’ claims is consistent with the 2019 DFAT Report and with other country information discussed at the hearing. Relevant country information is discussed further below.
Credibility assessments
The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility.[1] The mere fact that a person claims to fear persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
[1] Summaries of the principles relating to credibility findings are provided by the Federal Court in the following decisions: BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [32]–[34] per Rangiah, Perry and Bromwich JJ; CQG15 v MIBP [2016] FCAFC 146 at [36]–[38] per McKerracher, Griffiths and Rangiah JJ; DAO v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30] per Kenny, Kerr and Perry JJ.
The Tribunal does not have any responsibility or obligation to specify or assist in specifying particulars of the claim or to establish or assist in establishing a claim. This is consistent with the well-settled proposition that it is for an applicant to make their own case.[2]
[2] Re Ruddock; Ex parte ApplicantS154/2002 [2003] HCA 60 (Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ, 8 October 2003) at [57] and [1]; WAKK v MIMIA [2005] FCAFC 225 (Marshall, Mansfield and Siopis JJ, 1 November 2005) at [73].

121. The Tribunal has found that the first and second applicants are not in a love marriage and accordingly would not have an adverse profile on that basis. Further, the Tribunal has found they would not be at risk due to being returnees from the West, for the reasons detailed above. The Tribunal is not satisfied that they face a risk from generalised or extremist violence, personally, such as would amount to a real risk of significant harm for the purposes of complementary protection assessments.
122. The Tribunal is not satisfied based, on the information before it, that there are substantial grounds for believing that there is a real risk that as a necessary and foreseeable consequence of the applicants being removed from Australia to Pakistan they will suffer significant harm due to the prevailing security situation in Pakistan including violence by extremists.
123. There is no evidence, and the Tribunal does not accept that the applicants would face the death penalty, arbitrary deprivation of life or torture if they return to Pakistan.
124. Having considered the applicants’ circumstances singularly and on a cumulative basis and for all the reasons set out above, the Tribunal finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Pakistan, there is a real risk that the applicant will suffer significant harm. The Tribunal therefore finds the applicants do not satisfy the criterion set out in s 36(2)(aa).
CONCLUSION
125. For the reasons given above, the Tribunal is not satisfied that any of the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(a).
126. Having concluded the applicants do not satisfy 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 any of the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa) for a protection visa.
127. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) of the Act.
DECISION
128. The Tribunal affirms the decision not to grant the applicants protection visas.
Simone Burford
Senior Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 2361

28 June 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction