1717022 (Refugee)

1717022 (Refugee) [2021] AATA 5120 (22 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1717022

COUNTRY OF REFERENCE: Pakistan
MEMBER:Joseph Lindsay
DATE:22 October 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 22 October 2021 at 10:35am

CATCHWORDS
REFUGEE – protection visa – Pakistan – particular social group – men withdrawing from pre-arranged marriage – mixed caste relationship – Taliban attacks on military families – family land dispute – honour dispute – returnee from a Western country – fear of killing – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 31 July 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 10 April 2015. The applicant participated in a hearing with the Tribunal on 7 May 2021 and was assisted by an interpreter. The applicant was also assisted at the hearing by their appointed representative.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
In respect to his written claims for protection, the applicant provided a statutory declaration dated 10 April 2015 as follows:
l, [name], of [specified address and occupation], in the State of Victoria, do solemnly and sincerely declare as follows:
1. I make this Statutory Declaration in support of my application for a Protection (Class XA) visa with the Department of Immigration and Border Protection. In this Statutory Declaration I would like to address why I fear returning to Pakistan.
Family background
2. On [date] I was born in a village called [Village 1] which in [Town 1] in Pakistan. [Town 1] is located within the city of Attock in Pakistan. My family are Sunni Muslims and we are from the Punjab province. My family belong to [a named] caste. My parents and [siblings] are currently living in [District 1] in Attock. My sister is living in [Town 1] with her husband and children.
3. My father has worked in the Pakistani army and air force. My brothers are currently working in the air force. My father and brothers are always moving around in Pakistan due to their jobs, so they did not stay living in [Town 1]. Sometimes my father goes to live in his commercial properties in the main city Attock, as he does not have a house in [Town 1].
Family dispute over land in [Town 1]
4. In 2010, my grandfather [named] died. When my grandfather died, my father's brother [Uncle A] said that he should inherit all my of grandfather's land in [Town 1]. By Pakistani law, land must be divided equally amongst sons. My father is entitled to 1 piece of my grandfather's land. I stand to inherit this land if my father dies.
5. My uncles [Uncle A] and [Uncle B] have been living and working in [Town 1] their whole lives. Both of my uncles do agricultural work in [Town 1]. My grandfather lived at each of my uncles' houses for long periods of time in [Village 1]. At the beginning my [Uncle B] was supporting my father, but in 2014 he decided to help [Uncle A]. My uncles have a very close relationship because they have lived next to each other for their whole lives. They also have close family relations. [Uncle A’s] son is married to [Uncle B variant’s] daughter.
Court proceedings against my father
6. In 2012, [Uncle A] initiated court proceedings against my father and [Uncle B] for my grandfather's land. In 2014, [Uncle B] joined [Uncle A’s] case against my father. My uncles have been threatening my father over this land dispute.
7. When my grandfather was alive, [Uncle A] created a document and asked my grandfather to sign it. He then created a document stating that all of my grandfather's land goes to him.
8. My grandmother initiated a court case against [Uncle A] because she wants the land to go to all of her sons equally. All of my father's sisters support my father. I do not have a close relationship with my uncles, and I do not know them very well.
Arrest and detention of my father in [Town 1]
9. In 2014 the police station in [Town 1] called my father and told him he had to attend the police station. When my father went to the police station he was arrested and detained in jail for 1 night. My uncle [Uncle A] had fabricated a story about my father. I believe my uncles may have bribed officers in the police station so they could arrest and detain my father. I believe my uncle may have used his political connections to get my father arrested and detained as well.
[Uncle A’s] political connections
10. My [Uncle A] has connections with the mayor of the political party called the Pakistan Muslim League Nawaz (PMLN) in [Town 1]. My father told me that the mayor has been helping [Uncle A], because he helps the PMLN get votes in [Town 1].
11. In [Town 1], there is also a powerful man called [Leader A] who is a Lambardar. Lambardar refers to powerful families in Pakistan who are given powers by the state in their villages. [Leader A] is also part of a strong political party called Pakistan Tehreek-e-Insaf (PTI). My uncles have a very close relationship with [Leader A]. In 2014 I broke off an engagement with my cousin [Cousin A]. [Leader A] is the uncle of [Cousin A’s] father. He is angry with my father and me because I broke off the engagement with [Cousin A]. Now [Leader A] is also working with my uncles against my father.
Fear from Taliban
12. In [year] my father retired from the air force after working for I believe around [number] years. My [brothers] are currently working in the air force. I believe they have been working in the air force for over [number] years. I did not work in the air force or the army in Pakistan, because I did not want to.
13. The Taliban sent a letter threatening people who work in the Pakistani army. There are also many videos by the Taliban threatening the Pakistani army. There have been [bomb] blasts in the [District 1] airbase. Jet fighters fly from [a local] airbase to Taliban areas. My brothers are living on the [District 1] airbase and my father and brothers have fought against the Taliban.
14. I fear harm from the Taliban because they are targeting the sons of army and air force members. As my father was in the Pakistani army and air force, and my [brothers] currently serve in the air force, the Taliban have reason to harm me.
Arranged marriage with cousin
15. In 2013 my parents contacted me and told me they wanted me to get engaged to my cousin [Cousin A]. [Cousin A] is my mother's niece. The marriage was arranged by my parents and her parents. My parents asked for [Cousin A’s] hand in marriage for me but I did not know.
16. In 2014 I told my parents that I did not want to marry [Cousin A], and my uncle [Uncle C] became very angry. [Cousin B], [Cousin A’s] brother, also became angry with me because I rejected his sister. [Cousin A] moved to Attock because she thought we were going to married. Everyone in the village knew that she moved. If a man breaks off an engagement with a woman, people in the same community think that something is wrong with the woman. This will bring shame onto the woman's family.
17. [Cousin A’s] father [Uncle C] and brother [Cousin B] live in [Town 1] with my uncles [Uncle A] and [Uncle B]. [Uncle C] and [Cousin B] have a very good relationship with my uncles. [Cousin B] told my brother that if I try and marry someone else, he will make a big problem for me and harm me. [Cousin B] threatened that when I come back to Pakistan, he will be waiting for me. I fear that [Uncle C], [Cousin B] and [Leader A] will try to harm me if I return to Pakistan.
Relationship with woman of a different caste in Pakistan
18. I did not want to marry [Cousin A] because I am in love with another woman named [Ms A] who lives in Karachi in Pakistan. [Ms A] and her family are of the Muhajir caste. If I try and marry [Ms A] I might be harmed by the woman's family because I am Punjabi and also from a different caste.
Protection by Pakistani authorities
19. The authorities in Pakistan are unwilling and unable to help or protect me. The police in Pakistan are corrupt and can be easily bribed. I believe my uncles may have bribed the police in [Town 1] so that they could arrest and detain my father.
20. I fear that if I go back to Pakistan, my uncles might be able to harm me because I am not working in the air force. The air force may be able to protect my father and brothers but not me. My father cannot protect me from my uncles because he is [age] years old. My brothers also cannot protect me from my uncles because they work in the air force and have their own families.
21. If my uncles attempt to harm me, the police in Pakistan will not act because they can be bribed. Further, the Taliban in Pakistan kill the children of people who are in the Pakistani army, especially sons. If my uncles try to harm me, they can blame the Taliban because the Taliban are killing many people in Pakistan.
Applying for protection in Australia
22. [In] November 2011 I arrived in Australia. The problems in Pakistan started after I arrived in Australia. In 2014 my father's dispute with my uncles became worse and I told my family I did not want to marry [Cousin A] as well. I am applying for· Protection in 2015 because I will be at risk of serious harm if I return to Pakistan.
Why I cannot return to Pakistan
23. My uncles in Pakistan want to harm me because they want my father's land and I stand to inherit it. I also fear harm from the Taliban because they are killing the sons of men who worked in the army. My father worked in the Pakistani army and air force and my brothers are also currently working in the air force.
24. My [Uncle C], his son [Cousin B], [Leader A] and possibly other members of my mother's family in Pakistan are angry with me because I did not want to marry their daughter [Cousin A]. I also fear harm from my partner [Ms A’s] family in Karachi, as we are from different castes and I am Punjabi. If I am returned to Pakistan, I fear that I may be seriously harmed for the reasons stated above.
Prior to the hearing, the applicant provided a statutory declaration dated 29 April 2021 as follows:
1. I make this Statutory Declaration in support of my Administrative Appeals Tribunal review against the refusal of my Protection (Class XA) Visa, which was lodged on 4 August 2017.
2. In this Statutory Declaration I would like to address why I fear returning to Pakistan, on convention grounds of membership of the following particular social groups:
a. Men subject to harm for withdrawing from pre-arranged marriage;
b. Punjabi man in inter-caste relationship with a woman from the Mohajir caste.
3. I also fear harm as an imputed supporter of anti-Taliban sentiments or views because of my father and brother's occupations with the Pakistani Air Force.
4. I refer to my previous statutory declaration dated 10 April 2015 and confirm its details to be true and correct. I reiterate the sentiments expressed in such aforementioned statement.
Background
5. I was born in [Village 1], in [Town 1] located in Attock, Pakistan on [date]. My family are Sunni Muslims and we are from the Punjab province.
6. My family belong to [a named] caste.
7. My father, [named] and my mother, [named] had [number] children together, namely:
[Family details deleted].
Immigration History
8. I arrived in Australia [in] November 2011.
9. Upon receiving legal advice and becoming aware of my eligibility to apply for a Protection (Class XA) visa, I applied for such substantive visa on 10 April 2015.
10. Unfortunately, this visa application was refused on 31 July 2017.
11. I consequently lodged my appeal with the Administrative Appeals Tribunal on 4 August 2017.
12. I have not returned to Pakistan since I fled in 2011.
Refusal of Arranged Marriage
13. My parents contacted me and informed me that they wanted me to get engaged to my [Cousin A], however I vehemently refused.
14. I was formally engaged to [Cousin A] in 2012, I found out about this engagement through my sister, [named]. I was not present for the engagement and my parents 'betrothed' me to [Cousin A] without my consent. I don't believe this to be a true engagement because I did not consent to it.
15. The situation continued to escalate, and I continue to express my rejection to my parents throughout 2013 to 2014, whereby they became more insistent on enforcing their wishes for me to marry [Cousin A] against my will.
16. My [Uncle C], who is [Cousin A’s] father, and [Cousin B], [Cousin A’s] brother, also became very angry with me due to my rejection of the proposal. I live in the very isolated [Town 1]. Village cultural norms unfortunately taint a woman's reputation if she is rejected for marriage.
17. People have drawn adverse inferences of [Cousin A] due to my rejection, forming the belief that she has a shameful character, and/or engages in promiscuous and 'immodest' tendencies, such that she is unfit for marriage. As such, despite relocating to my city of Attock in hopes of our marriage, [Cousin A] is yet to be wed, and her family's rage increases as she ages.
18. In response to my adamant refusal, [Cousin B] has threatened to harm me. In 2014 he stated that if l try and marry someone else, he will create big problems for me and harm me should I return to Pakistan.
19. Further, such threats have continued up until now. I speak with my brother and sister consistently on a weekly basis, and at least every fortnight they pass on messages from [Cousin B], of him threatening to seek revenge against me for the damage that that I did to [Cousin A’s] reputation.
20. As iterated in my previous Statutory Declaration, I fear that [Uncle C], [Cousin B] and [Leader A] will try to harm me if I return to Pakistan.
Inter-Caste Relationship
21. I refused to marry [Cousin A] as I am in love with another woman named [Ms A]. [Ms A] resides in Karachi, Pakistan and is of the Muhajir caste.
22. [Ms A] and I began talking in 2010 prior to my departure from Pakistan. Our relationship strengthened and became serious around one or two years into our relationship, on/around 2011 or 2012. We fell in love with each other and soon established plans to spend the rest of our lives together.
23. We speak every day and make sure to maintain consistent communications despite our long‑distance relationship. We are sure to celebrate and cherish each other on important occasions such as Valentines Day and New Years Day, as illustrated through the evidence of our communication (submitted to the Tribunal).
24. However, our love story did not continue without its hurdles. [Ms A’s] mother discovered our relationship and was furious with disapproval as I was not from the Muhajir caste. We would try to organise our telephone calls to be in secret when her parents were sleeping in order to avoid getting caught.
25. During 2014 or 2015, [Ms A’s] mother caught us speaking and snatched the phone off of [Ms A]. She was verbally abusive, directed derogatory language towards me, and demanded that I end our relationship right away. However, I refused and remained sincere and loyal to [Ms A]. I continue to communicate with [Ms A] via her second phone, which she obtained for the purposes of speaking to me secretly.
26. These threats continued to spiral, in 2016 [Ms A’s] smother threatened that her family will definitely kill me if l come to propose and ask for [Ms A’s] hand. [Ms A] is now [age] years old and has rejected a stream of proposals from her parents and she still has hope that we will get married one day and that I will bring her to Australia.
27. However, as being unwed at such an age is frowned upon in the conservative village culture, her parents have only gotten more enraged. So much so that every two days during our phone calls, [Ms A] passes on threats that she received from her parents, that they will seriously harm me and kill me if I continue pursuing our love story.
Anti-Taliban Views
28. After [number] years of service, my father retired from the Pakistani Air Force in [year]. My [brothers] followed in his footsteps and joined the Pakistani Air Force and have been working there for around [number] years.
29. I believe that my family's affiliations with the Air Force renders me to serious harm at the hands of the Taliban extremists. The Taliban sent a letter threatening people who work in the Pakistani army and honoured their threat when they carried out [bomb] blasts in the [local] Airbase. My brothers are living [at a local] Airbase and my father and brothers have fought against the Taliban.
30. Whilst my parents and brothers are being protected in the airbase as they live there, I am not afforded the same protection as I am not a dependant and over 18 years old. Further, since I have not served in the Pakistani Air Force, they will not allow me to stay with me family and be afforded such protection against the Taliban.
Family Land dispute
31. In 2010, my [grandfather] died. When my grandfather died, my father's brother [Uncle A] said that he should inherit all of my grandfather's land in [Town 1], so much so that he forged a will attesting to his purported sole ownership. However, this contravenes Pakistani law which states that all assets and land must be divided equally between sons. I am entitled to one piece of my grandfather's land, through my father should he pass away.
32. In 2012, [Uncle A] initiated court proceedings against my father and my uncle [Uncle B] for my grandfather's land, however [Uncle B] succumbed to his power and pressure and joined him in 2014.
33. During these court proceedings, [Cousin A’s] family attended Court to show their support for my uncle's efforts against me, leaving me with no comer to turn to. Both my maternal relatives, being [Cousin A’s] family, and my paternal relatives, including my uncle and his supporters in the land dispute, have mobilised against me, and made it clear that my life is in danger for as long as I oppose them.
34. In around 2018 or 2019 my uncle not only threatened me, but the other people listed on title. He said that he is disowning them and is ending his relationship with them, including myself, and if anything, bad happens to us then he will not get involved and protect us, suggesting that an ominous danger was waiting for us.
35. I have never received any direct threats from my uncle, as I have made sure to close all lines of communication between us, as I fear for my life. However, my uncle has made sure to pass on messages through the villagers living close to him, who have then informed my siblings that it is his property, and if l continue to get involved, he will try and kill me by running me over with a tractor.
36. Just as my father was abandoned when he was falsely imprisoned, I fear that I will too be persecuted by my uncle and his supporters, and neither my maternal or paternal family will be able to protect me.
Conclusion
37. I cannot return to Pakistan due to the possibility of being subjected to persecution. I fear that [Cousin A’s] family will inflict serious harm upon me and kill me due to my refusal of their arranged marriage proposal and the subsequent 'black listing' or tarnishing of [Cousin A’s] reputation in the village. Such harm ought to be perceived in light of the death threats I have received from [Cousin B] directly, and [Uncle C] and [Leader A] indirectly.
38. Further, I am afraid that [Ms A’s] family will seriously harm me or kill me due to my inter‑caste relationship with their daughter, as has been communicated on numerous occasions by [Ms A’s] mother. Such threats have been passed onto me through [Ms A] during our regular daily telephone calls.
39. Additionally, I am terrified that the Taliban will attack me as my now retired father and [brothers], [named] serve the Pakistani Air Force. As aforementioned, the Taliban has expressed that families of members who serve in the air force are targets, as evinced by the countless attacks against civilians. I am unable to be protected by my family as they all reside in an airbase and I am excluded from such protection as I am no longer dependant and have never served in the air force.
40. Lastly, I fear that my [Uncle A] will seriously harm or kill me due to my adamant pursuit in our land dispute.
41. All my extended family is in Pakistan and I am unable to be protected from my maternal or paternal extended family due to the aforementioned reasons.
42. I believe I will be unable to relocate in Pakistan as the sources of threats, namely [Uncle A], [Leader A] and the Taliban, are powerful and have connections within all areas of the country. I have no assets in Pakistan, no substantial savings, and will struggle to survive in any area of Pakistan that I relocate to, as I will be unable to access my support network, gain employment or speak the dialect.

The Tribunal also notes that the applicant provided copies of messages and phone records between himself and [Ms A]. He provided Pakistani Air Force ID for his brothers, [named].
The Tribunal also received written submissions from the applicant’s representative dated 30 April 2021 as well as a post-hearing submission dated 24 May 2021.
In the hearing, the applicant gave evidence as follows.
The applicant said he was born in [Village 1] in [Town 1 in] Attock, in Pakistan, on [date]. He said he grew up there. He then moved with his family to [District 1 in] Attock, Pakistan. He said his father was [an occupation 1] in the Pakistani Air Force for about [number] years. His [brothers] are employed by the Pakistani Air Force, [details deleted]. Both brothers are [occupation 2s]. Both brothers are currently posted to [District 1], Attock, Pakistan. As for himself, the applicant said he did not want a career in the Pakistani military. He said that instead he studied [a specified subject]. He said [one] sister lives in the village in [Village 1].
The applicant then said he came to Australia to study in 2011. However, he said that in 2012 his parents engaged him to his cousin. He said his parents did not ask him about his wishes before they engaged him to his cousin. He said he did not want to get engaged to his cousin. He said that, at this time, he was already in a relationship with [Ms A] and he did not want to give up that relationship.
The Tribunal queried the applicant about the circumstances in respect to his relationship with [Ms A]. The applicant indicated that he was aware that he left Pakistan around one decade ago and that a long time had passed. However, the applicant maintained that he was still in a relationship with [Ms A] and that his cousin is still in the village. He indicated that neither [Ms A] nor his cousin had “moved on” in the almost 10 years he had been away from Pakistan. He indicated that neither [Ms A] nor his cousin had married, despite the lapse of time of about a decade. The applicant acknowledged that his relationship with [Ms A] could be described as a very old long-distance relationship, given that it had been going on for about 10 years. He said that [Ms A] is now [age] years old and that her parents want her to marry someone else, but that she has resisted pressure from her parents to get married. The applicant indicated that [Ms A] is a well-educated woman. He indicated that [Ms A] was independent and earning her own money. He indicated [Ms A] worked for a [business] and held [a qualification].
When the Tribunal asked the applicant what his primary fear was in returning to Pakistan, he indicated that the primary fear was in respect to his uncle. He indicated that the issues in respect to the land dispute remained unresolved and the dispute was still the subject of litigation in the courts in Pakistan. The applicant claimed that at around the time he came to Australia, his father put some land in the applicant’s name, and that this was done in order to assist the applicant to finance his studies.
When asked why, given the lapse of nearly a decade since he left Pakistan, he was still fearful of his uncle, the applicant responded that his uncle wanted to take ownership of all of the property. The applicant said there is a lot of property and that his uncle would do anything to get ownership of all of the property. When the Tribunal asked the applicant whether he believed that his uncle would kill him in order to get ownership of all of the property, he said “yes.”
When asked what caused him to believe that his uncle would kill him in order to get ownership of all of the property, the applicant said that the last time he visited the farm during [harvest] season, his uncle tried to use his acquaintances to threaten his father and told him to get out of there.
When asked what the most recent threat from his uncle was, the applicant said that his uncle had been calling his father and brothers asking them to withdraw the case. He said that his uncle had been verbally abusive and threatening to his father and brothers.
When the applicant was asked about whether he had communicated with his uncle recently, the applicant said he had not been in contact with his uncle. He indicated that his uncle was managing the property while the court case was going on. He said that his father goes to the property sometimes, but his uncle does not let his father go into the property.
When the Tribunal asked the applicant whether his uncle had ever threatened him personally, the applicant said that his uncle had never threatened him and his uncle had not been in contact with him. However, the applicant indicated that he was concerned that his uncle would have motivation to harm him because the applicant’s father had made a will in which the applicant’s father had bequeathed his share in the land to the applicant.
When the Tribunal asked the applicant whether his father was still alive, the applicant responded that his father was still alive.
When the Tribunal asked the applicant about his visa history in Australia, the applicant said that he had previously held several student visas. The applicant said that he wanted to complete a [specified] degree, but he could not because he was mentally disturbed and had to go to the doctor many times. When the Tribunal asked the applicant whether he had any paperwork from a medical practitioner in respect to any diagnosed mental health conditions, the applicant responded that he did not have any such paperwork and he did not have any diagnosis of any mental health conditions.
When the Tribunal asked the applicant why he waited until 2015 before he applied for a protection visa, the applicant responded that he had the impression that the “issue” might resolve at some point. The applicant also said that sometime around 2014 to 2015, [Ms A’s] mother found out about the relationship.
When the Tribunal asked the applicant whether anyone had ever threatened him personally, the applicant responded that his uncle has never threatened him, but that [Ms A’s] mother had been verbally abusive to him over the phone and told him that if he did not leave her daughter alone it would not be good for him. When asked why [Ms A’s] mother did not want the applicant and [Ms A] to be together, the applicant said that he and [Ms A] belong to different castes, and he indicated that it was not socially acceptable for people from different castes to become romantically involved or marry.
When the Tribunal asked the applicant about his other claims, the applicant indicated that he believed that because his brothers were employed with the Pakistani military, he believed that the Taliban would have an interest in harming him. The applicant then said that he thought his uncle would harm him but then try to blame the Taliban. The applicant said that his uncle has political connections and influence.
When the Tribunal asked the applicant whether his father or brothers had ever been harmed, the applicant responded that his father and brothers had never been harmed.
When the Tribunal put to the applicant that he had claimed that his father and brothers had never been harmed despite the political connections and influence of his uncle, in response, the applicant said that his father and brothers had never been harmed but his uncle had made up a false case that got his father in jail for one day.
When the Tribunal asked the applicant whether he had any country information about any current threats or attacks by the Taliban on family members of Pakistan military members, he said that there was a report about the killing of the children of Pakistani Army members in Peshawar.
When the Tribunal asked the applicant about the part in his submissions where he said he thought his uncle would run him over with a tractor, the applicant said that the basis of this statement was that there as an incident between his father and uncle where his uncle threatened his father and told his father he would run his father and the applicant over with a tractor. However, in subsequent questioning by the Tribunal, the applicant admitted that he himself did not have any experience in operating a tractor and in fact did not know how to drive a tractor. When the Tribunal put to the applicant that tractors generally don’t go that fast, the applicant responded that he thought his uncle was trying to say that he would crush him and his father if they went to the land. When the Tribunal asked the applicant whether it may have just been “hot air” and venting from his uncle rather than any serious threat of harm, the applicant said that he believed it was not an empty threat because there had been instances where people in Pakistan had been killed in respect to land disputes. When the Tribunal put to the applicant that the court case had gone on for a long time and it was likely that the court case would continue to go on for some time, even if the applicant returned to Pakistan, the applicant responded that he agreed that the court case would continue to go on for some time and there would probably be no resolution of the case.
When the Tribunal asked the applicant why he thought his uncle would harm him if there was probably not going to be a resolution of the case, the applicant responded that his uncle gets the benefit of the land. The applicant said that the land is currently not being used and is not being productive due to the ongoing court case.
When the Tribunal asked the applicant if there were any other claims he wanted to make, the applicant said he was concerned that given he had been in Australia for about 10 years, he might be labelled as a “Westernised person” if he went back to Pakistan. The applicant said he was concerned that his uncle would provoke people to harm the applicant due to his status as a “Westernised person.” In respect to why he thought his uncle would do such a thing, the applicant said that his uncle would find a reason, any reason, to get other people to harm the applicant.
When the Tribunal asked the applicant if there were any other claims he wanted to discuss, the applicant said that in respect to the engagement to his cousin, [Cousin A], he believed that [Cousin A’s] family would probably harm the applicant if he returned to Pakistan.
The Tribunal then spoke to the applicant about where in Pakistan he would go to if he returned to Pakistan. In response, the applicant said he could not afford to go anywhere. The applicant said he was not financially stable enough to live anywhere in Pakistan. He said that he thought he would not be able to get a job, and that the effects of COVID-19 would also impact his ability to get a job. When asked if he could go to Islamabad, the applicant indicated that it was expensive to live in Islamabad. When the Tribunal put to the applicant that he had said he held a [Qualification 1] and asked him if he could get a job in [the related field] if he went back to Pakistan, in response, he said that it had been quite a while since he had worked in a job associated with [that field]. He said he had worked in Australia as [an occupation 3] but that [occupation 3] jobs were limited in Pakistan. He said that [such] jobs in Pakistan were not a “proper position” like in Australia.
When asked if he could go and live with or near his brothers, the applicant responded that he believed that it would make it easier for him to be “traced” if he lived near his brothers.
The Tribunal then spoke to the applicant about the information his representative had provided to the Tribunal, where the representative had submitted that the applicant belonged to two Particular Social Groups (PSGs) being:
a. Pakistani men who have refused pre-arranged marriage; and
b. Punjabi man in inter-caste relationship with a woman from the Mohajir caste.
The Tribunal then spoke to the applicant about the information in the DFAT Country Information Report for Pakistan dated 20 February 2019 (DFAT report). The Tribunal put to the applicant that the Tribunal may find that the information in the DFAT report may indicate that the applicant may not face a particularly high risk of harm simply because the applicant was a member of either PSG. The Tribunal put to the applicant that the Tribunal had considered the country information from the representative on these issues, but that the country information from the representative was relatively old information and that the relevant test for the Tribunal in respect to the chance or risk of harm to the applicant should he return to Pakistan was a forward‑looking test. The Tribunal put to the applicant that he had admitted that he had never been harmed when he was in Pakistan but that he said that he had received threats. The Tribunal put to the applicant that, subject to his response, that given the applicant’s circumstances and the country information, the Tribunal may find that there is neither a real chance of serious harm or a real risk of significant harm to the applicant should he return to Pakistan in the foreseeable future. In response, the applicant said that one of the reasons why he had not been harmed was because he had been in Australia. He said that there was the issues of the property dispute and the ongoing relationship with [Ms A].
The Tribunal spoke to the applicant about the issues surrounding his claimed relationship with [Ms A]. The Tribunal put to the applicant that his representative in his submissions referred to the issue of honour killings, as referred to in the DFAT report. The Tribunal put to the applicant that the DFAT report information was largely concerned with the risk of honour killings in respect to women, and not generally in respect to the men involved in such situations. The Tribunal put to the applicant that the Tribunal may find that while the applicant in his circumstances faces some risk in respect to honour killings, that risk of harm to the applicant is low should he return to Pakistan in the foreseeable future. In response, the applicant said that the risk he faces was because he refused to marry his cousin, [Cousin A]. He said that given this situation, [Cousin A] had a target on her. The applicant said that [Cousin A’s] brothers would hold the view that if the applicant was not going to marry [Cousin A], he would not be allowed to marry anyone else. When asked if he had received threats from [Cousin A’s] brothers, he said [Cousin A’s] brother called his brother and said that if the applicant was not going to marry [Cousin A] he was not going to marry anyone, and that [Cousin A’s] brothers will deal with the applicant “in a very bad way.” When asked when this threat was made, the applicant said he did not know the exact date but it was in either 2018 or 2019. When asked how he found out about the threat, he said he spoke to his brother who told him so.
The Tribunal spoke to the applicant about the information at paragraph 3.203 of the DFAT report that stated:
Family members carry out honour killings against relatives perceived to have brought dishonour on the family by refusing an arranged marriage, forming a romantic attachment not approved by the family or, in the case of girls, for dress or behaviour deemed insufficiently modest. While young men can be targets of honour killing, most victims are female (Tribunal emphasis).
The Tribunal put to the applicant that the word “relatives” does not just extend to the applicant, but rather it also extended to his parents and siblings, and yet the applicant had admitted to the Tribunal that despite all the years that have gone by, his parents and siblings had not been harmed. The Tribunal acknowledged that the applicant had submitted that his parents and siblings had been protected from harm as a result of their association with the Pakistani military, but that if the threat really was a serious threat that despite his parents’ and siblings’ association with the Pakistani military, they would have been harmed, or been subject to some attempt of harm, by now. In response, the applicant said that it was himself that rejected the relationship. He said that it was his parents who had gone ahead with the engagement. He said that it was himself who was primarily the subject of the chance or risk of harm because it was himself that did not follow through on the marriage.
The Tribunal put to the applicant that he had spoken at length about his family’s association with the Pakistani Air Force. The Tribunal put to the applicant that the Tribunal may find that because of the applicant’s attachment to his family who has associations with the Pakistani Air Force, the likelihood of harm happening to the applicant from anyone connected to either his cousin’s family or [Ms A’s] family is likely to be low. In response, the applicant said that he did agree that his family had some level of protection in Pakistan. However, the applicant maintained that he would not be protected and the likelihood of harm was mainly directed to himself and not his family members. The applicant said that it was him who decided not to go ahead with the engagement with his cousin and it was him who decided that he wanted a relationship with [Ms A] and it was him that had the land dispute with his uncle.
The Tribunal then spoke with the applicant about the land dispute. The Tribunal put to the applicant that the DFAT report made very limited reference to the issue of land disputes in Pakistan. The Tribunal put to the applicant that the issue of the land dispute appeared to be primarily between the applicant’s uncle and the applicant’s father. The Tribunal put to the applicant that the applicant had indicated that at some stage should his father win the land dispute in the court, and if his father gets the farm, there was a chance that the applicant might inherit the farm due to his father’s will. In response, the applicant said “yes.” The Tribunal put to the applicant that he was speaking about possibilities that might happen in the future, but that in the reasonably foreseeable future it remained the case that the issue of the land dispute was primarily between the applicant’s uncle and the applicant’s father because the ongoing court case was between them. The Tribunal put to the applicant that while the applicant’s uncle might have vented threats in respect to the applicant and the applicant’s father, the applicant’s uncle has not followed through with the threat to harm the applicant’s father. The Tribunal put to the applicant that while there is a potential for the applicant to be the subject of harm by his uncle, the primary risk from the applicant’s uncle appeared to be in respect to the applicant’s father, yet despite his father being retired from the Pakistani Air Force his father still had not been harmed by the applicant’s uncle. The Tribunal put to the applicant that the Tribunal may find, given these circumstances, that the risk of harm to the applicant from the applicant’s uncle was low if the applicant were to return to Pakistan in the foreseeable future. In response, the applicant said that firstly the applicant’s uncle had made his view public to everyone, and secondly his father has been living with the applicant’s brother, and thirdly the applicant has not been harmed because he has been living in Australia. The applicant indicated that he believed his uncle would definitely harm him if he returned to Pakistan. The applicant said he believed that even if the risk of harm to himself was low, he believed he would still be killed if he went to Pakistan.
The Tribunal put to the applicant that in his written claims he had indicated that he believed that there was a threat from the Taliban to the Pakistani Air Force. The Tribunal put to the applicant that the Tribunal was not suggesting that there was no risk to the Pakistani military from the Taliban. However, the Tribunal put to the applicant that the risk of harm from the Taliban to the applicant in his capacity as a family member who is related to a member or members or a former member of the Pakistani Air Force appeared to be low. The Tribunal put to the applicant that there appeared to be a number of reasons for the proposed finding, including that the applicant had been away from Pakistan for many years and there was little indication of the applicant attracting attention to himself from the Taliban or people connected to the Taliban who had directly threatened to him personally. The Tribunal also referred to the country information detailed in the written submission dated 30 April 2021, and noted the reports from 2015 about an attack on a Pakistani Air Force base in Peshawar but that this information was now some six years old. In response, the applicant said he did not wish to make a response to the Tribunal on this matter.

The Tribunal spoke to the applicant about his claim that he was concerned about his risk of harm because he had lived in a Western country and how he might be treated if he went back to Pakistan. The Tribunal referred to the DFAT report about this aspect at paragraph 5.45 that states:
DFAT assesses that returnees to Pakistan do not face a significant risk of societal violence or discrimination as a result of their attempt to migrate, or because of having lived in a western country (emphasis by Tribunal).
The Tribunal put to the applicant that the Tribunal may find that there would be a low risk of harm to the applicant because of having lived in a Western country. In response, the applicant said the threat he faced was from his uncle. The applicant said that his uncle would attempt to provoke uneducated people into harming the applicant because he had lived in a Western country. The applicant referred to a recent protest in Islamabad to remove the French embassy.
The Tribunal spoke to the applicant about his claim about the effects of COVID-19 on Pakistan and how that might impact on his ability to obtain employment if he should return to Pakistan. The Tribunal noted that the DFAT report was produced before the impact of COVID‑19. The Tribunal referred to information from the World Bank dated 5 April 2021[1] about the Pakistani economy that stated in part:
ISLAMABAD, April 6, 2021— Notwithstanding, the recent rise in COVID cases, Pakistan has been showing signs of a fragile economic recovery with a gradual resumption of economic dynamism, according to a new World Bank report.
Pakistan’s economic growth is expected to reach 1.3 percent in FY2021 and strengthen to an average of 2.7 percent for FY2022-23, according to the Pakistan Development Update released today. The baseline economic growth forecast, however, is highly uncertain, especially given the third and more-contagious wave of the pandemic currently circulating in the country.
Private consumption is estimated to have picked up over July to December 2020, in part due to the record increase in remittances inflows, social assistance support from the Ehsaas program, the government’s construction package, and a return to pre-COVID mobility levels from September 2020. Investment is also estimated to be recovering, as machinery imports and cement sales both recorded double-digit growth rates during this period.
“It is crucial to sustain the positive reform momentum to continue to boost the competitiveness of Pakistan’s economy and lay a strong foundation for a more robust, inclusive and sustainable recovery,” said Najy Benhassine, World Bank Country Director for Pakistan. “Increasing competitiveness and stimulating private investment and exports will require continued macroeconomic stability, maintenance of a market-determined exchange rate, and improving the business environment to enable all firms, particularly SMEs, to access markets and compete openly in a level playing field. The potential for a strong recovery and a growth acceleration is there. Reforms to make it happen need to be further sustained.”
[1] The World Bank, 5 April 2021, Pakistan’s Economy Shows Signs of a Nascent Recovery, accessed 7 May 2021.
The Tribunal put to the applicant that, in consideration of the above information from the World Bank, the Tribunal may find that despite the impact of COVID-19 the Pakistani economy was continuing to grow. The Tribunal put to the applicant that the Tribunal may find that if the applicant went back to Pakistan in the foreseeable future, given his education and work history, the applicant may not face significant economic hardship that would threaten his capacity to subsist. In response, the applicant said that he would have a lot of difficulty getting work in Pakistan due to the high unemployment situation. The applicant said that he would not die due to economic hardship. However, he said that the main issue is that he would be targeted if he went back to Pakistan.
The Tribunal spoke to the applicant about his ability to relocate to Islamabad should he choose to return to Pakistan, and put to the applicant that despite his concerns about the expense involved in living in Islamabad, the Tribunal may find that the applicant would be reasonably able to relocate to Islamabad should he return to Pakistan. In response, the applicant said that Islamabad was about two hours away from his home town and if he was in Islamabad he would be easily traced by his uncle.
When the Tribunal asked the applicant whether there were any other claims he wished to make or whether he wished to discuss anything that he thought the Tribunal had not discussed with him, he responded “no.”
The Tribunal then spoke to the applicant’s representative. The representative requested the Tribunal to consider:
-the COVID-19 spike in India and the impact on the Pakistani economy;
-there was a risk of honour killings to men; and
-the applicant’s [recent work experience] and the consequent ability on the applicant’s ability to find work in Pakistan.
Analysis and findings
The Tribunal notes that the applicant’s representative provided written submissions dated 24 May 2021. The Tribunal has considered the information in this submission. The Tribunal has carefully considered the claims and evidence before the Tribunal.
Family dispute over land in [Town 1]
The Tribunal has considered the applicant’s claim that he will be harmed by his uncle should he return to Pakistan in the foreseeable future. The Tribunal accepts that there is a land dispute between the applicant’s uncle and the applicant’s father. The Tribunal accepts that the land dispute is currently before the courts in Pakistan and that it may be some time before the issue is resolved by the Pakistani court. The Tribunal accepts that there may be some ill‑feeling between the applicant’s uncle and the applicant’s father. The Tribunal accepts that the applicant’s father has made a will and has bequeathed his share in the disputed property to the applicant. The Tribunal accepts that, because of these circumstances, the applicant’s uncle may also have some ill-feeling towards the applicant because the applicant’s uncle wishes to keep the disputed property for himself. The Tribunal has considered the country information provided and accepts that land disputes do occur in Pakistan and that there have been instances of violence in connection with land disputes in Pakistan. The Tribunal accepts that the applicant’s uncle has threatened harm in respect to the applicant. However, for the following reasons, the Tribunal is not persuaded that the applicant faces either a real chance of serious harm or a real risk of significant harm from his uncle should he return to Pakistan in the foreseeable future. The Tribunal accepts that the applicant’s father, the primary person who is currently engaged in the land dispute with the applicant’s uncles, was arrested and detained for one night by the local police many years ago but has otherwise not been harmed by the applicant’s uncles. The Tribunal accepts that the applicant’s uncle might have some connection to local politicians. However, despite all these circumstances and the significant length of time involved in this matter, the Tribunal does not accept that the applicant’s father has been subjected to either serious harm or significant harm by the applicant’s uncles. The Tribunal accepts that it is likely that a significant factor in the reasons why the applicant’s father has not been harmed is due to his status as a former member of the Pakistani Air Force. Accordingly, while the Tribunal accepts that there may be some risk of harm to the applicant in connection with the land dispute with his uncles, the Tribunal does not accept that the risk meets the threshold of either a real chance of serious harm or a real risk of significant harm.
Issues surrounding the applicant’s cousin, [Cousin A], and the applicant’s relationship with his long‑term girlfriend, [Ms A]
The Tribunal has considered the applicant’s claim that he will be harmed by his cousin’s family ([Cousin A]) or his long‑term girlfriend’s family ([Ms A]) should he return to Pakistan in the foreseeable future.
The Tribunal accepts that many years ago, the applicant’s parents made an arrangement for him to marry his cousin, [Cousin A]. The Tribunal accepts that the applicant did not want to marry his cousin, [Cousin A], and he still does not want to marry his cousin, [Cousin A]. The Tribunal accepts that [Cousin A’s] family probably were not happy that the applicant did not want to marry [Cousin A]. However, for the following reasons, the Tribunal is not persuaded that the applicant faces either a real chance of serious harm or a real risk of significant harm from [Cousin A’s] family should he return to Pakistan in the foreseeable future. Firstly the event concerned, which was the arrangement of the engagement between the applicant and [Cousin A], happened many years ago. So long ago in fact that the Tribunal does not accept that the ill-feeling that may have been held towards the applicant by [Cousin A’s] family remains at such a level that would reasonably support a conclusion that the applicant faces either a real chance of serious harm or a real risk of significant harm from [Cousin A’s] family should he return to Pakistan in the foreseeable future. The Tribunal has considered the country information and accepts that in Pakistan there have been men, as well as women, have been subjected to “honour” violence due to their refusal to enter into an arranged marriage. Accordingly, the Tribunal accepts that, as a man who has refused to enter into an arranged marriage, there is a chance that the applicant could face harm on his return to Pakistan. However, in respect to the likelihood of harm to the applicant in these circumstances, the country information in the DFAT report as well as in the article[2] referred to in the submissions indicates that it is women who are predominantly the recipients of such violence in Pakistan. If anything, the Tribunal accepts that it is [Cousin A] who is far more likely to face harm than the applicant – and yet she is still alive.
[2] Dawn Newspaper, 19 February 2020, Imtiaz Ali, 510 women, 259 men fell prey to ‘honour;’ killing during five years in Sindh, accessed 20 October 2021.
The Tribunal accepts that there may have been further mutterings of discontent from [Cousin A’s] family about the applicant’s decision not to marry her. However, given the significant lapse of time, the Tribunal is not persuaded that the more recent mutterings of discontent from [Cousin A’s] family reasonably amount to any serious threat of harm to the applicant should he return to Pakistan.
In respect to the applicant’s claimed relationship with [Ms A], the Tribunal accepts that the applicant has had a long‑term and long-distance relationship with [Ms A]. The Tribunal accepts that [Ms A] may belong to a different caste to the applicant. The Tribunal accepts that [Ms A’s] family may not approve of [Ms A’s] relationship with the applicant because he belongs to a different caste to her. The Tribunal has considered the country information and accepts that there have been incidents of violence in Pakistan due to “inter‑caste” relationships.
Accordingly, the Tribunal accepts that, as a Punjabi man in an inter‑caste relationship with a woman from the Mohajir caste, there is a chance that the applicant could face harm on his return to Pakistan. However, in respect to the likelihood of harm to the applicant in these circumstances, the country information in the DFAT report, as well as in the submissions, indicates that it is women who are predominantly the recipients of such violence in Pakistan. If anything, the Tribunal accepts that it is [Ms A] who is far more likely to face harm than the applicant – and yet she is also still alive.
The Tribunal accepts that the applicant may have been the recipient of verbally abusive language from [Ms A’s] mother about the applicant’s wish to pursue a relationship with [Ms A]. However, given the significant lapse of time, the Tribunal is not persuaded that the verbal abuse [Ms A’s] family reasonably amounts to any serious threat of harm to the applicant should he return to Pakistan.
Potential threat from Taliban
The Tribunal has considered the applicant’s claim that he will be harmed by the Taliban should he return to Pakistan, whether it be as a result of any actions by the applicant’s uncle or whether it be due to the applicant’s connection to his family members who have current as well as historical connections to the Pakistani military.
In respect to the applicant’s claims that his uncle might try and use the Taliban, or blame the Taliban, in respect to any harm to the applicant, the Tribunal is not persuaded that this is a likely outcome should the applicant return to Pakistan. As indicated above, the Tribunal accepts that the applicant’s uncle may have ill-feeling towards the applicant and that the applicant’s uncle may have political connections. The Tribunal does accept that it is possible, like anything is possible, that the applicant’s uncle might try and use the Taliban, or blame the Taliban, in respect to any harm to the applicant. However, the Tribunal finds the risk of this potential outcome to be very remote and very unlikely should the applicant return to Pakistan in the foreseeable future.
In respect to the applicant’s claim that the Taliban might harm him due to the applicant’s connection to his family members who have current as well as historical connections to the Pakistani military, the Tribunal is also not persuaded that this is a likely outcome should the applicant return to Pakistan. The Tribunal accepts that the applicant’s father is retired from the Pakistani Air Force and that the applicant’s brothers are employed with the Pakistani Air Force. The Tribunal has considered the country information and accepts that there have been previous instances where family members of people in the Pakistani military have been killed by the Taliban. However, it has been a significant period of time since such attacks have occurred. The Tribunal accepts that there may be some risk to the applicant from the Taliban who might harm him due to the applicant’s connection to his family members who have current as well as historical connections to the Pakistani military. However, in respect to the likelihood of harm to the applicant in these circumstances, the country information in the DFAT report, as well as in the submissions, indicates that it is the current serving Pakistani military members, their families, as well as ordinary civilians who have nothing to do with the Pakistani military, who have been the recipients of such violence in Pakistan. If anything, the Tribunal accepts that it is the applicant’s father and the applicant’s brothers who are far more likely to face harm than the applicant – and yet they are also still alive. The Tribunal does accept that it is possible, like anything is possible, that the applicant might face a risk of harm from the Taliban due to the applicant’s connection to his family members who have current as well as historical connections to the Pakistani military should the applicant return to Pakistan in the foreseeable future. The Tribunal accepts that the applicant may have an imputed political opinion, namely anti-Taliban views due to his father’s and brother’s occupations with the Pakistani Air Force. However, given the significant lapse of time that the applicant has been away from Pakistan and the lack of imminent threat from the Taliban to the applicant personally, the Tribunal finds the risk of harm to the applicant due to the applicant’s connection to his family members who have current as well as historical connections to the Pakistani military to be remote and unlikely should he return to Pakistan in the foreseeable future.
Treatment of returnees from the West
The Tribunal has considered the applicant’s claim that he may be harmed if he returned to Pakistan due to his status as a “returnee from the West.” The Tribunal accepts that the applicant would be a “returnee from the West” if he returned to Pakistan because he has spent so many years in Australia. The Tribunal has considered the DFAT report about this aspect at paragraph 5.45 that states:
DFAT assesses that returnees to Pakistan do not face a significant risk of societal violence or discrimination as a result of their attempt to migrate, or because of having lived in a western country (emphasis by Tribunal).
The Tribunal places high weight on this information in the DFAT report. The Tribunal has considered the applicant’s submissions that the applicant’s uncle would attempt to provoke uneducated people into harming the applicant because he had lived in a Western country. However, given the country information, the Tribunal finds this potential outcome to be remote and unlikely should he return to Pakistan in the foreseeable future.
Impact of COVID-19 on applicant’s ability to subsist in Pakistan
The Tribunal has considered the applicant’s claim about the effects of COVID‑19 on Pakistan and how that might impact on his ability to obtain employment if he should return to Pakistan. The Tribunal has considered the DFAT report and accepts that the DFAT report was produced before the impact of COVID-19. The Tribunal has considered the information from the World Bank dated 5 April 2021[3] about the Pakistani economy that stated in part:
ISLAMABAD, April 6, 2021— Notwithstanding, the recent rise in COVID cases, Pakistan has been showing signs of a fragile economic recovery with a gradual resumption of economic dynamism, according to a new World Bank report.
Pakistan’s economic growth is expected to reach 1.3 percent in FY2021 and strengthen to an average of 2.7 percent for FY2022-23, according to the Pakistan Development Update released today. The baseline economic growth forecast, however, is highly uncertain, especially given the third and more-contagious wave of the pandemic currently circulating in the country.
Private consumption is estimated to have picked up over July to December 2020, in part due to the record increase in remittances inflows, social assistance support from the Ehsaas program, the government’s construction package, and a return to pre-COVID mobility levels from September 2020. Investment is also estimated to be recovering, as machinery imports and cement sales both recorded double-digit growth rates during this period.
“It is crucial to sustain the positive reform momentum to continue to boost the competitiveness of Pakistan’s economy and lay a strong foundation for a more robust, inclusive and sustainable recovery,” said Najy Benhassine, World Bank Country Director for Pakistan. “Increasing competitiveness and stimulating private investment and exports will require continued macroeconomic stability, maintenance of a market-determined exchange rate, and improving the business environment to enable all firms, particularly SMEs, to access markets and compete openly in a level playing field. The potential for a strong recovery and a growth acceleration is there. Reforms to make it happen need to be further sustained.”
[3] The World Bank, 5 April 2021, Pakistan’s Economy Shows Signs of a Nascent Recovery, accessed 7 May 2021.
The Tribunal placed high weight on this country information as referred to above. The Tribunal has also considered the country information provided in the written submissions to the Tribunal. The Tribunal does accept that COVID-19 is an issue that is affecting Pakistan and neighbouring countries such as India. Indeed, the Tribunal accepts that COVID-19 is an issue that is affecting the whole world at this time. The Tribunal accepts that the effects of COVID‑19 have had an effect on the Pakistani economy. However, the Tribunal accepts that the applicant is educated because he holds a [Qualification 1]. The Tribunal accepts that the applicant does not have recent work experience in the area of [his qualification], but the Tribunal does accept that the applicant has work experience as [an occupation 3] in Australia. The Tribunal accepts that the type of [work] that the applicant may be more used to [performing] in Australia is different from the [type] that the applicant would be required to [perform] should he obtain employment as [an occupation 3] in in Pakistan. The Tribunal is not satisfied that the applicant’s implied political opinions or associations are likely to have a particularly significant impact on the applicant’s ability to find employment in Pakistan.

However, in balancing the above information, the Tribunal is not satisfied that if the applicant went back to Pakistan in the foreseeable future, given his education and work history, the applicant would face significant economic hardship that would threaten his capacity to subsist.
Relocation
In consideration of the information available to the Tribunal, the Tribunal is not satisfied that there is a need for the applicant to relocate to another area in Pakistan. Given the applicant’s continued contact with his family in Pakistan, the Tribunal is satisfied that the applicant would reasonably have access to family support should he return to his home location in Pakistan in the foreseeable future.
Mental health
The issue of the applicant’s mental health was raised with the Tribunal. However, in considering the DFAT report, the Tribunal accepts that the applicant would be reasonably able to access mental health support services should he require them if he were to return to Pakistan in the foreseeable future.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Joseph Lindsay
Member

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

[2021] AATA 5120

22 October 2021

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Standing

Statutory Construction

Remedies