1717217 (Refugee)

[2022] AATA 1521

1717217 (Refugee) [2022] AATA 1521 (2 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1717217

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Peter Vlahos

DATE:2 March 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

This Statement was made on 2^nd March 2022 at 1.00PM

CATCHWORDS
REFUGEE – protection visa – Pakistan – particular social group – Pakistani men in an inter-caste relationship – honour-killing – forbidden relationship with a cousin – voluntary return to home country – land dispute – mental health care in Pakistan – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5L, 5LA, 36, 65, 91R
Migration Regulations 1994 (Cth), Schedule 2

CASES
Guo v Minister for Immigration and Multicultural Affairs (1996) 64 FCR 151
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 2 August 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Pakistan, applied for the visa on 22 May 2015. The delegate refused to grant the visa on the basis that the application for Protection visa did not satisfy sub-section 36(2) of the Act.

3. The applicant made an application to the Tribunal to review the delegate’s decision on 7 August 2017

4. A hearing of the applicant’s Application for review of the delegate’s decision by the Tribunal was scheduled on 22 March 2021.

5. The applicant was assisted at the hearing by an in interpreter in the Urdu and English languages and was represented by his lawyer and registered migration agent.

6. The applicant provided witnesses for examination at the hearing who were heard via the telephone link from Pakistan and in person.

   CRITERIA FOR A PROTECTION VISA

7. 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.

8. 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.

9. 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).

10. 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.

11. 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

12. 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

13. The issue in this case is whether Australia has protection obligations in respect of [the applicant]. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Country of origins and personal identity

14. Based on a copy of the applicant’s passport, which was provided to the Department of Home Affairs (the ‘Department’) and to the Tribunal at the hearing and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of the Islamic Republic of Pakistan and has had his claims (as presented) assessed against that country in relation to his claims made pursuant to s. 36(2)(a) and 36(2)(aa) of the Act and on the basis of this evidence currently before the Tribunal, the Tribunal further accepts and finds the applicant’s identity as is claimed for the purposes of this decision.

    Department file before the Tribunal

15. The Tribunal has before it the Department’s file relating to the applicant’s Application for Protection visa. The Tribunal also has had regard to the material and information referred to in the delegate’s decision record. The applicant provided a copy of this decision record to the Tribunal with his Application to review the Department’s decision.

    Background – the Applicant’s migration/visa history

16. In 2004 the applicant commences a relationship with [Ms A][1] and [in] May 2005 he travels to [Country 1] for a holiday (1.5 months).[2] [In] May 2007 [Ms A] aged [age] is killed by her brother [Mr B] for being in a relationship with the applicant.[3] [In] June 2007 the applicant is shot by [Mr B] and [Mr C] at his [Neighbourhood 1] home.[4] Between 2007-2009 applicant spends two years inside his home with few excursions outside the house during this time as he and his family were being watched and threatened.[5] On 10 May 2008 the applicant sits for an IELTS examination[6]. On 27 May 2009 the applicant lodges a [student] visa application whilst offshore. On 10 December 2009 the applicant was granted a [student] visa. On 17 December 2009 the applicant drops court case against [Mr B] and his family in the final court hearing over the shooting.[7] [In] January 2010 the applicant travels to [Country 1] to visit his family. [In] February 2010 the applicant arrives in Australia. In mid-2010 [Mr D] (aka [Alias]) leaves [Country 1] and returns to Pakistan.[8] At that same time, the applicant was warned by his family that there were threats against his life and not to return to Pakistan.[9] On 12 March 2011 the applicant lodges a [student] application onshore. On 28 April 2012 the applicant is granted a [student] visa. On 12 June 2013 the applicant lodges [student] visa application onshore. On 14 February 2014 the applicant seeks review of his [student] visa refusal decision. In 2015 [Mr E] arrives in Australia as a student and moves into the same house with the applicant.[10] On 28 April 2015 the Migration Review Tribunal affirms the [student] refusal decision. On 21 May 2015 the applicant lodges the current Class XA subclass 866 Protection visa application. On 22 June 2015 the applicant’s agent emails a letter with allegations against [Mr D] to the Minister.[11] On 27 July 2017 the applicant attended a Protection visa interview with the Department.

    [1] As per statutory declaration dated 16 June 2015 – see Folio [122] Department File no. [number]

    [2] As per response at Q81 866C application form – see Folio [25] Department File no. [number]

    [3] As per statutory declaration dated 16 June 2015 – see Folio [122] Department File no. [number]

    [4] As per FIR reports and statutory declaration – Folios [67]-[68] and [121] of File no [number]

    [5] As per submission dated 29 July 2015 – Folio [146] of File [number]

    [6] As per information provided in offshore student visa application file – [document number]

    [7] As per agent's submission dated 29 July 2015 - folio 146 of [number]

    [8] As per [Mr E]'s statutory declaration dated 16 June 2015 - folio 1/3 of [number]

    [9] As per agent's submission dated 29 July 2015 - folio 146 of [number]

    [10] As per [Mr E]'s statutory declaration - folio 113 of [number]

    [11] As documented on client's File -Folios [1]-[8] of [number]

    EVIDENCE AT THE HEARING

17. The applicant (through the interpreter) told the Tribunal he is a [age]-year-old. He is not married and was born in [Neighbourhood 1] near Sialkot in Punjab, Pakistan. He claims to be of the Sunni faith and claims to speak, read and write Urdu, English but only speak Punjabi. He has family in Pakistan which consists of one sister and [number] brothers (all different ages) and his parents. All of the applicant’s siblings are married. The applicant completed his education in Pakistan and worked as an ‘[Occupation 1]’ at a local [workplace]. He told the Tribunal that while in Pakistan, he had been working as [an Occupation 1] for approximately ‘six to seven years.’

    The Applicant’s claims for Protection

18. The applicant provided the Department with the following claims:[12]

    §The applicant is seeking protection in Australia, so he does not have to return to Pakistan

    §He left Pakistan to take time out until [certain] matters in Pakistan resolve themselves but these matters have not been resolved so he is unable to return to Pakistan

    §He was in an unmarried relationship with his cousin, and she was murdered by her brother

    §An attempt was made on his life shortly after she was murdered, and they have threatened to kill him

    §The applicant was actually shot in the leg during an attempt on his life and he sought help from the police and took his cousin who attempted to kill him to court. The applicant believes he will be killed if he now returns to Pakistan

    §He did not move to another part of the country as it would only take a matter of days for him to be found and while he did spend some time in Lahore and Rawalpindi, this was not "a reasonable solution"

    §The applicant does not think authorities can and will protect him as they are notoriously corrupt, and his cousin's family are very influential with politicians and police

    §The applicant does not think he will be able to relocate within the country as it would be a matter of time before he was found and murdered

    [12] see Department File no [number] and AAT’s File

19. In the applicant’s Statutory declaration submitted with his Application for Protection visa the applicant provide the following:[13]

    [13] see Department of Home Affairs File no. [number], see Folios [775]-[422]

    §The applicant started a relationship in 2004 with a relative called [Ms A] in Pakistan.

    • [Ms A]'s maternal great-grandmother and the applicant's maternal grandmother were sisters.
    • In 2007, [Ms A]'s brother [Mr B] found out about their relationship after seeing text
    • messages he had sent her and killed [Ms A] [in] May 2007.
    • Neither the police nor doctor were called as [Ms A’s] family is wealthy and well connected and

    there was no inquiry into her death.

    • Three days after the funeral, the applicant was informed by another cousin [Mr E] that [Ms A’s] family was planning to kill the applicant and that [Mr B] would escape to [Country 1] after killing the applicant.
    • The applicant was distressed by both [Ms A]'s death and the death threat.
    • [In] June 2007, the applicant was shot in his leg by [Mr B] and another cousin [Mr C] while at home.
    • [Mr B] fled to [Country 1] however neither the applicant's father nor his three brothers who were

    also living in [Country 1] at the time saw [Mr B] there.

    • Although the applicant's brother [Mr F] and uncle lodged a report with the police, nothing was

    done to arrest [Mr B] as his father [Mr G] paid the police 100,000 rupees.

    • [Ms A’s] family threatened the applicant and his family with threatening phone calls using

    unknown people to warn him that he would be killed the next time.

    • In September or October 2007, someone threw a petrol bomb at their family home.
    • They believe [Mr B]'s older brother - [Mr D] - was the mastermind and paying people

    to harass the applicant and his family into dropping the shooting case against [Mr B].

    • They have had rocks thrown at their house and people would ring the home landline

    threatening to harm various members of the applicant's family the next time they went out.

    • [In] December 2009 the applicant attended the final court hearing and upon his family's

    request, the applicant forgave [Ms A’s] family and the charges against [Mr B] and
    [Mr C] were dropped.

    • The applicant's family thought it would be safer for him to study abroad so he applied for a student visa.

20. The Tribunal asked the applicant to explain – why he could not return to his homeland, Pakistan? The applicant said that while in Pakistan he had a ‘relationship’ with a ‘female’ who was a ‘relative’ on his ‘mother’s side of the family.’ The girl’s name was ‘[Ms A]’. According to the applicant’s explanation the ‘family’ relationship ‘link’ was ‘through their grandmothers.’

21. The applicant explained that his ‘relationship’ with the girl called [Ms A] developed sometime when the two were ‘…in grade [number]’ at school.

22. At first, according to the applicant, they – the applicant and [Ms A] would call each other on their phones. When the two entered grade [number] at school, the applicant told the Tribunal that their ‘relationship went further…’ The applicant was asked to explain – what did he mean the relationship went further? The applicant explained that ‘after grade [number]…started talking with one another on the phone more frequently and with her at home…’

23. The Tribunal asked the applicant – did he socialise with [Ms A] in public? The applicant told the Tribunal that this was not possible ‘because of the many restrictions’ placed due to societal opinion and custom. At best, the two saw each other according to the applicant at ‘family functions.’ However, it was never easy or simple to ‘socialise’ as the two would have wished ‘openly’, the Tribunal was told; that was not permitted.

24. The applicant also told the Tribunal that [Ms A] was ‘a friend of his sister.’

25. The Tribunal asked the applicant – if his sister knew about his relationship with her friend [Ms A]? The applicant told the Tribunal that his sister ‘had an idea’ about his relationship with [Ms A] but ‘not his brothers’.

26. The Tribunal asked the applicant to describe in detail how the relationship developed. The applicant told the Tribunal that it ‘was [[Ms A]] that said that she really liked me…’ The applicant then described [Ms A]’s family as ‘very different from his family…’ He went on to add that, ‘…[Ms A]’s family was very restricted…’ The applicant explained, that ‘[our] family was more educated than [Ms A]’s…’

27. The Tribunal was told that the relationship between the two ‘lasted from 2004 to 2007 May…’

28. The applicant told the Tribunal that [Ms A]’s brother ‘got her mobile’ and ‘read all the messages’ which the two had written to each other.

29. The discovery of these messages between the two – the applicant and [Ms A], enraged her brother [Mr B] to the point that he considered that his family’s honour had been defiled and in a fit of rage he killed his sister, [Ms A].

30. The Tribunal asked the applicant how he found out about [Ms A]’s murder. The said that he was told by [Mr H] who heard this, and he also witnessed [Ms A]’s brother vowing to ‘kill him’. According to what [Mr H] had told the applicant, [Mr B]’s death threat was made he had murdered his sister.

31. The Tribunal asked the applicant – who killed the girl, [Ms A]? The applicant told the Tribunal that [Ms A] had been ‘killed’ by her brother, [Mr B]. He again confirmed that this information was told to him by [Mr H].

32. The applicant went on to tell the Tribunal that ‘other problem’ was that the actual cause of death of [Ms A] had been concealed. That is, the ‘real cause of death was hidden.’

33. The Tribunal asked the applicant – what was the female’s official cause of death? The applicant said that ‘no one knows the official cause of death….’ He went on to confirm for the Tribunal, that ‘there were no [legal] proceedings to determine the death…’ The applicant went on to tell the Tribunal that there was some talk of ‘…markings on the throat…’ of [Ms A]. There were comments made that ‘…someone had strangled her…’

34. The applicant told the Tribunal that ‘[Mr B] told [Mr H] that he killed his sister.’

35. The Tribunal asked the applicant whether he had discussed his relationship with his parents? The applicant told the Tribunal that he “never really discussed it [the relationship with [Ms A]] with [his] parents…’ What was discussed with the applicant’s parents according to the applicant was ‘how to get out of this situation…’ The applicant noted to the Tribunal, that his ‘…mother would continually cry ….’because of this situation. The applicant explained to the Tribunal that this ‘relationship’s details were not discussed [in detail] to keep [Ms A] safe…’

36. According to the applicant, [Ms A]’s family was ‘very traditional’ and a very ‘patriarchal family…’ and this was a problem for their relationship.

37. The applicant also told the Tribunal that after discussing the issue with his father who then working the family business in [Country 1], his father instructed his brother to advise the applicant to bring ‘legal proceedings’ – an FIR for the attempt that was made on the applicant’s life.

38. The applicant told the Tribunal that ‘an attempt on his life’ was instigated ‘about a month after [Ms A]’s death…’

39. According to the applicant FIR proceedings were initiated (against [Ms A]’s brother – [Mr B]) and ‘took one or two days to lodge…’ The Tribunal was told that the applicant had arrived from Lahore (where he had taken temporary refuge) and lodged the FIR. After it had been lodged, the applicant said that he ‘escaped to [Country 1]…’

40. The Tribunal was asked – did the FIR and the court proceedings it caused result in a criminal conviction [against [Mr B], [Ms A]’s brother]? The applicant told the Tribunal that the FIR-proceedings he had initiated against [Mr B] – ‘never resulted in a conviction…’ The Tribunal asked the applicant – why was [Mr B] no convicted? The applicant said that the ‘…police made no efforts…’

41. The Tribunal asked the applicant – why did he decide to withdraw the FIR he had initiated against [Mr B]? The applicant told the Tribunal that he was forced to withdraw the FIR because of ‘family pressures’ and ‘political pressures…’

42. The Tribunal asked the applicant – when did he decide to go to [Country 1]? The applicant said that he ‘stayed in [Country 1] for three weeks…’ The ‘purpose’ for the applicant’s visit to [Country 1] was to see his sister and other family members before leaving.

1. The applicant visited [Country 1] in 2010.

2. The Tribunal asked the applicant to explain – why in 2.5 or 3 years in Pakistan there had been one attempt on the applicant’s life? The applicant told the Tribunal that he ‘had received threats on his mobile phone’. The applicant went to tell the Tribunal that he ‘had changed his mobile’s number’ a number of times but ‘continued to receive threats.’

   EVIDENCE BY APPLICANT’S BROTHER (‘[Mr F]’)

3. This witness identified himself as the applicant’s ‘middle (in age) brother.

4. The witness told the Tribunal that he knew of his brother’s relationship with the girl, [Ms A] and confirmed that the ‘shooting incident’ had taken place in June 2007.

5. The witness explained that at the time of the shooting he was in Lahore and that he had received a telephone call to inform him that his brother had been shot. The witness then told the Tribunal, that he travelled from Lahore to […….] to see what had actually occurred and to find out the reason for the shooting.

6. When he arrived in [….] he saw his brother, who was in a local hospital and advised him to report this matter to the local police. The FIR was lodged, but the police [the witness said] had been reluctant to issue an FIR because ‘they knew’ the ‘assailant’s family’ and after ‘bribes’ were received ‘they agreed to lodge’ the FIR.

7. What followed after the FIR was issued was court proceedings, but the accused ([Mr B]) did not attend the court and the proceeding were delayed. As a result of these delays, the case took a very long time to conclude. More to the point, the court was not able to call for witnesses (because of delays) and the applicant’s family ‘had to compromise…’ However, before reaching ‘a compromise’ the witness said, that ‘threats were received.’

8. The witness also said that during this time ‘a petrol bomb was thrown’ at the applicant’s family home.

9. The witness told the Tribunal that a ‘compromise’ was reached in 2009.

10. The Tribunal asked the witness to confirm if the issue had been resolved. He told the Tribunal that the ‘matter had been resolved completely’.

11. The witness also made reference to a ‘land dispute’ which was ‘related to [Ms A] relationship’ that was before the High Court.

12. The Tribunal asked the witness – why court proceedings related to the [Ms A] relationship – now involved a land dispute, with the applicant’s family? The witness explained to the Tribunal, that further issues between the families had developed and this was one of them.

13. The Tribunal attempted to contact via the telephone a cousin of the applicant but after two attempts made, no response was forthcoming.

    Further evidence to the Tribunal by the Applicant

14. The Tribunal asked the applicant – when did he return to Pakistan and why? The applicant stated that he returned to Pakistan in 2018 because his mother was seriously ill. He went on to tell the Tribunal that he remained in Pakistan for three weeks.

15. The Tribunal asked the applicant – how did he avoid being targeted by members of [Ms A]’s family? The applicant explained to the Tribunal that [while in] Pakistan, he was residing at his cousin’s home which had ‘security’ and when he travelled around, he would ‘change cars’ so he could not be followed or tracked by others. The applicant admitted to the Tribunal that ‘the threat was real, but he took precautions.’

16. The applicant also told the Tribunal that when he was on his way to the airport to depart for Australia, his car was ‘shot at…’ The applicant also admitted that this ‘…may have been a random shooting…’

17. The applicant was asked by the Tribunal if he would relocate to another part of Pakistan. In response to the Tribunal’s question, the applicant told of the existence of a ‘stressful environment’ in Pakistan. There was no real place that would provide a safe haven for the applicant. The applicant went on to suggest that his persecutors had strong political links in Pakistan and many links throughout Pakistan which could be used to harm him.

    EVIDENCE RECEIVED FROM WITNESS [[Mr H]]

18. The witness described the applicant’s problems with [Ms A]’s family as an ‘…honour-killing stuff’. He went on to state that ‘…a relationship with a cousin…’ had to ‘have some affect…’

19. The witness told the Tribunal that when the applicant was informed of the death of [Ms A] ‘he did not like it…’

20. The witness told the Tribunal that ‘[Ms A]’s death’ was admitted to by her ‘brother [Mr B]’ who told him ‘he killed her…’

21. The witness described [Mr B]’s actions [as he explained it to him] ‘it was family…’

22. The witness told the Tribunal that the applicant could not return to Pakistan because [Ms A]’s family will not stop their persecution of him until they have received satisfaction for their family’s honour.

23. The witness did not believe that ‘relocation’ would assist the applicant because [Ms A]’s family is a ‘big family’, and he (the applicant) will be discovered overtime.

24. On 10 August 2021 the applicant’s migration agent and Solicitor provided the following written submissions to the Tribunal.[14] In summary, the applicant’s case specifically centered on the following ‘important aspects’:

    1.[Ms A] has died but her death was not a homicide

    2.[Ms A] although dead was not the subject of an honour killing

    3.[The applicant] while admittedly shot at, the shooting was not in response to or connected with [Ms A]’s death much less an honour killing of [Ms A]

    4.[The applicant] is free to live in a different part of Pakistan safe from political, tribal and financial influence of [Ms A]’s family and its networks

    5.The gift given to [Ms A] by [the applicant]

    [14] see, Applicant’s written submissions dated10 August 2021 in the AAT File.

25. The applicant provided the following explanations on the important aspects [1] to [5]:

    §The applicant acknowledged that the Tribunal may have experienced a different situation about ‘death certificates’ in Australia. The applicant questioned whether the Tribunal’s experience (in Australia) ought to influence over the experiences of the applicant and others who had lived most of their lives in Pakistan and understand the local customs and access to death certificates.

    §Therefore, the absence of a death certificate and the absence of a coroner’s enquiry and autopsy in Pakistan should not lead the Tribunal to conclude that there was not evidence of homicide.

    §The applicant cited several Articles which concerned with how unexplained deaths are actually dealt with (or not) by the authorities in Pakistan.[15] The applicant noted the ‘confusion that surrounds autopsies, enquiries and police investigations of possible homicides which includes honour killings in Pakistan.’

    [15] see, Global Immigration Services dated 29 July 2015 and attachments. Also, see Crime Review: 15/06/2015; “Refusal to autopsy: a societal practice in Pakistan context” by Laila Akber Cassum.  

    §Honour-killing of [Ms A], the applicant submitted that honour killings are a ‘commonplace’ and ‘do take place’ in Pakistan.[16]

    [16] see submission by Global Immigration Services dated 29 July 2015 and attachments.

    §The applicant submitted that a hallmark of honour killings is that it is rare that the perpetrator is charged with murder much less convicted.[17]

    [17] see Expert Opinion – Chaudhary Faisal Nawaz – Lawyers and Vice Chairman Human Rights Wing, ICHR, Lahore, Pakistan.

    §The applicant submitted that while honour killings are common, convictions are rare because intelligence surrounding the death, death certificates, police enquiries, coroners’ inquests and the like are all suppressed routinely as part of the modus operandi of the crime itself.

    §The applicant concludes that the hallmark of an honour killing is that there are continuing questions as to the cause of death and who may be responsible.

    §Is the shooting of [the applicant] caused by [Ms A]’s death? [Ms A’s] and [the applicant’s] families, it was submitted always enjoyed good relations with each other prior to [Ms A]’s death.

    §The applicant submits that he was shot. It is claimed that this shooting occurred after [Ms A]’s death at the hands of her brother, [Mr B]. The applicant submits that all available evidence points to him being shot and wounded by [Ms A]’s brother in the company of another cousin, [Mr C]. It is submitted that the evidence establishes that the applicant and [Mr F] had both been warned by [Mr H] that [Ms A’s] family intended to kill the applicant. The applicant also referred that there was evidence before the Tribunal, that there was a causal relationship between the death of [Ms A] and the shooting of the applicant (reference is made to the sworn evidence of the applicant, [Mr F] and [Mr H].[18]

    [18] see footnotes 1,2, and 3 (Statutory Declaration of [the applicant] dated 16 June 2015 and 15 March 2021) attested testimonies of [Mr F] undated, lodged with DIBP 22/6/2015, undated, lodged with the AAT on 17 March 2021 & Affidavit lodged with AAT on 15 March 2021. Also see, Statutory Declaration of [Mr E] dated 16 June 2015 and 14 March 2021.

    §Is it reasonable for the Applicant to live and work in a different part of Pakistan? What is obviously clear, the applicant submitted, from his evidence is that there is now a family vendetta and the violence which van be visited on the applicant’s family is ‘limited only by the power and influence of [Ms A’s] family.

    §The applicant claims that there is ‘uncontradicted evidence’ of the witnesses, is that the conflict between these two families is a vendetta and there is no place in Pakistan immune to the influence and wealth of [Ms A’s] family.

    §The applicant submitted that the witnesses raised these concerns thorough their knowledge of [Ms A’s] family’s familial/commercial/political networks which made it easy for them to track down the applicant wherever he located within Pakistan.

    §The applicant refers to the evidence (sworn) by the witnesses which in effect describe these two families as having overlapped and inter-related familial and social connections which made it almost impossible for a [the applicant’s] family secret (such as the return of the applicant to Pakistan) to ‘be kept from the notice from one or the other members of [Ms A’s] family’.

    §The applicant emphasised the evidence of witness ([Mr H]) who ‘told the Tribunal directly that he had been told by [Ms A’s] family’ that ‘they are waiting to kill the applicant’ and ‘will make it look like an accident.’

    §The gift given by the applicant to [Ms A]. The applicant submitted that the Tribunal’s ‘lived experience in a secular country where an inscribed gift might be given with impunity, cannot be used as a prism through which to judge and weigh the facts in this case.

    §From the evidence submitted, the applicant submits that the Tribunal ought (from the sworn evidence) to be apparent that the relationship between the applicant and [Ms A] was illicit and strictly banned according to widely accepted norms in Islamic society in Pakistan, where deeply imbedded Islamic traditional customs form part of the fabric of society.[19]

    [19] ‘Pakistan honour killing murdered after video circulates online’ – CNN 26/07/2021; Pakistan authorities record a dozen cases of ‘honour’ killing in a fortnight / Women’s rights and gender quality/ the Guardian – 26/07/2021; The ‘honour in murder – Newspaper – DAWN.COM – 26/07/2021; The forgotten male victims of honour-based violence – Manchester Metropolitan University – 06/06/2018; 510 women, 259 men fell prey to ‘honour’ killing during five years in Sindh – Pakistan – DAWN.COM – 26/7/2021; see Expert Opinion – Chaudhary Faisal Nawaz – Lawyer and Vice Chairman Human Rights Wing, ICHR, Lahore Pakistan.

    §It was submitted that a highly secret relationship existed between the applicant and [Ms A] and could ‘scarcely be advertised in any way, let alone by inscribing a ring which, if intercepted by a member of [Ms A]’s family, would correctly enable the family to pinpoint the applicant as her forbidden love interest.’

    §Additional subordinate issues arising from the hearing: the applicant submitted his father’s affidavit ([name deleted]) corroborates the evidence given by others, that prior to [Ms A]’s death, [Ms A’s] and [the applicant’s] families had always co-existed ‘harmoniously’. [The applicant’s father] ‘confirms’ the applicant submits, that ‘the sworn evidence given by [Mr F] that they worked together to formulate strategies and make decisions after the shooting, and in connection with the lodgement and withdrawal of the FIR’ was done regardless, [[the applicant’s father]] was working full-time in [Country 1].

    §[The applicant’s father] [in a recent affidavit] it was submitted states that the ‘truce was broken, when contrary to the undertakings, [Ms A’s] family then procured a third party to lodge knowingly false claims in court about land owned by [the applicant’s father] and also ‘lodged knowingly false criminal complaints against [the applicant’s father] personally.’ [The applicant’s father] also submits the ‘[Ms A’s] family have also continued their threats against the [[the applicant]] the applicant’s life.’

    §FIR Withdrawal. The applicant submitted (ad nauseum) that the ‘evidence establishes that to bring an end to the actual violence and threatened violence visited upon the applicant and his family which took the form of fire-bombing, stoning and intimidation,’ the applicant’s family ‘would withdraw its FIR against [Mr B] and [Mr C].’

    §The applicant submitted that evidence taken fully describes the negotiation of a de facto truce between the families intended to settle the ongoing vendetta directed against the applicant’s family.

    §The applicant submitted that his family understood through intermediaries that by withdrawing the FIR, which was ‘important bargaining chip’ that was used in a ‘deal whereby violence visited on [the applicant’s] family was meant to come to an end. The applicant submitted that his father holds considerable influence and moral authority within the family and did not, in any way ‘abdicate’ his responsibility in ‘taking positive steps to protect his family from ongoing violence at the hands of [Ms A’s] family.’

    §Legal proceedings contesting [the applicant’s] family’s ownership of the land. The applicant provided translated documents which are now part of the applicant’s evidence in this case: the FIR against [the applicant’s father] and brothers, which ended in the High Court, the High Court decision – prearrest bail, FIR against [Mr I] interfering with [the applicant’s] possession of the land.’

    §The Tribunal’s reluctance to accept that [Ms A] was the victim of an honour killing. The submitted that the evidence provided by witness – [Mr H] – that while he was in [Country 1] and having daily contact with his cousins, [Mr D] and [Mr B], that in the course of a drinking session, [Mr B] admitted to [Mr H] that ‘he had killed his own sister, [Ms A].’

    §This evidence must be understood the applicant submits ‘in the context that at the time, [Mr B], regards [Mr H] as a family ally and a person not aligned with [the applicant’s] family.

    §The applicant submitted that if [Mr B] considered [Mr H] as a member of the ‘enemy camp’, he would never have made this admission.

    §The applicant submitted that ‘at face value’, ‘it appears’ that the [age]-year-old [Mr B], in the ‘company of his trusted cousin’ and ‘brother’, and while engaged in a drinking session, ‘[Mr B] overcome with guilt’ told them ‘about [his] killing his sister.’

    §The applicant submitted ‘this evidence as cogent and compelling evidence which is deserving of weight.’

    §The applicant submitted that the admission made by [Ms A]’s brother to his cousin is not a confession per s, for the purposes of the criminal law. It was submitted that ‘a admission made directly to a person in authority such as a member of the police or made in open court.

    §The applicant submitted that as to the issue – why [Mr H] failed to report the admission made by [Mr B] to the police, there are at least three ‘plausible, highly likely explanations’: first, the relevant parties were all in [Country 1] and the [Country 1] police would have no interest in accepting any such report’; second, ‘given the serious nature of the admission that [Mr B] had already killed his sister, [Mr H] may well have been fearful that reporting [Mr B]’s admission to the police could lead to his murder’; third, ‘reporting the admission to the Pakistani police may have limited efficacy since the police appear to accept at face value that there was nothing suspicious about the circumstances surrounding [Ms A]’s death.’

    §CASTE SYSTEM IN PAKISTAN. The applicant submitted that in his Statutory Declaration of 15 March 2021 that his family were the ‘Mughal’ caste and [Ms A’s] family were members of the ‘Mate’ caste.

    §It was also submitted that the caste system in Pakistan was ‘not as rigid as the caste system in India’ – it ‘still exists.’

    §The applicant submitted that [the applicant’s] family’s caste was ‘derived through education’, ‘while [Ms A’s] family’s [caste] status was based on wealth which is regarded as superior.’ Also, it was submitted that [Ms A’s] family was ‘known to be well-connected politically.’[20]

    §The applicant provided submissions as to complementary protection which the Tribunal noted the applicant’s submissions.[21]

    §Finally, the applicant provided further submissions concerning his medical and psychological condition.

    [20]

    [21] Applicant’s submission 10/8/2021 at pp.12-15

26. On 3 November 2021 by email, the Tribunal wrote to the applicant’s [Solicitor]. The Tribunal referred to the Solicitor’s written submissions which were received by the Registry on 10 August 2021 in which the applicant’s Solicitor wrote that the witness [Mr F], was unable to provide evidence uninterrupted due to background noises and should have been called back by the Tribunal later in the hearing.

27. The Tribunal advised the applicant’s solicitor that the Tribunal was in the process of considering its decision for this matter, and in perusing the applicant’s written submissions, requested that a written statement be provided by the witness ([Mr F]) on all matters relevant to the applicant’s claims.

28. The Tribunal provided the applicant and his solicitor until the 17 November 2021 to provide all written submissions. The Tribunal also advised the applicant’s solicitor that if the information provided in the written statement was significant to the applicant’s case, the Tribunal would call all parties before the Tribunal to discuss the further evidence.

29. On 17 November 2021 the applicant’s solicitor [wrote] an email to the Tribunal advising the Tribunal that:

    “[Mr F] has had issues with health of family members and has not been able to complete his submission. As a result, he cannot lodge a submission and has instructed us to inform the Tribunal that the submission will not be lodged.”

30. No request was made by the applicant’s solicitor for an extension of time to provide the statement that [Mr F] had “not been able to complete.”

31. The Tribunal proceeded to consider its decision in this matter.

    COUNTRY INFORMATION – PAKISTAN – ISLAMIC REPUBLIC OF – THE RULE OF LAW – HONOR KILLINGS – AND OTHER INFORMATION

32. The reference to the independent sources of country information and reports both local in origin and international as noted and considered for this decision by the Tribunal appears in the ‘Appendix A’ which attached to this decision. The Tribunal also considered all the information and references concerning Pakistan submitted to the Tribunal by applicant and his registered migration agent and legal counsel.[22]

    [22] All country information referred to and referenced by the Tribunal is to be found on the AAT’s File.

    FINDINGS AND REASONS FOR DECISION

    The issue of credibility

1. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Guo v Minister for Immigration and Multicultural Affairs (1996) 64 FCR 151, the Full Federal Court made comments on determining credibility. The Full Federal Court made comments on determining credibility. The Tribunal notes in particular, the cautionary note sounded by Foster J at [194]:

   “…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion could reasonably have been accepted…”

2. The Tribunal also accepts that “…if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt…” (see: The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva (1992), at paragraph [196]). However, the Handbook states at (see paragraph [204]):

   “…the benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible, and must not run counter to general known facts…”

3. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing this, it is important to bear in mind the difficulties often faced with asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

4. The Tribunal must bear in mind that if an adverse finding in relation to a material claim made by the applicant but is unable to establish that finding with confidence it must proceed to assess the claim on the basis that it might be possibly true: see, MIMA v Rajalingam (1999) 93 FCR 220. However, the Tribunal is not required to accept uncritically any, or all of the allegations made by the applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that the assertion by an applicant has not been made out: see, Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; see: Selvadurai v MIEA & Another (1994) 34 ALD 347 at 348 per Heerey J and see: Kopalapillai v MIMA (1998) 86 FCR 547.

   The Applicant’s claims for protection assessed

5. The applicant claims that because of a relationship he had with a female (named ‘[Ms A]’) he described to the Tribunal as ‘his cousin’ which overtime, the relationship was discovered by the female’s brother who took exception (as did the female’s family) and in a fit of rage against his sister, he (the female’s brother) committed an ‘honour killing’ and thereafter, the two families were locked in a bitter vendetta in which the female’s brother is claimed to have ‘shot’ at the applicant and wounding him on one occasion. The incident resulted in a police investigation and intervention and legal proceedings and thereafter reignited with further threats between the two protagonists and subsequently between the two families. Further legal proceedings it was claimed resulted over a ‘land dispute’ between the two families which, the Tribunal is told is yet to be resolved but is currently before the courts. All these matters it was claimed – created a difficult and dangerous situation for the applicant and he left Pakistan for Australia in 2010. The applicant claims that if he returns to Pakistan, he fears persecution and significant harm emanating from his cousin’s brother and family members.

6. The mere fact that a person claims fear of persecution or significant harm for a particular reason or reasons does not establish either the genuineness of the asserted fear or that there is a real chance it will occur or that it is for the reason claimed. The risk of persecution or significant harm is not ‘well-founded’ if it is merely assumed or if it is mere speculation. A decision-maker, in this instance, the Tribunal, is not required to make the applicant’s case for him or her (whichever may be the case). Nor is the decision-maker required to accept uncritically any and all the allegations made by the applicant. The Tribunal for the reasons that follow below, does not accept the applicant’s claim (and additional claims) for fearing harm if he was to return to Pakistan to be credible.

   ‘Race, religion, nationality, and political opinion’

7. The applicant from the information submitted to the Department included his application for Protection and from the information provided to the Tribunal at the hearing, claims to be a Punjabi Sunni Muslim[23] from Pakistan. He claims that he is not a member of, or involved in any group, organisation, or political party while he was in Pakistan. The Tribunal also noted that when the applicant was questioned by the delegate, he confirmed that he had not been persecuted, singled out, targeted, or attacked in Pakistan because of his race, religion, nationality or political opinion. Therefore, the Tribunal concludes and finds that that on the evidence before the Tribunal, the applicant does not fear harm for reasons of race, religion, nationality, or political opinion as pursuant to s.5(1) (a) of the Act.

   ‘Particular social group’

   [23] The applicant confirmed at his interview with the Department that he was a Sunni Muslim, contrary to the applicant’s assertion at page 6 of his submission to the Department that he was a Shia Muslim – see, Folio [44] Department of Home Affairs File no. [number].

8. Further, the Tribunal noted from the delegate’s decision, that the applicant’s agent had submitted in her submission (dated 29.07.2015) that the applicant feared harm as a member of a particular social group, which was identified to the delegate as being men whose lives have been threatened for being part of a relationship where one party of that relationship had been murdered and whose own life is under an on-going threat. The delegate correctly concluded that under s.5L of the Act, the characteristic of a particular social group was not determined by a “shared fear of persecution”.[24] More to point, the delegate correctly concluded, the possession of that characteristic or attribute must distinguish the group from society at large. Otherwise, the group will simply be a ‘social group’ (and not a particular social group). It was therefore correctly determined, in the Tribunal’s opinion, the delegate concluding that he could not find that the characteristic of such a group to be so fundamental to the applicant’s identity or conscience such that a member of such a group should be forced to renounce it. The Tribunal agrees with the delegate’s conclusion that the ‘group’ as mentioned could not be considered a ‘particular social group’ in the circumstances as presented by the applicant’s evidence.

   [24] see S v Minister for Immigration and Multicultural Affairs (2003) 217 CLR 387 per Gleeson CJ at [36].

9. From the interview record and the submissions before the Tribunal and the evidence submitted at the hearing, the applicant claimed that [Ms A’s] family opposed his ‘relationship’ with the girl, that was identified to the Tribunal as [Ms A], because her family were of a different caste and that [Ms A’s] family considered themselves and members of their family to be superior. It was noted by the delegate in his decision record, that ‘it was unclear from the applicant’s response whether [Ms A] came from a higher caste or whether [Ms A]’s family just considered themselves to be ‘better’ than the applicant’s family for social or political reasons.’[25] The Tribunal noted that in the applicant’s statutory declaration dated 15.03.2021 the applicant does not provide any clear description which of the two castes (was considered) were superior.[26] The applicant merely declares in his statutory declaration that, that [the applicant’s] family’s caste was ‘derived through education’, ‘while [Ms A’s] family’s [caste] status was based on wealth which is regarded as superior.’ Also, it was submitted, that [Ms A’s] family was ‘known to be well-connected politically.’[27] In the evidence which followed (and to which the Tribunal will discuss further in this decision) the applicant claimed that [Ms A]’s brother, [Mr B] murdered [Ms A] because his family was opposed to the applicant’s and [Ms A] having formed ‘a relationship’, and that the family and in particular [Mr B]’s brother, [Mr D], is still prepared and determined to do harm – even kill, the applicant if the applicant returns to Pakistan at any time in the near future. Therefore, on this basis, the Tribunal agrees to accept as it was concluded by the delegate in his decision, that the applicant fears serious harm or persecution because of his membership of a particular social group of ‘Pakistani men in an inter-caste relationship.’

   [25] see delegate’s decision record at p.5, 2^nd paragraph.

   [26] Also, no independently sourced evidence was provided to explain which of the two families’ caste was superior to the other.

   [27] Applicant’s submission 10/8/2021 at pp.12-15

10. The Tribunal will now consider and assess the evidence concerning all the claims made by the applicant.

    ‘the honour-killing of [Ms A]’ and the ‘issue of caste’

11. The main reason for the applicant’s present predicament as he claims was his relationship with his ‘cousin’ [Ms A]. He claims that it was a forbidden relationship because the woman in question, was his cousin. The relationship, from the information provided by the applicant in his evidence was a close one between the two adults but developed in secret because of the sensitivity of who the parties were. Very little evidence was provided concerning the relationship’s duration except that it originated some time in 2004 and ended abruptly by the girl’s ‘violent death’ (as was claimed) at the hands of her brother, [Mr B] [in] May 2007.[28] Also, very little evidence was provided to the Tribunal on the frequency each of the parties met each other and what they chose to do when they were together. The applicant did tender as evidence of the closeness of the relationship between himself and his girlfriend – a ring which he claims was gifted to him by her[29] and other notations in the form of cards which it was alleged the applicant had received from this female.

    [28] see Delegate’s decision record – summary of applicant’s claims for protection.

    [29] Card provided to the Applicant by [Ms A], see file with Department

12. The applicant submitted in his evidence that his girlfriend, [Ms A] was ‘murdered by her brother’ [Mr B]. It was claimed that her brother killed her in a fit of rage and to wash his family’s name from the shame the relationship had caused. It was further submitted, that the relationship was discovered by the girl’s brother accidently gaining access to her mobile phone and reading the messages that had been exchanged between the applicant and the girl in question over a period of time. No evidence concerning text messages was submitted to the Department or to the Tribunal. It was emphasised to the Tribunal in the evidence and submissions, that the alleged unfortunate girl was the victim of an ‘honour killing’ that happened [in] May 2007.  It was explained that her death having occurred, her funeral soon followed. It is important to note here, that the admission of the honour killing was admitted to by the girl’s brother to another cousin, ([Mr E]) and this cousin relayed the news to the applicant together with the threats that had been expressed against him by the girl’s brother against him. The Tribunal was told by the applicant that he felt shock at this news and instantly feared the consequences that would follow.

13. At this point, the Tribunal expresses concern with this evidence and the submissions tendered in support of these claims. The applicant and his migration/agent/lawyer submitted that this was an honour killing of a girl who was in love with the applicant which was committed by her brother after he discovered her secret relationship with a cousin (the applicant) – a relationship he did not consider appropriate for his family’s public stature and prestige. In making this claim, the applicant submitted a number of articles which concerned the issue of honour killings (in Pakistan) and attempted to explain how unexplained deaths are actually dealt with (or not) by the authorities in Pakistan. The applicant submitted that confusion surrounds autopsies, enquiries and police investigations of possible homicides which includes honour killings in Pakistan. It was also submitted that honour killings are a ‘commonplace’ and ‘do take place in Pakistan.’[30] It was also submitted that a feature of honour killings is that it was rare that the perpetrator was charged with murder much less convicted.[31] It was also claimed that while honour killings are common, in Pakistan, convictions are rare because information surrounding the death of a person, for example, death certificates, police enquiries, coroners’ inquests and the like, are all (according to the submissions made) suppressed routinely by the perpetrators with some understanding from the authorities.[32] The Tribunal does not accept the evidence of an honour killing having taken placed as is claimed, as credible.

    [30] see submission by Global Immigration Services dated 29 July 2015 at ‘attachments’ in AAT File.

    [31] see, Expert Opinion – Chaudhary Faisal Nawaz – Lawyers and Vice Chairman Human Rights Wing, ICHR, Lahore, Pakistan.

    [32] see submission by the applicant provided to the Tribunal for the hearing.

14. The applicant has provided very little evidence concerning the issue of the caste differences that he claims ignited this dispute between two families and caused the death of an innocent woman. The description of the caste differences provided by the applicant was minimal in detail and did not provide any substantive explanation as to how the alleged relationship would ignite rage, death and all that followed – the continuing vendetta. Indeed, the country information available to the Tribunal seems to suggest that caste differences play a major role in Pakistan as they do in neighbouring India, but in this instance as far as it concerned it being a trigger that ignited the litany of situations that followed and claimed, the Tribunal on the evidence before it does not accept as credible. The evidence of the existence of caste differences featured only as a mere casual reference in the written submission of the applicant’s Solicitor and migration agent. What was provided was the explanation that the two families were from different castes – one emphasising the importance of education, the other wealth, that was all. Moreover, from the evidence provided, the families had been on good terms with each other for a substantial period, until the alleged discovery of the relationship. Surely something that was as cataclysmic as a forbidden relationship between two people deserved further explanation. Very little was provided to the Tribunal at the hearing and therefore the Tribunal finds that caste differences as was claimed was included as an attempt by the applicant to accentuate his claims to make more acceptable his overall claims for protection and was not credible.

15. The Tribunal accepts that there is country information available that suggests that honour killings do occur in Pakistan for various reasons. There is also information, the Tribunal accessed, to suggest that despite – strict legislative enactments having been introduced attempting to curtail this heinous crime, it still occurs in a country like, Pakistan.[33] However, in this instance, the applicant and his migration agent/lawyer claim in their submissions that a person was murdered by their sibling and the whole murder had been concealed from the local authorities and the murderer had escaped any sanctions whatsoever and investigation. They also suggest that the deceased person was interned (after being killed) without autopsy or death certificate having been issued by the local authorities. The Tribunal considers this information to not the truth and introduced only to enhance the applicant’s claims for protection. More to the point, the entire claim of an honour killing having occurred in this instance as has been described and explained to the Tribunal is an embellishment of the truth and not credible. It was claimed before the Tribunal that a murder had been committed but the Tribunal has been provided with not evidence as to whether a person was murdered, for example, there is no proof of the victim’s death.  The state in Pakistan may not function at certain levels as one would expect a state to function in the west (like Australia) but to suggest the complete liquidation of a person without any hint of investigation or accountability even having been attempted as is claimed in this instance is not the truth in the Tribunal’s opinion. The state, in Pakistan, does function and it operates in accordance with its own version of criminal justice, judicial review and the rule of law.

    [33] The Criminal Law (Amendment) (Offences in the name or pretext of Honour) Act of 2016 repealed the loophole which allowed the perpetrators of honour killings to avoid punishment by seeking forgiveness for the crime from another family member, and thus be legally pardoned and receive light punishment. Also see, “How activists helped change Pakistan’s Honour-killing law” Daniel Selby & Leah Rodriguez, Global Citizen, 9.04.2019, ALJAZEERA, “Pakistan adopts new law to tackle ‘honour-killings”

16. Pakistan is not ‘failed state’ in the opinion of the Tribunal. For example, officials have warned that Avoiding autopsy may benefit [the] accused in the end.[34] Moreover, in April 2018, the BBC Pakistan News Service (25.04.2018) reported that Pakistani police have exhumed the body of an Italian woman amid reports she may have been murdered by relatives in a so-called honour killing. It was reported that Sana Cheema, 26, died while visiting family in Gujrat, and was buried last week without an autopsy. Her family said she had died of an unspecified illness, but there were allegations she was killed for wanting to marry against her family’s wishes. Police lodged a case against her father, brother and uncle. It was also reported that, Pakistani police say that they are awaiting results from a post-mortem examination to determine whether Ms Cheema was murdered, and whether her relatives should be charged.[35] If such a heinous crime had actually occurred, one would have expected the applicant (and his family) to have requested for an investigation – none was called for in this instance expect that as a result of the girlfriend’s sudden death the two families descended into a bitter vendetta while the actual victim disappeared from the entire scene. Moreover, no death certificate and no grave, the former explained away for the purposes of the hearing because of the dictates of Islam and no punishment for a heinous crime because [Ms A’s] family had ‘familial/commercial and political networks throughout Pakistan. Again, no evidence was provided by the applicant to satisfy the Tribunal that this claimed ‘cover-up’ of a girl’s murder was possible because of the girl’s family’s considerable commercial and political influence -locally or nationally.

    [34] See Dawn, Today’s Paper article by Asif Chaudhry, published November 9, 2018.

    [35] BBC Pakistan Service 25, April 2018

17. On the information accessed by the Tribunal concerning the state of the law in Pakistan as far as it concerns the issues involving honour killings, there is information to suggest that prosecutions do happen and are pursued by the authorities in instances where there is a strong incentive and impetus by those aggrieved to pursue matters. It is not a situation of a death occurs, a person is interned, and all is forgotten because the family declares that the person killed died suddenly of natural causes. It was open to the applicant, if he desired to pursue the matter with the local authorities, if he thought his girlfriend’s death (if it happened) was suspicious. He did not choose to do so. Instead, the applicant prepared for his trip to [Country 1] at first. As the Tribunal has repeated previously, there is no evidence of an honour killing death having occurred and coupled with this, there is no evidence that a person has died or been murdered.  Therefore, the Tribunal finds that is not satisfied that the applicant has been in a relationship with another woman which resulted in the death of that woman as was claimed.

    Shooting of the applicant by his girlfriend’s brother and the related consequences

1. The applicant claimed that because of his ‘relationship’ with [Ms A] having been discovered by her brother became determined to murder him too. It was submitted that all available evidence pointed to the fact that the applicant had been shot and wounded by [Mr B], [Ms A]’s brother, in the presence of another cousin, [Mr C]. It was also submitted that warnings of an impending attempt being made on the applicant’s life were made by another cousin, [Mr H]. In his evidence to the Tribunal, [Mr H] asserted that [Ms A’s] family had only one intention to ‘kill the applicant.’ He also said that this intention to kill the applicant was only to do with the fact that the applicant had a relationship with the girl [Ms A] and had brought shame on [Ms A’s] family.

2. An attempt on the applicant’s life occurred (it was claimed) [in] June 2007. The applicant told the Tribunal that he was shot in the leg by [Ms A]’s brother [Mr B]. The Tribunal was then told that the applicant’s brother, [Mr F] and the applicant’s uncle, lodged with the police an FIR accusing [Ms A]’s brother [Mr B] of attempting to murder the applicant, but it was claimed, that the police did not prosecute the alleged assailant ([Mr B]) because ‘his father [Mr G] paid the police 100,000 Pakistani rupees.’ What followed, were according to the evidence ‘threatening phone calls’ by ‘unknown people’ who warned the ‘applicant that next time he (the applicant) would be killed.’ Then, the Tribunal was told in ‘September’ or ‘October 2007’ an unidentified person ‘threw a petrol bomb’ at the applicant’s family home. Then, for a period, the applicant escaped to [Country 1], as a temporary refuge.

3. The applicant’s evidence also explains that on 17 December 2009, the applicant ‘attended the final court hearing and upon his family’s request, the applicant forgave [Ms A’s] family and the charges against [Mr B] and [Mr C] were dropped.’ The Tribunal finds issues of credibility with this evidence. First, we have the attempt on the applicant’s life by [Mr B] – who shoots the applicant. What follows, is the applicant’s brother [Mr F] and an uncle (on instructions provided by the applicant’s father who at the time was in [Country 1]) issue an FIR against the perpetrators citing their actions as reason for the FIR. Second, the Tribunal is told that the police take no action in the matter because [Mr B]’s father, [Mr G] paid the police 100,000 Pakistani rupees to do nothing. It should be noted that the applicant in his evidence to the Tribunal, told the Tribunal that the police ‘made no efforts’ – no mention of any bribes.[36] Third, the applicant stated in his written evidence before the Tribunal that on 17 December 2009 a hearing concerning the FIR issued against [Mr B] and [Mr C] was held but the hearing did not continue because the applicant’s family requested him to ‘forgive’ [Ms A’s] family and to drop the charges against [Mr B] and [Mr C]. However, in the applicant’s evidence to the Tribunal, the applicant spoke of ‘family pressures’ to ‘not continue’ with FIR but added also that his decision had been influenced by ‘political pressures.’[37]

   [36] see paragraph [40] of this decision.

   [37] see paragraph [41] of this decision.

4. The applicant, nor his legal counsel/migration agent, provided any actual evidence of what type of ‘political pressures’ were introduced by [Ms A’s] family in this dispute between the two families. When asked to provide further evidence, a submission was made in writing that ‘witnesses’ ‘raised these concerns through their knowledge of [Ms A’s] family’s familial/commercial political networks…’ which they had at their disposal in Pakistan. No actual evidence was provided to explain the ‘political pressures’ that were brought to bear on the applicant to withdraw his FIR. The Tribunal concludes the claim of ‘political pressures’ in this instance was merely introduced to embellish even further the scenario of events already before the Tribunal with another set of considerations which had not actually occurred – only introduced with an intention to make attractive the applicant’s claims for protection in this country. Four, the Tribunal was told in evidence, and in written submissions, that the police took no interest in the matter because of bribery or political influence but the case goes to court and is withdrawn by the applicant on the day of its hearing. Again, the Tribunal finds the present evidence in conflict with the evidence provided stating what happened. How can an FIR that was not actioned by the police for the stated reasons (as stated by the Tribunal above)– end up being the subject of negotiations between the two families in the courts and ultimately withdrawn? Something must have occurred, if it is the truth (which the Tribunal doubts) to see FIR end up before a court. What occurred is not explained with sufficient clarity to the Tribunal despite the assertion of the applicant’s legal counsel submitting that what had been placed before the Tribunal had been submitted ‘ad nauseum’. Therefore, for the reasons expressed in detail by the Tribunal above, the Tribunal concludes and finds that it is not satisfied and does not consider credible the evidence or explanations that there was an actual shooting of the applicant as claimed or harassment and intimidation by others of the applicant and his family, nor that an FIR proceeded to a court proceeding which was subsequently not finalised because of family pressures or pressures from others. Accordingly, the Tribunal finds that there is no real chance the applicant will be seriously harmed for reasons discussed above and in particular because of a relationship he had with a female as he claimed.  

   The applicant’s return to Pakistan in 2018

   Evidence was provided by the applicant that he returned to Pakistan in 2018 to see his ailing mother. The applicant told the Tribunal that he remained in Pakistan for approximately three weeks. The applicant explained to the Tribunal that (while in Pakistan), he was living at his cousin’s home which also had ‘security’ and when he chose to travel, he would frequently change vehicles so he could not be followed by others. The Tribunal noted that the applicant described the ‘threat’ while he was in Pakistan as ‘real’ but ‘he took precautions.’[38] The Tribunal accepts from the medical evidence submitted by the applicant that the applicant’s mother was in 2018, ill with a heart condition which caused her hospitalisation.[39] Obviously, the applicant had deemed it necessary to see his mother. What is of interest here is, that a person who was in genuine fear for his life travelled back to hostile territory and remained there for a considerable period of time – three weeks. From the description of the security provided one could conclude the applicant considered the threat real. What is not explained is this: why does a person who leaves his homeland because of fear for his life, fearing assassination at any moment, chooses to return when he has described his potential assassins as persons with familial/commercial/political networks ‘which made it easy for them to track down the applicant wherever he located within Pakistan.’ Moreover, the applicant refers to the ‘evidence’ that his witnesses raised that because of the ‘inter-related familial and social connections’ ‘made it almost impossible for a [the applicant’s] family secret (such as the return of the applicant to Pakistan) to be kept from the notice of one or the other members of [Ms A’s] family.’ So, on the applicant’s and his witness’ own admissions, [Ms A’s] family’s influence would have located and if (the real situation was as it was presented to the Tribunal – which it was not) needed liquidated the applicant because of an existing vendetta. Nothing of the sort occurred in 2018 except we are told that on the last day when he (the applicant) was leaving to return to Australia, his car was shot at while he was travelling to the airport. The Tribunal enquired about this during the hearing. At first, the applicant said that the car he was travelling in was ‘shot at’. Then, he admitted that this ‘…may have been a random shooting’ with anyone being the target. This indicates clearly to the Tribunal, that the applicant’s version of events was not the actual truth. He was unable to provide a clear description of what happened. Indeed, considering the descriptions provided of the members of [Ms A’s] family, and their connections and networks, the Tribunal does not consider that if there was an actual threat and an actual assailant with such killing potential, the applicant would have taken such a chance to travel to his own place of execution. The description of [Ms A’s] family as provided to the Tribunal by the applicant and his witnesses would have had him ‘dead upon arrival at the airport’ or ‘at the airport when he was leaving’. Instead, he stayed in what he described - dangerous territory - without actual harm occurring to him. Again, considering the evidence as provided and the explanations submitted, the applicant’s version of events concerning his return to Pakistan in 2018, the truth is his mother’s illness, the remainder of what was said (that took place) taken in unison with the evidence and conclusions reached by the Tribunal thus far on other matters, was nothing more than the applicant trying to add to his claims such colour as to attract the protection obligations of Australia. The Tribunal is not satisfied and finds that the applicant and his witnesses have provided the Tribunal with a credible and truthful explanation on these aspects of the applicant’s claim for protection.

   Legal proceedings contesting [the applicant’s] Family’s ownership of a parcel of land

   [38] see, paragraph [57] of this applicant’s evidence to the Tribunal. ALSO, see the undated but sworn Affidavit of [Mr F] detailing the ‘security measures’ he had put in place for when his brother visited Pakistan in 2018 to see his ailing mother.

   [39] see AAT File for hospital documents and details of mother’s medical condition.

5. The Tribunal noted that the applicant submitted translated documents concerning a land dispute between the two families which was before the High Court.[40] In particular, it was claimed that the land in question [the applicant’s] family had inherited this parcel of land from a relative. The land inherited was jointly owned. One of the joint owners, it was submitted, that [name deleted] sold his share of the land to [Mr I]. It was submitted that [Mr I] was a colleague of [Mr G] ([Mr B]’s father) and was described as a ‘well-known land grabber’. ‘Land grabbing’ it was submitted is ‘a well-known, notorious practice in Pakistan’. It applicant’s submission went on to claim that ‘when [Mr I’s company] purchased a share from the joint owner, they illegally took possession of [the applicant’s] [family’s] shareholding.’ Thereafter, the Tribunal was told that [Mr I’s company] had lodged and FIR against the applicant’s father and his brothers. The bail application went to the High Court and that part of the application has been resolved but the case is ongoing and has been referred to trial to a lower court. It was submitted that the ‘[the applicant’s] family is aware through their family connections and networks that [Mr G] is using [Mr I’s company]’s owner (a [named person]) as a proxy to take vengeance on [the applicant’s] family.’ It was also claimed that [Ms A’s] family is well connected politically, with a close contact and ally in the locally-strong political party – the Muslim League Nawaz – and [an ex-Interior Minister]. The applicant claimed that this matter is ‘real, ongoing and very stressful for [the applicant’s] family…he goes on to conclude ‘[the applicant’s family] are caught up in a Kafkaesque nightmare from which they cannot withdraw.’

   [40] see, AAT File for translated High Court documents.

6. The Tribunal accepts on the evidence (written) before it that there are issues currently before the High Court concerning a land dispute between the two families. In the circumstances, on the evidence presented to the Tribunal, the two families have committed their dispute for resolution within the judicial system of Pakistan. The Tribunal has referenced information concerning the state of the judiciary in Pakistan. In Pakistan the Supreme Court sits at the apex of the judicial system and is followed by five provincial and regional high courts and numerous district courts.[41] The Constitution guarantees the independence of the judiciary. In the lead up to the 2018 general elections, there were widespread claims of military interference/collusion with the Supreme Court to destabilise the then Pakistan Muslim League – Nawaz government, calling this independence into question.[42]

   [41] DFAT, Country Information – Pakistan report – dated 20 February 2019 at paragraph [5.16] at p. 64.

   [42] Ibid, see paragraph [5.17] at p. 64.

7. Pakistan has a range of other formal and informal judicial bodies. Although subordinate to the Supreme Court, the Federal Sharia Court (FSC) is a parallel court responsible for ensuring laws are consistent with Islamic principles. The FSC has jurisdiction to examine the judgements of lower courts in hudood cases, which arise from Hudood Ordinances governing Muslim behaviour.[43] DFAT reports that the judicial system is overburdened with a backlog of cases waiting to be heard. DFAT is aware of cases where accused people have spent decades in pre-trial detention only to be acquitted by the Supreme Court because of a lack of evidence. Local sources claim that media pressure is often required to resolve pending cases.[44] Also, local, and international observers report corruption in the judicial system, as well as intimidation of judges, particularly in religiously sensitive cases, such as those involving blasphemy. DFAT is aware of reports of military pressure on the Supreme Court judges following judicial involvement in disappearance cases and other cases affecting military interests.[45]

   [43] Ibid, see p. 64

   [44] Ibid, see paragraph [5.22] at p. 65

   [45] Ibid, see paragraph [5.23] at p. 65

8. Though the judicial system has deep faults associated with its function and its ability to provide justice, in certain cases, it nevertheless, does function reasonably well and is open to be used to settle matters of the kind the applicant claims – his family’s land dispute. The matter is before the High Court and within the legal system awaiting its resolution. There is no evidence before the Tribunal to indicate that the case has been in any way the subject of inappropriate interference by others. The applicant claims the potential for some interference, but it is a claim which has not been established with clear evidence. One of the parties, the Tribunal was told was involved in politics and might have had a political past (as claimed) but there is no evidence that the political interference feared has actual occurred. It was all a means of enhancing the claim with another claim to add emphasis of a serious and immediate ‘vendetta’ which related allegedly to the applicant’s ‘relationship’ with his ‘cousin’ who no longer is alive. The Tribunal accepts there is a land dispute between the two families, but it is a dispute that is being sufficiently dealt with in the Courts. More to the point, the applicant and his family in the Tribunal’s opinion have available to them, effective protection measures in Pakistan in the Court (which they have accessed) in order to protect their proprietary interests from any interference by others as is provided for by s. 5LA of the Act. Moreover, though the judicial system may have issues on certain areas it is called upon to deal with (involving the military and religion) Pakistan as a state is taken to be able to offer protection. That protection against persecution (in this instance, the land in dispute) is accessible and it is durable and, in this matter, handled by an impartial judicial system as provided for by s.5LA(2) of the Act.

100.   Therefore, based on the applicant’s evidence, the Tribunal finds that there is no real chance the applicant will be seriously harmed in the event he returns to Pakistan as a result of a land dispute as claimed.

Applicant’s claim being shot at on the road to the airport

101.   The applicant claimed that when he was travelling to the airport completing his visit to Pakistan in 2018, he was shot at. The applicant’s witnesses claimed ‘that they saw a gun pointed directly towards them (all travelling in the same car). The Tribunal finds and concludes this claim highly speculative and lacking credibility. The applicant stayed for a considerable period of time in Pakistan (in 2018) if his assailants had been determined to assassinate him surely attempts would have been made. More to the point, [Ms A’s] family according to the applicant’s own evidence and the evidence of his witness (on oath) - had wide networks capable of locating him and dealing with him as they wished. Instead, he remained in Pakistan in his home area, travelled around his local area and only when he leaves for his return to Australia there is an assassination attempt made on him while he travels to the airport. The Tribunal finds this explanation unconvincing because (according to his evidence) his attackers would have known where he was and would have harmed him if that was their intention or if that was the actual truth of the circumstances. In the Tribunal’s conclusion this is a mere embellishment of the truth, introduced only to make more attractive the applicant’s claim for Protection. The Tribunal does not accept this claim as the truth and does not accept there is any real chance the applicant will suffer serious harm because of this ‘road attack’ in 2018 as claimed.

The applicant’s medical history and prognosis as a sufferer of PTSD

102.   The Tribunal noted the contents of three medical reports provided by the applicant.[46] The Tribunal noted that two of the reports made reference to the applicant’s state of mind and the ‘events’ which he experienced in Pakistan.

[46] see AAT File:

103.   The Tribunal noted that [a named doctor] in her report[47] dated 3 March 2021 stated that the applicant’s illness included major depressive illness, generalised anxiety disorder, PTSD/complex trauma, and somatisation which she opines are causally linked to ‘unimaginable trauma’ in Pakistan.

[47] Ibid

104.   [A second doctor]’s report dated 15 March 2021 states that the applicant’s condition meets the ‘DSM5 Diagnostic Criteria of Chronic Post-Traumatic Stress Disorder.’ [The second doctor] goes on to report as follows:

[The applicant] scored quite high on most of the criteria which suggests PTSD of severe intensity. His presentation and symptoms are consistent with current and chronic symptoms of PTSD in response to reported exposure. He continues to battle significant issues of grief and bereavement related to the death of the girl and he says frequently has feelings of guilt related to her death and the indirect impact on his family….

105.   The applicant, at the hearing submitted that ‘returning anywhere to Pakistan filed him with fear and terror’ and that ‘time spent there was terrifying…’ He also claimed (based on his medical evidence) ‘not physically or mentally strong enough to suffer any more threats.’

106.   With regards to the medical evidence submitted, it would have greatly assisted the Tribunal if the applicant had made available for questioning the medical experts who had provided the expert opinions. This, for reasons best known to the applicant and his legal advisor, was not the case in this instance. It would have assisted the Tribunal greatly if such experts were made available in order for the Tribunal to talk through with them the basis of their expert opinions and how they had arrived at their conclusions. What is of interest with this evidence, is the fact that the applicant returned to Pakistan in 2018 regardless of his ‘fear and terror’ or when he was ‘not physically or mentally strong enough to suffer anymore threats.’ Simple question – why return to the source of all of your problems? Then, claiming before the Tribunal if forced to return ‘will be fatal for someone like the applicant with his PTSD.’ The Tribunal makes no finding on the expert evidence submitted without having been provided with the medical experts’ live evidence at the hearing. Moreover, if the applicant has PTSD – a mental illness which requires attention and medication if he were to be returned to Pakistan and that he would be in some way prejudice because of a lack of medical experts qualified to treat and assist him in Pakistan – that was not claimed. Nevertheless, for completeness’ sake, the Tribunal has turned its mind to the issue of treatment of PTSD in Pakistan.

107.   The Tribunal has considered the applicant’s mental health and in particular, the medical opinions provided. The Tribunal notes that at the hearing the applicant was able to participate and to give clear and concise evidence to the Tribunal. He understood the proceeding and was able to answer all questions put to him by the Tribunal. As a result, the Tribunal was satisfied that his diagnosis of PTSD did not affect his ability to give evidence and to make submissions before the Tribunal.

108.   The Tribunal notes that the country information reports that mental health is under-sourced in Pakistan. The allocated health budget in Pakistan is 0.4% of the total healthcare expenditure.[48] There are five mental health hospitals in Pakistan and the number of mental health outpatient facilities is 4,356, with 14 mental health day-treatment facilities.[49] There are 18 NGOs in the country involved in individual assistance activities such as counselling, housing or support groups.[50] The total number of human resources working in mental health facilities or private practice per 100,000 population is 87,023, among which 342 are psychiatrists, of which 45% work for government-run mental facilities and 51% work with non-governmental organisations and other private institutions.[51] This shows that the infrastructure does not meet the population needs for mental health care.

[48] Muhammad Gadit, Amin A. “Is there a visible mental health policy in Pakistan?” Journal of Pakistan Medical Association.

[49] W.H.O. Mental Health Atlas Country Profile 2014.

[50] Muhammad Gadit, Amin A. Op cit.

[51] World Health Organisation, Mental Health in Pakistan, available at:

109.   The country information reports that on 10 October 2019, Pakistan’s President Arif Alvi launched the President’s Programme to Promote Mental Health of Pakistanis.[52] The program is to be rolled out across Pakistan within five years. The first phase of the program is to emphasise the role of early-life interventions that promote mental health and prevention of mental illness, while the second phase is to train teachers in skills and strategies to promote mental health in their schools and the early recognition and management of mental health problems.

[52] The Lancet ‘Mental Health Care in Pakistan  boosted by Highest Office’ by Zafar Mirza and Atif Rahman 21 December 2019,  Therefore, while the Tribunal acknowledges that mental health care is generally under-sourced in Pakistan, it appears that the issue has been recognised by the authorities and as such more resources are being applied to improve mental health care within the country. There is no evidence to suggest that as a Pakistani citizen, and in particular a Sunni Muslim, the applicant would be denied medical care or that he would be denied access to health care at the same rate or opportunity as any other citizen of the country. As a result, the Tribunal finds that the applicant would be able to access health care in Pakistan at the same rate as other citizens.

111.   Accordingly, while the Tribunal accepts that the applicant is suffering from mental health issues, there is no evidence that he would be denied access to such care on a systematic/and or discriminatory basis. As a result, the Tribunal finds that there is no real chance of the applicant does not have a well-founded fear of persecution as a result of his mental health as provided for by s.5J(1)(a) due to the fact that it does not involve systematic and discriminatory treatment as is required by s.5J(4)(a) of the Act.

Conclusions on claims and Convention grounds

112.   For the reasons provided by the Tribunal above, the Tribunal has found that the applicant was not threatened because of a relationship he had with a woman, that was his cousin and of a different caste or that as a result of that relationship, he was targeted by the female’s brother for the reason of his relationship with his sister nor that female’s brother had target him at very occasions and the applicant’s family involved in an ongoing dispute with the female’s family. Accordingly, the Tribunal has considered the applicant’s claims and is not satisfied that he has a well-founded fear of persecution for a Convention reason.

113.   Having regard to all the circumstances and findings above, considered individually and cumulatively and having considered Article 1A(2) of the Convention and s. 91R of the Act alongside all available country information, the Tribunal finds that there is no real chance the applicant will suffer serious harm in the event that he returns to Pakistan for any Convention reason. That is, the Tribunal finds that he does not face a real chance of serious harm, now or into the reasonably foreseeable future, for any Convention reason, and therefore does not have a well-founded fear of persecution.

114.   As such, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s. 36(2)(a).

Complementary Protection

115.   In considering whether the applicant meets the complementary protection criterion under s. 36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will significant harm. In this case, the Tribunal has found that the applicant is a national of Pakistan and the Tribunal therefore finds that Pakistan is the ‘receiving country’ for these purposes.

116.   The applicant claims that he satisfies the requirements under s. 36(2)(aa) by reason that he faces a real risk of significant harm including depravation of life, torture, cruel or inhuman treatment or punishment and degrading treatment or punishment. However, for the reasons set out in the body of this decision, the Tribunal is not satisfied that the applicant was the victim of attacks and threats as claimed by reason of a relationship he had with a female who was a victim of an honour killing or that this female’s brother had (with his family) targeted the applicant. Further, the Tribunal is not satisfied that the applicant was threatened when he returned to Pakistan (in 2018) as he claimed. The Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being returned to Pakistan there is a real risk that he will suffer significant harm based on a relationship he had with a female (her family and brother disapproved of) or as a result of sustained reprisals by the female’s family.

Applicant’s involvement in the Land dispute

117.   In addition, for the reasons expressed above, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary or foreseeable consequence of his involvement in the land dispute that upon his return to Pakistan there is a real risk that he will suffer significant harm.

Applicant’s mental health

118.   The Tribunal has accepted the applicant’s claim he has suffered from PTSD. There is no evidence of harm the applicant would suffer as a result of his mental health condition in the event that he returns to Pakistan. While the Tribunal accepts that mental health is not at an entirely satisfactory level in Pakistan, care is available both privately and via the public health system.[53]

[53] Mental Health Priorities in Pakistan

119.   In any event, the definition of ‘significant harm’ under complementary protection requires an element of intent. That is an act or omission by which the significant harm (torture, cruel or inhumane treatment or punishment or degrading treatment or punishment) is intentionally inflicted upon a person for a specified purpose or reason. Therefore intent, in this context, requires an actual, subjective, intention on the part of a person to bring about the applicant’s suffering by their conduct.[54]

[54] SZTAL v MIBP; SZTGM v MIBP [2017] HCA 34 (Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ), 6 September 2017 at [26]-[27] and [114]. This upheld the Full Federal Court Judgement in SZTAL v MIBP (2016) 243 FCR 556.

120.   The Tribunal has found that the claimed threats or attacks were not because of the applicant’s relationship with a female or that as a result of this relationship, the applicant and have been targeted by the female’s family. As a result, there is no actual, subjective, intention on the part of any person to have brought on the applicant mental depression or to cause him significant harm by reason of his mental illness upon his return to Pakistan.

121.   The Tribunal therefore finds that there is no real risk that the applicant’s mental condition will cause him significant harm upon his return to Pakistan.

122.   At no stage did the applicant advance any other reason, such as his race, nationality, or religion, in his written or oral claims that is owed Australia’s protection obligations. The Tribunal therefore finds there are no more residual claims, including based on the applicant’s accepted circumstances, to be considered.

123.   Having regard to all the circumstances and finds above, considered individually and cumulatively, the Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk he will suffer harm as required by s.36(2)(aa). The Tribunal therefore finds that Australia does not owe him any protection obligations pursuant to s. 36(2)(aa) of the Act.

CONCLUSIONS

124.   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) of the Act.

125.   Having concluded that the applicant does not meet the refugee criterion in s. 36(2)(a), the Tribunal has considered the alternative criterion (complementary protection) 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) of the Act.

126.   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

127.   The Tribunal affirms the decision not to grant the applicant a protection visa.

Peter Vlahos
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

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(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.

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