1718354 (Refugee)

1718354 (Refugee) [2021] AATA 1859 (29 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1718354

COUNTRY OF REFERENCE: Pakistan
MEMBER:Luke Hardy
DATE:29 April 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 29 April 2021 at 10:38am
CATCHWORDS
REFUGEE – protection visa – Pakistan – particular social group – homosexual male – rejection by family members – refusing family pressure to marry – money transfers to family – fear of killing – delay in applying for protection – return visit to Pakistan – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 424
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559 at 596
MIMA v Rajalingam (1999) 93 FCR 220
MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; 243 FCR 1; 155 ALD 98
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Sun v MIBP [2016] FCAFC 52
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 28 July 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, [the applicant], is a citizen of Pakistan. He arrived in Australia [in] February 2014 on a student visa valid to 21 September 2017. He departed Australia for Pakistan [in] January 2016 and re-entered Australia [in] February 2016, on the same student visa valid to 21 September 2017. He lodged a protection visa application, claiming homosexual orientation, on 2 June 2017. The delegate refused to grant the visa on 28 July 2017.
[The applicant] appeared before the Tribunal on 16 April 2021 to give oral evidence and present arguments. He was accompanied by his adviser. The hearing was facilitated by an interpreter in the English-Urdu medium.
For the purposes of this review, [the applicant] submitted a copy of the delegate’s decision in this matter. That record contains a summary of [the applicant’s] evidence including his claims and evidence at interview, along with an identification of issues that the delegate raised with [the applicant].
One of these issues includes remittances of money by [the applicant], respectively, to his father and mother back in Pakistan. The evidence of this appears in internal working or business affairs documents available, or made available to the Department of Home Affairs. This material was covered by a s.438(1) non-disclosure certificate, intended to prevent the Tribunal from mentioning it to [the applicant] on the grounds of having been provided ‘anonymously.” I am of the opinion that the non-disclosure certificate is invalid as it covers documents that were evidently shared internally, i.e., within the government, and is therefore, as I have put it, internal working documentation. As such it may be disclosed.[1]
[1] MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; 243 FCR 1; 155 ALD 98
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the "refugee" criterion, or on other "complementary protection" grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, he or she 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: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she 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 that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a 'well-founded fear of persecution' and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) ("the complementary protection criterion"). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration - PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines - and relevant 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
The issues
The main issue in this case is whether, on accepted evidence, [the applicant] is entitled to protection in Australia as a refugee or, if not, on complementary protection grounds.
For the following reasons, I have concluded that the decision under review should be affirmed.
Approaching claims relating to sexual orientation
As noted earlier, [the applicant] claims he is homosexual, or “gay”, and, accordingly, a member of one of the LGBT+ sexual orientation minorities. He claims he has been ostracised by his immediate family. He claims fear of being persecuted in Pakistan where acts commonly associated with homosexuality are both social taboo, sinful according to Islam (which religion he claims no longer to follow) and punishable under state law. He claims the persecution will take the form of physical and psychological abuse, potential imprisonment and maybe even extrajudicial killing. For the purposes of determining refugee status, his claims meet the "membership of a particularly social group" criterion in s.5J(1)(a) of the Act. For the purposes of determining refugee status and complementary protection, respectively, the harm he claims to fear can reasonably be regarded as serious harm amounting to persecution for the purposes of s.5J(4)(b) and (5) of the Act, and significant harm for the purposes of s.5(1) of the Act.
It is important to recognise before discussing [the applicant’s] evidence that I am mindful of the need for care in assessing claims about sexual orientation. It may be easy to assert such claims, yet difficult for applicants to substantiate and for decision-makers to evaluate. By their very nature, such claims involve private matters of self-identity, subjective world view and sexual conduct, and sometimes personal issues or incidents that may be stressful or unresolved. Social, cultural and religious attitudes to homosexuality in an applicant's society may exacerbate such problems. In this context, [the applicant] emphasised the conservative nature of Pakistani society in his original statement of claims to the Department of Home Affairs (the Department).
Relevant to this, I have had regard to UNHCR's Guidelines on International Protection No. 9: Claims to Refugee Status based on Sexual Orientation and/or Gender Identity within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees,[2] by which the Tribunal is not bound but which nevertheless provide sound guidance in matters like the present one, not only for the purposes of determining refugee status but also in the context of assessing eligibility for complementary protection. In particular, the Guidelines stress sensitivity towards, and accommodation of, the individual applicant, as distinct from coming to the issue with a set, even an expanding set, of expected answers to questions.
[2] HCR/GIP/12/09, 23 October 2012
For the purposes of assessing credibility, for example, the Guidelines propose a variety of non-exhaustive but helpful considerations:
62. Ascertaining the applicant's LGBTI background is essentially an issue of credibility. The assessment of credibility in such cases needs to be undertaken in an individualized and sensitive way. Exploring elements around the applicant's personal perceptions, feelings and experiences of difference, stigma and shame are usually more likely to help the decision maker ascertain the applicant's sexual orientation or gender identity, rather than a focus on sexual practices.
63. Both open-ended and specific questions that are crafted in a non-judgemental manner may allow the applicant to explain his or her claim in a non-confrontational way. Developing a list of questions in preparation of the interview may be helpful, however, it is important to bear in mind that there is no magic formula of questions to ask and no set of "right" answers in response. Useful areas of questioning may include the following:
i.           Self-identification: Self-identification as a LGBTI person should be taken as an indication of the applicant's sexual orientation and/or gender identity. The social and cultural background of the applicant may affect how the person self-identifies. Some LGB individuals, for example, may harbour deep shame and/or internalized homophobia, leading them to deny their sexual orientation and/or to adopt verbal and physical behaviours in line with heterosexual norms and roles. Applicants from highly intolerant countries may, for instance, not readily identify as LGBTI. This alone should not rule out that the applicant could have a claim based on sexual orientation or gender identity where other indicators are present.
ii.          Childhood: In some cases, before LGBTI individuals come to understand their own identity fully, they may feel "different" as children. When relevant, probing this experience of "difference" can be helpful to establishing the applicant's identity. The core attractions that form the basis for adult sexual orientation may emerge between middle childhood and early adolescence, while some may not experience same-sex attraction until later in life. Likewise, persons may not be aware of their full gender identity until adolescence, early adulthood or later in life, as gender codes in many societies may be less prescriptive or strict during childhood than in (early) adulthood.
iii.         Self-Realization: The expression "coming out" can mean both an LGBTI person's coming to terms with his or her own LGBTI identity and/or the individual communicating his or her identity to others. Questions about both of these "coming out" or self-realization processes may be a useful way to get the applicant talking about his or her identity, including in the country of origin as well as in the country of asylum. Some people know that they are LGBTI for a long time before, for example, they actually pursue relationships with other people, and/or they express their identity openly. Some, for example, may engage in sexual activity (with same-sex and/or other-sex partners) before assigning a clear label to their sexual orientation. Prejudice and discrimination may make it difficult for people to come to terms with their sexual orientation and/or gender identity and it can, therefore, be a slow process.
iv.         Gender identity: The fact that a transgender applicant has not undergone any medical treatment or other steps to help his or her outward appearance match the preferred identity should not be taken as evidence that the person is not transgender. Some transgender people identify with their chosen identity without medical treatment as part of their transition, while others do not have access to such treatment. It may be appropriate to ask questions about any steps that a transgender applicant has taken in his or her transition.
v.          Non-conformity: LGBTI applicants may have grown up in cultures where their sexuality and/or gender identity is shameful or taboo. As a result, they may struggle with their sexual orientation or gender identity at some point in their lives. This may move them away from, or place them in opposition to their families, friends, communities and society in general. Experiences of disapproval and of "being different" or the "other" may result in feelings of shame, stigmatization or isolation.
vi.         Family Relationships: Applicants may or may not have disclosed their sexual orientation and/or gender identity to close family members. Such disclosures may be fraught with difficulty and can lead to violent and abusive reactions by family members. As noted above, an applicant may be married, or divorced and/or have children. These factors by themselves do not mean that the applicant is not LGBTI. Should concerns of the credibility of an applicant who is married arise, it may be appropriate to ask the applicant a few questions surrounding the reasons for marriage. If the applicant is able to provide a consistent and reasonable explanation of why he or she is married and/or has children, the portion of the testimony should be found credible.
vii.        Romantic and Sexual Relationships: The applicant's relationships with and attraction to partners, or their hope to have future relationships, will usually be part of their narrative of LGBTI individuals. Not everyone, however, especially young LGBTI people, will have had romantic or sexual relationships. The fact that an applicant has not had any relationship(s) in the country of origin does not necessarily mean that he or she is not LGBTI. It may rather be an indication that he or she has been seeking to avoid harm. Presuming that the applicant has been involved in a same-sex relationship, decision makers need to be sensitive with regard to questioning about past and current relationships since it involves personal information which the applicant may be reluctant to discuss in an interview setting. Detailed questions about the applicant's sex life should be avoided. It is not an effective method of ascertaining the well-foundedness of the applicant's fear of persecution on account of his or her sexual orientation and/or gender identity. Interviewers and decision makers need to bear in mind that sexual orientation and gender identity are about a person's identity, whether or not that identity is manifested through sexual acts.
viii.       Community Relationship: Questions about the applicant's knowledge of LGBTI contacts, groups and activities in the country of origin and asylum may be useful. It is important to note, however, that applicants who were not open about their sexual orientation or gender identity in the country of origin may not have information about LGBTI venues or culture. For example, ignorance of commonly known meeting places and activities for LGBTI groups is not necessarily indicative of the applicant's lack of credibility. Lack of engagement with other members of the LGBTI community in the country of asylum or failure to join LGBTI groups there may be explained by economic factors, geographic location, language and/or cultural barriers, lack of such opportunities, personal choices or a fear of exposure.
ix.         Religion: Where the applicant's personal identity is connected with his/her faith, religion and/or belief, this may be helpful to examine as an additional narrative about their sexual orientation or gender identity. The influence of religion in the lives of LGBTI persons can be complex, dynamic, and a source of ambivalence.
Again, the above-cited considerations are neither exhaustive nor comprehensive, but they do provide useful guidance for approaching matters like the present one on a case-by-case basis. Essentially, as the Guidelines emphasise, this is not a matter that will necessarily be explored fairly through the format of a quiz. Meanwhile, accounts or evidence indicative of same-sex intimacy may or may not be as helpful to relevant enquiry as articulation of individual, personal perspectives and circumstances.
Ultimately, it is important to encourage the applicant to provide an individual human narrative in an environment that is as comfortable for that person as possible, notwithstanding the inquisitorial milieu, and to make findings of fact on that narrative and other relevant factors, including, but not limited to, independent third-party information and expert opinion.
In this matter, I have also had regard to the Tribunal's own published guidelines,[3] and to relevant Australian court rulings, regarding the taking of evidence from vulnerable persons, and also regarding the issue of credibility.
[3] Migration and Refugee Division Guidelines on the Assessment of Credibility, 2015 revised 20 December 2017, Migration and Refugee Division Guidelines on Vulnerable Persons, November 2018,
Original claims to the Department of Home Affairs
[The applicant] claimed in a statutory declaration attached to his June 2016 protection visa application that he was raised in Punjab, Pakistan, along with [his siblings]. He said he is not religious. He said he came to Australia to study towards the degree [specified], a pursuit that appeared to have continuity with studies completed in Pakistan.
[The applicant] claimed he realised he was gay when he was [age] years old after taking stock of feelings of desire towards other males. He claimed that in December 2011, at [this age], he was having sexual relations with another [same age] year-old male, named [Mr A], during an evening at his family home. He claimed his father walked in on them both and beat him up.
In this statement, [the applicant] did not describe subsequent circumstances in Pakistan between 2011 and 2014 any detail, except to say that after the abovementioned evening, he and his father did not talk much, and to say that up until the time he came to Australia he never had any employment because he was “studying and being supported by family.” This support evidently appears to have continued between [the applicant’s] completion of his secondary education in [year] and his departure for Australia in February 2014.

[The applicant] said that in or around June 2012 a boy in his hometown was assaulted by locals and the police on grounds that he was gay, or perceived to be so, and disappeared thereafter. He said that he feared the same would happen to him. However, it is not clear from his statement of claims whether he fled Pakistan when he did in 2014 or simply travelled here, supported by his parents to continue his education, because elsewhere in his statement, he indicated that his ability to study here was made financially possible exclusively by his parents.
[The applicant] acknowledged that he returned to stay with his family during what appears to have been a semester break in January-February 2016. He claimed that no-one came to pick him up at the airport and that he had to make his own way home, where his family pressured him to get married. He did not provide any detail as to how his family saw this happening during what appears to have been a short college vacation visit back home. In any event, [the applicant] claimed he explicitly refused and explicitly told his family he did not want to marry a woman. He claimed that after this incident he did not have any further communication with his family.
[The applicant] claimed that, after he returned to Australia, his family stopped sending him funds with the result that he fell behind in his tuition fees. He implied this prevented him from continuing his studies, but he did not explicitly say when he stopped attending college.
[The applicant] claimed that since coming to Australia he had been attending “Guy [sic] clubs where expression of my sexual orientation is never an issue.” He said this gave him comfort but stress at the same time, as he was at the same time afraid of being discovered by Pakistani nationals here and being banned from mixing with the Muslim and, in particular, Pakistani community here.
[The applicant] claimed he was consulting a GP and a psychologist for treatment of depression, anxiety and some alcohol abuse. He submitted a psychiatrist’s report dated 27 May 2017. On the basis of [the applicant’s] words to the psychiatrist, the latter did not go into detail about treatment, but did suggest referring [the applicant] to a psychologist for further contact and to community based legal support service to help him with his visa issues.
Evidence discussed with the delegate
[The applicant] was interviewed by the Minister’s delegate on 21 July 2017. It was evident in [the applicant’s] claims to the delegate that the hostile way his family had treated him was a central factor in his claims about mistreatment due to his sexual orientation.
[The applicant] said his family stopped funding his study in Australia in the second half of 2016. He said he had not had any communication with his family, including his mother and siblings for around seven or eight months, which would have been since November or December 2016. He told the delegate that he had not had any communication or interaction with his father since leaving Pakistan in February 2016. He told the delegate he had never sent money to his family. He said he had been financially dependent on his parents, rather than they upon him. He said he had had to get two jobs to try and cover his tuition costs and subsistence during the second half of 2016.
[The applicant] told the delegate that his parents cut of his funding to try and force him to return to Pakistan, in a direct response to his refusal, while he was there at the beginning of 2016, to bow to pressure to marry.
[The applicant] claimed he had not had any sexual relations with any males since arriving in Australia in February 2014. He claimed he patronised a gay bar on Sydney’s Oxford Street.
[The applicant] told the delegate that he initially tried to extend his stay in Australia, for a period, by “intentionally” failing his bachelor degree subjects. On the face of it, this struck me as an odd claim to make, as recipients of student visas are advised by the Department at the time of issue that failure to meet course requirements can lead to a student visa’s cancellation.
The delegate raised with [the applicant] the issue of evidence attesting to his having regularly transferred funds to his family over at least a nine-month period between March and November 2016. The delegate put to [the applicant] that this evidence appeared inconsistent with his claims about having cut or lost all communications with his family after his visit to Pakistan in January-February of that year.
In response, [the applicant] said he had only sent money to his younger brother. In response, [the applicant] evidently said he was the kind of person who could not remember even what he had had for breakfast. The delegate then presented to him evidence of his having sent remittances of funds directly to his father and his mother, in spite of his having claimed there had been no communication or interaction with his father since February 2016. In reply, he said that he had sent this money only at the behest of his mother.
On the face of it, these remittances back to Pakistan potentially demonstrated that [the applicant’s] family needed the money due, perhaps, to some change in circumstances back there. A logical corollary to this is that financial support for his studies in Australia might have been interrupted by circumstances other than his claimed refusal to marry a woman.
The delegate formed the view, on [the applicant’s] performance in response to these issues, that he was not a reliable witness, and accordingly did not accept his substantive claims about sexual orientation as being factual.
Evidence submitted to the Tribunal
Prior to the Tribunal hearing, [the applicant] submitted a statement prepared with the assistance of his adviser:
We refer to AAT's letter dated 22 March 2021 and we make the following submissions for your consideration:
1.The applicant was born in Sargodha, Punjab Pakistan and is currently [age] years old.
2.The applicant's immediate family members consists of:
[Family member’s names]
As far as the applicant is aware, all his family members live in Pakistan.
3.The applicant's father is a retired personal of the Pakistan [named agency]; the applicant was raised in a very traditionalist family
4.The applicant is not religious and does not follow Islam.
5.The applicant first realised he was gay when he was around [age] years old because he always had a sexual desire to be with other males and liked being them.
6.In December 2011, the applicant ([age] years old) was having sex with his male friend [Mr A] in the applicant's room at his house in the evening.
7.The applicant knew [Mr A] because they used to play cricket together and he lived down the street from the applicant's house.
8.From what the applicant can remember, [specified family members] were at the neighbour's house for [a specified event, his little brother was with them at the time. The applicant's father was out of the house but he not does [sic] remember where he went.
9.Later in the evening, the applicant heard his room door open and his father caught him in the sexual act with [Mr A]. The applicant's father physically assaulted the applicant by punching and slapping him really hard. [Mr A] had also run out of the room.
10.After this incident the applicant didn't really talk that much with his father and communication has been very minimal. The applicant's father told him to never speak of what happened.
11.In or about June 2012, in the applicant's town (Sargodha) there was a guy who was found to be homosexual and the applicant saw that person being beaten by the locals and police. The people in the applicant's town said that the guy had disappeared for a month and the applicant does not know if that person was imprisoned or killed. The applicant had heard of this person's disappearance from his neighbours.
12.The applicant fears that this will happen to him if he returns to Pakistan.
13.The applicant left to study in Australia and first arrived in Sydney [in] February 2014 holding a student visa.
14.Since arriving in Australia, the applicant has returned to Pakistan only once, from [January] 2016 to [February] 2016.
15.When the applicant returned to Pakistan in January 2016, no one had come to the airport to receive him and when he went home, his family had pressured him to get married and stay in Pakistan. The applicant refused to do so as he did not want to get married.
16.After this, the applicant has no communication with his father. The applicant did not talk to his mother and siblings for 7-8 months or so when he came back to Australia.
17.Currently the applicant, speaks to his mother and siblings, once or twice a month over the phone.
18.If the applicant were to return to Pakistan, there are no support services for gay people in nor is there any real support from the police.
19.In Australia the applicant is able to freely express homosexual orientation. However, the applicant still holds some fear that if any Pakistani Australian's see him openly being homosexual, then he may not be allowed to mix with the Pakistan/Muslim community.
20.The applicant fears that if he was to return to Pakistan:
•He would be forced into an arranged marriage;
•He would be publicly shamed and punished which could include being stoned, whipped and imprisoned;
•His family could be punished; and
•He could be killed / face death sentence.
21.Being homosexual is punishable in by law (penal code) in Pakistan and by Islam.
22.There is nowhere in Pakistan that the applicant will able to be safe because he is a homosexual.
23.The applicant suffered from major depressive disorder, which arose out of his fears of being harmed and in relation to his homosexuality. If the applicant were to return to Pakistan, he would not be able to receive treatment because he is a homosexual.
The delegate's decision
A delegate of the Minister for Immigration and Border Protection (now the Department of Home Affairs) refused this application on 28 July 2017 and came to the finding that:
i.The applicant is not a homosexual;
ii.The applicant is not estranged from his family; and
iii.The applicant does not face a genuine risk of harm should he return to Pakistan.
iv.The applicant's understanding of the plight of gay males in Pakistan was derived through YouTube and other online sources as opposed to personal involvement/ experience.
v.The applicant has provided financial support to his father despite hostile relations.
We submit the delegate has not assessed the applicant's claims adequately.
Current condition for (male) homosexuals in Pakistan
As per Pakistan's DFAT report¹[1 DFAT Country Information Report - Pakistan 20 February 2019]:
"3.217 Sex between men is illegal in Pakistan. Section 377 of the Penal Code outlaws consensual 'carnal intercourse against the order of nature with any man, woman or animal', punishable by prison sentences ranging from two years to life".
"3.218 Strong and widespread cultural, religious and social intolerance of homosexuality means it is not widely discussed or acknowledged in Pakistan. Same-sex attracted people are often rejected by their families, and can be thrown out of home and forced into sex work. They face significant societal discrimination and, in some cases violence".
"3.219 - People identifying as LGBTI from wealthy and influential families in large urban centres face less discrimination and violence than poor people in rural areas. Nonetheless, even wealthy individuals face high levels of discrimination, and their families often force them into a heterosexual marriage to preserve the family's reputation and social standing".
"3.227 DFAT assesses that LGBTI people face a high risk of official and societal discrimination. The lack of media reporting on violence against LGBTI people reflects in part a lack of recognition of LGBTI issues in Pakistan, and in part the efforts of LGBTI people to conceal their sexual orientation" (i.e. homosexuality).
Therefore, we submit that because the applicant is a member of a particular social group, that being homosexuals, there is a real chance that if he were to live openly as a homosexual man in Pakistan, he would be beaten or assaulted by members of the community or the police and that such harm amounts to serious harm. The applicant would also face significant societal discrimination.
Applicant's homosexuality
The applicant maintains his claim that he is a homosexual. He has instructed us that he has had a few casual relationships with other males in Australia. We attach for lodgement some photos.
The applicant has also suffered from Major Depressive Disorder due to stressors including his of returning to Pakistan because he is a homosexual. We attach for lodgement, the expert witness report by clinical psychiatrist [named]. It is clear that the way in which the applicant expresses his sexual identity (as a homosexual) in Australia, is influenced by his feelings of fear that information about him being homosexual would reach to those in Pakistan, which is why he was limited interaction with the Pakistan-Australian Muslim community.
In respect of the delegates finding that "the applicant's understanding of the plight of gay males in Pakistan was derived through YouTube and other online sources as opposed to personal involvement/experience". We submit that the delegate may have misinterpreted the applicant's contentions because the applicant has had to hide his sexual orientation in Pakistan and was physically attacked by his father. Also research (Harper et al., 2016) ² [Harper G W, Serrano PA, Bruce D, Bauermeister JA. The Internet's Multiple Roles in Facilitating the Sexual Orientation Identity Development of Gay and Bisexual Male Adolescents. American Journal of Men's Health. September 2016:359-376. doi:10.1 l 77/1557988314566227] has found that the internet serves as a great resource for youth to learn more about being a homosexual, the homosexual community and what is means to identify as a homosexual.
In respect of the delegates finding the applicant is not estranged from his family, this is incorrect. Within the ordinary meaning of being 'estranged', the applicant did not contract [sic] his family for 7-8 months after he returned to Australian from Pakistan in 2016. The applicant has instructed us that he has no communication with his father, however he has recently and is in contact with his mother and siblings.
In respect to the delegates claim that he applicant has provided financial support to his father despite hostile relations, the applicant has instructed that he has not provided any financial support to his father.
To the applicant's knowledge, he has only sent money back to Pakistan about 5-6 times before 2017, the applicant has since not sent any money. The purpose of this was to send money for his little brother and at one occasion if was for himself when he went to visit Pakistan in 2016.
Overall, we submit that the applicant meets the criteria for a protection (subclass 866) visa, and that this application should be remitted back to the Department of Home Affairs for reconsideration.
I read the psychologist’s report referred to in this submission: it is dated 19 July 2020 and reports that [the applicant] has consulted the author “ couple of times” since 2017 and been prescribed the antidepressant [daily] “to mitigate the associate [sic] biological features of his condition.” The psychiatrist reported that [the applicant] relapsed into a Major Depressive Disorder in the first quarter of 2020, after his visit on 12 March of that year. The psychiatrist reported that there was a risk of [the applicant] treating his despondency with alcohol instead of prescribed exercise and medicine. In the matter of [the applicant’s] claims, the psychiatrist says in a statutory declaration attached to the report that he is not an independent expert witness as he is [the applicant’s] treating psychiatrist.
The photographs referred to in the submission are four in number, all marked as having been created on 14 April 2021 at 1:00pm. The latter information may refer to when the four images were uploaded by [the applicant’s] adviser, as the date is the same as that on which the photographs were transmitted by email to the Tribunal.
Two of the photographs feature [the applicant] and a tattooed adult male, both shirtless in what appears to be intimate proximity, hugging on a bed. One of them appears to feature the same adult male, viewed from the vicinity of [the applicant’s] left shoulder, with his face close to [the applicant’s] right hip. [The applicant], in this photograph, is wearing a pair of briefs. A third photograph shows what appears to be the same adult male with face turned away from the camera, probably a mobile telephone camera, with the back of his left cheek against [the applicant’s] ear. All three of these photographs are what would colloquially be called “selfies.”
The fourth photograph is also a “selfie” of sorts, this time taken not by [the applicant], but the person accompanying him. In this photograph, [the applicant] can be seen with his tongue out, the latter touching the abdomen of the shirtless photographer who is wearing only underpants and whose face is excluded from the frame. [The applicant] appears fully dressed and is wearing lace-up training shoes. The man in the underpants appears to be sitting astride [the applicant], whose left hand is holding the right of his torso.
None of the photographs feature sexual acts, but two of them broadly describe some kind of potential foreplay. The apparent intent of these photographs is to provide evidence of [the applicant] engaged in intimate acts with other adult males. An additional intention may be to imply [the applicant] engaged in activities, or show him entertaining a degree of intimacy, in which only a gay or bisexual man would participate, and in which a heterosexual male would not, but that argument is not necessarily made out by these photographs on their own.
The Tribunal hearing
Discussion at the Tribunal hearing tended to focus on three particular areas of [the applicant’s] claims, not least for the reason that [the applicant] emphasised these in his submissions and appeared comfortable to discuss them.
I asked [the applicant] initially about his family. He said his father was a retired man on a pension who derived income from some investment properties including a shop. He said his brother is now [age range] and is studying. He said his mother does not work other than in keeping the home. [The applicant] said his family had gone through some financial ups and downs over the years. I asked him if his family had been through any recent “down” times, and he said he could not remember.
[The applicant] said he first realised he was gay at [age range] at a time when other boys at school were talking and bragging about girls and he was not interested in joining in. He said he never had “that feeling.” Meanwhile, his recent submission says he was [an older age] years old when he realised he was gay.
I asked [the applicant] how things started with [Mr A] and he said they used to play in the same cricket team. He said they occasionally hugged and touched each other. He did not suggest that he was talking about sexual touching. I asked him if the kind of body contact he commonly had with [Mr A] was different from what is reportedly common amongst Pakistani youths, who are reportedly comfortable holding hands, or putting arms over each other’s shoulders when walking out and about.[4] [The applicant] acknowledged that these common social tropes and practices were what he was describing; he thus indicated that the touching was not intimate. He said that the difference was that he had a “feeling” when [Mr A] touched or hugged him. Since the topic I had raised here was the question about how things had started and then progressed with [Mr A], I asked [the applicant] how he came to know how [Mr A] felt about him. In reply, he said he could see that [Mr A] enjoyed it when they touched socially. I asked him how he could tell this and he said that [Mr A] used to smile. [The applicant] did not help explain how this helped him and [Mr A] consciously acknowledge, let alone communicate, mutual sexual, or other, intimate attraction.
[4] “Pakistani Culture,” SBS Cultural Atlas, type="1">
I asked [the applicant] about the night his father discovered he was homosexual. He said that he and [Mr A] were still naked together in his room, after having had sex together, when his father came home and found them there. I note this detail differs from what he previously claimed about his father finding him having sex with [Mr A] at the time he walked in.
[The applicant] said his father slapped him straight away and that [Mr A] witnessed this. He said [Mr A] dressed. He said his father shouted at [Mr A] who then ran away. I asked [the applicant] what happened to [Mr A] after that and he said his father told him to stop seeing [Mr A]. I then reminded [the applicant] that my question was in fact about what had happened to [Mr A] after that encounter. In reply, he said that nothing happened to [Mr A]. He said his father did not complain to [Mr A’s] family. He said he thought his father was too ashamed to do so.
I asked [the applicant] why nothing happened to [Mr A] in the claimed circumstances. In reply, he said his father viewed their actions as shameful. I tried to gather more information about what steps his father took and he said his father told him, “You’re not gong to see him again.” I asked [the applicant] how useful it would have been for his father to say this when he and [Mr A] would still be playing cricket together. In reply, he said his father wanted to hide the shame, which reply did not really address my question. I asked [the applicant] the same question again and he then said that his father stopped him playing cricket. This would have been a logical and direct answer to the question when I first asked it, and I was concerned that [the applicant] had not provided it initially. I asked [the applicant] why, in the circumstances, he thought his father would have stopped him playing sport like cricket, something a conservative father might consider a “manly” pursuit, and he did not address the question.
[The applicant] said he went on to finish secondary school in [year], a [time period] after the alleged incident with [Mr A]. He continued to live with his family. He said his father did not want to talk with him after the alleged December 2011 episode.
[The applicant] evidently remained living with his family through 2012 and 2013 and did not work, evidently supported by his parents. Mindful of this, I asked him why he left Pakistan when he did in February 2014 and he said that he decided he could not live in Pakistan and needed to leave. I put to him that from what he had claimed in past submissions his parents had evidently supported his coming to Australia to study, and here his responses appeared to become confused: he said he pushed his mother to let him leave Pakistan, implying that she bent to his will. I asked him how he could have come here on the decision of his mother without support from his father. He then said his father let him leave Pakistan. I asked him if his father was therefore happy to let him depart Pakistan and study in Australia, and he said his father was not. He said it had not been as easy as that. I asked him why his father then let him come here at his father’s expense, and he said that his father knew he was only coming here on a temporary visa.
I put to him that his parents supported him to come to Australia to study for a vocational qualification, in his case [a specified] degree, that would give him a chance of migrating here permanently on a skills visa. I put to him that this appeared to be a common aspiration amongst families in Pakistan who send their children here to study. In response, [the applicant] said this was not true of his family.
I asked [the applicant] if he continued in any way to explore his sexual orientation during the two years between the alleged episode with [Mr A] and his departure for Australia and he said he did not because he was studying full time. This seemed odd for two reasons, as he had been studying full time at the time of the alleged episode with [Mr A] and evidently spent all of 2013 neither studying nor working. In any event, he said he spent what time he could looking at gay porn on the Internet.
I asked [the applicant] why it took more than a year after he finished secondary school before he left Pakistan for Australia. In reply, he said that his initial visa application was rejected and that his second application was delayed by the 2013 general elections in Australia. By this evidence, I infer that he and his parents were agreed on his coming to Australia at least quite soon after he finished his secondary school at college in [year].
[The applicant] acknowledged to me that when he first arrived in Australia he was relieved to be free and away from his parents, and that he was hoping never to have to return to Pakistan again. He said he was happy and relaxed and enjoying the “nightlife” here. I then asked him why, in the claimed circumstances, he went back to Pakistan, apparently voluntarily, after just under two years here. In reply, he said he did so because his mother asked him to do so. I put to him for comment that he might have said that the time was close to commencement of his next semester and that he needed to prepare for it, and that his parents who were investing in his studies might have understood. In reply, he said his parents knew his semester would not start until March. I asked [the applicant] if he had a part-time job at the time and he said he did. He said he quit that job so he could go back to Pakistan. I put to him that that seemed a big interruption that his parents were asking him to undertake, and he concurred. I put to [the applicant] that going back to Pakistan also meant staying with his father who he said was not talking to him. In reply, he said his mother was missing him after two years.
I recall that in the statement through his adviser, [the applicant] claimed that upon his return to Pakistan his parents “pressured him to get married and stay in Pakistan.” He had also said the same in his original statement of claims. I asked [the applicant] when his parents began “pressuring” him and he said the pressure had already begun as soon as he first arrived in Australia. I asked him how soon after his return to Pakistan did the pressure start, or resume, and his reply seemed confused: initially he said “always,” and then he said it had been going on before he returned, and finally said it began two or three days after he returned. He said his parents sued to ask him which cousin he would like to marry. I put to him that if this had been going on for two years since his first arrival in Australia it did not sound like pressure, as he was being offered a choice rather than being told of an arrangement. In reply, he said, his parents always said, “If you like anyone [that’s] good, otherwise we can arrange.” I put to [the applicant] that, in the context of Pakistani society, that did not sound like pressure. (Although I appreciate that it might nevertheless sound like doom to someone who does not want to marry, no matter how gentle the tone and form of the proposition might be.) In reply, [the applicant] seemed to change his evidence: he said his parents started pressuring him to marry in 2017, 2018 and 2019. Overall, [the applicant’s] evidence about being pressured to marry during the time of his visit to Pakistan in 2016 struck me as being somewhat inconsistent.
[The applicant] went on to contradict his earlier claim about his parents trying to prevent him from leaving Pakistan in 2016, as he told me that his parents permitted him to return to Australia to continue his study. He further contradicted this in telling me that his parents continued to finance his studies until 2017, which did not sit with the suggestion that they were trying to pressure him to come back to Pakistan again, whether to marry or for any other reason. In addition, the claim about the family continuing to support him financially up until 2017 when he stopped attending his studies did not sit with his original statement of claims in which he said he had no contact with any of his family between his last departure from Pakistan and up to the date of that statement, which was 2 June 2017.
I infer, for want of evidence to the contrary, that [the applicant’s] parents paid for his second flight to Australia. I observe that in making the return visit to Pakistan, [the applicant] likely cost his parents a significantly larger amount of money on airfares than would originally have been necessary. It appears on the evidence that, far from trying to stop [the applicant] from leaving Pakistan on this second occasion, as claimed, his parents paid for him to go.
In telling me that his parents continued to pay for his studies up until 2017, [the applicant] also contradicted evidence he gave to the delegate, when he said that he paid for his own tuition in Australia in 2016 after returning from Pakistan. It is harder to believe he could have done that on an aggregate of a student’s part-time wages and whatever he was able to earn additionally during his semester break before quitting his job in January 2016.
As noted, [the applicant’s] student visa was valid to 21 September 2017. Having told me that his parents stopped supporting his tuition in 2017, [the applicant] also said to me that he stopped attending his education provider in Australia in 2017. He said he started and stopped studying just at the time the 2017 semester commenced in March of that year. He said his tuition fees were not yet paid up at that stage and that that was why he decided to quit. He said he did not receive any expressions of concern from his education provider such as warnings about late tuition fees or anything like that. He said he did not receive any letters of concern from his education provider because, as he saw it, the education provider could probably see his visa was going to expire in September of that year anyway. It sounds like he quit before the education provider needed to notify him. He then appears to have proceeded to apply for a protection visa before the former Immigration Department could cancel his visa.
Oddly, [the applicant] told me that in 2016 he deliberately failed two subjects in the hope of being able to extend his student visa so that he could stay longer in Australia while sitting posts or in some other appropriate way making up for the failures: all this, according to one version of events, while struggling to pay for his own tuition. I asked him to explain the logic of intentionally failing to meet course requirements as a means of extending a student visa rather than seeing it cancelled. In asking this, I put to him that people who are granted student visas receive information packages from the Department telling them that failure to meet course requirements can lead to cancellation of their student visas. [The applicant’s] responses to the concerns I raised seemed incoherent or, at best, vague, such as when he said that he had seen other people apply for extensions. I asked him for more detail. He said he had forgotten totally which two subjects he failed. He then said he failed [two named courses]. He also said that he went to a migration agent for help in applying for a second student visa and was advised by the agent that he would be better off applying for a protection visa. Overall, [the applicant] did not explain plausibly why he intentionally failed to meet course requirements expecting at the same time to be granted a further student visa. Meanwhile, he said he did not have the money to pay for any tuition that a renewed student visa would permit, so his evidence here seemed illogical.
On this evidence, [the applicant’s] decision to apply for asylum in Australia seemed like an afterthought driven by economic considerations. In addition, when I asked him if the prospect of having his student visa cancelled, or its renewal refused for want of being able to pay tuition fees, motivated his application for a protection visa, he said, “Yes.” I asked him why he had not applied sooner for a protection visa than three and a half years after coming to Australia the first time and after having voluntarily returned to Pakistan in the interim. In reply, he said he had been happy and relaxed here, and distracted by the gay nightlife, and did not know about protection visas until his migration agent mentioned them to him in 2017.
I raised with [the applicant] the subject of the remittances of money he had made respectively to his father and mother during 2016, after his return to Australia from the visit to Pakistan. As noted the information obtained by the Department was the subject of a non-disclosure notice, but particulars of this information were nevertheless discussed in some detail at the interview with the delegate, as reported in writing in the primary decision submitted to me by [the applicant] through his adviser, as well as in the recent submission I had received from [the applicant] through his adviser. In light of all this, I deemed that it was not necessary, and would be redundant, to raise this information with [the applicant] under the protocols of s.424A or s.424AA. However, I gave [the applicant] an adequate opportunity to comment and respond.
[The applicant] said he was in critical circumstances at “the end of 2016” when he lost his job and needed his family to send him money. He said his family refused to send him anything. As noted this evidence does not sit with the claim about his family continuing to support him financially until 2017. I asked [the applicant] if he could be more specific about what he meant by “the end of 2016” and he said July. I put to him that July would have been in the middle of 2016 and he said, “September.”
Focusing on the issue of the money sent back to family, I put to [the applicant] that his claims about needing his family’s support did not appear to sit with the evidence of his having sent numerous remittances of money to his father and mother throughout 2016. Meanwhile, as discussed above, that evidence did not sit with claims he had initially made about not having had any contact with his family between the time he last left Pakistan and the date of the statement attached to his protection visa application in June 2017.
[The applicant] told me that he never sent any money to his father but merely remitted it to an account in his father’s name for use by his brother who had not been old enough at the time to have a bank account. He told me he had asked for the money to be given to his younger brother. He indicated that these items had been purchased.
I note that [the applicant’s] brother would have been about [younger age] at the time. I also note that independent information describes several ways in which a minor can open a bank account conditional only on the formal authorisation of a parent or legal guardian.[5] On that information it seems not entirely correct to say that [the applicant’s] brother would have been too young to have his own bank account.
[5] see also
I asked [the applicant] why the money was sent for his brother, and he said his brother had wanted a mobile telephone and a motorcycle so he could drive himself to school. He said that these are common things that teenagers receive from their parents in Pakistan. I put to him that these sounded like things that kids ask their parents to provide, and he concurred. I put to [the applicant] that on this evidence he seemed to have been helping his father support his brother rather like the way his father had been supporting him, and he agreed. He said that in circumstances where the parents could not provide such support it behove him to do so. I then asked [the applicant] what stopped his parents at the time from being able to pay for these items themselves, and in response he said that parents cannot always help. I asked [the applicant] if his father had regarded the items his brother asked for as being frivolous an unnecessary, and he said, “Yes.” I then put to him that it did not seem that his father objected if, in fact, the items were purchased for or by the brother. [The applicant] did not address this observation but, rather, said that that his younger brother sent him their father’s bank details.
I put to [the applicant] that it could reasonably be inferred from his having sent money back to his family that the latter was going through a period of financial stress, and might not have had enough money to support his studies in Australia. He responded very generally, saying that he sent money to his mother before he sent money to his father. He then said that his siblings asked him to send money so that they could “buy things.” I asked if he considered the items his siblings wanted were closer to being essentials or luxuries, and he said they were “essentials, but a little bit luxuries.” He said that kids at schools needed to have nice watches, etc., to show off to the other kids. I put to [the applicant] that it appeared that his parents, at least at that time, might have been happy for him to continue to reside in Australia and send money home; he rebutted this in reply, saying that his parents only wanted him to return to Pakistan and marry, presumably even without completing the education in which they had evidently heavily invested.
I put explicitly to [the applicant] that the evidence of the remittances to, and communications with, family members throughout 2016 did not sit with his earlier claims about not having had any contact with his family between the time he last left Pakistan, in February 2016 and the date of the statement attached to his protection visa application in June 2017. He told me that all his communications were with his mother or his siblings, but not his father. This response did not resolve the inconsistency.
[The applicant] has attached significance in this case to the disintegration in his relationship with his parents, his father in particular. Specifically, his claims about the relationship intertwine with his claims about how his sexual orientation became known to others and how they treated him as a result. The evidence about [the applicant’s] family is also integral to this case in that [the applicant] claims he will be forced into a heterosexual marriage by parents who have concerns about his sexual orientation and that this coercion will amount to persecution, as he would have to live a lie. As this evidence is so integral to [the applicant’s] case, it is important that it be consistent and plausible. I pause to reflect on this here because [the applicant] said to me that the delegate made up her mind solely on the basis of her findings on his evidence about his relationship with his parents, concluded that he was unreliable on that issue alone and did not even bother to ask questions about the other areas of his claims before reaching her conclusions. He said this had been unfair. It is not hard to understand that he would have seen it this way.
Moving beyond the topics of the delegate’s enquiries, I asked [the applicant] for more detail about his experiences of gay social life including nightlife in Sydney. He told me he started visiting gay entertainment venues from around 2015. He said he was working in a [business] in [Suburb 1] called [name] and used to hear customers telling him that they were going later to Oxford Street, which, I note, is the location of the annual Sydney Gay & Lesbian (or LGBTQ+) Mardi Gras, had its heyday as an international gay hub in the 1980s and 1990s, is become synonymous with “Gay Sydney” in spite of evolving social circumstances, and which still had some gay venues operating in 2015, of which fewer survive today.[6] [The applicant] said he had been going to various gay venues in the Oxford Street precinct around twice a month since 2015.
[6] “'You never wanted to leave': Sydney was the most lively city in the WORLD where people queued 24/7 to get into clubs - before Nanny State laws closed 176 venues and destroyed its nightlife forever,” Daily Mail UK, 17 February 2019,

I asked [the applicant] which venues he attended in and since 2015, and he said that [Venue 1] is his favourite. I note that [Venue 1] is a bar/dance club [at location]. Various websites describe [Venue 1] as a venue that is very popular with queer (LGBTQ+) patrons, presenting drag shows and holding special parties around Mardi Gras time, etc., and that it is also non-exclusive in that it attracts a significant non-LGBTQ+ (heterosexual) patronage. I put to [the applicant], on the basis of this information, that [Venue 1] is a “mixed” venue and he agreed. He correctly said that entry to the venue is free some nights of the week but ticketed on weekends. I asked him if he usually went alone to [Venue 1] and he said he did. I asked him if he had ever made social contacts there and he said he had: he said he had a good time and that this sometimes led to sex later on.
I asked [the applicant] if he ever went to other venues and he said he used to go to [Venue 2], which he described as facing [Venue 1] on the opposite side of [this location]. He said it was just in front of [Venue 1]. He said he would usually go there after leaving [Venue 1]. I asked him how he negotiated being able to get into the pub [from] [Venue 1] since the precinct had been subject to Sydney’s notorious “pub lock out” laws,[7] which were introduced in 2014, and gradually scrapped between the end of 2019 and early 2021. [The applicant] acknowledged that the “lock out” laws meant he would not have been allowed to enter that pub after 1:30am. I then asked him to comment on the question as to who would leave [Venue 1] before 1:30am after having queued up and paid for a ticket to enter. (The mood or “vibe” at [Venue 1] has a reputation for not really getting started until around midnight.) In reply, [the applicant] appeared to agree that people who were inside [Venue 1] close to 1:30 did not usually leave in search of other venues.
[7] “Sydney 'lockout' laws: Australian city ends controversial bar curfews,” BBC News 28 November 2019,
I asked [the applicant] to tell me the last time he attended [Venue 2] and he said it would have been in 2018 or 2019. I asked him why he stopped going and he said “Covid.” I note that Covid-19 lockdowns affecting venues like those on and around Oxford Street did not start in NSW until 18 March 2020.[8] On this evidence it was hard to see that Covid was the reason [the applicant] stopped attending any potentially relevant venue.
[8] COVID-19: a chronology of state and territory government announcements (up until 30 June 2020), 22 October 2020,
Relevant to this, I put a potentially more significant issue to [the applicant]: the pub opposite, or “facing” [Venue 1] [at the specified location] is not [Venue 2]. In response, [the applicant] said he was sure that it was. I expressed surprise that he had been going to that venue for several years and did not know its correct name. This would affect whether he was ever able to turn up at the right place if friends ever said, “Let’s meet at [Venue 2].” In any event, the name of the pub diagonally opposite [Venue 1] is [well known] and is [well identified] on signs facing [the location]: it is [another named venue].[9] When I put this to [the applicant] he continued to say that he was certain that it was called [Venue 2]; which is to say that when I told him the right name of the place it did not seem to trigger, say, the correcting of a momentary memory slip. I put to [the applicant] that [Venue 2] was at least [distance] away and, for that matter, faced away from [Venue 1] (not that it is even possible for either to be visible from the other).
[9] [Deleted.]
[The applicant] appeared to digress in response: he said he also used to go to [Venue 3], which he said was next door to [Business 1]. I put to him that there is no pub next to [Business 1] on Oxford Street.[10] I also put to him, on the basis of website information, that [Venue 3] is not on or near Oxford Street. I told him that it stands [at another location][11] and is not noted in Sydney as a gay venue. (There is another [Venue 3], that one [at a different location][12] in the Sydney CBD, though web searches do not describe this as a gay venue either.) When I put this to [the applicant] he appeared again to digress, saying he had also visited [Venue 4] (which is indeed a gay pub [details deleted] in [Suburb 2]. He said this was [distance] walk from his [employment]. He mentioned another pub called [Venue 5],[13] in [Suburb 1], which I looked up on Google: it does not appear to be a gay venue; rather, it appears more to be a generally youth-oriented venue for rock and roll gigs.
[10] Result of a Google Maps search for “[Business 1] Oxford Street”, [deleted.]
[11] [Deleted.]
[12] [Details deleted.]
[13] [Deleted.]
Back on the issue of [Venue 3], I invited further comment from [the applicant]. In reply, he said he was sure that [Venue 3] was the pub [at a specified location]. I put to him that that pub is [Venue 2][14] and that its name is also writ large above its entrance.
[14] [Deleted.]
I asked [the applicant] if he had any photographs or video clips of attendance at any gay venues in Sydney. He said he did. He showed me some video content of himself socialising on what he said was 13 March 2021 with some male-female couples at a venue that he said was in [Venue 6] in Sydney’s CBD. I put to him that according to my research there are no gay venues in the [Venue 6] complex. He did not rebut this; he said, “Someone told us it was not a great one.” It was difficult to see what point at all [the applicant] was trying to make by showing me the footage he showed. (Although I note here that he used the word “us,” and wondered if he might be referring to a gay friend or friends.)
I asked [the applicant] if he had any photographic or video evidence of ever having attended Oxford Street venues like [Venue 1], and he said he did not (or no longer had any) because his iPhone is a new one. He said that his previous one had been broken. I asked him how the previous unit had been broken and he said that its screen had been cracked. I put to him that it seemed to be common knowledge that mere screen damage would not usually prevent transfer of photo and video date from one mobile telephone to another.[15] In response, [the applicant] then said that his iCloud data storage facility might have been full. (On this evidence, he was talking about having owned an Apple iPhone.) He merely seemed, however, to be speculating here, because he did not suggest having confirmed that his iCloud storage was full.
[15] See or ; or etc.
Having noted that a cracked screen would not prevent transfer of data stored in a person’s iCloud, I had some difficulty being satisfied with [the applicant’s] explanation for having lost up to six years of content in the changeover to his new iPhone, because users of iPhones are usually notified of the imminent filling of their iCloud capacity and offered additional storage space for a nominated fee. In this context of likely notifications and upgraded storage offers, it would be hard merely to speculate that one’s iCloud storage might have been filled. In any event, the contents of a full iCloud storage subscription would still be transferable from an iPhone with a cracked screen to a new unit, and the filling of one’s iCloud storage facility would only result in failure to store the most recent photographs and videos after the facility became full.[16]
[16] See and
I asked [the applicant] to confirm that, as far as his (regular, fortnightly) nightlife over four or five years in Sydney was concerned, he was only able to present the content he had shown me depicting his socialising with straight couples at the venue in [Venue 6]. In reply, he said this was correct because that content was the most recent. In this way he seemed to indicate that he had changed mobile telephones in the last few months. Overall, however, [the applicant] did not provide plausible explanations for the claimed loss of years of less “recent” visual content featuring him at the gay venues he claimed to have regularly attended. His evidence at this stage of the hearing, starting with claims about a cracked screen and then appearing to change to being about an iCloud storage issue, struck me as being improvised.
I invited [the applicant] to discuss the photographs he had submitted along with any other evidence of his gay social and sexual experiences. He did not appear reticent to discuss either topic. He told me he has no gay friends because of the Covid-19 pandemic situation. This struck me as an odd explanation as it only covered the last year or so, whereas [the applicant] claimed to have been socialising in gay or gay-friendly environments since 2015. He had also used the word “us” when talking about how he found the venue at [Venue 6]. I asked him if he had any straight friends who accompanied him to gay venues and he said he did not. I asked him if he had any friends at all and he said he had one best friend called [name] who, he said, is not gay, and who, he also said, he was not seeking to rely upon as a witness in this matter.
Regarding the four photographs, [the applicant] said that three were taken with an [Ethnicity 1] man called [Mr B] who he said he met on the gay social networking App (application) [named]. He did not provide any evidence of [a named App] subscription. He said he and [Mr B] met once and only for casual sex. He said he had 21 photographs of himself with [Mr B] and offered to show me more. I made it clear to him that the Tribunal was not demanding to see private photographs but, while he was looking up the date of the three images featuring him with [Mr B], he showed me one more: this was a photograph, purportedly of [the applicant’s] naked torso, supine and shot from the vicinity of his neck, in which were visible a flaccid penis in the centre of the frame and the vague profile of another human figure situated in the background. He said he had chosen the three photographs he had sent rather than photographs like this one because they were less “vulgar.” I informed him he was not obliged to show any graphic images. I also put to him that graphic photographs, even depicting arousal and/or sexual activity, might not necessarily be probative or even have any weight at all on their own, as they can easily be staged, and he indicated that he understood this. I put to him that such evidence might attract weight or the benefit of the doubt within the context of a broader human narrative. He indicated that he understood.
I asked [the applicant] who was the other man: the one in the fourth photograph; he said he was [an Ethnicity 2] man who had only ever used a pseudonym.
[The applicant] said that the photographs with [Mr B] were taken on 10 February 2021 and the photograph with the [Ethnicity 2] man was taken on 10 December 2020. I asked him for what purpose he had taken and retained these 21 (or more) photographs and he said they were all mementos. He said he had suggested taking them at the time they were taken. He said the two respective partners in the photographs took some too. He said that no-one went on to exchange any photographs.
I asked [the applicant] if he was looking for a longer-term partner and he said he would like to do so in future. As to the present time, his discussion of the subject seemed rational: he said it is a difficult time to try and commence a relationship when his migration status is as yet unresolved, as this would likely prevent him from starting on an equal footing with a prospective partner. I considered his explanation logical, although it is fair to say that it would apply to relationships generally, and not just LGBTQ+ relationships.
[The applicant] mentioned that he had had some problems in January 2020 when he was charged with hitting his flatmate who he said had been bullying him. He said that the matter was dismissed when the flatmate did not appear in court. I have taken this matter into account with regard to the possibility of [the applicant], appearing before the Tribunal, experiencing any significant relevant stress. Overall, however, he seemed relaxed and comfortable, as well as being quite forthcoming with the information he provided throughout the hearing.
We discussed the 19 July 2020 psychologist’s report in which the psychologist had made it clear that he was not an independent witness to the facts described to him by [the applicant]. Speaking to the report, [the applicant’s] adviser drew my attention to the fact that it had been made in a medico-legal capacity for presentation in the context of the dismissed assault charge.
Findings in relation to s.36(2)(a) of the Act
In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[17] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[18]
[17] MIMA v Rajalingam (1999) 93 FCR 220.
[18] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[19] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[20]
[19] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70
[20] Sun v MIBP [2016] FCAFC 52 at [69].
I have considered all of the evidence in this matter cumulatively.
I accept that [the applicant] in a Pakistani national from Punjab. I accept his claims about his family composition. I accept that he is not religious. I accept that he completed his secondary education in [year] and did not have a job in Pakistan. On the evidence, I find that he was supported by his parents during his education in Pakistan and after he completed it. I give some weight to the support his parents gave him at the time. It stands somewhat at odds with the claim about not having been on talking terms with his father since December 2011.
Before proceeding, I turn to the reporting from [the applicant’s] psychiatrist, who makes it clear that he is not an independent witness in this matter. It does not perturb me that the psychiatrist’s report was prepared in the course of a different matter, apparently being the arguing of mitigating factors in defence of [the applicant] in the case that was dismissed. It might potentially be more of an issue if [the applicant] had not discussed his gay claims with the psychiatrist, but in any event he did. However, that on its own does not mean that the claims are true.
Relevant to this case are two questions, since the psychiatrist has referred to [the applicant] being treated over time for depression, alcohol abuse and anxiety.
The first question is whether the symptoms the psychiatrist has identified add weight to [the applicant’s] claims about being gay. Overall, I am not satisfied that they do, not least because the role of the psychiatrist necessarily involves hearing and assessing the patient’s information in an entirely different context, and in necessarily different ways, from a Tribunal in a matter like this.
The second question, in light of [the applicant’s] reported symptoms, is whether he has been prevented by conditions and circumstances beyond his control from giving me cogent and consistent evidence in the present matter. On that matter, after due consideration, I find that he was not thus prevented. Generally, as mentioned, I found [the applicant] quite relaxed and forthcoming as a witness, which is not necessarily the same as being truthful.
I accept that it can be difficult for a person to pinpoint milestones in his or her sexual awakening, but [the applicant] answered questions on that topic quite comfortably. Whereas he did not go into much detail, his description of not feeling at one with other boys’ banter about girls sounded at least very generically plausible and realistic. However, I find it difficult to give that small description much weight either way, especially on its own, as it is such a general observation about teenage alienation of any kind, even though it may include what a gay youth might have experienced at some past stage.

100. More significantly, although he did not appear reticent to discuss the subject, I find that [the applicant’s] description of the inception of his claimed sexual relationship with [Mr A] lacking in plausible detail and, ultimately, lacking the ring of truth. He spoke of behaviour that, reportedly, is openly common amongst Pakistani youths of similar age. Although he said he sensed that [Mr A] liked the tactile gestures that Pakistani youths commonly exchange, he did not plausibly describe how he himself came to perceive this as a potentially romantic or erotic response. His evidence at the Tribunal hearing about the “touching” struck me as having been improvised. I am not satisfied that he provided a plausible description of how the relationship unfolded. I have given this factor some cumulative weight.
101. In the course of this application, there have been two different versions of what [the applicant’s] father found when he came home unexpectedly in December 2011. In one (written) version, his father found him and [Mr A] during sex, whereas in oral evidence before me, he said he and [Mr A] had already finished having sex when his father walked in on them. Having considered the evidence overall, I have given this discrepancy, though it is arguably a small one, some negative weight cumulatively.

102. In the claimed circumstances of the father’s violent reaction to what he is claimed to have discovered, I am not satisfied that his subsequent behaviour is plausible, particularly in light of all the support he provided to [the applicant] to complete his schooling, to live without having to work for a year or more in Punjab, and then to fly to Australia to study towards a degree. I find that I am unable to rely on the claim about [the applicant] being banned by his father from cricket to keep him away from [Mr A]. This claim struck me as a recent invention. I have given this factor some negative cumulative weight in my decision overall.
103. [The applicant] described all the support he received from his father, after the alleged incident with [Mr A], as forced, reluctant and begrudging but, on review of all of the evidence in this matter, I conclude that that description is misleading. I find that [the applicant’s] evidence of pressuring his parents to let him leave Pakistan until he finally succeeded is implausible and far-fetched in the claimed circumstances. I have given this concern some negative weight in my overall decision as it goes to [the applicant’s] reliability as a witness in regard to the harm he claims to fear.
104. Whereas [the applicant] told me that he was relieved to have escaped Pakistan safely in 2014 and was looking forward to being able to avoid returning there, for fear of being repressed and persecuted, all the time suffering parental pressure from abroad to come home and marry (incongruously, so soon after all that expensive investment in getting him to Australia to study in the first place), I find that his actions were inconsistent with this when he returned there voluntarily during his semester break in January-February 2016. I have given this incongruity some negative weight in my decision overall.
105. Generally, [the applicant’s] evidence abut his parents trying to force him to return to or stay in Pakistan, so he could marry and settle, in their eyes, the issue of his social and sexual normalisation, was not consistent with what they evidently did, in letting him travel twice to Australia with their evidently ongoing financial support. On the facts before me, I do not believe that [the applicant’s] family tried to prevent him from leaving Pakistan for Australia again in February 2016. I have given this factor some negative weight in this matter.
106. On the evidence before me, I find that [the applicant] travelled to Australia on the two occasions he did so, to further his studies in continuity with those that he had completed in Pakistan. NO other explanations for his coming here (twice) strikes me as reliable.
107. On the evidence before me, I do not accept that [the applicant’s] parents tried to force him to return to Pakistan by cutting off his financial support. These is because, over time he has provided contradictory and inconsistent evidence as to when their financial support ceased. I have given this discrepancy some negative weight in this matter, as it goes to [the applicant’s] reliability as a witness.
108. I find that [the applicant] has provided false and inconsistent evidence about not having been in contact with his family between the time he re-entered Australia in 2016 and the time of his protection visa interview with the delegate in 2017. I have given this factor some negative weight.
109. I do not accept that [the applicant] was at all truthful in his explanation as to why he was sending money to both of his parents throughout 2016. On the evidence before me, I find that the claims about sending the money, indirectly, for use ultimately by his brother are invented and/or embellished claims. I find that this factor goes against my confidence in [the applicant] as a witness of truth in this matter.
110. Ultimately, I find that [the applicant] has been untruthful about his standing with his family. Looking at the evidence cumulatively, I am not satisfied that he has been truthful about their having discovered he was or might be homosexual, or in their eyes immoral, or about their support for him having been the product purely of pressure he was able to bring to bear on them, or about their trying to stop him from coming or returning to Australia, or about their trying to force him to return to Pakistan, let alone to marry a woman to give them peace of mind, or about their having cut off support for him for the reasons claimed, or about his having stopped communicating with his father more or less since December 2011, or at least since February 2015.
111. [The applicant’s] claims on the one hand about being a victim of “pressure” from his parents and, on the other, having somewhat mastered the art of pressuring them when he needed to, strikes me as generally fanciful.
112. On his performance as a witness in this matter, I do not accept that [the applicant] was discovered by his father in what Pakistani society would regard as sexually or morally compromising circumstances with [Mr A]. There conceivably remains the question, however, as to whether [the applicant] might have had a sexual relationship with [Mr A] that was not discovered by his father; in this scenario, [the applicant’s] claimed homosexuality and a significant sexual experience in his past would be factual, whereas external knowledge of his sexual orientation and experiences are not yet known to others in Pakistan, leaving open the question of what might happen in the reasonably foreseeable future. I have given this question much thought. Ultimately, however, whereas [the applicant] gave a pretty plausible description of one of the ways in which a gay male teenager in Pakistan might feel himself to be different from most of his peers, I am not satisfied that I can rely on his evidence about his relationship with [Mr A] insofar as it was a romantic and/or sexual one.
113. That leaves a possible question as to whether [the applicant] might have been gay in Pakistan all along, or at least since adolescence, without having had any experiences with other males or having been discovered or suspected by anyone. That question reasonably leaves open for consideration the possibility of an applicant still being genuinely gay, however misguided in some of his evidence-giving, and the question as to what would happen to him in the reasonably foreseeable future. The problem for me, however, is that this is not what [the applicant] has described as his history, and on his evidence up to this stage he has struck me as being a highly unreliable witness.
114. As noted, [the applicant] quite understandably expressed grievance over the delegate’s assessment of his application being finalised on grounds of lack of credibility without the delegate having proceeding to any detailed examination of his further claims. As can be seen from the discussion of claims above, I did invite [the applicant] to discuss those claims, not least because I was open to the possibility that he might indeed be gay even if, for some reason, he might have misguided himself into embellishing claims about his past treatment in Pakistan.
115. I can accept that [the applicant] has visited [Venue 1] in [location], Sydney. Certainly, [Venue 1’s] attractions and activities lean more towards its gay clientele than away, but that in itself does not mean that a patron who goes there, or even frequents the venue, is gay. In [the applicant’s] case, I do not accept that he has been, as claimed, a frequent or regular visitor to [Venue 1] as he misnamed the pub across [the specified location] that he said he often used to visit after leaving [Venue 1]: it is [another name], not the [Venue 2]. I expect that he would have known this in the claimed circumstances, given his fortnightly forays into the Oxford Street precinct between 2015 and 2019, but he clearly did not. I am not satisfied that, to whatever extent [the applicant] attended [Venue 1], this adds much if any weight to his claims about being gay.
116. Generally, I found that [the applicant], after correctly naming and locating [Venue 1], gave inaccurate information about all of the other venues he supposedly frequented in the Oxford Street precinct on what he said was approximately a fortnightly basis since 2015, before the more recent period of the Covid-19 lockdown. I have given this factor some negative weight in this matter overall. Related to this, I find that when I raised potentially negative observations about this issue with [the applicant], he tended to digress, naming other venues in other precincts. Overall, this did not create a positive impression. I accept that he is aware of [Venue 5] in [Suburb 1], but contrary to what he suggests it does not present or promote itself as a gay venue. On his evidence, I am not satisfied he has even been there. I accept that he is familiar with [Venue 4] and, to some extent, its celebrity with Sydney’s LGBTQ+ community and its straight or non-queer friends; however, on the evidence before me, I am not satisfied that he has ever been there either.
117. [The applicant’s] evidence about the venue in Sydney’s [Venue 6] complex was ultimately confused. He essentially asserted that it is not a gay venue after having implied that it was. His overall purpose, in showing me the footage of himself and a friend of his chatting with two straight couples at the bar, is ultimately unclear. I accept that he went to a venue in the [Venue 6] complex but, ultimately, I give this evidence very little weight in the present matter. I presume [the applicant’s] friend was his straight friend or someone else, but not a gay friend, going by other parts of his oral evidence where he said he has not made any ongoing gay social contacts in spite of fortnightly visits to a select range of venues over five years.
118. I accept that gay nightlife is not for everybody, not even for every gay person, but [the applicant] said it was definitely for him and that he engaged in it on a fortnightly basis. Whereas he essentially claims he had the fortitude to enter these places on his own, it strikes me as lacking in the ring of truth, in what he claims were his circumstances, that he did not form even one ongoing friendship with anyone attending those venues over the several years.
119. It will be recalled that [the applicant] said that the video evidence of his visit to the venue at [Venue 6] is the only such evidence he would be able to show me as it was recently made, earlier examples of his social outings having been lost at the time of a recent changeover from one iPhone, with a broken screen, to a new model. As shown above, when I pointed out to [the applicant] how easy it would have been to transfer visual image data even from a screen-cracked iPhone unit, he seemed to change his reason for having been unable to do so: he said that his iCloud storage capacity might have been filled up at some point and then he implied that this might have been the reason why he had not transferred evidence of his gay social life throughout earlier months and years. This second reason struck me as an improvisation, forming a pattern with what I have found, after due consideration of the evidence in its entirety, to be other instances of invention of evidence during the course of the Tribunal hearing; in the alternative, at best, it was unsupported speculation. This evidence also appeared to be at odds with independent evidence as to what happens when an iPhone user’s iCloud allotment is full: only the most recent photographs and videos would have failed to be stored. In this light, it is very likely that had [the applicant] gathered any relevant material between 2015 and 2020, when the Covid-19 lockdowns began, and which a person in his situation would be reasonably expected to consider important to retain, after receiving a negative decision from the delegate in 2017, a large amount of it would have been retained and still easy to transfer from one iPhone to another, simply by virtue of being in the same place the whole time: in the iCloud.
120. Overall, I find that [the applicant’s] evidence of his gay or LGBTQ+ social life in Sydney is undermined by inconsistency, fabrication, and other factual deficiencies. Overall, I do not accept that [the applicant’s] claims about having immersed himself in Sydney’s gay nightlife since 2015. I have weighed this conclusion alongside the conclusions made above in relation to [the applicant’s] claims about his experiences in Pakistan and relations with his family. Cumulatively, I find that [the applicant] is an unreliable witness in the present matter. On the evidence before me, in particular, [the applicant’s] oral evidence at the hearing about his life and Pakistan and his so-called gay social life in Sydney venues over five year, I do not accept that [the applicant’s] claims about being a homosexual male are truthful. I find him a thoroughly unreliable witness in this matter.
121. As discussed above, I put to [the applicant] that photographs of the kind that he presented to me in the context of the claims he has made were not necessarily probative on their own, and I gave him a range of possibilities as to why. I put to him that such material might not be helpful in circumstances where there were significant deficiencies in an applicant’s overall human narrative. That has ultimately been the problem here. As discussed in the preceding paragraph, I have found overwhelming deficiencies in the human narrative provided by [the applicant], and they are deficiencies that the photographs, which are not helpful or probative on their own, do not help to overcome.
122. Ultimately, having considered all of the evidence in its entirety, I am not satisfied that [the applicant] faces a real chance of being persecuted in Pakistan in the reasonably foreseeable future for any of the five reasons cited in s.5J(1)(a) of the Act, let alone for reasons of being or being imputed to be homosexual. His claimed fear is not well founded. He is not a refugee.
123. For the reasons given above, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Findings in relation to s.36(2)(aa) of the Act
124. Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).
125. A person is entitled to protection under s.36(2)(aa) if there are 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 he or she will suffer significant harm.
126. Relevantly, s.36(2)(aa) refers to a "real risk" of an applicant suffering significant harm. The "real risk" test imposes the same standard as the "real chance" test applicable to the assessment of "well-founded fear" in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).
127. "Significant harm" for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. "Cruel or inhuman treatment or punishment", "degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act.
128. Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.
129. Essentially, all three of these definitions require that there be an intention to inflict harm by some act or omission. Torture 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 ICCPR. "Cruel or inhuman treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Degrading treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one 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 ICCPR.
130. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
131. Accepting that [the applicant] is a citizen of Pakistan, I find that Pakistan is the “receiving country” in this case.
132. I find that the harm [the applicant] identifies in his claims appears to include “arbitrary deprivation of life”, “cruel or inhuman treatment or punishment”, “torture” and “degrading treatment or punishment”.
133. [The applicant’s] claims to complementary protection are essentially the same as his refugee status claims. His claims have failed as refugee status claims due to their many instances of inconsistency and, cumulatively, due to his overall lack of reliability. As discussed, the photographs he submitted, on their own, do not help his case and I give them no weight. They do nothing to help him in this matter, given the many and overwhelming deficiencies in his oral evidence. In view of all this, and of the "real risk" test imposing the same standard as the “real chance” test, [the applicant’s] claims cannot succeed as complementary protection claims.
134. On the evidence before me I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Pakistan, there is a real risk that [the applicant] will suffer significant harm.
135. Accordingly, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Other findings
136. 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, he does not satisfy the criterion in s.36(2).
DECISION
137. The Tribunal affirms the decision not to grant the applicant a protection visa.
Luke Hardy
Member

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

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

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or

(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Personal Space: Pakistanis are generally not concerned with personal space and will stand closer to their subjects than in Western culture. However, more distance is kept between those of opposite genders.
Physical Contact: It is common for people to be physically affectionate with those of the same gender. For example, men may put their arms on each other’s shoulders and quite comfortably touch each other. However, public displays of affection between opposite genders are considered to be very inappropriate.

[2021] AATA 1859

29 April 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Standing