1721711 (Refugee)

1721711 (Refugee) [2022] AATA 2350 (26 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Athanasios Seremetis (MARN: 1912945)
CASE NUMBER: 1721711

COUNTRY OF REFERENCE: Pakistan
MEMBER:Sheridan Lee
DATE:26 May 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 26 May 2022 at 3:07pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – imputed political opinion – opposition to Islamic terrorist groups – applicant identified perpetrators of a bomb attack – armed attacks – multiple return visits to Pakistan – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 1 September 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a [age]-year-old male from Multan, Punjab, Pakistan. He applied for the visa on 7 October 2015, claiming that he would be killed by a terrorist organisation because he identified members of the group as the perpetrators of a bomb attack to the police. The delegate did not accept the claims for protection to be true and refused to grant the visa.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, I have taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Applicant first entered Australia [in] February 2009 on a [Student Visa]. He departed and returned to Australia on nine occasions since first arriving, with the latest arrival [in] October 2014.
The applicant was refused a subsequent [Student] visa on 11 April 2014. He appealed the decision to refuse the visa and it was remitted to the Department by the Tribunal (differently constituted). The visa was again refused on 7 July 2015 and the applicant applied for a review of that decision. However, on 7 October 2015 the applicant applied for protection and withdrew the review application in respect of the [Student] visa on 12 November 2015.
The applicant’s claims were outlined in a written statement provided along with his application for protection form:
·The applicant is Sunni Muslim.
·He witnessed a bomb attack at [Town 1], Multan, [in] October 2004. The applicant assisted the police to catch the culprits.
·An organisation known as Pasban-e-Islam was behind the attack. The group discovered the applicant’s role in the arrests and on [date] November 2004, members of the group fired at the applicant in an attempt to kill him.
·The applicant was shot four times. He was taken to hospital and survived after multiple emergency surgeries. He remained in hospital for [number] days.
·The applicant knew his life was at risk and tried to relocate to several areas. He spent some time living with his brother. His brother and his brother’s family received death threats and had to move to [Country 1].
·The applicant returned to Pakistan to visit his sick father in October 2014. He was again attacked by unknown gunmen. A police report related to the incident was provided.
·A few weeks prior to submitting the application, the applicant’s home was raided and his family was threatened that they would be killed if they did not advise of his whereabouts.
·In a country like Pakistan, religious organisations like Pasban-e-Islam do not settle disputes until the enemy has been killed. The disputes can be carried down generations.
·Pasban-e-Islam operates throughout Pakistan and the police would be unable to provide protection.
In addition to the written statement, the applicant supplied the following documents:
·Discharge summary issued [in] December 2004 following an admission on [date] November 2004 at [Hospital 1] for [the applicant] ([DOB 1]). Outlines that the patient presented with firearm injuries.
·Letter dated [in] September 2015 from [Mr A], Member National Assembly, [location]. The letter attests that the applicant was attacked and sustained life-threatening injuries and that the threat still exists.
·A document titled ‘Better Copy of FIR,’ dated [in] August 2015. The document lists [Brother B] as the individual making the complaint. The report outlines that four gunmen on [motorbikes] visited [Address 1 in] Multan, on [date] July 2015 and demanded the whereabouts of the complainant’s brother, [the applicant].
·Translation of a National Identity Card issued by the Government of Pakistan for [Brother B], date of birth [specified].
·A document titled ‘Better Copy of FIR,’ dated [in] May 2015. The document lists [Brother C] as the individual making the complaint. The report outlines that on [date] October 2014, the complainant was travelling in a car with his brother, [the applicant] and their relative [Relative D]. The car was approached by two unknown gunmen on [motorbikes] with no plates. [The applicant] drove the vehicle into one of the motorbikes when he saw them raise a pistol. The assailants shot at the vehicle but no one was injured.
·Translation of a National Identity Card issued by the Government of Pakistan for [Brother C], date of birth [specified].
The applicant was invited to attend an interview with the delegate. However, his migration agent was unable to contact him and he did not attend.
Application for merits review
The applicant requested merits review of the delegate’s decision. A copy of the decision record was provided to the Tribunal with the application for review.
The applicant’s representative made submissions on his behalf on 11 August 2021. The submissions outlined that the applicant claims to have assisted the police to investigate a terrorist attack perpetrated by the Pasban-e-Islam militia.
The applicant fears harm from non-state agents, namely the Pasban e Islam and any splinter group or related faction. He has previously suffered harm personally on two occasions – one resulting in serious injuries and a prolonged period of hospitalisation. His brother was also threatened by unidentified members demanding for the Applicant’s presence. The Applicant asserts that his assistance to the police has placed him in a position whereby he is deemed as a political opponent to the Pasban e Islam or any other relevant splinter group or related faction.
In relation to the interview scheduled with the delegate, the submissions noted that the applicant’s migration agent at the time requested a postponement of the interview, as they were unable to get in contact with the applicant at the time. However, the interview was never rescheduled and the application was assessed on the papers.
The submissions outlined that throughout his residence in Australia, the applicant had difficulties with both his education providers and personal mental health issues. He was finding it difficult to concentrate and the added stress from being apart from his family for an extended period of time was taking a toll on him. The applicant returned to Pakistan on numerous occasions due to a combination of homesickness, illness within his immediate family and the death of his grandmother. Each trip was relatively short, not extending past 3 weeks. On each trip the applicant largely remained confined to his family home and kept a low-profile. After returning for the last time in 2014, and suffering harm – the applicant has not returned to Pakistan.
It was put forward that the prolonged delay in applying for a protection visa stemmed from the applicant’s lack of understanding relating to the Australian migration process, a change in his home-country circumstances, the instance of harm that occurred whilst returning home to see his family, and the sense of safety he felt while residing in Australia rather than Pakistan. The incident which occurred when the applicant last returned to Pakistan was the catalyst which propelled the applicant to lodge a protection visa application.
The applicant approached Sabelberg Morcos Lawyers, an IAAS provider at the time, to explain his circumstances and to seek advice in relation to his options. On receiving advice that he was eligible to apply for refugee status, the applicant made the subsequent application, withdrawing his Tribunal review proceedings.
In addition to duplicates of some documents noted above, the following documents were annexed to the submissions:
·Medical certificate issued by [Dr E] of [Medical Centre 1] on 2 June 2009 to certify that [the applicant] was suffering from a medical condition and unfit to attend his usual occupation from 1 to 5 June 2009.
·Referral letter from [Dr E] to the Psychiatrist at [Medical Service 1] dated 2 June 2009 in relation to [the applicant]. The letter notes that [Dr E] prescribed [the applicant] 10mg Lexapro daily for the management of depression.
·Medical certificate issued by [Dr E] of [Medical Centre 1] on 20 May 2009 to certify that [the applicant] was suffering from a medical condition and unfit to attend school on that day.
·Referral letter from [Dr E] to [Mr F] at [Medical Centre 1] dated 20 May 2009. The letter notes that [Dr E] prescribed [the applicant] 10mg Lexapro daily for the management of depression.
·[Pathology] request for a range of tests requested by [Dr E] on 20 May 2009 for [the applicant]. No results were included.
·A picture of a box of 10 Valium 5MG tablets with a sticker addressed to [the applicant] dated [in] September 2017.
·Letter from [Ms G], Mental Health Social Worker, dated 17 July 2021. The letter states that [the applicant] was referred by [Dr H] from [Medical Centre 1] for assessment and treatment of depression and post traumatic stress disorder under the mental health care plan. The letter provides a recount of the applicant’s experiences in Pakistan. It is noted that he presented symptoms including sleeping and eating difficulties, fatigue and low energy, a sense of helplessness and despair. [Ms G] outlined that in her professional assessment, [the applicant] was suffering from depression and Post Traumatic Stress Disorder. She expressed the opinion that he would require long term psychological treatment. Finally, [Ms G] expressed her support for the grant of a visa to [the applicant].
·Pakistan Court Document -Petition made by [Brother C] under section 22-A, dated [in] May 2015. The document notes that the applicant was seeking registration of a report with the relevant police station and an update on any action taken. It is alleged that on [date] October 2014 two men on motorbikes aimed a pistol at the car [Brother C], [the applicant] and another relative were travelling in. It is followed by a document in a foreign language.
·Pakistan Court Document- Petition under section 22-A, 22-B, dated [in] July 2016. The document notes that the applicant was seeking registration of his case with the relevant police station and an update on any action taken.
·A handwritten document in a foreign language, followed by a typed document in English titled ‘Better copy of application’ addressed to the [Police Officer], [Police Station 1], Lahore. It is submitted by [Brother D] that on [date] April (no year) four people knocked on his door. Two entered the home and beat [Brother D]. The assailants told [Brother D] to tell his brother, [the applicant], that he cannot be safe from them and legal proceedings cannot convict them.
·Image of a National Identity Card issued by the Government of Pakistan for [Brother D], date of birth [specified].
·Pakistan Court Document – application made by [Brother D] under 22-A, 22-B for registration of a case by the [Police Station 1 in] Lahore, dated [in] June 2016 at the top of the document and [another date in] June 2016 at the end. There is also a stamp with the date [in] July 2016.
·Pakistan Court Document - Decision on a Petition made by [Brother D] under section 22-A, 22-B, announced [in] July 2016. The decision notes that the ‘copy of the application attached with the petition, statedly moved by the petitioner to the [Police Officer], bears no dairy [sic] number or any other mark or any other direction available on file which shows that he ever approached the concerned police functionaries.’ The petitioner is advised to approach the [Police Officer]/Duty Officer concerned first for the redress of his grievances and on his refusal or reluctance, approach to the high ups of the police functionaries. The petitioner can approach the court again for a direction with documentary proof that he has already approached those people.
·Pictures of a torso with multiple scars.
First Tribunal hearing
The applicant was initially invited to attend a hearing scheduled for 22 July 2021. Due to COVID-19 restrictions, the hearing was rescheduled on three occasions until it was indefinitely postponed on 17 August 2021.
On 9 September 2021, the applicant was invited to attend a hearing on 9 November 2021. The hearing was once again postponed at the applicant’s request on 22 October 2021, and finally the applicant was invited to attend a hearing scheduled for 2 December 2021.
The applicant attended a hearing on 2 December 2021 to give evidence and present arguments. The hearing was attended by the applicant’s representative and it was conducted with the assistance of an interpreter in the Urdu and English languages.
At the Tribunal hearing, the applicant gave evidence that he was born in Multan, Punjab. His mother passed away, and his father continued to live in Multan. The applicant has [number of siblings]. He had another [sibling] who passed away. All of the applicant’s siblings lived in Pakistan at the date of the hearing.
The applicant self-identified as an adherent of Sunni Islam and Urdu speaking.
Before travelling to Australia, the applicant gave evidence that he lived in Lahore for almost one year. Prior to that he lived in Muzaffargarh for almost six months and before that Multan. The applicant completed a [specified qualification] in Pakistan, then worked with his father to manage their land. In Australia he was working as an [Occupation 1] in Melbourne at the date of the hearing.
The applicant gave evidence that if he returned to Pakistan he would be killed by people belonging to a Shia religious group because he got some of the members arrested. [Number] people were arrested in relation to a terrorist attack, and he identified two of those people. The applicant did not know the names of the people that were arrested.
The applicant explained that there was a bomb blast in 2004 at a [specified event]. The bomb blast happened around the gathering. The applicant was able to recognise [number] people from a car that had been carrying three people. He did not see the driver.
The gathering took place on a local road, which was blocked around a roundabout. The park connected to the road was also used.
The applicant said he was travelling by motorbike from his house to his brother’s house about 2 or 3 kilometres away on the main road in [a named town]. He had to accompany his brother, [Brother D], to Lahore for a work-related event. They were planning to travel to Lahore from his brothers’ house before morning.
The applicant said he heard a loud bang at about 4:30 am. He estimated that he was 50 to 100 metres from the blast. He noticed a car parked to the side. After the blast, the applicant heard someone yell ‘drive’ and the car took off, nearly hitting the applicant. The applicant yelled at the driver. He noticed large automatic weapons in the car, the kind with magazines. Some guns were in the front seat with the driver and there was one gun in the back.
After the applicant saw them drive away, he said he started to suspect that they were trying to escape something and decided to follow them. About thirty seconds to one minute after the first blast, the applicant heard a second blast. After two turns, he noted the street that the car stopped in. He commented that it was not far away from where they started.
Afterwards, the applicant said he went to his brother’s house and told him everything. The two of them returned to the site of the bomb blasts together. The applicant described the scene as chaos: blood everywhere, body parts lying around and people screaming. The applicant said he felt nervous looking at the scene.

The applicant returned to his brother’s house and the two of them told their father everything. The applicant suggested that he should go to the police. He said his parents and brothers did not want to get entangled in the situation and suggested that he forget the entire incident. They told him to eat and try to relax but the applicant said he couldn’t push the scene from his mind. Eventually, the applicant’s father agreed for him to speak with the police and he called the brother who the applicant had seen after the incident. The applicant’s father told him to ask the police to keep the source of the information confidential.
The applicant said he attended [a] Multan police station at about 5 pm on the day of the bombing. When he went, there was no senior official present. The station’s registrar was there, and the applicant advised them that he wanted to speak with an official about an urgent matter. The registrar called one of the senior officers and he came. The applicant said he then asked for them to bring someone even more senior because he wanted to talk about a bomb blast and in response, the police brought someone who was already looking into it.
The applicant stated that he told the officers everything and they made some calls, then some officers from the civil sector - intelligence agencies - attended. He sat in a room and told them all what happened. The applicant requested to keep his identity secret and the police promised to do so. The applicant’s brother did not give evidence to the police.
The applicant said that he then took the police to the place (a home) where he saw the car travel. A lot of police cars travelled there, and he went with them. They blocked off the whole area and he went to sit in a police car one street away. The police officer the applicant was sitting with received a call about 15 minutes later and was advised to drop the applicant home. They asked for his residential address and he was told not to step outside unless advised to do so.
The applicant alleged that almost 2 hours after this, people gathered outside his home. They requested that he travel with them to identify the suspicious people. They covered the applicant’s face with a cloth. The applicant said that there were [number] people in a line and he was able to identify two. One suspect had been in the front passenger seat and the other in the rear passenger street. The applicant said that the line-up took place in an empty private house in an army area.
The applicant did not sign a statement and was never asked to identify the suspects again. He noted that he had asked for his identity to be kept confidential and said the officials told him that they usually ask their officers to be witnesses because normal citizens can be traumatized. The applicant was unsure if the suspects were convicted, saying he never looked into it. He hypothesised that they could have been killed or incarcerated.
The applicant then said that he had heard from some local people that the suspects were killed in a police incident. He had visited his brother’s house and there was a discussion about it with some neighbours.
The applicant went on to give evidence that in November 2004, he was travelling home from a friend’s house at about 7:30pm on a motorbike. Four people on two motorbikes stopped him and signalled each other with their heads. One took out a pistol and fired shots at the applicant, hitting him four times. [Injuries specified.] The assailants thought the applicant had died and left. Some passers-by found the applicant and took him to the hospital. The applicant said he regained consciousness in a motorized rickshaw.
The hospital contacted the applicant’s brother and he called a number that was given to them by the ‘agency people,’ who came to the government hospital. Gauze was inserted into the bullet holes, the applicant was put on a drip and a bag for urine was inserted. The applicant was then shifted to another hospital where he had surgery. The applicant explained [his injuries]. There were a lot of drains in his body when he woke.
It took two years for the applicant to fully recover. He said that he attended lots of follow up procedures at [Hospital 1]. He confirmed that he had not required any further treatment whilst living in Australia.
In order to stay in hiding after the incident, the applicant said that he had to change his residential address constantly. He claimed to have moved 4 to 5 times. During that period, his parents supported him. The applicant still had to travel for the medical appointments. I asked the applicant if the intelligence agency ever offered him protection. The applicant advised that they stayed with him while he was in hospital and attended for the doctor’s appointment (it was unclear if he meant one appointment or all appointments). He would advise the agency of where he lived.
The applicant gave evidence that in 2007 he was very stressed and moving a lot. At that time, he felt that he should move out of Pakistan and decided that he should study. His father thought that was a good idea. The applicant reported that he thought the situation at home would improve through time. He applied for a visa to travel to Australia in 2008. It took some time to get the visa, maybe 8 months. He got the visa in 2009 and moved to Australia in February to study [specified subjects].
In relation to his travel history, the applicant gave evidence that he first travelled back to Pakistan when his grandmother passed away; around one to two months after his arrival in Australia. The applicant explained that he was home sick and under a lot of stress. He did not feel motivated here in Australia, so he returned to Pakistan again. He said that he told his parents that he did not want to go back to Australia, but they forced him to return. The applicant’s parents told him to spend time in Australia and wait for things to get better and then return to Pakistan. The applicant said that he missed his parents, and everything was very new here in Australia. He used to travel back to Pakistan once a year, with his last trip in 2014.
The applicant travelled to Pakistan for the final time in 2014 because his father was very sick. He explained that during the trip, he felt a bit relaxed because he thought things were back to normal. His brother and cousin continued to accompany him if he left the house.
The applicant alleged that during the trip, two people on a motorbikes tried to kill him while he travelled on the [named road] near his cousins house. The applicant was driving the car and a motorcycle with no number plate crossed in front of them. The applicant slowed down and his cousin said that something didn’t look right. The assailants took out a pistol and the applicant steered the car towards them. He explained that they could not maintain the balance of the bike and fell onto the dirt patch beside the road. They got up from the fall and opened fire. The applicant had driven away but the distance was not far because they were still within firing range. The assailants did not hit the car.
The applicant felt that the incident was related to the identification of the individuals years before because he did not have this kind of grudge with anyone. However, he said this was confirmed when four people went to his family home.
The Tribunal took a short break and resumed with a discussion of the incident at the family home. The applicant gave evidence that in August 2015, four people with weapons came and knocked on the door of his father’s home; the house that the applicant was born in.
The applicant’s brother came to the door and the visitors asked him about the applicant. The applicant reported that the visitors asked his brother how long he would continue keeping the applicant in hiding. They tried to find his whereabouts and threatened to kill the applicant and his brother. While the discussion was happening, the applicant’s cousin and another brother came out from within the house. The visitors started threatening them also. When the visitors were leaving, they warned that the applicant wouldn’t be able to continue hiding from them. The applicant said that the visitors didn’t hit anyone, they just left. They didn’t identify themselves or say why they were looking for the applicant. The applicant noted that he was never told why he was targeted for any of the incidents.
After the incident in 2015, the applicant alleged that some people barged into his brother’s home in Lahore at around 11pm one evening in April 2016. The applicant said his brother is [an Occupation 2] in Lahore and noted that it was the same brother that he lived with before he came to Australia. The applicant’s brother heard a knock on the door and the group barged in. They beat him using kicks and slaps and threatened to kill him. The assailants said they had received information that the applicant was there, and they were asking for the applicant’s whereabouts. Two of the men searched the house. Someone pointed a pistol at the applicant’s brother but another one said not to shoot him. The applicant said his brother’s wife and children were at the in-law’s home. The applicant claimed that his brother went to the police the same night as the incident occurred.
I asked the applicant about the First Information Report (FIR) relating to the incident in 2014. The applicant explained that they had to go to court to have the FIR registered in 2015 because the police were not registering the report. The family consulted a lawyer and the lawyer advised them to go to court. The court summonsed the manager of the police station and he agreed to take the report. The applicant said that the same thing happened again in relation to the incident with his brother.
I asked the applicant when he last held a substantive visa here in Australia. He said 2013 and it expired in 2014. He claimed to be unaware whether he held any travel rights on his current bridging visa. The applicant noted that he didn’t research it because he couldn’t go back to Pakistan anyway. As highlighted by the delegate in the original decision, the applicant did not apply for protection until his application for a student visa was refused – more than six years after he first arrived in Australia. I noted that the applicant had not travelled to Pakistan since his substantive visa expired, which suggested that he had not returned because he would be unable to re-enter Australia, rather than due to a genuine fear for his safety in Pakistan.
I discussed the probative value of the medical evidence submitted to the Tribunal with the applicant. In particular, I noted that the letter from the social worker did not specify how many visits the applicant had attended, nor did it set out the author’s relevant qualifications or experience nor the instructions provided to the witness. I highlighted the availability of the practice direction title ‘Persons Giving Expert Opinion Evidence’.
The evidence submitted by the applicant prior to the hearing provided limited assistance to determine how the applicant’s mental health might impact his ability to return to Pakistan. I provided the applicant with additional time to submit further evidence about his mental health and his earlier physical injuries.
The applicant explained that he was referred to a mental health social worker by his General Practitioner. He attends sessions, during which he opens up about his stress and ways to manage it. He had attended a total of 4 to 5 sessions on the date of the hearing.
I asked the applicant if he held a concern in relation to his mental health if he were to return to Pakistan. In response, the applicant questioned where he would be free to live safely. He noted that from 2004 until the current time he had been running away from this issue. He had faced death and a second time he saw it very closely.
I noted that the population of Pakistan is more than 220 million, with more than 110 million people living in the Punjab region. I questioned the likelihood of the applicant being located and identified amongst such a large population. I also asked the applicant if he could live in another part of Pakistan. In response, the applicant highlighted that he had lived with his brother in Lahore and he was located.
The applicant alleged that he could be located in Pakistan with ease. If he bought a SIM card or made a banking transaction it could be used to track his location. If he rented a property he would need to submit personal information.
I advised the applicant that the Department of Foreign Affairs and Trade report that there are no centralised or national law enforcement databases or criminal records in Pakistan, which makes it hard to track or locate offenders.[1] If it is difficult for the police to find someone, it suggests that it would be hard for someone without the resources of the police force. In response, the applicant commented that everything is now online.
[1] Department of Foreign Affairs and Trade, Country Information Report Pakistan, 20 February 2019; reported again in the newest version, published on 25 January 2022.
The applicant described some horrific incidents to the Tribunal. I questioned why he never raised his safety concerns with the Department before he made the claim for protection. The applicant explained that prior to 2014, it wasn’t his intention to stay in Australia; he wanted to go back to Pakistan. The applicant commented that he felt safe here, but he doesn’t feel a connection to this place.
When I asked the applicant if there was anything further, he advised that about five to six months before the date of the hearing, a man from a delivery [company] went to his family home and said he had a parcel addressed to the applicant. The applicant’s sister-in-law answered the door and told the delivery person that no one with that name lived at the address anymore. The delivery guy said that she should hand over the applicant’s current address so the parcel could be redirected. She said no one was home but when her husband returned, he could collect the parcel. The applicant’s sister-in-law told his brother what happened, and he went to the delivery company office and was told that there was no such parcel with that recorded name.
I asked the applicant why the incident was not included in the statement provided to the Tribunal before the hearing. The applicant said that he wasn’t sure it was important before, but his representative advised that it was relevant.
Post-hearing submissions
Post-hearing submissions were received by the Tribunal on 16 December 2021, accompanied by the following supporting documents:
·Letter issued on 7 December 2021 by [Dr I], from [Medical Centre 2], in relation to the origin of the scars located on the applicant’s upper body. The letter confirms that the scarring on the applicant’s chest and back are consistent with old gun shot wounds.
·Letter issued on 13 December 2021 by [Ms G], providing information on her qualifications and work experience as an Accredited Mental Health Clinical Social Worker and on the applicant’s mental health.
·Electronic Medical Prescription for drug Fluoxetine (As Hydrochloride) 20 mg capsule, issued to the applicant by [Dr H] from [Medical Centre 1], dated [in] December 2021.
·Letter issued on [date] December 2021 by [Dr H] from [Medical Centre 1], outlining that drug Fluoxetine was prescribed to the applicant in 2017 for depression and insomnia, and that drug Lexapro was prescribed for depression by another practitioner, [Dr E], in 2009.
·Driving Licence Information Management System (DLIMS) screenshots, showing a sample search for the applicant using his driving licence number. The driving licence number was unable to be verified by the Tribunal.
The submissions summarised the previous evidence given by the applicant in respect of the gunshot wounds and noted that ‘there is no requirement for an applicant to prove or corroborate their claims’.[2] It was again submitted that the applicant did suffer a gun attack in retaliation for his involvement in a police investigation which resulted in his hospitalisation and near death.
[2] The following cases were cited: Ejueyitsi v MIMIA (2006) 151 FCR 289; [2006] FCA 328; Huang v MIMA [2001] FCA 901; Mohamed v MIMA (1998) 83 FCR 234, [1998] FCA 485.
Additional information was provided in respect of the applicant’s mental health history. It was noted that the applicant has not been treated or diagnosed by a psychologist, however he has been prescribed medication by his general practitioner. It was further put forward that the absence of a formal diagnosis is not conclusive that he suffers mental health issues. The representative noted that the Tribunal’s request for additional medical evidence had caused the applicant distress and he was unable to obtain independent reports due to financial constraints.
In respect of the issue of relocation, the submissions outline that computerised databases have been implemented in Pakistan in recent times. Attention was drawn to:
·various domestic Pakistani laws requiring the collection by landlords of personal information relating to tenants and the sharing of that information with police.
·the existence of several easily accessible online government databases that could be used to obtain identifying information through the use of a citizens CNIC[3], vehicle registration and number plate: the Driving License Information Management System (DLIMS), the Government of Sindh – Excise, Taxation and Narcotics Control Department (ETNCD), Online vehicle verification, the PSCA, Online traffic fine database.
[3] A reference to the Computerised National Identity Card.
Screenshots were provided as an example of the type of information that is accessible through the DLIMS. The screenshots shows that the search was conducted using the CNIC and supplies the name of the holder, the ‘father/husband name,’ licence number, dates of validity and allowed vehicles.
It was contended that on the basis of these examples, the applicant’s claim that he would be targeted through the use of a non-state actor’s intelligence network was not implausible or far-fetched. The representative suggested that given the existence of information to the contrary, it would be reasonable for the Tribunal to depart from the findings in the DFAT report.
It was put forward that it would be unreasonable for the applicant to relocate within Pakistan due to his mental health. He would be isolated from his only support, being his family, which would result in a deterioration of his condition.
It was again argued that the applicant had been truthful in his evidence and his documents were obtained genuinely, despite an acknowledgement that document fraud is endemic in Pakistan. The continuous attacks on the applicant and his family were not merely coincidences and could not be put down to local criminal activity.
On 19 April 2022, the applicant sent an additional letter from [Ms G], dated 10 April 2022 and evidence of his employment as an [Occupation 1].
Second hearing
The Tribunal was able to locate several media articles in relation to a bombing in Multan in the early hours of 7 October 2004.[4] The articles report that two bombs exploded in the Rasheedabad area of Multan, killing 39 to 40 people and injuring between 74 and 100 others, depending on the time and source of the report. The bombs targeted attendees of a memorial to mark the death of Maulana Azam Tariq, the leader of the Sunni group, Sipah-e-Sahaba. Later articles report that Irfan Ali Shah was convicted of 40 counts under anti-terror laws and sentenced to death. It was noted that he had an accomplice, Amjad Abbas, who was still at large in September 2006.
[4] ‘Massive car bomb blast kills 39 in Multan’ Dawn, 8 October 2004, accessed at ‘Bomb kills at least 39 in Pakistan’ The Guardian, 7 October 2004, accessed at ‘Rasheedabad case convicts get death’ Dawn, 2 September 2006, accessed at ‘Death sentence for Multan Bombing’ BBC News, 1 September 2006, accessed at type="1">
The applicant was invited to a second hearing on 20 April 2022 to discuss the information reported in the media. In particular, an article published by one of Pakistan’s English language news outlets, Dawn.
I advised the applicant that I had some information before me that would be the reason or part of the reason for affirming the decision under review.
The information was published on 2 September 2006 on Dawn.com.au in an article titled ‘Rasheedabad case convicts gets death’. A copy of the article was provided to the applicant. I drew the applicant’s attention to the following information through the interpreter:
…Irfan Shah was arrested by the local police a few days after the incident. Later, it was claimed that he, along with accomplice Amjad Abbas, drove away with a car in the vicinity of Shah Rukn-i-Alam Colony on Oct 5 and two days later used the same vehicle to detonate the explosives in Rasheedabad.
Car owner Zeeshan reportedly identified Irfan during the identification parade conducted in the police custody. Accused Amjad, however, is still at large and has been declared a proclaimed offender.
Public prosecutor Mehr Najaf Ali Mahey said the prosecution presented as many as 88 witnesses to prove its case against the accused while only two witnesses appeared before the court from the defence. He said five of the prosecution witnesses were those who had identified the accused during the parade.’
This information is relevant because it suggests that the police captured one suspect ‘a few days after the incident’, who was then identified during an identification parade. The second suspect remained at large at the date of the article. This is not consistent with the applicant’s claim to have positively identified two suspects during a police identification which took place on the day of the incident.
This suggests that the police did not have two suspects in custody at the time the applicant alleged to have identified two passengers of the car used by the perpetrators.
The article further notes that five witnesses were called by the prosecution who had identified the accused during the parade, including the owner of the car that was used by the perpetrators. Conversely, the applicant gave evidence that he was not required to sign a formal statement and was not called to appear as a witness, stating that he requested to remain anonymous, and the police advised him that they preferred to use police witnesses rather than civilians.
This suggests that the police used civilian witnesses to identify the suspect. It further suggests that at least five other individuals were able to identify the suspects, at least one of whom was named in a national Pakistani news publication. The individual had not been killed within the two years that elapsed between the event and the court’s findings.
The applicant was advised that if I were to rely on the information, I would not accept the truth of his claims for protection and I would affirm the decision under review.
I invited the applicant to comment on or respond to the information. I advised that he did not have to respond immediately, he could ask for more time to comment on or respond to the information.
The applicant elected to comment on the information at the hearing and requested additional time to provide a more fulsome response. The request was agreed to.
The applicant commenced by explaining that he had told the Tribunal that there were three people in the car, he did not identify the driver. When the identification parade was done, there were [number] people who had been arrested. The parade was done in a house in the private security area.
The police promised the applicant that he would not become a witness. There were several people who were able to identify the perpetrators.
The applicant alleged that it is normal practice in Pakistan for the police to capture someone and keep them hidden away. The police might interrogate them for several months and there are plenty of cases where people are arrested and held for years. The family of the missing person must apply to the courts to find out where they are.
The article reported that one person was arrested and one was at large and the applicant highlighted that he identified two people. I asked if the applicant was saying that neither of the people mentioned in the article were identified by him. In response he said no, they must be the same people. The applicant hypothesised that perhaps the person that they claimed was at large was disappeared and that is why he did not surface again. The applicant stated that the article only showed how the police presented their case.
Finally, I confirmed with the applicant that all nine departures from Australia were trips to Pakistan. The applicant explained that he didn’t spend any great length of time in Pakistan on any of the trips. Each trip was about two to three weeks. Some of the trips were to attend to deaths and illness in the family. The applicant said he was very homesick and suffered panic attacks.
Final submissions
On 27 April 2022, the Tribunal received final submissions from the representative on behalf of the applicant. The submissions highlighted that Media Bias/Fact Check reports that the Dawn news publication is rated as a left-centre biased paper that favours a liberal perspective, rated “mostly factual” rather than highly factual and has a medium credibility rating. The rating was awarded due to the fact the publication does not hyperlink sources and its inability to accurately report on government.
It was conceded that there is a clear discrepancy between what was reported by Dawn and the oral evidence of the applicant.
It was put forward that the story regarding the bombing in Rasheedabad was of national interest and as such the reporting would seek to uphold public confidence in the government and judiciary. It was submitted that the Tribunal should be hesitant to place undue weight on a sole source to discredit the whole of the applicant’s account.
It was argued that the factual accuracy of the article should be given limited wight due to the political incentive for media outlets to fabricate information. Additionally, it was submitted that there is a frequency for prosecution cases to misrepresent facts and create witnesses.
In the alternative, it was argued that it would be open to the Tribunal to find that both the article and the applicant are reporting the events accurately or truthfully. The article reported on the prosecution’s case and court outcome. The applicant gave oral evidence on his interactions with police and intelligence officers, prior to the development of the prosecution’s case.
There was a discussion of the problems with prosecutions under the Anti-Terrorism Act in Pakistan. Judge Syed Hasan Shah Bukhari of Karachi’s ATC I, was quoted as saying in an interview:
until a democratic government was elected in February 2008, most ATCs were issuing convictions on the authorities’ instructions, rather than on the basis of transparent trials.[5]
[5] Pakistan’s Anti-Terrorism Courts, Huma Yusuf, Combating Terrorism Center, Volume 3, Issue 3, March 2010, available at:
Reference was made to a journal article titled ‘Terrorism Prosecution in Pakistan’.[6] It was submitted that the following information should be used to determine the weight to give the Dawn Article and put forward these factors could explain the discrepancy between the applicants account and the account given in the Article:
·Police are in charge of presenting cases in the Anti-Terrorism Courts (ATCs)
·ATCs have implied that unreliable evidence will be accepted. One judgement noted that “procedural defects and sometimes even the illegality committed during the course of investigation, shall not demolish the prosecution case nor vitiate the trial.”
·There is an almost exclusive reliance on eyewitness evidence in ATC cases, which leads to police “creating witnesses”.
·Witness statement are sometimes constructed to indicate that they have witnessed the act, even when they have not.
·The number of witnesses is emphasised rather than quality of evidence.
·Witnesses routinely get murdered in Pakistan.
·Since evidence from Pakistan’s military and civilian intelligence agencies has traditionally been inadmissible in courts, it is the police who arrest the accused and prepare the evidence for presentation. However, institutionalized, and routine coordination between the security agencies and the police is limited, and thus, the police and prosecutors struggle to account for what happened between when the accused were detained by the agencies and when they were formally arrested and charged.
[6] Terrorism Prosecution in Pakistan, Syed Manzar Abbas Zaidi, United States Institute of Peace, Peace Works, April 2016
The submissions highlight that the applicant indicated that there were [number] people who were arrested and subject to the identification parade. The applicant gave evidence that it was normal practice in Pakistan for a suspect to be detained, but the police won’t indicate to the public that they have been arrested. The fact that one of the accused, Amjad Abbas, is still at large, does not mean the account that the applicant assisted in the arrest of two of the suspects is to be disbelieved. On the contrary, it was due to the applicant’s assistance in capturing and identifying the culprits that the police were able to prosecute the case.
The applicant maintained that he saw three people in the car and was able to identify two of them (not the driver). The submission also noted that there are enforced disappearances of suspected militants in Pakistan.
The submission also addresses the identification of witness ‘Zeeshan’ and submits that Zeeshan was not targeted like the applicant because it was the applicant who assisted in the prosecution and arrest of the accused.

100. It was submitted that overall, the applicant’s statements were not inconsistent with country information and police prosecution procedure.
101. It was suggested that there would be no reason why the [terrorist] group would seek to harm ‘Zeeshan’ in connection to the capture of their members – the witness’s testimony did not lead to the accused’s capture.
102. A summary of the applicant’s evidence provided in support of his claims was provided. In conclusion it was contended that the sole Article could not be deemed to outweigh the applicant’s evidence in totality.
FINDINGS
103. I accept that the applicant is a Pakistani man and a Sunni Muslim. I accept that he was shot and badly injured in a violent assault that occurred [in] November 2004. Or the reasons below, I do not accept that the assault was motivated by the applicant’s cooperation with the police to identify suspects of a bombing that took place in Multan on 7 October 2004. I do not accept that the applicant ever identified suspects to the police or that he or his family were targeted by the Pasban-e-Islam or any related group as a result of doing so. Further, I do not accept that there are any individuals, or political or religious groups that would be motivated to locate or harm the applicant if he returned to Pakistan.
104. The Department of Foreign Affairs and Trade reports that violent crime occurs in Pakistan, including armed robbery, assault, carjacking and kidnapping. Following improvement over recent years, the security situation in Pakistan has deteriorated since mid-2021. Causes of insecurity include domestic politics, religious extremism and ethnic conflicts.[7]
[7] Department of Foreign Affairs and Trade Information Report Pakistan, 25 January 2022.
105. I note that the high-level narrative presented by the applicant in his original claim for protection form and at the Tribunal hearing was generally consistent. Further, I accept that religiously motivated killings can and do occur in Pakistan. However, for the reasons below, I did not find the applicant’s claim to have been pursued by individuals or a group associated with the Multan bombing for close to 18 years to be plausible. On this basis, I am not satisfied that the applicant faces a real chance or risk of serious or significant harm as a result of witnessing a terror attack, assisting the police, or for any other reason.
·The applicant claimed to have suffered two attacks by assailants linked to the Pasban-e-Islam and/or the individuals responsible for the Multan bombing. The first incident was the shooting in November 2004 and the second was an attempted shooting in October 2014. Following the first incident, the applicant remained in Pakistan for more than four years. At the first Tribunal hearing, the applicant gave evidence that prior to travelling to Australia he lived in Lahore for almost one year. Prior to that he lived in Muzaffargarh for almost six months and before that Multan. He gave evidence that he moved around a lot and took two years to recover from the shooting. Even if it were accepted that the applicant moved around and was required to attend medical appointments after the shooting, he spent a lengthy period of time in Pakistan before deciding it was unsafe and making arrangements to leave.
·Once the applicant arrived in Australia, he returned to Pakistan on nine occasions. While I accept that the applicant was homesick, suffered death in the family and the length of each trip was relatively short, this is a significant number of visits. During each visit, the applicant focused on visiting family, all of whom would presumably be known to any organisation or individual seeking to find and kill the applicant. The applicant himself gave evidence that his family were threatened on a number of occasions. I also note the timing of the second alleged attack, during the applicant’s final trip to Pakistan. The applicant gave evidence that he returned to Pakistan in October 2014. On [date] October he was targeted in an armed assault whilst driving. The applicant entered Australia [in] October 2014. Despite claiming that the incident in 2014 was the catalyst to apply for protection, there was still a delay of one year before the applicant applied for protection on 7 October 2015. I do not accept that it required one year to seek and receive advice on his circumstances.
·Delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm.[8] The applicant applied for a protection visa on 7 October 2015, more than six years after he first arrived in Australia. At the time he applied, the applicant had limited options to remain in Australia and he had never previously raised concerns for his safety in any visa application. This is not indicative behaviour of someone who fears for their physical safety. In submissions dated 11 August 2021, it was put forward that the prolonged delay in applying for a protection visa stemmed from the applicant’s lack of understanding relating to the Australian migration process, a change in his home-country circumstances, the instance of harm that occurred whilst returning home to see his family, and the sense of safety he felt while residing in Australia rather than Pakistan. I do not find this to be convincing justification for the delay. I note that the applicant previously navigated a number of visa applications, including an application for merits review of an unfavourable decision. He also remained in Pakistan for four years before departing and returned nine times after he began residing in Australia.
[8] Zhang v RRT & Anor [1997] FCA 423; Kavan v MIMA [2000] FCA 370.
·I accept that media reporting of terrorism convictions in Pakistan might be restricted to the information that was put before the court and made publicly accessible. I further accept that there are transparency issues when reporting government activities in Pakistan. Nevertheless, it is difficult to explain why the police might claim that it took them a few days to apprehend suspects in a terror attack when they were able to do so much quicker. It also does not explain how the witness named in the media was able to escape being targeted by the religious organisation or individuals associated with the suspects. I accept that I have no evidence in respect of whether Zeeshan was threatened or harmed, but it is clear that he was not killed and he was not deterred from giving evidence at court. I note the applicant’s submission that Zeeshan was not at risk because his testimony did not lead to the accused’s capture. However, it would have assisted the prosecution to secure a conviction. While the reporting by Dawn cannot be accepted without scrutiny, when considered in conjunction with the other concerns discussed in this decision, it adds to a range of indicators that put the applicant’s credibility into question.
·The applicant claimed in the application for protection form that he spent some time living with his brother before moving to Australia. His brother and his brother’s family received death threats and had to move to [Country 1]. At the Tribunal hearing, the applicant further claimed that threats were made to his brother at his home in Lahore in August 2015. He claimed that his brother went to the police station the same night. No police report was provided. However, he also gave evidence that his brother had returned from [Country 1] and was living in Pakistan again by the date of the hearing. He gave no evidence to indicate that his brother had again been threatened or had ever been physically harmed.
·His application for protection also claimed that a few weeks prior to submitting the application, on 7 October 2015, the applicant’s home was raided and his family were threatened that they would be killed if they did not advise of his whereabouts. At the first hearing, he explained that in August 2015, four people with weapons knocked on the door of his father’s home in Multan. One of the applicant’s brothers opened the door and was questioned about his whereabouts. In support of the claim, the applicant supplied a document titled ‘Better Copy of FIR,’ dated [in] August 2015. The document lists [Brother B] as the individual making the complaint. The report outlines that four gunmen on [motorbikes] visited [Address 1 in] Multan, on [a day in] July 2015 and demanded the whereabouts of the complainant’s brother, [the applicant]. The later petition to the court states the incident happened on [date] April, with no year provided.
·Further, the decision of the court on the petition notes that the ‘copy of the application attached with the petition… bears no dairy [sic] number or any other mark or any other direction available on file which shows that he ever approached the concerned police functionaries.’ The applicant’s brother was advised to approach the [Police Officer]/Duty Officer concerned first for the redress of his grievances. No further evidence was submitted to suggest that [Brother B] followed that advice.
·As highlighted by the delegate in their decision, document fraud is endemic in Pakistan. DFAT reports that FIRs use standard forms with the relevant information written in by hand and are relatively easy to counterfeit. Reports exist of police accepting bribes to verify fraudulent FIRs. DFAT does not consider the existence of an FIR as conclusive evidence the events described in the FIR actually occurred.[9] Given that all of the applicant’s siblings live in Pakistan and the death threats have not been made good, the ease with which you can obtain fraudulent police reports in Pakistan and the subsequent concern of the court regarding whether the FIR was ever lodged with the police, I do not accept that any individuals attended the applicant’s family home and made threats to harm his family if they did not disclose his whereabouts.

[9] DFAT, Information Report Pakistan, 25 January 2022.
·Similarly, I consider that the attack on the motor vehicle carrying the applicant on [date] October 2014 was fabricated in order to support the applicant’s claim for protection. I acknowledge the FIR dated [in] May 2015 which reports that on [date] October 2014, the complainant was travelling in a car with his brother, [the applicant] and their relative [Relative D]. The car was approached by two unknown gunmen on [motorbikes] with no plates. [The applicant] drove the vehicle into one of the motorbikes when he saw them raise a pistol. The assailants shot at the vehicle but no one was injured. I further acknowledge the petition to the court to have the report accepted by the police. However, no evidence was put forward in respect of the court’s decision or to suggest that the report was subsequently accepted or the incident was ever investigated.

106. As outlined above, I accept that the applicant was shot several times during a single incident in 2004. The nature of the wounds is supported by the letter from [Dr I] and the timing of the incident is corroborated by the discharge summary issued by the [Hospital 1]. Nevertheless, I consider that the shooting of the applicant in 2004 was the result of generally high rates of violent crime in Pakistan, not indicative of a broader pattern of behaviour targeting the applicant. As such, I do not consider that the applicant would be of interest to any religious or political groups or individuals in the relatively foreseeable future.
107. I acknowledge the letter from [Mr A], Member of the National Assembly, however I have given the views expressed in the letter limited weight. [Mr A] does not name who attacked the applicant nor the motivation for the attack. He does not provide any detail about the identity of his ‘reliable sources’ or the circumstances that would make the applicant’s life difficult in Pakistan.
Mental health
108. I have before me three letters from Clinical Social Worker, [Ms G], in relation to the applicant’s mental health. [Ms G] expressed the view that the applicant suffers from depression and posttraumatic stress disorder. She further expressed the view that the applicant appeared genuine and deserved a second chance here in Australia.
109. In addition, I have a letter issued [in] December 2021 by [Dr H] from [Medical Centre 1], outlining that drug Fluoxetine was prescribed to the applicant in 2017 for depression and insomnia, and that drug Lexapro was prescribed for depression by another practitioner, [Dr E], in 2009. There are two referral letters from [Dr E] issued in 2009 in relation to the treatment and management of depression for [the applicant]. The letters note that [Dr E] prescribed [the applicant] 10mg Lexapro daily for the management of depression. I have a copy of Medical Prescription for drug Fluoxetine dated [in] December 2021 and a picture of a box of 10 Valium 5MG tablets with a sticker addressed to [the applicant] dated [in] September 2017.
110. I accept that the applicant has been prescribed Lexapro, Fluoxetine and Valium by General Practitioners for the management of depression and sleep on various occasions since 2009. I further accept that he was referred for therapy sessions for the treatment of depression on at least three occasions.
111. While I would have preferred evidence directed to the Tribunal from a suitably qualified medical professional, I can accept that the applicant suffers from generalised depression. However, there is insufficient evidence to support a finding that the applicant has been diagnosed with a mental illness, such as posttraumatic stress disorder. I note [Ms G’s] opinion regarding the applicant’s mental health, however I do not accept that she is a person qualified to provide a diagnosis of a mental illness.
112. The Tribunal is the finder of fact and is not bound to accept the opinions of a medical practitioner as to the truth of the applicant’s claims for the visa.[10] Nor does acceptance of an opinion entail acceptance of an applicant’s claims to fear harm.[11]
113. DFAT reports that the overall standard and availability of healthcare in Pakistan is low. Mental health disorders are reportedly common in Pakistan, and options for treatment are limited. According to a 2020 article in the medical journal The Lancet, Pakistan has fewer than 500 psychiatrists serving a population of 200 million. More than 90 per cent of people with common mental health disorders go untreated.
114. I understand that the applicant would benefit from ongoing therapy and access to medication used for the treatment and management of depression. While I accept that the level of health care in Australia may lead to better mental health outcome for the applicant when compared to the health care available in Pakistan, I do not accept that that the applicant would be discriminated against or targeted for harm, or the state would withhold protection from non-state agents of harm because the applicant has a mental health problem.
115. There was no evidence put forward to suggest that the applicant would be the target of discrimination or abuse because of his mental health, nor that he would be denied treatment for any reason. I find that the applicant does not face a real chance of serious harm, now and into the reasonably foreseeable future, for reason of his mental health.
116. Several Federal Court authorities have confirmed that the definition of ‘significant harm’ in s 36(2A) is framed in terms of harm suffered because of the acts or omissions of other persons, and therefore does not encompass self-harm and harm arising from a mental illness.[12] Any harm the applicant would suffer as a result of mental illness would not be harm that is suffered as a result of the act on another person. For this reason, I also find that the applicant’s mental health does not constitute significant harm for the purposes of complementary protection. I find that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan there is a real risk that he will suffer significant harm: s.36(2)(aa).
117. I find that the applicant does not face a real chance of serious harm, now and into the reasonably foreseeable future, for any reason if he were returned to Pakistan. I therefore find that the applicant is not a refugee within the meaning of s.5H and does not fall within Australia’s protection obligations under s.36(2)(a).
118. For the same reasons that I found there is no real chance of serious harm, I find that the real risk element of the test in s.36(2)(aa) has not been met.[13] I find that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan there is a real risk that he will suffer significant harm: s.36(2)(aa).
[10]    MZXTT v MIAC [2008] FMCA 1007 at [37]-[41].
[11]    See for example AFD16 v MIBP [2020] FCA 964 at [71].
[12]    GLD18 v MHA [2020] FCAFC 2; CHB16 v MIBP [2019] FCA 1089; and CSV15 v MIBP [2018] FCA 699.
[13] as per the judgment in MIAC vSZQRB [2013] FCAFC 33.

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), nor am I satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION

121. The Tribunal affirms the decision not to grant the applicant a protection visa.
Sheridan Lee
Member

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[2022] AATA 2350

26 May 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction