1724111 (Refugee)

1724111 (Refugee) [2021] AATA 684 (26 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1724111

COUNTRY OF REFERENCE: Pakistan
MEMBER:Denis Dragovic
DATE:26 February 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 26 February 2021 at 9:39am
CATCHWORDS
REFUGEE – protection visa – Pakistan – political opinion – People’s Student Federation – religion – conversion to Shia – particular social group – homosexual – murder of the applicant’s father – child abuse – threats from family political opponents – state protection – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 25 September 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Pakistan, applied for the visa on 17 December 2015. Having viewed a copy of the applicant’s Pakistani passport I am satisfied that the applicant is a citizen of Pakistan.
The applicant attended the first hearing on the 12 June 2020 by video using Microsoft Teams. At the outset the applicant confirmed that the rooms were quiet and private. The connection quality throughout the hearing with the applicant dropping out once, a pause that was recorded and noted. The hearing was conducted according to the guidelines of the Special Measures Practice Direction of 29 April 2020.
Following the conclusion of the first hearing the applicant submitted documentation which led to a need for a second, in-person hearing. This was unable to be held due to COVID restrictions until 4 February 2021.
At the second hearing the applicant’s husband, [named] attended.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Summary of claims: The applicant claims that his father was murdered in [year] by his political opponents and that those same people have been intent on harming the applicant since then. He claims to have been harmed by them, received threatening calls from them and that his mother is contacted by them. The applicant fears his circumstances in Pakistan as a Shia Muslim and he also fears the impact upon him of the coronavirus. At the second hearing the applicant explained that he is in a same-sex relationship. He raised is fears of the treatment he would face upon return to Pakistan as a homosexual male.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Evidence and Findings of Fact
The applicant claims that his father changed his name from [Father name] to [Father Alias] some time after he converted to the Shia sect which was before the applicant was born. He claimed that his mother was born Sunni and converted when she married. The applicant claims that as a result he was born Shia and raised Shia.
The applicant claims that his mother changed her first name from [Mother’s name] to [another name]. He claims that [Mother’s name] hadn’t been a good name for her and that is why she changed it in 2010. He claims that she didn’t discuss it with him, so he doesn’t know any further details.
The applicant claims that when he was young his father was murdered. He claims that he only learned of the circumstances when he was older. The claimed circumstances of his father’s death are relevant to this review and for that reason I will go through them in detail.
According to the news reports submitted by the applicant, on [a specified date] the applicant’s father was asked to attend a wedding ceremony or a funeral, depending upon the news article, of a colleague in the political party then known as the People’s Student Federation (PSF). In one article it is claimed that he was shot at the location of the wedding while in another article it states that he was kidnapped while on the way to a funeral. I place no weight on this inconsistency between articles for the reason that the reports were published the day after the events, a time when the details of any incident are unclear.
The articles claim that he was a PSF leader, another that he was [a specified office holder] of the PSF. In some they claim that he had multiple cases against him and that he was involved in violence against another political party (MQM).
All of the newspaper articles refer to the deceased as [Father name variant]. I place no weight in the different transliteration of the last name as either [Father name] or [Father name variant]. But I do consider the situation of why there is no reference to the man as [Father Alias] despite his death occurring after he had apparently changed his name. When I put this to the applicant, he claimed that maybe he didn’t change his name legally or maybe he only called himself [Father Alias] in Shia circles.
The applicant, though, is certain that he was in the PSF which is now the Pakistan People’s Party (PPP). He claimed that he remembers being at PPP rallies. He claims that he remembers Benazir Bhutto and his father’s friends and that his father was in jail with [a named leader]. I put to him that according to the date of his father’s death the applicant couldn’t have been more than [a very young age] to which he responded that the memories were just flashes.
The applicant submitted a document that purports to show that he had converted to Shia Islam. I asked the applicant about this document as he had claimed to have been born to Shia parents. The applicant responded that he followed both sects but at one point his mother told him that he should properly commit to Shia Islam. He claimed that his mother was ‘super religious’ and didn’t want him to be flexible. I put to him that he was born Shia and asked why the document would say that he converted from Sunni Islam. He said that where he had lived, they practiced the Sunni sect and that he never chose one side over the other. I have doubts about this claim. The applicant was born to parents who were both Shia. There is no reason for the applicant to practice Sunni Islam if his father had converted prior to his marriage with the applicant’s mother.
I asked the applicant if he had a birth certificate which could shed light on the name of his father. He responded that he doesn’t have one. He said that he tried to get a birth certificate before but after he obtained his ID from which he could get a passport he never thought about it again.
The applicant provided a death certificate of his father. I noted to the applicant that the certificate lists his father as having died of natural causes while the news reports spoke of being murdered and furthermore the death certificate does not list a national ID number (CNIC). The applicant responded that his mother had said that when she sought to obtain the death certificate, if she had said that he had been murdered they would have required to open a file against someone and begin a process. He explained that the marriage certificate he had obtained was not the original. As for the missing ID number he said that back then the ID numbers were different. I put to him that before the computerised national identity numbers were available there were national identity numbers which does not then explain why there is no number and that every Pakistani had a national identity number. He responded that he isn’t sure about how the system worked then. He said that when he asked his mother to obtain it she said that the document was provided as it is submitted to the Tribunal.
I put to the applicant under s.424AA information that would be a reason for affirming the decision, explaining that it went to the credibility of his claims. Due to the nature of the first hearing being by video I presented the documents on the screen. As we discussed each document a copy appeared on the screen visible to the applicant. I also highlighted particular sections as we spoke about them. After explaining the issues, I offered the applicant an opportunity to adjourn which he chose not to take. The issues raised were:
a.Throughout the applicant’s student file his father is referred to as [Father Alias variant], including on the applicant’s numerous official educational certificates, an affidavit of support for the applicant’s studies in Australia by his grandfather which lists the applicant’s father’s name and the official family registration certificate (Student applicant file digital copy pages 16, 18, 24, 44, and 118)
The applicant responded that the documents range from the period of his education through to now, a period when his mother would have used the name [Father Alias variant] and so it appears on the documents. He claims that in political circles he would have been known as [Father name variant]. While this argument may be plausible for the educational documents, depending upon which documents were required to register as well as for the affidavit, it is not plausible for the official family registration certificate in which every family member’s father’s name is listed especially considering that the applicant had claimed that his father had not officially registered his change of name.
b.In the student application statement purportedly written by the applicant after his father had passed away it states that ‘my father also runs a small business.’ (Student applicant file digital copy page 10).
The applicant responded that his ex-stepfather (that is his mother’s second husband) had a small business. He said that maybe for that reason it is there. He claimed that he did not write the statement but rather his agent wrote it based upon the information he gave.
c.On the applicant’s student visa his father is listed as being alive. This issue was put to the applicant by the delegate, but the applicant did not respond to the delegate and did not seek further time to respond.
At the hearing the applicant stated that the agent had filled in the form and that any forms that the applicant had completed did not ask about whether his father was alive or dead nor had the agent ever asked him. He did acknowledge that he signed the form and looked through it. I note that the applicant’s English is excellent and the hearing was not conducted through an interpreter. The applicant arrived to Australia on a student visa which requires passing a certain level of English language proficiency. As such that the applicant did not notice that his father’s death was not registered in the application is of concern. Regarding why he hadn’t responded to the Department when this information was put to him he said that the agent he had at the time of the protection visa application had some issues. I checked the status of the representative of the applicant at the time with the Office of the Migration Agents Registration Authority and found that the agent had his registration cancelled after being found a person not fit and proper to give immigration assistance.
I note that the Family Registration Certificate does not list the applicant’s father as being a part of the family which could support the applicant’s claims that his father has passed away, though it could also indicate that his mother and the family no longer live with their father. I also note that in one of the articles (Department file page 64) it states that the son of [Father name variant] was a ‘[applicant’s name]’ which again goes to support the applicant’s claims.
We discussed in detail the applicant’s past addresses as it relates to his claims that he had to move regularly from one location to another to avoid harm from those people who had killed his father. In the applicant’s written statement to the tribunal he listed the following places as being where he had lived: Quetta, Islamabad, Faisalabad, Lahore, Hyderabad and Karachi. At the hearing he was unable to provide more details about the length of stay, the dates or the order of his movement.
He gave evidence at the hearing of his addresses in Karachi as including [specified locations]. He said that he had moved out of [one location] in 2012/2013 and moved to [another location] and then to a house which was the last place that he lived while in Karachi.
I asked the applicant about the schools he had gone to. He listed several names. I referenced one that was listed on his application form, [School 1]. He wasn’t sure in what city it was. I asked how he could not know what city a school that he had attended was. He claimed that they were all mashed up in his mind. I presented on screen to the applicant the protection visa application form he had submitted and specifically the page where he had listed the schools he had attended. I noted that it states he was in [School 1] in Quetta ([between specified years]) during the time that his father was claimed to have been killed in Karachi. He said that it would have been after he had died and that he could have mixed up the years. I accept that he mixed up the dates when writing out the protection application as the applicant would have been [a young age] when he entered this school whereas children start school in Pakistan from the age of five.
I noted that his application stated that from 1999 onwards he was in Karachi. He said that there was a period between 1999 and the time he left Pakistan when he was in Faisalabad and Lahore and not attending school. I put to him that all of the schools he had listed to me as having attended were all in Karachi as per his protection visa application. I put to him that he didn’t really move as much as he had claimed and that he was based in Karachi for a long period. He said that it was during those early years that he moved, and he had to miss a lot of schooling. I put to him that it looks like he settled in Karachi in 1999. He re-emphasised that he had to move to Lahore after that. I accept this as in his student application he has a [vocational school] certificate from Lahore ([in specified years]). During the period in Faisalabad he claimed that he was being home schooled. He said that he didn’t know why. He said that he just recalls his mother telling him that it was because of family issues.
The applicant states that neither his stepbrother nor stepsister have received any threats, but he suspects that is because they were not of his father but rather children from his mother’s subsequent marriages. I note that the family registration certificate does not support the applicant’s claims of them being children of another father. The family registration certificate states that the father of his siblings is the same man as his father. When this was shown to the applicant, he said that he is not sure, but he noted that their full names have their father’s name in them. He explained that their father’s names were incorporated as what would be known in Anglo-Saxo culture as middle names into their full names just as his name has his fathers’.
The applicant did not claim that anyone visited his houses to threaten or harm him during his return to Karachi after 1999. He said that the man he feared, [Mr A], had tracked them for a few houses before this period but not since then. He claims that his mother has told people that she has disowned the applicant and that could be one reason why people have stopped approaching her for information about him.
The applicant claims that he faced threats and harm on occasions in [specified years] and more recently that his mother has received threatening calls as per a written submission dated 2015. I will engage with each below.
The applicant wrote in his statutory declaration that:
The first instance that I can remember was in [a specified year] a few months after my father's death a man named [Mr A], picked me up from school claiming to be my father's friend and saying that he would take me to him. I was of course, a child, and wasn't really aware of my father's death ... or the concept of death for that matter. He ended up locking me in a room and beating the living daylights out of me. He first whipped my with his belt for what felt like forever. I was laying on the floor crying in pain when he stopped whipping me and started slapping and punching me, telling me that it was only the beginning, and won't end any time soon. I must have blacked out in the middle of it because the next thing I remember is, me being naked, and him whipping me with a telephone wire. At least I think it was a telephone wire, or something similar. After a while, he took some matches and started burning me in various spots. The ones I remember clearly are the ones on my feet, right shin and my inner thigh on the left. Most of the wounds are now thankfully healed, but there's still a slight burn mark on my inner thigh. I must have zoned in and out of consciousness, because the next thing I remember is that sadistic freak pouring perfume on my cuts and burns telling me that I need to last longer and that I cannot die that easily. I was starved throughout the ordeal, and I only managed to get some scraps from the garbage in the middle of the night while he was asleep. After what felt like ages, I remember my mother and some people breaking in there and taking me to safety. I've been told that my time with him was two days but it always feels like an eternity.

At the hearing the applicant did not go into this level of detail as he was hesitant to recollect the instance.
The second incident occurred shortly afterwards. According to his statement he was in Quetta when a man caught him and kidnapped him. He said that he tried to run away from the man but his head was slammed on a table. At that stage he was molested by the man. Because he was screaming some people heard and his assaulter ran away.
The third incident was that he was threatened over the phone. He claims that this occurred a few months after applying for his national identity card sometime in 2011, a process which would have made his contact details known to people. He claims that he received calls from people claiming to be friends of his father and wanting to meet him. He continued to refuse and then the calls escalated to outright threats. He tried to change his number but because his new numbers were linked to his identity card, they would call him again. He eventually used a phone registered in his friend’s name. He claimed that his family were approached and offered money to identify where he was living. He claimed that one of his aunts was offered money to provide information and that she had approached his friends to find out about his whereabouts.
In his statement submitted to the Department he claimed that in 2012 he was beaten on his way home from work. During the hearing he said that it was late 2012 or early 2013 that this occurred. He explained that a number of people ambushed him around 3am or 4am. He offered them his wallet and phone but then they started beating him with sticks. He feared that they were about to take him away when some security guards from the neighbourhood approached and chased them away. He claimed to have reported it to the police but that they said to him that he couldn’t make an accusation without evidence against specific people in a situation where people were just trying to harass him. I asked why he associated it to his father. He said that nobody beats you up and tries to drag you somewhere. He added that there is a possibility that it wasn’t linked to his past. I put to him that there is a high incidence of kidnapping in Karachi.[1] He said that that is correct and that it was possible that it wasn’t related.
[1] Radio Free Europe/Radio Liberty, Pakistan: Security crackdown ordered in Karachi, 5 September 2013, available at: [accessed 25 June 2020]
I asked the applicant why he thought that there were people who would seek to harm him nearly thirty years after his father’s death. The applicant said that he does not know. He said that he can’t answer such questions. He said that he thinks he would be dealt with in an ever-worse manner. I put to him that the people who would have had an interest in him when he was [very young] years old may have been in their twenties but probably thirties and forties considering that they knew his father and were involved in politics. I put to him that these same people would be in their fifties, sixties or seventies now. I asked why he thought that they were even alive. He said that his mother continues to get harassed.
I put to the applicant that during 1993 the government implemented Operation Blue Fox which was the deadliest period of Karachi’s history. It is estimated that 3,000 people were killed during this period. There were major battles between government led by PPP and the MQM.[2] I explained this to him as context to the circumstances then which has substantially changed since. He said that it could be a revenge killing that led to his father’s death.
[2] Canada: Immigration and Refugee Board of Canada, Pakistan: Information on the activities of the Mohajir Qaumi Mahaz (MQM) in 1992, especially with respect to the national government of Pakistan and the Sindh provincial government, 1 December 1992, PAK12609, available at: [accessed 25 June 2020]
At the hearing the applicant was convincing in his responses. He did not appear to be rehearsed, his recollection of past events was sometimes chequered but not selectively, in some instances some of the information appeared to be contrary to his interests which he resignedly accepted. Despite there being issues with the applicant’s evidence and noting that fraud of documents and even newspaper articles in Pakistan is widespread[3], I accept the applicant’s statements of his father’s death. I also accept that his father is the person described in the newspaper articles as [Father name variant] despite having changed his name to [the Alias]. People are known by their nick names in many countries and I accept that sometimes these names remain regardless of formal changes. As noted above one newspaper article refers to the victim’s son as [the applicant’s name]. This point was not raised by the applicant at any stage through the Departmental or Tribunal process which in my mind adds weight to his claims that he has avoided looking over the articles in detail trying to find out about his father’s death as it just brings him heartache.
[3] Department of Foreign Affairs, Country Information Report: Pakistan, 20 February 2020 at [5.71]
I also accept the circumstances described by the applicant as having occurred in the years immediately after his father’s death, specifically that he was pursued by [Mr A] and harmed and that sometime around [year] he was grabbed and molested. This period is widely known to have been a particularly lawless period in Karachi when different political groups fought turf wars against each other and the state. That the applicant’s father who was involved in politics was killed and that others sought retribution against the family is plausible considering the circumstances of the time. That he was pulled off of the street and molested, sadly, is also plausible though I find it speculative to tie this to his father’s death.
There was a long break between the events that occurred in the mid-nineties including [Mr A’s] continued pursuit of the child for a ‘few houses’ and the next event which was in 2011. At this stage the applicant claims to have received phone calls that are threatening. I accept that he received these calls. I also accept that they are related to him having registered on the CNIC database as the two events align.
Following this the applicant claims that he was attacked sometime in 2012 early in the morning as he was leaving a late-night shift by people, he believes to be associated with those who want to exact revenge. There is little reason to connect the two, other than the applicant’s fear. They attacked him late at night as he was leaving his workplace. They didn’t shoot him or attempt to kill him but rather beat him up. They didn’t make any statements of vengeance or threats. The applicant believes that because they didn’t take his phone and wallet that they were associated with his past troubles. Alternatively, it could be that they would have taken his phone and wallet had the security guards not arrived. I find that it would be speculative to presume that the attacks upon him would have been associated with his father’s past.
The applicant came to Australia [in] June 2014. In 2015 he claims to have talked to his mother and was thinking of returning to Pakistan, but she told him to stay away as she was still getting harassing calls enquiring about him. The applicant claimed that she began to tell these callers that she has disowned him and probably for this reason she has not received calls about him. I find this plausible given that the motivation to harm the applicant in the mid-nineties may linger or burn bright within the person/s. As such giving the applicant the benefit of the doubt, I accept that his mother has received some calls.
At the end of the first hearing I explained to the applicant in detail how the legislation regarding asylum worked and in particular that it was a forward-looking test. I explained that the past could inform the future but that the test is relating to the future harm he may face. As an example, I asked if he had participated in any political activity in Australia to which he said that he had not and at that hearing he had nothing further to add.
Following the hearing, on the 20 July the applicant submitted a marriage certificate which listed his male husband. The date of registration on the certificate was [in] July 2019. In relistening to the recording of the first hearing I note that he did at one stage state, ‘What I’ve said and told [my] husband [is] truthful…’ There is clear reference at that stage to his partner being male. Mistakenly, I did not engage with it at the time, the applicant did not elaborate at the time. When asked at the second hearing why he had not raised this issue earlier he explained that he believed the process to be only focused on the harm that had occurred in the past. He added that when I had explained to him the forward-looking nature of the test, he subsequently discussed it with his husband and realised that their relationship posed a risk to him.
The applicant did not subsequently make any further submissions and instead he was invited to the Tribunal for a second hearing along with his husband.
At the second hearing I asked his husband to leave the room and proceeded to ask questions about their relationship. While cognisant of the Act giving clarity to what constitutes a married relationship, the test in this case remains whether the applicant faces a real chance of serious harm or a real risk of significant harm regardless of whether it meets the test of a married relationship. As such my questions were not focused on the regulatory criteria but rather the genuineness of the applicant’s claim that he is in a homosexual relationship and how that would impact him were he to return to Pakistan.
The applicant provided information about his relationship, how he met his husband, how they live and share responsibilities, where they live, what each other’s hobbies, favourite music and activities are as well as how they spent their time over the past few weeks.
Of note is that the applicant and his husband live with the husband’s family but without them knowing of their son’s homosexual relationship. When questioned about this both explained that the house has two living areas and that they are able to live independent of the husband’s parents.
At the hearing they talked about each other’s favourite computer games, going to the cinema, sharing meals and when their birthdays are. The problem, as I explained to the applicant and the witness was that knowledge of these matters could be expected of housemates and not necessarily is it information that only a couple in a relationship would know.
They explained that they aspire to buy a house together. I asked if they had photos of each other holding hands and whether they had photos of each other on their phones. The answer was no to both questions. I asked if they had socialised as a couple. The answer was that no one on the side of the applicant’s husband knew of the relationship while the applicant said that he had two work friends attend their wedding. I asked that they provide statutory declarations attesting to their knowledge of the relationship.
I explained to the applicant that I wanted them to provide further information that distinguished their relationship from a housemate or good friend type of relationship.
In post hearing submissions the applicant provided copies of a home contents insurance schedule that had both of their names on it. He also provided a statement by one of his work colleagues who had attended the wedding. The author of the statement explains in detail his engagement with the applicant and his husband as well as the author’s view that the applicant and his husband are a ‘wonderful couple’. Both the applicant and his husband provided a copy of their superannuation showing that both had elected the other as ‘non-binding’ beneficiaries. A non-binding beneficiary is described on the husband’s superannuation form as someone ‘who you’d prefer to receive your super when you die, but your nomination is not legally binding.’ There is an option to choose a binding beneficiary on both the applicant and husband’s superannuation, which according to the explanation on the form provided by the applicant husband’s superannuation, means that it would, ‘provide greater certainty over who receives your death benefit.’ The cover page of a phone contract was provided that purports to show the applicant and his husband being on the same phone plan. Additional photos of the applicant, his husband and two other people standing alongside each other in non-amorous poses were provided.
Considerations
I accepted that the applicant’s enemies may have been intent on harming any offspring his father had to punish him for any hurt he had done them. The news articles speak of the applicant’s father as having been accused of shooting at MQM camps and having a number of court cases against him. We can only speculate what actually happened, but I accept that the man had enemies who would want to exact revenge. The question is whether those people will continue to pursue this vendetta nearly thirty years later and whether they will have the resources and ability to do the applicant any harm.
The applicant explained how he had moved houses throughout his life, but he was unable to provide details of when he was in a particular city or even the order of the moves. While I accept that trauma can affect memory it is of concern that he had an ability to list schools and dates, albeit somewhat inaccurately, in his protection visa application but not at the hearing. Nevertheless, I note that it is not in contention that the applicant has been living in Karachi since 1999 apart from two years when he was in Lahore for his [vocational] studies. Throughout this period of 1999 to 2013, while attending school, and living with his family he was not physically approached, no one arrived at his home and he was not harmed for reasons related to his father (I have not accepted that the 2012 incident was related to his father). While he stated that he moved around a lot I note from his application form that he also remained in one school for periods of up to two years.
He claims that he borrowed a friend’s phone after registering for a CNIC card then began receiving threatening calls but as discussed with the applicant, registering a CNIC card also requires registering a home address. The applicant claims that they moved before anyone could have found them. I put to him that he had said that matters had calmed down by this stage. While I accept that the applicant moved houses regularly, not necessarily all related to his mother’s fear of harm, it is important to note that no one visited his home but instead only called his number.
Considering that the applicant has not been harmed for at least fifteen years while living in Pakistan, the applicant’s mother has not been harmed for over twenty years and no property has been damaged despite the applicant and his mother living in the same city as his father’s enemies lived for at least a decade I find that was the applicant to return to Pakistan he would not face a real chance of serious harm or a real risk of significant harm for reasons arising from his father’s politics.
The applicant fears harm from being Shia. He said that he does not fear for reasons of being reaffirmed as a Shia or for being of parents who were Sunni before having converted. He specifically said that he fears harm from the attacks upon Shia gatherings. He said that he hasn’t participated in religious gatherings in Australia but he did in Pakistan. I asked the applicant about his level of adherence to his faith including, for example, if he had participated in Ashura, one of the main religious days of commemoration for Shia. He said that he had not participated in Ashura in Australia and is not ‘too religious anymore.’
I read to the applicant country information:
3.92 Most Pakistani Shi’a are not physically or linguistically distinguishable from Pakistani Sunnis. NADRA collects sectarian information during the application process for identity documents, but CNICs do not identify a cardholder’s religion, and passports do not distinguish between Sunni and Shi’a Muslims.
3.96 DFAT has no evidence of systemic discrimination against Shi’a in gaining employment in the public service, police, military or the private sector
3.104 Overall, DFAT assesses that most Shi’a in Pakistan face a low risk of sectarian violence.
The applicant mentioned that during uprisings between Shia and Sunnis people get indiscriminately get killed.
I then put to him statistics of terrorist related fatalities showing that the statistics for the past twenty years in Pakistan and specifically again in Sindh province with Karachi as the base. I noted that the statistics show that while there was an uptick in violence in both tables around 2011 through to 2015 the number of fatalities has reduced to the lowest levels over twenty years. The applicant said that at the moment it appears that the tensions between Shia and Sunnis has reduced but in the future as Shia go to their areas to pray and Sunnis to theirs then he could face a risk.
The applicant is not arguing that he would personally be targeted for reasons of being a Shia nor does the country information suggest that Shia of the profile of the applicant face a low risk of sectarian violence. But the applicant is concerned about generalised violence against Shia. This is a high-level perspective that includes an element of randomness. While he is still fearful of harm for the essential and significant reason of religion or alternatively in the complementary protection regime, he fears harm that is intentional in which case the persecutor isn’t targeting the applicant as an individual but rather a group of which the applicant is just one element of. By its very nature this is a statistical proposition as the applicant fears what could be referred to as, ‘being in the wrong place at the wrong time’. Having reviewed and discussed with the applicant the current situation in Sindh specifically and Pakistan generally with regards to sectarian violence and noting that deaths have reduced to levels in the double digits for Sindh over the past four years and that the size of Sindh is nearly fifty million people I find that the applicant does not face a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of return to Pakistan arising from a random attack motivated by sectarianism.
The applicant also raised a concern over the coronavirus. He said that he feared it, if he was to return to Pakistan. I asked if he thought that health care in Pakistan would be withheld for him to which he said that it would not noting that the health system is in a bad situation for everyone. As the harm the applicant fears is from a virus that does not discriminate, there being no evidence that the health system would discriminate in providing support I find that the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(a) or s.36(2)(aa) for reasons of the coronavirus.
Regarding the applicant’s claims of being in a homosexual relationship under any circumstances it is difficult to test the credibility of such claims. The details in this case make it even more so. The applicant co-sharing a portion of a house with his partner can blur the line between an intimate relationship and a housemate relationship. In both cases there would be a certain degree of knowledge of the other including how they pass their time, when their birthdays are and moments when they hang out together. The other aspects which would distinguish an intimate relationship from a house mate relationship are limited in this instance. The applicant was able to only obtain one statutory declaration of a friend knowing of their relationship. They have no photos of being affectionate together such as holding hands or kissing in front of some landmark, just to mention two possibilities. The parents of the applicant’s husband apparently do not know of the relationship despite living in the same house. They had very limited evidence of a financial commitment that tied their relationship together. When this was raised with them, they then subsequently provided superannuation documentation that showed the other as being ‘non-binding’ beneficiaries in the event of their deaths. It appears that this was established after the hearing. That they chose non-binding rather than binding adds a layer of further concern.

Yet, that the applicant did not disclose his marriage which had taken place a year prior to the hearing. This weighs heavily in favour of the applicant’s claims. Furthermore, that he mentioned his husband at the first hearing without emphasising the point again reinforces the view that he is in a homosexual relationship but had genuinely not understood the law concerning protection claims and as such did not raise the matter. I note that the applicant was not represented during the Tribunal phase of the review and as such it is wholly plausible to believe that he misunderstood the test until it was explained to him at the close of the first hearing. For the reason that the applicant did not raise these issues yet clearly were established prior to the realisation that they were relevant leads me to conclude that the applicant is in a homosexual relationship.
As such I have reviewed country information on the situation of homosexuality in Pakistan:
While sex between males is common, homosexual identity is not. 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.
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.
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 or gender identity. DFAT assesses that openly LGBTI people and advocates for LGBTI rights face a high risk of societal violence.[4]
[4] DFAT Country Information Report: Pakistan, 20 February 2019
The applicant and his husband have concealed their relationship in Australia for fear of the husband’s family’s reactions. They aspire, though, to live together. This aspiration may be fulfilled even if the applicant was separated from his husband by the husband travelling to visit or moving to Pakistan longer term. In both situations, whether short or long visits, the applicant risks harm as his relationship would be discovered unless they acted discretely.
In the alternative, was the relationship to falter as a result of the distance separating the two it is evident that the applicant is homosexual or bisexual. Was he to seek out other relationships with men country information indicates that he would face what amounts to serious and significant harm.
Section 5J(3) of the Act states that, ‘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.’ But this carries with it the caveat, ‘other than a modification that would conflict with a characteristic that is fundamental to the person’s identity or conscience.’ A persons’ sexuality is fundamental to their identity. Although the applicant has clearly hidden his sexuality it is apparent that it is due to his husband’s fear of his parent’s finding out. It does not appear that the applicant himself, all things being equal, would choose to lead a discrete life and not publicly be known as having a same-sex partner even in the safety afforded in a country such as Australia. For this reason, I find that the applicant can not be expected to modify his behaviour.
As the state in some instances is the persecutor as noted by country information, I find that the applicant cannot turn to the authorities to seek protection. Even in the instances in which there are laws that protect against official discrimination there is a deeply entrenched societal prejudice.
For these reasons I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Denis Dragovic
Senior Member

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

[2021] AATA 684

26 February 2021

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