1730305 (Refugee)

1730305 (Refugee) [2022] AATA 1930 (2 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1730305
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Sheridan Lee
DATE:2 May 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 02 May 2022 at 10:41am
CATCHWORDS
REFUGEE – protection visa – Pakistan – fear of harm from sectarian conflict, political insecurity, socio-economic conditions and father’s former business partner and associates – partner’s fraudulent property dealings, attacks and threats – attempted recruitment by religious/political groups – credibility – inconsistent and implausible claims and evidence – delays in applying for student visa, departing after visa granted and applying for protection – elapse of time – no harm to family members – prevalence of fraudulent documents – country information – conditions and risks faced by population generally – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J, 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), 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 10 November 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant is a [Age]-year-old male, born in Karachi, Pakistan. He applied for the visa on 6 July 2017. The delegate refused to grant the visa, expressing concern with the applicant’s credibility on the basis that his claims were inconsistent, changeable and implausible.
The Tribunal viewed a copy of the applicant’s Pakistani passport and I accept that the applicant is a citizen of Pakistan and will assess his claims against Pakistan as the country of reference for the purposes of s.5H(1)(a) and receiving country for Complementary Protection purposes.
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, 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 arrived in Australia as the holder of a Student (TU-572) visa [in] January 2013. On 9 April 2015, he lodged an invalid application for a further student visa, and on 13 April 2015 a valid application for the same student visa. The applicant’s student visa was refused as the application was made more than 28 days after his last visa expired. The applicant applied to the Tribunal for merits review of the decision to refuse his student visa, which was affirmed on 20 August 2015. He then applied for judicial review to the Federal Circuit Court but withdrew the application [in] June 2016.
The applicant lodged the Protection visa (PV) (XA-866) application currently under review on 6 July 2016. He was granted a Bridging Visa C without work rights associated with this application on the day of the application. On 15 September 2016 the applicant was granted a further Bridging Visa C, this time with work rights.
Application for protection
The applicant’s claims for protection were submitted in his application form and an accompanying statement on 6 July 2016, and in a further submission from his representative on 25 October 2017. He attended an interview with the delegate on 26 October 2017.
The claims submitted with the application for protection can be summarised as follows:
·The applicant has a serious fear of being randomly kidnapped, killed or harmed by a terror or political organisation in Pakistan.
·He particularly fears becoming a victim of violent conflict between Shia and Sunni Muslims. He self-identified as Sunni Muslim.
·He expressed concern that he would be the victim of shootings or bombings as they have occurred in the past, and worries about living in fear and isolation, unable to leave his place of residence in Pakistan for anything other than essential business.
·The applicant and his family were the target of small robberies and threats almost every month, which they did not always report to the police as nothing gets done and they ‘got sick of it’.
·The applicant fears being the target of hatred and enmity between his late father and his late father’s former business partner, [Mr A], who is a senior member of an unknown gang and has political and ministerial connections in Pakistan. [Mr A] betrayed the applicant’s father when they purchased a property together. He committed fraud when he created a second set of papers and sold the property to a third party. After this, [Mr A] threatened the applicant’s family personally and through the gang he was associated with.
·The police in Pakistan cannot help the applicant because they are ‘corrupt or lazy’. His father did not want to seek help from the police about [Mr A]’s threats because he was afraid for their family’s security.
·The applicant cannot relocate within Pakistan because it could be risky and he does not know anyone in other cities. Further, [Mr A] has connections in other cities. Pakistan does not offer the same opportunities and safety as Australia.
·The applicant is worried about his future if he returns to Pakistan because without qualifications, work experience or social connections he may be unable to gain employment and have a career.
·While in college he was asked on many occasions to join the MQM (Mujtahida Quami Movement) or ANP (Awami National Party) political party.
·The applicant experienced harm in the past whilst living in Pakistan on the following occasions:
i.[Mr A] pushed the applicant during a confrontation with his father. He also threatened his father, stating that he would harm his family. [Mr A] threatened to harm the applicant’s family on several occasions, including demanding files and property documents from the applicant’s eldest brother (who is affected by [a health condition]) in 2015.
ii.In 2005 he was physically and verbally abused by some Shia students who were his school mates. The students pushed the applicant out of a moving van; this resulted in a scar on his [Body]. The applicant moved to a different school after the incident.
iii.in 2008 the applicant was robbed at gunpoint and physically and verbally abused by two men on the street who may have been from a dangerous suburb of Karachi called “Liari.” The applicant filed a police report.
iv.In 2009 [Mr A] and two of his friends approached the applicant with a car and asked him to “come close and not be afraid”, but the applicant ran away as he thought that he would be kidnapped.
The claims included in the submission of 25 October 2017 can be summarised as follows:
·In 2003 the applicant’s father purchased a property jointly with his business partner [Mr A], and [Mr A]’s brother [Mr B]. It was later discovered that [Mr A] and his brother deceived and committed fraud against the applicant’s father. They made two copies of the property documents and sold the property to a third party. The applicant’s father found out that he had been deceived when he went to the newly built property and found tenants already living there who had documents to show that they were the rightful owners. The applicant’s father filed a police report. As a result of this, [Mr A] visited the applicant’s residence, where he abused and threatened his father to harm or abduct one of his children. [Mr A] continued threatening the applicant’s father until he appealed to a higher authority. One day [Mr A] abducted the applicant and later released him as a display of power towards the applicant’s father. During the kidnapping incident, the applicant was pushed by [Mr A] and fell to the ground on a sharp object, causing a scar on his [Body]. After the applicant was returned to his family, his father dropped the issue and no longer contacted the authorities out of fear. He died of a [medical condition] in January 2008.
·[In] January 2008, the applicant was robbed at gunpoint, verbally and physically abused by two men on a motorbike. He filed a police report. A copy of the police report was provided to the Department.
·After the applicant’s father passed away, [Mr A] started harassing the family again, trying to gain money from the family. He claimed he was owed from the sale of some cars and tried to obtain documents relating to the father’s ownership of the property.
·The applicant fears that if he returned to Pakistan he would be harmed by [Mr A], his brothers and members of a group/gang he believes is linked to them. This happened in the past when the applicant was kidnapped and when the family were threatened and harassed by [Mr A].
·[In] December 2015 the applicant’s eldest brother, [Mr C], was attacked by some men who wanted to enter his house and rob him at gunpoint. He managed to escape and filed a police report. A copy of the police report was provided to the Department. [Mr C] suffers from depression.
·[In] October 2017 unknown people tried to murder the applicant’s mother, but she was saved by some people who were nearby. She filed a police report which was provided to the Department.
·The applicant cannot relocate within Pakistan as [Mr A] has connections in other cities who could track and find him. After the applicant’s father’s death, the family already relocated to a different area of Karachi, but they were found by [Mr A]. Also because of the general security issues in Pakistan, they would be unable to relocate safely.
·The applicant cannot seek help from the local authorities due to high levels of corruption. [Mr A] could bribe the authorities. Also, he stated that despite his family filing police reports in the past, no action was taken, so he believes that no protection would be available to him.
The applicant supplied the Department with a number of alleged police reports in relation to the incidents outlined above:
·An original and English translation of a police report filed by the applicant [in] January 2008. The original report appears to be stamped by ‘[Location 1] Police Station.’ There is no evidence to indicate that the English translation was provided by a translator with an internationally recognised accreditation (or any accreditation). The document has the seal of a notary as a true copy. The translation is set out as a letter to the ‘Station House Officer, [Location 1], Karachi’. The translation outlines that the applicant was approached by two teenage boys on a bike who took 20,000 Rupees from the applicant, slapped him, hit him in the face with a pistol and shouted at him. One assailant spoke Urdu and one occasionally spoke Balochi.
·Police report filed by the applicant’s brother, [Mr C], [in] December 2015. The original report appears to be stamped by ‘Police Station [Location 2],’ although the stamp is water damaged and makes portions of the text difficult to see. There is no evidence to indicate that the English translation was provided by a translator with an internationally recognised accreditation (or any accreditation). The document has the seal of a notary as a true copy. The translation is set out as a letter to the ‘Station House Officer, [Location 2] Police Station, Karachi’. The translation outlines that [Mr C] was approached by four people on two bikes who pointed a loaded pistol at him and demanded his wallet and phone. The translation is not entirely clear, but indicates that the assailants were disturbed and [Mr C] was able to get into his home. Finally, it notes that he had his phone, wallet and ‘a file of my father’s flat ([Location 3]) which is save from snatching.’
·First Information Report in the Court of Judicial Magistrate P.S. [Location 4], dated [October] 2017, outlining the details of a report filed by the applicant’s mother [in] October 2017 at the [Location 4] Police Station. The document has the seal of a notary as a true copy. The translation into English is poor, however the report generally outlines that [Ms D] was stopped in the street by two men in a car and two men on a motorcycle. They identified her as the mother of [the applicant] and shouted that they intended to shoot her, but they were disturbed by passers-by when [Ms D] cried out. The assailants then threatened [Ms D] by stating that her other children were ‘in their eyes and they would not be spared.’ Finally, the statement outlined that [Ms D] would be able to positively identify the assailants if they were brought before her.
The Departmental file contained a lease deed between [Surname of Mr A and Mr B] Associates (lessors) and [Mr E] (Lessee), dated [date] March 2000 for Plot [Number 1], ‘[Location 3]’ in Karachi, a number of receipts issued by [Surname] Associates and search certificates issued by Karachi City Courts. Unsure, it has been a long time.
The applicant attended an interview with the departmental delegate on 26 October 2017. The following information was provided by the applicant during the interview:
a.The applicant was harassed in high school because he is a Sunni, and they are the minority in Pakistan. The MQM and AMP tried to recruit him and there is a possibility he would face further religious hate or harm as a result of the political situation in Pakistan.
b.The applicant’s father had a property busines partnership with a man named [Mr A]. They also ran a [Business type 1] for approximately eight years.
c.The applicant’s father [would] design property on empty plots of land and invest in construction. [Mr A] and his brother were working with the applicant’s father on a property.
d.[Mr A] sold the father’s property to a third party. As a result, the applicant’s father lodged a complaint against [Mr A]. The applicant said that the complaint was not properly filed, but [Mr A] was made aware of the complaint.
e.In 2005, the applicant was travelling via bus back home and had an argument with some guys who were Shia and they pushed him off the bus.
f.The applicant claimed he was kidnapped while out shopping in February or March 2006 and brought back to his father’s residence as a threat to his father. He incurred a scar on the left side of his body from the incident. The applicant’s father was scared and severed his partnership with [Mr A].
g.The applicant’s father passed away in 2008. At that time [Mr A] came to the family home and claimed the applicant’s father owed him money.
h.In 2009, a black car followed the applicant and he believed they were trying to kidnap him.
i.Shortly after his father passed away, 2 people on a bike racially abused the applicant, hit him with a bat on the chin and asked for his phone. The applicant lodged a police report the next day.
j.People were watching the house for hours at a time, wearing scarfs. The police were called but when they arrived the people weren’t there anymore.
k.In 2013, three days before travelling to Australia, the applicant was robbed at gunpoint, but he did not report it to the police because he was leaving for the airport. The applicant stated that he couldn’t be sure if it was related to [Mr A] or not.
l.In 2015, the applicant’s brother was robbed at gunpoint outside the family home. The robbers tried to get inside the house to get documents, jewellery, and cash. Before they could get into the house, bikes drove down the street and scared them off. His brother escaped the attack as a result. The robbers were demanding the property files while threatening the applicant’s brother with a gun. The applicant’s family believe this to be linked to [Mr A].
m.The applicant’s mother went shopping and was shot at by 2 people on bikes. She was not hit. The perpetrators told the applicant’s mum that they knew where her kids lived and would get to them.
n.The applicant believed that he would be staying in Australia on a student visa and did not feel the need to apply for protection. Once it became clear that pathway was not going to be an option and the threat had not decreased, the applicant applied for a protection visa.
o.The applicant noted that his migration agent advised him that he had limited prospects of success in respect of the application for judicial review of the decision to refuse his student visa application. He also noted that the agent said there would be additional fees if he proceeded with the judicial review, so he withdrew and applied for a protection visa straight away.
Application for merits review

An application for review of the decision to refuse the application for a protection visa was made to the Tribunal. A copy of the delegate’s decision was provided to the Tribunal with the application for review.
The applicant was first invited to attend a hearing before the Tribunal on 12 October 2021. However, due to COVID-19 restrictions, the hearing was postponed. The applicant attended a hearing on 30 November 2021 to give evidence and present arguments in relation to his claims.
At the hearing, the applicant gave evidence that he was born in Karachi, Pakistan. He has two brothers and a sister. One brother lives in Tasmania and the other lives in Karachi along with the applicant’s mother and sister.
The applicant said he is Sunni Muslim and speaks Urdu and English. He practices religion on and off.
Before travelling to Australia, the applicant lived in Karachi. He said that he worked for an [Organisation] for six months and then at a [workplace] and undertook other small jobs. He completed year 12 in Pakistan and Certificate IV in [Subject] in Australia.
The applicant gave evidence that he does not want to return to Pakistan because he is fearful of his father’s former business partner, [Mr A]. He explained that [Mr A] had an argument with his father over the ownership of some property which became bitter and violent. Now [Mr A] is after the applicant’s family and their possessions.
The applicant explained that his family are in possession of a deed relating to a property in [Location 3]. The deed is in the form of an open letter, so the property belongs to whomever possesses the deed. The applicant’s mother and eldest brother want to hold onto the property to sell themselves. However, [Mr A] was a partner on the project originally and claims ownership.
The applicant’s family have been unable to sell the property to date because there was always an issue with land development office and the property records. The applicant explained that there were two files and [Mr A] sold the duplicate and now the land is occupied. The occupants of the property have a duplicate of the same deed held by the applicant’s family.
I asked the applicant if his family had ever commenced legal action in relation to the ownership of the property. He said that perhaps his father tried to take legal action, but the applicant was too young to remember. He further noted that his family were considering taking one final legal action.
The applicant alleged that he was temporarily kidnapped by [Mr A]. He could not remember the date but guessed that he was about [age range] years old.
The delegate’s decision noted there were a number of inconsistencies between the two sets of written claims provided on 6 July and 25 October 2017 and the applicant’s evidence provided at his interview on 26 October 2017. I raised a number of these with the applicant at the hearing.
The first related to whether the applicant was kidnapped by [Mr A]. In the first written statement, the applicant outlined that in 2009, [Mr A] and two other men drove up to him in a black four-wheel drive and asked him to get in. The applicant was afraid that they might be trying to kidnap him, so he ran away. The second statement outlined that the applicant was in fact kidnapped by [Mr A] when he was out shopping. [Mr A] took him back to his father’s house as a sign of his strength. I asked why he gave evidence that [Mr A] tried to kidnap him and later amended that to say that [Mr A] did kidnap him. The applicant stated that perhaps he did not describe the situation properly and confirmed that [Mr A] did kidnap him on one occasion.
I noted the inconsistencies in relation to the injuries sustained by the applicant. In the first statement, the applicant said that he was attacked by some Shia students in 2005 and got a scar on his [Body]. In the second statement, he outlined that when he was kidnaped by [Mr A] he was pushed to the ground and hit a sharp object, causing a scar on his upper [Body]. At his interview, the applicant said that he initially got the scar from the attack by Shia students but then he fell on the same spot during the kidnapping incident, making the scar more prominent.
At the Tribunal hearing, the applicant gave evidence that he has many scars, it is hard to remember. He explained that the scar from [Mr A] is in the ‘same region’ as the scar incurred falling from a public bus. The one on [one part of his body] was from being pushed from a bus and another scar is from [Mr A]. The scar from [Mr A] happened when he was a kid, around the same time as the kidnapping. [Mr A] pushed the applicant and had a heated argument with the applicant’s dad. He said that he didn’t really remember the details. He just remembered [Mr A] pushing him, and he hit a sharp rock or something.
In relation to the bus incident, the applicant said that he was standing close to the bus door. He had a brief argument with some older boys. As he was about to step out of the bus, he felt a hand push him. He thought he was in year [grade] when the incident occurred, so about 2007.
I asked the applicant about the threats made to his brother. The applicant’s first statement said that [Mr A] approached the applicant’s brother personally. Then at the interview the applicant said that it was strangers that were seeking the property documents. At the Tribunal hearing, the applicant said he was not there, but his family said it was strangers, but by the way they acted they were pretty sure it was [Mr A].
I asked the applicant about the incident with his mum. In response, the applicant said that his mum did not give him many details about the incident because she did not want to stress out the applicant or his brother. The applicant also said that he is not great with dates after he had a workplace accident here in Australia. He explained that he suffered some injuries to his lower back whilst working at a [factory]. He had surgery in 2020 and another surgery in late January 2021. The applicant alleged that he is allergic to pain killers.
I noted that the applicant had not provided any medical evidence regarding the impact of his health on his ability to give evidence or recall dates. I suggested that he look at the Tribunal website for information about the best kind of medical evidence and I provided time for any additional evidence to be submitted.
I asked the applicant about the more general concerns he raised in his application for protection. In response the applicant said that the political situation in Pakistan is always bad, with rivalries between political parties. He claimed that his brother often experiences pressure at work. The applicant also said that when he was at college for year 11 and 12 the political parties put pressure on students to join. He never joined a political party personally, however he felt more pressure because he is Urdu speaking and the majority were Pashto speakers. Tuition was in Pashto and tutoring was received in English.
I highlighted that the applicant’s family have continued to live in Pakistan since the alleged start of the property dispute, approximately 19 years ago. Noting the applicant’s evidence regarding the threats made to his mother and brother, the members of his family that remained have not suffered any injuries, they have not been kidnapped or killed. The applicant said that his family moved suburbs and avoid going out. They have groceries delivered.
When questioned about the delay in applying for protection, the applicant said that he arrived in Australia at [age] years of age and didn’t know much. He was told the best option was to apply for a student visa. He noted that he spoke to two different migration agents and got different advice from each. The applicant said he moved to Australia with a friend and had financial support from family. His family is no longer providing financial support.
I asked if the applicant’s brother, who lives in Tasmania, had applied for protection. The applicant explained that his brother had applied for permanent residency sponsored by the Tasmanian Government. He didn’t claim protection because he didn’t need to.
The applicant said his family are all trying to move away from Pakistan. His sister is moving to [Country].
I advised the applicant that I was having difficulty believing the claims made in relation to the ongoing threat from [Mr A]. Firstly, it seemed unlikely that [Mr A] would continue to pursue the family for such an extended period of time, including more than six years after the death of the applicant’s father. I noted the significant delay between arriving in Australia and applying for protection and the applicant’s history of exhausting the alternative visa options. Finally, I highlighted the prevalence of fraudulent documentation in Pakistan and the poor quality of the translations provided to the Tribunal.
The applicant accepted that he had made some statements that were unclear. I advised that the applicant could put anything that he wanted to clarify or that he missed into writing after the hearing, noting that he was nervous.
I asked the applicant about the relevance of the receipts issued by [Surname] Associates and search certificates issued by Karachi City Courts. The documents were provided to the Department with the application for protection. The applicant said he was unsure of the relevance of the documents and noted that it had been a long time.
Post-hearing submissions
On 16 December 2021, the applicant sent a written statement to the Tribunal with some accompanying documents. The email contained three zip folders titled: ‘[Location 3] Property docs’, ‘My brother [Mr C]’s medical docs’ and ‘[the applicant]-Certified translations and source documents’, along with a letter from [Dr F] and a written statement made by the applicant.
The zip folder titled ‘[Location 3] Property docs’ contained nine images:
a.A slip that appears to be a receipt dated 28 March 2001. It has the name [Mr E] handwritten on the slip and has a stamp stating ‘[Sub-Registrar]’. It is unclear what the receipt was issued for or who it was issued to.
b.A document addressed to [Mr G] s/o [Mr H] dated [June] 1986. The letterhead says ‘[Surname] Associates’ and the body of the document says: ‘I am please to inform you that you are allocated a plot Residential/Commercial land measuring 170 (with the figures 242 and 290 crossed out) Yds in “[Location 3]” Project situated in (illegible place name). The actual no. of the Plot will be communicated to you at a later date. The document is signed by an unnamed ‘owner/attorney’.
c.A document titled ‘Allotment order’ dated [June] 1990. The letterhead says ‘[Surname] Associates’ and the document states that [Mr G] son of [Mr H] has been allotted Plot [Number 1] Measuring 170 Sq. Yds. In [Location 3] Survey [Numbers] situated in [Location 3], Karachi. There is a note that states that it is subject to terms and conditions attached. The document is only one page. The document is signed for and on behalf of [Surname] Associates by [Mr B], Managing Partner.
d.A document titled ‘Memorandum of Transfers’. In handwriting it lists the date of transfer as [date] March 2000, name of transferee as [Mr E] s/o [name deleted], register folio as NIL and it is signed by an unnamed person with the stamp ‘[Surname] Associates Managing Partner’. The sheet appears to come from an unidentified logbook.
e.A document titled ‘Receipt’ dated [November] 1998. The letterhead says ‘[Surname] Associates’ and the body of the document states ‘purchased plot [Number 1] Admeasuring 290 (with 242 crossed out) Sq. Yds of project “[Location 3]” Karachi and paid RR. 5,000/- (Rupees five thousand only) on account of internal development charges to [Surname] Associates, Karachi. It appears to be signed by [Mr A] and two other unnamed individuals.
f.A document addressed to [Mr E] dated [date] March 2000. The letterhead says ‘[Surname] Associates’ with the subject line: Transfer of Plot [Number 1] [Location 3] measuring 290 Sq. Yds. In the project of [Surname] Associates in [Location 5] Karachi. The letter informs [Mr E] that the plot has been transferred to him and entries made in the record of the [Location 3] in his name. The letter is signed by [Mr B].
g.Document seven is a duplicate of document six.
h.A document titled ‘Allotment order’ dated 28 July 2005. The letterhead says ‘[Letterhead]’ and the order relates to the allotment of Plot [Number 3] in the housing scheme through a computer ballot held [in] November 1990 to [Mr J] s/o [Mr K]. The order appears to be signed by an attorney named [Mr L] and the Deputy Director of Land (unnamed).
i.A document titled ‘Search Certificate/verification’ (with the word verification handwritten) dated [August] 2017. The document states that a search of the office of the Sub-Registrar [Town] Karachi for the period [January] 2013 to [August] 2017 in respect of Plot. [Number 1] at [Location 3] found no entry. The document is signed by the Sub-Registrar [Town] Karachi (unnamed).
The zip file titled ‘My brother [Mr C]’s medical docs’ contains 21 images. The first image is a document dated [January] 2016, the letterhead says ‘[Employer 2]’. The body of the document says that [Mr C] s/o [Mr E] (late) was appointed as [Job classification] in [Workplace] has worked from 13 April 2012 in [Work department] on deputation. It lists his responsibilities and provides a positive reference. The document is signed by the [Job classification], [Department] (unnamed). The remaining twenty documents appear to relate to medication prescribed to [Mr C] at [Hospital] in 2016 and at the Psycho-Social Centre at various times from 2013 to 2016 (not all slips are dated).
The zip file titled ‘[Name]-Certified translations and source documents’ contains twelve images:
a.Translation of a statement dated [October] 2017 directed to the Station House Officer, [Location 1] Police Station, Karachi. The statement was made by [Ms D], wife of [Mr E] (deceased) and says:
Yesterday, between 7.00 and 7.30PM, I was waiting for a bus or rickshaw on the main road at [Location] when a car and a motorcycle pulled over near me. There were two men on the motorcycle. One of them was wearing a helmet, and the other had covered his face with a handkerchief. The man sitting behind the rider on the motorcycle, said to the rider, ‘this woman is [the applicant]’s mother. I will shoot and kill her right here, or we can abduct her’. He took out a pistol to kill me. In the meantime, some people had started gathering there, and the rider on the front seat of the motorcycle said, ‘[The applicant] has fled the country, escaping death. But we are keeping an eye on you and your children. We can come anytime, anywhere to kill you and your children’. Seeing the people who had gathered there, the man sitting behind the rider on the motorcycle, shot a fire at me from the pistol, which did not hit me. Because of the crowd there, they could neither abduct me nor shoot to kill me.
Dear Sir! There is a threat for my life and my children’s life. Please provide protection for our life and property and register an FIR against these unidentified persons.
Translation from Urdu by NAATI certified translator [Ms M] on 13 December 2021.
b.A copy of the source document relied on for the above translation.
c.Translation of a statement dated 25 December 2015 directed to the Station House Officer, [Location 2] Police Station, Karachi. The statement was made by [Mr C] son of [Mr E] and says:
Yesterday, on 24.12.2015, at 8.15PM I was returning home after work. At a short distance from my home, four men on two motorcycles told me to stop. I suspected that they were seeking to rob me of my money and property. I quickly made my way to the front door of the house. It took me some time to open the front door. In the meanwhile, one of the men wearing a mask and holding a TT pistol, said to me, ‘give me your mobile phone, purse and everything else that you have, otherwise I will shoot you’. He loaded a bullet in the TT, prepared to shoot, and placed the gun on my chest. At that time, some people riding two or three motorcycles appeared from the street corner. Their arrival frightened these men and they fled, leaving me alone. I entered my house. I had my mobile phone, my purse and the file of [Location 3] in my father’s name, which they could not rob. Therefore, I request you to take action against these unidentified accused persons so that people like us can feel that our life and property are safe. Thank you!
The document is stamped as a true copy, Official Seal Notary Public, City Court Karachi. There is a second stamp that says [Location 2] Police Station. Translation from Urdu by NAATI certified translator [Ms M] on 13 December 2021.
d.A copy of the source document relied on for the above translation.
e.Translation of a statement dated [January] 2008 directed to the Station House Officer, [Location 1] Police Station, Karachi. The statement was made by [the applicant] son of [Mr E] and says:
Yesterday, on 26.01.2008, at 9.30PM I left home to order food for a ceremony on the tenth day after my father’s demise. On the road, two young men on a motorcycle approached me from behind and signalled to me to stop by the Madrasa corner. The man sitting behind the rider took out a pistol and placed it on my chest, saying, ‘give us your money and mobile phone’. I had approximately 20 000 rupees for the food order and a few hundred rupees in addition. I handed that money to them. The men said to each other, ‘also take his mobile from him’. The man who had placed the TT on my chest, said to me, ‘where are you hiding the mobile phone, give it to me or else I will shoot you’. The other man started shouting, ‘shoot him and get rid of him’. Then, that man punched me in the face; he also slapped me in the face four or five times and struck me with the TT’s butt on the chin, causing me to bleed. I pleaded, ‘I forgot my mobile and purse back home. I have given you the money I had. I have nothing else’. He said to the man who was pointing the TT at me, ‘he is Urdu‐speaking; shoot him’. Those men appeared to be Balochs, and while talking, they would say some words in Balochi. Please take action against these two unidentified accused persons for robbing me, giving me death threats and attempting to kill me. My family and I will always remain grateful to you.
The document is stamped as a true copy, Official Seal Notary Public, City Court Karachi. There is a second stamp that says [Location 1] Police Station. Translation from Urdu by NAATI certified translator [Ms M] on 13 December 2021.
f.A copy of the source document relied on for the above translation.
g.Translation of a death certificate issued by the Government of Sindgh [sic] Pakistan for the death of [Mr E] [in] January 2008 by [medical condition]. Translation from Urdu by NAATI certified translator [Ms M] on 13 December 2021.
h.A copy of the source document relied on for the above translation.
i.Translation of a First Information Report dated 28 October 2017 at the [Police] Station, Karachi. The report contains a transcript of a statement made by [Ms D] regarding an incident [in] October 2017. The details of the incident are the same as those outlined above in the in the statement of 8 October 2017 in relation to an incident that occurred [in] October 2017. The report notes that the case was registered after the complainant’s statement under section 154 of the Criminal Procedure Code, with reference to petition [Number] to DJ Central. SIO at the police station will investigate the case. Translation from Urdu by NAATI certified translator [Ms M] on 13 December 2021.
j.A copy of the source document relied on for the above translation.
k.Translation of a receipt issued by the [Location 3] [Organisation 1] [in] February 2000 to [Mr E] for the amount of 5,000 for Plot [Number 1]. Translation from Urdu by NAATI certified translator [Ms M] on 13 December 2021.
l.A copy of the source document relied on for the above translation.

The letter outlined that the documents relating to the property were relevant to the claims because they clearly showed the name of [Mr A], his brother [Mr B] and their business, [Surname] Associates, which acted as ‘interim between the transfer of the said property in [Location 3] to my father’s name which was part of their business deal before he sold it to someone else as well.’ The applicant also noted that the appearance of the documents demonstrates that they were created some time ago and therefore could not be the subject of forgery. The statement outlined that one of the documents shows the name of another city in Lahore as some of the colleagues and family of [Mr A] extend there and to Islamabad.
The applicant noted that he was nervous at the Tribunal hearing and may have used unfinished sentences or been confused about his injuries or incidents that occurred in the past.
The applicant commented on a discussion that he had with the delegate at the interview:
…One more thing that I was asked during my first interview that why I didn’t leave Pakistan as soon as I received my Student Visa back in September/October 2012 but waited till late Jane [sic] 2013. To clarify that point, I made that decision to not go as soon as possible at that time simply because as I wanted to spend more time with my family knowing that I may not see them for a long time and another reason was the flights were quite expensive to book at that time with limited availability because of Christmas and new year were approaching in less than 2 months. Hence late January 2013 was the most suitable time for me to book flight and arrive in Australia.
The statement expressed the applicant’s desire to remain in Australia and commented on the better quality of life available to the applicant here.
The letter went on to say that the applicant’s younger and only sister, [Ms N], was married [in] November 2021 in a very small family gathering to one of their relatives who is a permanent resident of [Country], and she is looking to permanently move to [Country] on a spouse visa. That will leave only the applicant’s mother and eldest brother in Pakistan. A copy of an invitation to the wedding of his sister, [Ms N], to [name deleted], held [in] November 2021 in Karachi. The applicant noted that the family had originally intended to hold the wedding a few years ago but postponed it for fear of attracting attention. Restrictions imposed to prevent the spread of COVID-19 allowed the family to hold a small private function.
Finally, the applicant claimed that his brother developed [a health condition] because of all the traumatic experiences in his past.
DECISION
At the Tribunal hearing, the applicant mentioned that he suffered a workplace injury and was unable to take pain killers. He inferred that his ability to recall dates had been diminished as a result of the injury. Despite being provided with additional time to do so, the applicant did not submit any medical evidence for the consideration of the Tribunal.
Without an expert medical opinion, I cannot determine whether there are any medical conditions suffered by the applicant or the extent of the impact on the applicant’s ability to recall traumatic events or general information from the past. I have nonetheless taken his limited evidence regarding nerves into account. I note that throughout the application process, the applicant’s evidence in respect of dates was imprecise. However, I have not drawn a negative inference from this. I accept that it is not always possible or necessary for an applicant to remember specific details or dates.
I have provided the applicant with the benefit of the doubt in relation to a number of his claims, which are outlined below. However, for he following reasons, I found the applicant’s evidence in relation to the risk of harm from [Mr A] to be inconsistent and implausible beyond a confusion of dates or details. He was provided multiple opportunities to put forward or clarify evidence both in writing and in person.
Ongoing dispute with [Mr A]
The applicant supplied the Department and Tribunal with a range of documents relating to properties in [Location 3], Karachi, described above. The applicant’s father, [Mr E], was clearly named in five of those documents:
a.The lease deed between [Surname] Associates (lessors) and [Mr E] (Lessee), dated [date] March 2000. The lease confers use of the land for a period of 99 years.
b.A document titled ‘Memorandum of Transfers’. In handwriting it lists the date of transfer as [date] March 2000, name of transferee as [Mr E].
c.A document addressed to [Mr E] dated [date] March 2000. The letter informs [Mr E] that the plot has been transferred to him and entries made in the record of the [Location 3] in his name. The letter is signed by [Mr B].
d.A receipt issued by the [Location 3] [Organisation 1] [in] February 2000 to [Mr E] for the amount of 5,000 for Plot [Number 1].
e.A slip that appears to be a receipt dated 28 March 2001. It has the name [Mr E] handwritten on the slip and has a stamp stating ‘[Sub-Registrar]’. It is unclear what the receipt was issued for or who it was issued to.
The applicant gave evidence that his father purchased the property in [Location 3] in 2003. Having reviewed the documents, I accept that the applicant’s father entered a 99-year lease for the use of a property at Plot [Number 1] in the development in March 2000. The relevance of the property documents dated prior to March 2000 is unclear. The applicant provided no guidance on this issue.
While the applicant did not specify, I have inferred that the document titled ‘Search Certificate/verification’ dated [August] 2017, was provided to evidence that there is no formal property ownership registered in respect of Plot [Number 1] at [Location 3]. The document states that a search of the office of the Sub-Registrar [Town] Karachi for the period 1 January 2013 to 18 August 2017 in respect of Plot. [Number 1] at [Location 3] found no entry. The document is signed by the Sub-Registrar [Town] Karachi (unnamed). I accept that ownership of the relevant property has not been recorded by the Registrar.
I accept that the applicant’s father entered into a property deal with [Mr A] and [Mr B]. However, it does not automatically follow that the applicant is at risk because the partnership deteriorated. I do not accept that [Mr A] has harmed or threatened to harm the applicant for the following reasons:
a.It is implausible that [Mr A] would pursue the applicant over the extended period of time that has elapsed. More than 22 years have passed since the lease deed was signed, and 14 years since the applicant’s father passed away [in] January 2008. It is unclear at which point [Mr A] allegedly sold the property to a third party or when they took residence. However, the applicant claimed that the situation had escalated to the point that he was kidnapped when he was about [age range] years old in 2003 or 2004 (as stated during the Tribunal hearing) or 2006 (as stated during the interview with the delegate). Even from the latest estimate of when the dispute arose in 2006, sixteen years has passed.
b.It is unclear what benefit [Mr A] and his associates would gain from the continued harassment of the applicant or his family. By the applicant’s own evidence, [Mr A] already sold the relevant property to a third party who took possession. Furthermore, the applicant’s family has been unable to successfully sell the property themselves using the documentation that they hold. This suggests that the applicant’s family pose no risk to the subsequent deal made by [Mr A] with the current purchaser or lessee.
c.The applicant delayed in taking action at each stage of the visa application process. There was a lengthy delay between the onset of the alleged dispute sometime between 2003 and 2006 and when the applicant travelled to Australia in 2013. There was a delay of close to four months from when the applicant was granted a student visa and when he departed Pakistan. Once the applicant arrived in Australia, there was a delay of more than three years before he applied for protection. At the time the applicant applied for protection he had exhausted all other visa options to remain in Australia, including applications for merits and judicial review of the decision to refuse his student visa application. This is not indicative behaviour of someone who fears for their life and physical safety.
d.In relation to the delay in departing Pakistan following the grant of the visa, the applicant outlined that he wanted to spend time with his family and wait until flight costs were lower after the Christmas period. When questioned about the delay in applying for protection after his arrival in Australia, the applicant said that he arrived in Australia at [Age] years of age and didn’t know much. He was told the best option was to apply for a student visa. He further noted that he withdrew his application for judicial review and lodged an application for protection when he was advised of the costs involved. I do not find these to be justifiable explanations for the delay. The applicant remained in Pakistan for reasons of personal preference and convenience, while claiming to be at risk of kidnap and physical harm. Once in Australia, the applicant had ample opportunity to raise concerns about his safety in Pakistan and waited three years, at which time he was faced with only a costly alternative with low prospects of success.
e.While I note the applicant’s evidence regarding the threats made to both his brother and his mother, ultimately two of his siblings and his mother remained in Pakistan without falling victim to kidnapping, injury or death for an extended period of time. The applicant himself remained in Pakistan for close to five years after the death of his father. It is difficult to accept that there is a real risk or chance of harm to the applicant in the reasonably foreseeable future when this is the case.
f.The provision of first incident reports does not satisfy me that the incidents described in the reports occurred. The information contained in the reports is self-reported, brief and there is nothing to indicate that the police accepted the evidence and there is no information regarding the outcome of any investigation. When considered in conjunction with the inconsistencies outlined earlier, the prevalence of fraudulent documents in Pakistan and the implausibility of the narrative as a whole, I do not accept that the applicant, his mother or brother were threatened by [Mr A] or associates of [Mr A].
Considering the evidence cumulatively and having regard to the applicant’s narrative as a whole, I do not find the applicant’s claims in respect of the risk of harm from [Mr A] to be credible.
Socio-economic situation
The applicant raised a number of concerns about the general socio-economic situation in Pakistan. He gave evidence that he was asked to join political parties during college and expressed a fear of being randomly kidnapped, killed or harmed by a terror or political organisation in Pakistan. The applicant did not claim to have any political affiliations or to be involved in any activism personally. He further claimed that he is a Sunni Muslim, and he would be caught up in violence between Sunnis and Shias. He did not claim that he would be involved in proselytising or the administration of any religious activities or groups.
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. [1] I accept that the applicant was pushed from a bus by Shi’a students from his school and robbed on two occasions: once by two individuals on motorcycles and once immediately before travelling to Australia. I accept that the assault on the bus was religiously motivated, however it was an isolated incident that occurred approximately 17 years ago. Similarly, I consider the robberies to be the result of generally high levels of crime, and not indicative of a broader pattern of targeting the applicant. I accept that the applicant is apprehensive about the political situation and general safety in Pakistan.
[1] Department of Foreign Affairs and Trade Information Report Pakistan, 25 January 2022.
Nevertheless, as highlighted in the decision of the delegate, the applicant is from the Sunni majority religion, has no political affiliation and did not identify any other factors particular to him that would indicate he is at risk of getting caught up in sectarian, political or any other violent incidents. According to the 2017 census, the population of Pakistan is 207.7 million. Muslims comprise 96.47 per cent of the population. Of this number, an estimated 80-90 per cent are Sunnis and 10-20 per cent are Shi’a. Pakistan’s two national languages are English and Urdu. English is widely used in government and the judiciary, and commonly spoken in cities and by the elite. It is also the language of instruction in many schools.
The applicant alleged that the police in Pakistan are corrupt or lazy. I acknowledge that corruption is a major issue in Pakistan. I accept that the political situation in Pakistan can be volatile and acknowledge that personal safety cannot be guaranteed as an absolute. However, as a Sunni male who is not engaged in religious activism and holds no political affiliations, I do not accept that the applicant would face a real chance of serious harm for reasons of race, religion, nationality, membership of a particular social group or political opinion.
Refugee criteria
I have considered cumulatively what I have accepted of the applicants claim and find that the applicant does not face a real chance of serious harm, now and in 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).
Complementary protection
As previously outlined, I accept that violent crime, including terror attacks, is a risk in Pakistan. Furthermore, I accept that the applicant has been a victim of violent crime in the past. However, the past incidents were isolated and not indicative of a pattern of behaviour directed towards the applicant. Going forward the risk is one faced by the population of the country generally and is not faced by the applicant personally.
In his original statement, the applicant claimed that he would not have a successful career in Pakistan. As previously outlined, the applicant belongs to the majority in respect of his religion and speaks both national languages of Pakistan. He completed high school and additional training in Australia.
I acknowledge that the applicant gave evidence that he sustained a workplace injury in Australia. However, he did not submit any medical evidence or general evidence to suggest that his ability to work would be diminished into the future.
There is no intent on behalf of Pakistani society or the authorities to prevent the applicant from gaining employment or accessing services that are available to other citizens. While the applicant may not earn a wage comparable to that he would earn in Australia, he would not face extreme humiliation and he is not in a position of vulnerability vis-à-vis the State.
For the reasons above, 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).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
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 1930

2 May 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction