1731742 (Refugee)

1731742 (Refugee) [2021] AATA 3956 (3 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1731742
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Paul Noonan
DATE:03 September 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 03 September 2021 at 05:18pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – fear of harm from brother’s wife’s family – supported and assisted brother’s marriage against his wife’s family’s knowledge and wishes – brother killed by wife’s family and threats to applicant – credibility – inconsistent and contradictory claims and evidence – delay in applying for protection – reference in student visa application to brother dying in accident – unnatural death not necessarily murderous – no official reporting or investigation – no harm to brother’s wife despite victims of honour killings usually being women – now remarried – no harm to family – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 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 dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 24 November 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 16 September 2016. The delegate refused to grant the visa on the basis that the applicant was not a credible witness with respect to key aspects of his claims, and that his brother had not been killed for reason of his marriage, and that he was not of any adverse interest to his brother’s wife’s family or anyone else, and as such he does not hold a subjective fear of harm in Pakistan.
The applicant was born in Sialkot, Punjab on [Date]. He first travelled to Australia [in] May 2013 on a [Student] visa. He departed Australia [in] April 2015 and returned on a [Student] visa [in] May 2015. After lodging his application for protection he was interviewed by the delegate.
The applicant appeared before the Tribunal on 21 June 2021 to present evidence and arguments in support of his claims. The applicant was represented by his registered migration agent in this matter. The Tribunal also spoke to the applicant’s witness, [Mr A] (the applicant’s brother), by telephone. The applicant provided the Tribunal with a copy of the delegate’s decision. A further hearing was held on 31 August 2021 by conference telephone with the applicant and his representative participating.
The Tribunal notes that in the applicant’s claims he sighted ongoing mental health problems. The Tribunal has taken this into account when conducting the hearings and considers that the applicant was able to understand and comprehend the Tribunal at all times during the hearing and that he gave considered and lucid answers to all questions asked of him. Further, the applicant was represented at all times in this matter and his representative did not raise any concerns with respect to the applicant’s ability to participate meaningfully in the hearings.
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.
Country of reference
The Tribunal accepts, on the basis of his passport retained on the Tribunal record and the delegate’s assessment as such, that the applicant is a citizen of Pakistan and has assessed his claims against that country.
CONSIDERATION OF CLAIMS AND EVIDENCE
Decision summary
The issue in this case is whether the applicant engages Australia’s protection obligations because he has a well-founded fear of persecution in Pakistan for the essential or significant reason of his membership of a particular social group, being a person targeted for honour killing or a person at risk of COVID-19. In the alternative, the issue is whether the applicant satisfies the requirements for a protection visa in Australia on complementary grounds.
The applicant’s claims for protection
In his written claim for protection, the applicant wrote that:
I came to Australia to study and returned to Pakistan and supported and assisted my brother in marrying his girlfriend secretly, against the knowledge and wishes of both of our families. My brother and I both spent time studyi ng in the West so we had different attitudes to our parents and society about love and love marriages as opposed to arranged marriages. My brother returned to study in [Country 1] after his marriage and the marriage was kept a secret. However over time his wife's parents were trying to organise her marriage, not knowing she was already married . Her resistance to the marriages went on and my brother and his wife stayed in touch secretly, as their love remained strong. Eventually his wife told her parents the truth and they were furious. We told our parents also and while they were upset and opposed the marriage we eventually convinced them to allow my brother and his wife to have an official marriage ceremony. After this ceremony my wife's brother's family and associates were outraged. One month after the marriage my brother was killed.
They killed my brother. I have a threat from his wife's family. They killed him and now they are after me. His wife family was not happy with their marriage and I was the one who had been encouraging my brother. I am the one they blame for allowing and encouraging this to happen and now my brother's wife has been forced back into their family home she will have told them everything about my involvement in the marriage. My family doesn't want me to go back to Pakistan as they have lost a son and do not want to lose another one because of this. The rest of my family were opposed to the marriage, and did not know it had happened, so that is why they are not in danger.
Prior to the Tribunal hearing the applicant submitted the following written statement:
“My biggest fear in Pakistan if I go back they’re gonna find me n kill me as they did to my brother..and I don’t wish to die in that way.. life back there is different since mt brother has passed.. My mother is a patient of dipression.. she’s been in shok for a very long time .. my family is trying to do every possible thing to keep her away from stress n all..as she already have lost a son and doesn’t wana lose another.. and my family is struggling financially bcos of the covid businesses going down day by day..there noT much progress in the business since covid .. and I have suffered a lot.. all these years I kept thinking of what happened to my brother that can happen to me as they’re still holding grudges against me.. and to add that things have changed now .. and I have fear of that .. I have fear of being a failure..people are so status conscious back there ..I don’t want to live in a doom.. I don’t wana live in a society where people are so backwards minds and hypocrites.. where I’ll allwaya have fears in my mind .. Where I’ll have to hide from [Ms B’s] family as they have big connections bcuz ther’re strong financially and have resources too ..and even my family has been hiding from them as we sold our house and property moved somewhere else just to hide from them..and if they find me out ther’re gona harm me badly as they did to my brother..I am already struggling living my life.. I have been sick mentally n physically.. and covid has effected our lives so badly as I have seen so many people dying with decease in that part of the world and I have fear of that so please don’t make me move there for the sake of humanity it’s my humble appeal that please let me live my life peacefully..”
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal hearing
The Tribunal has considered the following evidence and documents submitted by the applicant prior to the hearing:
·Submissions in email, received 3 June 2021: Doc ID [1].
·Statement of applicant, undated: Doc ID [1].
·Witness statement of [Mr A], undated: Doc ID [1].
·Property Sale Document (Sale Deed /Agreement), dated 1 September 2016: Doc ID [1].
·Article from Amnesty International on Pakistan, dated 2020: Doc ID [2].
·Article from CNN titled ‘It will take more than laws to end honour killings in Pakistan’ dated 28 March 2018: Doc ID [3].
·Article from Dawn (Pakistani paper) titled ‘The ‘honour’ in murder’ dated 13 September 2020: Doc ID [4].
·Article from Human Rights Commission of Pakistan titled ‘HRCP urges probe into alleged honour killing’ dated 2 February 2011: Doc ID [5].
·Article from Human Rights Commission of Pakistan titled ‘Wazirstan ‘honour’ killings barbaric, condemnable’ dated 17 May 2020: Doc ID [6].
·Article from Human Rights Watch titled ‘Pakistan Events of 2019’ dated 3 May 2019: Doc ID [7].
·Article from Human Rights Watch titled ‘Pakistan Events of 2020’ dated 12 September 2020: Doc ID [8].
·Sale Deed of Shop, undated: Doc ID [9].
At the start of the hearing the Tribunal set out with the applicant his written claims for protection, which he and his representative confirmed as a true and accurate representation of his claims for protection.
In his written claim for protection the applicant declared that he came to Australia to study and in 2015 he returned to Pakistan to assist his brother to marry [Ms B] in secret against the wishes of their families. He and his brother have lived in the West and held more liberal views on these matters. His brother then returned to [Country 1] to study. Subsequently [Ms B]’s parents tried to organise her marriage and found out that she had married in secret. They were very angry. The applicant’s parents initially opposed the marriage but subsequently allowed his brother to have an official marriage ceremony and the marriage was registered [in] May 2016. A month later the applicant’s brother was killed by [Ms B]’s family and [Ms B] was forced to return to live with her family. [Ms B]’s family blame him for encouraging his brother to marry [Ms B] and he fears he will suffer the same fate as his brother if he returns to Pakistan.
The Tribunal first spoke to the applicant’s brother, [Mr A], who had already provided a witness statement which the Tribunal had regard to. [Mr A] stated that he currently resides in Sialkot city, Punjab, Pakistan. His parents and other siblings reside with him. They have always lived in Sialkot city. They have, however, moved regularly within the city since the incident involving his brother [Mr C]. They have lived where they are currently for about one and a half years.
[Mr A] gave evidence that [Mr C] had fallen in love with a girl called [Ms B] at school and they had always wanted to marry. At school his brother and the applicant used to have fights with [Ms B]’s brother as he knew about their relationship. They took part in a marriage ceremony in 2011, which was a Nikkah religious marriage ceremony. He wasn’t at this ceremony but the applicant was. After the ceremony [Mr C] returned to [Country 1] to study and [Ms B] lived with her parents. Neither his nor [Ms B]’s parents knew about the marriage. Subsequently they were officially married in 2016. This was because [Ms B]’s family were trying to force her to marry someone else. His own family decided to hold an official marriage in support of [Mr C]. The applicant was not at this marriage ceremony. After that [Mr C] stayed in Pakistan and lived with [Ms B]. They only lived together for a month when [Mr C] was found dead. He was covered in blood. He was found at their family farm house in the countryside. They tried to get him to hospital. [Mr A] then stated that he died on the way to hospital. They took him in a car to the hospital. [Ms B] was not there. Her family took her. [Ms B]’s family then threatened them and told them not to report the case and kept asking about the applicant because he had supported [Mr C] and they used to fight with him. [Ms B]’s family first found out about the marriage when she told them when they were trying to organise a marriage for her in 2016. Her family are rich and influential in their city, like gangsters. [Mr A] stated that they did not make a report to police because [Ms B]’s family were threatening them and they had to organise the funeral. They decided not to start a legal case as they did not want to lose any more family members. [Mr A] then stated that [Ms B]’s family are professional ‘gangster people’. Since then they have been threatened many times, and they are always asking after the applicant. They threaten to kill him and all of the family if they don’t stop hiding him. They wish to harm the applicant because they know that the applicant helped [Mr C] marry [Ms B] in the Nikkah. They found out about the applicant’s involvement when [Ms B] told them how the marriage happened. [Ms B]’s brother last called him about a month ago, and they tease him. Last time they called him they said to him that they know he is hiding and they will find him, and where is the applicant, and if they find him they will kill him.
He did not know about the Nikkah. When he did find out he was ok with it. When his parents found out they were a little angry and asked [Mr C] why he did not let them help him. But then they supported him in his plans. With respect to the 2016 marriage ceremony, [Ms B]’s parents did not know about it. [Mr C] took [Ms B] from her parents’ house or from her college where she was studying to facilitate the marriage.
[Ms B]’s situation now is that she has married someone else. He does not know when she remarried. He was told of this by some other people.
[Mr A] informed the Tribunal that his family runs a manufacturing and export business. They sell all over the world. His family is wealthy but since [Mr C]’s death their fortunes have gone down. His mother is depressed and they haven’t been able to focus on the business as much and the pandemic has adversely affected the business. They have had to sell some properties to get some money and survive. They have some properties in their city and sold a couple of them. They have sold them because of the downturn in the business. They live in rented properties so that they can move when needed.
After speaking to [Mr A], the Tribunal put to the applicant for his comment that the delegate stated that in his interview with the Department, as set out in the delegate’s decision, there had been no harm or threats made to his family. The Tribunal noted that [Mr A] had stated that they had received threats on the day of [Mr C]’s death and thereafter which appears to contradict the evidence he gave to the delegate. The applicant stated that he meant that they haven’t been threatened physically but have received phone call threats. This is why they have moved. The Tribunal asked why he did not mention these verbal threats before. The applicant stated he thought he was being asked if they had been harmed physically. The Tribunal put to the applicant that [Mr A] gave evidence that his family continue to reside unharmed in the same city as [Ms B]’s family and that her family is wealthy and well connected, which may indicate that [Ms B]’s family could easily locate them if desired and this may indicate that, in fact, they are of no adverse interest to [Ms B]’s family and they are unmotivated to find or harm them. The applicant stated that they keep threatening them and they have been lucky so far and besides they had killed [Mr C]. The Tribunal also noted that [Mr A] gave evidence that the family business was suffering a downturn, which may lead the Tribunal to consider that the evidence of properties being sold that he has submitted reflects these economic challenges, rather than a necessity to move due to fear of harm as he had asserted. The applicant then gave contradictory evidence that they did sell for economic reasons but also because they feared harm.
The Tribunal noted that it would write to the applicant under s.424A to set out concerns with respect to contradictory evidence from the witness.
The Tribunal put to the applicant that [Mr A] had said the Nikkah ceremony was in 2011. His evidence was that he returned in 2015 to be involved in the marriage. The applicant stated that he assisted in the planning of the subsequent marriage ceremony. He had also attended the Nikkah in 2011. The Tribunal put to the applicant that he gave specific evidence to the delegate that he returned to Pakistan in 2015 to be the witness in his brother’s secret marriage. He is now saying that he went there to help plan the marriage for 2016, which appears to be a contradiction to his previous evidence. The Tribunal asked him why he told the delegate that he went back in 2015 to be the witness to his brother’s wedding. The applicant stated that he went back in 2011 to be the witness. He did not go back in 2016 as he could not afford it.

The applicant stated that he and his brother have always had a dispute with [Ms B]’s brother since they were young. The Tribunal noted that [Mr A] had given evidence that they found [Mr C] alive and took him to the hospital. The Tribunal put to the applicant that, in his written claim for protection, he had not set out any details about the manner in which [Mr C] had been killed and that it may expect that details, such as him being found alive at the farm and taken to hospital, would be recounted. The applicant stated that he understood that he was dead when found or died on the way to hospital.
The Tribunal noted that [Mr A] gave evidence that his parents were opposed to the marriage but came around to supporting the relationship. The applicant stated that once they found out they had had a Nikkah, they decided that they were married so there was nothing they could do.
The applicant stated that [Mr C] and [Ms B] undertook the Nikkah because they were in love. Her family believed she had to marry within her tribe and not his tribe. [Ms B] is from the Mughals tribe and his tribe is the [Tribe 1]. [Mr C] obtained an Imam to do the ceremony. The Imam just required two witnesses and no parents. There was no official documentation generated from the ceremony.
The applicant stated that when [Ms B]’s family found out about the Nikkah, she escaped from their house with the aid of his family, and that is why they hate them. The Tribunal asked what prevented [Ms B]’s parents from forcing a marriage. The applicant submitted this was not possible due to the Nikkah marriage. The Tribunal noted that he gave evidence that the Nikkah was not officially registered, which may indicate there was nothing stopping an arranged marriage. The applicant simply submitted this was not possible due to the Nikkah marriage. The Tribunal also noted the delegate’s concern that there is no evidence of the Nikkah taking place and that the applicant had claimed a video of the ceremony had been subsequently deleted, which appeared highly implausible. The applicant stated that the video had been deleted because they had subsequently become officially married. The applicant then confusingly stated he couldn’t find the video. The Tribunal noted that he had previously said it had been deleted. The applicant then stated that he could not find it so it may have been deleted. The Tribunal asked him where he looked for the video. The applicant then stated that he could only ask his brother but he passed away. He does not know what happened to the video.
The Tribunal also noted that the delegate raised concerns about the applicant’s student visa application made prior to his protection claim. In that student visa application he had requested more time to submit the application, as his brother had died in an accident in Pakistan. The Tribunal put to the applicant that it may consider it implausible that he would not state specifically his brother had been killed as claimed and not died in an accident. The applicant submitted that he was in shock at that time and this was the reason he had done this. He was in hospital for shock and his agent lodged the application for an extension and did not know his brother had been killed, despite the applicant’s claim to have been hospitalised for shock related to the death. The Tribunal put to the applicant that the request for an extension appears to be lodged directly from the applicant and he had directly stated that his brother had died in accident and he was not in hospital at that time. In other words, he directly told the Department that his brother died in an accident. The applicant submitted that it was his agent who had put the application in and he had simply told him that his brother had died and didn’t tell him he had been killed.
The Tribunal asked the applicant why, if his brother had been killed as claimed, he had subsequently persisted with his claim for a student visa for several months and did not immediately apply for protection. The applicant stated that it took him some time to decide not to go back to Pakistan.
The Tribunal also noted that the delegate raised concerns about the plausibility of the evidence about [Ms B] in the claim that she married in secret, went against her family’s wishes and married [Mr C] but, when this was discovered, she suffered no harm and had subsequently simply remarried. The Tribunal noted that country information reflects that overwhelmingly women are considered to carry the burden of family honour in these situations and are routinely targeted for harm by their own families for such perceived honour transgressions.[1] The Tribunal noted that it may be considered implausible that her family were so enraged that they killed [Mr C] but did not harm [Ms B] and simply took her home and then remarried her. The applicant simply submitted that her family would not harm her as she is their daughter.
[1] Department of Foreign Affairs and Trade, Country Information Report, Pakistan, 20 February 2019, p.51.
The Tribunal noted that the applicant had informed the delegate that a Police First Information Report (FIR) was not lodged because they had no evidence but [Mr A] had stated it was because they were afraid of [Ms B]’s family. The applicant stated it was for both reasons. The Tribunal also noted that the applicant had informed the delegate that his family were not threatened by [Ms B]’s family because they were opposed to the marriage. The applicant stated that yes they were against the marriage initially but they changed their view and they were subsequently threatened. The police would not help them. The Tribunal noted that [Mr A] gave evidence that his family are wealthy and this may indicate that they would be able to access protection. The applicant submitted that [Ms B]’s family are simply wealthier and can buy the police.
The Tribunal put to the applicant that he was not at the claimed ceremony in 2016 and it may seem implausible that he would be specifically targeted for harm. The applicant stated that it was because [Ms B] told her family that he was involved in the Nikkah. The Tribunal asked the applicant why she would tell them about his prior involvement. The applicant simply reiterated that [Ms B] had told her family about his role in the Nikkah. The Tribunal asked the applicant if the Imam, who conducted the Nikkah, is still around. The applicant stated that he has not looked him up and it was his brother’s connection so he does not know the Imam at all or who he was. The ceremony wasn’t at a mosque. It was at [Mr C]’s friend’s house. He could not name this friend but claimed he had since passed away as well. The applicant stated it had to be done secretly. The Tribunal put to the applicant that it may appear implausible that an Imam would agree to conduct a Nikkah secretly outside the mosque in a private house. The applicant stated that the Imam thought it was a good thing to marry people for love even when the union was opposed by their families and tribes. The Tribunal asked if the Imam was given money. The applicant did not know. The Tribunal asked if anyone came to the ceremony. The applicant stated that [Ms B] did not have anyone there. The witnesses were himself and his brother’s friend. The applicant then contradicted his earlier evidence and stated that this friend had not died. Again, he could not remember his name. When asked why he had previously claimed the friend had passed away the applicant claimed he had been talking about [Mr C].
The applicant also informed the Tribunal that he has stress and associated weight loss problems. He has not received specialist treatment for this. He has just seen his general practitioner occasionally. He also stated that he has been in Australia for a long time and people will judge him as a coward if he goes back. He can’t live with [Ms B]’s family. He has not received any direct threats from [Ms B]’s family.
The Tribunal also noted that the applicant has raised the COVID-19 pandemic as a concern. The applicant stated that his uncle died from COVID-19 in Pakistan.
After the hearing the Tribunal wrote to the applicant and put concerns with respect to his brother’s evidence to him under s.424A of the Act as follows:
The particulars of the information concern evidence provided by your brother [Mr A] at the hearing on 21 June 2021. At the hearing [Mr A] provided evidence which was put to you verbally at hearing as being potentially contradictory to your own evidence as follows:
1. [Mr A] informed the Tribunal that your family had received threats on the day of your brother [Mr C]’s death from his wife’s family and had continued to do so thereafter. This evidence appears to contradict your previous evidence to the Delegate that your family were unharmed and of no adverse interest to [Ms B]’s family because they were opposed to the marriage of [Mr C] and [Ms B].
2. You submitted that your family had been forced to move because of threats of harm from [Ms B]’s family. However, [Mr A] gave evidence to the Tribunal that investment properties had been sold due to poor economic conditions only and a downturn in the family business. This evidence appears to be contradictory to your claim that property was sold due to the need for your family to move to avoid harm.
The evidence from your brother [Mr A] is relevant because it may cause the Tribunal to doubt the truthfulness of your evidence and to consider that your claims lack credibility. It may lead the Tribunal to not accept that your brother [Mr C] was killed by his wife [Ms B]’s family or that your or your family are of any adverse interest to [Ms B]’s family.
This would be the reason, or part of the reason, why the Tribunal would affirm the decision under review. If the Tribunal relies on this information in making its decision, it may not accept that you have a well-founded fear of persecution if you return to Pakistan or that there is a real risk that you will suffer significant harm as a necessary and foreseeable consequence of you being removed from Australia to Pakistan.
The applicant replied in writing, prior to a second hearing with the Tribunal, that he had told the delegate that his family was unharmed because they were physically unharmed but they were receiving threats from [Ms B]’s family. His family moved from their own home to a rented home for safety. They continue to move frequently for their safety.
The applicant also submitted that he has suffered a lot and his mental and physical health have not been stable. It is not possible for his family to compete with [Ms B]’s family as they have a lot of political influence and financial resources.
The applicant also submitted that not all properties sold by his family were investment properties. One of the properties sold was their own property. This was sold because it was not safe to live there. The other properties were sold due to the downturn in the family business caused by the family’s mental health due to his brother’s death.
Prior to the second hearing the applicant also submitted a letter from [Dr D] of [a ]Medical Centre dated 19 August 2021, which states that the applicant has attended the clinic since 2019 and that the doctor is aware his brother passed away about 5 years ago and his health deteriorated at that time. Further, it states that he was getting support from his friends and receiving counselling from overseas as it was cheaper and more convenient due to cultural considerations.
The applicant also submitted a letter from [Mr E], Pakistani based psychologist, dated 20 August 2021, stating that the applicant has been engaging in online consulting sessions from 4 years ago and he had post traumatic stress disorder due to his brother’s death. Further, it stated that right now he is better but is still having minor symptoms that can be managed through follow up.
The Second hearing
A further hearing was held on 31 August 2021 by video conference. Both the applicant and his representative participated in the hearing.
The Tribunal asked the applicant, with respect to his claim to fear persecution due to the COVID-19 pandemic, whether he fears sickness for a refugee reason and whether this would involve systematic and discriminatory conduct on the part of any person or authority in Pakistan. Further, the Tribunal asked the applicant how would becoming unwell from COVID-19 be due to any act or omission by any person or authority resulting in the intentional infliction of harm upon himself.
The applicant submitted that in Pakistan people just don’t care and he fears he may not be able to access a vaccine, however, he stated that treatment and vaccines would not be intentionally withheld from him for a refugee reason.
The Tribunal asked the applicant to clarify if he feared harm for any reason related to his lengthy period of time in a Western country or for reasons related to that. The applicant stated that he only fears harm from [Ms B]’s family and not for the reason of having lived in the West. When asked, he stated that he had said he would be perceived as a coward and not able to live there because he would be expected to avenge his brother and did not want to do this.
With respect to his stated health concerns, the Tribunal noted that his recently submitted written evidence indicates that he has accessed effective treatment in Pakistan through online methods and this may indicate that, should he return, he would be able to access similar treatment. The applicant stated that he continues to experience stress due to his brother’s death.
The Tribunal asked the applicant what [Ms B]’s family do. The applicant stated that he did not know. He simply stated that they are influential and wealthy. He did not know any details about their crime activities as submitted by his brother.
The applicant’s representative submitted that the applicant has not tried to exaggerate his claims. He has remained in Australia despite not having working rights and he would not be here unless he needed protection.
The Tribunal’s considerations
Credibility
The Tribunal acknowledges the importance of adopting a reasonable approach when making findings of credibility.[2] However, the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, that it is ‘well-founded’, or that it is for the reason claimed. Rather, it remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
[2] Guo v MIEA (1996) 64 FCR 151, per Foster J at 194 (Full Federal Court).
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Guo v MIEA (1996) 64 FCR 151, the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at [482]:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
When assessing claims made by applicants, the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must also bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547).
The Tribunal accepts that the applicant’s brother [Mr C] passed away after he married [Ms B] and has considered the death certificate submitted in this regard. The Tribunal notes the applicant submitted that the death certificate indicates the cause of death as being unnatural, but this merely reflects an accidental death and does not indicate a cause of death through murderous means or death from murderous actions such as blunt force, asphyxiation, stabbing, gun-shot wounds etc.
After questioning the applicant and considering the evidence before it, the Tribunal is not satisfied as to the credibility of the applicant’s claim to fear harm from his deceased brother’s wife’s family. This is for the following reasons, considered cumulatively.
Firstly, the applicant’s evidence with respect to [Ms B]’s family’s claimed adverse interest in his family, who reside in the same city in Pakistan, is contradictory. To the delegate he claimed that they were unharmed because they had opposed the marriage of [Mr C] to [Ms B]. To the Tribunal he claimed that his family were of adverse interest to [Ms B]’s family and they had been forced to move several times, and submitted property sale information as evidence of this. However, his brother told the Tribunal the family had sold investment properties only due to the general economic downturn which had affected the family business, which significantly contradicts the applicant’s claim. When this apparent contradiction was put to the applicant for his comment he merely stated that property had been sold for both reasons and then claimed in writing that commercial and personal properties had been sold. The Tribunal finds that the applicant has embellished the reasons for property sales, as evidenced by the Sale Deed of Shop, undated, Doc ID [9], and that this was sold purely for economic reasons and does not reflect his family moving for fear of harm.
The Tribunal would expect consistent evidence as to whether his family has received ongoing threats of harm and the actions they had taken to avoid such harm. The Tribunal does not accept as plausible that the reason for this inconsistent evidence was that the applicant thought to only mention physical threats, which had not happened. If his family were being threatened with harm verbally, from the point the marriage became known, to the extent they were having to move regularly and threatened as recently as last month, the Tribunal would expect this would have been consistently claimed. The Tribunal rejects that [Ms B]’s brother or any member of her family has been consistently making threatening verbal threats to the applicant’s family and brother.
Secondly, there is no documentary evidence of the claimed Nikkah in 2011, which the applicant claimed he was a witness at. This is important because this is the only plausible basis upon which [Ms B]’s family would have an ongoing adverse interest in the applicant, that is, if he actively encouraged and participated in the Nikkah. As clearly set out in the delegate’s decision, country information reflects that a Nikkah marriage ceremony is a legally binding marriage in Pakistan. Marriage in Pakistani law takes place under Islamic martial jurisprudence[3] with civil life in Pakistan being guided by the Islamic holy book, the Quran, and the Sunah.[4] Marriage ceremonies take place in two main parts: Nikkah, which constitutes the first stage (where the parties are actually married)[5], and then the festive Walima. Technically, the Nikkah stage is actually the marriage where the two parties are legally married. The Department of Immigration and Border Protection Background Paper on Pakistan: Marriage, Divorce, Births and Deaths in 2014[6] mentions that the Muslim marriage contract is known as a nikahnama. This is reflected by the applicant’s own evidence that a further marriage for [Ms B] was impossible because of the Nikkah. It is implausible that the applicant’s brother destroyed evidence of the Nikkah simply because it had been superseded by a subsequent claimed marriage ceremony. When questioned on this point, the applicant gave vague evidence that it had been destroyed, that he had searched for it, which was a new claim, and that he was simply not sure what had happened to the evidence of the Nikkah. The Tribunal simply does not accept that there is no available record of the claimed 2011 Nikkah such as a certificate of marriage, video, photos or official records. When questioned, the applicant also gave very vague and contradictory evidence about the participants in the ceremony, claiming that his brother’s friend was the other witness but he could not remember his name and he had died, but then later claiming he had not died. The Tribunal notes the witness evidence that the Nikkah took place in 2011, however, the Tribunal’s concerns about the inconsistent and implausible lack of evidence of such an official ceremony outweighs the third hand evidence of the witness (who noted that he did not attend any such ceremony himself), in this regard. Overall, the Tribunal considers that the applicant has made up the 2011 Nikkah ceremony, and his claimed attendance and role, to bolster his claim that he is of adverse interest to [Ms B]’s family.
[3] US Department of State Pakistan 2020 International Religious Freedoms Report.
[4] The Constitution of the Islamic Republic of Pakistan, section 31.
[5] R.W Maqsood, 2009 ‘Weddings’ < for the British Broadcasting Corporation.
[6] Department of Immigration and Border Protection, Background Paper Pakistan: Marriage, Divorce & Deaths, February 2014, DIBP.

Thirdly, after the death of [Mr C], the applicant persisted in pursuing his student visa application in Australia and cited his reason for an extension of time application to file requested further information because his brother had lost his life in an accident in Pakistan. He then continued to pursue his student visa application for several months before lodging an application for protection only after his student visa application was refused. He claimed that it did not tell his agent about his brother being killed. The Tribunal considers it highly implausible that, if his brother had been murdered as claimed, he would state the cause of death as being an accident. The Tribunal does not accept the applicant’s explanation that he was in shock as being plausible for this significant contradictory evidence. Further, the Tribunal would expect that the applicant would not continue to pursue his student visa application, which does not have a permanent right of residency, if he feared harm from [Ms B]’s family, as reflected by the claimed murder of [Mr C], and would seek to make a protection claim as early as possible and not only when his further student visa application had ultimately been rejected.
Fourthly, the Tribunal finds the applicant’s evidence with respect to [Ms B] highly implausible. The applicant’s evidence is that [Ms B] is unharmed and has simply remarried following on from the alleged murder of her husband by her own family. As put to the applicant, country information reflects that honour killings are common and are predominately perpetrated against females by their immediate families. In light of this the Tribunal finds that the evidence that [Ms B] has simply remarried unharmed, after her family were so enraged by her claimed secret marriage to [Mr C] that they murdered him, to be highly implausible. The Tribunal considers it is far more plausible that she has simply remarried after the accidental death of [Mr C].
Fifthly, the applicant gave contradictory, confused and implausible evidence about the lack of a police report into the claimed murder of [Mr C]. He told the delegate that a report was not made due to a lack of evidence. [Mr A] told the Tribunal that a report to the police had not been lodged because the family were afraid of [Ms B]’s family. When this was put to the applicant for comment, he simply stated that a report had not been made for both reasons. The Tribunal would expect consistent and plausible reasoning with respect to an important decision not to report a murder of a family member to police. [Mr A]’s evidence reflects that the applicant’s family enjoys considerable wealth, which is evidence sustained by the fact that the applicant resides in Australia with the ongoing financial support of his family, and the Tribunal simply does not accept as plausible that such a family would not pursue the murder of a son with the authorities, despite the applicant’s protestations that [Ms B]’s family are simply wealthier. The Tribunal aske the applicant to provide details about [Ms B]’s family such as their business or history of criminality in the second hearing, however, he was unable to give any meaningful details about [Ms B]’s family. The Tribunal would expect that, if [Ms B]’s family were gangsters and wealthy business people, such details would be easily recounted by the applicant. The fact that he could not do so causes the Tribunal to reject the evidence of [Mr A] that they are ‘gangster people’ and this is the reason they have not been pursued by the applicant’s family. The fact that there has been no official reporting or investigation of a claimed murder of the son of a wealthy local family, combined with the applicant’s confused and contradictory evidence about this, causes the Tribunal to further doubt the credibility of the applicant’s claim that [Mr C] was murdered by [Ms B]’s family.
Sixthly, the applicant gave implausible evidence with respect to reasons as to why [Ms B]’s family would be adversely interested in him such that there is a real chance of serious harm to him from them. He claimed that he and [Mr C] had not got along with [Ms B]’s brother at school. He also improbably claimed that [Ms B] had specifically disclosed his involvement in planning and attending the claimed 2011 Nikkah. The Tribunal does not accept that the 2011 Nikkah actually occurred. Further, it is implausible that [Ms B]’s brother would retain an active adverse interest in the applicant due to events at school many years ago, when he has not been in the country for many years, and not had any contact with any of [Ms B]’s family for many years.
Finally, despite now claiming that his family have been continually threatened with harm by [Ms B]’s family, they continue to live unharmed in the same city as [Ms B]’s family. The Tribunal considers this reflects that, in fact, [Ms B]’s family are unmotivated to harm the applicant’s family and are also unmotivated to harm the applicant and that they in fact have no adverse interest in the applicant or any member of his family.
Overall, the Tribunal considers that the applicant is not a witness of truth with respect to his claim that his brother [Mr C] was killed by his wife’s family for reason of honour. The Tribunal rejects the claim that [Mr C] was killed by [Ms B]’s family for reason of honour. The Tribunal also rejects the applicant’s claim that [Mr C] and [Ms B] were married against their respective families wishes in a secret Nikkah marriage ceremony in 2011, organised and witnessed by the applicant. The Tribunal concludes that [Ms B]’s family do not have any adverse interest in the applicant, and that that they are not motivated to harm him in any way, should he return to his home in Sialkot city, Punjab, Pakistan.
The Tribunal has considered the country information submitted by the applicant, as set out in the evidence section of these Reasons, and considers these relate to problems with respect to honour killings in Pakistan. For the above reasons, the Tribunal considers this information is not relevant to the applicant’s circumstances.
Accordingly, the Tribunal finds that the applicant does not need the protection of the Pakistan authorities and that there is no real chance of serious harm to the applicant from [Ms B]’s family should he return to Pakistan either now or in the reasonably foreseeable future.
COVID-19
The world is currently dealing with a global COVID-19 pandemic and the applicant stated that he fears returning to Pakistan because the situation is not controlled there. He fears not gaining access to a vaccine, contracting the virus and becoming sick or dying from it.
The pandemic has claimed millions of lives around the world7. In the current environment where it continues to spread, there is of course a real chance that citizens of Pakistan might contract the virus. As noted during the hearing, even if there is a real chance that the applicant will catch this virus if he returns to Pakistan, becoming ill from COVID-19 and any serious harm associated with becoming unwell would not be for one or more of the reasons in s.5J(1)(a) and would not involve systematic and discriminatory conduct on the part of any person or authority in Pakistan as required by s.5J(4)(c). For those reasons, the Tribunal does not consider that the applicant’s claim to fear serious harm due to catching the COVID-19 virus (even if he were to do so on return and suffer severe illness) can succeed.
7 World Health Organisation statistics report that as at 15 April 2021, there are 2,951,832 confirmed deaths from nearly 137,000,000 cases. Coronavirus disease (COVID-19) (who.int).
Having carefully considered the applicant's claims, for the reasons given above, the Tribunal does not accept that there is a real chance that the applicant will suffer persecution involving serious harm from [Ms B]’s family or because of COVID-19, or anyone else, for one or more of the five reasons mentioned in s.5J(1)(a) of the Act, if he was to return to Pakistan, now or in the foreseeable future.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).
With respect to the applicant’s COVID-19 pandemic claim, the Tribunal accepts that there is a real risk that the applicant could contract the virus in Pakistan if he returns, particularly given current information about the ongoing spread of the virus and attempts to manage it. However, the contraction of the virus would not be due to any act or omission by any person or authority in Pakistan, and would not involve the intentional infliction of harm on the applicant. The Tribunal considers that contraction and illness from COVID-19 would therefore not satisfy the definition of significant harm in s.36(2A). The Tribunal also considers that the real risk of contraction of COVID-19 faced by the applicant (even if it could be considered to meet the definition of significant harm) is one which is faced by the Pakistan community generally and not by the applicant personally (s.36(2B)(c)). The Tribunal finds that there is not a real risk that the applicant will suffer significant harm due to the COVID-19 pandemic as a necessary and foreseeable consequence of him being returned to Pakistan.
In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of him being removed from Australia to Pakistan for the reason of harm from [Ms B]’s family, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.8
8 MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
Considering the applicant’s circumstances, and having regard to the findings of fact set out above, the Tribunal also finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Pakistan, there is a real risk that the applicant will suffer significant harm, as set out in s.36(2A), from [Ms B]’s family for the reason of honour.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Member of the same family unit
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 criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Paul Noonan
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 3956

03 September 2021

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