1733091 (Refugee)

1733091 (Refugee) [2022] AATA 3811 (12 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1733091
COUNTRY OF REFERENCE: Pakistan

MEMBER:Tamara Hamilton-Noy
DATE:12 September 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 12 September 2022 at 9:35am
CATCHWORDS
REFUGEE – Protection visa – Pakistan – membership of the particular social group – perceived as being gay and as having a political opinion opposing the ideology of the Taliban– voluntary return to Pakistan in 2009 –applicant’s wife defaulted on a car loan – any risk to the applicant is localised to Malakand – delay in lodging protection application – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 438, 499
Migration Regulations 1994, Schedule 2
CASES
GLD18 v MHA [2020] FCAFC 2
SZRSN v MIAC [2013] FCA 751
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
Background

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 11 December 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The primary review applicant [name deleted] (the applicant) left Pakistan for [Country 1] in September 2005 and returned to Pakistan in June 2009. The applicant departed Pakistan again in August 2009 and returned to [Country 1].
The applicant married the second named applicant [name deleted] (the applicant wife) in [Country 1] on [date] September 2009.
The third named applicant [name deleted] (the applicant child) was born in [Country 1] on [date].
The applicant and applicant wife arrived in Australia on [date] October 2013. On 13 December 2013, the applicant wife lodged an application for a [temporary] visa and this was granted on 3 February 2014.
The applicant departed Australia on [date] April 2014 and the applicant wife departed Australia on [date] April 2014. All three applicants returned to Australia on [date] April 2014.
The applicants applied for protection on 22 September 2015.[1]
[1] Movement details and marriage details taken from delegate’s decision, a copy of which was provided by the applicants to the Tribunal.
On 11 December 2017, a delegate of the Department made a decision to refuse the application for a protection visa.
The applicants applied to the Administrative Appeals Tribunal on 28 December 2017 for an independent review of this decision.
Claims and Evidence
Evidence before the Department
In his written protection application, the applicant stated he was born in Malakand, KPK, Pakistan and that both parents are Pakistani citizens. He stated that he has a right to enter and reside in [Country 1] on the basis he is married to a [Country 1] citizen. He stated that he speaks, reads and writes Pashto, [Country 1 language], Urdu and English, that he is a Sunni Muslim and that he is of Afghan Gujjar ethnicity. The applicant stated that his father is deceased, that his mother and [siblings] are residing in Pakistan and that [a number of] brothers are residing in [Country 1].
As to his reasons for having left Pakistan, the applicant stated that he had felt a continuous threat to his life and felt that he might be assassinated. The threat that a small exposure would spark a non-ending revenge and assassinations which runs through generations would risk all of his family members’ lives. The applicant stated that if he returns to Pakistan he will be killed or treated inhumanely. The applicant stated he had been harmed in Pakistan. He stated that though he hadn’t received major physical harm yet, he is harmed by the fear of death or inhuman treatment, because of which he had to stop his [career] and hide in other parts of the country. He did not seek protection from the authorities because the rural area he is from is not a place where one can expect protection and most of the time it turns disastrous because most law enforcement bodies are related to locals. The applicant stated that when he completed his [courses], it was the time when the Taliban were out to destroy everything. Because he had multiple risks from the Taliban and other individuals, he shifted to Karachi for six months. The applicant stated that, if he returns to Pakistan, the threat to his life is imminent and he would be harmed because the people he is dealing with have their own code of conduct and traditional values. He does not believe the authorities would protect him because no one can help undocumented cases. He does not believe he could relocate because he has tried to hide in parts of the country and there is no safe haven.
The applicant wife claims to have been born in [State 1], [Country 1] and to be a [Country 1] citizen. In her protection application, she stated that both parents are [Country 1] citizens and that she is a [Muslim]. The applicant wife stated in the protection application that she is not making her own claims for protection.
The applicant child claims to have been born in [Country 1] and to be a [Country 1] citizen. The applicant child stated in the protection application that he is not making his own claims for protection.
The applicant’s then-agent provided written submissions to the Department dated 30 December 2015. The applicant’s representative submitted that the applicant lived in Swat and battled for survival from the Taliban and from local outlaws. The applicant’s neighbours had a score to settle ‘for centuries’ and for this reason, the applicant was accused of a sexual assault in 2004 against one of the neighbours. As a result of this, in November 2004 the family members of the teenager opened fire on the applicant twice. The applicant fled to Karachi in December 2004 but because of a fear of being traced and killed, returned home in June 2005. The mastermind of the allegations was beaten in an attack in August 2005 and, after spending two months in a coma, died in October 2005. The applicant ‘could have been’ blamed by the Taliban for the killing on the basis of the false allegation of sodomy. The applicant spent four years in [Country 1] to make arrangements to come to Australia, but returned to Pakistan in 2009 to collect money from his father’s pension. The applicant suffered in [Country 1] and was unable to find decent work. He was bullied and abused by local people, his business went bankrupt and he was reliant on his wife. The applicant would face death in Pakistan from his family’s enemies or the Taliban who see him as a sinner. The applicant fears harm for his membership of the particular social group of individuals perceived as being gay and as having a political opinion opposing the ideology of the Taliban. He would be unable to obtain protection from the authorities given those accused of sexual assault remain ‘disgraced and degraded’. The applicant’s family enemies have to punish him due to the Pashtun Code and the Taliban also pose a great risk to him. As to whether the applicant could settle in [Country 1], the delegate submitted that the applicant was bullied in public, was dependent on his wife for basic daily necessities such as opening a bank account, was harassed by police and was not given permanent residency.
The applicant provided to the Department a marriage certificate issued in [Country 1], identification documents, and education and training certificates.
The applicant attended an interview with the Department on 7 August 2017. The Tribunal has had access to a recording of the interview, the relevant parts of which are discussed further below.
A delegate of the Department found that it was possible the applicant had witnessed men called [Mr A], [Mr B] and [Mr C] engaging in sexual activities in 2004 and that [Mr C] died in October 2005 after being attacked by [Mr B]’s family. The delegate did not accept that the applicant was falsely accused by [Mr C] in 2004 of sexually assaulting [Mr B] or that an accusation occurred because of ongoing conflict between the applicant’s family and [Mr B]’s family. The delegate did not accept the applicant had been falsely accused of sexually assaulting another male. Given the applicant is married and has an adopted son, the delegate found the applicant would not be imputed as homosexual. The delegate did not accept the applicant would be of adverse interest to the Taliban or other extremist groups in Pakistan or that he would be perceived to be anti-Taliban or face harm as a result of this. The delegate found the applicant’s claims to be imputed as a homosexual or for his political opinion to be not credible. The delegate found that the applicant’s [Country 1] visa ceased on 4 June 2014 and that he had no right to enter and reside in [Country 1]. The delegate found the applicant is not a refugee as they did not accept he faces harm for his imputed sexuality or for his political opinion. The delegate found the applicant is not owed complementary protection because they did not accept he faces harm as an imputed homosexual or because of his political opinion and he had not raised any other claims for protection.
A copy of the delegate’s decision was provided by the applicant to the Tribunal.
Evidence before the Tribunal
On 4 February 2022, the Tribunal wrote to the applicants stating that it had considered all of the material before it but was unable to make a favourable decision on that information alone. The applicants were invited to attend a hearing by MS Teams video on 1 March 2022. At the time of the hearing invitation, the Tribunal’s Melbourne Registry remained closed due to the impacts of the COVID-19 pandemic and the Tribunal considered it appropriate to conduct the hearing by video, having regard to its objectives of providing a mechanism of review that is informal and quick and is proportionate to the complexity of the matter.
On 16 February 2022, the applicants provided to the Tribunal identification documents, details of the applicant’s labour hire business in Australia, training certificates for the applicant from Australia and training and education certificates for the applicant from Pakistan, and the applicant’s IELTS results dated 24 April 2019.
The hearing was conducted on 1 March 2022, on which date the Tribunal spoke to the applicant who gave evidence on affirmation. The Tribunal took evidence from a witness, [Mr D], during the hearing, and [Mr D]’s evidence is referred to further below.
On 1 March 2022 following the hearing, the applicants forwarded to the Tribunal a link to a Foreign Policy article from February 2020, describing Swat Valley as ‘Pakistan’s success story’ and discussing the rebuilding of the region and influx of local tourists to the area, including the repair of over 100 militant-damaged schools and citing one source as saying these days, all signs of the Taliban are gone.[2]
[2] Foreign Policy, ‘Pakistan’s success story’, F Bhojani, 19 February 2020 at
On 3 March 2022, the applicants sent the Tribunal media reports (minus any references identifying their sources) about Swat, discussing cultural pressures for honour killings in Pakistan and setting out again the text from the Foreign Policy article sent to the Tribunal on 1 March 2022.
On 17 March 2022 the applicants sent to the Tribunal a further copy of the same document sent to the Tribunal on 3 March 2022, and a document headed ‘North West Frontier Province Timeline – 2009’ (no source cited). The applicants also provided a copy of a GP referral letter for the applicant wife to a psychiatrist dated 7 February 2022 and an invoice for a consultation with a psychiatrist dated 3 March 2022.
The applicants were invited to a resumed hearing on 18 March 2022. On this date, the Tribunal spoke to the applicant and applicant wife, who both gave evidence on affirmation.
The relevant law
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, 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.
Assessment, Reasons and Findings
The applicant’s country of nationality
The applicant travelled to Australia on a Pakistani passport and has at all times maintained he is a citizen of Pakistan. The Tribunal accepts the applicant is a Pakistani citizen and has assessed his claims against Pakistan as his country of nationality.
The applicant’s background
The Tribunal accepted the evidence given by the applicant at hearing about his background, on the basis that his evidence at hearing was spontaneous and plausible and was consistent with information previously provided to the Department. The Tribunal accepts that the applicant was born in Malakand and that he grew up with his parents [and siblings]. The Tribunal accepts that the applicant’s family members continue to reside in Malakand with the exception of a [number of siblings]. The applicant gave evidence, which the Tribunal is prepared to accept, that his father passed away in 2006 while the applicant was living in [Country 1]. The Tribunal accepts that the applicant spoke Pashto at home and learned Urdu at school and that he is of Pashtun ethnicity and is a Sunni Muslim.
The applicant gave evidence to the Tribunal of having completed high school in Pakistan and then working in a [workplace] [for] two years and also undertaking work in [various areas]. The applicant provided educational and training certificates to the Tribunal and the Tribunal accepted from these that after completing high school the applicant undertook further education. The applicant told the Tribunal that his extended family owns [land] in Malakand that has been split between family members and that, since the applicant’s father’s passing, there are two houses that have passed to his mother and she is living in one of them. The Tribunal accepted this evidence as correct.
The Tribunal accepts that the applicant travelled to [Country 1] in 2005. The applicant gave evidence that he enrolled in a [college] for one year then worked after his father passed away, working [in] [workplaces] for four years and later opening a [business]. The applicant stated that, at this time, the applicant wife was working in a [shop] [and] was working as a [consultant]. The applicant stated that he and the applicant wife had lived in various suburbs of [City 1, Country 1]. The Tribunal accepted this evidence as correct.
Claims for protection
The Tribunal notes that the applicant’s claims advanced at hearing were different, and in significantly more detail, than those outlined in his written protection application. The applicant gave evidence to the Tribunal at hearing that he and his brother had been groomed by his neighbour [Mr C] who practiced bacha basi, and that they had been targeted by the neighbour due to their looks. The applicant’s brother gave evidence to the Tribunal that was consistent with that given by the applicant. The Tribunal accepted that the applicant and his brother had been involved in bacha basi practice as young boys and that the applicant’s brother had witnessed the applicant’s sexual involvement with [Mr B], another male who lived in their local area.
The Tribunal spoke to the applicant at some length about his experiences as a young boy at the hands of [Mr C] and is prepared to accept his evidence that he participated as a young boy in sexual activity with [Mr C] and with another boy [Mr B], and that this activity was observed by [Mr B]’s mother. The Tribunal is prepared to accept that the applicant, on another occasion, observed [Mr C] drugging and raping another young boy and that [Mr C] manipulated the applicant and other young boys in the village. The Tribunal is prepared to accept that [Mr C] passed away a year after these incidents.
The Tribunal is prepared to accept that members of the applicant’s local community came to know of sexual activity that was occurring with the applicant and other young boys and that the applicant’s family gathered with another family to discuss what had happened and that this gathering occurred in or around 2004. The Tribunal is prepared to accept the applicant’s evidence that his father and the other boy’s father exchanged heated words during the meeting. The applicant gave evidence to the Tribunal at hearing that after the meeting, his father restricted him to the house. The applicant gave evidence that following this, he was shot at by the roadside in front of his house and that, a few days later, there was ‘another shot in the dark’. As to why he believed this was related to the matters raised in the jirga, the applicant stated that they had been openly challenging that they would take revenge. The Tribunal accepts there was conflict between the two families arising from the sexual activity of the applicant with the other family’s son. While the Tribunal has doubts that the applicant was shot at by [Mr B]’s family, or by anyone else who had become aware of the sexual activity between the two boys, given the Tribunal is unable to make a finding with confidence that these incidents did not occur, it has proceeded on the basis that they may have.

The applicant gave evidence at the hearing that he spent some six months in Karachi after these incidents and that he had worked [for] months at a time. He gave evidence that he had not rented a house in [Karachi]. He stated that he had returned to Malakand for some six months, during which time he was living at home. He stated that by then [Mr C] had passed away. The Tribunal observed that the applicant’s ability to return to Malakand for six months without any incidents occurring suggested that he could return to live there. The applicant stated in response that he was confined to the house and that ‘revenge takes time’. The Tribunal is prepared to accept that the applicant limited his movements during the six months he returned to Malakand.
The applicant gave evidence to the Tribunal that he had mentioned his fear of the Taliban in his application as the Taliban had full control over SWAT at the time and had committed many murders that they had not been held accountable for. He gave evidence that there had been a refugee camp in his village in 1985 and a lot of unemployment and discussion around jihad. The Tribunal asked how this was relevant to the applicant’s current claims and he stated that it was easy for someone to kill someone. The Tribunal asked about the applicant’s written claims to have been attacked by the Taliban, and he then stated that he has a feeling it may have been them and there was no evidence [Mr B]’s family had fired on him. He gave evidence that he had not had direct contact with any Taliban members.
In assessing the applicant’s claims, the Tribunal is mindful that it should adopt a ‘reasonable approach’ and accepts the principle that, if the applicant’s account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[3] However, the benefit of the doubt should only be given where all available evidence has been obtained and checked and where the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.[4]
[3] United Nations High Commissioner for Refugees, Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019, para 196.
[4] United Nations High Commissioner for Refugees, Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019, para 204.
The Tribunal is mindful that the claimed events occurred quite some time ago, that the applicant was still of young age when the claimed events occurred and that the claimed events are of a highly personal nature. The Tribunal is also mindful of the difficulties faced by applicants, including nervousness and anxiety in a Tribunal environment and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time between the claimed events and the Tribunal hearing, and cultural issues which affect how an applicant answers questions. The Tribunal has taken these matters into account, in line with the Tribunal’s Guidelines on the Assessment of Credibility, in the conduct of the hearing and in assessing the applicant’s evidence as a whole.
The Tribunal has accepted that the applicant engaged in sexual activity with other males while living in Malakand and that members of the local community became aware of this. The Tribunal is prepared to accept that the applicant’s family and [Mr B]’s family may hold a grudge against each other, because of the sexual activity between the boys when they were young.
However, the Tribunal is not satisfied that the applicant is at risk of harm because of the claimed events, if he returns to Pakistan now or in the reasonably foreseeable future, for the following reasons.
Firstly, the applicant’s voluntary return to Pakistan in 2009 causes doubt for the Tribunal that he fears returning for the reasons he claims. The Tribunal asked the applicant about his travel to Pakistan during the hearing and he stated to the Tribunal that he was not only visiting his mother, he was about to get married and had to ‘clean up’ his passport and obtain money from his father’s pension fund. The Tribunal has significant doubts that the applicant would need to physically be in Pakistan to access an account held by his father. Further, his return to Pakistan and the absence of any further incidents during his return, lead the Tribunal to doubt that the applicant would be of adverse interest to anyone in Malakand if he returns to Pakistan now or in the reasonably foreseeable future.
Secondly, the delay in the applicant claiming protection causes further doubt for the Tribunal that he fears returning to Pakistan for the reasons he claims. The applicant arrived in Australia in October 2013 and did not claim protection until September 2015. By that time the applicant claims to have been targeted by an older adult who sexually assaulted him, shot at by [Mr B]’s family and relocated to another city because of these experiences. The Tribunal asked the applicant during the hearing why he had not applied for protection earlier and he stated that he had seen people come by boat and in his mind, he thought only people fleeing war sought protection. He was also confident his wife would obtain an Australian visa. The explanation given by the applicant did not alleviate the Tribunal’s concerns about his delay in claiming protection. This delay, in addition to the applicant’s return to Pakistan in 2009, causes significant doubt for the Tribunal that he has a subjective fear of returning to Pakistan for the reasons he states.
Thirdly, the Tribunal has doubts that the applicant would be able to be located if he returned and lived in another area of Pakistan. Country information considered by the Tribunal, and discussed with the applicant at hearing, states that the Constitution guarantees the right to freedom of movement in Pakistan. Internal migration is widespread and common but depends on financial means and family, tribal or ethnic networks to establish oneself in a new location. Large urban centres such as Karachi, Islamabad and Lahore have ethnically and religiously diverse populations and offer anonymity for people fleeing violence by non-state actors. Some groups, including Pashtuns, occupy enclaves in these cities. Certain types of threats, such as honour killings directed at women, are persistent and even if people relocate they can be tracked down years later.[5] The Tribunal summarised this information for the applicant and observed during the hearing that the applicant would be able to reside in another area of Pakistan. The applicant stated in response that the government would say anything about safety but this is not the case. There are ongoing protests in Karachi and he cannot live anywhere. Karachi has a lot of small houses and apartments and people live side by side, and Islamabad is very expensive. Crime rates are higher in Karachi and he would prefer to ‘barricade at home’.
[5] DFAT Country Information Report Pakistan, 25 January 2022, at 5.23 – 5.24.
The country information considered by the Tribunal, and discussed with the applicant at hearing, indicates he would be offered anonymity if he moves to a large urban centre. The Tribunal has doubts that, given the passage of time since the claimed events, the applicant would be of interest to anyone if he returns to Pakistan now or in the reasonably foreseeable future. The Tribunal finds that, if it is not correct and the applicant remains of interest to any individuals in his home area, he would be able to return and live anonymously in another large city in Pakistan. The Tribunal finds that any risk to the applicant does not exist across all areas of Pakistan.
For the reasons set out above, the Tribunal does not accept that, if he returns to Pakistan now or in the reasonably foreseeable future, the applicant faces a real chance of harm in all areas of Pakistan because of sexual activity with other males when he was a young boy or because of conflict with another family that occurred when he was young. The Tribunal does not accept that the applicant would be imputed as homosexual across all areas of Pakistan on the basis that any knowledge of activities he was subject to before he left would not become known in other areas of Pakistan.
The applicant gave evidence at the Tribunal hearing that it may have been the Taliban who had shot at him. The Tribunal notes that the applicant provided a media report to the Tribunal about improvements in the general situation in Swat and the perceived absence of the Taliban in the area as of 2020. The applicant did not claim at hearing to fear returning to Pakistan because of the Taliban. The Tribunal finds that the applicant is not at risk of harm from the Taliban in Pakistan, or at risk because of being perceived as opposed to the ideologies of the Taliban, on the basis that the applicant gave evidence that he had had no direct contact with the Taliban when he was living in Pakistan and there is no evidence that anyone in the applicant’s village had contact with the Taliban or that the Taliban would have become aware of the applicant’s sexual activity when he was a young boy. Given these findings, and given the passage of time, the Tribunal finds that there is not a real chance the applicant faces serious harm from Taliban members in Pakistan, because of sexual activity he was involved in as a boy or for any other reason.
The Tribunal notes that, based on its findings in this decision, the applicant would be able to return to Pakistan and the applicant wife and applicant child would be able to return to [Country 1]. The Tribunal finds that any harm arising from the applicant’s separation from the applicant wife and applicant child is not for one of the reasons in s 5J(1)(a).
The Tribunal has considered the individual and cumulative claims of the applicant and finds there is not a real chance the applicant faces persecution for any reason if he returns to Pakistan now or in the reasonably foreseeable future.
The Tribunal is not satisfied that the applicant is owed protection under s 36(2)(a).
The applicant wife and applicant child’s claims
The Tribunal accepts the applicant wife and applicant child are citizens of [Country 1] and finds that [Country 1] is their country of reference.
The applicant wife gave evidence to the Tribunal that she was born in [State 1, Country 1] and lived a two hour flight from [City 1, Country 1]. She stated to the Tribunal that she had completed high school in [State 1, Country 1] and had then lived in [City 1, Country 1] for some 15 to 16 years for work. She stated that she worked in [City 1, Country 1] in a [shop], [and] for two companies for a total of 15 years. She stated that her parents are deceased and she has [sisters] living in [City 1]. She stated that she met the applicant in 2005, that their marriage was registered in 2009 and that her father had difficulty accepting the marriage which has caused conflict within the family. The applicant wife stated that she has little contact with her sisters and that she has [brothers] who she has no contact with.
The applicant wife gave evidence that the applicant child is now [age] years of age and was adopted by the applicant and applicant wife as an infant. The applicant wife gave evidence that the applicant child came to Australia at [age], speaks only English and does not speak any other language.
The applicant wife and applicant child stated in the written protection application that they are not raising any of their own claims for protection. In contrast to this, at the Tribunal hearing, the applicant wife gave evidence to the Tribunal that she fears returning to [Country 1] because she would be the sole breadwinner in [Country 1] and she and the applicant have racist comments directed towards them if they go outside. The Tribunal observed that the applicant wife and the applicant had lived in [Country 1] for a number of years and had worked in [City 1, Country 1] and the applicant wife stated that they have no house there and would have to build a new life there. They would have to start everything anew, whereas in Australia they are able to survive. The applicant wife stated that it is not easy to find a job there because of her age and the economy is not so good.
The applicant wife gave evidence that she had attended the [Country 1] embassy to renew her passport and they had asked her why she was staying in Australia and she had stated she was claiming protection. They had not allowed her to renew her passport because it had been expired for over five years. She stated that she is now banned from holding a passport for three to five years.
The Tribunal asked the applicant wife about her understanding of how female headed households function in [Country 1] and she stated that foreigners have no authority and [Country 1] does not welcome them. Everything would depend on her and everything is under her name. She stated that in [Country 1] she would earn 1,800 ringgits a month and the applicant would earn 600 ringgits a month. She was unclear in her evidence how much would be left over each month after the family paid for accommodation and living costs.
The applicant wife gave evidence to the Tribunal that she had attempted to harm herself with a knife and had attended hospital after this because she was scared it would happen again. She gave evidence that she is not currently taking medication for mental health issues because she ‘doesn’t want to take too many’ and she is not attending a counsellor. She gave evidence that she had attended a psychiatrist for an assessment and they had asked her to follow up with her GP and she has tried to make an appointment with her doctor and ‘will follow up’. The Tribunal accepted from the documents provided by the applicants to the Tribunal that the applicant wife’s GP referred her to a psychiatrist for assessment in February 2022 and that she attended a psychiatrist for consultation in March 2022. The Tribunal accepted there there has been one significant instance of self-harm which required hospital attendance. The Tribunal accepted that the applicant wife is not currently engaged in counselling or taking medication for mental health concerns.
The applicant gave evidence to the Tribunal that the applicant wife had defaulted on a car loan and that the family could not return to [Country 1] because of this. He claimed to have ‘made a statement against the [Country 1] authorities’ in support of his protection application, which he claimed would put them at risk in [Country 1]. The Tribunal observed during the hearing that immigration and AAT proceedings are confidential and asked how the [Country 1 authorities would come to be aware of any statements he had made in the protection application and he stated that the [Country 1 embassy had been asking for a statement from Immigration for his passport renewal. He stated that the [Country 1] embassy had asked for a letter and that they were annoyed because so many people make protection claims. The Tribunal observed that country information states that thousands of [Country 1 citizens] enter and leave the country every day and that people returning to [Country 1] are generally of little interest to the authorities.[6] The Tribunal also observed that defaulting on a car payment would not be likely to cause a risk of serious harm or significant harm to the applicant wife. The applicant stated in response that the applicant wife had not defaulted, but had left and come to Australia.
[6] DFAT Country Information Report [Country 1], 29 June 2021, at 5.37.
The Tribunal spoke at length to the applicant wife about her concerns about returning to [Country 1] and she did not raise concerns about being unable to return due to defaulting on a car loan. The Tribunal is not persuaded that the applicant wife fears returning to [Country 1] due to defaulting on a loan contract. Nor is the Tribunal persuaded that any civil action taken as a result of the applicant wife’s failure to meet a contractual commitment amounts to serious harm within the meaning of 5J(5). The Tribunal finds there is not a real chance the applicant wife faces serious harm, if she returns to [Country 1] now or in the reasonably foreseeable future, because she has defaulted on a car loan.
The Tribunal finds that the applicant wife and applicant child would return to [City 1, Country 1], where the applicant wife previously lived and worked. The Tribunal accepts that, if the applicant returned to Pakistan rather than [Country 1], the applicant wife would return as a female-headed household. The Tribunal accepts the applicant wife has had one instance of self-harm in Australia but is not currently engaged in services for mental health concerns. The Tribunal finds that, while mental health services in [Country 1] are limited and can be expensive,[7] if the applicant wife experiences an exacerbation of her mental health issues in [Country 1], she would not be denied access to mental health treatment for any reason. The Tribunal finds that any stigma faced by the applicant wife arising from an exacerbation of her mental health symptoms does not amount to serious harm within the meaning of s 5J(5).
[7] DFAT Country Information Report [Country 1], 29 June 2021, at 2.26.
The Tribunal finds that the applicant wife was employed on a long-term basis in [City 1] and that she and her husband are running a business in Australia from which they are supporting themselves. While the Tribunal accepts the applicant wife would not have family supports in [Country 1], the Tribunal finds that, given the applicant wife’s employment history, she would be able to find further employment in [Country 1]. The Tribunal is not satisfied that the applicant wife would face a threat to her life or liberty, significant physical harassment, significant physical ill-treatment, significant economic hardship that threatens her capacity to subsist or a denial of her capacity to earn a livelihood of any kind which threatens her capacity to subsist. The Tribunal finds that any racist remarks directed towards the applicant wife, or applicant if he returns to [Country 1] with the applicant wife, do not rise to the level of serious harm as required in s 5J(5).
The applicant wife claimed at hearing that she has been banned from owning a passport in [Country 1] following contact with individuals at the embassy. The Tribunal notes that thousands of [Country 1 citizens] leave and return every day and that people who return after several years’ absence are unlikely to face adverse attention on return, although DFAT states that [Country 1]ns who overstay their visa in another country may be blacklisted and prevented from further travel.[8] The Tribunal finds that the applicant wife has not overstayed her visa in Australia and that the chance she would be of adverse interest to the [Country 1] authorities upon return to [Country 1], or be denied a passport, is remote. The Tribunal does not accept the applicant wife would be denied a passport or denied re-entry to [Country 1].
[8] DFAT Country Information Report [Country 1], 29 June 2021, at 5.37 & 5.38.
The Tribunal does not accept the applicant has come to the attention of the [Country 1] authorities for making a statement against them in his protection application, on the basis that protection applications before the Department and proceedings before the Tribunal are private and the details of a claim are unlikely to come to the attention of [Country 1] authorities. The Tribunal finds that the applicant wife and applicant child are not at risk of harm because the applicant made a statement against [Country 1] authorities in his protection application.
The Tribunal finds that, if the applicant returns to Pakistan and the applicant wife and applicant child return to [Country 1], any harm arising from the applicant wife’s separation from the applicant is not for one of the reasons in s 5J(1)(a).

The Tribunal finds there is not a real chance the applicant wife faces serious harm in [Country 1], now or in the reasonably foreseeable future, if she and the applicant child return to [Country 1] without the applicant husband.
The Tribunal is not satisfied the applicant wife is owed protection under s 36(2)(a).
The Tribunal accepts the applicant child is an adopted child of the applicant and applicant wife. The Tribunal accepts the applicant child does not speak [Country 1 language], however, the Tribunal does not accept that the applicant child’s inability to speak [Country 1 language], or length of time living outside [Country 1], would mean the applicant child faces serious harm within the meaning of s.5J(5). The Tribunal finds there is not a real chance the applicant child faces serious harm if he returns to [Country 1] now or in the reasonably foreseeable future.
The Tribunal is not satisfied the applicant child is owed protection under s 36(2)(a).
Complementary protection criteria
Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). This requires the Tribunal to consider whether there is a real risk of the applicants suffering significant harm as a necessary and foreseeable consequence of being removed from Australia to Pakistan (in the case of the applicant husband) and [Country 1] (in the case of the applicant wife and applicant child).
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
The Tribunal has accepted the claims of the applicant about incidents that occurred as a child and teenager in his home area of Malakand, KP. The Tribunal accepts that, given the nature of the applicant’s claims, and even taking into account the passage of time, the applicant may be at risk of physical harm from members of his local community, in particular from [Mr B]’s family, if he returns to Pakistan. The Tribunal accepts that the harm feared by the applicant in his local area amounts to cruel or inhuman treatment or punishment and is significant harm within the meaning of s 36(2A). The Tribunal finds that any risk to the applicant is localised to Malakand, on the basis that the claimed incidents occurred several decades ago and anyone outside of the applicant’s local area is unlikely to become aware of the claimed incidents a significant time later.
The applicant gave evidence to the Tribunal at hearing that he resided in Karachi for some six months before leaving Pakistan. The Tribunal noted at the hearing that the Constitution guarantees the right to freedom of movement in Pakistan and that internal migration is widespread and common, although depends on having financial means and family, tribal or ethnic networks to establish oneself. Large urban centres such as Karachi, Islamabad and Lahore have ethnically and religiously diverse populations and are able to offer some anonymity for people fleeing violence by non-state actors. Some groups, including Pashtuns, live in enclaves in these cities. DFAT does note, however, that some types of threats, such as honour killings, are persistent and even where people relocate they can be tracked down and killed years later.[9] This country information was discussed with the applicant at hearing and the Tribunal asked why he could not relocate to live in another area of Pakistan. The applicant submitted in response that the government would say anything about safety and there are ‘private channel news’, there are ongoing protests in Karachi and he ‘cannot live anymore’. He stated that Karachi has small houses and apartments and people are living side by side, and the crime rate is much higher. In Islamabad it is very expensive.
[9] DFAT Country Information Report Pakistan, 25 January 2022, at 5.23 – 5.24.
The Tribunal accepts that the applicant does not have family supports in Karachi or Islamabad. He has, however, previously relocated to Karachi for a six month period where he was able to find employment. He has been running a successful business in Australia over a long period of time and has previously found work in both Pakistan and in [Country 1]. The Tribunal finds that it would be reasonable for the applicant to relocate to another area of Pakistan, such as Karachi or Islamabad, where there are large cities with diverse populations that would offer him some anonymity and where there are Pashtun communities that can offer him support. The Tribunal accepts that the applicant would have to live ‘side by side’ with other people in Karachi and that he perceives that Islamabad is expensive. However, the Tribunal is not satisfied that the applicant would face a real risk of arbitrary deprivation of his life, the death penalty, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment for any other reasons if he were to return and reside in Karachi or Islamabad. The Tribunal finds that there is not a real risk of significant harm to the applicant in Pakistan, on the basis that it is reasonable for him to relocate to another area of Pakistan where there would not be a real risk he would suffer significant harm.
The Tribunal accepts that, if she returns to [Country 1] with the applicant child, the applicant wife would return as a female-headed household. The Tribunal accepts that the applicant wife has experienced one instance of self-harm in Australia but has found, for the reasons set out above, that she would not be denied mental health treatment in [Country 1]. The Tribunal finds that the applicant wife may face a level of community stigma if her mental health symptoms are exacerbated upon return to [Country 1]. The Tribunal finds that the applicant wife has been employed in [Country 1] and is self-employed in Australia and finds from this that she would be able to find further employment in [Country 1]. The Tribunal finds that the applicant child cannot speak [Country 1 language] and has lived outside of [Country 1] on a long-term basis. However, the Tribunal is not satisfied that either the applicant wife or applicant child face a real risk of arbitrary deprivation of their lives, the death penalty, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment in [Country 1]. The Tribunal is not satisfied the applicant wife or applicant face a real risk of significant harm if removed from Australia to [Country 1].
The Tribunal finds that separation of the applicant, applicant wife and applicant child in Australia, or in Pakistan or [Country 1], is not significant harm within the meaning of s 36(2A) (SZRSN v MIAC [2013] FCA 751 and GLD18 v MHA [2020] FCAFC 2).
The Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa).
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
decision
The Tribunal affirms the decision not to grant the applicants protection visas.
Tamara Hamilton-Noy
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 3811

12 September 2022

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