1802732 (Refugee)

1802732 (Refugee) [2023] AATA 2382 (28 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Simon Lipman (MARN: 0106572)
CASE NUMBER:  1802732
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Peter Haag
DATE:28 April 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 28 April 2023 at 9:46am
CATCHWORDS
REFUGEE – protection visa – Pakistan – fear of harm from family of former girlfriend – forbidden relationship and sexual relations with young woman engaged to her cousin from a young age – traditional community, father strictly religious and uncle associated with Taliban – attack on house and threats to family – father killed, younger brother missing believed dead and girlfriend believed killed – police reports, news articles and father’s death certificate – mental health, treatment and reports – country information – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1)(a), 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 January 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Pakistan, applied for the visa on 7 July 2015. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Act).
The applicant appeared before the Tribunal on 21 April 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A] and [Mr B]. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
The applicant was represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Section 5AAA of the Act
Pursuant to s 5AAA of the Act, it is for the review applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations, and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of their claim, nor does the Tribunal have any responsibility or obligation to establish or assist in establishing the claim. The Tribunal has applied this provision of the Act when considering the claims and evidence.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Applicant’s background
In his application for a protection visa, the applicant claims to be a citizen of Pakistan, born on [Date] in [City/District], Khyber Pakhtunkhwa province, Pakistan. The applicant claims to be a Sunni Muslim of Pashtun ethnicity who can speak, read and write in Pashto, Urdu and English.
In his protection visa application, the applicant lists his mother, father and [brothers], who are all citizens of Pakistan currently residing in Pakistan.
At the time of the application, the applicant had been living in [Suburb], Victoria, Australia since February 2014. He previously lived in Rawalpindi, Pakistan between [Year] and February 2014 and [City/District] in [Year].
The applicant completed primary school and high school between [Year] and [Year] in [City/District], Pakistan. He then completed a Certificate IV in ESL and Certificate IV in [Subject] between February 2014 and November 2014 in Melbourne, Australia.
At the time of the application, the applicant stated that he was unemployed. He listed previously being employed as [an Occupation 1] at a [Workplace 1] in [Suburb], Australia, from June 2014 until the time of the application. He also listed being previously employed as [an Occupation 2] at a [Workplace 2] in Peshawar, Pakistan.
Applicant’s identity
The applicant provided the Department certified copies of his Pakistan passport and National ID card.
The documents provided by the applicant are consistent with his evidence to the Tribunal in relation to his identity. There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicant the Tribunal finds that he is a citizen of Pakistan, and as such his protection claims will be assessed against Pakistan as the country of reference and ‘receiving country’ respectively.
Migration history
The applicant departed Islamabad, Pakistan [Day 1] February 2014 and arrived in Melbourne, Australia [Day 2] February 2014 holding a student visa.
On 7 July 2015 the applicant lodged an application for a protection visa. On 17 January 2018 the delegate of the Minister refused the protection visa application.
On 2 February 2018 the applicant lodged an application for review of the delegate’s decision with the Tribunal.
Claims for protection and other supporting documentation
The applicant submitted his claims for protection in a Statutory Declaration signed by the applicant and dated 5 July 2015. This was attached to his protection visa application which was lodged on 7 July 2015. The applicant’s claims for protection as stated in his Statutory Declaration are as follows:[1]
[1] Department file [Reference], Doc ID 10024538, folios 74–82.
I fear returning to Pakistan because I will be punished for being involved in a prohibited relationship with a woman who was engaged to another man. My life is in danger from the father of this woman who seeks retribution for engaging in sexual relations with his daughter. The woman had an arranged engagement with her cousin and I have caused dishonour to her family. This woman’s uncle is also associated with the Taliban and I fear being seriously harmed by him who seeks to enforce family honour by violence.
Why I left my Country:
From [Year-Year] I went to the [Public School] which was located in my village in [City/District]. I was a very bright student and I would achieve very high marks at school. It was decided by my parents that I should further my education by going to a better school that could enhance my learning.
In 2010, I changed schools and went to [College 1] to undertake year [grade]. [College 1] was located in [City/District], and was a school where boys and girls would study together in the same classes under a co-education program. I found the level of study to be a lot higher than [School], including the calibre of students with top grades.
At [College 1] I reconnected with a childhood friend, her name was [Ms C] who was also from [my village]. We knew each other while growing up as we would play with cither friends in our village. We would often study together and help each other with homework and assignments. [Ms C] was a very smart and attractive young girl. She was extremely hard working and we enjoyed each other’s company. I liked her and I was very interested in her. In light of the time that we spent with each other, our friendship developed and it became apparent that I was more into her than just a friend and I had feelings for her.
However, I did not express my feelings towards her as I was shy and afraid of being denied. I didn’t want to end my friendship with her as I was afraid that she would refuse my love which I did not want to hear and she belonged to a religious family. In addition it was prohibited in Islamic culture for a male to openly express his feelings towards another female as arranged marriages were common.
[Ms C] would compete against me for higher grades at school. We were both very diligent in our studies and sometimes she would achieve better results than me and sometimes I would achieve better results than her. In the final exam of year [grade] she was very confident with her level of preparation with respect to a particular exam so she decided to challenge me. She proposed that if her results in the exam were better than mine that I would have to do whatever she wanted. Alternatively, if I beat her in the exam, she would have to do whatever I wanted.
Approximately four weeks after the exam, the results were released and it was discovered that I beat her in the exam. In accordance with the terms of our agreement, I told her that I loved her. She got upset about the result of the exam and my feelings towards her and she became overwhelmed. Furthermore, it is uncommon for a male to explain his love towards another female. [Ms C] thought that we were just friends and she did not talk to me all the way home from school after receiving this news from me.
The following day we were invited back to school for an open day for year [grade]. [Ms C] greeted me at the open day and I gathered that she also loved me based on her behaviour and attention towards me. I felt a positive vibe from her but we did not speak further about our feelings towards one another.
We continued to attend school in preparation for year [grade]. During this time it became
evident that our relationship towards each other had progressed. She gave me her
mobile number and initially we would text each other and call each other about school. However the nature of the dialogue evolved to one more than just friends as we were always in correspondence with one another. She would message and contact me and I would also contact her to see how she was doing. In various text messages that we shared, she explained her love towards me.
The holidays commenced and during this two month period our feelings towards each other increased. She was the person that I wanted to spend the rest of my life with so I decided to marry her. Given the feelings that we shared towards one another, I loved her and I was not concerned of any other consequences as I wanted to be the first person to propose to her. I did not consult with either my family or friends as I genuinely believed that it was the right decision.
I proposed to [Ms C], however she explained to me that this was not possible as her father had arranged her to marry her cousin when she was approximately five (5) years old. Accordingly, she could not go against her family’s rules.
In Pashtun culture, women have no standing and it is very common for parents to enforce arrange marriages for their children. Her father was very strict and religious. He would not allow her to be seen socialising in public, conversing with other males or wearing inappropriate clothing. [Ms C]’s father was dominating and totally controlled her life. She was not allowed to act against her father’s wishes and stop the arrange marriage from progressing. To do so would go against her family and society.
[Ms C] decided to consult with her mother about this and her mother eventually relayed this information to her father that I wanted to marry [Ms C]. Her father was deeply offended and did not approve of our love or intention to marry. He said that he would not accept our relationship.
I did not approach my family about my love or intention to marry [Ms C]. I wanted to keep this confidential as I wanted to wait for a response from [Ms C] first before I broke the news to my family members. On the same day that I proposed to [Ms C], [Ms C]’s father came to my father’s home and warned my father for me not to involve myself with [Ms C] as she was already engaged to another man and that he could not break this engagement. He demanded to my father that I cease making any contact with his daughter.
My father warned me about the seriousness of the situation and demanded that I stop seeing or communicating with [Ms C]. He physically assaulted me and demanded that I stop interfering with her as he explained that [Ms C]’s family were dangerous people and he wanted to avoid any conflict. My father begged me to stop contacting [Ms C] as this would only cause further problems.
[Ms C]’s uncle, [Mr D], is a religious cleric who is associated with members of the Tarek-e-Taliban. There were numerous reports that Taliban members had been seen associating with her uncle. Her family was originally from Afghanistan and would not be able to be found.
Given the pressures with [Ms C]’s family, it was decided that I should change schools to focus on my studies. I completed year [grade] at [College 2]. We did not dare to meet with each other but continued to speak over the telephone. I would contact her whenever we had time and we would message each other.
After I completed year [grade], [Ms C] continued her studies and she obtained admission to a degree college in [City/College]. I obtained a job in Peshawar working at a [Workplace 2].
In approximately October 2013, I came home and my mother discovered that I was
talking to [Ms C] over the telephone. My mother enquired why I was doing this despite the warnings and threats from [Ms C]’s family. My father was worried not only for my life, but that of our family so he decided to send me overseas to study in Australia.
I explained to [Ms C] that I would travel to Australia. Upon receiving the news she cried and questioned why I was leaving her. She explained that she loved me. She insisted that I had promised to her that I would not leave her alone. I met up with her approximately one month prior to coming to Australia and we had lunch in [City/District]. I had not seen her for over a year and we were overjoyed to reunite. We expressed our love to one another. We went to a hotel and had sexual intercourse with one another.
I could not stop thinking about [Ms C] and we decided to meet again at the same restaurant for lunch. Unbeknown to the both of us, one of [Ms C]’s relatives had witnessed her having lunch with me at the restaurant. [Ms C] recognised this relative at the restaurant and informed me to immediately leave as the person she had recognised was [Mr D]’s son. This was very dangerous as he had observed the both of us together and it was open for him to shoot us for causing dishonour to his family. We were very frightened so I immediately departed the premises separately. [Ms C] remained in the restaurant.
I fled to Rawalpindi as I was concerned that this relative would inform [Ms C]’s father and uncle about seeing both [Ms C] and I intimately involved with one another at the restaurant. While I was in Rawalpindi I contacted my father about the situation and he explained for me not to return home as it was too dangerous. He sent me my passport and ticket and I fled to Australia.
Our meeting at the restaurant eventually came to the attention of [Ms C]’s father and uncle. The event caused great dishonour to their family in our village. [Ms C]’s father approached my father and requested him to hand me over to their family. My father feared that I would be killed by the family members and society as a matter of maintaining the family honour.
He warned my father not to spread the news about the situation to the village as it was shameful as they did not want other people to know about it. However everyone in the village came to know of the secret affairs between me and [Ms C]. Given the shame attached to her family, [Ms C]’s father had no other option but to close his business, sell their family home and leave the village.
When I arrived in Australia I spoke to my mother and she explained that [Ms C] and her uncle had come to our home with armed men who made enquiries about my whereabouts. They demanded my family to hand me over to them. It was explained to them that I was no longer in Pakistan and that I had fled to Australia to study. My family have warned me not to return to my village in Pakistan as my life is in danger.
[In] January 2015 my home was sprayed with bullets by unknown people. My family reported the attack to the police. The police were unable to investigate the matter further as they believed it was a random attack on our home. The attack caused great stress on my family and they feared for their safety.
Following the attack, my father received a threatening letter from the Taliban. The letter carried the Taliban symbol and claimed responsibility for the attack. The letter demanded that my family hand me over to the Taliban for causing dishonour to the family of a girl that was engaged to another man. The letter also made reference to [Mr D] having already warned my family to hand me over to the Taliban.
A second police report has updated the original police report that was obtained. In the second police report, the unknown people who were charged for the firing have been identified as the Taliban and [Mr D].
Since arriving in Australia I have not been able to communicate with [Ms C]. I tried to contact her on her telephone number but was unable to get through. I am uncertain what has happened to her and I feel that she has been punished for playing a part in our prohibited relationship. One of my friend’s has explained that [Ms C] has not returned to college. I suffer from anxiety and stress not knowing what has happened to her.
What I fear might happen to me if I go back to my country:
I fear that I will be killed in the name of family honour for being in a prohibited relationship with [Ms C] and for engaging in sexual impropriety with her outside of marriage. The punishment for such defiance would be death.
Who I think will harm or mistreat me if I go back:
I believe I will be killed by [Ms C]’s family and her uncle, [Mr D], who has links with the Taliban. I have brought dishonour to their family and they now seek retribution for my actions.
Why I believe they will harm or mistreat me if I go back:
I have been involved in sexual impropriety with a woman who is engaged to another man. If I return to Pakistan her father will not let the matter rest indefinitely. My actions are seen to be an attack on the whole family of [Ms C] which is considered extremely severe.
In Pashtun society honour is extremely important and if a family is shamed by the actions of another person, honour is restored by the killing of the woman and the man perceived to have shamed the family.
I have defied [Ms C]’s family tradition and the Pakistani Taliban consider me to be morally corrupted. They target and harm those who they consider as un-lslamic
I have engaged in a relationship without the approval or consent from the [Ms C]’s family. I have transgressed her family’s expectations which has brought shame and dishonour to her family. I am worried about my family and the life of my family. If I am found I will be killed.
Why I believe that the authorities in my country will not protect me if I go back:
The authorities will not protect me if I return to Pakistan. This is a family matter and the police will not involve themselves in private matters. In addition, the authorities are unable to protect themselves from the Taliban. The Taliban are everywhere and the police are unable to control their activities. My family has already reported the attack on our family home. The police have not done anything and my family fear for our lives.
The police are corrupt and I also fear that the police may assist the family of [Ms C] in their attempts to find and punish me.
Why I believe I will suffer significant harm:
I face the consequence for violating the customary rules and the values of Islam. Accordingly, I fear being killed and tortured by the Taliban and the family of [Ms C] for causing shame and dishonour to her family. [Ms C]’s father and uncle bear a grudge against me which continues and that there is no reason to think that they would forget the insult to their honour.
Why I cannot relocate:
There is no safe place in Pakistan. The Taliban have an extensive network across Pakistan. There are various Taliban entities across Pakistan that communicate with each other. The local Taliban in my village would have the motivation and capacity to pursue me in other parts of Pakistan for violating customary rules and values of Islam.

The applicant submitted the following documents to the Department in support of his protection claims:
a.Copy of a First Information Report made at the [City/District] Police station, with accredited translation, regarding an attack on the applicant’s father [Mr E], dated [January] 2015;[2]
[2] Department file [Reference], Doc ID 10024538, folios 59, 60.
b.Copy of a letter from the Tehrik-e-Taliban Pakistan, with accredited translation, dated [January] 2015 and signed by [Mr F], addressed to the applicant’s father, [Mr E], regarding an attack [in] January 2015;[3]
[3] Ibid, folios 61, 62.
c.Copy of a newspaper report, with accredited translation, from [News source 1], Peshawar, titled [Title], dated [January] 2015;[4]
[4] Ibid, folios 63, 64.
d.Certified copy of examination results from [College 2], issued on 19 July 2012;[5]
[5] Ibid, folio 66.
e.Certified copy of examination results for the applicant from [School], issued on 16 June 2010;[6]
[6] Ibid, folio 67.
f.Certified copy of examination results for the applicant from [School], issued on 16 June 2010, and a duplicate of this document;[7]
[7] Ibid, folio 68.
g.Copy of a certificate for the applicant from [College 2] for the completion of Intermediate Examination in 2012;[8]
[8] Ibid, folio 69.
h.Copy of a secondary school certificate for the applicant from [School] for 2010;[9]
[9] Ibid, folio 70.
i.Certified copy of International English Language Testing Scheme certificate for the applicant, issued [in] April 2013;[10]
[10] Ibid, folio 71.
j.A letter to the Department from the applicant’s representative putting forward the following claims on behalf of the applicant:[11]
[11] Ibid, folio 108.
1. The Applicant's mother advised the Applicant that his father received a telephone call on 28/07/2017 from [Mr D] demanding to hand over his son for the purpose of carrying out a revenge against his son in accordance with Pashtun culture. The Applicant's father was further advised by [Mr D] that he had already killed [Ms C] and that his son should also be killed as the Applicant had brought great shame to the family of [Mr D]. [Mr D] warned the Applicant's father over the telephone that if he did not hand over his son to him, that the Applicant's father would face serious consequences.
2. The Applicant has been advised by his family members that armed men had opened fire on his father outside his family home after he was returning from evening prayer on [date]/08/2017. The Applicant's father was taken to [Hospital] by the neighbours of his family. The Applicant's father could not be saved by the medical staff at the hospital. The Applicant understands from witness accounts who were present at the scene of his father's shooting that there were more than three attackers who travelled and escaped from the scene in a 4WD vehicle.
3. The Applicant's family had not discussed the telephone call from [Mr D] with the Applicant until after the Applicant's father's death. The Applicant believes that the reason why his family did not disclose the circumstances of the telephone call between his father and [Mr D] was because they did not want the Applicant to be concerned and worried about the safety of his family members.
4. The Applicant's family have subsequently received a letter from [Mr D] in which he has claimed responsibility for the attack on the Applicant's father and demands that the Applicant should be handed over to [Mr D].
5. The Applicant's family members have registered a FIR report against [Mr D] and other unknown armed men who took part in the attack against the Applicant's father. Police are investigating and have not found the whereabouts of [Mr D] or the identity of the attackers.
k.Psychological Assessment report for the applicant, conducted by [Mr F], Psychologist, [Medical Centre], dated 29 August 2017;[12]
l.Copy of a First Information Report made at the [City/District] police station, with accredited translation, made by the applicant’s father [Mr E], dated [January 2015], regarding the letter referred to in paragraph 24(b);[13]
m.Translated and undated Death Certificate for the applicant’s father [Mr E], issued by the [Hospital];[14]
n.Photograph purporting to be of [Mr E]’s gravestone, with accredited translation;[15]
o.Copy of a First Information Report made at the [City/District] police station, with accredited translation, made by the applicant’s mother [Ms G], regarding an incident that resulted in the death of the applicant’s father [Mr E], dated [August] 2017.[16]
[12] Ibid, folios 111–115.
[13] Ibid, folios 117,118.
[14] Ibid, folios 119.
[15] Ibid, folios 120.
[16] Ibid, folios 121,122.
The applicant provided a copy of the protection visa refusal decision record to the Tribunal on 2 February 2018.[17]
[17] Tribunal File 1802732, Doc Id 4003916.
On 14 April the applicant submitted the following documents to the Tribunal:
a.Duplicate of death certificate for the applicant’s father [Mr E], as per paragraph 24(m); [18]
[18] Ibid, Doc Id 10956330.
b.Untranslated copy of death certificate for the applicant’s father [Mr E], issued [in] May 2018;[19]
[19] Ibid, Doc Id 10956331.
c.Translation of a news report from [News source 2], Peshawar, dated [December] 2018, regarding the applicant’s brother, [Master H], being reported missing, including two images of untranslated newspaper texts;[20]
[20] Ibid, Doc Id 10956333.
d.Translation of a news report from [News source 3], Muzaffarabad/Rawalpindi, dated [December] 2018, regarding the applicant’s brother, [Master H], being reported missing, including two images of untranslated newspaper texts;[21]
[21] Ibid, Doc Id 10956334.
e.Letter from [Mr I] from [Islamic Centre and Mosque], signed and dated [April] 2023, regarding the applicant’s membership of [Islamic Centre and Mosque];[22]
[22] Ibid, Doc Id 10956358.
f.Statutory Declaration from [Mr J], friend of the applicant, dated 18 March 2018;[23]
[23] Ibid, Doc Id 10956360.
g.Statutory Declaration from [Mr A], friend of the applicant, dated 30 January 2020;[24]
[24] Ibid, Doc Id 10956361.
1. Statutory Declaration from [Mr K], friend of the applicant, dated 30 January 2020;[25]
i.Statutory Declaration from [Mr B], friend of the applicant, dated 13 April 2023;[26]
j.Three photographs of restaurants purportedly similar to the restaurant mentioned in the applicant’s claims in paragraph 23;[27]
k.Statutory Declaration from [Mr L], housemate of the applicant, dated 12 April 2023;[28]
l.Statutory Declaration from [Mr M], housemate of the applicant, dated 12 April 2023;[29]
[25] Ibid, Doc Id 10956362.
[26] Ibid, Doc Id 10956363.
[27] Ibid, Doc Id 10956365.
[28] Ibid, Doc Id 10956366.
[29] Ibid, Doc Id 10956367.
m.Statutory Declaration from [Mr N], housemate of the applicant, dated 12 April 2023;[30]
n.The following statement of claims from the applicant, signed and dated 13 April 2023:[31]
[30] Ibid, Doc Id 10956368.
[31] Ibid, Doc Id 10956393.
1. The Department refused my application for a protection visa as they did not believe I had a relationship with [Ms C] against the wishes of her family.
2. I have no way to prove that I had a relationship with [Ms C] as these events occurred in Pakistan and she is now dead. I would ask that the Tribunal consider all the evidence I have provided around my situation that supports the fact that I had I had an unapproved relationship with [Ms C] (who her family had promised her to marry her cousin from a young age, as is common in our culture) that resulted in her murder, and attack on my family home, the murder of my father, my brother [Master H] going missing in December 2018 and not being heard from since, and my subsequent psychological collapse as a result of the overwhelming grief, guilt and shame that I have experienced due the murder of [Ms C] who I loved, the murder of my father and my young brother going missing and believed to be dead.
3. The Department found that my relationship with [Ms C] was 'implausible. I do not believe that anything about our relationship was implausible. I loved her and her family were opposed to our relationship and forbid us to see each other as they did not approve and also she had been promised to marry her cousin from a young age. There is nothing implausible about this and people experience this all around the world every day.
4. The Department did not believe that I had a sexual relations with [Ms C] in the restaurant. This was something that happened and no one knew about but us. This bit of information is not central to the reasons why her family want to harm me and her as they never knew that this occurred. As this happened I included it in my statement but it was not the reason why her family wished to harm me as they never knew about it.
5. It was the later meeting at the restaurant [in] February 2014 where we were seen by [Ms C]'s cousins that was extremely serious as we had been banned from seeing each other by [Ms C]'s family. [Ms C] had been engaged to her cousin from a young age and my proposal to her had been refused and we had been banned from seeing each other. I was eager to see her again before I left for Australia as I loved her very much and knew that this may be the last chance I would get to see her for a long time, and maybe ever, as she was promised to marry her cousin. There is nothing implausible about wishing to see the person you love before you go to live in a different country. Neither ofus knew of the terrible impact that this meeting would have on our lives or that we would be seen together at the restaurant by her cousins.
6. I did not fabricate or distort crucial aspects of my relationship with [Ms C] as the Department stated in their decision record. The facts of our relationship are that we loved each other, I put forward a marriage proposal that was rejected. She had been promised to marry her cousin from a young age. We continued to communicate and saw each other despite being banned from seeing each other and we were caught seeing each other by her family which her family took as a shame on their honor and subsequently killed [Ms C] and my father and most likely my brother also.
Events that have occurred since my protection visa was refused by the Department.
My brother [Master H] going missing in December 2018 while returning from school
7. Following the refusal of my protection visa my brother [Master H] (who was [Age] when he went missing) has gone missing and we believe he has been abducted/killed by [Ms C]'s family. He went to school on the [in] December 2018 and left school to return home but never made it home
8. After my brother didn't return home my mother contacted the school to see where [Master H] was. The school said he had attended school as normal and had left the school when school had finished. Then my mother spoke with the neighbours who said that they did not know what had happened to him. She then made a report to the police that [Master H] had gone missing.
9. A few days after he went missing the local newspapers had a small story on my brother going missing.
My mental health
10. My mental health is terrible. I feel intense feelings of grief due to the murders of [Ms C] and my father and [Master H]. I also feel intense feelings of shame due to me believing I am responsible for this situation. Due to this intense guilt and shame I feel over what has happened I cannot discuss this as I feel so ashamed about what happened. There are only 4 of my friends who I have told the whole situation to as I am too ashamed to tell people what happened.
11. I have had difficulties in continuing with psychological treatment as nothing that anyone says can change that [Ms C] and my father most likely my younger brother are dead due to my relationship with [Ms C]. When I discuss what has happened if find it so distressing that I cannot bear to be alive.
12. Apart from these overwhelming feelings of grief, guilt and shame I also have a huge fear of being forced to return to Pakistan as I am certain that [Ms C]'s family will eventually find me and kill me. This is so overwhelming.
13. I cannot concentrate and have not been able to work since November 2021. I was working in a [Workplace] as [an Occupation] but my concentration was so bad that I was having accidents and I had to cease work as I was a danger to myself and others.
Evidence to substantiate claims
Photos of similar Pakistan restaurants
14. While I have not been able to provide photographs of the exact restaurant in [City/District] that I went to with [Ms C] and where we had sex, I have provided photos of similar Pakistan restaurants which show that the room could be locked and we had privacy
Murder of my father
• I have provided a NADRA/Pakistan government death certificate for my father
• I have provided a death certificate from the hospital where he was admitted.
• I have provided Statutory Declarations from my friends in Australia who attended my home following the murder of my father to offer their condolences
Brother [Master H] going missing
• I have provided newspaper reports and translations of the reports of my brothers disappearance.
• I have provided a letter from his school detailing his disappearance.
Psychological impact of my relationship with [Ms C] and her subsequent murder, the murder of my father and my brother [Master H] going missing (believed dead)
15. As stated the impact that these events have had on me has been severe. I feel intense guilt and shame over the fact that my relationship with [Ms C] has resulted in her death and the death of my father and my young brother going missing (presumed dead).
• I have provided statutory declarations from my housemates verifying that my depression and memory problems have been so severe that I have not been able to work since November 2021 and that they have been covering all my expenses since this time and can vouch for the intense and severe depression I have been facing.
• A psychological report is being prepared from my psychologist and will be submitted on Monday 17 September 2023
Relocation
16. Clearly I cannot return to my home area as I will be killed by [Ms C]'s family when they find out I have returned.
17. I cannot relocate to another part of Pakistan for a number of reasons. Firstly I will not feel safe in any part of Pakistan and I believe that eventually I could be found and murdered.
18. Secondly, my mental state is absolutely dire. My depression and guilt has impacted me very badly. I had been suffering extreme difficulties in concentration and memory and was having accidents at work. This ended up becoming so severe that I had to stop work in November 2021 and I have not been able to work since this time. My housemates who are aware of my mental condition have been paying for my food and accommodation since this time. Without their support I would be destitute.
19. If I returned to Pakistan and tried to live in another part of Pakistan I would not be able to survive. Firstly, my fears for my safety would result in my mental health deteriorating even further and there is no way I would be able to work to support myself. My mental health has deteriorated so badly that I have not been able to work in Australia where I know I am not at risk of being killed. If I return to Pakistan I am likely to have a mental collapse and there is no way I will be able to survive. I don't know anyone in any other part of Pakistan and I will have no friends or family to support me in any manner. I would not be able to survive in another part of Pakistan.
Police Protection
20. The Pakistan authorities cannot provide me with adequate protection for a number of reasons. Firstly the authorities do not have the power to protect me and secondly they normally do not intervene in these cases as they regard them as a family disputes.
o.Written submission from the applicant’s representative, dated 14 April 2023 and signed by the applicant;[32]
p.Written submission from the applicant’s representative, dated 14 April 2023, unsigned.[33]
[32] Ibid, Doc Id 10956420.
[33] Ibid, Doc Id 10956422.
On 17 April 2023, the applicant submitted the following documents to the Tribunal:
a.DFAT Country Information Report for Pakistan, 25 January 2022;[34]
b.UK Home Office Country Policy and Information Note Pakistan: Women fearing gender-based violence, November 2022;[35]
c.Psychological report for the applicant, from [Ms O], Clinical Psychologist, [Psychological Services], dated 12 April 2023.[36]
[34] Ibid, Doc Id 10960872.
[35] Ibid, Doc Id 10960873.
[36] Ibid, Doc Id 10960940.
On 19 April 2023 the applicant submitted to the Tribunal a copy of a letter, with a certified English translation, from [High School], regarding the applicant’s brother, [Master H], going missing [in] December 2018.
Consideration of claims, supporting evidence, and country information
The determinative issues in this case are:
(a)whether the applicant was party to a forbidden relationship in Pakistan with a young woman named [Ms C]; and
(b)the existence of a real chance the applicant would be seriously harmed by [Ms C]’s uncle [Mr D], a religious cleric who is associated with members of the Tarek-e-Taliban, her father [Mr P], and other members her family if he is removed to Pakistan.
The applicant asserts the genesis of his troubles in [City/District], Khyber Pakhtunkhwa province, Pakistan, the place where he was born, was that he fell in love with [Ms C], a young woman from his neighbourhood. [Ms C] and the applicant were childhood friends. They met after [Ms C] and her family moved from Afghanistan to the applicant’s home village in [City/District].
[Ms C] and the applicant saw little of each other after [Ms C] became a student at [College 1], a well-regarded high school for high achieving students.
[Ms C]’s father, [Mr P], opened a small business. Her uncle, a religious cleric, was reputed to be actively involved with members of the Tarek-e-Taliban (Taliban).
The applicant was a high achieving student in the village school, namely [School]. Recognising the applicant’s academic ability, his parents enrolled him in [College 1] to undertake year [grade]. According to the applicant’s evidence, this move marked the beginning of a chain of events with tragic consequences for him, and fatal consequences for his father, [Mr E], his younger brother, [Master H], and [Ms C].
[Ms C] was a student at [College 1] when the applicant commenced his studies there. The applicant and [Ms C] shared two classes for two subjects that male and female students were permitted to study together.
The witness [Mr A], and [Mr B] gave compelling evidence about the consequences of breaching the deeply engrained cultural norms that governed relationships between males and females. In this context, and in answer to questions from the Tribunal, evidence was given that at certain times in the past, in some schools male and female students could find themselves sharing a classroom to study a limited number of subjects.
According to the applicant’s oral evidence [Ms C] was a high achieving student. The applicant and [Ms C] challenged each other academically. This was a private contest they enjoyed with each other. The one who achieved the highest marks was the winner. The applicant and [Ms C] were attracted to each other. The applicant’s transcripts of his academic attainments during his school years at various schools establishes to the satisfaction of the Tribunal that he was a high academic achiever.
Despite the strict cultural restraints against the applicant openly and directly expressing his feelings for [Ms C], rather than first seeking approval from [Ms C]’s father, the applicant told [Ms C] about his feelings for her. He felt emboldened to do so because he had achieved higher grades than she did in the Year [grade] final examinations. According to their agreement, the one who was awarded the lower academic score was obliged to accept whatever the winner asked of the loser. In this context, when the applicant expressed his feelings to [Ms C] she responded by refusing to speak him.

According to the applicant’s evidence, during preparations at school for Year [grade] [Ms C] gave the applicant her phone number. They began to exchange text messages and the applicant felt [Ms C] cared for him. In time the applicant told [Ms C] that he loved her and wanted to marry her. He did not obtain prior approval from either his parents or [Ms C]’s parents. In evidence the applicant accepted that he had transgressed deeply entrenched cultural norms and said his feelings for [Ms C] overwhelmed him.
According to the applicant [Ms C] refused the applicant’s proposal and informed him that when she was 5 years old her father arranged for her to marry her cousin. She also said it was impossible for her to defy her father’s wishes despite her deep feelings for the applicant.
The applicant’s parents and [Ms C]’s parents became aware of their feelings for each other and the applicant’s ambition to marry [Ms C]. [Ms C]’s father attended the applicant’s home and warned his father that the applicant was to stay away from [Ms C] because her marriage had already been arranged and that arrangement was immutable.
The applicant asserts his father instructed him to say away from [Ms C]. He said that [Ms C]’s uncle, [Mr D] was linked to the Taliban and that her family was dangerous. The applicant was removed from [College 1] and sent to [College 2]. In this respect the records of the applicant’s education history are consistent with his oral evidence.
The applicant and [Ms C] continued to defy their parents. The applicant’s parents discovered he was exchanging text messages with [Ms C]. His parents were fearful for the safety of the applicant and other family members because the applicant was offending the cultural norms of the Pashtun community in their area and risked publicly humiliating [Ms C]’s father and his family.
The DFAT Country Information Report for Pakistan (DFAT Report), published in January 2022 states that Pakistan has one of the worst records for gender equality in the world: [3.89]. The legal age for marriage for women is 16 and marital rape is not criminalised.
Recently there has been some progress towards gender equality. Federal laws have criminalised honour killings and acid attacks: [3.91] The DFAT Report also states there has been a reduction in the reported number of acid attacks on women by about 80 per cent since 2014. Nevertheless, rates of gender-based violence are high: [3.93]. Gender-based violence often goes unreported due to stigma and a lack of privacy for victims, even when they are wealthy, and well connected: [3.94].
The DFAT Report also states so-called ‘honour killings’, in which family members murder relatives perceived to have brought dishonour on the family, are common in Pakistan. Honour killings can be carried out in response to behaviour including refusing an arranged marriage and forming an unapproved romantic attachment. Both men and women can be targeted for an ‘honour killing’, but most victims are women: [3.96].
Additionally, the DFAT Report states once a threat of ‘honour killing’ occurs the victim remains at risk even if he or she relocates: [3.96]. There are reported cases of ‘honour killings’ being carried out years after the perceived offence to a family’s honour: [3.96].
The cited information in the DFAT Report is consistent with country information the applicant’s representative provided to the Tribunal. The cited DFAT country information is consistent with the applicant’s evidence about the risk of an ‘honour killing’ he would face if he returned to Pakistan, providing the existence of the relationship with [Ms C] is established.
According to the applicant’s evidence, after his father learned the applicant still wanted to have a life with [Ms C], and that they continued to communicate with each other, he arranged for the applicant to study in Australia. Shortly before the applicant was due to depart for Australia, the applicant and [Ms C] arranged to meet in a restaurant in a hotel in their area. They had not seen each other for about 12 months. The applicant told [Ms C] that he was about to leave Pakistan to study in Australia. This news distressed [Ms C].
They had one of the private tables in an alcove with a curtain that could be drawn across the alcove creating a private space. The applicant provided a photograph of a similar alcove in another restaurant because the hotel in which the restaurant was located no longer exists. It would have been easy for the applicant to say in evidence that the photograph depicted the alcove and dining place where he and [Ms C] met, but he did not.
The applicant asserted in his written application that he and [Ms C] had sexual intercourse in the dining alcove with the curtain drawn. At hearing the applicant described their sexual activities in more detail. It is unnecessary to go into specifics about what may have occurred. However, the applicant’s written description of what occurred as ‘sexual intercourse with one another’ may not be entirely accurate. It is unnecessary to reach a conclusion on that matter.
Contrary to an essential part of the reasoning in the primary decision to refuse the visa, the applicant does not place reliance on [Ms C]’s father learning that he and [Ms C] met in the restaurant and that they had been sexually intimate. The applicant has not asserted that [Ms C]’s father or other family members, or his family learned of this meeting. The applicant relies on this information as evidence of context relevant to establishing the nature of the feelings he and [Ms C] had for each other, and as evidence in support of the existence of the relationship.
According to the applicant they arranged to meet a short time later, at lunchtime in the same restaurant. On that occasion [Ms C] noticed they were being observed by the son of her uncle, [Mr D]. Fearing he may be shot on the spot and with the encouragement of [Ms C], the applicant left the restaurant. He travelled to Rawalpindi where he stayed with his father’s relatives for a short time and then departed for Australia.
The country information supports the contention, that if it is accepted the applicant and [Ms C] were observed in a restaurant by [Ms C]’s cousin, meeting in defiance of her father’s wishes and her betrothal to her cousin, they were at risk of being killed for dishonouring [Ms C]’s family.
According to the evidence [Ms C]’s father told the applicant’s father to hand over his son for punishment in accordance with their customs. He was told the applicant had left the country.
After the confrontation in the applicant’s family home between the family patriarchs, according to the applicant’s evidence, [in] January 2015 his family home was sprayed with bullets. The attack was reported to police. After the attack a letter was delivered to the family home which referenced [Ms C]’s uncle by name and the Taliban. The letter demanded the applicant be delivered up to [Ms C]’s father because he had dishonoured the father’s family.
According to the applicant both events were reported to the local police, and the reports are the subject of two written police reports, known as First Information Reports (FIRs). Both reports are before the Tribunal in addition to a copy of the threatening letter.
After the applicant arrived in Australia, he tried to telephone [Ms C]. He asserts her telephone did not work. Inquiries the applicant made with friends indicated that [Ms C] did not return to college and her whereabouts was unknown.
Additionally, the applicant supports his claim that he would be killed by the applicant’s family no matter where he lived in Pakistan, with evidence that his father was shot to death near his home shortly after he was asked to deliver up the applicant to [Ms C]’s father, [Mr P], for punishment. The applicant also asserts in evidence that his younger brother did not return home from a day at school not long after his father was murdered.
The forgoing evidence is supported by newspaper articles accompanied by certified translations, FIRs, being police reports accompanied by certified translations variously reporting on bullets being shot into the applicant’s family home, the shooting death of the applicant’s father, and the disappearance of the applicant’s younger brother on his way home from school. The applicant also relies on a school document that addresses the disappearance of his younger brother after he left his school to walk home at the end of the school day. Additionally, the applicant relies on a copy of the letter said to have been delivered to the applicant’s family home that represents it was issued under the auspices of the Taliban. This document has been translated by a certified translator.
In considering the weight to be given to these documents it is necessary to have regard to the DFAT Report. In essence the Report states that fraudulent documents are readily available in Pakistan and that genuine documents can be readily obtained fraudulently. The DFAT Report specifically refers to FIRs and states that non-genuine FIRs can be readily obtained in Pakistan. DFAT does not consider the existence of an FIR to be conclusive evidence of the truth of the contents of the FIR.
The Tribunal drew to the applicant’s attention the substance of the forgoing information about the widespread availability of non-genuine documents in Pakistan, including non-genuine FIRs, and informed the applicant the Tribunal was concerned the FIRs and the other documents he provided to the Tribunal may not be genuine. The applicant said his documents are genuine.
In giving regard to the DFAT Report about the prevalence in Pakistan of fraudulent and non-genuine documents, including FIRs, notwithstanding the applicant’s evidence that his supporting documents are genuine, the Tribunal gives little weight to each document when they are considered individually. This view, however, does not mean the Tribunal has determined to give no evidentiary weight to the documents. The documents must be fully assessed in combination with the other evidence the Tribunal finds to be credible, relevant, and material to the determination of the applicant’s case.
The Tribunal has considered the evidence given by the witnesses, [Mr A], and [Mr B]. They once shared different houses with the applicant but since then they have moved on with their separate lives. Nevertheless, they have maintained some contact with the applicant.
Both witnesses gave their evidence in a measured and careful way free from exaggeration. The Tribunal is satisfied the witnesses gave evidence from their own independent recollection of the facts about which they gave evidence.
Independently of each other, each witness testified to becoming concerned about the applicant’s wellbeing during the period they lived in shared accommodation with him.
They observed the applicant seemed to be deeply unhappy. He was working but not doing well. Each witness stressed in their evidence that they spoke to the applicant, but only in general terms, to find out if they may be able to assist him to feel better. At different times they learned about the applicant’s forbidden relationship with a woman in Pakistan and that he held himself responsible for the death of his father and his younger brother and the woman concerned. Both witnesses perceived there was a connection between the applicant’s obvious state of sadness and his sense that he was responsible for three avoidable deaths of loved ones because he refused to respect his father’s advice to disassociate himself from the woman he said he loved.
Both witnesses gave detailed and compelling evidence about the gravity of transgressing cultural norms in northern Pakistan, and in particular, the gravity of forming an unapproved romantic relationship with a woman who was betrothed by her father to another man.
The evidence of both witnesses seemed to be credible.
The applicant provided a psychological report to the Tribunal. The report was authored by [Ms O], Clinical Psychologist and it is dated 12 April 2023. After considering her professional qualifications and experience, the Tribunal accepts [Ms O] is an expert in the field of psychological diagnosis and counselling.
The applicant was referred to [Ms O] by his treating general medical practitioner, [Dr Q] of [Address] on 22 January 2020, for assessment for depression, anxiety and stress.
According to the report, before seeing [Ms O], the applicant accessed psychological services from [Mr F] during 2016 and 2017. The report states the applicant was assessed using clinical psychology, and he was diagnosed with severe major depressive disorder. Without explanation [Mr F] did not provide a report to the Tribunal. His professional qualifications are unknown. [Ms O] did not disclose how she learnt of the diagnosis she attributed to [Mr F]. The Tribunal gives little weight to the diagnosis [Ms O] attributed to [Mr F].
Under the heading ‘Expert Report’ [Ms O] answered several questions that were posed to her by the applicant’s representative for the purposes of this hearing. In answering a number of these questions [Ms O] provided opinions that fall outside her field of expertise as a clinical psychologist.
The Tribunal gives neutral weight to the opinions expressed by [Ms O] about the culture in the area in Pakistan in which the applicant lived with his family before he arrived in Australia, and to which he would return if he were removed from Australia. Additionally, the Tribunal regards the opinions expressed by [Ms O] about the extent to which the applicant’s levels of anxiety, depression and stress would escalate if he were removed to Pakistan, to be speculative in nature and, without further evidence from [Ms O] in this regard, the Tribunal gives the opinions little weight.
[Ms O] also makes several unsubstantiated assumptions of fact about the financial status and location of members of the applicant’s family in Pakistan that detract from the opinions she expressed about the applicant’s capacity to subsist in Pakistan. The Tribunal gives these opinions little weight.
Nevertheless, the Tribunal accepts the accuracy of the case history [Ms O] took from the applicant. It is consistent with the applicant’s evidence at hearing and the evidence of [Mr A], and [Mr B]. In reaching this conclusion, the Tribunal was particularly persuaded by the description the applicant gave about the guilt he felt because he failed to follow his father’s advice about [Ms C] and her family. When the applicant made these comments they were more of an aside rather than comments he thought would be treated by the Tribunal as evidence. The Tribunal found this evidence, when considered on its own to be compelling, and more so when it is considered in conjunction with the evidence given by [Mr A], and [Mr B] and the parts of [Ms O]’s report that the Tribunal accepts as being within the scope of her expertise.
The Tribunal accepts [Ms O]’s diagnosis that the applicant is suffering from major depression and generalised anxiety. The Tribunal also accepts the opinion that these conditions were caused by the guilt the applicant is experiencing because he believes he is responsible for the deaths of his father, brother, and [Ms C].
On balance, the totality of the evidence is sufficient to satisfy the Tribunal that the applicant was involved in a forbidden relationship with a woman named [Ms C]. The applicant and [Ms C] did not disassociate from each other when their respective families warned them to do so. The Tribunal is satisfied it is reasonably likely the applicant’s father and younger brother were victims of ‘honour killings’ and that [Ms C] disappeared because the applicant and [Ms C] were perceived to have formed a strong, but unapproved romantic attachment to each other after [Ms C]’s father had arranged for her to marry her cousin.
Having considered the applicant’s claims individually and cumulatively, the evidence, considered as a whole and in combination with the cited country information, is sufficient to establish to the satisfaction of the Tribunal the existence of a real chance the applicant would be subjected to serious harm for the reason of his membership of a particular social group, namely persons targeted for an ‘honour killing,’ that being a reason that meets the provisions of s 5J(1)(a) of the Act, if he is removed to Pakistan now or in the reasonably foreseeable future. Accordingly, the applicant satisfies the criterion in s 36(2)(a) of the Act.
The Tribunal is also satisfied the applicant’s membership of the identified particular social group, is the essential and significant reason for the real chance of persecution faced by the applicant, and that the consequential persecution would involve systematic and discriminatory conduct by [Ms C]’s family and their associates.
Furthermore, having considered together the evidence and the cited country information, the Tribunal is satisfied the real chance of serious harm the applicant would face if he were removed to Pakistan now or in the reasonably foreseeable future, relates to all parts of Pakistan.
The Tribunal is also satisfied that consistent and ongoing effective protection measures would not be available to the applicant from government authorities or non-state actors in Pakistan.
Consequently, the Tribunal is satisfied the applicant has a well-founded fear of persecution for a reason specified in s 5J(1) of the Act, namely membership of a particular social group, and that the applicant meets the definition of refugee as set out is s 5H of the Act.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Peter Haag
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.
…

[2023] AATA 2382

28 April 2023

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction