1802805 (Refugee)

1802805 (Refugee) [2023] AATA 2725 (22 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Carina Ford (MARN: 9802862)
CASE NUMBER:  1802805
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Peter Haag
DATE:22 May 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 22 May 2023 at 3:41pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – love marriage – targeted by brother-in-law for an honour killing – father-in-law consented to marriage – right to inherit father-in-law’s estate – claim not included in written application – residential history – inconsistencies and unsupported claims – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 2 February 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 31 January 2017. 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 20 April 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A], social worker and friend of the applicant.
The applicant was represented in relation to the review by a member of the legal profession who is also an Accredited Immigration Law Specialist.
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 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 applied this provision of the Act whilst considering the applicant’s 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 decision under review should be affirmed.
Applicant’s background
In his application for a protection visa, the applicant claims to be a citizen of Pakistan, born on [date] in Sialkot, Pakistan. He claims to speak, read and write in Urdu and English.
In his visa application, he claims to have been married [in] February 2009 in [Country 1]. He listed his wife and two children, who are citizens of Pakistan and residing in Pakistan at the time of the application. He listed two brothers, one who was a citizen of Australia living in Australia and the other a citizen of Pakistan living in [Country 1]. He also listed his mother, who was a citizen of Pakistan living in Pakistan.
At the time of the application, the applicant was living in Melbourne, Australia. He listed previously living in the Northern Territory between December 2016 and January 2017 and in New South Wales in December 2016. Before this, he lived in Sialkot, Pakistan between December 2012 and December 2016, and Karachi between March 2010 and August 2012. Between July 2006 and March 2010, he lived in [Country 1] and between May 1980 and July 2006 he lived in Sialkot, Pakistan.
The applicant completed his primary and secondary schooling between [year] and [year] in Sialkot, Pakistan.
At the time of the application, the applicant stated that he was not employed. He listed his previous employment as a [position] in a [business] from August 2015 until the time of the application and in [specified role] in a [factory] between April 2012 and July 2013, both in Sialkot, Pakistan. He also listed being employed as a [occupation] in [another] business between July 2006 and March 2010 in [Country 1], and as a [position] in a [business] between April 1993 and November 2005 in Pakistan.
Applicant’s identity
The applicant provided the Department with a certified copy of his Pakistani passport.
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 travelled to [Country 1] [in] July 2006 and stayed [until] October 2010 for work reasons.
Between 23 September 2014 and 30 September 2014, the applicant travelled to [Country 2], for business reasons.
On 26 November 2015 the applicant was refused a visa to [Country 3] after withdrawing his application.
The applicant departed Lahore, Pakistan [in] December 2016 and arrived in Australia [in] December 2017 on an [ETA] visa.
On 31 January 2017 the applicant lodged an application for a protection visa. The application was refused by the delegate for the Minister on 2 February 2018.
On 4 February 2018 the applicant lodged an application for review of the refusal decision to the Tribunal.
Claims for protection and other supporting documentation
The applicant submitted his claims for protection when he lodged his protection visa application with the Department on 31 January 2017. The applicant’s claims are as follows:[1]
[1] Part C, application for a protection visa, Department file [number], Doc ID 10024543, folios 23 – 25.
88 I am seeking protection in Australia so that I do not have to return to (name of country or countries that you are able to legally enter and/or reside in. This includes countries you are a citizen or national of or you have a current visa for)
PAKISTAN
89 Why did you leave that country(s)? Provide specific details
I MARRIED [IN] FEBRUARY 2009 IN [COUNTRY 1]. THIS IS OUR LOVE MARRIAGE. IN THIS MODERN WORLD IN PAKISTAN STILL NO FASHION OF LOVE MARRIAGE. WE WAS SUCCESSFUL TO DO LOVE MARRIAGE. BECAUSE WE WAS NOT IN PAKISTAN. BUT WE CAME BACK PAKISTAN IN 2010 AND START LIVING IN KARACHI. MY BROTHERS IN LAW NEVER ACCEPTED OUR RELATION. AFTER FIVE YEARS WE
MOVE OUR HOME TOWN SIALKOT. BECAUSE OF MY WIFE SHE THINK NOW LONG TIME AND EVERYTHING WILL BE FINE. BUT SHE WAS WRONG HER BROTHERS WAS COMPLETELY UN EDUCATED. THEY HAVE NOW ONLY ONE AIM IN THEIR LIVES. THAT WAS TO KILL ME. AND ON 16 JULY 2016 THEY WAS ALMOST
SUCCESSFUL. THEY ATTACK ON ME FIRE BULITS. I DON'T KNOW HOW I SURVIVED. THEY WILL NEVER FORGIVE ME. I GOT ATTACKED ONNCE IN KARACHI TOO. BUT I NEVER REPORTED. THAT TIME SOME ONE TRY TO HIT ME WITH CAR. THAT ONE ALSO CLEARLY MURDEROUS ATTACKED. I NEVER REPORTED BECAUSE I WANT TO HIDE MYSELF. AFTER REPORT WHICH WAS NOT POSSIBLE.IN LAST ATTACK FORTUNATELY KIDS WAS NOT AT HOME.THEY WENT FOR TUTION. SO MY ME AND MY WIFE DECIDED ITS BETTER LIVE SPERATE FOR SOME TIME. BECAUSE MY BROTHER IN LAW WANT HIT ME ONLY. AND POLICE HELPING HIM. WHEN I FELL MY
ENEMY FIXING SOMETHING WITH THE HELP OF POLICE THAN I DECIDED TO LEAVE THE COUNTRY. AND MY WIFE FORCED ME TO LEAVE.
90 What do you think will happen to you if you return to that country(s)?
MY ENEMIES MY BROTHERS IN LAW WILL KILL ME IF EVER THEY WILL SEE ME. THEY CLEARLY THREATENED ME. I TRY MY BEST FOR SOLVE THIS PROBLEM. FINALLY MY BROTHERS IN LAW GIVE ME ONE SOLUTION. GIVE DIVORCE TO MY WIFE OR THEIR SISTER. IF NOT WE WILL KILL YOU ASAP. I KNOW HIM THEY ARE ANIMALS. THEY KILL PEOPLE LIKE CUT VEGETABLES. I KNOW IF I DIVORCED TO MY WIFE THEY STILL KILL ME. NOW MORE THAN 6 YEARS I AM REALLY TIRED TO RUN. I AM [AGE] YEAR OLD. I WANT LIVE PEACFULLY AND COMFERTLY. I TRY TO MOVE IN [COUNTRY 1] AGAIN BUT VISA PROBLEMS FOR PAKISTANI PEOPLE. BUT ALSO GO TO [COUNTRY 1] NOT SOLUTION OF PROBLEM. BECAUSE I CANNOT LIVE THER SO LONG.
91 Did you experience harm in that country(s)?
YES
MY ANSWER IS SAME AS ABOVE I WRITTEN
92 Did you seek help within the country(s) after the harm?
YES
AFTER ATTACK ON ME I STRAIGHT GO TO THE POLICE. ACTUALLY IN PAKISTAN POLICE IS NOT FOR COMMON MAN. THEY ARE ONLY FOR POLITICIANS AND FOR RICH PEOPLE. POLICE IS THE MOST CORRUPT DEPARTMENT IN PAKISTAN. I ASKED HIM FOR REGISTERED COMPLAINT AGAINST MY BROTHERS IN LAW. VERY DIFFICULTY THEY REGISTERED THE COMPLAINT. AFTER COMPLAIN. 0 % PROGRESS WAS DONE BY POLICE. I KNOWS THEY ARE HELPING TO MY ENEMIES.
93. Did you move, or try to move, to another part of that country(s) to seek safety?
BEFORE ATTACK ON ME I WAS IN KARACHI. I KNOW ONE DAY THEY KILLED ME IF I STAY IN PAKISTAN.
94 Do you think you will be harmed or mistreated if you return to that country(s)?
YES
MY BROTHER IL LAW WILL KILL ME. AND OUR CORRUPT POLICE ALSO HELPING THEM.THEY ATTACKED ON ME ONCE LUCKILY I SURVIVED. MOST GOOD THING THAT TIME WHEN THEY FIRE ON ME MY KIDS WAS NOT AT HOME. BUT THEY NOT TRY TO KILL MY FAMILY. BUT MY FAMILY WAS NOT SAVE IF THEY LIVE WITH ME IN PAKISTAN. BECAUSE WHEN THEY TRY TO KILL ME OR FIRE ON ME THAT TIME ANYBODY OF MY FAMILY CAN BE INJURED OR DIE. THIS IS VERY CLEAR GO BACK TO MY COUNTRY PAKISTAN IS LIKE SUCIDE. IT'S BETTER I KILL MYSELF. MY COUNTRY IS LIKE JUNGLE. NO RULES AND REGULATIONS NO LAWS. ONLY POWERFUL CAN LIVE. AND PEOPLE LIKEME DIE LIKE DOG.
95 Do you think the authorities of that country(s) can and will protect you if you go back?
NO
IN PAKISTAN AUTHORITIES LIKE POLICE NOT FOR COMMON PEOPLE. WHOLE SYSTEM IS WRONG. IF I AM VERY RICH OR I AM POLITICIAN THAN THEY WILL PROTECT ME VERY WELL. BUT I AM COMMON MAN AND I TRY HARD TO GET PROTECTION FORM THEM. BUT THEY NEVER LISTEN TO ME
96 Do you think you would be able to relocate within that country(s)?
NO
MY ANSWER FOR THIS QUESTION SAME AS ABOVE I WRITTEN. WHEN OUR PROTECTION DEPARTMENTS ARE CORRUPT SO THAN WHAT WE CAN DO.
The applicant submitted the following documents to the Department in support of his protection visa application:[2]
1.Untranslated First Information Report (FIR) dated [in] July 2016;
2.English translation of FIR, dated [in] July 2016, regarding an attack on the applicant by the applicant’s brother-in-law at a restaurant in Sialkot, Pakistan;
3.Police Clearance Certificate, issued in the name of the applicant by the [District Police], dated [in] December 2016;
4.Marriage Contract between the applicant and [Ms B], issued by [Country 1] [in] February 2009.
[2] Department file [number], Doc ID 10024543, folios 47–51.
On 6 February 2018 the applicant provided the Tribunal with a copy of the Department’s Decision Record for the refusal of his protection visa.[3]
[3] Tribunal file 1802, Doc Id 4011592.
On 14 April 2023 the applicant submitted to the Tribunal the following documents:[4]
[4] Ibid, Doc Id 10956613.
1.Written submissions from the applicant’s representative;
2.The following statement of claims from the applicant, dated 13 April 2023:
2. If I am forced to return to Pakistan, I am scared that I will be targeted by my brother’s-in-law for an honour killing because of my love marriage to my wife, who is set to inherit property of her father when he dies. The authorities in Pakistan are unable to protect me, as they were unable to protect me in the past.
Background
3. I was born in Sialkot, Punjab, Pakistan, on [date]. I am currently [age] years of age.
4. I am of Sunni Muslim faith.
5. I am married to my wife, [Ms B] (AKA [Alias B]) (DOB [date]). We have two children, [Child C] (DOB [date]; [age] years) and [Child D] (DOB [date]; [age] years).
6. My wife and children remain in Pakistan. They continue to move around every four to seven months. (when we are able to secure a new property for them) so that they do not get hurt by my brother’s-in-law. I am afraid that my children will be used to blackmail me to bring me back to Pakistan from Australia. My children are not attending school in-person, they have private tuition at the house, which changes every time they move.
7. I continue to speak to my wife and children. We previously communicated through Viber and now through WhatsApp. I talk to my wife and children every day, sometimes several times a day because my children are often calling me.
8. My mother, [Ms E] (DOB [date]) resides in Pakistan. My mother is now more than [age] years of age, and she is very sick. Me father, [Mr F], is deceased and he died in 2003. I have two brothers, [Mr G] (DOB [date]) is an Australian citizen and resides in Australia and [Mr H] (DOB [date]) resides in [Country 1].
9. I completed my secondary schooling in Pakistan.
My immigration history
10. I was born in Pakistan. I lived in Pakistan until 2006 when I moved to [Country 1]. I lived in [Country 1] from 2006 until 2010. From 2010 until 2016 I lived in Pakistan.
11. I applied for a Visitor visa under the sponsorship of my brother on 21 July 2016. My visa was granted on 18 August 2016. I travelled to Australia [in] December 2016.
12. I applied for my protection visa on 31 January 2017. My Protection visa was refused on 2 February 2018. I have applied for review of that decision because I do not think the correct decision was made.
My mental health/physical health
13. Since I have been in Australia, I have been diagnosed with diabetes. I take medication for this in Australia. I also have dental problems and I have lost a number of my teeth (10 to 15 teeth). I have continue to receive treatment for my conditions in Australia and I must continue to do this to manage my condition.
Changes in circumstances since my Protection visa application
14. At the time of my Protection visa interview, I explained that I would be very concerned about my safety should my father-in-law, [Mr I], because my three brother’s-in-law will also want to harm my wife as she would inherit the property from my father-in-law. His estate is worth about AUD $5-$6 million dollars.
15. Since my application was lodged, my father-in-law is now [age] years of age. He is living in [Country 1]. My father-in-law is very unwell, and I have heard that he cannot talk. I am sure that he will pass away soon. Although my father-in-law is in [Country 1], my brother’s-in-law still remain in Pakistan.
My relationship with my wife
16. I lived in [Country 1] from 2006 until 2010. I held a work visa that expired in July 2010.
17. Whilst I was in [Country 1], I met my wife. We began our relationship on 10 November 2008. I was married to my wife [in] February 2009 in [Country 1]. My marriage to my wife was a love marriage, not an arranged marriage.
18. My father-in-law consented to the marriage, but he did not tell his sons about our marriage. My wife has three brothers and none of them agreed to our marriage when they found out about it. Two of her brothers, [Mr J] and [Mr K], have been against our marriage and targeted me. This is because they do not want me or my wife to inherit the fortune of their father.
19. When my wife and I returned to Pakistan in 2010, we relocated to Karachi. This was because my brother’s-in-law did not accept our marriage and we did not think that it would safe for us to return to Sialkot.
20. When I was living in Karachi, my brother-in-law attempted to kill me by running me over with a car. I did not report this incident at the time to the Police as I did not think they could protect me.
21. About five years after living in Karachi, my wife suggested that we move back to Sialkot because she did not think that my brother’s-in-law had any concerns about our marriage or wanted to harm me. However, this was not correct. In Sialkot my life was in even more danger.
22. On 16 July 2016, my brother’s-in-law attempted to kill me. They fired shots at me, but I was able to escape unharmed, luckily. In this incident, my borther’s-in-law attacked the property that I was living in with my wife. Luckily the kids were not at home at the time. We were able to hide in a storeroom in the house that had an iron door so that they could not get us. I pretended to call the Police when I was in the storeroom. My brother’s-in-law left the property. The Police did arrive at the property, but they did this very late. There was damage to the property.
23. because of this incident, I submitted a First Information Report (FIR) to the Pakistan authorities, I lodged this with the Cantt Police Station, Sialkot District. I have provided a copy dated [in] July 2016 with a translation. That FIR is not a fraudulent document – it is genuine.
24. For about two or three weeks after the July 2016 incident, my wife and I decided to live separately because of the threats to my life from my brother’s-in-law. At that stage, my brother’s-in-law had given me an ultimatum that I either divorce my wife or I will be killed.
25. Because of his threats, I tried to relocate to [Country 1]. However, I was unable to obtain another work visa. I knew that my life was at risk, so I obtained an Australian visa to avoid being harmed by my brother’s-in-law.
26. When I applied for the Visitor visa, I thought that being away from Pakistan for 2 or 3 months would make things better for me. However, I was too scared to return to Pakistan and I applied for a Protection visa. My brother, who sponsored for the Visitor visa did not want me to apply for the Protection visa and told me it would strain our relationship if I did apply for it. I felt like I had no choice, however, because I was so scared for my life.
My fears of returning to Pakistan
27. I am sure that if I was forced to return to Pakistan that I will be killed. My brother’s-in-law are not common people, they have Police, political and other connections. They will know that I have returned to Pakistan almost immediately and they will come looking for me.
28. I am sure they want to carry out the honour killing to show that no one can marry their sister without their consent or approval.
29. I fear that my brother’s-in-law will threaten my life or liberty, they will harass me, or they will treat me badly by kidnapping, threatening, beating, assaulting, torturing me or, worse, murdering me.
30. I am also afraid that I will not be able to subsist upon return to Pakistan. This is because I will have to go into hiding sa that my brother’s-in-law cannot locate me to be able to harm me. This means that I will not be able to afford accommodation, to pay for my expenses, to support my family or access any services, including the medical treatment that I need. I know that I will not be able to earn a livelihood in Pakistan, including to support my family.
Effective protection
31. The authorities in Pakistan are unable to help me. The Police in Pakistan are corrupt. They will be influenced by families that wealth and political connections. I am not one of those people.
32. I was unable to seek assistance from the Police in Pakistan when I was living in Karachi and Sialkot. I had attempted to submit the FIR against my brother’s-in-law to be protected but the Police did nothing to help me.
33. I know that if I return, I will be unable to assistance from the Police. I am sure my life will be in danger.
Relocation
34. There is no part of Pakistan that I would be able to relocate to where I could safe. I know that I am not safe in Karachi and Sialkot and any other part of the country.
35. In any part of Pakistan, I would continue to fear that my brother’s-in-law could harm me in any part of Pakistan.
3.DFAT Country Information Report, Pakistan, 25 January 2022;
4.Online news article published by Reuters, dated 28 June 2014, titled Pakistani family slits throats of young couple over love marriage, accessed on 13 April 2023;
5.Published Decision Record for Tribunal case 1800844, decision date 15 July 2022, protection visa application, country of reference Pakistan;
6.Published Decision Record for Tribunal case 1610942, decision date 14 February 2018, protection visa application, country of reference Pakistan;
7.Published Decision Record for Tribunal case 1712801, decision date 3 June 2021, protection visa application, country of reference Pakistan;
8.Published Decision Record for Tribunal case 1506100, decision date 1 November 2016, protection visa application, country of reference Pakistan;
9.Human Rights Watch, World Report 2022: Pakistan, accessed on 14 April 2023;
10.United States Department of Sate 2021 Country Reports on Human Rights Practices: Pakistan, accessed on 14 April 2023;
11.Online news article published by The Diplomat, dated 28 July 2022, titled ‘Honour Killings Continue Unabated in Pakistan’, accessed on 14 April 2023;
12.Canada: Immigration and Refugee Board of Canada, Pakistan: Honour killings targeting men and women, especially in the northern areas (2001-2006), 24 January 2007, accessed on 14 April 2023;
13.A copy of the delegate’s decision made on 2 February 2018, refusing to grant the applicant a protection visa.

On 18 April 2023 the applicant submitted to the Tribunal the following documents:
1.Statement from [Mr A] regarding his travel to Pakistan [in] December 2019 and meeting with the applicant’s brother-in-law, signed and dated 18 April 2023;
2.Airline ticket and itinerary for [Mr A], issued on 19 November 2019, evidencing his travel to Pakistan [in] December 2019.
Consideration of the evidence
The Tribunal accepts the applicant was born on [date] in the town of Sialkot, in the state of Punjab, Pakistan.
The evidence satisfies the Tribunal that the applicant married [Ms B] in [Country 1] [in] February 2009. The Tribunal accepts [Mr I], the father of [Ms B] approved of the marriage.
On 3 April 2023 the applicant’s representative provided to the Tribunal the applicant’s written response to the Tribunal’s invitation to the applicant to attend the hearing of his review application. In the response document the applicant asked the Tribunal to take evidence from [Mr A] in relation to circumstances he witnessed in Pakistan in December 2019. [Mr A] provided a witness statement, and he gave oral evidence to the Tribunal.
The Tribunal accepts the applicant is currently married to [Ms B] and the marriage is ongoing. The Tribunal also accepts the applicant and his wife have two children. Their daughter is [age] years old, and their son is [age] years old.
In response to question 42 in the applicant’s visa application form, the applicant states his daughter was born in Sialkot, Pakistan on [date], and his son was born in Sialkot, Pakistan on [date].
According to the applicant’s statement dated 13 April 2023, he speaks to his wife and children every day and sometimes several times a day using either one of two communication applications: ‘Viber’ or ‘WhatsApp’. The applicant’s wife did not provide a written statement to the Department of Home Affairs as part of the applicant’s visa application, or to the Tribunal. She did not give oral evidence to the Tribunal.
It is evident the applicant’s wife would be a material witness to the relationship with the applicant, and the applicant’s relationship with her father and her brothers. Without explanation, the applicant did not avail himself of the opportunity he was afforded in the Tribunal’s invitation to attend the hearing, to request the Tribunal take oral evidence from his wife. It is his legal right to make that decision.
According to the applicant’s written application and his evidence, his wife was a firsthand witness to her brother’s animosity towards him and their attempt to kill him shortly before he fled from Pakistan. On the applicant’s case she would also have been aware of the circumstances motivating her brothers to kill him.
In essence, the applicant claims his wife’s brothers will kill him if he is removed to Pakistan, now or in the reasonably foreseeable future.
The applicant asserted in his visa application and evidence, that he left Pakistan with the encouragement of his wife, to escape from her brothers because they feared her brothers would kill him, or otherwise cause him serious or significant harm, if he remained in Pakistan.
According to the visa application forms the applicant submitted to the Department, his wife’s brothers will murder him because they did not accept his ‘love marriage’[5] to their sister.
[5] Department file, Application for a protection visa, Q89
According to the applicant’s evidence, prior to the marriage his wife’s father consented to the marriage. Irrespective of the applicant’s father-in-law consenting to his daughter marrying the applicant, his sons refused to accept the relationship, and, according to the applicant, due to the marriage they will kill him if he returns to Pakistan.
According to the applicant, a love marriage is not acceptable in Pakistan,[6] however, his love marriage was successful because it was not in Pakistan.[7]
[6] ibid Q89
[7] ibid Q89
According to the applicant, he tried his best to solve the problem with his brothers-in-law. They gave him only one solution: divorce their sister or they will kill him.[8]
[8] ibid Q89
The applicant contended in his visa application that the essential reason his brothers-in-law want to kill him is they disapprove of the ‘love relationship’ their sister and the applicant established together. The applicant stated his contention in these words:
In this modern world in Pakistan still no fashion of love marriage. We was successful to do love marriage because we was not in Pakistan but we came back to Pakistan in 2010 and started living in Karachi. My brothers in law never accepted our relationship.[9]
[9] ibid Q89
At hearing the applicant said he would be killed by his brothers-in-law, and they would have to justify killing him to the ‘people’. Their justification will be the killing was an ‘honour killing’ due to the applicant taking their sister. In the context of this evidence the Tribunal informed the applicant of a difficulty it had in accepting this evidence.
In essence the Tribunal informed the applicant his evidence was that his wife’s father, as head of the house, approved of the wedding and endorsed it as proper. In that circumstance it was difficult to accept that his sons, the applicant’s brothers-in-law, would regard an ‘honour killing’ of him as something they would want to do. The Tribunal invited the applicant to comment. The applicant responded that if his bothers-in-law had the opportunity they would also kill their father, even though he is [age] years old, and for that reason, he is not going to return to Pakistan.
In evidence the applicant told the Tribunal that no one had told him that his brothers-in-law will kill their father. It is his own thinking based on their behaviour and what kind of animals they are. The applicant then agreed that this was not something his father-in-law, or anybody else said to him. The applicant then asserted that his father-in-law told him he is ‘scared of them’. The applicant’s evidence on this matter impressed the Tribunal as being contrived and unconvincing.
Having considered the applicant’s evidence and the information in the DFAT Country Information Report – Pakistan – January 2022 (Report) and the country information the applicant’s representative provided to the Tribunal relating to the prevalence of ‘honour killings’ in Pakistan, the Tribunal accepts that ‘honour killings’ occur throughout Pakistan. They are targeted killings, not random killings. They occur despite relatively recent Federal laws that criminalise honour killings. Both men and women can fall victim to honour killings irrespective of the lapse of time between the perceived offence to family honour and the killing: [3.91]-[3.96].
The Report states that so-called ‘honour killings’ in which family members murder relatives who are perceived to have brought dishonour on the family are common in Pakistan: [3.96]. Honour killings are carried out in response to behaviour including refusing an arranged marriage and forming an unapproved romantic attachment; most victims are female: [3.96].
The applicant’s assertion that his brothers-in-law would justify to ‘the people’ that killing the applicant was an ‘honour killing’ seems implausible, considering that their wealthy father consented to his daughter marrying the applicant; and, with the support of his consent, she freely entered the marriage, and she has two children with the applicant.
The evidence establishes the marriage was based on mutual consent – a marriage for love – to which the head of the house, the wife’s father freely gave his consent. The evidence does not indicate on any reasonable basis that the marriage dishonoured the family.
On balance, the applicant’s evidence, when considered on its own, about his brothers-in-law intention to kill him, and to justify the killing as an ‘honour killing’ caused by the applicant taking their sister, when considered in conjunction with the relevant aspects of the country information provided by the applicant’s representative and the cited Report, impresses the Tribunal as speculative in nature, and unpersuasive. That, however, is not the end of the matter.
According to the evidence at hearing, including the applicant’s statement dated 13 April 2023 (statement) and the record of the delegate’s decision, the applicant contends his brothers-in-law will kill him to protect their inheritance from him.
The applicant also contends in his 2023 statement that his brothers-in-law will ‘want to harm my wife’ because she stands to inherit property from her father and share in his estate which, according to the applicant, is worth about A$5-6 million.
In the protection visa form the applicant lodged with the Department the applicant provided a detailed description of his reasons for leaving Pakistan. In essence the applicant contended he left Pakistan to escape being targeted by his brothers-in-law because he married their sister, and they did not accept the relationship. The Tribunal has considered this contention earlier in the decision: [39]-[53].
The applicant did not claim in his written visa application that a reason he is at risk of being harmed by his brothers-in-law is to prevent him benefiting from their father’s estate. The applicant has not asserted in evidence that he is a named beneficiary in his father-in-law’s will. His claim seems to rest on his wife having a legal right to share in her father’s estate.
The applicant has not supported his assertion that his father-in-law’s estate is worth
A$5-6 million with evidence of facts, matters and circumstances capable of identifying any real property his father-in-law owns, or other evidence reasonably capable of verifying his father-in-law’s asset position. Moreover, the applicant has not provided concrete evidence that is reasonably capable of verifying his assertion that his father-in-law is alive and living in [Country 1].
The Tribunal asked the applicant why he did not claim in his initial application that his brothers-in-law were motivated to kill him to protect their inheritance; that they wanted to prevent him or his wife from inheriting the A$5-6 million. The applicant responded that there were lots of things he found out later.
The Tribunal enquired of the applicant whether he meant he only found out about the inheritance issue after he submitted his application of the protection visa. The applicant agreed, and said he was not aware of that. He then said that when he went for the interview [meaning the Departmental protection visa interview] that was the best opportunity for him to express himself and to inform the Department about whatever he had known, and whatever he had missed, at the interview.
The Tribunal then asked of the applicant if he meant that at the time he submitted his written visa application, he expected to have another opportunity in an interview to say whatever he wanted to say, so he deliberately left information out of his written application. In reply the applicant said ‘No I didn’t do that. I was in a hurry to fill up the application and so I could apply for a visa’. He then said he would inform the Department about whatever they wanted to be informed about.
The applicant seems to explain the fact that he did not claim in his visa application that he feared he would be killed by his brothers-in-law to prevent him from sharing in his wife’s father’s estate, because he was unaware of that matter when he submitted his visa application. Additionally, the applicant also explained the absence of that information from the written visa application on the basis that he was in a hurry to submit his application when he filled in the application forms. And, at that time, he intended to answer whatever questions he was asked in a Departmental interview, which he expected to occur before a decision was made on the merits of his application.
The applicant also explained he did not include relevant information in his visa application because he was in a hurry to apply for a protection visa. In substance, the applicant contends he left information relevant to establishing he is entitled to protection out of his visa application because he was in a hurry to submit his protection claims.
Considering the life and death nature of the claims the applicant included in his written application for protection; the detailed information he put into the application; the gravity of the application and consequences for him if his claims were not accepted by the Department: the Tribunal finds the applicant’s evidence that he left information out of his visa application because he was in a hurry when he ‘filled up’ the application, and because at some time in the future he thought he would be interviewed by the Department, and he would tell the interviewer whatever they wanted to know, to be unpersuasive.
The applicant also gave evidence which the Tribunal understood to mean he did not become aware his brothers-in-law intended to kill him because they did not want him to share in their father’s estate, until after he submitted his visa application to the Department, and before the Departmental interview. The Tribunal asked the applicant when and where he first became aware his brothers-in-law posed a problem for him.
In response the applicant told the Tribunal he first became aware of the problem with his wife’s brothers a few months after the marriage. At that time, he was living in [Country 1]. The brothers-in-law demanded the applicant and their sister divorce each other, and the applicant learnt in this context that his brothers-in-law thought he married their sister ‘because of the money’. The applicant said in evidence he did not think this was a serious matter.
Nevertheless, according to the applicant when his work visa expired and there was no further work available to him in [Country 1], he did not return to Sialkot, his home village in Pakistan. A friend had warned him his brothers-in-law will kill him. According to the applicant his wife confirmed this information through enquiries she made of her relatives in Pakistan. The applicant said in evidence he regarded these threats as serious; his brothers-in-law live in Sialkot, and they operate a business there.
Because of the threat to his life posed by his wife’s brothers, the applicant asserts he relocated from [Country 1] with his family to Karachi in 2012, instead of returning to Sialkot. According to the evidence, the applicant feared his wife’s brothers posed a risk to his life which he regarded as a serious risk, before he left [Country 1] and, for that reason, relocated to Karachi instead of Sialkot.
According to the applicant, he survived two attempts on his life and lived in fear of his wife’s brothers until he left Pakistan [in] December 2016. The first attempt occurred in Karachi and the second attempt occurred in Sialkot on 16 July 2016. The applicant attributes both attempts to murder him to his wife’s brothers.
Having learnt in [Country 1] that his wife’s brothers believed he married their sister for money; that they intended to kill him; and that they attempted to kill him in Karachi and later in Sialkot, in the opinion of the Tribunal it is reasonably unlikely the applicant would not have concluded his wife’s brothers were seriously motivated, at least in part, to kill him to prevent him from benefiting from their father’s wealth, prior to submitting his application for a protection visa.
The Tribunal finds the applicant’s explanations for not advancing in his written application for a protection visa, his claim that his wife’s brothers were motivated to kill him to prevent him from benefiting from their wealthy father’s estate, to be unpersuasive.
The applicant contends he moved from [Country 1] with his wife to Karachi in 2010, and they resided there until 2015, because they were afraid to return to Sialkot. They feared the applicant’s life would have been in greater jeopardy from his wife’s brothers in Sialkot; at that time to the present time, they are said to be influential in Sialkot. They reside in the village and operate a business there, and according to the applicant, they can corruptly control local police.
The applicant’s evidence that he lived with his family in Karachi is unconfirmed by concrete supporting evidence, such as documentary evidence or evidence from his wife.
There is evidence before the Tribunal which is inconsistent with the applicant’s evidence about living in Karachi between 2010 and 2015, and at the end of that period in 2015 he relocated with his family from Karachi to Sialkot.
In answer to a question in the visa application form the applicant submitted to the Department, the applicant provided a history of the addresses where he lived in the 30 years preceding his protection visa application.[10]
[10] Department file, Application for a protection visa, Q81, folio 30.
According to that record, after the applicant left [Country 1] in March 2010, he continuously resided in Karachi at various addresses from March 2010 until August 2012. In December 2012 until December 2016, he resided in various addresses in Sialkot. During the period 23 September 2014 to 30 September 2014, the applicant visited [Country 2] for business reasons.[11] The visa application form does not disclose where the applicant resided between August 2012 and December 2012.
[11] ibid folio 31.
The applicant’s written history of his pervious residential address, namely that he resided in Karachi between March 2010 and August 2012, is inconsistent with the applicant’s oral evidence that he resided in Karachi between 2010 and 2015, prior to relocating with his wife and children to Sialkot in 2015.
In Part B of Form 866 of the application for a protection visa, the applicant was asked to provide information about the composition of his family.[12] The applicant stated his daughter [Child C] was born on [date], and her place of birth was Sialkot, Pakistan. The applicant also stated his son [Child D] was born on [date], and his place of birth was Sialkot, Pakistan.
[12] ibid folios 17-6.
According to the applicant’s statement dated 13 April 2023, the applicant and his wife relocated to Karachi in 2010 because his brothers-in-law did not accept their marriage, and that both the applicant and his wife thought it would not be safe for them to return to Sialkot: [19]. This paragraph is consistent with other evidence, where the applicant has asserted his wife was also at risk of being harmed by her brothers because she would inherit property from her father’s estate.[13]
[13] For example, see Tribunal file, applicant’s statement dated 13 April 2023 [14].
According to the applicant’s evidence and his statement (13 April 2023), after living in Karachi for five years, in 2015 he and his wife decided it was safe for them to return to Sialkot. His wife persuaded him that she ‘did not think’ [her brothers] ‘had any concerns about [their] marriage [and] wanted to harm [him]’: [21].
On balance, the Tribunal considers the applicant’s evidence about living in Karachi between 2010 and 2015 with his wife, and that during that period they both believed it would be unsafe for them to return to Sialkot, to be materially inconsistent with the applicant’s statement that their first child was born in Sialkot [on date], after they commenced residing in Karachi in March 2010,[14] and their second child was born in Sialkot [on date].
[14] Department file, visa application, folio 30.
The evidence weighs against accepting the applicant and his wife feared it was not safe for them to return to Sialkot after the applicant’s [Country 1] work visa expired in 2010; and, that they relocated to Karachi in 2010 and resided there with their children rather than in Sialkot between 2010 to 2015, fearing it would be unsafe to live in Sialkot.
The applicant asserts he narrowly avoided being killed in Karachi sometime in 2012. The applicant claims he experienced a ‘murderous attack’ on himself in Karachi when a person driving a motor vehicle attempted to run over him.[15] The applicant did not report this event to the police for various reasons, including he wanted to hide himself,[16] and he did not think the police would protect him.[17]
[15] Department file, visa application, Q89. The applicant also gave evidence at hearing about his claim.
[16] ibid, visa application Q89.
[17] Tribunal file, applicant’s statement 13 April 2023 [20].

At hearing the applicant provided a more detailed description of the motor vehicle incident. The applicant asserts he was walking along the side of a road in Karachi; other pedestrians were doing the same thing: there were no footpaths, hence pedestrians were obliged to walk on the side of the road that suited them. The applicant said on the occasion in issue when he was walking along the edge of the road, he looked back more than once and saw the same car behind him. He said it was following him. He said the car unsuccessfully attempted to run into him. He avoided the car by quickly moving to the side in the direction of a wall. The car stopped ahead of him. The applicant does not know what the driver did after stopping the car because he ran away from the area. The occupant(s) of the car did not pursue the applicant.
According to the applicant’s oral evidence, he does not allege that any of his wife’s brothers were in the car. Nevertheless, he holds his wife’s brothers responsible for the incident because he believed the driver attempted to kill him; his wife’s brothers wanted to kill him; therefore, he attributes the incident to his wife’s brothers. The existence of this alleged attempt to murder him in Karachi is unsupported by concrete evidence.
The Tribunal is not persuaded of the applicant’s conclusion that the motor vehicle incident, if it occurred, was an attempt on his life by his wife’s brothers. The applicant’s attribution of this incident to his wife’s brothers, and his evidence that it was an attempt to murder him, impresses the Tribunal as amounting to no more than speculation.
The Tribunal accepts the motor vehicle incident occurred in Karachi at some unspecified time in 2012. Nevertheless, the evidence of this incident considered alone and in combination with the other evidence about where the applicant resided with his children between 2010 and 2015, is insufficient to persuade the Tribunal that the applicant resided in Karachi with his wife and children between 2010 and 2015, before relocating to Sialkot.
The applicant asserts he relocated from Karachi to Sialkot with his wife and children in 2015 because his wife thought it had been a long time and everything will be fine;[18] and, she did not think her brothers were concerned about their marriage or wanted to harm him.[19] In oral evidence the applicant said nothing happened in Karachi after 2012. There is no evidence that the applicant’s wife spoke to her father or attempted to speak directly to her brothers to find out if it would be safe to return to Sialkot.
[18] Department file, visa application, Q89.
[19] ibid [21].
In the context of the Tribunal questioning the decision to return to Sialkot after the applicant was told his wife’s brothers were going to kill him, and his belief they attempted to run him down with a motor vehicle in Karachi, the applicant said the motor vehicle incident happened in 2012 and nothing happened after that. The applicant also suggested that maybe his wife spoke to her cousins or other relatives. The applicant did not name the relatives that his wife may have contacted to enquire whether his life would be at risk from her brothers in Sialkot.
The applicant’s evidence about his wife’s communication with her unnamed cousins and being told whether it may be safe to return to Sialkot, impressed the Tribunal as speculative in nature and unconvincing.
The Tribunal was unable to satisfactorily reconcile the applicant’s reasons for relocating from Karachi to his home village, Sialkot, with his reasons for relocating in 2010 from [Country 1] to Karachi instead of Sialkot.
In [Country 1] the applicant learnt his wife’s brothers did not approve of their relationship. They believed he married their sister for money reasons. He claims he did not take the matter seriously. Nevertheless, his concerns about the risks of harm he faced were sufficient to deter him from relocating from [Country 1] to his hometown, Sialkot.
According to the applicant’s evidence in Karachi he was warned his wife’s brothers intended to kill him. He took the threats seriously. He was informed by a friend that he will be killed by his wife’s brothers. His wife confirmed these threats through her relatives. The applicant claims his wife’s brothers almost succeeded in murdering him, when a motor vehicle was driven at him in Karachi.
According to the applicant’s evidence, this attempt on his life so frightened him that he thought it was best to hide and not report the incident to police.[20] The applicant also said he did not think the police could protect him.[21]
[20] Department file, Protection visa application, Q89.
[21] Tribunal file, applicant’s statement dated 13 April 2023 [20].
If the applicant genuinely feared the car incident was an attempt by his wife’s brothers to murder him; he was so frightened by the car incident that he wanted to hide himself rather than report the attempt on his life to police; and, that he thought the police could not or would not protect him from the wife’s brothers, it seems to the Tribunal to be reasonably unlikely that the applicant would accept in those circumstances that it would be safe to relocate to Sialkot, the place where the persons who bore him ill will, with enmity towards him and who according to the applicant, tried to murder him in Karachi in 2012, resided and were well established.
Nevertheless, the essential reasons that, according to the applicant, motivated his wife’s brothers to kill him as a matter of honour, and to prevent him from accessing their father’s wealth, remained unchanged at the time he said he relocated from Karachi to Sialkot. He had not divorced their sister; he stood to share in her father’s wealth; and the entrenched culture of ‘honour killing’ in Pakistan, despite the Federal government specifically criminalising ‘honour killings,’ continued in large measure unabated in Pakistan. The applicant also posited in evidence that his wife’s life was at risk because her brothers did not want her to share in their father’s estate.
On balance, the Tribunal finds the evidence the applicant relies on to explain his decision to relocate from Karachi to Sialkot in 2015, assuming without accepting that the applicant resided in Karachi between 2010 and 2015, to be unpersuasive.
The applicant asserts that on 16 July 2016, his brothers-in-law attempted to kill him in Sialkot.
At hearing, according to the applicant’s account of his circumstances in Sialkot, he resided there since 2015. He sold his father’s house and invested the proceeds of the sale in a business that supplied [product]. The applicant invested in the business in partnership with another person. As the Tribunal understands the applicant’s evidence, he worked in the business with his business partner. The business partner was responsible for most of the day-to-day operations of the business. The business operated from a fixed address in Sialkot. The applicant, in his private life, had a rented house. He was living there with his wife and children when, according to his evidence, his wife’s brothers attempted to shoot him to death. His children were absent from the house with their private tutor when the incident occurred.

100. The applicant described the shooting incident on 16 July in his written visa application as an attempt on his life that was almost successful. His wife’s brothers fired bullets at him in his home. The applicant and his wife decided the attempt on his life by his wife’s brothers to be so serious, that, for reasons of personal safety, they should live apart temporarily.
101. The applicant supported his contention that his brothers-in-law attempted to murder him on 16 July 2016 with a written copy of an FIR. The FIR is dated 16 July 2016.
102. According to information on the English language version of the FIR, the original copy of the document was translated into English in Pakistan by a notary public. A copy of a document said to be a copy of the original FIR, and the English translation of that document have been retained in the Department file: folios 51-49.
103. According to the applicant, he attended at the police station in Sialkot where the FIR was written in his presence. The police officer to whom he made the report provided him with the copy of the report. The applicant stated in evidence that the FIR is a genuine document. The Tribunal will return to the FIR later in this decision.
104. At hearing the applicant said he was at home with his wife having tea on 16 July 2016. They were seated opposite the door of the house. The door had a pre-existing malfunction. To fully open the door, it had to be pushed hard because the bottom of the door scraped on the floor. At that time, a group of four or five men attacked the house. They pushed the door open halfway, then it stuck on the floor. According to the applicant the assailants fired on him. Their bullets missed him by a few inches. The assailants entered the house. The applicant and his wife ran from the room to a storeroom inside the house. The room had a metal door which prevented the attackers from getting to the applicant and his wife. The applicant had a phone with him, and he phoned the police. They took a long time to arrive by which time the assailants had fled.
105. The applicant said his wife told him she recognised the voice of one of the attackers as the voice of one of her brothers.
106. The Tribunal took the applicant to paragraph 22 of his written statement of 13 April 2023. The Tribunal put to the applicant that he said in evidence that he called the police when he was in the storeroom, whereas according to his statement, he did not call the police when he was in the storeroom. The applicant in effect confirmed the contents of his statement. He said that he made a noise to scare off the assailants and called the police later.
107. The applicant said in evidence that he saw only one person with a gun. In this regard the Tribunal took the applicant to the FIR he provided to the Department. The Tribunal reminded the applicant that according to the FIR he told the police that his brothers-in-law, [Mr J] and [Mr K], were armed with firearms, and along with two or three unknown armed accused entered the house and started ‘straight firing upon us’. Whereas in evidence to the Tribunal he said he saw only one person with a gun who fired at him. The Tribunal asked the applicant how he accounted for the discrepancy.
108. The applicant said that when he made the FIR he had to ‘put all of them because I’m scared from all of them’. The Tribunal then queried whether the applicant gave false information to the police. The applicant said the information was not false because he saw one person and his wife heard it and told him as well. There were four or five people as well so probably there was another brother-in-law there too.
109. There are material differences between the applicant’s description of the attempt to kill him that is recorded in the FIR, and the description of the same event he gave at the hearing.
110. In the FIR the applicant unequivocally identified two of his wife’s brothers, [Mr J] and [Mr K] as two of the group of people who entered his home and attempted to murder him. According to the FIR, the brothers were armed with firearms and accompanied by two or three unknown armed persons. The attackers opened the outer door and entered his home when the applicant and his wife were having a meal. The attackers opened fire. They fired directly at the applicant and his wife. The applicant and his wife were unharmed. They went to a storeroom where they locked themselves inside, called the police and they attended the house.
111. In his evidence at hearing the applicant described the attackers trying to push open the outer door. It got stuck halfway. As that was happening the applicant and his wife were sitting opposite the door drinking tea. There were four or five attackers. He saw one with a gun. The applicant and his wife were fired upon. The bullets narrowly missed him. The applicant and his wife were able to leave the room and shelter in a storeroom. They were safe there because the room had a metal door. The applicant said in evidence that during the attack his wife recognised the voice of one of her brothers. It is unclear just when the applicant says his wife made this comment to him.
112. The Tribunal regards differences in the applicant’s accounts of the 2016 home invasion and attempt to murder him to be material differences. The differences between the account as recorded in the FIR and the description of the same event in the applicant’s evidence at hearing are related to key descriptors of what occurred.
113. In describing a shooting incident in his written statement, made a short time prior to the hearing, the applicant said his brothers-in-law attempted to kill him. They fired shots at him. He escaped unharmed. He hid with his wife in the storeroom where he pretended to call the police. He did not explain in evidence why he would pretend to call the police instead of calling them. Common sense suggests, calling the police when he was in the storeroom may serve to frighten his wife’s brothers as effectively as pretending to call them. The applicant says his brothers-in-law left the property: (see [22] of the statement).
114. In the account of the shooting the applicant gave in his 2023 statement [22], he says the attempt to murder him in his home was perpetrated by his brothers-in-law. They fired shots at him. He escaped with his wife to a storeroom. The applicant makes no mention in his statement of the presence of several armed attackers, in addition to his brothers-in-law, participating in the attempt to murder him.
115. A comparison of the descriptions of the attack the applicant gave in his statement, evidence at hearing and the FIR amount to materially different accounts of the same incident. The evidence before the Tribunal does not satisfactorily explain the existence of these discrepancies. The Tribunal finds the discrepancies between the applicant’s various descriptions of the attack weigh against accepting the applicant to be an accurate and reliable witness and that the attack occurred.
116. In each of the three descriptions of the attempt to murder him, the attack was a surprise attack. According to the evidence at hearing and the FIR the applicant and his wife were drinking tea together or having a meal. They were directly fired upon by either four or five shooters or one shooter. They were uninjured. Nevertheless, they were able to leave the room, go to a storeroom, enter it, close the door, and hide in that room safely until the attackers left, because the applicant led them to believe he had telephoned the police. There is no evidence of the attackers attempting to physically assault or otherwise overpower the applicant or his wife to prevent either one of them from leaving the room.
117. The applicant consistently portrayed the attack as a purposeful surprise attack designed by his wife’s brothers to shoot him to death. In considering individually each of the applicant’s various descriptions of the surprise attack, in conjunction with the intended purpose of the attack, the Tribunal is of the view that it is reasonably unlikely both the applicant and his wife would have been uninjured by a volley of bullets fired at them while they were seated opposite the doorway, and that they were then able to leave the room and go to another room uninjured and unmolested by the attackers, if the attack described by the applicant actually occurred.
118. In evidence the applicant asserted that he could not obtain police protection from his wife’s brothers because they had bribed the police not to intervene and assist the applicant against them. The Tribunal enquired into the applicant’s reasons for this opinion.
119. According to the applicant, official corruption including police corruption is a problem in Pakistan. This evidence is consistent with the 2022 DFAT report and the Tribunal regards the applicant’s evidence in this regard to be credible.
120. The applicant explained in evidence that when he attended the police station to make an FIR the police officer told him his brothers-in-law had bribed them not assist him against them, and the police will not assist him against his brothers-in-law.
121. The Tribunal put to the applicant that it had difficulty accepting as realistic, that while he was reporting an attempted murder involving multiple people invading his home, the police officer taking the FIR would tell him that the police had been bribed not to assist him in his dispute with his brothers-in-law. In response the applicant changed his evidence.
122. He said he did not say the police said they had been bribed or bought off. He contended that he inferred the police had been bribed by his wife’s brothers because bribery often happens in Pakistan. Additionally, the police did not want to write an FIR; they made him wait for five or six hours; they had no choice but to write the report because news of the shooting was spreading; and after the FIR was written the police made zero progress. According to the applicant, when an FIR is made there must be an arrest.
123. The Tribunal finds the applicant’s change in his evidence from saying repeatedly that the police told him his wife’s brothers bribed them not to assist, to saying he inferred from the failure of the police to progress the investigation and make arrests, and the other surrounding circumstances he described, that his wife’s brothers had bribed the police, to be a material inconsistency in the applicant’s evidence.
124. The contradictory nature of this evidence weighs against accepting as reliable the applicant’s evidence that the police had been bribed to take no action against the named perpetrators of the shooting, his wife’s brothers, and to deny him police protection. Additionally, the contradictory nature of the applicant’s evidence in relation to police protection weighs against accepting the applicant to be an accurate and reliable witness.
125. The Tribunal referred the applicant to the 2022 DFAT report that states document fraud is widespread in Pakistan. The report also states that DFAT does not consider the existence of an FIR as conclusive evidence that the events in the FIR occurred: [5.54]. The Tribunal put to the applicant its concern that the FIR is not a genuine document. The applicant said the FIR document was written in front of him and it is genuine.
126. The Tribunal has considered the form of the copy of the original FIR that the applicant provided to the Department. It appears to be a standard form document. The relevant information it contains appears to have been written into the document by hand. It presents as a simple document without security features. According to the DFAT report, FIR documents are relatively easy to counterfeit: [5.54].
127. Having considered the form of the copy FIR; the cited country information about the availability of fraudulent documents in Pakistan, including fraudulent FIRs; the applicant’s evidence that the FIR is genuine; the applicant’s evidence about the circumstances in which he asserts the police wrote the FIR, on balance, the evidence and country information considered together, is insufficient to establish to the satisfaction of the Tribunal that the FIR is a genuine document.
128. On balance, the evidence considered in conjunction with the relevant country information before the Tribunal, is insufficient to establish to the satisfaction of the Tribunal that the FIR document is genuine; that it is evidence of the truth of its contents; that the applicant reported the alleged attempted murder to the police; and, that the alleged attempt on his life in Karachi occurred.
129. At the request of the applicant the Tribunal heard evidence from [Mr A]. The witness said in his statement dated 18 April 2023 that he is a social worker. He stated that his association with the applicant developed from a landlord-tenant relationship into friendship and a sense of brotherhood, because the applicant and himself are both from Sialkot.

130. According to [Mr A]’s statement he travelled to Pakistan [in] December 2019. During the visit he met with one of the applicant’s brothers-in-law.
131. Having considered the copy of the applicant’s airline ticket and travel information, the Tribunal is satisfied [Mr A] travelled to Pakistan [in] December 2019.
132. According to [Mr A]’s statement, in Melbourne he noticed the applicant appeared to be feeling sad and unhappy. This led to conversations between the applicant and [Mr A] in which the applicant told him his story. The statement does not specify the details of what the applicant told him were the reasons for him feeling sad and unhappy.
133. [Mr A] stated that once he heard the applicant’s story, he ‘understood and offered to see if I can be of any help’: [Mr A]’s statement, [4].
134. According to [Mr A]’s statement, at some unspecified time [after] December 2019, when he was in Pakistan, the applicant told him to contact [Mr L] because he knew the people who were threatening him. [Mr L] took [Mr A] to the home of people who were threatening the applicant. The home was situated in [location], Sialkot. At that address [Mr L] met [Mr J], [the applicant]’s brother-in-law. [Mr J]’s home left [Mr A] with the impression that [Mr J] is wealthy.
135. [Mr A] states that he told [Mr J] that the applicant was distressed about being away from his family and children for such a long period. [Mr J] became aggressive and abusive towards [Mr A] and had no interest in listening to him. He told [Mr A] that ‘they’ will not spare [the applicant], and their attitude will not change. According to the statement, [Mr A] asserts that [Mr J] admitted to him, that given the opportunity, ‘they’ will try again to murder [the applicant].
136. According to the statement [Mr A] offered to mediate between ‘them’ and [the applicant] but ‘they’ were not interested. [Mr A] left the meeting. He opines that because of what occurred at the meeting he knows [the applicant]’s life is in danger.
137. The Tribunal enquired of [Mr A] how it came to pass that he met [Mr L]. The witness said [Mr L] telephoned him without warning because he is [the applicant’s] friend. [Mr A] was not expecting the telephone call. He did not visit Pakistan for that purpose, he was there for a family visit.
138. The witness elaborated. He said that [Mr L] would normally send stuff through to me because we live in the same city. Sometimes he brings stuff from Pakistan’. He said he knew [Mr L]. Sometimes he gives [Mr L] some ‘stuff’ for him to deliver to his family as well.
139. The Tribunal then suggested to the applicant that he knew [Mr L] before he visited Pakistan in December 2019. The witness responded, ‘not very well’. The Tribunal then said to the witness that he was asked whether he knew [Mr L]: the witness responded ‘No’.
140. The Tribunal then addressed the witness to the apparent contradiction in his evidence. The Tribunal asked the witness what the truth of the matter was: that he knew [Mr L] but not well, or he didn’t know him. The witness said, ‘before when he called me, I did not know him. That’s true’. He also said 2019 was not his first visit to Pakistan. He visits Pakistan and [Mr L] sends him stuff. ‘After that I know him’.
141. In substance the witness told the Tribunal that before he established his business relationship with [Mr L], he did not know him. He also said he was not sure what the Tribunal asked him. He meant to say he was not friends with [Mr L]. He did not know much about him. In response to further questions directed to whether the witness knew [Mr L] before the phone call, the witness said that before receiving the phone call, he ‘did not know him at all’.
142. As the Tribunal understands [Mr A]’s oral evidence, [Mr L] telephoned him in Pakistan. He was not expecting the telephone call; it came as a surprise to him. [Mr L] called him out of his friendship with [the applicant]. Initially in evidence [Mr A]’s position was he knew [Mr L] before he received the phone call, and they had a pre-existing trading relationship with each other. [Mr L] sent goods to [Mr A] who imported goods from Pakistan. This happened as part of a reciprocal arrangement. [Mr A] supplied goods to [Mr L] to deliver to his family. Through this trading relationship he knew [Mr L] before he visited Pakistan in December 2019, but in the words of the witness he did not know him ‘very well’.
143. In testing the reliability of [Mr A]’s evidence, the Tribunal put to the witness that he was asked ‘did you know him [Mr L]’. The witness answered ‘no’. The Tribunal then drew [Mr A]’s attention to the obvious contradiction in his evidence and asked him what was the truth of the matter: before the phone call, he did not know him [Mr L] well or he did not know him at all?
144. The applicant responded that before [Mr L] called him he did not know him. The 2019 visit was not his first visit to Pakistan. He would go there, and [Mr L] would send ‘stuff’ to him. After that relationship was established, he knew [Mr L]. Before that relationship was established, he did not know [Mr L]. He was not sure what he was asked. He meant by his answer that he was not friends with [Mr L]; he did not know much about him.
145. In this evidence [Mr A]’s position was he had a business relationship with [Mr L] that was established before he visited Pakistan in 2019, but they were not personal friends.
146. The Tribunal then suggested to the witness that he knew [Mr L], but they were not friends, and asked the witness to confirm whether this was a correct understanding of his evidence. [Mr A] referred to a time before 2019. The Tribunal clarified with the witness that the question was directed to the time of the phone call. According to [Mr A]’s response, prior to receiving the unexpected phone call from [Mr L] he ‘did not know him [Mr L] at all’.
147. There is a material difference between the witness not knowing [Mr L]; not knowing him very well, and not knowing him at all before he unexpectedly received the telephone call from [Mr L].
148. The Tribunal finds [Mr A]’s evidence about whether he knew [Mr L] before he was surprised by his unexpected telephone call during his December 2019 visit to Pakistan, to be materially inconsistent and contradictory.
149. This contradiction has not been satisfactorily explained. The nature of the pre-existing relationship between [Mr A] and [Mr L] is not satisfactorily reconciled by [Mr A]’s evidence that he when he said he did not know [Mr L] ‘very well’ he meant he was not friends with him; he did not know much about him.
150. Evidence of the pre-existing business relationship between [Mr L] and [Mr A] contradicts [Mr A]’s evidence that he did not know [Mr L] at all before [Mr L] telephoned him during the 2019 visit.
151. The Tribunal asked [Mr A] to give specific evidence about what [Mr L] said to him in the phone call. According to the evidence, they greeted each other in the traditional way. Then [Mr L] enquired about how he was going and when he had arrived in Pakistan.
152. [Mr L] then enquired about the applicant by name and asked how he is going and about his health. The witness explained that the applicant was upset because he was away from his family. [Mr L] said the applicant is a good friend of his. The witness and [Mr L] spoke about their mutual concerns for the applicant and his health. The witness indicated the conversation occurred three years ago and he could not recall exactly what was said. He told the Tribunal that if more information was wanted, he can recall ‘my memory’. The Tribunal sought more information from the witness.
153. [Mr A] explained that later in the telephone conversation with [Mr L] he offered his help. He said he told [Mr L] that he worked for the community in Australia; he was concerned about [the applicant]’s mental health; [the applicant] is upset because he is living away from his family. He said he wanted to try to unite his family if he can. In response [Mr L] said, ‘no problem’. He asked [Mr A] if he was ‘okay to come and meet [Mr J]’. The witness indicated that initially he was a little reluctant to agree, and he did not immediately agree to meet [Mr J]. In a state of uncertainty, he thought about it during the conversation and, ‘because I socially, I’m so active at work. And I thought okay, see if I can help’. After that he asked [Mr L] to organise a meeting.
154. This telephone call was followed by a second phone call. ‘He [Mr L] called me again. Second time’. [Mr L] proposed a time to meet. [Mr A] was available at that time. The arrangements for the meeting were then agreed on.
155. [Mr L] took [Mr A] to meet [Mr J] in his home in Sialkot.
156. At the meeting about two people were in the room in addition to [Mr J]. [Mr A] said that as soon as he mentioned the applicant’s name, [Mr J] became aggressive. He referred to the applicant being married to [Mr J]’s sister and that he is his brother-in-law. [Mr J] said if he sees [the applicant] he will kill him. He also said [the applicant] is married to his sister, and he did not like that. That was the reason he wanted to kill him. [Mr A] decided there was no point in staying in the house, so he left. [Mr A] said there was nothing else important that he can recall.
157. [Mr A] then said, based on the meeting and his knowledge of Sialkot, he is of the opinion the applicant will be killed if he returns to Pakistan.
158. [Mr A] said he told the applicant about the meeting soon after he returned to Australia [in] February 2020, and that he was unable to help him any further. [Mr A] was also concerned about his own security.
159. The witness stood down. Later in the hearing the Tribunal recalled [Mr A] to give further evidence.
160. The Tribunal addressed [Mr A] to what appeared to be material differences between his oral evidence and the contents of his statement.
161. Before returning to [Mr A]’s evidence, it is useful to recall that [Mr A]’s witness statement is signed and dated 18 April 2023. On the same date, at 3:12pm, solicitors acting for the applicant lodged [Mr A]’s statement with the Tribunal. At the foot of the statement [Mr A] states: ‘I believe the contents of this statement are true in every particular’. He made his statement two days before giving his oral evidence to the Tribunal on 20 April 2023.
162. The Tribunal confirmed with the witness that he arrived in Pakistan in December 2019. [Mr A] agreed that he said in evidence that [Mr L] called him, and stated this evidence is correct. The Tribunal then took the witness to paragraph 5 of his statement and read part of it to him:
[In] December 2019, I travelled to Pakistan. When I was there, [the applicant] told me to contact [Mr L] as he knew the people who were threatening [the applicant]. I contacted [Mr L] and he took me to their place in [location] in Sialkot.

163. The Tribunal then asked the witness ‘What’s the correct position’. The witness answered that the second time he contacted [Mr L] and the first time [Mr L] called him. The Tribunal then put to the witness that what he said in evidence was different to what he said in his statement.
164. The Tribunal also reminded the witness that in his statement he said, that [the applicant] instructed him to contact [Mr L] because [Mr L] knows the people who were threatening him and so he contacted him. The witness responded, ‘The second time, when we went for the meeting, because then I had his number’. The Tribunal then put to the witness that his evidence is materially different to what he said in his statement.
165. In evidence before [Mr A] was confronted with the differences between his oral evidence and what he said in his statement, he gave a detailed account of the second phone call. It was not a passing reference. In relation to the second telephone call, he said in evidence that [Mr L] made that telephone call to him and proposed a suitable time for him to meet [Mr J], and asked the applicant whether he was available to meet him at that time.
166. In addressing the discrepancy between his oral evidence and his statement at paragraph [5] [Mr A] contradicted his earlier evidence in which he gave a detailed description of the second telephone call. His evidence was there were two telephone calls and [Mr L] made both calls.
167. The Tribunal put to the witness that there is a material difference between him contacting [Mr L] on instructions from [the applicant], and [Mr L] telephoning him. And that in that telephone call they had a general conversation in which they spoke about their shared concern for the applicant, and he referred to his welfare work in the community in Australia and that he would like to help. Then a meeting was arranged.
168. The essence of the witness’s response to the Tribunal’s concerns about this evidence was that the ‘main point was I was trying to help’. He had said in evidence that first, [Mr L] contacted him and ‘second time I said yes. I’m available this time’. The witness went on to say that it did not make any difference to him whether [Mr L] called him or I called him because it happened three years ago.
169. The Tribunal then explained to the witness that he said at the bottom of his statement: ‘I believe the contents of this statement are true in every particular’. As the Tribunal understands the applicant’s evidence in response, he was given an option to attend the hearing and give evidence, or not. He agreed to attend the hearing if he was going to make any difference. According to his evidence he thought his work is the more important thing. He attended the hearing to help, if his statement could make a difference. Whatever he said in his statement is true.
170. The applicant was present while [Mr A] gave his evidence. After hearing [Mr A]’s evidence, the Tribunal asked the applicant whether he played any part in the meeting between [Mr A] and [Mr J] taking place. The applicant said he asked [Mr A] to have the meeting. He gave [Mr L]’s phone number to [Mr A] and [Mr A]’s phone number to [Mr L]. He also said that [Mr A] wanted to help him, to try for him, but he knew what the result of the proposed meeting would be. Therefore, he was not surprised by the negative report he received form [Mr A] after he returned to Australia.
171. The applicant’s evidence is inconsistent with [Mr A]’s statement where he said that the applicant told him to contact [Mr L] when he was in Pakistan, whereas the applicant said in evidence that [Mr A] told him that he wanted to help him to resolve his troubles. The applicant expected no resolution would result from [Mr A]’s proposal, nevertheless, to assist [Mr A] to carry out his proposal, he gave him [Mr L]’s telephone number, and vice versa.
172. The applicant’s oral evidence is inconsistent with what [Mr A] said in his statement, that the applicant told him to contact [Mr L] as he knew the people who were threatening him: [5].
173. Having considered the whole of [Mr A]’s oral evidence; the contents of his statement; the inconsistencies and contradictions in his evidence; the Tribunal’s doubts about the accuracy and reliability of the applicant as a witness; the Tribunal is not satisfied [Mr A] is an accurate and reliable witness.
174. Furthermore, the evidence is insufficient to satisfy the Tribunal that the meeting between [Mr A] and [Mr J], which is the subject of [Mr A]’s statement and evidence ever took place.
175. The applicant and [Mr A] have given evidence that the applicant is experiencing problems with his mental health. Additionally, the applicant asserts that he is suffering from mental health concerns, diabetes, and that he has lost a significant number of his teeth.
176. According to written submissions advanced on behalf of the applicant he has ‘dental issues.’[22]
[22] Tribunal file, submissions dated 14 April 2013 [60].
177. There is no evidence that establishes [Mr A] is an expert in the diagnosis or treatment of any form of mental illness or disorder. The Tribunal does not accept [Mr A]’s evidence about the applicant suffering from mental illness, to be expert evidence or otherwise reliable evidence, that the applicant suffered from, or that he is suffering from any form of mental illness or disorder.
178. The evidence and submissions provided by the applicant’s legal representative that are predicated on the applicant suffering from certain medical disorders, including diabetes and dental issues[23] are unsupported by expert medical evidence about the applicant’s state of health.
[23] ibid [60].
179. The evidence about the state of the applicant’s mental health is general in nature. It is unsupported by expert medial evidence. Considered individually and in combination with the Tribunal’s views about the unreliability of evidence provided by the applicant and [Mr A], the evidence before the Tribunal is insufficient to establish to the satisfaction of the Tribunal that the applicant is suffering from any mental illness or disorder.
180. The evidence that the applicant is suffering from diabetes, and that he has dental health issues is unsupported by expert evidence or other evidence the Tribunal considers to be persuasive.
181. The evidence relevant to establishing the applicant’s current state of health considered on its own and in combination with the Tribunal’s views about the unreliability and accuracy of the applicant as a witness, is insufficient to establish to the satisfaction of the Tribunal that the applicant is suffering from diabetes, and that he has any dental condition that requires treatment now, or in the reasonably foreseeable future.
Findings
182. Having considered the applicant’s claims individually and cumulatively, the evidence is insufficient to establish to the satisfaction of the Tribunal the existence of a real chance the applicant would be subjected to serious harm as defined in s 5J(5) of the Act, for the reason of his membership of a particular social group, namely persons who would face a real chance of being subjected to an ‘honour killing’, or for any of the other reasons specified in s 5J(1)(a) of the Act, or for any other reason, if he is removed to Pakistan now or in the reasonably foreseeable future. Accordingly, the applicant does not satisfy the criterion in s 36(2)(a) of the Act.

Consequently, the Tribunal is not satisfied the applicant has a well-founded fear of persecution for any of the reasons specified in s 5J(1) of the Act, or for any other reason. Accordingly, the Tribunal is not satisfied the applicant meets the definition of refugee as set out in s 5H of the Act.
Complementary protection

184. The Tribunal now turns to whether the applicant satisfies the criterion in s 36(2)(aa) of the Act.
185. A person will meet that criterion if there are ‘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’.
186. Pursuant to s 36(2A), a person will suffer significant harm if:
(a)they will be arbitrarily deprived of their life; or
(b)the death penalty will be carried out on them; or
(c)they will be subjected to torture; or
(d)they will be subjected to cruel or inhuman treatment or punishment; or
(e)they will be subjected to degrading treatment or punishment.

187. The test for ‘real risk’ is the same as that for the ‘real chance’ test in the refugee criterion in s 36(2)(a): MIAC v SZQRB (2013) 210 FCR 505.
188. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170–1 at [1169], [1180]).

189. In applying the decision in MIAC v SZQRB (2013) 210 FCR 505, [246] [297] [342], the Tribunal accepts the ‘real risk’ test is the same as the ‘real chance’ test in the refugee criterion in the Act. Therefore, for the reasons outlined above, the Tribunal is not satisfied that, as a necessary and foreseeable consequence of the applicant being removed to Pakistan now or in the reasonably foreseeable future, there is a real risk the applicant will suffer significant harm as defined in s 36(2A) of the Act. Accordingly, the Tribunal is not satisfied that the applicant meets the criterion in s 36(2)(aa) of the Act.

In summary, for the reasons given above, the applicant does not satisfy the criteria set out in s 36(2)(a) or s 36(2)(aa) of the Act for a protection visa
There is no evidence that indicates the applicant satisfies s 36(2) of the Act based on being a member of the same family unit as a person who satisfies s 36(2)(a) or s 36(2)(aa) of the Act and who holds a protection visa.

192. Accordingly, the applicant does not satisfy any of the criteria in s 36(2) of the Act.
DECISION
193. The Tribunal affirms the decision not to grant the applicant a protection visa.
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 2725

22 May 2023

Key Legal Topics

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Immigration

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Procedural Fairness

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