1807121 (Refugee) - [2024] ARTA 587

1807121 (REFUGEE) [2024] ARTA 587 (28 OCTOBER 2024)
DECISION AND
REASONS FOR DECISION
Representative: Mr George Vassiliou (MARN: 0746634)
Respondent:Minister for Home Affairs

Tribunal Number: 1807121
Tribunal:General Member J Meyer
Date:28 October 2024

Place:Melbourne
Decision:The Tribunal affirms the decision under review.

Statement made on 28 October 2024 at 3:16pm

CATCHWORDS
REFUGEE – Protection Visa – Pakistan – fears harm from the family of the woman he was engaged to – race – Punjabi – religion – Sunni Muslim – caste – Honor Killings - inconsistencies in evidence – not satisfied that the applicant faces a real risk of serious or significant harm – delay in applying for protection in Australia – applicant does not have a well-founded fear of persecution – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 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 14 October 2016. 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 s36(2)(a) or s36(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 (s36(2)(b) and s36(2)(c) of the Migration Act 1958 .
The applicant appeared before the Tribunal on 20 September 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu (Pakistan) and English languages.
The applicant was represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, they are either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or other ‘complementary protection’ grounds, or are a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this case are whether the applicant has a well-founded fear of being persecuted in Pakistan for one or more of the five reasons set out, and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan there is a real risk that he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the matter should be affirmed.
Identity
The applicant’s identity is established as a [age]-year-old male, as evidenced by a Pakistani passport, which was before the Department and the Tribunal confirming identity and nationality.
Mental health
Having noted the applicant’s claims of mental health issues over years, The Tribunal utilised the Tribunal’s guidelines on vulnerable persons creating an open, reassuring and supportive environment to establish a relationship of confidence and trust between the member and the applicant, facilitating full disclosure of sensitive, personal information.
The applicant was given the opportunity to take breaks and speak in his own terms and pace throughout the hearing.
Migration history
The applicant’s migration history as recorded by the department is as follows:
Date   Event details
[Date]/02/2010   Arrived in Australia as holder of TU-572 visa
[Date]//03/2012   Departed
[Date]//05/2012   Last arrival in Australia on a TU-572 visa
20/09/2013   TU-572 visa cancelled
18/06/2014Judicial Review – Federal Court- Applicant appeal
14/05/2015   Judicial Review – Minister win
20/09/2016 Stopped by Victoria Police for driving unaccompanied as learner driver. Also charged with giving false ID and false details. Bailed to appear at [a] Magistrate Court.
21/09/2016 Applicant detained under s189 arrived at immigration detention
26/09/2016 Appears at [a] Magistrates Court
14/10/2016 Applied for a XA-866 Permanent Protection visa
19/10/2016   Released from iImmigration detention
Claims and evidence
The applicant made these claims to the department:
·He came to Australia to study.
·He fears he will be harmed by the family of the woman he was engaged to. She became pregnant and he refused to marry her. He claims her family has threatened to kill him for dishonouring her and her family. Dishonour is a serious crime in Pakistan.
·It is not safe for him to relocate anywhere in Pakistan.
·The authorities are corrupt and cannot protect him.
·The applicant attended a protection visa interview on 13 February 2018 with the assistance of an Urdu interpreter.
·The applicant added the following information:
·When he returned home to Pakistan in March 2012 his father had arranged a marriage for him to a girl called [Ms A].
·He did not want to marry [Ms A] but felt obligated to go through with the engagement due to pressure from his father who was paying for his studies in Australia.
·Their engagement took place at the end of March 2012.
·During this whole period he only saw [Ms A] twice,once at their engagement and one other time at [Ms A]’s place where they were talking for 15 – 20 minutes in the presence of her family.
·When he returned to Australia he called his mother in Pakistan and told her that he did not wish to marry [Ms A].
·His father got very angry and told him “don’t come back” and “if you come back, you are not welcome here” and “you are dead to me.”
·[Ms A]’s brother also called him numerous times and threatened to kill him. The applicant claims he changed his number and has not heard from [Ms A] or her family since.
·He speaks to his mother and brother in Pakistan regularly but not to his father.
·He cannot go back to Pakistan because he has no funds to support himself, his father will not accept him and he doesn’t know where he will stay.
In his application to the department, the applicant claimed in a handwritten statement dated 28 April 2016 (as submitted) :
I [name] making a statement I have a life threat if I go back to Pakistan, I went to Pakistan once to attend my sister wedding and in same time period while I was in Pakistan I engaged to girl from different cast, we date and she goes pregnant. I left Pakistan and come Australia back, during this time I received calls form Pakistan from my ex-fiance and her family. They was angry on me, I talk once and old them I cant continue his relation and they started give me threat, they gona kill me if they see me again – Now I have family and kids here, I don’t wana put my life and my kids partner life in trouble.
In his application the applicant listed his religion as a Sunni Muslim and his ethnic group as Punjabi.
The hearing: 4 September 2023
The applicant returned a response to hearing form which stated that a witness would be Ms [B], his de facto partner.
Also submitted at the hearing was a Family Violence Final Order (Magistrates’ Court of Victoria) dated 2 May 2023 made against the applicant, that he must not commit family violence against the protected persons, being his de facto partner and children.
On 4 September 2023 the applicant appeared before the Tribunal. His partner and children were also present, but did not give evidence.
He told me that he had depression and stress and was not functioning well. The applicant’s representative said that his client had not understood the process, and had reached a high point of depression. The applicant had been to the doctor and his partner told the representative that the applicant was under a lot of stress. He had had periods where he was not functioning well and had a slowdown in his ability to process. He had seen psychologists and psychiatrists before. He was not in a position to answer everything. His capacity did not enable him to answer questions in the view of the representative. The representative said that the psychologists’ and psychiatrists’ reports were being done for both evidentiary purposes and procedural purposes.
The applicant had dealt with the police before and had not had a good experience. He had been detained and told he would be deported. He was assisted by Legal Aid while in immigration detention and he put in a protection application. He had negative experiences post release from immigration detention.
He referred to his handwritten statement dated 28 April 2016, which was handed to me.
The representative has not had the opportunity to make a detailed submission in writing. The departmental file had been sought but it had not yet arrived. The applicant was unassuming and quiet and had not provided a detailed statement.
I advised the applicant that the matter would be further heard at a later date to enable him to submit greater detail about his case. I asked him what professional help he had received for his mental health issues. He said he had no official diagnosis but he had been to a GP. He had been referred to a specialist. The GP said that ongoing mental health issues had affected his physical health which had affected him for seven to eight years.
Noting that it would take time before a specialist opinion could be provided I stated that a considerable amount of time would be granted before the hearing would resume in coming months. The representative said the presence of an intervention order against the applicant spoke volumes about the mental health of the applicant. The representative undertook to obtain expert reports by early 2024. The hearing was adjourned with the advice that the matter would resume at a date to be fixed.
On 5 September 2023, the Tribunal wrote to the applicant indicating that that the Presiding Member had examined whether the applicant’s statement of 28 April 2016 was on the department’s file (in the possession of the Tribunal) and confirmed that it was not. The Tribunal also confirmed that there were no intervention orders on the file. The Tribunal stated that it looked forward to correspondence in due course as to when the psychologist and psychiatrist reports were ready for the Tribunal’s examination and that a new hearing date would be considered at that time.
A number of attempts were made to resume the hearing in 2024, and invitations were sent. The chronology is as follows:
·5 March 2024: Applicant did not appear.
·26 April 2024: The Tribunal writes to applicant stating that it had recently received advice that his nominated representative and authorised recipient Mr George Vassiliou had died. While Mr Vassiliou continued to be recorded as his authorised recipient the Tribunal is required to continue to send all correspondence to Mr Vassiliou's address” unless you advise otherwise in writing” and that “we will also send you copies of all correspondence.”
·16 July 2024: Postponed at applicant request because of health issue.
·22 August 2024: Cancelled by Member due to circumstances beyond his control.
On 20 September 2024 the hearing finally resumed and the applicant appeared in person. He brought and listed no witnesses. He made no additional written submissionand represented himself.
The continuation of the hearing on 20 September 2024
The applicant said that he had been taking time off work for medical reasons. He had experienced bleeding [recently]. The Tribunal arranged that he could stand whenever he needed to deal with his discomfort in the hearing.
He told the Tribunal that he lives alone. Up until two months ago he was living with his family. He had arguments with his partner and children and he is now separated.
He has had no medical help or psychological help, nor had he seen a social worker or psychiatrist or similar.
The applicant said he had been experiencing depression. I asked if he had taken any action about this and he said no. No one had offered help either.
He told the Tribunal that he had previously been engaged to an Australian lady. There were three children.
Noting that the applicant had last been in Pakistan in 2012 I asked if he had any fears if he had to return. He said that he had. He was subjected to an arranged marriage plan and his family had disowned him.
The lady’s family were on negative terms with his family. He will not continue with such a proposal.
Both families have disowned him. Her family will not leave him be. They said that they will not forgive him.
The applicant said that his new family is in Australia. It is not possible to take his family with him. Depression has affected his personal life. It leads to illness. He cannot go back as they will not support him at all.
He has been impacted by the refusal and he cannot move forward.
I asked how he supported himself and he said it was through loans from friends. Early in his stay he had worked. He lost his visa and had to stop work. He later received cash payments for jobs. He last earned an income six to seven months ago.
The lady he was engaged to is called [Ms A]. The family name is [name], and they are in Rawalpindi. Both families are Sunni Muslims. He was in his [age] when the betrothal plan took place. Events took place around his sister’s wedding in 2012. He visited [Ms A]’s house. He heard about the family through family friends.
He did not want an arranged marriage as he was studying and not in that state of mind. I asked if [Ms A] wanted to and he said he did not know.
He met [Ms A] at her family’s house, at the time of his sister’s wedding. The applicant talked to her at that time. He went a second time to the parents’ house and saw her. They later communicated through telephone calls – [Ms A] would call him once he was in Australia.
They spoke about marriage and he said it was a normal discussion about living together. However his heart was not in it. He had refused to be engaged to her one or two times. He was not comfortable talking about personal plans. He could not work out “a way to stop this.”
The Tribunal asked who he told about the end of the engagement. He said he told everyone – his family, [Ms A] and her brother. He did not contact [Ms A]’s parents and he last communicated with these people in 2013.
He had changed his telephone number and they stopped contact as a result. He blocked [Ms A] from his social media.
He said her family had told him “we will not leave you alone.” They threatened his family as well.
Her cannot remember the exact date when this happened. His parents tried to convince him to rethink.
The applicant has siblings in Pakistan currently, but he does not have contact with them. He only talks with his mother, and she knows the situation.
I asked whether [Ms A] might be married right now. He said he did not know. I asked if she could have children and he replied that he did not know.
His mother has mentioned threats. I asked for the details. When he ended the relationship [Ms A]’s family first tried to convince them to change by asking ‘nicely.’ They said it was humiliating for them. When this approach did not work, [Ms A]’s brother came to intimidate them. He assaulted them especially the applicant’s father.
The family went to the police but their plea was not heard. There was a breakdown between the families. They became enemies to each other the applicant said. He became an enemy to both. They have nothing to do with him. He was harassed a million times, every second day, and intimidated. They are a politically powerful family he said.
I asked when the last contact was between [Ms A]’s and his family. He said he did not know. I asked when he last heard about these goings-on, and he said 2019-2020 – there was a brief mention between him and his mother.
The Tribunal noted that this was some four years ago. I asked if the matter had gone away. The applicant said that from his side, it had. But he added that ‘they have not forgiven us’. He knew this because refusal of a proposal is serious disrespect. Living in the same city would lead to this – the family would not be approved and looked upon favourably. People will remember the grievances.
I asked about physical harm occurring to anyone. The applicant said that this had happened to his father and brother. The family came to the home and intimidated the father. His brother was not home at the time. [Ms A]’s father, two brothers and mother came. Her sister and brother-in-law came incessantly. I asked if there were firearms involved and the applicant said he was unsure, but there might have been. He struggled with the precise details he said because of the age of the incident/s. The physical assault was where [Ms A]’s brother struck his father’s face. He was properly attacked.

I asked whether [Ms A] would be considered to be a member of a caste. He said he did not know.
I asked the applicant if he was in a particular caste. He said no.
The Tribunal went on to enquire if he had ever been engaged to anyone else in Pakistan. He said no.
The Tribunal further enquired if he had ever been engaged to anyone else at all. He said he was engaged in Australia, but to another woman.
The Tribunal showed the applicant his handwritten statement dated 28 April 2016 (as submitted). He confirmed that it was written in his hand.
Noting that I was now examining its contents, I asked whether he had ever been engaged to a girl of another caste. He said no.
I asked if he had ever dated someone and got her pregnant in Pakistan. He said no.
He added that this was something that [Ms A] had said to him “that I am pregnant with your child.” I asked whether that was true. He said “we never met in seclusion to this degree”.
I again referred the applicant to his handwritten statement dated 28 April 2016 which reads (in part)
I went to Pakistan once to attend my sister wedding and in same time period while I was in Pakistan I engaged to girl from different cast, we date and she goes pregnant.
I asked why he wrote that she was from a different caste and that she became pregnant when he had in fact ruled this out earlier in the hearing.
The applicant said he was engaged and there was no dating directly – it was in the family’s presence. It was not secret. She said she was pregnant but not to him. However, [Ms A] said this on her phone when he had already come to Australia. She said “I am pregnant to you”. He did not know whether she was trying to put out a false allegation or trying to pressure him.
I pointed out that he had written in his own hand in his statement to the department: he was engaged to someone of a different caste and that she [goes] pregnant. But now he told the Tribunal that he had not dated her, she was not of a different caste and had not become pregnant. I was unclear as to which was true after his changing of this account.
I asked if he wanted a break to think about the issue. He agreed and I gave the applicant a ten-minute break. After the break I gave another copy of the above-mentioned statement back to the applicant for his reference. I asked if his English was of sufficient quality for him to write this statement on his own or if he needed help. He said his English had been sufficient to write this down and he could do so appropriately.
The Tribunal enquired as to whether he had thought about the issue during the break. He said that he could not explain this properly and that “we are of different castes”. They are both Punjabis though. They had only met two to three times, but in family company. He told the Tribunal that he did not communicate properly earlier and he should not have said dating. He said that might be the mistake he made in writing. He did not know correct past, present and future terms and other terms in English. He is agreeing with the statement he provided but he was not able to establish the situation. She told him on the phone later that she was pregnant to him. He is not sure if she is making it up.
I asked if [Ms A] had told him that he had made her pregnant. The applicant said no. He did not know what her motive was. He did not know if she was lying that she was pregnant, but suspected it. It was certainly not with him.
The Tribunal pressed the applicant on the words “we date and she goes pregnant”. He said [Ms A] told him she was pregnant. But I noted that was not how he expressed it in his written statement. The applicant said it was very apparent that he did not use the correct words. He did not appropriately explain what was occurring and what was in his mind. He had no help from anyone.
A question arises from the words “she goes” and whether it is the same as saying “she says.” The applicant said it is.
My further concern was about the topic of castes. He knew what caste was, but had denied that he and [Ms A] were in fact in a caste. He said they were Punjabis but in different castes – [Ms A] was in the Jat caste and he is in the Butt caste. This is not a family group. [Ms A] is in the higher caste.
I expressed puzzlement of why [Ms A]’s family would want her to marry someone in a lower caste, but he could not explain other than to say his father wanted the arrangements. This to the Tribunal’s mind does not explain why [Ms A]’s family consented. Wealth did not appear to be a factor to the applicant’s mind, he said. His family was reasonably wealthy but not to that level. His parents had paid for his education. In all the Tribunal was unsure as to what this evidence could mean or imply and how an inconsistency was resolved.
His student visa in Australia was cancelled for not attending college. He got into the wrong company and had bad friends. His appeal was unsuccessful. In 2016 after a delay he applied for protection. The delay was caused by wanting to fix visa problems and he did not want to go back. The situation deteriorated. He was disturbed and influenced by bad company.
Eventually he was pulled over by traffic police for a “L plates” offence and went into immigration detention. He was unaware that he was unlawful when pulled over. He was told that he had two visa class options after that -partner or protection. He would have applied for a partner visa as he had a proper partner. That is not the case now.
He could not relocate in Pakistan to avoid harm as there was no law and order. People will find out about what he did – news gets out he said. He could get kidnapped or killed in Karachi, for example.
Findings & analysis
The Tribunal has considered the matters raised jointly and individually.
The Tribunal is prepared to accept the age and ethnicity of the applicant. I accept he is a Punjabi.
I accept that he was betrothed with a with a woman called [Ms A].
Breaking promised marriage agreement
The applicant’s claim about the details of his betrothal was evidentially based on little more than his saying so. He was in Pakistan when the betrothal occurred.
The Tribunal had some doubts that there has been such a proposal or arranged engagement, or that it was meaningfully pursued by family. Yet for the purposes of this decision it assumes there was such an agreement, however structured. However, the prospect that there will be anything more than stigma from breaking it is remote. This is for the flowing reasons.
Country information from the Canadian Immigration and Refugee Board states that stigma is the general limit of what would occur in the way of harm:
Speaking generally and without reference to the Pashtun community, the Joint Director indicated that a man who refused to accept an arranged marriage would be placed under great pressure socially and from his family and might have his family ties severed (ibid.). More serious consequences are unusual but would depend on the individual circumstances. [1]
[Pakistan: The situation of men who refuse to participate in arranged marriages set up by their parents Canada: Immigration and Refugee Board of Canada 29 September 2009]
[1] >
The Tribunal has considered the most recent DFAT country report for Pakistan[2] but this has minimal relevant information on these specific matters, in particular for the situation of men.
[2] DFAT Country Information Report Pakistan 25 January 2022:
The import of the marriage agreement is questionable. The Tribunal notes the applicant’s claims that he has been threatened over the matter and his family harmed. While honour killings and similar harm occur and affect some men, I am not prepared to find that the risk is anything more than remote for the applicant. Firstly, the country information tends to place this as being a rare occurrence. When it does occur country information states that the serious harm of being killed is a specific and discrete category as follows:
Male Victims of Honor Killings
In 2004, the number of female honor killing victims in Pakistan was more than twice the amount of male victims. But while the vast majority of honor killing victims worldwide are women, about seven percent are men. Most male victims are killed by the family of the woman alleged to have been conducting an illicit relationship with the man.[3]
[3] Male Asylum Applicants Who Fear Becoming the Victims of ...CUNY Academic Workshttps://academicworks.cuny.edu › cgi › viewcontent by C Steinke · 2013 · Cited by 14 — Caitlin Steinke, Male Asylum Applicants Who Fear Becoming the Victims of Honor Killings: The Case for. Gender Equality, 17 CUNY L. Rev. 233
The applicant was not conducting an ‘illicit’ relationship with the woman involved thus I do not see this caveat applying. From this country information I see minimal support for the existence of the scenario he has put forward.
I further note that the applicant alone makes the claim. While he may fairly have challenges in obtaining additional evidence, the absence of further evidence about his claims in a variety of possible forms does not assist his case. Finally, there has been some passing of a decade since the claimed event, and it is a matter of common knowledge that time passing can reduce the impact of a situation, at least to some extent. While this is a general observation, it is still relevant to the Tribunal’s mind. The claims that he will be killed or harmed by [Ms A]’s family are of a similar complexion and I make my finding in this regard as well that they would not go beyond stigma.
Overall credibility issues and findings on claimed events
Caste
The Tribunal encountered problematic evidence in the hearing which it endeavoured to resolve with the applicant.
I asked whether [Ms A] would be considered to be a member of a caste. The applicant said he did not know.
I asked if the applicant if he was in a particular caste. He said no. The Tribunal showed the applicant his handwritten statement dated 28 April 2016 (as submitted). He confirmed that it was written in his hand. Noting that I was now examining its contents, I asked whether he had ever been engaged to a girl of another caste. He said no.
I asked why he wrote that she was from a different caste when he had in fact ruled this out earlier in the hearing.
The Tribunal pointed out that he had written in his own hand in his statement to the department: he was engaged to someone of a different caste. Yet he told the Tribunal in the hearing that she was not of a different caste. I was unclear as to which was true after his changing of this account.
As noted earlier in this decision, I gave the applicant a ten-minute break. After the break I gave another copy of the above-mentioned statement back to the applicant for his reference. His English had been sufficient to write this down and he could do so appropriately.
He said that he could not explain this properly and that “we are of different castes”. They are both Punjabis though. He knew what caste was, but had denied that he and [Ms A] were in fact in a caste. He said they were Punjabis but in different castes – [Ms A] was in the Jat caste and he is in the Butt caste. This is not a family group. [Ms A] is in the higher caste.
I expressed puzzlement of why [Ms A]’s family would want her to marry someone in a lower caste, but he could not explain other than to say his father wanted the arrangements. This to the Tribunal’s mind does not explain why [Ms A]’s family consented. Wealth did not appear to be a factor to the applicant’s mind, he said. His family was reasonably wealthy but not to that level. His parents had paid for his education. In all the Tribunal was unsure as to what this evidence could mean or imply and how an inconsistency was resolved.
The Tribunal has been unable to resolve the discrepancy about whether he (and [Ms A]) was or was not in a caste. The Tribunal makes no finding as to whether either are or were in a caste. However, the inconsistency is concerning because a fundamental characteristic has been used as a reason for there being feared harm. It was then abandoned only to be claimed once again somewhat later in the hearing. I cannot see a reason why this was done other than trying to make an incorrect claim that caste was an exacerbating factor in claimed harms he faced if returned to Pakistan. The inconsistency and unsuccessful attempt to clear up matters weighs against the credibility of the applicant.
Pregnancy
The applicant in the abovementioned handwritten document wrote that he went to Pakistan to attend his sister’s wedding and he was engaged to girl “and she goes pregnant”.
In the hearing however the applicant said that he had not dated someone and not got her pregnant in Pakistan.

100. He added that this was something that [Ms A] had said to him: “that I am pregnant with your child.” In the hearing however he said they never met in seclusion to this degree.
101. I asked why he wrote that she became pregnant when he had in fact ruled this out earlier in the hearing.
102. The applicant said he was engaged and there was no dating directly – it was in the family’s presence. It was not secret. However [Ms A] said this on her phone when he had already come to Australia. She said “I am pregnant to you”. He did not know whether she was trying to put out a false allegation or trying to pressure him.
103. Later in the hearing though it was established that the applicant had no way of knowing as to whether she was pregnant at all. The applicant said it was very apparent that he did not use the correct words. He did not appropriately explain what was occurring and what was in his mind. He had no help from anyone.
104. The Tribunal is unable to make a finding as to whether [Ms A] ever was pregnant and if so to whom. The Tribunal is puzzled by the applicant’s evidence here. He has in his written statement indicated that she was in fact pregnant. But later he has admitted that he does not know if she was or was not pregnant. The motive for writing this appears to be to strengthen a case, rather than inform the department of what he actually knew.
105. The inconsistency is concerning because a significant claim has been used as a reason for there being feared harm. It was then significantly modified in the hearing. I cannot see a reason why this was done other than trying to make an incorrect claim that pregnancy was an exacerbating factor in claimed harms he faced if returned to Pakistan. Once again, the inconsistency and unsuccessful attempt to clear up matters weighs against the credibility of the applicant.
Delay in applying for protection
106. The Tribunal notes that the applicant’s last arrival in Australia was under a student visa in May 2012. His application for a protection visa was made in October 2016, more than four years later and some years after the threats and alleged harm took place, or began to occur.
107. When asked to explain the delay, the applicant said his student visa in Australia was cancelled for not attending college. He got into the wrong company and had bad friends. His earlier appeal was unsuccessful. In 2016 after a delay he applied for protection. The delay was caused by wanting to fix visa problems and he did not want to go back. The situation deteriorated. He was disturbed and influenced by bad company.
108. The Tribunal is unsatisfied with the explanation. The applicant was unlawful for a considerable period. It is difficult to avoid the conclusion that he pursued the protection visa in the timing that unfolded when there was a pressing need to continue his stay in Australia and a desire to be out of immigration detention. Being in the wrong company does not seriously explain the delay, as the applicant claims a pressing fear for his safety if he were to return to Pakistan. Why this fear would not trump the poor habits brought on by bad company was not even generally explained by the applicant, despite the Tribunal’s efforts.
109. While this is by no means the only concern of the Tribunal, it works against a finding of genuineness or depth of a fear of persecution. This in turn points away in part from there being such a fear.
Degree of detail
110. The Tribunal has also been concerned throughout about the vagueness of the claims made. The Tribunal does not set a level of detail that is required, and makes no requirements in this regard. However, it is sufficiently concerned that it views the vagueness of the claims as detracting from their credibility. While mental health issues have been claimed I have not been furnished with detail of medical information about its severity and effects when it comes to memory and other extenuating circumstances. I have made a general allowance for the applicant’s lowered mood.
111. The Tribunal notes the absence of witness or written corroboration of the applicant’s claims. He has not provided reports, photographs, or witness accounts of what happened to him. He was unclear on some dates and years and could not reconcile the contradictions outlined above. He at an earlier point spoke of psychiatrist or psychologist reports he might obtain, but this did not eventuate despite several months of opportunities to do so. This further clouds the balance of his evidence and contributes to my finding that his account of harm is wrong and did not occur.
Mental health
112. I have given consideration to the applicant’s mental health. He was reasonably lucid throughout the hearing and could answer questions. While he was possibly stressed, he was capable of giving evidence competently.
113. I accept he has experienced difficulty. I am unable to determine exactly what mental health condition he might have and I cannot assess what appropriate treatment and support is needed. He indicated that he had received no medication or any ongoing medical or psychological or similar care.
114. While DFAT[4] highlights that there is significant lack of access and a lack of mental health professionals in Pakistan it is speculative to assume how he will need them at this stage or in the future.
[4] DFAT Country Information Report Pakistan 25 January 2022:
Conclusions
115. The Tribunal is able to accept the ethnicity, age and family composition of the applicant as stated.
116. Due to the credibility concerns outlined above the Tribunal accepts that while an engagement with a woman named [Ms A] occurred and then ended, there were no consequences other than disapproval.
117. The submitted narrative around harms against the applicant and his family are not accepted.
118. I find that:
·He does not fear he will be harmed by the family of the woman he was engaged to. She did not become pregnant or say she was pregnant.
·Her family did not threaten to kill him for dishonouring her and her family. They inflicted no harm on the applicant’s family.
·[Ms A]’s brother did not call him numerous times and threaten to kill him.
·It is not the case that he cannot go back to Pakistan because he has no funds to support himself, his father will not accept him and he does not know where he will stay.
·The family did not go to the police.
·Her family did not tell him that ‘they will not leave you alone’, nor did individuals threaten his family.
·His parents did not try to convince him to rethink.
·There was no caste issue.

119. The country information consulted (above) is also not supportive of the contention that there is a real chance that, if the applicant returned to the receiving country, the person would be persecuted for one or more of the reasons (being reasons of race, religion, nationality, membership of a particular social group or political opinion).
120. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection

121. Having concluded that the applicant does not meet the refugee criterion on s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The question is whether there are 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 the person claiming protection will suffer significant harm.
122. Even cumulatively, his experiences, and his departure from Pakistan, does not lead me to conclude that:
·he will be arbitrarily deprived of his or her life; or
·the death penalty will be carried out; or
·he will be subjected to torture; or
·he will be subjected to cruel or inhuman treatment or punishment; or
·he will be subjected to degrading treatment or punishment.

123. The Tribunal accepts that the applicant may find it difficult to adjust or to find employment on his return to Pakistan, but this does not amount to significant harm for the purposes of s 36(2A) of the Act. The Tribunal does not accept that any challenges he may face on return would constitute significant harm within the meaning of the Act.
124. Having regard to the Tribunal’s findings, as a necessary and foreseeable consequence of the applicant’s return to anywhere within Pakistan, the Tribunal does not accept that he will face a real risk of significant harm of any kind, as required by s 36(2)(aa) of the Act.
125. Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
126. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

128. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
129. The Tribunal affirms the decision not to grant the applicant a protection visa.
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.
…

[3.96] So-called ‘honour killings’, in which family members murder relatives perceived to have brought dishonour on the family, are common in Pakistan. Human Rights Watch estimates there are about 1,000 honour killings in Pakistan each year. Honour killings can be carried out in response to behaviour including refusing an arranged marriage, forming an unapproved romantic attachment, or ‘immodest’ dress or behaviour, including social media posts. While young men can be targets of honour killing, most victims are female. Once a threat of honour killing is established, the victim remains at risk even if he or she relocates. In some cases, victims have been killed years after the initial transgression. In tribal areas honour killings are sometimes ordered by traditional jirga councils

2.14 Mental health disorders are reportedly common in Pakistan, and options for treatment are limited. According to a 2020 article in the medical journal The Lancet, Pakistan has fewer than 500 psychiatrists serving a population of 200 million. More than 90 per cent of people with common mental health disorders go untreated. Those who cannot access conventional psychiatric treatment sometimes turn to traditional spiritual healers known as baba, pir or sufi. COVID-19 has reportedly worsened the mental health situation in Pakistan.