1807284 (Refugee)

1807284 (Refugee) [2023] AATA 4742 (13 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1807284
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Sheridan Aster
DATE:13 November 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 November 2023 at 3:02pm
CATCHWORDS
REFUGEE – Protection Visa – Pakistan – sexuality – homosexual –religion – Islamic faith – race – Pashtun ethnicity – engaged in sex before marriage – applicant is not sexually attracted to men anymore – do not accept that the applicant would be perceived as a homosexual man – 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, 36, 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 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 March 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a [age]-year-old man from Buner in the Khyber Pakhtunkhwa province in Pakistan. The applicant completed high school in [City 1], Pakistan, and first arrived in Australia on [date] August 2015 on a Subclass 573, higher education visa. The applicant completed [a] course, issued by [a] College Australia on 2 December 2015 and [a qualification] at [another institute].
The applicant departed Australia on [date] June 2016 and travelled to Pakistan, returning on [date] August 2016. He has remained in Australia since that time. The applicant applied for a protection visa on 7 November 2017, claiming he would be persecuted in Pakistan as a homosexual. The delegate did not accept that the applicant was homosexual and refused to grant the visa.
The applicant has four brothers and two sisters who remain in Pakistan. The applicant can speak, read and write in Urdu, Pashto and English. He self-identified as of Pashtun ethnicity and Islamic faith.
The applicant provided the Department with his National Identity Card and passport issued by the Islamic Republic of Pakistan. I accept that the applicant is a citizen of Pakistan and will assess his claims against Pakistan as the country of reference for the purposes of s.5H(1)(a) and receiving country for Complementary Protection purposes.
The issue for determination is whether, based on what is accepted of the claims made and arising on the evidence, the applicant is a person to whom Australia has protection obligations. This involves assessing the credibility of the factual basis for the claims and assessing what is accepted against the applicable legal framework.
CLAIMS AND EVIDENCE
The applicant applied for protection on 7 November 2017. He submitted a completed application for protection form, along with a supplementary written statement.
The applicant made the following claims on his application form and attached statement:
·He was born and brought up in the village of [name], Buner District of the Khyber Pakhtunkhwa Province, Pakistan. He belongs to the Pashtun tribes. He was born Sunni Muslim and his family follow Islam strictly.
·He was discriminated against based on his sexuality as a gay man. Homosexuality is illegal under Pakistani law and punishable by death.
·He was raped several times during his childhood. He was sexually assaulted by teachers and family members.
·The applicant’s family would murder him to maintain honour.
·Pakistani authorities cannot enter or effectively operate in Khyber Pakhtunkhwa. The police are corrupt and afraid of tribal culture and the Taliban. The applicant could not seek assistance from the police.
·He considered living in another area of Pakistan, but homosexuality is illegal in all areas and the Jirga would have the capacity to locate him.
·He could not live his life as per his desires in Pakistan.
·In 2009, the Taliban took control of Buner. The Taliban shut down the schools. The applicant’s parents sent him to school in [City 1] to avoid being forced to join the conflict. The applicant was [age] years old, completing [a] grade. He shared a room with his cousin [Mr A] who was [age] years old, studying [a] grade. They fell in love.
·The applicant and [Mr A] were caught in a compromising position by the Vice [Principle]. The applicant was stripped and beaten in front of the school. [Mr A] managed to run away.
·The applicant and [Mr A] continued to meet in a hostel and maintained sexual relations. [Mr A] was not willing to publicly own the relationship.
·The applicant was thrown out of the school [sport] team due to his feminine nature.
·When the applicant’s father discovered what happened he beat the applicant with a stick and decided to send him to a mental asylum.
·In 2011, after the applicant’s [class] board examinations the relationship ended because [Mr A] moved to another town and married.
·In 2012, the applicant met [Mr B] at [school] and college in [City 1]. They used to make love in their hostel room.
·In 2013, the applicant moved back to Buner. He was admitted to [a school] and was preparing for his intermediate exams as per tribal traditions
·The applicant’s family arranged for him to marry his female cousin, [Ms C]. She was [age] at the time. To disobey his parents would result in his murder. The applicant requested that his grandfather delay the wedding and allow him two years for study.
·In 2015, the applicant was granted a visa and travelled to study in Australia.
·In 2016, the applicant travelled back to Pakistan. He decided to tell [Ms C] about his sexuality. The applicant was worried that his trip would result in his forced marriage or murder.
·On 28 July 2016, he visited [Ms C] while her brothers and other family members were in another town. A neighbour notified [Ms C]’s father. The applicant left her house immediately.
·[Ms C] was accused of zina (unlawful sexual intercourse) and killed by the family after the applicant tried to meet with her when he was last in Pakistan. The punishment for zina is stoning to death.
·The applicant said he took a bus to Islamabad the same day. Within three to four hours, he started to receive calls from his parents and uncles. The applicant spoke to his brother who informed him that he and [Ms C] had been accused of sex without Nikkah. The applicant stayed in Islamabad until he left Pakistan on [date] August 2016. He was so upset that he lost his passport at the airport and had to stay in [a country] for two days.
·[Ms C] was killed in the name of honour. When the applicant arrived back in Australia, his brother advised him that the Jirga had justified [Ms C]’s murder and his father had disassociated from him.
·A Jirga has called for his execution. He would also be at risk of execution by the Taliban because he is hafiz e Quran and cannot have relations with someone of the same gender. The tribe of Buner would have the power to locate the applicant anywhere in Pakistan. The tribe has a close relationship with the Taliban.
·In Australia, the applicant commenced work at [a workplace] and met [Mr D]. They spent a number of memorable nights together. He then met [Mr E]. He was in a relationship with [Mr E] at the time of the statement in November 2017.
·The applicant expressed fear that he would be killed as a result of the accusation that he had engaged in sex before marriage with [Ms C] and because of his sexual attraction to men.
·The applicant also expressed fear of harm from the Taliban because he did not become a jihadist and because he is attracted to men.
·The applicant expressed a desire to remain in Australia where he could continue to practice Islam and still be attracted to men.
At the time of the application, the applicant was not working. He had previously worked in [Australia].
The applicant provided a range of photographs to the Department depicting him in the company of other men both in Pakistan and Australia. In some photos the men are holding hands or have an arm around one another.
On 6 March 2018, the applicant participated in an interview with the delegate. A copy of the audio was provided to the Tribunal and I have reviewed the recording. In addition to the previously outlined information, the applicant gave the following evidence:
·He is a practicing Sunni Muslim and prays 4 to 5 times a day.
·He was raped 2 or 3 times when he was younger, which ‘made him this way’ (referring to his attraction to men). The applicant said he felt guilty about his sexual orientation. He had never been in a relationship with a woman.
·The applicant was dating a man named [Mr E] at the date of the interview. The relationship was not exclusive because [Mr E] was in [a city overseas]. The applicant said he planned to propose to [Mr E] when he returned to Australia. He did not know [Mr E]’s surname.
·The applicant said he regularly went to the bars [to] meet men. I note that the delegate outlined in the decision that the applicant believed [the bars] were two separate locations. However, that is not my understanding of the evidence on the recording. The applicant appears to say that [bars] are located together on [a street], [suburb].
·The applicant’s housemates were unaware of his sexuality but he thought they may suspect he is gay because of the way he speaks.
·[Ms C]’s father is the cousin of the applicant’s father. The family planned for the two to marry.
·The applicant’s younger brother informed him of [Ms C]’s murder. The police were not informed and cannot interfere with the jirga’s decision. The applicant did not know how [Ms C] was killed.
The delegate did not accept that the applicant is a homosexual man or that he was engaged to marry [Ms C]. The delegate did not accept that [Ms C] and the applicant had been accused of engaging in sex before marriage or that [Ms C] had been killed by the family to maintain honour. Further, the applicant did not accept that the applicant was of adverse interest to the Taliban. In conclusion, the delegate did not accept that the applicant was a person to whom Australia has protection obligations.
Application for merits review
The applicant applied to the Tribunal for merits review on 18 March 2018. A copy of the delegate’s decision was provided to the Tribunal with the application for review. No further documentary evidence was submitted.
The applicant appeared before the Tribunal on 3 October 2023 to give evidence and present arguments.
The applicant gave evidence that he was born in Buner, Kyber Pakhtunkhwa. His parents, four brothers and two sisters continue to live in Buner. He communicates with them [regularly].
He first arrived in Australian in 2015 to study [a course], but later changed into [another course]. He completed a [qualification]. At the date of the hearing, he was employed at a [workplace] and sometimes worked as a [occupation].
The applicant said that he had a girlfriend, who he stared dating in 2020. She is a Christian from [a country] and was recently granted permanent residency in Australia. The applicant has asked his girlfriend to marry him, but she wanted time to consider her answer because of their religious differences. If the applicant’s girlfriend says no to marriage, he said he would return to Pakistan and get married there. The applicant claimed that before he met his girlfriend, he had only been with men.
The applicant alleged that he was raped as a child by his cousin, a neighbour, an uncle and a teacher. He said he doesn’t want to return to Pakistan because you cannot say no. The most recent assault took place when he was[age] or [age] and involved his cousin [Mr A]. I asked the applicant to confirm that his relations with [Mr A] were non-consensual and he explained that he wasn’t raped but he wasn’t ready. He said he wasn’t in love with [Mr A] as previously claimed and it was just sex.
The applicant said he wasn’t in love with [Mr D] or [Mr E] either. It was just sexual desire. He said that split up with [Mr E] a long time ago. When he returned from [overseas], [Mr E] wanted to be in a relationship and the applicant said no. I highlighted that the applicant had previously said he wanted to marry [Mr E] and in response he said he changed.
The applicant said he doesn’t consider himself to be gay. He is not sexually attracted to men anymore. He noted that his housemate is a gay man from Pakistan. He maintained that his earlier claims had been accurate, but he has changed now.
In respect to his claims regarding [Ms C], the applicant said that the dispute between the families had been settled. It had been agreed that a girl from his house had to marry a boy from their house. The applicant said he was no longer concerned about his family because the dispute had been settled.
When asked why he was concerned about returning to Pakistan, the applicant said that the Taliban would look at him suspiciously because he has been in the West. The political situation in Pakistan is bad and the Taliban are in the mountains near his home.
I asked what would happen and the applicant said that the Taliban are not open minded and have no patience. The applicant said he isn’t that moderate himself, but the Taliban are not understanding. He felt his family would be accepting, but he wasn’t sure about other people.
The applicant said he is a supporter of Imran Khan, who is in prison right now. He commented that if they [Pakistani people] cannot accept political difference, how could they accept me.[1] They applicant never joined a political party.
[1] Former Pakistani Prime Minister, Imran Khan, has been indicted on numerous criminal charges, including leaking of state secrets, blasphemy and contempt of court. At the time of the Tribunal hearing, he was held in Adiali Jail in Islamabad facing trial. He was convicted of corruption and sentenced to three years in jail in August 2023 and barred from running in the 2024 Presidential elections. See, eg, ‘Pakistan indicts former PM Imran Khan for leaking state secrets’ Aljazeera, 23 October 2023, accessed at Caroline Davies & Kathryn Armstrong, ‘Imran Khan: Pakistan court suspends former PM’s corruption sentence’ BBC News, 29 August 2023, accessed at >
The applicant gave evidence that he was not personally involved with the TTP or politics in Pakistan. When the applicant was at school, he said that one of his teachers was in the Taliban. Several students went to his house for dinner. In 2009 or 2010 he saw a Pakistani Army helicopter fly over and a few days later his teacher disappeared. The applicant never registered with the Taliban.
When asked if he could live in another area of Pakistan, the applicant conceded that there could be a chance, but he wasn’t sure. He doesn’t want to live in Pakistan and would rather go to [a country] or another country.
Finally, the applicant requested that I defer my decision until his girlfriend decides on his marriage proposal. He said she would decide by December. He claimed that he was not planning to pursue his claims any further. The applicant said that if he returned to Pakistan he would live with his family.
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.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, I have 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.
ANALYSIS AND FINDINGS
I accept that the applicant is a Pashtun man of Sunni Islamic faith from Buner, Khyber Pakhtunkhwa. I accept that he has lived, worked and studied in Australia since 2015.
The applicant claimed that he was raped as a child. Limited detail was provided in respect to the perpetrators or the assaults throughout the application and review process. Nevertheless, I have provided the applicant with the benefit of the doubt and accept that he was the victim of rape on several occasions as a child. The Department of Foreign Affairs and Trade (DFAT) reports that domestic violence, sexual abuse and sexual exploitation of children are widespread in Pakistan. Child rape is reportedly common, including customary rape of young boys, which particularly occurs in Khyber Pakhtunkhwa and the tribal districts. The production and consumption of child pornography are common.[2] Nevertheless, for the reasons below, I do not accept that the applicant had a sexual relationship with his cousin [Mr A] as a teenager, consensual or otherwise.
[2] Department of Foreign Affairs and Trade (DFAT), Country Information Report Pakistan, 25 January 2022

The mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for them. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[3]
[3] MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a 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 her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
The applicant gave evidence that he was in a sexual relationship with [Mr A] for approximately two years before he travelled to Australia. They had been seen together in a compromising position and the applicant had been stripped and beaten in front of his school in [City 1] as punishment for his sexuality and kicked out of the [sport] team for his feminine nature. He further alleged that he was beaten with a stick by his father, who considered sending him to a mental health facility, although ultimately did not. His family were aware of his sexuality and arranged for him to marry [Ms C]. However, the applicant remained in Pakistan for approximately four years before he came to Australia and returned to Pakistan for approximately six weeks in 2016, after his family and members of the broader community were allegedly aware of his homosexuality. The applicant waited a year after returning from Pakistan before claiming protection. This is not indicative behaviour of someone who fears they would be forced to marry a woman or be killed because of their sexuality.
In addition to the time spent in Pakistan, the applicant was unable to provide details in respect to key parts of his claims, which led me to question his credibility. The applicant alleged that his brother told him that [Ms C] was the victim of an honour killing when they were accused of engaging in sex before marriage. However, the applicant was unsure how [Ms C] died and had not enquired about her cause of death with his brother, despite directly contributing to her demise. The applicant alleged that he was in love with a man named [Mr E], whom he wanted to marry. I acknowledge that the applicant later claimed that his attraction to [Mr E] may have been sexual desire rather than love. Nevertheless, despite the intensity of his feelings at that time, the applicant did not know [Mr E]’s surname.
By the date of the Tribunal hearing, the applicant claimed that his family dispute had been resolved and he identified as a heterosexual man. While I acknowledge that sexuality can be fluid, the timing of this shift - now the applicant’s girlfriend has been granted permanent residency in Australia - leads me to question the authenticity of his previous claim to be homosexual. In any event, the applicant maintained that he no longer holds any attraction to men and would marry a woman if forced to return to Pakistan. He further alleged that his family has resolved the dispute with [Ms C]’s family, and he would no longer be at risk from either.
I do not accept that the applicant identifies or identified as a homosexual man, that he was in love with his cousin [Mr A], that he was raped by his cousin [Mr A], that it was arranged for him to marry his cousin [Ms C], or that she was the victim of an honour killing. I do not accept that the applicant was in a relationship or planned to marry a man named [Mr E] or that he had relations with other men, including [Mr B] or [Mr D]. Although the applicant claimed that his classmates and housemates may have suspected he was gay because of his feminine nature and speech, the applicant gave no practical examples. There was nothing apparent to the Tribunal in the applicant’s presentation at the hearing. I consider that the applicant made these claims in support of his broader claim to be a homosexual man. I do not accept that the applicant would be perceived as a homosexual man.
I acknowledge that the applicant provided a range of photographs of him posing with other men. In some photographs the applicant was holding hands with the other man, or they had an arm around each other. I do not consider that the photographs demonstrate the applicant was in a sexual or romantic relationship with any of the men in the photographs. As noted by the delegate, men holding hands and putting arms around another’s shoulders is not indicative of a same sex relationship in Pakistan. The photos of the applicant with a man in Australia does not suggest anything beyond a friendship or housemate. The photos are all taken in the same setting with the same clothing. There is nothing that supports a pattern of spending time together, attending functions, vacations, shared activities or dating in general.
Chance of harm
Pakistan includes four provinces: Sindh, Punjab, Khyber Pakhtunkhwa (formerly the North-West Frontier Province and now including the former Federally Administered Tribal Areas) and Balochistan. Khyber Pakhtunkhwa is in the north of Pakistan and borders Afghanistan. The province is 101,741 square kms with the population in 2017 reported as more than 35 million. Buner is a mountainous area within Khyber Pakhtunkhwa. The local government reports the population as 506,000.[4] The capital of Buner is Peshawar.
[4] >
Until 2018, the area along the Afghanistan-Pakistan border known as the Federally Administered Tribal Areas (FATA) was governed under colonial-era laws called the Frontier Crime Regulations (FCR). The former FATA agencies are now part of Khyber Pakhtunkhwa province. Residents of Khyber Pakhtunkhwa now have access to the regular judicial system, although the option remains to voluntarily refer disputes to traditional jirgas/panchayats under the Khyber Pakhtunkhwa Alternate Dispute Resolution Act (2020).[5]
[5] DFAT, Country Information Report Pakistan, 25 January 2022
Pashtuns are the second-largest ethnic group in Pakistan and traditionally live among their own tribes and sub-tribes in Khyber Pakhtunkhwa and the former FATA, though many migrate to urban areas. The government of Khyber Pakhtunkhwa reports that the largest ethnic group in the province is the Pashtun.[6] Most, but not all, Pashtuns follow Sunni Islam. The largest Pashtun community in the world lives in Karachi. Pashtuns also live in Balochistan, Islamabad, Lahore and elsewhere. According to the 2017 national census, Muslims comprise 96.47 per cent of the Pakistani population. Of this number, an estimated 80-90 per cent are Sunnis and 10-20 per cent are Shi’a.
[6] >
DFAT reports that following improvement over recent years, the security situation in Pakistan has deteriorated since mid-2021. Causes of insecurity include domestic politics, religious extremism, ethnic conflicts, gender-based issues, sectarian hatred, economic hardship, petty and organised crime, tensions with India and the situation in Afghanistan.
Terrorist attacks have increased, and most attacks happen in Khyber Pakhtunkhwa (especially North Waziristan) and Balochistan, although Punjab and Sindh (especially Karachi) are also targeted. Buner is in the north of Khyber Pakhtunkhwa and does not share a border with North or South Waziristan or Afghanistan. There were no attacks in Islamabad, Gilgit-Baltistan or Azad Kashmir in 2020.
The Tehreek-e-Taliban Pakistan (TTP) are a local faction of the Taliban and attacks in Pakistan increased since the Taliban seized power in Afghanistan in August 2021. DFAT reports that the TTP has moved away from targeting civilians – which was undermining its popular support – to focus on attacks against the Pakistani military and other government representatives. It has also continued to assassinate political and religious leaders and to target religious minorities, including Shi’a, Ahmadis and Christians.
Across Pakistan, ethnic stereotyping and the association of Pashtuns with the TTP has led to official discrimination and ethnic profiling. DFAT assesses Pashtuns in conflict-affected areas such as Khyber Pakhtunkhwa and Balochistan face a moderate risk of violence by state security forces, including enforced disappearance and extrajudicial killings. Elsewhere in Pakistan, Pashtuns generally face a low risk of official and/or societal discrimination and a similar risk of violence to other ethnic groups in the same locations, although the risk increases if they come to the attention of authorities for any reason. Pashtuns involved with the Pashtun Tahafuz Movement (PTM) or the Awami National Party (ANP) face specific, heightened risks, as do Shi’a Pashtuns.
The applicant did not claim that he or his family had been targeted by the TTP or Pakistani authorities in the past. He expressed the opinion that if the Taliban discovered he had lived in a Western country they may think he is too moderate. He personally did not consider himself to be very moderate. On his application form, he also noted that he may be at risk of harm from the Taliban because he did not become a jihadist. When I questioned how the applicant would come to the attention of the TTP or Pakistani authorities, the applicant conceded that there was nothing that would bring him to the attention of the Taliban or the Army. The applicant comes from the ethnic and religious majority of the local region. Buner is removed from the border and the areas that reported the greatest impact from terrorist attacks. Neither he nor his family have been targeted in the past. Given the shift of focus of the TTP away from attacking civilians and the applicant’s profile as a heterosexual Pashtun, Sunni Muslim man, I consider his fear of harm from the TTP to be speculative only.
Nevertheless, I acknowledge that DFAT reports TTP activity has increased in recent years and Pashtuns in Khyber Pakhtunkhwa now face a moderate risk of harm from Pakistani authorities in the form of violence, including enforced disappearance and extrajudicial killings. As such, I accept that the applicant would face a real chance of harm from state security forces as a Pashtun man in Khyber Pakhtunkhwa.
Section 5H of the Act sets out the ‘meaning of refugee’. It stipulates that a refugee is a person with a well-founded fear of persecution. In order to hold a well-founded fear of persecution, there must be a real chance of persecution in all areas of Pakistan: S5J(1)(c).
The DFAT report does not indicate that the real chance of persecution extends to all areas of Pakistan. There are large Pashtun communities across the country and many people migrate to urban areas. DFAT assess that Pashtuns in these areas face a low risk of official and/or societal discrimination and a similar risk of violence to other ethnic groups in the same locations. The applicant is a young man of working age. He departed Pakistan legally and is from the religious majority and the second largest ethnic group. He is educated, speaks multiple languages and has the support of family. Furthermore, the applicant gave evidence that he would marry a woman if he returned. He was not involved in politics or extremist activities. There is nothing arising on the facts that would bring him to the adverse attention of authorities. I do not accept that the applicant would face a real chance of harm if he lived in a large urban centre outside Khyber Pakhtunkhwa. For these reasons, I do not accept that the applicant holds a well-founded fear of harm because of his religion, ethnicity or as a returnee from a western country.
The applicant acknowledged it could be possible for him to live in another area of Pakistan. While the applicant expressed a preference not to live in any part of Pakistan, he did not raise any impediments to doing so. When discussing his ethnicity, the applicant claimed that while he was a member of the ethnic community, he was mostly scared of Pashtuns. He highlighted that those who sexually assaulted him were Pashtun. They are not allowed to do these things, but they still do. I acknowledge that the applicant was sexually assaulted by Pashtun men in the past. Nevertheless, as discussed with the applicant at the hearing, he is now an adult and would no longer face a real chance of harm from men that exploit children.
People who return to Pakistan voluntarily and with valid travel documentation are typically processed like any other citizen returning to Pakistan. The government issues ‘genuine’ returnees with temporary documents when they arrive. A genuine returnee is defined as someone who exited Pakistan legally irrespective of how they entered destination countries. Those who are returned involuntarily or who travel on emergency travel documents are likely to attract attention from the authorities upon arrival. Immigration officials will interview failed returnees and release them if their exit was deemed to be legal but may detain those deemed to have departed illegally.
The applicant presented a Pakistan National Identity Card to the Tribunal on the day of the hearing. The card was issued to the applicant in 2019 and is valid until 2029. The Pakistani passport presented to the Department expired in 2020. The passport was stamped by Pakistani immigration officials at the time of his departure from Pakistan in both 2015 and 2016, indicating his exit from the country was legal.
DFAT reports that returnees are typically able to reintegrate into the Pakistani community without repercussions stemming from their migration attempt, although involuntary returnees who took on debt to fund their migration tend to face a higher risk of financial hardship and familial shame. A small percentage of returnees do not reintegrate and go abroad again to seek asylum. DFAT assesses that returnees to Pakistan do not face a significant risk of societal violence or discrimination purely as a result of their attempt to migrate, or purely because they have lived in a Western country. Nevertheless, DFAT notes societal or official discrimination or violence can still occur due to the reason they attempted to migrate, or because of behaviour or opinions they displayed while living abroad.
As previously outlined, I do not accept that the applicant is or was homosexual. It follows that I do not accept that was the reason he attempted to migrate. He departed Pakistan legally and did not claim to have taken on debt to fund his migration. In the circumstances, I do not accept that the applicant would face a real chance of harm as a returnee from a Western country.
Although it may be inferred, I find that the applicant does not face a real chance of serious harm because of his actual or assumed sexuality. The applicant does not hold a well-founded fear of persecution on the basis that he is or would be perceived as a homosexual man.
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
For the same reasons that I found there is no real chance of serious harm to the applicant from men that exploit children or because of his sexuality, I find that the real risk element of the test in s.36(2)(aa) has not been met.[7] I have therefore moved on to consider the potential risk caused by the applicant’s ethnicity, religion or as a returnee from a western country.
[7] as per the judgment in MIAC vSZQRB [2013] FCAFC 33.
Section 36 (2B) of the Act stipulates that 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 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.
As such, if there is a course of action that an applicant could reasonably be expected to take to avoid future harm, then the risk of significant harm will not be a ‘necessary’ consequence of removal as required by s 36(2)(aa) of the Act[8].
[8] EJC18 v MICMSMA [2020] FCCA 3171
The real risk contemplated by s 36(2)(aa) is ‘…a real risk that the non-citizen will suffer significant harm’. The types of harm that will amount to ‘significant harm’ are exhaustively defined by s 36(2A) of the Act. Section 36(2A) outlines that a non‑citizen will suffer significant harm if:
(a)       the non‑citizen will be arbitrarily deprived of his or her life;
(b)       the death penalty will be carried out on the non‑citizen;
(c)       the non‑citizen will be subjected to torture;
(d)       the non‑citizen will be subjected to cruel or inhuman treatment or punishment;
(e)       the non‑citizen will be subjected to degrading treatment or punishment.
As a Sunni Muslim, the applicant is a member of the religious majority. I do not accept that he would face any harm on the basis of his religion. As a Pashtun, he comes from the second largest ethnic group in Pakistan. DFAT assesses that Pashtuns outside Khyber Pakhtunkhwa generally face a low risk of official and/or societal discrimination and a similar risk of violence to other ethnic groups in the same locations. While there may be some discourteous or unkind individuals that comment on the applicant’s ethnicity outside of Khyber Pakhtunkhwa, I do not accept that this would amount to significant harm as defined above. Further, as previously outlined, there is nothing apparent on the facts that would increase the risk faced by the applicant or bring him to the adverse attention of authorities. As such, I do not accept that he would face a real risk of significant harm in an urban centre outside of Khyber Pakhtunkhwa.
DFAT assesses that returnees to Pakistan do not face a significant risk of societal violence or discrimination purely as a result of their attempt to migrate, or purely because they have lived in a Western country. Nevertheless, DFAT notes societal or official discrimination or violence can still occur due to the reason they attempted to migrate, or because of behaviour or opinions they displayed while living abroad. I did not accept that the applicant is or was a homosexual man, therefore I do not accept that he would face discrimination on that basis. He raised no other claims that indicate he would face official or societal discrimination in an urban centre outside Khyber Pakhtunkhwa.
When questioned about his ability to relocate, the applicant focused on his desire not to live in Pakistan at all. He did not raise any impediments to living in an urban centre. The applicant has shown himself to be resilient in moving to a foreign country and establishing himself. He is a Sunni Muslim, educated and speaks multiple languages used in Pakistan. I appreciate that the applicant’s family continue to live in Khyber Pakhtunkhwa, however I note that the applicant has lived a great distance from them since moving to Australia in 2015. Taking into account the accepted circumstances of the applicant, I find that it would be reasonable for the applicant to relocate to another area in Pakistan where he would not face a real risk of significant harm because of his ethnicity.
I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
While I acknowledge that the applicant told the Tribunal he has a girlfriend who had recently been granted permanent residency in Australia, he did not claim to satisfy 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. In addition, he provided no evidence in respect to her identity or the type of visa she was granted. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION

The Tribunal affirms the decision not to grant the applicant a protection visa.
Sheridan Aster
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 4742

13 November 2023

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