1809330 (Refugee)

1809330 (Refugee) [2023] AATA 4418 (12 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr M Kashif Khan (MARN: 1101199)
CASE NUMBER: 1809330

COUNTRY OF REFERENCE: Pakistan
MEMBER:Peter Haag
DATE:12 October 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the second named applicant satisfies s 36(2)(b)(i) of the Migration Act, based on membership of the same family unit as the first named applicant.

Statement made on 12 October 2023 at 5:09pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – political opinion – Pakistan Tehrik e Insaaf activist – political violence – physical assault – fear of killing – arrest – banning of political party – effective state protection – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 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 19 March 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, who claim to be citizens of Pakistan, applied for the visas on 14 October 2017. The delegate refused to grant the visas on the basis that the applicants are not persons in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and are not members 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 applicants (s 36(2)(b) and s 36(2)(c) of the Act).
The applicants appeared before the Tribunal on 1 September 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
The applicants were represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–5LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (the complementary protection criterion). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Section 5AAA of the Act
Pursuant to s 5AAA of the Act, it is for the applicants to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations, and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicants in specifying, any particulars of their claim, nor does the Tribunal have any responsibility or obligation to establish or assist in establishing the claim.
The Tribunal applied s 5AAA when considering the applicants’ claims and evidence.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicants are persons in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Applicants’ background
First named applicant
In his protection visa application, the applicant claims to be a citizen of Pakistan, born on [date] in Sialkot, Punjab province, Pakistan. The applicant claims to be an ethnic Punjabi of Islamic faith who can speak, read and write in Urdu. He is married to the second named applicant.
In his protection visa application, the applicant provided details of his mother, father, [and specified family members], who are all citizens of Pakistan residing in Pakistan. He also provided details of another sister who is a citizen of Pakistan and was residing in [Town 1], Queensland, Australia at the time of the visa application.
At the time of his visa application, the applicant was residing in [Town 1], Queensland, Australia. Prior to this, the applicant resided in Sialkot, Punjab province, Pakistan between 1 October 1997 and [date] July 2017. He did not provide any further previous addresses.
In his visa application, the applicant stated that he completed his primary and secondary education in Sialkot, Pakistan, between [specified dates]. He completed a [Qualification 1] between [specified dates] in Sialkot, Pakistan. He also completed a [Qualification 2] between [specified dates].
At the time of his visa application, the applicant stated that he was unemployed. He was previously self-employed as the owner of a [products] shop in Sialkot, Pakistan, between [specified dates]. Between [specified dates], he was unemployed as he was setting up his [business]. Prior to this, he was self-employed as the owner of a [product] business in Sialkot, Pakistan, between [specified dates].
Second named applicant
In her protection visa application, the applicant claims to be a citizen of Pakistan, born on [date] in Sialkot, Punjab province, Pakistan. The applicant claims to be an ethnic Punjabi of Islamic faith who can speak, read and write in Urdu. She is married to the first named applicant.
In her visa application, the applicant provided details of her mother, father, [and specified family members], who are all citizens of Pakistan residing in Sialkot, Pakistan.
At the time of her visa application, the applicant was residing in [Town 1], Queensland, Australia. Prior to this, the applicant resided in Sialkot, Pakistan between [November] 2016 and [date] July 2017 and at a different address in Sialkot, Pakistan between 1 October 1997 and 19 November 2016. She did not provide any further previous addresses.
In her visa application, the applicant stated that she completed her primary and secondary education in Sialkot, Pakistan between [specified dates]. She completed a [Qualification 3] in Sialkot, Pakistan between [specified dates]. Between [specified dates], she completed a [Qualification 4] in Sialkot, Pakistan. She completed [further studies] between [specified dates] in Sialkot, Pakistan.
At the time of her visa application the applicant was unemployed. Between [October] 2010 and [June] 2016, she was employed as [an Occupation 1] in Sialkot, Pakistan.
Applicants’ identity
The first and second named applicants provided the Department with certified copies of their Pakistani passports.
The applicants were married [in] November 2016, and they provided the Department with a copy of their Marriage Registration Certificate, issued by the Government of Punjab, Pakistan [in] April 2017.
The documents provided by the applicants are consistent with their evidence in relation to their identities. There is no evidence to suggest that the applicants have a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicants, the Tribunal finds that they are citizens of Pakistan, and as such their protection claims will be assessed against Pakistan as the country of reference and ‘receiving country’ respectively.
Migration history
Between [February] 2015 and [March] 2015, the first named applicant travelled to [Country 1].
On 3 July 2017 the applicants were granted [temporary] visas offshore and [in] July 2017 the applicants arrived in Australia.
On 14 October 2017 the applicants lodged a valid application for a Class XA Subclass 866 Protection visa and the associated Bridging visas were granted.
On 19 March 2018 the delegate of the Minister refused their protection visa application.
On 4 April 2018 the applicants lodged an application with the Tribunal for review of the protection visa refusal decision.
Claims for protection and other supporting documentation
The first named applicant submitted his claims for protection when he lodged his protection visa application with the Department on 14 October 2017. The applicant’s claims are as follows:[1]
[1] Application for protection visa, Department file [number], Doc ID [number], 35–39.
I left Pakistan for fear to my life. My father is a politician. He contested his first election in [year] and was elected General Councillor of [Council 1]. He contested election for District Councillor in [year], elections for Nazim in [specified years]. Apart from that he has provided political support to other politicians in the area during national general elections. I have great interest in politics and I have supported my father in politics since 2008. We have a dedicated election hall in [Town 2] from where we have conducted and continue to conduct all our political activities. My father and I joined a relatively young national political party, Pakistan Tehrik e Insaaf PTI in 2011.
After we joined PTI, my father aggressively started promoting me in local political circles so I could one day contest national general election on PTI platform. I had started becoming face of our family politics. I did a door to door campaign to make a direct connection with the people in our area to convince people to join PTI. I regularly arranged gatherings at our election hall. I invited people to our election hall to educate them about PTI's manifesto.
My family is known as [family name] in [Town 2]. Over the years in politics we have made many rivals at both personal and political level. Our biggest rivals in our area both at personal and political levels is a well known large [Family 1]. The current head of the [Family 1] is [Mr A] who has many sons, brothers and nephews etc. Both our families live in the same street. My family rivalry with this family started from the kidnapping of one of our family members. I have been attacked by the members of this family many times.
Out of personal rivalry, [Family 1 variant] family has always supported our rival candidates in local politics. In union council elections, [Family 1 variant] family supported our opposite candidate [Mr B]. During election times, [Family 1] with the support of our opposite candidates attached me and my father our election hall many times.
In 2013 national general election, unfortunately my father could not win a party ticket to contest election for the Punjab provincial assembly. However, being dedicated members of the PTI, my father and I allied ourselves with another local PTIs candidate, [Candidate A], who was granted a party ticket to contest 2013 general election. Our family has a large voters base in our area. I was one of the few people who led election campaign for [Candidate A]. I went door to door to convince people to vote for [Candidate A]. I also participated in most of the activities during the campaign.
Our rival candidate, [Candidate B], contested 2013 election from Pakistan Muslim League Nawaz PMLN platform. PMLN is a very old political party and had a very strong voters base in our area. [Candidate B’s] elections hall is just opposite of our election hall. Our political rival, [Mr B], and [Family 1 variant] allied themselves with our rival candidate [Candidate B]. This alliance created and continue to create life threatening problems for me and my father.
In March 2017, I was for the last time attacked by almost seven armed supporters of [Candidate B] including members of [Family 1] at our election hall. Prior to the attack I was chased all the way the election hall. They fired straight bullets at our election hall. I was very fortunate that I was not killed. After this attack I was left with no option but to leave Pakistan to save my life.
My rivals wanted to kill me in order to finish our family both at political and personal level. Apart from the mentioned attacks on my life, I have been under constant fear to my life and safety. [Family 1] lives in the same street in which my family lives. I lived under constant fear from them and from our political rivals. I had to live in a limited space in Pakistan. Whenever I was out of that space I was targeted by all our rivals.
Did this applicant experience harm in that country or those countries?
Yes
In one of the incidents in or about February 2009, some members of [Family 1] including three sons of [Mr A] namely [names] with the support of [Mr B’s] supporters attacked me at our election hall. I was severely beaten with baseball bats. I was hospitalised for almost a month.
Out of political and personal rivalry, just few days before 2013 general election, our election hall was attached by armed supporters of [Candidate B], members the [Family 1] and supporters of [Mr B]. I had to run and hide to save my life. My father lodged an FIR with police after the incident.
In August 2013, just few months after the general election, I was again personally attached by the members of [Family 1] and supporters of [Candidate B] and [Mr B]. I was beaten with wooden logs which had nails on them. I was hospitalised for almost 18 days.
In 2014 and 2015, PTI was running a campaign against electoral fraud throughout the country. I was supporting that campaign at the local level. I was arrested by the police but later released. I was warned not to participate in agitation against the PMLN government otherwise I will be charged with bogus cases and never released from the jail. I believe that our rivals influenced the police to arrest me.
In January 2015, I was again attacked by unknown supporters of political rivals. I suffered severe head and back injuries. I lodged a complaint to police after this attack. Police advised me to leave the country for few weeks and that they would sort out everything in my absence. I left for [Country 1] [in] February 2015 and came back [in] March 2015.
In March 2017, I was again attacked by almost seven armed supporters of [Candidate B] including members of [Family 1] at our election hall. Prior to the attack I was chased all the way the election hall. They fired straight bullets at our election hall. I was very fortunate that I was not killed.
Did this applicant seek help within the country or those countries after the harm?
Yes, my father and I did report to the police almost after each incident of violence. On each occasion my complaint was registered. However, police either did not arrest the culprits or released them after arresting them due to political influence from our rivals.
Did this applicant move, or try to move, to another part of that country or those countries to seek safety?
No
While living in Pakistan I cannot move to another part of Pakistan. I have nowhere else to live. I must live with my family and support my father in his political activities.
Explain what the applicant thinks will happen to them if they return to that country or those countries:
I strongly believe that I will be harmed and killed.
Does this applicant think they will be harmed or mistreated if they return to that country or countries?
Yes
I strongly believe that I will be harmed and killed by my rivals if I return to Pakistan.
Does this applicant think the authorities of that country or those countries can and will protect this applicant if they go back?
No
The authorities in Pakistan cannot provide me personal protection against my political rivals. My political rivals are too strong and are currently in government. Police can not arrest them or influence them on my complaints.
Does this applicant think they would be able to relocate within that country or those countries to an area where they would not be harmed?
No
While living in Pakistan I will not be able to relocate within Pakistan. It must live with my family. I will not be able to stay away from my family.
The outcome of the second named applicant’s visa application is wholly dependent on the fate of the applicant’s application, and a finding that she is a member of the same family unit as the applicant.
On 22 February 2018 the first named applicant was invited by email to attend an interview with the Department on 14 March 2018 regarding his protection visa application. The applicant did not attend the interview.
The applicants did not provide any further documents to the Department in support of their protection visa application.
The applicants provided a copy of the protection visa refusal Decision Record to the Tribunal with their application for review on 4 April 2018.[2]
[2] Tribunal file 1809330, Doc Id 4188574.
Evidence not presented before the primary decision was made
On 1 August 2023 the applicants submitted the following documents to the Tribunal that were not presented before the primary decision was made:[3]
[3] Ibid, Doc Id 11346570.

Written submissions from the applicant’s representative, dated 1 August 2023;
Medico Legal Examination Certificate for the first named applicant, issued by the Government of Punjab Health Department, dated [in] August 2013;

Certified copies of affidavits from the first named applicant’s father and four other persons who claim to know the applicant (including copies of their Pakistani identity cards) in support of the first named applicant’s protection claims;
Certified copy of a news report, with translation, titled ‘[detail deleted]’, published in [Publication 1]’, dated [in] March 2017;
Copy of Police First Information Report, with certified translation dated [in] February 2009;
Copy of Police First Information Report, with certified translation dated [in] May 2013;
Copy of Police First Information Report, with certified translation dated [in] August 2013;
Copy of Police First Information Report, with certified translation dated [in] January 2015;
Copy of Police First Information Report, with certified translation dated [in] March 2017;
Letter attesting to the first named applicant’s membership of Pakistan Tehreek-e-Insaf (PTI), including support for his protection claims, unsigned and undated;
Letter of support for the first named applicant from the Union Council, Sialkot, Pakistan, signed and dated [in] May 2018;
Birth Certificate of the applicants’ daughter, born on [date] and registered in South Australia on [date];
Copy of a valid Pakistani passport for the applicants’ daughter;
Copy of a valid Pakistani passport for the first named applicant;
Copy of a valid Pakistani passport for the second named applicant.

On 31 August 2023 the first named applicant submitted to the Tribunal certified copies of PTI party membership cards for himself (dated [in] March 2011) and his father (dated [in] January 2011).[4]
[4] Ibid, Doc Id 11468027.
Consideration of the claims and evidence
Essentially the applicant claims the risk of harm he would face in Pakistan arises from a longstanding rivalry for political influence between his family and the [Family 1].[5] Both families live in the same street, in the Sialkot District of Pakistan.
[5] In the written evidence this name is sometimes spelt [Family 1 variant]; for ease of reference, the Tribunal has chosen to adopt the spelling ‘[Family 1].’
According to the evidence the applicant’s father, [Father A], was actively involved in local government. In [year] he was elected to the [Council 1]. In [specified years] he unsuccessfully stood for election to the position of Nazim, a position somewhat equivalent to the position of Mayor in local government in Australia. In evidence, the applicant asserts that throughout this time, the [Family 1] invariably supported the rival candidate.
At the level of national politics, the applicant said and his father support a political party known as the PTI led by Imran Khan. In support of this evidence the applicant provided colour copies of two documents said to be reproductions of PTI membership cards, one issued to the applicant and the other issued to his father, [Father A]. According to information on the cards, the applicant’s father joined the party [in] January 2011 and the applicant joined [in] March 2011.
The applicant said in evidence that he actively and prominently supported his father and his political activities as a matter of loyalty to his family and his own political beliefs, in the context of intense and violent political rivalry between his father and himself, and the [Family 1].
He asserts he was the subject of multiple threats made by the [Family 1] and supporters, that he would be seriously harmed if he did not withdraw from politics and cease campaigning against corruption in government and electoral fraud.
After joining the PTI, a fledgling political party at that time that advanced an anti-corruption platform, and promised to reduce inequality and religious intolerance,[6] in 2013 the applicant’s father tried to be nominated as a candidate for the PTI in the next national election. He was unsuccessful. Instead, the party endorsed [Candidate A], a barrister, also referred to as [Candidate A variant] in the documents relied on by the applicant.
[6] DFAT Country Information Report – Pakistan – January 2022 (DFAT report) [2.4].
According to the applicant’s evidence his father threw his support behind [Candidate A]. Consequently, the applicant actively and publicly rallied his father’s supporters to vote for [Candidate A]. The applicant asserts he played a prominent role in the PTI election campaign; however, [Candidate A] was not elected.
The rival candidate, [Candidate B], a member of the Pakistan Muslim League (PMLN) party, supported by the [Family 1], was elected. The PMLN won sufficient seats to form a national coalition government.
The foregoing summary of the applicant’s oral and written evidence sets the context for the events the applicant asserts engendered the risk of harm he would face if he were removed to Pakistan now or in the reasonably foreseeable future.
In 2009 after the applicant’s father unsuccessfully sought election to the position of Nazim, [Mayor] named members of the [Family 1] led a physical attack on the ‘election hall’ in [Town 2] dedicated to his father’s political activities. According to the applicant the hall is still used for that purpose.
During the 2009 attack, according to the applicant, he was targeted. He was beaten with a baseball bat and hospitalised for almost one month. In support of his evidence the applicant relies on a First Information Report (FIR)[7] being a report to police, dated [in] February 2009, compiled by the local police as part of their investigation into his complaint about the attack. In the report the applicant names his alleged assailants. The applicant claims the police afforded him no effective protection, he believes due to the corrupt influence the [Family 1], and their supporters, including [Mr B] a political ally of the [Family 1], exerted over the local police and local government.
[7] All First Information Reports in evidence before the Tribunal are accompanied by certified translations and purport to be copies of the original documents.
[In] May 2013, shortly before the 2013 general election, supporters of the rival candidates, [Candidate B], [Mr B] and members of the [Family 1] attacked the applicant’s father’s election hall (campaign office). They were armed with sticks and guns. Shots were fired at the election hall; property was damaged during the attack. The attackers objected to the applicant’s father, the applicant and their supporters campaigning for the PTI, being the party promising to combat political corruption and social discrimination.[8]
[8] Ibid
The applicant places reliance on an FIR dated [in] May 2013. The report purports to have been made because the applicant’s father, [Father A], reported the attack to the local police. [Father A] names his (four) attackers, says they are supporters of [Candidate B], and he attributes the attack to longstanding political enmity. According to the FIR, [Father A] reported that he was shot at and his son, [the applicant], was also shot at. [Father A] specifically states he can identify the attackers and asks that they be arrested and prosecuted. According to the applicant’s case the attackers were protected from prosecution by the corrupt influence of the [Family 1] over local government and police.
On [a day in] August 2013, a short period after the general election, the applicant asserts he was again attacked by two named members of the [Family 1], and several other persons who were political supporters of [Candidate B], a member of the PMLN. According to the applicant’s evidence he was travelling on his motor bike about 11AM when he was stopped by his attackers who were travelling in a ‘Jeep.’ He was beaten with wooden clubs and injured so severely that he was hospitalised.
The applicant places reliance on an FIR dated [in] August 2013, and a two-page document that purports to be a handwritten copy of hospital records relating to a medical examination of the applicant in respect of physical injuries he suffered on [a day in] August 2013.
The first page of the handwritten medical document specifies a good deal of personal information about the applicant; the sort of information it is reasonable to expect would be obtained from a person being admitted to hospital. The first page describes injuries to the applicant’s face. There is a reference to him being referred to radiology for X-ray. The handwriting on the document is in English.
The second page of the document contains six drawings of the male body. The document depicts the location of injuries to the applicant’s face. According to several entries, and headings on the two-page document, it was created at the request of a named police officer, and it is a ‘Medico Legal Examination Certificate’.
The FIR with the date [in] August 2013 describes the applicant being beaten with sticks and rods and told he would be killed. A crowd of onlookers gathered and made ‘noise’ that compelled the assailants to break off the attack and leave the area. According to the report the applicant was taken to hospital.
In 2014 and 2015, according to the applicant’s evidence, he was campaigning in his home district in support of the PTI’s anti-corruption policies. By necessary implication, the applicant was campaigning against police corruption. The applicant asserts he was arrested by police and told to cease his campaign and opposition to the PMLN government. Circumstantially, the DFAT report is consistent with the applicant’s evidence in this regard.
According to the DFAT report, the PTI campaigned on an anti-corruption platform, and policies aimed at reducing inequality and religious intolerance.[9] The DFAT report also states Pakistan’s National Accountability Bureau (NAB) is responsible for investigating corruption. Critics allege the NAB is politicised and pursues opposition figures while ignoring corruption within the ruling party.[10] According to Transparency International’s Global Corruption Barometer, 40 per cent of Pakistanis surveyed reported having paid a bribe to access public services in the 12 months prior to the survey it conducted in 2020 and reported on in its 2020 Corruption Perceptions index. This figure jumped to 68 per cent for people in contact with law courts and 75 per cent for people seeking help from the police.[11]
[9] DFAT report [2.4].
[10] DFAT report [2.28].
[11] Ibid.
The DFAT report indicates police generally are reasonably likely to use their powers corruptly to the advantage of financially resourceful and politically influential individuals and organisations, against their opponents. The applicant contends he and his father consistently challenged the political influence of a powerful local family whose influence extended into local government and national politics.
In January 2015, just a few months after the general election in which the PTI failed to win government,[12] according to the applicant’s evidence he was again attacked by his political rivals. He asserts in his written case that named supporters of the governing party (PMLN) including named members of the [Family 1], intercepted him when he was in the city attending to PTI business, and assaulted him with weapons and threatened to kill him. They want him out of politics.
[12] In 2018 Imran Khan was elected Prime Minister after he led the PTI to victory in the general election that year.
In support of this evidence, the applicant places reliance on an FIR with the date [in] January 2015. The FIR essentially describes, but in greater detail, the 2015 incident first referred to in the applicant’s visa application.
In March 2017, according to the applicant’s visa application, he was physically attacked by supporters of [Candidate B] and named members of the [Family 1]. The applicant asserts the attack occurred in the vicinity of his father’s election hall.
According to the applicant in March 2017 he was approaching the family’s election hall, the place where his father, his supporters and the applicant were organising their political activities, when the applicant was pursued by named members of the [Family 1] (the three sons of the patriarch of the family) and unnamed supporters of [Candidate B]. They shot at the applicant and displayed a serious determination to kill him. The applicant reached the election hall and escaped the assailants.
The applicant places reliance on an FIR with the date [in] March 2017. Essentially, the narrative of the events described in the FIR is a more detailed description of the event first asserted by the applicant in his visa application.
Additionally, the applicant places reliance on a report of the 2017 incident in a local newspaper, namely [Publication 1]. The newspaper is written in Urdu and accompanied by a certified translation of the article. According to the translation, the article was published [in] March 2017, the day after the alleged event.
The applicant asserts each of the documents he relies on is genuine and constitutes evidence of the truth of their contents.
Additionally, the applicant relies on five affidavits said to have been deposed to in Pakistan for the purpose of supporting his visa application. The affidavits are written in English. Each affidavit is accompanied by a copy of the Pakistan National Identity Card of the deponent. The purpose of the identity cards is to establish that the deponents exist, their identity and that they deposed to the affidavits attributed to them.
One affidavit was deposed to by [Father A], the applicant’s father. The remaining four deponents adopt the contents of the affidavit made by the applicant’s father by copying the contents of his affidavit into their affidavits.
The affidavits express support for the applicant’s claim that he was an active and prominent advocate for the PTI, and his father’s political endeavours. He was attacked on the occasions relied on by the applicant in his protection visa application and evidence. They specifically depose to the animosity between the applicant’s father, the applicant and the [Family 1], [Candidate B] and their supporters, refer specifically to the events in 2009, 2013, 2015 and 2017 relied on by the applicant in his visa application.
Information in the DFAT report puts in issue the reliability of the FIR documents, the affidavits, and the newspaper article.
In addition to what the Tribunal has discussed about systemic corruption in Pakistan, according to the DFAT report at [2.28]:
Corruption, both petty and serious, is a major problem in Pakistan. It is driven by low public sector wages and a culture of nepotism, patronage and kinship ties that overrides loyalty to the state or respect for the law.
The DFAT report also states that document fraud is widespread in Pakistan, other than identity documents issued by NADRA which are generally reliable.[13] It is also relatively easy to obtain fraudulent documents, and fraudulent documents can include, but are not limited to, academic degrees and transcripts, bank statements, agreements, references, and ownership deeds.[14]
[13] DFAT report [5.52].
[14] Ibid [5.53].
The DFAT report addresses FIR documents specifically. It states:
FIRs (First Information Reports, an initial police record of a complaint or reported crime) use standard forms with the relevant information written in by hand and are relatively easy to counterfeit. Reports exist of police accepting bribes to verify fraudulent FIRs. DFAT does not consider the existence of an FIR as conclusive evidence the events described in the FIR actually occurred.
Considering the DFAT report about corruption in Pakistan, and a culture of nepotism, patronage and kinship ties that override loyalty to the state and respect for the law and accepting the applicant’s evidence that his father is a well-established and influential political figure, the Tribunal considers it to be reasonable to characterise him as a patron.
On balance, the evidence available to the Tribunal, including that all deponents adopted the contents of the father’s affidavit, and the cited information in the DFAT report, the Tribunal has decided to give little weight to the affidavits, including the father’s affidavit, as reliable evidence of the truth of their contents.
The applicant gave evidence at hearing about the newspaper article dated [in] March 2017 upon which he places reliance in this review. According to his evidence his father sent him the article. It is a copy of a document, (with translation) not an original document. According to the translation the article does not identify the date of the incident. It impresses the Tribunal that as a matter of common sense, and the ordinary course of experience, that an independent and reliable report about a politically motivated attempt to murder the applicant, by people said to be ‘workers of’ [Candidate B] of the PMLN, would state the date on which the alleged event occurred.
According to the applicant’s evidence the article was written by a journalist the applicant’s father invited to his home. In that meeting the applicant’s father told the journalist about the incident. It seems to the Tribunal that the article was not written as result of an independent investigation, but because the applicant’s father asked the journalist to write the article and told him the information he wanted the journalist to publish.
Considering the DFAT report about widespread corruption in Pakistan, and a culture of nepotism, patronage and kinship ties that override loyalty to the state and respect for law, the Tribunal’s finding about the weight to be given to the contents of the five affidavits, the applicant’s evidence about the role played by his father in the publication of the newspaper article, and the applicant’s evidence, the Tribunal is not satisfied the article constitutes independent verification of the occurrence of the events the applicant asserts occurred in March 2017.
Considering the totality of the evidence, and the DFAT assessment that it does not consider the existence of an FIR to be conclusive evidence that the events described in the reports occurred, the Tribunal gives little weight to the FIR documents as evidence of the truth of their contents.
The Tribunal will now consider the documents referred to in these reasons at paragraph 37. One of the documents purports to be a membership card issued to the applicant [in] March 2011 as evidence of his membership of the PTI party. The card displays a photograph of Imran Khan. It also displays what the Tribunal accepts to be a photograph of the applicant.
Relevantly, the photograph depicts the applicant as a much younger looking man than he appeared to be at hearing; the photograph seems to match the approximate age of the applicant on the date the card purports to have been issued.
Additionally, the applicant’s evidence that he was a longstanding and prominent participant in local politics with his father, and that he was also an active campaigner for the PTI, is supported by a document signed by a named person said to be the Chairman of the Union [Council 1], Sialkot. In essence, the document identifies the applicant as the son of [Father A], a resident of a stated address in Sialkot, and says the applicant is a member of a political family. The document describes, consistently with the applicant’s evidence, [Father A’s] electoral successes and (mostly) failures between [year] and 2008.
The document also supports the applicant’s evidence that he joined the PTI and actively advocated for the party, including campaigning in the general election in 2013 for the unsuccessful PTI candidate [Candidate A]. The document makes no reference to the applicant being attacked by his political opponents, attempts on his life, attacks on his father’s election hall, or the [Family 1].
The information in the document is expressed in measured and factual terms. It presents as if it was not written by a person motivated to advance the applicant’s protection claims. The document considered together with the applicant’s evidence weighs in favour of finding the applicant is a longstanding and relatively high-profile campaigner for the PTI, supporter of Imran Khan and anti-corruption campaigner.

Although the Tribunal gives little to the documentary evidence, except for the contents of the Union Council document that is apparently signed by the Chairman of the Union Council, and the applicant’s PTI membership card, the Tribunal finds the applicant was a relatively high-profile member of the PTI, and an anti-corruption campaigner in Sialkot before he departed Pakistan for Australia.
Circumstances in Pakistan have changed significantly since 2018, when Imran Khan was elected Prime Minister of Pakistan and the PTI was elected to govern the country.
The current political situation concerning Imran Khan, the PTI and its political leadership, members and supporters is reflected in the following country information.
Imran Khan’s political party, PTI, has been dissolved after legal action from the Pakistani military and caretaker government. Several senior ministers of the PTI stepped down from their posts or departed the party during the first half of 2023. Most party members who have not defected from PTI are now political prisoners.[15] Human Rights Watch, in a press release, noted ‘[…] Pakistani police carried out mass arrests and detained more than 4,000 people in the wake of protests over the arrest of […] Imran Khan.’[16]
[15] ‘Imran Khan’s political games leave him isolated as Pakistan army destroys party’, Hannah Ellis-Petersen and Shah Meer Baloch, Guardian (Australia edition), 3 June 2023, 20230803120449.
[16] ‘Pakistan: Mass Arrests Target Political Opposition’, Human Rights Watch, 20 May 2023, 20230804105128.
The caretaker government whilst under Sharif’s leadership presented information to the Chief Election Commissioner regarding accusations of terrorism and corruption against the PTI in a bid to declare it a banned organisation.[17] Recent amendments to legislation allow military intelligence officers to detain and arrest ‘any person directly or indirectly’ engaged in activity that ‘show[s] a purpose that is prejudicial to the safety and interests of Pakistan.’[18]
[17] ‘Banning PTI: Punjab govt presents “terrorism” evidence to ECP’, Express Tribune (Pakistan), 18 May 2023, 20230519100945; ‘Implications of Pakistan’s Terror Tagging of Political Opponents’, Abdul Basit, The Diplomat, 5 June 2023, 20230606102019; ‘Imran Khan loses his battle with Pakistan’s army’, The Economist, 1 June 2023, 20230622105610.
[18] ‘Pakistan government faces backlash over “draconian” arrest powers’, Shah Meer Baloch, Guardian (Australia edition), 3 August 2023, 2023080311342.
In March 2023, the Pakistan Electronic Media Regulatory Authority (Pemra) banned broadcasts of Imran Khan’s press conferences and speeches.[19] The former prime minister has been charged with more than 150 cases, including terrorism, corruption and murder since he was removed as prime minister in April 2022.[20]
[19] ‘Pakistan media decry de facto ban on giving airtime to Imran Khan’, Shah Meer Baloch, Guardian (Australia edition), 14 June 2023, 20230614094609; ‘I literally cannot say Imran Khan’s name on Pakistani TV – this madness has to end’, Hamid Mir, Guardian (Australia edition), 21 June 2023, 20230803120912; ‘Why Imran Khan has disappeared from Pakistan’s media’, Caroline Davies, BBC, 10 June 2023, 20230614140526; ‘Pakistani authorities give Imran Khan a taste of his own medicine’, Lynne O’Donnell, Foreign Policy, 5 June 2023, 20230614135759.
[20] ‘Pakistan’s election body issues arrest warrant against ex-PM Khan’, Al Jazeera, 24 July 2023, 20230804110216; ‘Imran Khan: former Pakistan prime minister sentenced to three years in jail’, Hannah Ellis-Petersen and Shah Meer Baloch, Guardian (Australia edition), 7 August 2023, 20230807081254.
In April 2022, after the ousting of Khan’s government, PTI members and followers were charged under sedition and counterterrorism laws for protest action and attacking state symbols, installations, and properties.[21] Pakistani police detained over 4,000 protestors who opposed the arrest of Imran Khan.[22]
[21] ‘Implications of Pakistan’s terror tagging of political opponents’, Abdul Basit, The Diplomat, 5 June 2023, 20230606102019; ‘Police surround Zaman Park as govt’s deadline to surrender “terrorists” expires’, Express Tribune (Pakistan), 18 May 2023, 20230519102546; ‘Pakistan: Mass arrests target political opposition’, Human Rights Watch, 20 May 2023, 20230804105128.
[22] ‘Pakistan: Mass arrests target political opposition’, Human Rights Watch, 20 May 2023, 20230804105128.
In early August 2023 Imran Khan was imprisoned for three years for ‘corrupt practices’ involving the sale of state gifts.[23] The electoral commission of Pakistan on 8 August 2023 issued a notification barring Imran Khan from politics for five years.[24]
[23] ‘Imran Khan: former Pakistan prime minister sentenced to three years in jail’, Hannah Ellis-Petersen and Shah Meer Baloch, Guardian (Australia edition), 7 August 2023, 20230807081254.
[24] ‘Imran Khan barred from politics for five years by Pakistan election commission’, Guardian (Australia edition), 9 August 2023, 20230809132245.
If removed to Pakistan now or in the reasonably foreseeable future, it would not be reasonable, in the sense of practical, to expect the applicant to relocate to a region other than Sialkot. He would be returning after an absence of a little more than six years. He would be accompanied by his wife and infant daughter, born in South Australia on [date]. The evidence establishes the applicant has never resided away from Sialkot or that he has a family or social support network or employment opportunities or experience, in any other part of the country.
Additionally, the applicant would be returning to a politically unstable country destabilised by the ouster and imprisonment of the former prime minister Imran Khan on corruption charges, and the ongoing campaign by the military and the caretaker government to end Imran Khan’s political influence and to detain or otherwise end the political influence of members of the PTI.
The military and the caretaker government obtained court orders to dissolve the PTI. The PTI, and by logical extension members of the party, are facing accusations of terrorism and corruption, in the context of the caretaker government seeking orders from the Chief Electoral Commissioner to ban the PTI as a terrorist organisation.
Findings – first named applicant
Having accepted the applicant was an active and relatively high-profile member of the PTI who advocated publicly for an end to electoral fraud and corruption in public office, the evidence is sufficient to satisfy the Tribunal of the existence of a real chance the applicant would be subjected to serious harm for the reason of political opinion, if he is removed to Pakistan now or in the reasonably foreseeable future.
The Tribunal is also satisfied having regard to the present political climate, including the influence of the military over civil society, and the DFAT country information about endemic corruption in the Pakistani police force, that effective protection by state or non-state actors would not be available to the applicant in Pakistan sufficient in nature to protect him from the real chance of serious harm he faces from state and non-state actors, being the supporters of the military and the caretaker government and opponents of the PTI, now and in the reasonably foreseeable future.
The Tribunal is also satisfied political opinion is the essential and significant reason for the real chance of persecution faced by the applicant, and that the persecution would involve systematic and discriminatory conduct by state and non-state actors opposed to Imran Khan, the PTI and its members.
Having found the applicant would face a real chance of serious harm in Sialkot, for the reasons discussed above,[25] the Tribunal is satisfied it would be impracticable for the applicant to relocate to another region of Pakistan, and upon his return, and to his detriment, it is reasonably likely security officials would identify him with the PTI and Imran Khan. Consequently, for all practicable purposes, the Tribunal is satisfied the real chance of serious harm relates to all areas of Pakistan.
[25] Paragraphs 91–93.

100. Additionally, the Tribunal is satisfied the applicant has a well-founded fear of persecution for a reason specified in s 5J(1) of the Act, namely political opinion, and that the applicant meets the definition of refugee as set out in s 5H of the Act.
101. For the reasons given above, the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Findings – second named applicant
102. The second named applicant relies on the first named applicant meeting the requirements for the grant of a protection visa and that she is a member of the same family unit as the first named applicant.
103. The Tribunal is not satisfied that the second named applicant is a person in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa) of the Act. However, the Tribunal is satisfied that the second named applicant, [named], is married to and resides with the applicant and their infant daughter, and that the second named applicant is a member of the same family unit as the first named applicant for the purposes of s 36(2)(b)(i). As such, the fate of her application depends on the outcome of the first named applicant’s application. It follows that the second named applicant will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.
DECISION
104. The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the second named applicant satisfies s 36(2)(b)(i) of the Migration Act, based on membership of the same family unit as the first named applicant.

Peter Haag
Member

ATTACHMENT – Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36 Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 4418

12 October 2023

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