1813137 (Refugee)

1813137 (Refugee) [2021] AATA 4742 (1 October 2021)

Corrigendum

DIVISION:Migration & Refugee Division
CASE NUMBER:  1813137
COUNTRY OF REFERENCE:                  Pakistan
MEMBER:Lilly Mojsin
DATE OF DECISION:  1 October 2021
DATE CORRIGENDUM
SIGNED:29 October 2021
PLACE OF DECISION:  Sydney
AMENDMENT:  The following corrections are made to the decision:

At paragraph 7, in the last line the words “hearing on 9 September 2021 provided a real opportunity to be heard" should be replaced with “hearings on 9 and 15 September 2021 provided a real opportunity to be heard”.

Lilly Mojsin
Member

DECISION RECORD

DIVISION: Migration & Refugee Division
CASE NUMBER: 1813137

COUNTRY OF REFERENCE: Pakistan

MEMBER: Lilly Mojsin

DATE: 1 October 2021

PLACE OF DECISION: Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 1 October 2021 at 4.00 pm

CATCHWORDS
REFUGEE – protection visa – Pakistan – particular social group – families at risk due to land dispute – honour killing – returnees from the West – disagreements over an estate – threats from applicant’s wife’s family – armed assault – forced divorce – state protection – legal proceedings – return visits to Pakistan – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 424, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

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 23 April 2018 to refuse to grant the applicants protection visas [PV] under s.65 of the Migration Act 1958 (the Act).

The applicant and his wife, [Ms A] and their daughter, [named] who was born in Australia on [date], claim to be citizens of Pakistan, applied for the visas on 24 May 2017. The delegate refused to grant the visas on the basis that the delegate was not satisfied the applicants would suffer serious or significant harm on their return to Pakistan in the reasonably foreseeable future.

On 21 August 2021 [Ms A’s] adviser contacted the Tribunal and advised that she and her daughter will be making their own claims for protection when her health permits. As the parties were estranged, she requested that the Tribunal split the application. No further information was provided to the Tribunal.

The Tribunal accepted that the applications should be split.

The applicant attended a Tribunal on 9 September 2021 and 15 September 2021. The applicant spoke English and did not require the services of an interpreter, but an interpreter was available to assist the applicant, if required.

In making arrangements to hear the matter via MS Teams during COVID lockdown the Tribunal had regard to the legislative objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video.

The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments in the format which was utilised. The Tribunal was able to interact with the applicant and the interpreter and all parties were able to maintain line of sight and appropriate communication throughout the proceedings. The Tribunal is satisfied that the hearing on 9 September 2021 provided a real opportunity to be heard.

CRITERIA FOR A PROTECTION VISA

See Annexure A

CONSIDERATION OF CLAIMS AND EVIDENCE

From information provided by the applicant in his PV application to the Department, the applicant and his wife are both Sunni Muslims from Sialkot Pakistan. They are cousins.

The applicant obtained a Bachelor [degree] from [University 1] in [year] and in [year] he obtained qualifications to be a [qualified] [Occupation 1] in Pakistan. The applicant arrived in Australia in 2006 as the holder of a student visa. He subsequently obtained a Skilled Visa and later a s.457 Business visa.
The applicant returned to Pakistan [in] December 2008 until [February] 2009 in order to marry his spouse. The couple were married [in] December 2008 and the applicant’s wife arrived in Australia on [date]. Their daughter was born in Australia on [date] and they all returned to Pakistan [in] March 2013 for 2 weeks and again [in] December 2018, returning [in] February 2019.

The applicant claims that
§Several incidents took place as a result of disagreements over an estate left to his wife’s father by her grandfather.
§His wife’s uncles and aunt were disgruntled at not having been left any property.
§The estate consists of a house in [Location 1], Sialkot, [a number of] shops which are located in [Location 2] in Sialkot, several [Building 1s] and a large vacant block of land near [Location 3]. The estimate of the estate is worth over [amount range].
§In 2008, his wife’s aunt coerced his wife, [and family members], to sign over their rights to the land near [Location 3]. They were forced to do so under duress, with armed men present.
§There have been a number of FIRs from his wife’s mother against the opposing uncles and aunts.
§When his wife’s grandmother died in 2008, a traditional ceremony was held after the 40-day mourning period.
§After the prayer and when the mourners left the house, his wife’s uncles and aunt began to attack her family. They were shouting, abusing them and throwing stones.
§One of the uncles was armed with a gun and the ammunition was provided by the aunt. His wife’s brother ran to escape the house but was pursued down the street with the armed uncle.
§He was shot at but sought shelter in a [venue].
§His wife’s aunt and uncles followed his father to his home and fired bullets into the house.
§He and his wife married in 2008.
§In 2015, his wife’s uncles and aunt attended his family home and shot at the house, targeting him and his wife - as they thought the applicant and his wife were in there. He was in Australia
§[In] April 2017, his brother’s car was stopped by an unknown vehicle whilst he was driving in Gujranwala. One of his wife’s uncles and another man emerged from the vehicle and forced his brother to get out of the car. They put his details and whereabouts in Australia.
§He fears being further targeted by these people who have attempted to force him to divorce his wife to entitle them to pursue the estate in dispute, more easily.

The applicant’s statutory declaration of 22 May 2017 states that his wife's grandfather left his estate to his son, but he passed away in 2007. The estate was left to his wife, [and family members], who are legally entitled to the property. His wife's uncles and aunt were disgruntled at not having been left any property. He estimates the estate to be worth over [amount range].

In 2008, [Aunt A], his wife’s aunt, coerced his wife, [and family members], who owned the estate, to sign over their rights to land near the [Location 3], under duress, with armed men present under the premise that they would later be paid for their property. However, [Aunt A] never paid the agreed amount and the matter is now in court along with the other property matters. [i.e. 2017 4 years ago]

There have been extreme familial rifts which have emerged and grown in nature since he married his cousin, whose grandfather is also his [grandfather]. [Uncle B] (uncle), [Uncle C] (uncle), [Uncle D] (uncle) and [Aunt A] (aunt) are politically powerful and wealthy and [Aunt A] is [an official] of the [agency named] "[Agency 1]" in Sialkot, Punjab. Her husband, [Uncle A], is running for political office to become a member of parliament. They also oversee and operate a commerce and several [agencies] in Sialkot. As a result, they are highly connected politically which has led to their claims being disbelieved despite evidence provided and the reporting of these incidents in local newspapers.

The Pakistani Police have advised them not to pursue proceedings against [Uncle A] and the others, otherwise they could face severe consequences, due to their power and wealth. They are even connected to the Magistrate overseeing their civil proceedings.

The applicant fears being further targeted by these people who have attempted to force him to divorce his wife to entitle them to pursue the estate in dispute more easily. His wife is the connection between the two families, and if that connection is severed, they would only need to pursue one family. They wish to emotionally torture her side of the family to weaken them through divorce.

The uncles and aunt want the estate on the basis of the valuable location of some of the assets. Furthermore, it is rumoured that the former owner of one of the properties, before his wife's family owned it, buried a significant amount of treasure there and the whereabouts of that treasure remains unknown. The long term property dispute between his wife's mother on one side and his father on the other side, with three uncles and an aunt also parties to the dispute.

There have been a number of FIRs (First Incident Reports) from his wife's mother against opposing uncles and aunts. The uncles threatened his father and brother, as well as his wife's brother on multiple occasions. In 2007, when his wife's father passed away, the problems commenced but did not emerge until 2008. In 2008, his wife's grandmother died, and after the 40-day mourning period, a traditional ceremony was held. [Uncle C], [Uncle B], [Uncle D] and [Aunt A] attacked his wife's family, accusing them of exhibiting false care to their mother. His wife and her family locked themselves in a room to escape the assault. His parents and brother were also present at this time, they did not leave as they could sense that [Aunt A] and her brothers were ready to launch an assault on his wife and her family. The applicant’s [Brother A] who was present with his parents, attempted to calm them down, saying this was not the way to proceed, he spoke with them to distract them long enough to allow his wife and her family to escape to a car outside the property. His father drove them to safety.

[Aunt A] and her uncles then followed his father to the applicant’s home and fired bullets into the house, and his [Brother B] emerged when the shooting died down and told them to back off. That was when [Aunt A] and the uncles started to become more verbally aggressive, they said that if the applicant’s family protected them, they would also be killed. His family decided that he would offer to marry [Ms A], to bring her to Australia with him. Between that time and the time when his wife migrated to Australia, she was forced to remain in hiding, eventually it was discovered that they were still in hiding at his parent's house, which exposed his family to threat. His wife suffered from extreme depression and psychosis, during this time as she could not leave the property for fear of losing her life.
They married in December 2008 and she then migrated to Australia once she was able to obtain the dependant visa. In 2010, they accused his father and [Ms A’s] brother of harassing them, and the uncles and aunt lodged an FIR against them, but they were found not to have committed any crimes or wrongdoing, and therefore they were innocent of the accusations. By doing so, they were trying to show that they could do whatever they wanted in terms of the court system, despite all his father's efforts to attempt to resolve the issues with the [local official], [named]. He conducted a mediation between them to no avail, they refused to engage in mediation or attempt to resolve the issue. Other relatives attempted to mediate or negotiate

In 2015, the uncles and aunt attended their home, and shot at the house, targeting the applicant and [Ms A] directly, they thought the applicant was in Pakistan since his brother was getting married and so it was assumed the applicant and his wife would be there. They entered the house and searched it from top to bottom, searching for the applicant and [Ms A] and abusing his parents and his brother. They told his mother "we have nothing to do with your family, we are only here for [Ms A] and [her daughter] and we are not planning to harm you."

Due to this incident, his father contacted him and told him not to dare to return to Pakistan and not to attend his brother's wedding, as he and [Ms A] would surely be targeted. His father did not lodge an FIR as he was fearful of further consequences. His brother made a complaint against the uncles and aunt to the police, who advised him that there was not enough evidence to sustain an investigation, even though there were witnesses and gunshots. They rejected his claims and it became evident that the authorities could no longer do anything to protect the family.

His family moved to Multan, which is 500 kilometres away, and they were located there, before they moved again to Gujranwala which was about 55 kilometres away from Sialkot to seek shelter and safety. The uncles and aunt were unaware of his family's whereabouts for close to a year, until last year when they suspect that employees of the [agency] at which his brother was employed were bribed or threatened to release information on the location of his family to them. Once they located them, they called his brother and father and told them they were now aware of their location and they should surrender otherwise further consequences would be faced.

[In] April 2017, his brother's car was stopped by an unknown vehicle whilst he was driving in Gujranwala and [Uncle B] and another man emerged from the vehicle and forced his brother [Brother C] to get out of the car and harassed him and threatened to kill him unless he gave them his details and whereabouts in Australia. They told him that he needed to divorce his wife so that she would have to return to Pakistan so that they could seek revenge on her and her family. They said that they could execute him right there and then and no one would know nor would they be able to locate his dead body. He was terrified and under duress due to having [Uncle B’s] gun pointed at his head and had no choice but to provide his phone number, which caused them to release him. He called him later that night and told him that if he had any calls from unknown numbers, not to answer them or respond at all so as not to confirm his whereabouts. He lodged an FIR against [Uncle B] and his unknown companion. These FIRs may be verified via the Punjab Police website >
Since that date, the applicant has constantly received threatening calls. He mistakenly answered once and [Uncle B] warned him to divorce his wife otherwise his family would continue to face consequences. [Uncle B] said whenever he returned to Pakistan, they would be waiting. [Uncle B] said 'you don't know our power" and that he knew the applicant had a daughter and she would be kidnapped and taken if he ever returned, and she was even at risk in Australia. Since then, the applicant has been receiving weekly telephone calls, some weeks it was sometimes several times a day. He lives in terror that his daughter will be kidnapped whilst she is at school, even though he knows it would be difficult for them to reach them.

Last year his father suffered a massive heart attack, and he warned him not to dare to return to Pakistan as he would be at risk of death and torture. They cannot relocate to India as Indians do not allow Pakistanis to become residents due to the countries being arch enemies. [Brother C] relocated 55 kilometres away to another large city in Pakistan and was still easily located. The aunt and uncles are also capable of lodging arbitrary FlRs to deprive them of liberties and imprison them for periods of time, as has been proven by FIRs lodged against his father and his wife's brother, accusing them of trespassing and theft, leading to a period of imprisonment whilst the matters were being investigated. Both were acquitted of the charges since they had not committed these crimes and had valid alibis.

The applicant did not consider anything more permanent in terms of seeking asylum in Australia as he felt safe and had escaped already on a student visa and later a 485 temporary resident visa, which then transitioned into a 457 visa. His 457 visa was cancelled as his employer sold the business without advising staff, and there was insufficient time for him to locate a new nomination. He lodged an application for judicial review of AAT decision refusing him a visa since he was unaware of his rights to apply for a protection visa. He was not under threat when he came to Australia in 2006 and fully intended to return to Pakistan at some stage, however since he married his wife and the threats and assaults against his family and himself continue to increase, it has become obvious that they cannot return. Their daughter has also been threatened. The threats continue to escalate by the day, since the outcome of the court proceedings nears and they become more and more desperate to reach a settlement before the court makes a ruling. He is certain that they will drag them through the high court and he was having to foot the legal bill by sending money via EFT to his father so that he would not have to incur legal fees personally. He has paid something near to $30,000.00 in legal fees already to date. They believe that he is running the show from Australia, which aggravates them even further. He sought the assistance of a migration agent to help him apply for protection, a concept he was unaware of upon arriving in Australia. He will face injury, harm, torture or death if he is forced to return to Pakistan.

Submitted to the Department were the following documents relevant to this application:
·Copy of FIR dated [on 2 days in March 2008] Report [number] Reporters: [Mother-in-law A]
·Copy of court proceedings at [Court 1], [Mother-in-law A] & Ors v [Uncle B] & Ors
·Copy of sale deed dated [date] between [Relative A] & [Relative B] son of [name]
·Copy of FIR dated [in November 2017] Report No [number] Reporters: [Brother C]
·Copy of FIR dated [on 2 occasions in June 2017] Report no [number] Reporters: [Brother C variant]

The applicant submitted additional documents to the Tribunal being a Psychologist Report dated 5 April 2018 regarding his wife, an urgent referral regarding his wife dated 2014, medical report regarding his wife from [Health Service 1] dated 2014, a document marked to be translated to Urdu, translation of document

In a pre-hearing submission dated 8 September 2021 it was claimed that the applicant:

·holds additional fears for his safety since the deterioration of his relationship with his wife which resulted in the applicant being convicted of offences resulting in a conviction and a period of imprisonment of [period]

·claims to fear harm as member of particular social group Pakistani families at risk of harm due to land dispute and Pakistani persons residing in the West for an extended period of time and men at risk of honour violence due to deterioration of marriage.

·state authorities have been unable to protect the applicant’s family who remain in Pakistan, as evidenced by the pursuit of the applicant’s brother from city to city, whenever he relocated.

·arbitrary imprisonment of the applicant’s father for several days at the bequest of the opposing party.

The applicant’s advisor submits that the Tribunal has remitted matters with a similar factual background being 1608711, 1621948 and 1413873.

The applicant’s adviser has additionally submitted that the applicant will also be denied a capacity to earn a livelihood of any kind, threatening his capacity to subsist, as the serious harm detailed in regard to the attacks on his and his family will make it impossible to live or work in safety, as a result of the applicant and his wife’s involvement and entitlement to the land in dispute. The applicant will be pursued throughout Pakistan due to [Ms A’s] family being displeased with the applicant, and the negative reputation incurred by having a divorced/separated daughter whose actions resulted in the imprisonment of her husband. The applicants would not be protected by police or State authorities should they be forced to return to Pakistan and the police have been involved in the arbitrary imprisonment of the applicant’s own family members.

In regard to the applicant’s criminal convictions, it was submitted that the applicant’s relationship with his wife has previously been strained. However, he is focused on creating a stronger and more supportive relationship with his wife and daughter, which has not been possible due to the imposition of an Intervention Order. He wishes to create a supportive environment for his daughter. He has committed to sustained behavioural change, as evidenced by his willingness to participate in ongoing counselling and treatment programs while incarcerated and his desire to continue with relevant support services upon being released.
The applicant’s statutory declaration provides information in relation to the circumstances surrounding his imprisonment. He claims that he has
·received threats from his wife’s family who blame him for his wife’s mental illness and are upset that the 3rd applicant is in foster care, asking him for details of the carer that is caring for his daughter.
·fears his wife’s brothers, her uncle and aunt. Her uncle is [an Occupation 2] and he is really well known and respected. Her brothers are well off and could pay off the police.
·would be at risk of honour killing in Pakistan because his wife's family are ashamed that she put her husband in jail, they fear having a bad reputation. In Pakistan, reputation is a really serious matter, and they will do anything to clear their name, including killing him. They don't want him to come back to Pakistan, but if he does, they will try to harm him or kill him. If he is free in the community, it will reflect negatively upon them.
·[Brother A] was threatened [in] August 2021. [Relative C] and his friend came to [Brother A’s] shop. [Relative C’s] friend had a gun, and they were looking for him, they asked whether the applicant had been released from prison, to which his brother responded that he didn't know. [Relative C] was banging on the counter and making threats and accusations, he grabbed his brother's phone and got his number from his phone. They repeatedly told [Brother A] "don't act smart with me, I won't spare him if he comes back." His brother argued with them and [Relative C’s] friend slapped his brother, before neighbouring shop owners came in after hearing the dispute and forced [Relative C] and his friend to leave.
·Other members of [Ms A’s] family also contacted his brother [Brother C]. They called him and asked where the applicant was, they accused him of lying when he said that the applicant was in Australia, they said that since his prison sentence had ended, he must have returned to Pakistan. He does not know how they knew he had been released from prison, he thinks his wife knew and told her family.
·concerned about his daughter’s situation as she is now in her third foster care home, and he is detained at [a centre] and his wife has been deemed not to have capacity to care for their daughter at present. It is in the best interests of the child that the daughter be permitted to have a relationship with both of her parents, which will not be possible if he is returned to Pakistan. His daughter will remain in foster care for many years, and he does not know whether she will be safe.
·knows that the police will not protect him in Pakistan, as they are corrupt and can be bribed. As with the land dispute, the police will fail to protect him or reach a just resolution. He cannot relocate to another area of Pakistan to avoid being harmed.

At the Tribunal hearing the applicant said that he obtained a Diploma in [Subject 1] and Bachelor of [Subject 1]. He has been working in [Industry 1], he was working in [an Industry 1 business]. He has been doing [specified] work at [Employer 1] and a lot of jobs [in specified roles]. Then he went into [Industry 1] and the owner of the [Business 1] sold it and he went back to [specified work] in [Employer 2], as a [specified role]. He completed a Bachelor [degree], he studied at [University 1] in Lahore for 3 years. He was living in Sialkot, it is 2 hours away from Lahore. He lived in shared accommodation in Lahore. When he finished his qualifications, he started working in [a business] for 5 to 6 months before he came to Australia.

He married his wife in 2008, and then she came to Australia in 2010. His daughter was born in [year]. He was imprisoned for [period] this year for unlawful assault and intentionally causing injury. He had pleaded guilty. He expressed his remorse and said that he has been in Australia for 15 years and never had any problems. He thought he should be punished and to be more careful in the future. His daughter was taken into foster care in September 2020, she moved back with mother. In June or July wife 2020 his wife suffered a mental health breakdown and was taken to hospital and their daughter has been moved back to foster care. He separated from his wife [in] August 2020. He has not returned back to live with wife. She went to hospital [in] August 2020. She has been suffering from mental issues for the past 8 years. She started suffering mental issues before their marriage in 2007/8.

Asked why he did not lodge his PVA until 2017 he said that he thought he would get residence by studying. In 2015 he worked in a [Business 1]. He appealed a Department visa refusal to the AAT. He applied for protection in 2017 as he believed there would be troubles. He thought there was no need to apply for protection before that. I put to the applicant that he applied for PV as a last resort. He said that he thought there is no need and he did not get any good legal advice and the lawyer he went to said there is no need for a PV.

Asked what has happened to the court case in Pakistan, he said it is going up and down and his brother-in-law has been harassed and threatened and there are other issues. He has been moving all over the place protecting himself. That is why he has not been fully able to fight, he was threatened in the past and he moved to another location and was threatened over there. He moved to Rawalpindi and then he moved to Lahore.

His mother-in-law had the main entitlement to the land. She passed away in 2018/19. Her estate was left to his wife and her [siblings]. They live in Sialkot. But he did not tell anyone where he is. The other [siblings live together]. Asked what they do for a living he said he does not know, he never asked. [Relative C’s family] were protecting him and there was an incident and he moved back to Lahore when he was doing a business [there].

The first court action was in 2008 it was in regard to his wife’ grandfather, [named]. He gave the property to [the applicant’s father-in-law], and after death the uncle tried to get ownership. [Uncle C] brother of wife’s father, [Uncle B] and [Uncle D], [Aunt A] is married to [Uncle A]. [Name] is wife of [the applicant’s father-in-law], she and her children get the property.

The properties were taken by force, when they came into the home with gunmen and weapons and threatened his brother-in-law. The applicant’s father was there too. His father said to [name], his wife’s mother, to leave and then [his wife’s uncles] injured them. After a little while [the applicant’s mother-in-law] went to court as they have taken property illegally. He was not there at the time. they started harassing [Relative C] and he left for 2 to 3 years. He was told he should marry her and he did. The proceedings are ongoing. In the civil court, a decision was made , in 2018. The matter went to a higher court. [One of his in-laws] was not able to deal with proceedings as he was moving over the place. The last he heard was in 2018 his brother in- law has taken the case to a higher court and does not know why.

He referred to an incident in 2013, he said there was compromise by all parties they will hold their horses and to assault each other. The [local official] brought the parties to the table. He went back to Pakistan in 2013. It was his brother’s wedding. Just after the wedding the uncles came in and searched the home and they had weapons with them and they said [Ms A] and her husband in the city. His father told him to stay in home and not to come back. They threatened him as they assumed, he has been financially supporting his in-laws and they wanted his wife to sign a declaration she has nothing to do with it.

Asked why members of his family are threatened and harmed, he said that his brother has been harmed and they could take the time. They want to know his whereabouts.

The applicant confirmed that he is no longer living with his wife, they are separated. He did not agree to separate but he is not able to see her legally. He said she wanted to come to a compromise. He said he had limited access and resources. After that, even when he was in prison, she had another breakdown. I explained that their applications have been split. He heard that she called his aunt to find out what his intentions are and he said that he has not made up his mind.

I put to the applicant that despite the passing of 13 years no-one has been harmed. He responded that his father was severely injured, in 2017. They came in and shot bullets at the residence. When he came out of the home, he said “we have mutual respect and we know [Relative C] is away”. His father said “no” and they him 3 or 4 times with the gun but and injured him. His brother chased them away. His father was hospitalised for close to 10 days. He just had severe wounds and broken bones. Nothing happened to his brother, as his brother was armed. They knew if anything was to go further, his brother was really angry. His father stopped his brother. His brother took his father to the hospital. They told the applicant about the incident a few weeks later.

The applicant confirmed that his wife’s relatives, who are related to her seek to harm them for reasons of her refusal to give away the land to them and/or obtain compensation from the courts. Now he fears harm from her relatives.

Asked who has control of the land he said he thinks they have control, most of the properties were seized by the courts, the shops, the [Building 1] and the house. As for the agricultural land, no-one is taking care of the land. They have the home near Sialkot.

The relatives thought his wife would not be able to stay in Australia. I put to the applicant that if he goes back, he is separated. He said that they will not believe it and until now they have not separated. His brother-in-law is taking it seriously and he has called him many times. He is up for revenge as he assaulted his sister and he is going through a tough time. He has threatened him many times. I put to the applicant that previously he claimed that he and his brother-in-law were together. He said his brother-in-law thinks his sister has been subject to assault and forcing her to negotiation. Now he has turned against him and he said the life he is living in Pakistan is difficult to comprehend and he does not have much respect for the law. From 2018 he never had any interaction with his brother-in-law. Before that he was sure that what he is doing is living unlawful life and not good for him or his family. He is going place to place and does not respect the law. If he goes back, his brother-in-law will harm him. He has sent him about 15 to 20 text messages and he does not care about the police. I put to the applicant that there is no reason the police would not take action. He said the worse that could happen to him is that he could get is a slap on the wrist. That would put his brother and other family in problems. I put that if his brother-in-law attempted to harm him, he would be able to get assistance from the police. He said his brother-in-law came to his brother’s shop and was carrying a gun. I put to the applicant that he can get assistance, he said he would not get time to go and get assistance from police. His brother-in-law has become a very aggressive person.
The applicant said that he fears [several in-laws], they would certainly do it as they have made up their mind. I put that he is able to move to Lahore as he has worked there. He said his brother-in-law has found him by harassing his brother. I put that his brother-in-law could get his information off his wife and did not need to harass his brother-in-law. He said that he changed his number when he was released from prison.

He fears harm from his wife’s uncles and they would think he is lying to them and he would know where she is and they have not divorced. He does not have knowledge or resources. Put he could seek assistance form police if they sought to harm him, he said police are not of assistance, they only help those who are well to do, even the judiciary. The government tried to reform police. These countries will not even listen to him.

In 2010 aunt and family lodged fir against applicant’s father and wife’s brother of harassment – found not to have committed any crime that would indicated a perfectly legal system. He said it is a way of harassing people in Pakistan. If the other party is strong, they could get legal representation they can overcome, he has not been for 15 years so has no idea to tackle this situation. He said his father had the resources and guts to fight those claims but he is alienated from the society, he does not have anyone to assist him. If he went to the police station, he must have evidence. They will not listen to him. Put that there is a functioning legal system. The other party can bargain a compromise and his father was well to do in that society. He knew how to tackle that situation. It is impossible for him due to him time away. His brother-in-law will not give him a chance.

If he divorces her, it would put the family in jeopardy as if a female gets divorced people will think there is something wrong with the family. He will not listen to him and be became a violent person. Put that if he is harmed by brother-in-law, he can gain protection from the police.

Put that he is able to move to Lahore. Put he has lived in Lahore. He said that his father was paid for that and they would know he has moved back. He would harass his brother and his family. Put that he is educated and can get work and live there. He said that is not the point he would know where he is and would make him angrier. Even if he found a job it is easy for his brother-in-law to track him down. I put there are millions of people in Pakistan. He said he would track him down via his brother. Put that he is speculating his brother-in-law would do that.

The day he left prison the brother-in-law started looking for him to see whether he is in Pakistan or Australia and he came to his brother [in] August a week later. Someone must have told him, he thinks it is his wife or her friend and he was looking for him in July. She tried to know where he is, by asking the authorities. His daughter and wife called his auntie if he wants to live with her, it was on 6 July. He has the text messages. His daughter is in communication with his family. Asked if she has communication with him, he said it is subject to her wishes. He said that for her emotional wellbeing he does not want to contact her. The matter is now pending. He was having regular telephone communication with his daughter until March from when he went into prison. It was stopped by police, the prosecutor said that their ongoing investigations, he can write to her if he wishes. He wrote 3 letters and she wrote back once. He tried to get in touch with his daughter via child protection but there was a covid incident.

I asked the applicant if [Uncle A] became an MP, he said he did not.
Asked if his own [Brother C variant] moved to Gujranwala. He said that he stopped him when he was going to his work. He tried to lodge an FIR. This happened in 2017 or 2018. That was the only time that anything happened to [Brother C variant]. Then he got married and moved to Gujranwala. He lives there now. Since 2017 or 2018 his brother has been left in peace. Another brother is in [Country 1] he left in 2017. [Brother B], he is in Sialkot and he was harassed by brother-in-law. [Brother A variant] was harassed by brother-in-law. [In] August, he was harassed to get his phone number.

Brother-in-law is still at odds with his aunt and uncles. [Brother B] was threatened a couple of times. Once in 2015 and 2013 when they came to their home. In 2015 they fired bullets and [Brother B] chased them and his father stopped them.

Asked if anything happened to father, other than incident when he was hospitalised he said there was constant harassment and phone calls. Other than the 2015 incident other parties got involved. His fathers close friend tried to calm things down. His father passed away. Father died in 2018, mother died in 2019. Mother went with brother to Multan and then Gujranwala. His mother lost her husband and was going through being a patient for a number of years. If he told her she might not take it lightly. [Brother C variant] moved to Multan with his parents and his family. Multan is 500-600kilom may be more. His brother was threatened in his office in Multan in 2015. [Brother A variant] went back to Sialkot and started his own business. He married in 2016 and moved back to Sialkot.

At a 2nd Tribunal hearing held on 15 September 2021 I asked the applicant when photocopiers first used in Pakistan and in Sialkot. The applicant was unaware of the date but recalls them being around when he was at university. Discussing the FIRs submitted to Department and Contract of Sale, I noted that they were marked as copies. I put to the applicant that DFAT has stated that document fraud is common in Pakistan. I drew to the applicant’s attention that none of the documents he submitted were original and DFAT does not consider the existence of an FIR to constitute evidence that the events described in the FIR actually occurred. The applicant disagreed. I also noted that the court petition is neither a judgement nor a decision. He said it is ongoing.

I asked the applicant what political party his wife’s uncle had been involved in. He said that it is PLMQ. I put to the applicant that they are not in power now. He said that power is delicate and they both back each other and help, you belong to any party gives you power. I put the fact his wife’s uncle is [an Occupation 2] does not mean he can influence a court case. He said that this happens everywhere in the world, they can manipulate everywhere in the world. I put that he has no evidence that the uncle has interfered in any way. He said that he has heard it. I put that if he has influenced court proceedings, he can sabotage his reputation. I put that if he was so powerful, he could have finished the court case and obtained the land. I put that the law has now changed. He said they had property under their name. He said that in first court they got authority and then high court decided it is disputed property.

I put to the applicant that the aunts and uncles took the land by force in 2008, then there was a court case. That case has continued and none of the parties have been killed. His mother- in-law and father-in-law both have died of natural causes and his wife’s brothers are still alive. He has advised that the matter is before another court and the properties are under the control of the court. Therefore, there is no reason for the aunt and uncles to attack him as they are pursuing the matter in the court. I put to the applicant that had the aunt and uncle had political power they would have been able to have the matter resolved by now.

When put to the applicant that the laws in Pakistan have changed regarding land grabbing and that Pakistan has attempted to deal with illegal dispossession of land. The Illegal Dispossession Act of 2005 was passed in an effort to address the problem, and its execution has been improved with new evidentiary protocols passed in 2016. The applicant stated it is wishful thinking. In 2021 there are articles to say that the court has not as yet been established.

When asked to confirm his parents are both deceased the applicant said that his mother is still alive.

Asked the applicant why he cannot go back to Pakistan and finish his [Occupation 1 qualification]. He said that he got more phone calls from brother-in-law and friends, he got text messages harassing him and abusing him that they will kill him.

I put that he can move to Lahore or Karachi, he said when they got to know their whereabouts, they assaulted them badly.

His brother [Brother C] lives 50 kilometres away. When they know where he is, they will come and get to know where he is. He said it is easy to bribe to get documents and find whereabouts from officials. He said he changed phone number and it took him 3 or 4 days to get his phone number. I put that he cannot trace a person down via their phone number. He said he could track him down by bribes.

Asked the applicant where his wife’s family live. He confirmed one brother lives in Sialkot.

I put to the applicant that current population of Pakistan is 225,991,170. Lahore has a population of 6.3m [Melb + Adelaide] , whilst Sialkot has a population of 477,396 [more than Canberra] and Karachi 11.6m [double Sydney]. I put to the applicant that if he was in genuine fear of harm he could relocate to Lahore where has lived previously. He is educated. He has a Diploma of [Subject 1] now, and [Occupation 1s] are [among the highest paid] occupations in Pakistan. [Occupation 1] is in demand, [Occupation 1] jobs in Pakistan are seen regularly in the newspapers. DFAT noted in its Pakistan report that ‘Internal migration is widespread and common. Large urban centres such as Karachi, Islamabad and Lahore have ethnically and religiously diverse populations, and offer some anonymity for people fleeing violence by non-state actors.’

I put that he has not fled Pakistan Sialkot from harm. He attended [University 1] 100 kms away and his brother lives in Gujranwala which is 50 kms from Sialkot.

I put to the applicant that at the previous hearing he claimed in 2008 his father was present when wife’s mother was forced at gunpoint to hand over land. He came to Australia in 2006 and returned to Pakistan in December 2008, because his “mother said that she wanted to marry him as soon as possible.” The applicant returned to Australia in 2009 and departed again in March 2013. That indicated he did not fear harm on his return at end 2008.

Asked about screen shots he had provided from a person called [Name 1], he said [Name 1] is his mother in law. I put that there is no way indicate who the screen shots are from. He responded they mentioned his name.

I put that his family was aware of his wife’s medical problems in 2009. He said that their argument was that it was not so severe, it is just depression. He said she tried to harm herself in December 2010. She told him not to tell anyone about it. He did not tell anyone and no one knew until now. Her family were traumatised from the incident and everyone was traumatised in 2006. After they married in 2008 one nights she started shouting. In 2009 and 2010 his parents saw her mental health declining and when they talked to her mother, they said she is not dealing well with loneliness and she should go to her husband. Doctor said it is just depression. She did not take medication in Pakistan. She had a miscarriage in [year].

I put that it appeared that honour killings are killing of women and the law in Pakistan has been changed in that regard. New legislation in 2016 means killers will get a mandatory life sentence. He responded that there are laws but his brother-in-law does not respect the law. He is not listening. He is really angry. He has begged him and said forgive me I have done nothing wrong. He has had a one minute or two minute chat and has started to use abusive language. He did not listen.

I put that he told the Department that in 2015 in a statutory declaration dated 22 May 2017, the uncles and aunt attended their home, and shot at the house, targeting the applicant and [Ms A] directly, they thought they were in Pakistan since his brother was getting married and so it was assumed they would be there. I explained that he told the Tribunal that in 2013 when he and his wife had returned to Pakistan it was his brother’s wedding. Just after the wedding the uncles came in and searched the home and they had weapons with them and they said they threatened him and his father. His father told him to stay in home and not to come back. I put that he did not advise the Department of this incident in 2013, he said thinks he did. There were 2 statutory declarations, one from him and one from his wife. I explained to the applicant that the wife’s claims have been separated and the file split so his wife’s declaration would belong to her file.

I explained to the applicant that he told the Tribunal that his father was severely injured in 2017, they came in and shot bullets at the residence. they hit him 3 or 4 times with the gun but and injured him. His brother chased them away. His father was hospitalised for close to 10 days. He just had severe wounds and broken bones. I put to the applicant that he had not advised the Department or the Tribunal in pre-hearing submission of such a severe injury to his father and subsequent hospitalisation. He said he cannot remember.

On 7 April 2021[1] Prime Minister Office announced provision of an exclusive category on the Pakistan Citizen Portal (PCP) for lodging complaints pertaining to land grabbing that the federal government, apart from making efforts to improve public service delivery, was determined to curb land grabbing in the country. Specific instructions shall be issued to the effect that complaints logged in the new category shall carefully be examined, it said, adding in case of private matters, the allegations levelled shall be probed properly by hearing both parties rather than taking action straightaway. On 14 April 2021[2] the PM Khan announced a new law to help mitigate the sufferings of people fallen victim to illegal dispossession and ensure strict action against the land grabbers,” the prime minister said. There will be a fast track to hear these matters.
[1] New land grab law soon: Imran - Profit by Pakistan Today type="1">
I discussed with the applicant have not found any independent evidence to suggest that an ethnic Salafi Muslim would suffer serious harm in Sialkot District. Country information to the applicant that Sunnis live and work throughout the country, including in urban centres in Lahore, Rawalpindi, Islamabad, and Peshawar, and that Sunni communities are generally well integrated in Pakistan. It cited the DFAT report that there is no evidence of systemic discrimination against Sunnis in gaining employment generally do not face discrimination on the basis of their religious affiliation. It noted that Sunnis are well represented in Parliament.

Put that security situation in Pakistan is complex, volatile, and affected by domestic politics, politically motivated violence, ethnic conflicts, sectarian violence, and international disputes but it affects all people equally. Government and military operations have disrupted the activities of militant groups and limited their access to former safe havens, and Military courts have tried and convicted individuals with links to terrorist organisations

Put that between when his wife and family were attacked and the time when his wife migrated to Australia, she was forced to remain in hiding. Put he claims he was threatened with harm in 2013 when his family home was attacked when he was visiting and he claims that his family home was again attacked in 2015, when he was not at the home but the perpetrators of the attack were looking for him and his wife to harm them. The applicant did not apply for a PV until 24 May 2017. When put to him that he did not apply for a PV until he extinguished all other visa avenues to remain in Australia, he responded that 2013 when he went in 2013, he was on temporary visa. He said he was advised by an immigration lawyer. Put that it indicates he did not fear harm. He said he never thought they would stoop that low. He was testing the waters.

His father was imprisoned, the applicant said he cannot remember when, he is not good with dates. I put that he was able to remember when he went to hospital. He said his father was imprisoned because they put a fake claim against them that he tried to harass them, steal money and a Rolex watch from them. Asked who the other party was, he said it is the uncles of his wife. They put an FIR and police arrested his father, he does not know when he got bail. His father went to court and got bail. He got bail and the charges were an ongoing investigation.

I asked how he got the screen shot of the sender’s phone. I put to the applicant that in regard to the translation of a claimed telephone calls I cannot identify who the calls are from. I also put to the applicant that his wife’s family were well aware of her mental history and he advised the Department in his statutory declaration in 2017 that his wife suffered from extreme depression and psychosis when she was waiting to come to Australia so I find it implausible his claim that her family now seek to blame him for her mental condition.

Asked what he fears about returning to Pakistan, he said there is severe intention of harm towards him, by his brother-in-law and her uncles. They will not believe him.

Post hearing the applicant provided a Certificate of Completion of Anger Management dated [in] September 2020, and translation of screens shots from an overseas phone number threatening the applicant on his return.

REASONS AND FINDINGS

On the basis of his Pakistani passport, I accept that the applicant is a national of Pakistan and not a national or citizen of any other country. I accept that the applicant does not have a right to enter and reside in any country other than Pakistan. Therefore, I find that the applicant is not excluded from Australia's protection by subsection 36(3) of the Act. I also find that Pakistan is the applicants’ “receiving country” for the purposes of s.36(2)(aa).
Country Information

In considering the applicant's claim I have considered the country information available in relation to Pakistan, including the Department of Foreign Affairs and Trade Country Information Report, Pakistan dated 20 February 2019 (the DFAT Report').

Corruption

2.18 Corruption is widespread and systemic. The private sector GAN Business Anti- Corruption portal claims the Pakistan government is unable to guarantee integrity in state bodies and prevent corruption, despite an adequate legal framework. Transparency International's 2017 Corruption Perceptions Index ranked Pakistan 117th out of 180 countries, equal with Ecuador, Egypt, Gabon and Togo. Pakistan's estimated 12.8 per cent tax to GDP ratio is low by international standards, with the Pakistan economy ranking 172nd out of 190 countries for paying taxes.

2.19 Bribery, is prevalent in law enforcement, procurement and provision of public services. The judiciary is not seen as reliably independent and has been accused of shielding corrupt political practices from prosecution.

2.20 In April 2016, leaked documents from a Panama law firm detailing private financial information of its clients (the 'Panama Papers') included information on then Prime Minister Nawaz Sharif and members of his family. The Supreme Court of Pakistan disqualified Sharif from office in 2017 in relation to the Panama Papers revelations, ruling that he was not an 'honest and trustworthy' person: a constitutional requirement for holding public office. Nawaz was sentenced to ten years imprisonment in July 2018, along with his daughter Maryum (7- year sentence) and his son in law (one-year sentence). Nevertheless, in September 2018, the Islamabad High Court suspended the verdict, stating the National Accountability Bureau (NAB) had failed to provide evidence for corruption.

2.21 The NAB also filed cases against: former Finance Minister Ishaq Dar, claiming his assets were disproportionate to known sources of income; and Shahbaz Sharif, former Chief Minister of Punjab and brother of former Prime Minister Nawaz Sharif, claiming corruption in a low-cost housing scheme that was introduced in Punjab during his time as Chief Minister. As at January 2019, a further three cases are pending against Nawaz, with additional proceedings on the horizon for Shahbaz.

Prevalence of Fraud

5.70 CNICs, SNICs and passports contain a number of security features, which have reduced the incidence of document fraud. Authorities have put in place measures to combat the fraudulent issuance of documents, and can cancel fraudulent CNICs.

5.71 Document fraud is widespread for forms of documentation not issued by a competent central authority such as NADRA. Due to the relative ease in acquiring fraudulently obtained genuine documents, such documents are common in Pakistan and are generally preferred over counterfeit documents, as they are difficult to detect. Fraudulently obtained genuine documents, such as CNICs and passports, can be obtained with fraudulent (altered or counterfeit) feeder documents. Types of documents historically found to be fraudulent in Pakistan include, but are not limited to, documents regarding academic qualifications such
as degrees and transcripts, bank statements, agreements, references, and ownership deeds.

5.72 Union councils and NADRA can verify fraudulent documents, although detection is difficult where genuine documents were obtained with fraudulently altered or counterfeited primary documents. NADRA now issues birth certificates, but fraudulently obtained, fraudulently altered or counterfeit certificates are still possible as long as hospitals retain the authority to issue birth certificates.

5.73 FIRs use standard forms with the relevant information written in by hand and are relatively simple to counterfeit. Reports exist of police accepting bribes to verify fraudulent FIRs. DFAT does not consider the existence of an FIR to constitute evidence that the events described in the FIR actually occurred.

5.74 Fraudulently altered or counterfeit school records, birth certificates, death certificates, medical records, bank records and other documents are common. Local sources report instances where influential people have paid news organisations to publish false stories.

5.76 Corruption is also common (see Corruption), however in August 2015, the FIA reportedly investigated allegations of NADRA officials issuing fake CNICs to militants in return for bribes as low as USD 100.

Since then, MoI has increased its oversight of NADRA and implemented tough measures against fraud within NADRA. DFAT assesses that government efforts have reduced the incidence of bribery and fraud, but have not eliminated it.

An FIR[3] is an account of a cognizable (i.e. over which police has jurisdiction) offence that is entered in a particular format in a register at the police station. Every person has a right to report any matter at the concerned police station and have a case registered in the form of an FIR. The matter may be reported orally or in writing to an officer at a police station or on patrol. An officer who receives an oral report shall reduce it to writing and cause it to be recorded in the FIR register. A certified copy of the FIR, signed by an officer bearing the stamp of the police station is to be provided to the person who reports the crime. No police officer has the authority to refuse registration of a case. In case a crime is reported and a case is not registered, the person who reports the crime must inform the Sub-Divisional Police Officer or the Superintendent of Police or the District Police Officer responsible for law and order in that particular area.
[3] type="1">
According to the UK Home Office, Country Policy and Information Note, Pakistan: Land Disputes[4],
[4] disputes are prevalent in rural and urban areas across Pakistan. Illegal dispossession of land is reported to be largely committed by influential persons including feudal lords, politicians, builders, government functionaries or heads of large communities. Individuals and groups, known as the ‘land mafia’, take or claim ownership of land and are known to dispossess true owners through legal or illegal means.
Land and property disputes occur between individuals and families and are often settled by force. False accusations of blasphemy are sometimes used to settle personal scores in land disputes. Although more than 80 per cent of reported blasphemy cases are acquitted on appeal, allegations of blasphemy can lead to mob violence against the accused, particularly if from a religious minority group. Police and judicial bias is also reported.
Remedies under civil and criminal law exist for land disputes in Pakistan and there are established judicial processes in place for their resolution. A revenue court system has jurisdiction over disputes regarding land documents, tenancy, land revenue, and land transactions. Pakistan’s formal court system also has jurisdiction to hear land cases. However, both at local government level and federal level, courts dealing with land disputes suffer from a backlog of cases, poor training and can be subject to corruption. The Illegal Dispossession Act has apparently had little success in addressing the problem effectively. Violent crimes committed over disputed land have occasionally resulted in arrests by the police
1. The security situation in Pakistan is complex, volatile, and affected by domestic politics, politically motivated violence, ethnic conflicts, sectarian violence, and international disputes with India and Afghanistan. According to the South Asian Terrorism Portal (SATP), 3684 civilians have died in terrorism-related violence between 2014 and mid-January 2019. Pakistan continues to face security threats from insurgent, separatist and sectarian militant groups.
1. Security and law enforcement personnel were the target of the largest number of attacks during 2018 (136 attacks, or 52 per cent, killing 217), however the most lethal attacks were against political leaders and workers (24 attacks, killing 218). Politicians remain at risk of assassination. 47 attacks (killing 51) targeted civilians, seven targeted Shi'a, two targeted Christians, one targeted Hindus, one targeted Sikhs, and six targeted educational institutions (see Religion and Education). Moreover, four terrorist attacks (killing 8) targeted religious minorities in 2018 (compared to six in 2017), and up to six incidents of faith-based, individual or communal violence (killing 4) were also reported (compared to 5 in 2017). The government's ability to maintain law and order against politically motivated violence is limited. Demonstrations often occur after Friday prayers and can be the target of terrorist attacks. In the lead up to the 2018 election (May to July), 19 terrorist attacks targeted political leaders, workers and election gatherings, rallies and offices, an 87 per cent decrease from the 148 attacks recorded prior to the 2013 elections (March to May). Nevertheless, the lethality increased, with 215 deaths perpetrated by ISIL and the TTP during the 2018 election campaign, compared to 179 deaths perpetrated by nationalist groups, the Taliban and other groups in 2013. Incidents of election related political violence declined from 80 incidents in 2013 (March to May) to 13 in 2018 (May to July).

Government and military operations have disrupted the activities of militant groups and limited their access to former safe havens, and Military courts have tried and convicted individuals with links to terrorist organisations

I note that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might be possibly true (see MIMA v Rajalingam (1999) 93 FCR 220).

However, the Tribunal is not required to accept uncritically any, or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that that the particular assertion by an applicant has not been made out (see, Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR
547).

The assessment of the applicant’s credibility and reliability as a witness is a matter of central importance to my consideration and determination of the application. I accept that there may be errors, omissions or misunderstandings that cannot be automatically attributed to an applicant's credibility or the applicant not being truthful. I am not required to accept uncritically any and all claims made by an applicant. In assessing credibility, I have also been guided by the Tribunal’s 'Guidance on the Assessment of Credibility' , 'Guidance on Vulnerable Persons' and ‘Guidelines on Gender’. I am also mindful that in the process of asking further questions and commenting on those questions during the process of assessing an applicant’s claims may mean that it is feasible an applicant will provide new information when he is asked to respond to or provide more details. I am also mindful that there can be interpreting errors, cultural differences and plausible explanations for inconsistencies other than deliberate falsehoods. I am also mindful that applicants who suffer from nervousness, anxiety, depression and or post-traumatic stress disorder may have difficulty remembering all recounting aspects of their claims. In particular they may block out or neglect to mention upsetting or traumatic experiences. I am also mindful that just because one part of an applicant’s claim is exaggerated does not mean that the entirety of the claim is dishonest.

At the 2nd Tribunal hearing the applicant said that he is a Salafi Muslim. DFAT[5] stated that a smaller number of Sunnis (around five per cent) follow the Ahl-e-Hadith (Salafi) school in Pakistan. According to the International Crisis Group, most Sunni militant groups in Pakistan claim to follow a form of Deobandi or Salafi Islam. The applicant is neither a political leader nor political worker nor a member of a religious minority. The applicant made no claim of harm for being a Salafi Muslim or for his political opinion or perceived political opinion and none is suggested by the evidence before me.
[5] DFAT Country Information Report 2019 Pakistan

Sialkot, where the applicant lived, is a city in Punjab, Pakistan. It is Pakistan's 13th most populous city and is located in north-east Punjab—one of Pakistan's most industrialised regions. Sunni Muslims are the predominant majority Muslims in Sialkot District. I find that the applicant did not suffer serious harm in Pakistan for reasons of his race, nationality, religion or his political opinion.

The applicant claims fear of harm at the hands of his wife’s relatives, non-state actors, who have threatened and attacked the applicant and his wife, and their family over an estate left to his wife and [family members], by her grandfather. The estate consists of a house located [at Location 1], Sialkot, a prized [location], [number] shops located in [Location 2] in Sialkot, prime real estate for business owners, several [Building 1s] also in [Location 2] and a large vacant block of land near [Location 3].

I have considered whether the applicant belongs to a ‘particular social group’. The applicant’s first advisor, in a submission to the Department, submitted that the applicant belongs to a particular social group ‘persons persecuted as a result of land disputes’, and ‘persons at risk of arbitrary imprisonment and harm on the grounds of these ongoing disputes’. The second advisor suggested that the applicant is a member of the groups ‘Pakistani families at risk of harm due to land dispute’, ‘Pakistani persons residing in the West for an extended period of time, and ‘men at risk of honour violence due to deterioration of marriage’.

‘Particular social group’ is defined in s 5L of the Act. I must be satisfied that:
·there is a relevant social group of which the applicant is a member; and
·the persecution feared is for reasons of membership of the group.

A particular social group is a collection of persons who share a certain characteristic or element which unites them and enables them to be set apart from society at large. But the characteristic or element which unites the group cannot normally be a common fear of persecution. The applicant’s adviser submits that the applicant belongs to a particular social group ‘Persons persecuted as a result of land disputes’, ‘persons at risk of arbitrary imprisonment and harm on the grounds of these ongoing disputes’, ‘Pakistani families at risk of harm due to land dispute’, ‘Pakistani families at risk of harm due to land disputes’ and ‘men at risk of honour violence due to deterioration of marriage’. The characteristic or element which unites the group is a common fear of persecution. I find that such groups are not a particular social group.

In regard to a group identified by the applicant’s agent as ‘Pakistani persons residing in the West for an extended period of time’, I have no evidence before me to suggest that Pakistanis are harmed on their return from western countries after an extended stay. DFAT assesses that DFAT[6]6 assesses that returnees to Pakistan do not face a significant risk of societal violence or discrimination as a result of their attempt to migrate, or because of having lived in a western country. Therefore, I find remote the chance or the risk that the applicant will suffer serious or significant harm on his return to Pakistan within a reasonably foreseeable future for reasons of being a Pakistani person who has resided in the west for an extended period of time.
[6] DFAT Country Report Pakistan 2019

I accept that the applicant belongs to the social groups his ‘family’ and his wife’s ‘family’. But I do not accept that these are a particular social group as defined in s5L, because the fear of persecution is not for a reason mentioned in paragraph 5J(1)(a) but for what he and his wife and/or her family have done i.e. refused to give away ownership of property or assist his wife’s family in refusing to give up the land.

I do not accept that the applicant fears harm from his wife’s family over an inheritance and subsequent proceedings in the courts. I do not accept that her family are politically connected or that the applicant’s wife or the applicant or the applicant’s immediate family were threatened by his wife’s extended family prior to her marriage and departure to Australia and they continually threaten the applicant. The applicant’s evidence was both implausible and inconsistent as described below.

Firstly, the applicant referred to an incident, in a statutory declaration dated 22 May 2017, attached to his PV, that in 2015 his family was shot at and attacked, at the time of his brother’s wedding. He claimed that he was not in Pakistan at that time but the perpetrators of the attack sought to find him and his wife, believing they had come to Pakistan for the wedding. At the Tribunal hearing the applicant claimed that he had returned to Pakistan in 2013, and whilst there for his brother’s wedding, he was present when his immediate family was attacked. When the inconsistency was put to the applicant, and I explained to him that he had not advised the Department of this incident in 2013, he said he thinks he did. He said there were 2 statutory declarations, one from him and one from his wife. I explained to the applicant that the wife’s claims have been separated and the file split so his wife’s declaration would belong to her file. I have considered whether the claim was made in his wife’s statutory declaration and I note that in the Department decision, attached to his review application, the Department delegate did not refer to the applicant’s wife claiming that the family were shot at in 2013. His wife also claimed it occurred in 2015 when they both were not present in Pakistan. I am satisfied, therefore, that the applicant did not advise the Department of this claim. I am satisfied that his evidence is inconsistent.

Secondly, the applicant told the Tribunal, at hearing, that his father had been severely attacked when hit by the butt of a gun during an attack at his home. His father was hospitalised as a consequence of this attack. I put to the applicant that he had not advised the Department, or the Tribunal in pre-hearing submission, of such severe injury to his father and subsequent hospitalisation. He said he cannot remember. I note that the applicant has also claimed that he is not good with dates. I have no information before me to suggest that the applicant suffers from memory problems or that he cannot recall events. I am of the view that the applicant has claimed to have memory recall problems to overcome omissions and inconsistencies, in order to enhance his claims.

Thirdly, the applicant arrived in Australia in 2006. He claims that in about February/March 2008, after his own family were threatened with harm he returned to Pakistan in December 2008 to marry his wife. This return to Pakistan indicates a lack of a subjective fear of harm.

Fourthly, the applicant returned again to Pakistan, with his wife and child, in 2013. This was after he claimed that his wife had been in such in fear of her life prior to her departing Pakistan that she had been in hiding from the time that the land was taken until she left for Australia in 2010. Again, this return in 2013 indicates a lack of a subjective fear of harm.

Fifthly, the applicant claims he was threatened with harm in 2013 when his family home was attacked, again attacked in 2015 when he was not at the home, and the perpetrators of the attack were looking for him and his wife to harm them. The applicant did not apply for a PV until 24 May 2017. When put to him that he did not apply for a PV until he extinguished all other visa avenues to remain in Australia, he responded that when he went back to Pakistan in 2013, he was on temporary visa. He was advised by an immigration lawyer. When I put that returning in 2013 indicated he did not fear harm, he said that he did not think that they [his wife’s relatives] would stoop that low. He was testing the waters. I do not accept his explanation that he was ‘testing the waters’. I am of the view it is an invention made to to enhance his claims.

Sixthly, the applicant claimed that his wife’s family are politically connected and influential. Her uncle is [an Occupation 2] and he ran for parliament, but he was not elected. When asked which political party he belonged to that gave him giving him political influence he said that it was PMLQ [Pakistan Muslim League]. I put to the applicant that they are not in power now. He said that you belong to any party gives you power.

The independent evidence before me indicates that in 2018 National Assembly elections, the Pakistan Tehreek-e-Insaf (PTI) received the most votes and won the most seats. In Punjab, the result was a hung parliament with the Pakistan Muslim League (N) (PML-N) winning the most seats. However, after several independents MPAs joined the PTI, the latter became the largest party and was able to form a government. I accept corruption exists in the political sphere in Pakistan but I do not accept as plausible that an unsuccessful political candidate, from the non-ruling political party, would be able to exert great influence sufficient to overcome Pakistani property laws.

I also put to the applicant that his wife’s uncle is [an Occupation 2] but this does not mean that merely being [an Occupation 2] ensures that he can influence a court case. He said that this happens everywhere in the world, they can manipulate everywhere in the world. I put that he has no evidence that his uncle has interfered in any way in the court process. He said that he has heard it. I put that if the wife’s uncle was so powerful, he could have finalised the court case and obtained the land. I also put that the law has now changed. He said they [uncles] had property under their name. He said that in first court they got authority and then high court decided it is disputed property. I do not accept that the applicant’s uncle was able to influence the court. The applicant claims the court has taken control of the properties and the matter is now before a superior court, awaiting a hearing. This indicates that the matter will be decided, in due course, according to Pakistani laws. I reject his claim that the uncles and aunt have influenced the court.

Further, the applicant claims that his uncles and aunts have been attacking him, his family and his wife’s family continuously. He claims that they are so powerful and influential, that the police did not take action against the uncles and aunts attacking the applicant’s and his wife’s family. I note that the applicant also claims that his father was imprisoned as the consequence of the uncles and aunt taking an FIR against them. The applicant claims that his father and/or family were found to be innocent and his father was released. I accept that there is corruption in both the police and the judiciary in Pakistan. I note that the uncles and aunt are litigating their claims in court. I am of the view had the aunt and uncle had any political or legal influence, they would have been able to have their land claim resolved, in their favour by now.

These inconsistencies raise concerns in relation to the applicant’s credibility and the veracity of his claims and lead me to conclude that the applicant has created his claims in order to obtain the visa sought and he is not a witness of truth.

In light of the above inconsistencies I am satisfied the applicant has not been truthful in his claims before the Department and the Tribunal. I am satisfied that the applicant’s wife’s family were not disposed of their land by their relatives, they were not attacked or harmed, and neither the applicant nor any member of his family was attacked or harmed over land owned by his wife’s family.

Therefore, I find that:
§His wife’s uncles and aunt were not disgruntled at not having been left any property, they forcibly took property by coercing the applicant’s mother-in-law to sign documents,
§there is not a legal matter regarding the land grab now in court and the applicant has paid nearly $30 000 in legal fees.
§Pakistani Police have not advised the family not to pursue proceedings against the wife’s aunt and uncles or that the aunt and uncles are connected to the Magistrate overseeing their civil proceedings.
§There have not been a number of FIRs from his wife’s mother against the opposing uncles and aunts.
§In 2008, his wife’s uncles and aunt did not begin to attack her family. The applicant’s brother- in-law was not shot. His father’s home did not have bullets fired into the house.
§In 2010, they did not accuse his father and [Ms A’s] brother of harassing them, and the uncles and aunt did not lodge an FIR against them.
§In 2015, his wife’s uncles and aunt did not attend his family home and shot at the house, targeting him and his wife
§[In] April 2017, his brother’s car was not stopped by an unknown vehicle whilst he was driving in Gujranwala and forced to provide the applicant’s phone details and whereabouts in Australia.
§Did not attempt to force him to divorce his wife to entitle them to pursue the estate
§The uncles did not threaten his father and brother, as well as his wife's brother on multiple occasions.
§The applicant’s wife’s uncles and family are not politically connected
§The applicant’s brother has not been pursued from place to place
§His family did not move away from the family home for about a year
§The applicant has not constantly received threatening calls, weekly, some weeks it was sometimes several times a day threatening him.
§His daughter was not threatened and he does not live in terror that his daughter will be kidnapped
§his father was neither imprisoned nor hospitalised as a victim of the applicant’s wife’s extended family

I have considered the following documents:
·Copy of FIR dated [on 2 days in March 2018] Report [Number] Reporters: [Mother-in-law A] translation by Notary Public
·Copy of court proceedings at [Court 1], [Mother-in-law A] & Ors v [Uncle B] & Ors.
·Copy of sale deed dated [date] between [Relative A] & [Relative B] son of [name]
·Copy of FIR dated [in November 2017] Report No [number] Reporters: [Brother C] attested to be a copy
·Copy of FIR dated [on 2 occasions in June 2017] Report no [number] Reporters: [Brother C]

The FIR dated [on 2 days in March 2008] Report [number] Reporters: [Mother-in-law A], Copy of FIR dated [in November 2017] Report No [number] Reporters: [Brother C] is attested to be a copy as is Copy of FIR dated [on 2 occasions in June 2017] Report no [number] Reporters: [Brother C variant]. As there are no original documents produced and as DFAT reports that document fraud is common in Pakistan I place no weight on this document.

In regard to the document marked court proceedings at [Court 1 variant], [Mother-in-law A] & Ors v [Uncle B] & Ors it is also not the original document, it is unsigned, and it is petition to a court. I place no weight on it.

As for the Copy of sale deed dated [date] between [Relative A] & [Relative B] son of [name] it is a copy not an original and it is neither signed nor witnessed. I place no weight on this document.

As the applicant did not suffer any harm in Pakistan for reasons of his race, religion, nationality, membership of a particular social group or political opinion I find therefore that the applicants had no adverse profile in Pakistan prior to departing for Australia, for any of the reasons enumerated in s.5J(1)(a). I find the applicant did not flee Pakistan fearing harm and did not have an adverse profile in Pakistan.

I required to consider if there is a real chance or real risk the applicant will suffer serious or significant harm within a reasonably foreseeable future on his return to Pakistan.

As stated above, I do not accept that the applicant’s wife’s family were disposed of land and that her family seek to harm the applicant for that reason. As neither the applicant nor his immediate family nor his wife’s immediate family suffered harm in the past for their land ownership, I find remote the chance or the risk that the applicant will suffer serious or significant harm on his return to Pakistan for ownership of his wife’s family’s land holdings.

I have considered the applicant’s claims that his brother-in-law seeks to harm him and has been sending him text messages threatening him. He claims that he fears being the victim of an honour killing. He claims that his wife's family are ashamed that she put her husband in jail and they fear having a bad reputation. They will do anything to clear their name, including killing him. They don't want him to come back to Pakistan, but if he does, they will try to harm him or kill him. If he is free in the community, it will reflect negatively upon them.

In support of this claim the applicant has provided a copy of translated screen shots. One telephone account was the account was unnamed with a telephone number listed at the top of the page and the other account was in the name of [Name 1], who he explained is his mother in law. When I put to the applicant that I could not be satisfied who the telephone messages were from, he responded they mentioned his name. As applicant purports to claim that his brother-in-law’s made the threats and neither phone identifiably belongs to his brother-in-law, I place no weight on the telephone screen shots as evidence that anyone overseas was seeking to harm him on his return. As I do not accept that the applicant is a witness of truth, I do not accept that the applicant’s wife’s family seek to harm the applicant, or that they blame him for his wife’s mental illness or have threatened him or have threatened to kill him because of their honour or for any other reason. I also do not accept that his [Brother A] was threatened. I find remote the chance or the risk that the applicant will be harmed by his wife’s family.

The applicant and his wife are separated and have been separated for the past year. The applicant has been imprisoned for [period] in Australia. I accept that he is estranged from his wife, child and his wife’s family. I accept that he has attended anger management training.

The applicant claims that he will suffer harm because he will be the victim of an honour killing. He claims that his wife’s family are attempting to force him to remain married to his wife because they are concerned about the family reputation. As I do not accept the applicant is a witness of truth, I do not accept this claim and I also do not accept that the family have threatened his brother.

The applicant indicated he would not be able to work in Pakistan. I note that in 2019, the unemployment rate in Pakistan was at approximately 4.45 percent, a slight increase from 4.08 percent the previous years[7]. DFAT states that in 2017, the total labour force of Pakistan comprised approximately 64 million people, of whom 42 per cent worked in agriculture, 23 per cent in industry, and 35 per cent in services. The applicant has [Occupation 1] skills. He has a bachelor’s degree from a university in Lahore and he has studied in Australia. I do not accept that the applicant will be unable to obtain employment in Pakistan for a refugee reason. I have no evidence before me to support this claim. DFAT reports that there is no evidence of systemic discrimination against Sunnis in gaining employment and they generally do not face discrimination on the basis of their religious affiliation. It noted that Sunni Muslims are well represented in Parliament. I have no evidence before me to suggest that Salafis are unable to obtain employment in Pakistan. Therefore, I find remote the chance that the applicant will be unable to obtain employment for a refugee reason in Pakistan.
[7] type="1">
The country information[8] indicates that any failure to provide the applicant with employment will be due to the Pakistani economy rather than any intentional act or omission. I also find that the risk of harm in Pakistan is one faced by the population of Pakistan generally and not faced just by the applicant personally. I am not satisfied there is a real risk the applicant would suffer serious or significant harm for this reason.
[8] DFAT Report Pakistan 2019

The applicant claims he will not have a place to live in Pakistan as his brothers are now living with his parents and there is no more room for the applicant and his family. Whilst he believes that he and his wife will reconcile, I find this belief is mere speculation. I am satisfied that the applicant will be able to live with his family.

The applicant does not suggest, and nor does the independent evidence suggest, that protection is withheld to Salafi Muslims in Sialkot District or Punjab or those that return from abroad. The applicant does not suggest that he will suffer serious or significant harm on his return for reasons of his race, religion, nationality or political opinion. I have no information before me to suggest that an ethnic Salafi Muslim would suffer serious or significant harm in Sialkot District.

There is a functioning legal system and police service in Pakistan. I accept there are instances of corruption and police abuse. In regard to a reasonably effective police force, the US Department of State noted in its Human Rights Report for 2019: ‘Police have primary domestic security responsibility for most of the country. Local police are under the jurisdiction of provincial governments. According to UK Home Office Report ‘Country Policy and Information Note Pakistan: Actors of protection’ dated June 2020

A 2017 report by the WJP, which captured data on the experiences and perceptions of over 4,000 people in Pakistan regarding the rule of law in their country, noted: ‘Incompetence of criminal investigators was cited as the most serious problem facing criminal investigative services in Pakistan. Regarding police conduct, 32% of respondents believe that police always or often act according to the law, and 30% believe that police are always or often punished for violating the law. While these views have fluctuated since 2013, perceptions of police corruption and respect for suspects’ rights have improved in recent years.’

According to the DFAT report, regarding the police: ‘The effectiveness of provincial police forces in Pakistan and the challenges faced by these forces vary. However, overall, police capacity in Pakistan is limited, due to lack of resources, poor training, insufficient and outmoded equipment, and competing pressures from superiors, political actors, security forces and the judiciary. Sectarian violence and domestic terrorism diverts resources from community “policing” to a more incident response and security/guarding role.

As well as law enforcement agencies[9], the criminal justice system comprised of ‘criminal courts set up under the 1898 Criminal Procedure Code (CrPC); special (civilian) courts such as the antiterrorism courts established under the 1997 Anti-Terrorism Act; military courts; and corrections departments organized at the provincial level. Under the Constitution[10], law and order is the responsibility of the provinces that discharge it through their provincial governments. In the provinces, the criminal justice system is managed through the Home and Prosecution Department.
[9] UK Home Office Report ‘Country Policy and Information Note Pakistan: Actors of protection’ dated June 2020
[10] type="1">
In relation to the judiciary the UNHRC[11] expressed concern at, ‘the challenges facing the judiciary in strengthening its independence and effectiveness, including the lack of transparency of judicial appointment procedures; the shortage of judges and long-term judicial vacancies; insufficient budget allocation; the considerable backlog of cases; the lack of high-quality legal education and continuing professional training for legal professionals; and corruption in the judiciary. According to UK Home Office[12], which captured data on the experiences and perceptions of over 4,000 people in Pakistan regarding the rule of law in their country, noted ‘When it comes to criminal courts, inadequate resources were cited as their most serious problem. Views on how often courts guarantee everyone a fair trial and perceptions of corruption have both fluctuated since 2013.
[11] UNHRC, ‘Concluding observations on the initial report of Pakistan’ (para 31), 23 August 2017
[12] UK Home Office Report ‘Country Policy and Information Note Pakistan: Actors of protection’ dated June 2020

The US State Department Report Human Rights Practices 2019 stated: ‘Extensive case backlogs in the lower and superior courts undermined the right to effective remedy and to a fair and public hearing. Antiquated procedural rules, unfilled judgeships, poor case management, and weak legal education caused delays in civil and criminal cases.

In regard to the Punjab, the government of Punjab is developing an Integrated Criminal Justice System (ICJS)[13] under which departments such as the police, prosecution, reclamation and probation, judiciary and prisons, which are directly or indirectly related to the criminal justice system, will be integrated through a central computerised system. An officer shared that the system would reduce data entry redundancy and paper-based processing. “It will also improve information accuracy and information timeliness. The system will help track the progress/status of a particular case and a criminal,” he said. “Besides, more than one person or agency may view a file at a time.”
[13] type="1">
I have no evidence before me to suggest that Pakistani citizens suffer serious or significant harm at the hands of non-state actors and/or do not receive the protection of their government. Therefore, I find remote the chance that state protection will be withheld from the applicant.

As I have rejected all his claims about harm from family and relatives because his wife’s family will harm him if she does not give them her family property, I am satisfied that there is not a real chance the applicant will suffer serious harm on his return to Pakistan for a refugee reason, within a reasonably foreseeable future.

The applicant claims he will not have a place to live in Pakistan as his brothers are now living with his parents and there is no more room for the applicant and his family. Whilst he believes that his wife’s family will reconcile, I find this belief is mere speculation. I am satisfied that the applicant will be able to live with his family.

I have considered the applicants’ claims and evidence individually and cumulatively. Whilst I note the independent evidence, cited above, regarding the security situation in Pakistan, I find that the applicant does not have a real chance that, if returned to Pakistan, he would suffer persecution for one or more of the reasons mentioned in paragraph 5J(1)(a). I find that the applicant does not have a well-founded fear of persecution for these reasons.

I have considered whether the applicant meet the complementary protection criterion under s.36(2)(aa).

The applicant claims to fear harm from non-state actors, his brother-in-law, and the uncles and aunt of his wife. The applicant's claims for complementary protection are the same as those put forward in relation to his refugee claims.

I am not satisfied, as discussed above, that the applicant has suffered any serious harm in the past. I have not accepted that the applicant has been or will be pursued by members of his wife’s family because his wife inherited land in Pakistan, or that her brother seeks to harm him on his return. Even were I to be wrong, and the applicant’s brother-in-law, a non- state actor, seeks to harm the applicant, I am satisfied, as stated above, that there is no information before me to suggest that protection would be withheld to a Salafi Muslim. Therefore, I find remote the chance that the applicant will suffer significant harm from his wife’s family within a reasonably foreseeable future.

I am satisfied the applicant will not suffer or be subjected to torture or cruel or inhuman treatment or punishment, or degrading treatment or punishment. There is no reliable evidence to suggest the applicant will be arbitrarily deprived of life, or that the death penalty will be carried out if he returns to Sialkot in the reasonably foreseeable future.

Therefore, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that the applicant will suffer significant harm i.e. that there is a real risk that he will be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment. Accordingly, I find that the applicant does not satisfy the requirements of s.36(2)(aa) of the Act.

The applicant’s advisor submits that the Tribunal has remitted matters with a similar factual background being 1608711, 1621948 and 1413873. Decision 1608711 related to an ethnic Shi’a, who was involved in religious and political activism. I am not satisfied that therefore that it has a similar background to this application. In regard to decision 1621948 the applicant was a Turi of the Shi'a faith from Kurram Agency, whose father and his family angered local Taliban due to his father's involvement in the Anjuman-e-Hussainia and the jirga. The Tribunal was satisfied that Turis have been targeted by extremist groups in the Parachinar area. I am not satisfied that this decision has any similarity to the applicant’s claims. Decision 1413873 related to an applicant who was an active ANP member, a supporter of the Pakhtoon Students Federation, who had been harmed by the Taliban, had worked with NGOs in the rebuilding of Swat and who had assisted the Army and supported the ANP and education of girls. I am satisfied that this decision does not have a similar factual background to the applicant’s claims. I dismiss this claim.

CONCLUSIONS

For the reasons given above, the Tribunal finds that there not a real chance that the applicant will face persecution for one or more of the reasons mentioned in paragraph 5J(1)(a) if he was to return to Pakistan, now or in the reasonably foreseeable future. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under S.36(2)(a).

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

There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

DECISION

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

Lilly Mojsin
Member

ANNEXURE A

The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

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.

…

Key Legal Topics

Areas of Law

Immigration
Statutory Interpretation

Legal Concepts

Judicial Review
Jurisdiction
Natural Justice
Procedural Fairness
Standing
Statutory Construction

[2021] AATA 4742

1 October 2021

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Standing

Statutory Construction