1905546 (Refugee) - [2024] ARTA 918

1905546 (REFUGEE) [2024] ARTA 918 (17 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 1905546
Tribunal:General Member S Kamandi
Date:17 December 2024

Place:Perth
Decision:The Tribunal sets aside the decision under review and remits the applications for protection visas for reconsideration, in accordance with the orders that
(i)[the third applicant] meets s 36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as [the third applicant].

Statement made on 17 December 2024 at 10:18am

CATCHWORDS
REFUGEE – protection visa – Pakistan – first applicant wife/mother’s father’s land dispute and pressure from uncle to marry cousin – marriage outside family – harassment, discrimination, threats, attacks and false charges – credibility – inconsistent claims and evidence – land ownership and documentation – timing of claimed incidents – education, work and travel history – authenticity of supporting documentation – adverse information – husband’s previous marriage and dates of start of current relationship and marriage – incorrect information given in previous visa applications and divorce application – delay in applying for protection visa – country information – conditions for women in Pakistan – passport policy and returned asylum seekers – new claim relating to oldest child – high-level autism spectrum disorder and support needs – members of family unit – youngest child not part of application – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 5L, 36(2)(a), (aa), (b)(i), (2A), (3), 65, 438(1)(b), 424, 424A
Migration Regulations 1994 (Cth), Schedule 2

CASES
Abebe v Commonwealth (1999) 197 CLR 510
Chand v MIEA [1997] FCA 1198
Guo Wei Rong and Pan Run Juan v MIEA (1996) 40 ALD 445
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
MIEA v Wu Shan Liang (1996) 185 CLR 259
MIMA v Rajalingam (1999) 93 FCR 220
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF REASONS
APPLICATION FOR REVIEW
1.    The applicants are a married couple ([the first applicant] and [the second applicant]) and their 2 children, their son ([the third applicant]) and their daughter ([the fourth applicant]). They claim to be citizens of Pakistan.
2.    [The first and second applicants] were born in Lahore, Pakistan. Their two children were born in Australia. [The third applicant] was born in [Year] and their daughter in [Year].
3.    [The second applicant] arrived in Australia on a student visa in May 2009. Since then, he has travelled to Pakistan on several occasions, including in November 2014, when he and [the first applicant] claim to have married in Lahore, Pakistan, [in] November 2014.
4.    [The first applicant] arrived in Australia [in] October 2015 on a Sponsored Family (Subclass FA-600) Visitor visa.
5.    On 14 January 2016, [the first applicant] lodged a protection visa application, which includes [the second applicant] as her dependant. Subsequently, their son, [the third applicant], and their daughter, born in [Year] and [Year], were also included as dependants in their protection visa application.
6. [The first and second applicants] were interviewed in relation to their protection visa application in October and December 2017. On 18 February 2019, a delegate of the Minister for Home Affairs (the delegate) refused to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
7.    On 8 March 2019, the applicants applied for review of the delegate’s decisions with the Administrative Appeals Tribunal (AAT). The applicants were represented in relation to the review.
8.    On 23 August 2024, [the first and second applicants] attended a hearing (first hearing) before the AAT. That hearing was adjourned.
9.    On 9 September 2024, the applicants were invited to respond to information pursuant to the former s 424A of the Act. The applicants responded and provided additional information.
10.     On 14 October 2024, the AAT was abolished and replaced by the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
11.     On 29 November 2024, [the first and second applicants] attended a further hearing (second hearing) before the Tribunal.
CLAIMS AND EVIDENCE
Evidence before the Department
12.     The applicants’ protection visa application was lodged with the assistance of their former migration agent from Aussizz Group. Apart from copies of [the first applicant]’s and the Australian born children’s birth certificates, the application did not include any further evidence in support of the applicants’ claims for protection.
13.     Attached to the applicants’ protection visa application is a letter from their migration agent, dated 6 January 2016 titled ‘letter of advice for protection visa’. The letter indicates that in lodging their protection visa application, the applicants were informed that the chances of their ‘visa acceptance are quite bleak’ and that despite the migration agent’s counsel, the applicants chose to go ahead with lodgement of their protection visa application.
14.     While the letter suggests that at the time, their former representative formed a view and advised the applicants of the prospects of success of their protection visa application, I have not placed any weight on that assessment and, as detailed below, have assessed their claims for protection based on the evidence and information available to me.
15.     After an invitation to attend an interview before the delegate, on 27 September 2017, the applicants appointed a new representative, a lawyer from Estrin Saul Lawyers, who represented them before the delegate. [The first and second applicants] attended the interview and gave oral evidence in support of their protection visa application. The delegate was also provided with submissions and supporting evidence prior to and after the interview.
16.     The applicant’s protection visa application indicates that [the first and second applicants] are raising claims of their own. Their claims for protection, raised before the delegate, can be summarised as follows:
·[The first applicant]’s father is from a city called ‘[City]’, in the Punjab province. It is a backward area, with low literacy rates, and high litigation over inherited property and crime. People believe in traditional male dominated traditions and culture. [The first applicant]’s grandfather, and his siblings, owned the entire village land. [The first applicant]’s father is the eldest of her grandfather’s children with no sibling having attained education over grade 8.
·[The first applicant]’s mother is from Lahore and belongs to a moderate and well-educated family. [The first applicant]’s parents had an arranged marriage. After their marriage, [the first applicant]’s mother moved to [City], but returned to Lahore for better access to healthcare when she became pregnant. Her in-laws told her not to return if she gave birth to a daughter. After [the first applicant]’s birth, her father joined her mother in Lahore, where [the first applicant] was born and resided with her family.
·[The first applicant]’s father joined [employer] when she was 2 years old. Given this, after [the first applicant]’s grandfather’s death, [the first applicant]’s father requested for his brother (MRB) to look after the land that he inherited from his father. MRB bought all inherited land from his siblings and acquired all inherited land and properties except the part that belonged to [the first applicant]’s father.
·After passing grade [number] and her admission in college, [the first applicant]’s uncles and aunties opposed her attending college and pressured her father to arrange her marriage to a relative in the village. [The first applicant]’s parents refused to do so and allowed [the first applicant] to continue with her studies.
·[The first applicant] completed her education, including a [degree] at [University], and worked as [an occupation 1].
·[The first applicant]’s father retired from the [employer] in July 2014 and decided to return to his inherited land to start a [business]. On his return, [the first applicant]’s father discovered that parts of his land were sold by MRB. When [the first applicant]’s father raised this issue with his siblings, they all turned against him and wanted [the first applicant] to marry MRB’s [son] to ensure the land stayed within the family.
·[The first applicant]’s father took the dispute to the village elders council and tried to transfer the remaining property to [the first applicant]’s name, but this was prevented by a stay order from court which restricted [the first applicant]’s father to transfer inherited land.
·[In] August 2014 at 2:30am, 3 men stormed [the first applicant]’s family home. Her mother screamed, causing the men to flee. [The first applicant]’s father lodged an application with the local police and relocated the family to another place within the city. The house was sold within 2 weeks at a loss of ‘10k’.
·[The first applicant] married [the second applicant] [in] November 2014. They were family friends and travelled together. [The first applicant]’s father’s family did not approve, did not attend the wedding, and stopped her father from attending their homes and the village.
·On the third day of their marriage, MRB went to [the second applicant]’s family home and harassed them. [The second applicant]’s family pushed him to leave the family home. [The second applicant] bought a new house for him and [the first applicant] and asked [the first applicant]’s family to live with them.
·In May 2015, family elders called a meeting and invited both parties. [The first applicant] was discriminated as a female. Her father was told that they were not ready to give the property to [the first applicant] because she married outside the family. They fought with [the first applicant]’s father. They pushed [the first applicant] while she was pregnant, which caused her a lot of stress. [The first applicant] was not able to continue with the pregnancy due to complications she attributes to the fights and disputes with her father’s family.
·[In] October 2015, while going shopping with her father, [the first applicant] and her father were shot at by men on motorbikes. An application was lodged with the local police.
·On [another date in] October 2014, [the first applicant] was granted a visitor visa to Australia and took a flight within [hours] of the visa grant.
·[In] January 2016, [the first applicant]’s family home was attacked under heavy gunfire. This was because the attackers knew that she was due to return to Pakistan as her visitor visa was due to expire. [The first applicant]’s father lodged an application with the local police.
·[The first applicant] fears threats to her life, harassment, bullying, and defamation, because she is a woman, had asked for her share in property, is educated, refused to marry in accordance with her father’s family’s will, and married a person outside of her family.
·The violence [the first applicant] fears will be inflicted by her extended family on the basis of her gender, the specific grudge they bear towards her and her father, and her decision to marry [the second applicant].
·[The second applicant] also fears harm at the hands of the Pakistani authorities as he has been the subject of an FIR. He fears significant harm in the form of detention in conditions that would amount to cruel, inhumane, or degrading treatment and punishment on the basis of the false petition against him for criminal acts he has been accused of committing. He also fears torture, physical violence, and death.
·The children are vulnerable to violence due to their young age. They fear kidnapping, being subjected to physical violence or being killed by [the first applicant]’s uncles and their associates.
·The applicants will not be able to access adequate state protection. The Pakistani authorities have failed to protect Shias against violence by religious extremists.
·It would be unreasonable for the applicants to relocate within Pakistan to avoid the risk of harm.

17. In support of their protection visa application, the delegate was provided with the following documents:
·A copy of a police clearance certificate for [the first applicant], which is dated [January] 2015 and indicates that she has no criminal records in Lahore, Punjab.
·A copy of a marriage certificate, noting that [the first and second applicants] were married [in] November 2014.
·A copy of an ‘agreement to sell a plot’ [in] April 2014, which names [the first applicant] as a party to the agreement.
·A copy of a ‘sale agreement’ made [in] December 2014 – which appears to be the sale agreement for the property [the first and second applicants] purchased after their marriage.
·Copies of applications to register cases against the attack on [the first applicant]’s family home in August 2014 and an incident involving [the first applicant] and her father [in] October 2014.
·Various photographs said to relate to the attacks on [the first applicant]’s family home.
·Photographs of [the first applicant] said to have been taken while she was in hospital in 2015.
·A copy of an English translation of articles said to have been published in ‘[Publication]’ on 18 May 2016.
·A copy of a writ of petition said to have been issued in the ‘court of the Honourable District and Session Judge’ in Lahore, [in] March 2016 requesting the registration of an FIR in the name of [the first applicant]’s father attesting that he fears that he, [the first and second applicants] may be killed by [the first applicant]’s uncle; and that [the first applicant]’s father has attempted to lodge an FIR against his brothers on 2 occasions immediately after the events of [January] 2016 and several other occasions thereafter, but was unable to do so as the police refused to register his complaint.
·A copy of a court order said to have been issued by session judge [named] directing the [Location 1] police station to register an FIR against [the first applicant]’s uncle. It says that detailed investigation/inquiry revealed that [the first applicant]’s father and his family have serious threats to their lives from hardened criminals.
·A copy of what is claimed to be an application by [the first applicant]’s uncle to register a criminal case against [the second applicant] dated [April] 2016.
·A copy of what is claimed to be a petition dated [April] 2016, to register an FIR against [the second applicant] by [the first applicant]’s uncle.

Delegate’s decision
18.     The applicants’ protection visa application was refused on 18 February 2019. The delegate’s decision includes information about [the first and second applicants'] migration history, including their various visa applications made prior to the lodgement of their protection visa application on 14 January 2016.
19.     The decision indicates that [the second applicant] was granted a student visa in April 2009 and arrived in Australia in May 2009. He was granted a further student visa in August 2010, after which he departed and returned to Australia on two occasions prior to his marriage to a third party in Australia and lodging a partner visa application in January 2012.
20.     The information presented in the delegate’s decision indicates that the third party entered a new relationship with another person in June 2013, and that around the same time, [the second applicant] departed Australia for a few weeks and returned to Australia in July 2013. In December 2013, around 5 months after [the second applicant]’s return to Australia, [the first applicant] applied for a visitor visa for Australia, which was refused in January 2014.
21.     In March 2014, [the second applicant] was granted a temporary partner visa and was subsequently granted a permanent partner visa in April 2014. A few months later, in July 2014, [the second applicant] departed Australia and returned in September 2014. He applied for a divorce from the third party [in] October 2014 and a month later, [in] November 2014, he departed Australia and married [the first applicant] in Lahore, Pakistan [in] November 2014. He returned to Australia [in] December 2015.
22.     After his return to Australia, [the second applicant] applied to sponsor [the first applicant] for a partner visa in December 2015 based on his marriage to [the first applicant] in November 2014. On 13 January 2015, [the second applicant] lodged a sponsored visitor visa application for [the first applicant] to travel to Australia. This application was refused on 13 February 2015. An application for review of that refusal decision was made with the Migration Review Tribunal. The review application was successful, and the matter was remitted to the Department for reconsideration and the visitor visa was subsequently granted in October 2015.
23.     In the meantime, on 27 January 2015, cancellation of [the second applicant]’s partner visa, which was granted based on his marriage to a third party, was commenced by the Department, and his visa was cancelled on 21 September 2015. It was found that [the second applicant] was not in a genuine relationship with the third party at the time of the grant of his partner visa. [The second applicant] also attempted to apply for Australian citizenship in May 2015, which was refused on 23 September 2015 as he did meet the permanent residency requirement to be granted citizenship.
24.     The delegate’s decision indicates that at the interviews, [the first and second applicants] were confronted with adverse information, including information relating to the grant and refusal of [the second applicant]’s partner visa and marriage to the third party, information included in the [the first applicant]’s visitor visa application, and other information which suggested that they were married prior to the claimed date of marriage of [November] 2014. They were informed that this information undermined the credibility of the claimed timing and date of marriage and their overall credibility. The decision also notes [the first and second applicants’] responses to the information put to them during the interview.
25.     The delegate did not accept their explanations and concluded that [the first and second applicants] are unreliable witnesses and have given false information in making multiple attempts to secure permanent residency in Australia. Given the delegate’s conclusion about [the first and second applicants’] overall credibility, and reliance on country information about prevalence of document fraud, the delegate did not accept that the claimed family dispute occurred and found that the applicants did not face a real chance of any harm on that basis.

26.     While the delegate accepted that the applicants are Shia Muslims and will be returning to Pakistan as ‘failed asylum seekers’, the delegate was not satisfied that they faced a real chance of serious harm or were at a real risk of significant harm for these reasons.
Evidence before the Tribunal
27.     The applicants lodged a review application with the Tribunal on 8 March 2019. The review application did not include any further information.
28.     On 13 June 2023, the applicants appointed their third representative, a legal practitioner from Gold Migration Lawyers.
29.     On 17 June 2024, the applicants’ representative provided the Tribunal with the following documents:
·A written submission, including extracts from various country information/news reports.
·A further statutory declaration from [the first applicant] dated 15 July 2024.
·A certified copy of the biodata page of [the first applicant]’s passport issued [in] 2014 (valid until [2024)).
·A copy of a ‘policy decision regarding asylum seekers’ issued by the government of Pakistan on 5 June 2024.
·A copy of [the first applicant]’s statement which was attached to the applicants’ protection visa application.
·Copies of documents and photographs which were provided to the delegate and referred to above.
·A copy of a letter from [Medical Centre] dated 16 July 2024 regarding [the first applicant]’s medical conditions,

30.     [The first and second applicants] attended a hearing (first hearing) before the Tribunal on 23 August 2024. Their representative was also present via Microsoft Teams from Melbourne, Victoria.
31.     At the first hearing, I explained that I have obtained Tribunal files relating to the review of [the second applicant]’s partner visa cancellation and [the first applicant]’s visitor visa refusal. I explained that if I considered any of the information in these files would be the reason, or part of the reason, for affirming the applicants’ review application before the Tribunal, I am required to provide particulars of the information to them in accordance with the s 424A of the Act (which was in effect at the time) and invite them to respond to and comment on that information.
32.     After the hearing, pursuant to the former s 424A of the Act, the applicants were invited to respond to and comment on information that I considered may be the reason or part of the reason for affirming the decision to refuse their protection visa application (s 424A invitation). The information the subject of the s 424A invitation and the applicants’ responses/comments is discussed below.
33.     On 20 September 2024, the applicants’ representative provided the Tribunal with a response to the s 424A invitation.
34.     On 21 September 2024, the applicant’s representative provided the Tribunal with:
·A copy of a witness statement from the owner of [Workplace], where [the second applicant] and his previous partner met and worked.
·A copy of a further letter from [Medical Centre] dated 6 September 2024 regarding [the first applicant]’s medical conditions.

35.     The applicants were invited to a further hearing on 29 November 2024 (the second hearing).
36.     As referred to below, at the conclusion of the second hearing, the applicants raised an entirely new claim relating to their son [the third applicant]. Given the nature of the claim, the applicants were provided with a further week to provide the Tribunal with evidence and submissions in this regard.
37.     On 6 December 2024, the Tribunal was emailed the following documents:
·A copy of an Occupational Therapy assessment report dated 18 October 2019.
·A copy of a Speech Language Pathology diagnostic assessment for autism spectrum disorder report dated 12 August 2021.
·A copy of [Paediatric] autism assessments report dated 7 March 2023.
·Copies of notes relating to [the third applicant]’s support at school written on 31 May 2021 and 1 June 2021.
·A copy of a first steps for autism plan for [the third applicant] dated 1 January 2021.
·A copy of a medical report outlining [the first applicant]’s conditions and medications dated 5 December 2024.
·A written statement from [the first applicant] dated 4 December 2024.
·Copies of invoices relating to [the third applicant]’s therapy in 2020 and 2021.

The hearings
38.     The hearings were held in person at the Tribunal’s Perth Registry and with the assistance of an interpreter in the Urdu and English languages. At the first hearing, [the second applicant] confirmed that he did not require the assistance of an interpreter. While [the first applicant] could speak and understand English, she stated that she was not confident in her English language abilities and wanted to rely on the assistance of the interpreter, which she engaged with during the hearings. [The first applicant] and the interpreter confirmed that they understood each other and there were no issues raised regarding the communication between the applicant and the interpreter. The applicants’’ representative was also present during these hearings via MS Teams and was given opportunities to provide submissions.
Capacity to give evidence
39.     The Tribunal was provided with 2 brief letters from Dr [named] of [Medical Centre] addressed to ‘to whom it may concern’. The letters are in identical terms and indicate that [the first applicant] is a regular patient of the clinic and suffers from high blood pressure and diabetes for which she is under medication. The letter further indicates that [the first applicant] has ‘anxiety problems’ which impacts her concentration, sleep, and mood, and requests that she be given ‘any support possible’ keeping in mind her medical conditions. No further details as to [the first applicant]’s support needs, medication, or treatment is included in these letters.
40.     At the commencement of the first hearing, I asked the applicant about her medical conditions referred to in the letter. [The first applicant] confirmed that she has been diagnosed with high blood pressure and diabetes in Australia and is under medication. Regarding her mental health condition, [the first applicant] said that she is sometimes stressed and forgets things and that this started while she was in Pakistan. When asked if she received any treatment in Pakistan, the applicant referred to her miscarriage and stated that in Australia she takes one tablet for anxiety.
41.     At the commencement of the hearings, [the first applicant] was asked if she was well enough on the day and willing to continue with the hearing. She confirmed that she was well and could participate at the hearings. I indicated that while breaks during the hearings were planned, she was able to ask for breaks at any time and that she was required to answer questions to be best of her ability and could ask for questions to be repeated or reworded if needed.
42.     In giving evidence at the hearings, at times [the first applicant] became emotional and stated that she was stressed, particularly when she was unable to offer an explanation or further details. Overall, [the first applicant] was able to present her evidence and respond to my questions and I consider that references to stress was more to do with her inability to offer an explanation rather than her lack of capacity to give evidence. She was offered breaks and advised to take her time in answering questions during these hearing. In addition, she was invited to provide information and comments, with the assistance of her representative, relating to matters relating to her and [the second applicant]’s prior review applications with the Tribunal and other matters, including issues relating to evidence provided in support of their current review application with the Tribunal.
43.     To put [the first applicant] at ease, at the commencement of the first hearing, I explained the purpose of the hearing and the manner the hearing will be conducted. I expressed that the applicant’s representative was present to offer assistance and that he would be given an opportunity to provide oral and written submissions. and the criteria for the grant of a protection visa. I further expressed that I would be discussing any concerns or issues that I may have with their claims or evidence with the applicants to allow them and their representatives to understand the issues and provide their responses and any further information that they wished for me to take into consideration. [The first and second applicants] expressed their understanding of these matters and indicated that they had no questions in this regard.
44.     During the hearing, the applicants were given opportunities to engage with their representative and provide any additional information that they wished to be considered. The applicant’s representative also had the opportunity to, and did, provide oral submissions in support of the applicants’ review application.
45.     I am satisfied that [the first applicant] had capacity to give evidence at the hearings and that she had a real and meaningful opportunity to engage with the process and to present her claims and evidence. The applicants have had ample opportunity, with the assistance of their representative, to respond to issues determinative to their review application and my concerns about their claims and evidence.
46.     Where relevant, the applicants’ evidence, including their oral evidence at the hearings, supporting documentary evidence, and their response to the s 424A invitation, is referred to and discussed below.
47.     At the conclusion of the second hearing, the applicants’ representative expressly stated that [the first applicant] is not raising any claims regarding her health conditions and that the medical information was provided for the Tribunal to be aware of her conditions and to factor it in assessing the credibility of her claims, which I have.
Section 438 non-disclosure certificate
48.     Tribunal has obtained a copy of [the second applicant]’s previous partner visa application file from the Department of Home Affairs (the Department). Certain documents within that file are the subject of a purported non-disclosure certificate issued under s 438(1)(b) of the Act, on the basis that the information subject to the certificate was given to the Department in confidence. The existence of a valid s.438 certificate requires the Tribunal to disclose the existence of the certificate to the applicant concerned and inform the applicant how the Tribunal intends to deal with it.
49.     As discussed at the first hearing, I have formed the view that the s438 certificate is invalid. In addition, I do not consider the documents the subject of the invalid certificate to be of any relevance or assistance in assessing the applicants’ claims for protection, and therefore did not disclose nor discussed the information with the applicants.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
50.     The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). 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.
51. 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.
52.     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).
53.     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.
54. 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
55.     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.
Issue to be determined
56.     The issue in this case is whether there is a real chance that the applicants will suffer serious harm if returned to Pakistan for reasons of their race, religion, nationality, membership of a particular social group or political opinion or, alternatively, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Pakistan, there is a real risk that they will suffer significant harm.
57.     For the reasons set out below, I have decided to set aside the decision under review and remit the applicants’ application for protection visas for reconsideration.
REASONS AND FINDINGS
Country of reference
58.     The applicants have consistently claimed to be citizens of Pakistan. There are no issues regarding their identity or nationality. I accept that the applicants are nationals of Pakistan, and that Pakistan is the receiving country for the purposes of this review.
Credibility assessment
59.     In determining whether an applicant is entitled to protection in Australia, it is necessary for the Tribunal to make findings of fact on relevant matters. The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility.
60.     The courts have made it clear for some time that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility.[1] The Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant may answer questions.
[1] Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, MIEA v Guo (1997) 191 CLR 559, Abebe v Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Guo Wei Rong and Pan Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v MIMA (1998) 86 FCR 547 and MIMA v Rajalingam (1999) 93 FCR 220.
61.     Further, in assessing the credibility of an applicant’s claims, the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[2] If the Tribunal 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 possibly be true.[3] 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 a particular factual assertion by an applicant has not been made out.[4]
[2] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019.
[3] MIMA v Rajalingam (1999) 93 FCR 220.
[4] 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.
62.     The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well‑founded’ or that it is for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to ‘significant harm’. It is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims, or to establish, or assist the applicant in establishing, his or her claims. Nor is the Tribunal required to accept uncritically any or all the allegations made by the applicant.[5]
[5] MIEA v Guo (1997) 191 CLR 559; Prasad v MIEA (1985) 6 FCR 155; s 5AAA of the Act.
63.     I am mindful that lapse of memory due to passage of time, and other matters such as an applicant’s health conditions and general background information relating to their specific circumstances, such as their education and cultural and language barriers, needs to be accounted for in assessing their protection visa claims and credibility. In addition, I do not generally rely on minor inconsistencies, omissions, or mistakes, on their own, to make adverse credibility findings, and take a reasonable approach to credibility assessment, factoring in the complexities in presentation of evidence in asylum cases.
64.     While I have considered the applicants circumstances, including [the first applicant]’s health conditions referred to above, and have factored in the above-mentioned cautious approach in assessing claims for protection, my concerns about the credibility of the applicants’ evidence provided in support of their claims have remained. As discussed below there are several factors that played a role in finding that core aspects of the applicant’s claims for protection are not credible, which includes the problematic nature of the evidence provided in support of their primary claim for protection.

65.     In addition, the manner that [the first applicant] presented her evidence at the hearings can be described as vague and at times evasive. I am not of the view that factors such as lapse of memory or stress, impacted the quality of her evidence before the Tribunal, but rather she was presenting her evidence, in the manner that she did, to avoid engaging with questions asked and to continue to present a narrative that she was a victim of persecution in Pakistan.
66.     Furthermore, the applicants’ past behaviour and dealings with the Australian immigration authorities has compounded my concerns about the credibility of their claims for protection, in that they have demonstrated a willingness to provide false and misleading information to achieve a migration outcome in the past, and have continued to do so in the course of their protection visa process, including attending hearings before the Tribunal with no intention of being entirely forthcoming about their circumstances in Pakistan.
Findings - background and family
67.     I accept that [the first applicant] was born and resided in Lahore, Pakistan as claimed and that her parents remain in Lahore. I accept that her father is from [City] village in Lahore and that her grandfather owned land in the village which was inherited by [the first applicant]’s father and his siblings after her grandfather passed away. I accept that [the first applicant]’s parents’ marriage was arranged by their families and that her mother moved to Lahore from the village while pregnant with [the first applicant] to access better healthcare. I accept that [the first applicant]’s father moved to Lahore after [the first applicant]’s birth to be with his wife and child and that he joined the [employer] when the applicant was 2 years old and retired from the [employer] in July 2014.
68.     Regarding [the first applicant]’s education history, I accept that she completed high school in Lahore in 2007. At the hearing, [the first applicant] stated that while at school she studied the Quran for 2 years (while in grade 7 and 8) and then returned to normal schooling in grade 9 and completed high school attaining her higher school certificate. The protection visa application indicates that [the first applicant] attended [University] and completed a Bachelor [degree] in 2010. At the hearing, while she referred to not having attended university and only having sat the examination at the board of studies, she did confirm that she completed the degree. I accept that [the first applicant] completed secondary and tertiary education in Lahore.
69.     Regarding her employment history, the protection visa application indicates that she worked as [an occupation 1] at [Workplace] between 2007 and 2009. Before the Tribunal, [the first applicant] stated that the company was owned by [the second applicant]’s family and that she started working there as a volunteer and then attained a paid position until she left the company in 2009. When asked about the reason she left in 2009, while [the first applicant] initially said that she could not recall, she went on to say that she left because [the second applicant]’s family sold the company and that she went on to do a [course] at an education centre operated by her friends. She stated that the educational centre was established to teach English and that she completed the [course] and got a certificate. [The second applicant]’s evidence corroborates [the first applicant]’s evidence that she worked at the company until 2009 when the company was sold.
70.     I accept that after completing her degree, [the first applicant] joined [the second applicant]’s family business where she worked as a volunteer and then as a paid [occupation 1] until 2009 when the company was sold. I accept that she went on to study a [course] as claimed. The protection visa application indicates that she can read, write, and speak, Urdu, English, and Punjabi. At the hearing, while the applicant confirmed that to be the case, she stated that she was not confident in her English language abilities.
71.     [The first applicant]’s evidence at the hearing, which I accept, is that after completion of the [course], she started [doing job task 1] and [did job task 2], at her family home. She also stated that she worked at the local school for a month, and organised Shia religious events at her family home with assistance of her mother.
72.     Regarding her parent’s financial situation in Lahore, [the first applicant] said that after his retirement, her father has been receiving a pension and income from rental properties and other investments. She also stated that her father supported her and provided her with financial support while in Australia. [The second applicant]’s evidence was that [the first applicant]’s father is wealthy, he generates income from land and has business investments which has allowed him to send the applicants ‘a lot of money’ in Australia. I accept the applicants’ evidence in this regard.
73.     [The second applicant] claims, and I accept, that his mother passed away in 2019 and his father remains in Lahore, residing at the family home which [the second applicant] inherited from his family. He has 4 brothers, one is in Australia as a permanent resident, one residing in [Country 1], one in [Country 2], and the other resides in Lahore operating a business. [The second applicant] completed high school and attained a Bachelor [degree] from [University]. He then worked at his father’s company, where [the first applicant] also worked, as [an occupation 2] from 2005 to 2009 when the company was sold.
74.     Before the Tribunal, [the second applicant] confirmed that he arrived in Australia in 2009 on a student visa. He completed a graduate diploma [in] 2011 and that his student visa expired in April 2012. [The second applicant] stated that he got married in October 2011 and lodged a partner visa in early 2012 which was granted in 2014 and subsequently cancelled in 2015. I accept [the second applicant]’s evidence regarding his education, employment, family background as confirmed at the hearing, and his visa history as outlined in the delegate’s decision, referred to above, and confirmed before the Tribunal.
75.     The applicants claim that they married in Lahore [in] November 2014. They have provided copies of their marriage certificate. I accept that their marriage was registered [in] November 2014.
76.     Regarding their own properties in Pakistan, [the first applicant] initially indicated that the block of land purchased in April 2014 in her name (as per sale agreement provided to the delegate) was sold. When questioned about the details of the sale and who managed to sell the property given that it is in her name, she retracted her evidence and said that it is not sold and remains in her name. [The second applicant] also gave evidence that [the first applicant] owns a block of land in Lahore which has doubled in value. The applicants also confirmed that they own a property which they purchased after their marriage, funded by [the second applicant] and [the first applicant]’s father, where [the first applicant]’s parents currently reside and rent out the upper floor. [The second applicant] stated that he also owns a house where his father resides, and that the value of their properties in Lahore has appreciated significantly. I accept that the applicants’ own properties in Lahore, Pakistan, as claimed.
77.     Regarding their situation in Australia, the applicants have 3 children born in Australia (the youngest child is not a review applicant before the Tribunal). They own and operate 4 [businesses] and have invested in projects funded by money/income received from Pakistan. I accept their evidence in this regard.
Family dispute/marriage/events in Pakistan
78.     The applicants’ primary claim for protection relate to a land dispute between [the first applicant]’s father and his younger brother, MRB, which commenced after [the first applicant]’s grandfather’s death in 2007. It is claimed that MRB sold part of [the first applicant]’s father’s land which he inherited after [the first applicant]’s grandfather’s death and prevented her father from transferring the rest of the inherited land, which continues to remain with MRB, to [the first applicant] because her parents did not agree to [the first applicant] marrying MRB’s son, who was much younger than [the first applicant]. [The first applicant] claims that she faced bullying and harassment at the hands of her father’s family, who are backwards and uneducated, they placed pressure on her parents to arrange her marriage and not allow her to attain higher education. It is claimed that her father’s family did not support her marriage to [the second applicant] and that she was attacked while in Pakistan, her father’s family filed false charges against [the second applicant], and that her family home came under gun fire in January 2016, when she was expected to return from Australia.
79.     [The first applicant] claims that if returned to Pakistan, she and her family will face serious and significant harm at the hands of her uncle MRB, who has threatened to kill her. She is aware of reports where women and children have been killed over land disputes.
80.     I have several concerns about the credibility of the claimed family dispute. My concerns arise due to key issues discussed below, namely the extent of [the first applicant]’s claims of past discrimination, harassment and bullying which do not accord with her evidence about her circumstances and upbringing in Pakistan; the problematic nature of the evidence provided in support of the claimed family dispute; the delay in lodgement of the applicants’ protection visa application; and [the first and second applicants’] past engagements with the Australian Immigration authorities which, in my view, demonstrates their willingness to give false and misleading information to secure a beneficial migration outcome. I have considered these key issues in detail below and where relevant, have referred to their oral evidence, supporting documentary evidence, submissions prepared on their behalf, and country information reports obtained by me and provided by their representatives.
Circumstances in Pakistan
81.     I have several concerns about [the first applicant]’s claims that due to her father’s family’s backwards views, she suffered bullying, harassment, discrimination, and was prevented from engaging in education and employment. My concerns relate to the problematic nature of her evidence, the disconnect between her narrative about the limitations placed on her life and her evidence relating to her experiences and life events while in Pakistan.
82.     While I am willing to accept that [the first applicant]’s father’s family may not have approved of her parents allowing [the first applicant] to continue her education and pressured her father to arrange for [the first applicant] to be married after finishing school, which her parents did not agree to nor succumb to pressure to arrange her marriage, I do not accept that she faced any issues or incident of harm in this regard, at the hands of her father’s family members or any other person.
83.     In her statement attached to the protection visa application, [the first applicant] indicates that she completed high school in Lahore, graduated with a degree from [University] and consequently worked as [an occupation 1]. She did not refer to any incidents of harm during this period. While in her statement to the Tribunal, [the first applicant] claims that she faced ‘challenges like bullying, harassment, life threat warnings and criticism for pursuing higher studies from paternal side’, she has not detailed these claimed instances. In addition, her evidence is that she grew up with her mother’s family in Lahore, away from her paternal family who remained in the village, and that she continued her studies and completed her tertiary qualification.
84.     At the hearing, while the applicant made vague references to not being allowed to study, that she took 6 months to complete a 3 month [course] and that her father did not allow her to continue working at the local school, she also indicated that [the second applicant]’s father who was good friends with her father always encouraged her father to allow [the first applicant] to pursue high education, that her parents did not agree with her father’s family to arrange her marriage and disallow her attending university, and that her mother was always supportive of her endeavours to see the world.
85.     At the hearing, [the first applicant] confirmed that she was able to complete high school and obtain tertiary [qualification], after which she worked at [the second applicant]’s family business until 2009 when the company closed. She did not detail any incidents of harm at the hands of her father’s family. [The second applicant] also gave evidence that he worked at the company as [occupation 2] until 2009 and did not refer to any incidents involving [the first applicant] or her father’s family. At the hearing, [the first applicant] stated that following the closure of [the second applicant]’s family business, she went on to complete a [course] at an education institute established by some friends and while she referred to having taken 6 months to complete the course, she did not refer to her father or his family causing any issues or preventing her from completing the course.
86.     Furthermore, as discussed below, [the first applicant]’s evidence is that she was able to travel overseas. Apart from performing religious pilgrimages on two occasions, she was also able to travel to [Countries 2, 3 and 4], with a group of friends, including [the second applicant], and that her travels were supported by her parents with no indication that her father’s family intervened or caused any issues in this regard.
87.     [The first applicant]’s evidence regarding her experiences, surrounding her relationship with her parents and while studying, working, and residing in Lahore, do not accord with her narrative that she faced constant discrimination, harassment, or bullying at the hands of her father’s family due to the claimed land dispute or otherwise. While I am willing to accept that [the first applicant]’s father may have been pressured to arrange [the first applicant]’s marriage and that her father’s family may not have been supportive of [the first applicant] attaining higher education and wished that she rather gets married and settle down, she had the support of her parents and was able to complete her studies, work, and traveled overseas.
Family dispute
88.     [The first applicant] claims, and I accept, that her grandfather owned land in their village of in Lahore. Before the Tribunal, [the first applicant] said that her grandfather passed away in 2007. In her protection visa statement, [the first applicant] states that after her grandfather’s passing, her father and his siblings inherited land in the village and that her father requested for his brother, MRB, to look after his inherited land while he was still in the [employer] in Lahore. After retiring from the [employer] in 2014, [the first applicant]’s father decided to use the inherited land to start a [farm] but found out that parts of his land were sold by MRB. When her father raised this with his family, his siblings turned against him and wanted [the first applicant] to marry MRB’s [son] to ensure the remaining land stayed within the family. Her father refused and took the dispute to the village elders and wanted the remaining land to be transferred to [the first applicant], which was prevented by a stay order from the court.
89.     At the hearing, [the first applicant] was questioned about the nature of the dispute. Contrary to the evidence in her statement that her father found out that part of his inherited land was sold by MRB in 2014, [the first applicant] said that about 5 or 6 days prior to her grandfather’s death, her uncle MRB obtained fake documents saying that he was the only living son so he could inherit his father’s properties. She then said that her uncle obtained a document saying that his father had left all the properties to him. When I expressed that she was giving conflicting information and questioned whether her uncle obtained a document saying that he was the only living son or that his father left him everything, [the first applicant] said that [the second applicant] can talk about it ‘better’.
90.     When I expressed that given that my questions relate to her claims about her father’s family at a time when [the second applicant] was not part of the family, how was it that [the second applicant] was better informed and could talk to these matters better than her, [the first applicant] said that they discuss these matters every day. When I expressed that if that was the case then she should be able to clarify what I asked, [the first applicant] said that her uncle obtained illegal documents to say that he was given all the land. When I sought confirmation if her uncle was given all the land, [the first applicant] said that more than half the land was transferred to MRB. When asked if her father, as the eldest son, made any inquiries in this regard, [the first applicant] said that her father went to the village about a week later and talked to the village elders to solve the problem, but her uncle told the village elders that as her father only had a daughter, he had no right and suggested for [the first applicant] to marry his young son. Her father did not agree and returned to Lahore. He returned to the village 10 months later but had to do a lot of paperwork which he could not do because he was working at the time.
91.     When asked if her father managed to get his share of the land, [the first applicant] responded in the negative. She then said that there was a portion of the land in her father’s name, which has farms, a house, and a school, but it was the subject of a stay order and could not be transferred to her. When asked if these are the farms that his father receives income from, [the first applicant] said that his uncle did not give anything to her father. As expressed to [the first applicant] at the hearing, while she has provided some detail, the presentation of her evidence was very problematic and continued to shift in response to my questions. I expressed that on the one hand she was saying that there is land in her father’s name that he cannot transfer, and on the other hand she is saying that her uncle did not give her father any land. At that point, [the first applicant] said that her uncle illegally ‘captured’ the whole land and stopped the registration of the land in her father’s name.
92.     The delegate was provided with a document said to be from the landowner register showing that [the first applicant]’s father owns land registered in the village of ‘[City]’. I questioned [the first applicant] about this document and observed that the document indicates that her father owns land in the village. [the first applicant] said that it is the disputed land. I observed that her father’s name is on the document which says that he is the legal owner and asked how is it that her uncle is claiming the land. [The first applicant] stated that her uncle has illegal documents. When asked about how she obtained the document regarding the disputed land, [the first applicant] said that her father sent her the document, suggesting that he has the legal document to prove his ownership. She then said that her uncle has threatened to kill her because she is the reason that her father is claiming the land. I observed that according to her evidence, this dispute has been going on since 2007, and she has not been killed. [The first applicant] said that at the time she was studying, and they were trying to get her to marry MRB’s son, and that she suffered constant harassment. In response to my observation that if MRB had any intentions of harming her, he would have done so in the years after 2007, [the first applicant] referred to the [course] she did in 2009 and that it took her 6 months to complete a 3-month course.

93.     As set out above, [the first applicant]’s evidence regarding the nature and timing of the claimed dispute between her father and MRB is extremely problematic and difficult to follow. Despite attempts to clarify, [the first applicant] was unable to provide a coherent narrative in this regard and I found her evidence very difficult to follow and reconcile. In response to my attempts to seek clarification, she was either deferring to [the second applicant] to provide that clarification or was presenting evidence that added to the confusion about the issues raised.
94.     As referred to above, while [the first applicant] has made broad reference to having suffered harassment and bullying at the hands of her father’s family, she has not detailed any specific incidents of harm or events since the claimed commencement of dispute in 2007. Her evidence is that the first attack occurred in August 2014, some 7 years after her grandfather’s passing and the commencement of the dispute.
95.     In her statement attached to the protection visa application, [the first applicant] claims that [in] August 2014, at 2:30 am, 3 men stormed her family home, where she and her parents were asleep. She states that they were talking about her and that after her mother started screaming, they started shooting and ran away. Her father lodged an application with the local police, sold the house within 2 weeks at a loss, and relocated the family. In support, the delegate was provided with a document titled ‘application for registration of case against accused persons’ said to have been lodged by [the first applicant]’s father [in] August 2014. The document is not signed by [the first applicant]’s father, does not include the name, or contact details of the officer in charge, is written on plain paper and does not include any features to indicate that it is an official police document or issued by the authorities. While [the second applicant] indicated that these documents are translations and not original copies of the documents, as noted at the hearing the Tribunal has not been provided with the original or accredited translations of these documents.
96.     At the first hearing, when asked about incidents in Pakistan, [the first applicant] referred to an incident in August 2014 and that she had high stress and anxiety due to random things happening.
97.     The second incident is claimed to have occurred on the third day after the applicant’s marriage [in] November 2014. It is claimed that while they were at [the second applicant]’s parents’ house, MRB came to the house with his mates and tried to harass them, causing her in-laws to push the applicants to leave their house and purchase their own property, which they did. There is no indication that the applicants were harmed and [the first applicant]’s evidence seems to suggest that the incident occurred because her father’s family were not happy that she married [the second applicant].
98.     The third incident is claimed to have occurred in May 2015, when [the second applicant] had returned to Australia and [the first applicant] was pregnant. It is claimed that family elders called a meeting and invited both parties to resolve the issue. [The first applicant]’s statement indicates that she was discriminated against at the time because she is a female and that her father was told that they were not going to give the property to him because [the first applicant] has married outside the family. [The first applicant] claims that a fight broke out, and she was pushed and fell over causing her to suffer a miscarriage. While she has provided photographs said to have been taken while she was at hospital, there is no medical evidence to suggest that her admission at the hospital or her miscarriage was because of having suffered a fall.
99.     The fourth incident is claimed to have occurred [in] October 2015, days prior to her departure for Australia. She claims that while out with her father, 4 persons on motorbikes, started firing at them the minute they stepped out of their house. In support, the delegate was provided with a document very similar to the one referred to above in support of the incident [in] August 2014. The document is also titled, ‘application for registration of case against accused persons’ said to have been lodged by [the first applicant]. It is not signed and does not include any official features. I also note that the document is written in similar terms to the document claimed to have been filed by [the first applicant]’s father in 2014 and is attested to by the same person. No information has been provided as to the status of the claimed compliant or whether it has been investigated or resolved.
100. I have several concerns about the claimed incidents. On [the first applicant]’s evidence, the claimed family dispute commenced after her grandfather’s death in 2007. While [the first applicant] claims that her father’s family, in particular MRB, had threatened to kill her, there is no information of any attempts to harm her in the years after 2007, with first claimed attempt in August 2014. As put to her at the hearing, I consider that if her father’s family had any intentions of harming her or forcing her to marry within the family, they would have many opportunities to do so. I do not accept [the first applicant]’s explanation that during that period she was studying and was not harmed. Given her evidence that her father’s family did not support her education and wanted her parents to arrange her marriage, one would expect that the continuation of her education and refusal to marrying within the family would have given them more cause to harm her.
101. I find her evidence that in May 2015, some 8 years after the dispute with the family commenced during which she claims her father was ostracised by his family and not allowed to see or visit them, the families decided to get together and resolve the matter gathering at [the first applicant]’s family home, difficult to accept. While I accept that [the first applicant] suffered a miscarriage in June 2015 while in Pakistan, I do not accept that it was caused because she was pushed and suffered fall in the circumstances claimed.
102. As put to the applicants pursuant to the former s 424A of the Act, [the first applicant]’s evidence that her family home came under attack in August 2014, years after the commencement of the claimed dispute in 2007, that her father sold the house as a result and moved the family to another address is undermined by the information in a police clearance report dated [January] 2015 which indicates that [the first applicant] resided in the same address from 2011 to [January] 2015. The applicants’ response is that they cannot comment on why the police clearance does not mention [the first applicant]’s previous addresses and that the ‘police reports’ relating to the August 2014 and October 2015 incidents include correct addresses. Given my concerns about the overall credibility of [the first applicant]’s evidence about the claimed dispute and subsequent incidents, including the documentary evidence produced in support of those incidents, I consider that the information in the police clearance report undermines [the first applicant]’s claims regarding the claimed incident in August 2014.
103. [The first applicant] was asked about her reasons for believing that the attackers involved in the claimed incidents were targeting her or connected to her father’s family. She stated that her uncle used to say that they will not leave her alone and made vague references to her father having been told by the elders that it was her uncle.
104. It is claimed that [in] January 2016, days before the expiry of [the first applicant]’s visitor visa for Australia, her family home came under attack. [The first applicant] claims that the reason for the attack was because her father’s family expected her return home and wanted to harm her. In support the applicants have provide various photographs, said to be of [the first applicant]’s family home. The handwritten marks state that they were taken [in] January 2016, of ‘my home’ showing bullets on main entry door, external walls, ceiling near entrance, and internal walls. As put to the applicants, I cannot give these photographs any weight. Apart from the applicants’ assertions, there is no other way to verify that the photographs are of [the first applicant]’s family home or that they support her assertion that they were taken [in] January 2016 as a result of an attack by her father’s family.
105. In addition, the Tribunal is provided with a writ of petition said to have been issued by court in Lahore regarding registration of an FIR in the name of [the first applicant]’s father attesting to [the first applicant]’s father’s fear that he, [the first and second applicants] may be killed by [the first applicant]’s uncle; and a writ of petition said to have been filed by [the first applicant]’s uncle accusing [the second applicant] of an incident said to have occurred in April 2016 and trying to register a criminal case against [the first and second applicants] on 4 occasions. These documents do not appear to be official documents. They have various handwritten numbers, stamps, signatures, and attested to by various people, and do not appear to be official documents issued by the courts.
106. The writ of petition said to have been filed by [the first applicant]’s father notes that [the first applicant]’s father resides at [Location 2], Lahore. The writ of petition said to have been filed by [the first applicant]’s uncle notes that the uncle resides at [Location 3], Lahore. As put the applicant’s this suggests that [the first applicant]’s father and uncle live in the same area and next door to each other, which undermine [the first applicant]’s claims for protection, in particular that there is a long-standing dispute between her father and his family who all reside in ‘[City]’ a village outside of Lahore. It also casts grave doubts over the credibility of the applicants claims that [the first applicant]’s father and his family do not see each other and that her father’s family will harm her for reasons of the longstanding property dispute and her marriage to [the second applicant].
107. In response, the applicants maintained that there is a long-standing dispute and that the there is a malicious police complaint and writ of petition filed against [the second applicant] and that these matters were filed to settle ‘the score’. The applicants stated that [the first applicant]’s uncle does not live next door and has lived in the village his entire life. I do not accept these explanations as satisfactory. The applicants are simply asserting their position without any further explanation for the anomalies in these documents and how it is that a document said to have been issued by a court includes an incorrect address.
108. In addition to the problematic nature of the supporting documents discussed above, as put to the applicants, country information[6] before the Tribunal indicates that document fraud in Pakistan is common and widespread. It is reported that documents such as police reports are relatively simple to counterfeit and there is existence of police accepting bribes to verify fraudulent documents, including FIRs. People with money can influence people working in the courts or notary offices and that it is easy and almost ‘risk free’ to bribe officials at all levels of Pakistani administration, including in relation to issuance of documents (including court documents).
[6] Immigration and Refugee Board of Canada, Research Directorate, ‘Pakistan: Prevalence and availability of fraudulent documents, including affidavits and court documents’, 2017 – January 2020; Department of Foreign Affairs and Trade (DFAT), “Country Information Report: Pakistan”, 20 February 2019; DFAT, “DFAT Country Information Report – Pakistan”, 25 January 2022.
109. I also note that the delegate was provided with a newspaper article said to substantiate the applicants’ claims. As discussed with the applicants, I don’t consider the document as relevant or supportive of their claims.
110. In addition to my concerns about the applicants’ evidence and documentary evidence in support of the claimed events, it has been several years since the claimed events. At the second hearing, [the second applicant] stated that the matters are on hold because they are not in Pakistan and that they would resume on their return. He stated that his lawyer has advised of this and that matters in Pakistan takes decades to resolve. While that may be the case, the applicants have not provided any statements or letters from their lawyer to support their assertion. I consider the lack of any further information about these matters and the lack of any evidence that [the first applicant]’s family have encountered any further problems to further detract from the credibility of the claimed events.
111. Having considered the totality of the evidence provided in support of the claimed long-standing dispute between [the first applicant]’s father and his brother, and the subsequent events, I am not at all convinced that the claim is credible. As discussed above, [the first applicant]’s evidence about the claimed dispute is extremely problematic. The timing of the claimed events, considering that there were no attempts to attack [the first applicant] or her family in the years prior to August 2014, in my view is also very convenient. The documentary evidence provided in support of these claims are equally problematic, and when considered in the context of the country information which indicates that document fraud is common and widespread in Pakistan and that people with money can bribe officials to secure fraudulent documents, including court documents, render them unreliable. I cannot, and do not, give the documents and photographs any weight.
Delay in lodging protection visa
112. [The first applicant] arrived in Australia [in] October 2015. The applicants lodged a protection visa application on 14 January 2016, over 3 months after her arrival in Australia.
113. At the first hearing, I asked [the first applicant], given her claims and incidents of attacks on her and her family prior to her departure for Australia, why did she not apply for protection soon after her arrival in October 2015. [The first applicant] claimed that she had a return ticket and intended to return to Pakistan before the expiry of her visitor visa. She confirmed that after hearing about the attack on her family home, which she believes was a result of her father’s family knowing that she was due to return to Pakistan, she decided to remain in Australia due to fear for her safety. [The first applicant] confirmed that she heard of this news [in] January 2016, after which she started the process of applying for a protection visa.
114. In accordance with the former s 424 of the Act, the applicants were informed that in a letter to the Department seeking permission to gain work rights, [the first applicant] states that after her arrival in Australia [in] October 2015, she met with a migration agent within a week and discussed her circumstances and reason for wanting to apply for protection. The letter indicates that the migration agent started the paperwork and asked [the first applicant] to provide documents required to lodge a protection visa. [The first applicant] explains that at the end of October she fell pregnant, which was an ectopic pregnancy, and resulted in her being admitted to hospital. She claimed the process ‘left her broken’ and it took her some weeks to compose herself, resulting in delay in lodging the protection visa application.
115. The s 424A invitation explained that this inconsistency in her evidence may cause the Tribunal to conclude that the applicants lodged a protection visa application based on concocted claims after the expiry of [the first applicant]’s visitor visa as an attempt to remain in Australia. In response, the applicants provided a further explanation for the delay without addressing the inconsistency in [the first applicant]’s evidence set out above. They claimed that while not entirely sure, they made an application for a protection visa between 25 December to 30 December 2015 which was acknowledged on 2 January 2016. The information before the Tribunal indicates the applicants’ protection visa application was lodged on 13 January 2016.
116. It is submitted that on the day of the hearing, [the first applicant] was stressed and another fear she was having on that day was whether the information was being passed on to the Tribunal in the ‘same meaning or spirit’ by the translator. While I am willing to accept that [the first applicant] may have been nervous or stressed on the day, as set out above her evidence about the reasons for her delay was expressed clearly and she confirmed that it was only after the [January] 2016 incident that she changed her mind about returning to Pakistan. She clearly indicated that prior to that incident she had every intention to return to Pakistan and her family were expecting her to come back, which is in stark contrast to her earlier evidence that after her arrival [in] October 2015, she met with a migration agent. I do not accept that her level of anxiety or fear that the information was not being translated, as an explanation for the discrepancy.
117. The delay in the lodgement of the protection visa application has cast further doubts about the credibility of her claims about her experiences in Pakistan and undermines the applicants’ claims that they have a genuine or subjective fear for their safety if returned to Pakistan.
[The first applicant]’s visitor application – December 2013
118. [The first applicant] applied for a visitor visa to Australia in December 2013, which was refused. At the first hearing, [the first applicant] stated that had applied for the visa to attend [the second applicant]’s wedding to his first wife and she and her whole family were invited to attend. When asked if her parents applied for visitor visas and were planning to attend, she said that at the time they did not have the money to make an application and asked her to apply first and if she was granted a visa then they would also apply. I observed that she had applied for a visa in December 2013 and [the second applicant]’s wedding was in 2011, which undermined her claim that she was coming for the wedding which had already passed. [The first applicant] then said that she could not remember, and that [the second applicant]’s mother was also coming to the wedding. As noted above, [the second applicant] gave evidence to the Tribunal that [the first applicant]’s parents are wealthy and have sent them substantial funds in Australia.
119. In accordance with the former s 424A of the Act, the applicants were alerted to the inconsistencies in their evidence, relating to [the first applicant]’s parents’ financial circumstances, and [the first applicant]’s evidence that she had applied for a visitor visa in 2013 claiming to have been for the purposes of attending [the second applicant]’s wedding which occurred in 2011. The applicants were informed that this information is relevant to their current review application because it may cause the Tribunal to conclude that they have been in a relationship long before their claimed marriage in November 2014; that [the first applicant] applied for a visitor visa for Australia in 2013 to be with [the second applicant]; and that [the first applicant] has not been forthcoming about her parents’ financial circumstances in Pakistan. The applicants were alerted that this information may lead the Tribunal to conclude their evidence provided for the purposes of their protection visa application is not credible or reliable.

148. There is no information to support that [the first applicant] is at a real risk of being subjected to honour killing. I do not accept that her father’s family threatened to harm her for any reason, including her marriage to [the second applicant]. The applicants’ evidence is that their families are long term friends with no suggestion that [the first applicant]’s marriage to [the second applicant] was opposed by her father, that she has brought shame to the family due to her marriage to [the second applicant] or otherwise. I do not accept that she is at a real risk of any issues, let alone honour killing, due to her marriage to [the second applicant].
149. As discussed at the hearing, the past AAT decision relate to the circumstances of those review applicants, and from what is extracted in the submission, appear to suggest that the Tribunal had accepted the review applicants’ past experiences and assessed their particular circumstances to find that they faced a real chance of harm. I am not bound by findings in decisions that relate to other review applicants’ circumstances and relates to the Tribunal’s assessments of their claims based on evidence provided to the Tribunal relevant to their claims. Given my findings about [the first applicant]’s past experiences and her circumstances on return, I do not consider these decisions to be of any assistance in my assessment.
150. Considering [the first applicant] and her family’s particular circumstances, her past experiences and what I have accepted of her claims, in the context of country information before me, I am not satisfied that she will face any issues, including discrimination, gender-based violence, or will be subjected to honour killing, for reasons of her gender, her marriage to [the second applicant], or for any other reason. I am not satisfied that the applicants or their children will face any treatment, challenges or any harm that would amount to serious or significant harm, if returned to Pakistan now or in the reasonably foreseeable future.
Renewal of passports/returned asylum seekers
151. In her statement dated 15 July 2024, [the first applicant] claims that she and her family will be persecuted due to her protection claims and states that the government of Pakistan issued a notification last month and ordered High Commission officers across the globe not to renew passports for people seeking protection and to cancel passports of those seeking protection. [The first applicant] claims that as her children were born in Australia, they do not have travel documents and it is ‘almost not possible’ for them to obtain Pakistani passports due to the government’s notification and that she is not sure if her or [the second applicant]’s passports will be cancelled. In support, a copy of a document tilted ‘policy decision regarding asylum seekers’ which indicates that on the backdrop of national security concerns and international commitments, the Federal Minister of Interior has directed not to issue passports to individuals who have sought asylum or are living in asylum in foreign countries, was provided.
152. The applicants’ representative submits that recent developments in Pakistan’s immigration law has made it difficult for Pakistani nationals to return after seeking asylum in foreign countries and that the applicant will face harm as returned asylum seekers. With reference to the government’s notification to ban issuing passports to Pakistanis who have sought asylum abroad, it is argued DFAT reports[8] that those who contravene Pakistani immigration laws are typically arrested and detained.
[8] DFAT, ‘DFAT Country Information Report – Pakistan’, 25 January 2022, 20220125094359.
153. As submitted by the applicants, country information[9] indicates that it was reported that on 5 June 2024, the Pakistan Interior Ministry announced a new policy to suspend the renewal and issue of passports for Pakistani citizens who have sought or been granted asylum in a foreign country. However, on 22 July 2024 the government reversed its decision, lifting the ban effective immediately. As part of this announcement, the government stated that it would recommence issuing passports to overseas Pakistanis (including those who have sought or obtained asylum in a foreign country) by September 2024, citing issues with passport printing equipment for the delays.
[9]Pakistan Today, ‘SC petitioned against ban on passport issuance to asylum seekers abroad’, 25 June 2024, 20240715125849; Express Tribune, ‘Government withdraws ban on issuing passports to asylum seekers’, 22 July 2024, 20240723111118; Geo News, ‘Pakistan withdraws ban on passports for asylum seekers abroad’, 22 July 2024, 20240723110727; Pakistan Today, ‘Govt withdraws order to ban passports of asylum seekers’, 22 July 2024, 20240723111549
154. Of interest, several news reports on the previous policy noted that the key countries where Pakistanis traditionally seek asylum (the United Kingdom, United States, Germany and Norway) do not share data with Pakistan.[10]The Express Tribune and The Friday Times noted that because these countries do not exchange this data with Pakistan, it would be impossible for the Pakistan government to check the visa status of its citizens who live overseas.[11]
[10] The Express Tribune, ‘Pakistanis seeking asylum abroad to lose passport’, 12 June 2024, 20240715125028; The Friday Times, ‘Govt Decides To Not Issue Passports To Citizens Seeking Asylum Abroad’, 12 June 2024, 20240715124917.
[11] The Express Tribune, ‘Pakistanis seeking asylum abroad to lose passport’, 12 June 2024, 20240715125028; The Friday Times, ‘Govt Decides To Not Issue Passports To Citizens Seeking Asylum Abroad’, 12 June 2024, 20240715124917.
155. As discussed at the hearing, while a policy appears to have been issued in June 2024, it is widely reported that the policy has now been reversed and there is no suggestion that the applicants’ passport will be cancelled or that their children will not have access to Pakistani passports, or that they will face any issues in this regard. While [the second applicant] maintained that the policy is in existence and that they will not be able to obtain travel documents, neither him nor his representative provided any evidence in support of his assertion. I do not accept that the policy remains in place or that the applicants will not be able to renew passports or obtain passports for their children.
156. In addition, as discussed at the hearing, country information before the Tribunal does not support the assertion that details of the applicants’ protection claims, or the fact that they have applied for protection in Australia, has been shared with Pakistani authorities. DFAT[12] reports that people returned to Pakistan are typically questioned upon arrival to ascertain whether they left the country illegally, are wanted for crimes in Pakistan, or committed any offences while abroad. Those who left Pakistan on valid travel documentation and have not committed any crimes, as is the case with the applicants, are typically released within a couple of hours. Furthermore, there is no information to suggest that returnees who have been outside of the country for an extended period or have sought asylum abroad are attributed with any adverse political opinion or are targeted by the authorities or any other person/groups. While the applicants did not agree, they did not provide any credible evidence to persuade me otherwise. I am not satisfied that the applicants face a real chance of any harm for these reasons.
[12] DFAT, “DFAT Country Information Report – Pakistan”, 25 January 2022, 20220125094359; DFAT, “Country Information Report: Pakistan”, 20 February 2019, 20190220093409.
Additional matters
157. The applicants claim, and I accept, that they are Shia Muslims. At the first hearing, [the first applicant] stated that while her mother was a Sunni Muslim when she married her father, also a Sunni Muslim, her mother converted to Shia Islam after ‘her baby died’. [The first applicant] stated that while her father opposed it initially, he ‘calmed down’ after a couple of months. Regarding her religion and religious practice, [the first applicant] confirmed that she is a Shia Muslim and that she practiced the religion in Lahore. While she made references to her father’s family opposing her going out and that she used to practice without them knowing, I do not accept that her father’s family interfered in her life or prevented her from practising her religion. Apart from references to her father’s family, which I do not accept, [the first applicant] did not refer to any incidents of harm or facing any issues in the course of practising her religion in Pakistan. [The first applicant] said that she attends Shia religious congregations in Australia and that [the second applicant] also attends important events.
158. Before the Tribunal, [the second applicant] said that he is a Shia Muslim and from a liberal family. He stated that in Pakistan, his uncle looks after the Mosque and organises religious processions and that they are generally free to practice their religion, although there is police presence during religious processions. [The second applicant] did not refer to any incidents of harm faced by his family in Pakistan or that he ever experienced any issues in this regard.
159. While not expressly claimed by the applicants, their former representative did make submissions to the delegate that as Shias, applicants are at risk of violence by religious extremists and cannot be offered protection.
160. Country information[13] indicates that Pakistan is home to the second largest Shia population in the world – there are estimates of 20-40 million Shias living in Pakistan, including significant Shia populations in the Punjab province. They are free to practise their religion and attend religious processions. Shias are generally able to establish places of worship and practise their religion without overt state interferences, and that Shia mosques and places of worship, or imambargahs, are located throughout Pakistan. While historically Shias in Pakistan have been the subject of sectarian violence and militant attacks, recent reports indicate that that has shifted in the recent years, due to the government’s military operations to curb militant attacks and to provide Shia communities with protection. Further, incidents of attacks on Shias appear to be more frequent in Baluchistan, and KPK, and that Hazras are at a greater risk of being targeted than other Shia tribes. Statistical data about attacks on Shias in recent years, in particular attacks on Shias in the Punjab province, does not appear to establish that there is a real chance that Shias in Punjab face a real chance or harm for reasons of their religion or religious practice.
[13] DFAT, “DFAT Country Information Report – Pakistan”, 25 January 2022, 20220125094359; DFAT, ‘DFAT Thematic Report: Shias in Pakistan’, 15 January 2016, CIS38A801265; Office of the Commissioner General for Refugees and Stateless Persons, ‘COI Focus: Pakistan Security Situation’, 28 February 2023, 20230628143902; Pakistan Institute for Peace Studies (PIPS), “Pakistan Security Report 2017”, January 2018, CIS7B83941282; PIPS, “Pakistan Security Report 2018”, 6 January 2019, 20190121110758 ; PIPS, “Pakistan Security Report 2019”, 5 January 2020, 20200114102703; PIPS, “Pakistan Security Report” 2020, 15 June 2021, 20210630123526; PIPS, Pakistan Security Report 2021, January 2022, 20220201113110; Pakistan Institute for Conflict and Security Studies (PICSS) “Pakistan Security Assessment 2017”, 1 February 2018, CIS7B83941229; PICSS, “Pakistan's Annual Security Assessment 2018”, 19 April 2019, 20190617153632; PICSS, “2019 Annual Security Assessment Report”, 9 January 2020, 20200122140652; PICSS, “Annual Security Assessment Report Pakistan 2020”, 5 January 2021, 2021110815042; PICSS, Pakistan Annual Security Assessment Report 2021, 26 January 2022, 20220209092645; The 2021 European Asylum Support Office (EASO) ‘Pakistan Security Situation’, 27 October 2021, 20211101110050; Austrian Centre for Country of Origin and Asylum Research and Documentation (ACCORD), , ‘Pakistan: COI Compilation’, April 2024; UK Home Office, ‘Country Policy and Information Note – Pakistan: Shia Muslims’, 13 July 2021,20210714090736.
161. At the second hearing, the applicants’ representative stated that while they considered the claims relating to the applicants’ religion and Punjabi ethnicity, raised by their former representative, they did not consider the claims as viable and that the applicants are not relying on those claims.
162. Given the submission and the applicants’ circumstances considered in the context of country information cited above, I am not satisfied that they face a real chance of any harm in relation to their Shia religion or Punjabi ethnicity.
Conclusion
163. In light of what I have accepted of [the first and second applicants’s] claims and considering their particular circumstances, and their overall profile in the context of the country information cited above, I am not satisfied that the applicants face a real chance of persecution in the reasonably foreseeable future, for the reasons claimed and discussed above. The Federal Court[14] has held that the ‘real risk’ test imposes the same standards as the ‘real chance’ test. For the same reasons above, I am also not satisfied that there is a real risk that applicants would face significant harm due to the claims considered above.
[14] MIAC v SZQRB (2013) 210 FCR 505.
[THE THIRD APPLICANT] – AUTISM SPECTRUM DISORDER
164. At the conclusion of the second hearing, the applicant’s representative confirmed that there were no other claims to discuss and that all claims and issues raised at the hearings and various submissions to the delegate and the Tribunal had been discussed.
165. Prior to closing the hearing, [the second applicant] stated that their eldest son, [the third applicant], has been diagnosed with autism and requires assistance at school and while in the community. He stated that if returned to Pakistan, their son will not be able to get the support that he needs, and that the community will not be accepting of him. Given the nature of this claim, I provided the applicants with 7 days to provide me evidence of their son’s diagnosis and needs and for the representative to provide the Tribunal with submissions and supporting country information in this regard.
166. While the Tribunal has been provided with reports and other information relating to [the third applicant]’s assessment and support needs, the applicants’ representative has not provided the Tribunal with any submissions or country information to assist the Tribunal in assessing this claim.
167. The documents and reports provided to the Tribunal indicate that [the third applicant] has been assessed to meet the criteria for autism. The 2021 autism spectrum disorder assessment report indicates that [the third applicant]’s presentation was consistent with a high level of autism spectrum-related symptoms. The reports indicate that [the third applicant] has delayed, disordered and idiosyncratic speech; has poor awareness of personal space and social boundaries; shows no empathy or awareness of other’s feelings; and is often inappropriate in his interactions with others. The documents also indicate that [the third applicant] requires high level support at school and found transitioning into school difficult with an incident which involved harming his mother. [The third applicant] has been assessed to require high level support and the invoices provided indicate that he has been receiving support and intervention to assist with his functionality, speech, and behavioural issues.
168. On the evidence provided, I accept that [the third applicant] has been assessed and meets the criteria for autism spectrum disorder and presents a high level of autism spectrum-related symptoms, which impacts his ability to appropriately socialise, interact, and communicate with others, and results in him displaying behaviours of concern.
169. DFAT[15]reports that domestic violence, sexual abuse, and sexual exploitation of children in Pakistan is widespread. DFAT assesses that children of both sexes face a moderate risk of domestic and societal violence, and sex abuse in Pakistan. While child protection measures, including juvenile courts, have been introduced in some parts of Pakistan, these measures are yet to be effectively implemented. In addition to the risk factors relating to all children, DFAT notes that disabled children are particularly vulnerable and lack adequate access to support services and state protection. Children who are victims of violence can face a moderate risk of official discrimination in the form of state failure to prosecute offenders, and a high level of societal discrimination.
[15] DFAT, “DFAT Country Information Report – Pakistan”, 25 January 2022, 20220125094359.
170. Information from various sources[16] indicate that disabilities in Pakistan are viewed with suspicion, shame, and as a burden in many communities. Individuals with disabilities are isolated and othered, often from birth, unable to claim rights to the same resources as their able-bodied peers. While accessibility to services is noted as rare, acceptance of people with disabilities, is described to be even rarer. It is reported that children born with disabilities, such as Down Syndrome are often considered a curse from God for the family’s perceived wrongdoings.
[16] The Express Tribune, ‘Why is Autism considered taboo or a byproduct of supernatural forces in Pakistan?’, 20 September 2017; The Telegraph, ‘Why Pakistan still struggles to overcome its stigma around disability’, 11 August 2023; Saeed RF, Mumtaz S, Qazi AS, Awan US, Akhtar N., ‘Autism-Current Status and Challenges in Pakistan’. Life and Science. 2021; 2(4): 201-201. doi: Juveriah Furrukh & Gulnaz Anjum | (2020) Coping with autism spectrum disorder (ASD) in Pakistan: A phenomenology of mothers who have children with ASD, Cogent Psychology, 7:1, 1728108, DOI: 10.1080/23311908.2020.1728108; Daily Balochistan Express, ‘Quality Education in Crisis: Why Pakistan’s Disabled Children Are Left Behind', 8 October 2024, 20241016093449.
171. Regarding autism, the reports indicate that it is a disorder that is rarely understood in Pakistan and the unknown is not only feared but also profusely rejected and rarely met with people’s sensitivity. Unusual behaviours are explained by tenuous theories like the works of the devil and being ‘possessed’. The term mental disability or cognition problem is considered as a social stigma or disgrace, leading to people not disclosing autism or mental conditions to avoid stigma.
172. The information above indicates that children with disability, such as autism-spectrum disorder, are at high risk of social stigmatisation, isolation, discrimination, and defenceless against violence in Pakistan. The information indicates that despite family support, children with disabilities, in particular those with social and behavioural concerns which is the case for [the third applicant], are at a real risk of denial to basic services, persistent discrimination, isolation from the society, and are highly vulnerable to crimes committed against children in Pakistan.
173. On the evidence before me, I am satisfied that children with disabilities in Pakistan or autistic children in Pakistan constitute a particular social group within the meaning of 5L of the Act. Their disability is a recognised characteristic which is innate and distinguishes the group from others in the society and the characteristic is not a fear of persecution.
174. Considering the country information cited above, I am satisfied that [the third applicant] will be subjected to treatment that constitutes serious harm and that the harm will be directed at him for the essential and significant reason of his membership of the identified social groups and that the persecution he will face would involve systematic and discriminatory conduct. I also find that concealing his disability would be a modification of behaviour that falls within the exceptions in s 5J(3) of the Act.

175. Given the country information which refers to lack of implementation of protection measures, state failure to prosecute offenders of violence against children, and lack of services and failure of state to protect children or persons with disability, I am satisfied that effective state protection measures, as defined in s 5L of the Act, would not be available to [the third applicant] and that the real chance of persecution cannot be said to be restricted to a particular area of the country and relates to all areas in Pakistan.
176. I am satisfied that [the third applicant] has a well-founded fear of persecution within the meaning of s 5J of the Act in Pakistan.
177. There is no information, and I find, that [the third applicant] does not have a presently existing right to enter and reside in any other country. It follows that s 36(3) of the Act does not apply.
Conclusion
178. I am satisfied that [the third applicant] is a person in respect of whom Australia has protection obligations under s 36(2)(a).
179. As set out above, I do not accept [the third applicant]’s parents claims for protection. I am not satisfied that the other applicants are persons in respect of whom Australia has protection obligations for the purposes of ss 36(2)(a) or (aa) of the Act.
180. However, I am satisfied that [the first and second applicants] and their daughter are members of the same family unit as [the third applicant] for the purposes of s 36(2)(b)(i) of the Act. As such, the fate of their application depends on the outcome of [the third applicant]’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) of the Act and the remaining criteria for the visa are met.
DECISION
181. The Tribunal sets aside the decision under review and remits the applications for a protection visa for reconsideration, in accordance with the orders that:
(i)[the third applicant] meets s 36(2)(a) of the Migration Act; and
(ii)the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as [the third applicant].

Date of Hearings: 23 August 2024 and 29 November 2024
Representative: Phung Thomas Vo
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.
…