1910093 (Refugee)

[2024] AATA 4421

1910093 (Refugee) [2024] AATA 4421 (1 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1910093

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Amanda Goodier

DATE:1 October 2024

PLACE OF DECISION:  Perth

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

Statement made on 01 October 2024 at 3:14pm

CATCHWORDS

REFUGEE – Protection Visa – Pakistan – race – Punjabi – religion – Muslim –  political opinion – brother was a member of Hizb Ut Tahrir – brother and father were members of a banned organisation – applicant waited over seven years before finally lodging a protection visa claim – does not accept that the applicant is of any interest to the Pakistan authorities – not satisfied the applicant will face a real risk of significant harm – significant delay in applying for protection in Australia – applicant does not have a well-founded fear of persecution –credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 56, 65, 423, 499

Migration Regulations 1994, Schedule 2

CASES

Minister for Immigration and Ethnic Affairs v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
MIMA v Rajalingam (1999) 93 FCR 220

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 April 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Pakistan, applied for the visa on 14 March 2019. The delegate refused to grant the visa on the basis that the delegate did not accept that the applicant faced a real chance of serious harm for one or more of the reasons referred to in subsection 5J(1)(a) of the Act. The delegate also did not accept that there was a real risk the applicant would face significant harm for any reason on his return to Pakistan.  A copy of the delegate’s decision was provided to the Tribunal by the applicant.

3. The applicant appeared before the Tribunal on 15 April, 5 July and 25 September 2024 to give evidence and present arguments.

   CRITERIA FOR A PROTECTION VISA

4. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

5. 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.

6. 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).

7. 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.

8. 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.

9. Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.

10. Section 423A of the Act provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence.  If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made, or evidence not presented before the primary decision was made.

    Mandatory considerations

11. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Country of nationality

12. The applicant travelled to Australia on a genuine passport issued by the Pakistan Government. He has at all times stated that he is a citizen of Pakistan and has been assessed on that basis by the Department. The Tribunal finds he is a citizen of Pakistan and has assessed his claims against Pakistan as the country of nationality and the receiving country.

    The applicant’s claims for Protection

13. The applicant’s claims for protection are provided below:

    My family has been a political opponent of the Pakistani ruling establishment since General Musharraf removed the elected Democratic government of the then Prime Minister Nawaz Sharif in October 1999. My father stayed out of the country from 1999 to 2006 to escape political persecution and was not able to return to the country throughout the whole 9 years. My family had to survive without my father, it was a turbulent time for us. My [brother] [Mr A] (while taking part in protest against Musharraf government) was abducted by the government, detained for almost six months without any criminal charges, and finally was released on the orders from the Punjab High Court. My family had been under constant harassment and oppression from the local police and authorities ever since. To the point where they would even stop and question me and my younger siblings to harass and question us time and again. We would be scared to step out of the house to go to school or the to the grocery stores. We had to move to houses three times over those few years. They abducted my dad and detained him without any charges in 2015, he is a heart patient. We managed to send my [brother] [Mr A] to [Country 1] in 2010. He was only able to return to Pakistan to visit the family after he became a [Country 1] resident(affording him the security) in 2017. My family had to move to new places twice yet again (to a different city this time) to avoid the harassment but Pakistani police and authorities are notorious for following people to the grave. When it comes to political oppression, they have been found to keep people on their infamous lists for years after they have died. This is the kind of oppression, persecution, and constant mental and physical harassment I was hoping to escape when I managed to get my Australian study visa.

    Growing up as a teenager, I used to be scared even going to school or going to the market by myself, being in a constant state of depression and fear. Gujranwala Police would stop and question without any warrant or anything(police back home do as they wish). A lot of the times it'll be people in plain clothes who won't introduce themselves or say which department they were from. My fault was that I was from the family who was a staunch opponent of the secret yet blatantly open political-police military establishment. My [brother] and my dad always used to express their opinion though taking part in protest and non-violent political activism, both of which the Pakistani establishment don't have any patience for.

    My dad tried to approach top police and establishment officials in Gujranwala with no avail, and we found out that it was not even safe for us to approach the authorities without getting into more trouble. They provided little to no help, rather they try to coerce us into bribing huge sums of money. We have heard stories of other people getting no relief even after bribing the officials.

    As mentioned above, we moved to quite a few different locations within Gujranwala from 2001 to 2017. Every time we moved to a new place, they would come after us sniffing like blood hounds. It was getting too much when I had to apply to Australia for the visa, my first time trying to get out of the country, and I'm glad it worked. I moved to Australia in 2011.

    When the new government took over in April last year, we were hoping things would change for the better. It was only a matter of few months before everything went back to business as usual (i.e. Establishment never really changes in Pakistan). I overstayed my visa because I was afraid of my freedom being taken away and in the view of recent events that happened in Sahiwal district of Punjab, I fear for my life if I were to return Pakistan. There has been a dangerous trend in Pakistan over the past decade or so where Pakistani authorities have made a practice of labelling their political opponents as terrorists/extremists, just to imprison or eliminate them.

    One cannot be against the corrupt and brutal establishment of Pakistan and expect to have the freedom, daily routine, and life intact. Pakistani police is not a department of the state, rather it's an instrument of the political/military establishment, to suppress any radical/genuine discourse. And they have around a dozen of named and unnamed paramilitary agencies at their disposal to enforce their will as they see fit. There is no immunity for Pakistani nationals against the oppression.

    You're asking the very authorities to protect you who are the perpetrators of aggression in the first place. As mentioned earlier, we have tried to get help and failed many times. This corruption in the various departments of state runs from bottom to the top, and sideways. Expecting protection from the oppressors is like expecting to see the sun during the nighttime, sorry to say.

    I did it once, I don't have the mental capacity or the emotional stability to move back to Pakistan or to any other place again. I brought myself to make up my mind to go to Pakistan but then the Punjab police murdered a family of three (Man and his wife, their 13 years old daughter) and their driver while they were traveling to attend a wedding. The police claimed that they were some terrorists, but the witnesses and the general public have made it clear that it was not the case. I have no security in Pakistan.

14. The applicant attended an interview with the delegate. The delegate considered the delay in applying for a protection visa together with the different statements given to the department as to his reasons why he was unable to return to Pakistan cast doubt over his claims for protection. The applicant claimed at the interview with the delegate that his brother and father were supporters of Hizb Ut Tahrir. His brother was arrested and held in 2005, moving to [Country 1] on a student visa in 2010. His brother returned to Pakistan in 2017 to marry. He submitted a document issued [July] 2011 stating his brother was an activist with Hizb Ut Tahrir and must comply with certain conditions. The applicant indicated his father was in [Country 2] from 1999 to 2008 running [businesses]. His father participated in protests in [Country 2] for Hizb Ut Tahrir and overstayed his visa by several years. His father started a [business] about 2008/2009 but due to police harassment, closed down 2011/2012. The delegate put to the applicant that in response to a NOICC in November 2012, he indicated his father’s business suffered due to the economic conditions and lack of rules and regulations around the [industry]. After considering his evidence, the delegate did not accept his claims.

15. No further information was provided to the Tribunal prior to hearing. Further information was provided to the Tribunal during the hearings and additional information, including a detailed statement were provided following the second hearing. A third hearing was required.

    Background information

16. In his protection visa application, the applicant indicated he held a valid passport, issued by the Pakistan authorities with an expiry date of [date]/2016 as well as a national identity card issued [date]/2019 and expiry [date]/2029. The applicant indicates he was born in [year] in Gujranwala, Punjab, Pakistan and has never married. He lists his parents as living in Gujrat, Punjab. Also residing with his parents are [a number] of his siblings.  His [brother] lives in [Country 1]. He is in regular contact with his family.   He speaks, reads, and writes Urdu, Punjabi and English. His religion is Islam, and he indicates his ethnic group as Pakistani. He indicates he departed Pakistan legally from Lahore Airport. He indicates he has been employed in Australia in a range of jobs, mostly in the hospitality area. He completed his secondary education in Pakistan, attending [a] Campus, [Gujranwala].

17. The applicant provides his previous residential addresses in Pakistan as [address].

18. According to the delegate’s decision, the applicant’s migration history is as follows:

    Date  Event details

    8 August 2011  Applied for a TU-572 visa

    25 October 2011  TU-572 visa granted

    [Date] November 2011  Arrived in Australia and immigration cleared

    30 November 2012                TU-572 visa cancelled

    25 November 2018                Detained under s189

    03 December 2018                Applied for a BVE on basis of departure

    04 December 2018                BVE withdrawn

    14 March 2019  Applied for an XA-866 visa

19. At hearing, the applicant told the Tribunal that he prepared the application himself and was aware of the contents which were true and accurate. He confirmed he arrived in Australia as the holder of a student visa to [study].  He studied English for about six months before commencing his [main] studies which he was unable to continue after three months due to a financial crisis.

20. The applicant confirmed his address in Pakistan from 2007 to 2011 as [address].  He lived there with his mother, siblings and paternal grandmother and in 2009, his father joined them.  Prior to 2007 he lived in Komoke, Gujranwala District, Punjab. 

21. The applicant told the Tribunal he was born in Karachi.  His father at the time was working for [a company] as [an occupation].  The applicant indicated that his father spent 16 years working in Karachi. His father went to [Country 2] in 1999 and the family left Karachi for Komoke. He started his schooling in Komoka, finishing [a] grade.  He travelled to Australia to study aged about [age] years.  His father chose Australia as the country for him to continue his studies.

22. The applicant told the Tribunal that his mother was a housewife and his paternal grandmother passed away in 2012.  His father went to [Country 2] in 1999 where he worked casual jobs before establishing a [business] then [another business].  He stayed in [Country 2] for about 9½ years.  In 2011 his father went to [Country 3] for six [months].  He returned to Pakistan where he already had a [business] which closed late 2012 due to financial issues.  His father has now retired.

23. His [other] brother is not married and living in [Country 4] where he works running a [business].  He is a professional [occupation].

24. His has [brothers] living in [Country 1].  [One] brother went to [Country 1] on a student visa in 2010. His other brother married a [Country 1] resident. His [sisters] are all married and live with their husbands’ families.  One sister moved to [Country 2] with her husband.

25. His [brothers] support his parents.

26. When he first arrived in Australia he lived in a homestay.  He worked casual jobs with [employers].  He does not work at the moment and receives assistance from [an organisation]. He never worked in Pakistan. The applicant claims he receives no financial support from his family. He has no family in Australia.

27. His ethnic group is Punjabi and his religion Muslim.

28. When asked if he was involved in politics in Pakistan, the applicant told the Tribunal he attended a few seminars with Hizb Ut Tahrir. When asked when, the applicant firstly indicated 2007 then 2006/2007 before responding 2004 as he was very young. He told the Tribunal that his [brother] was a member and took him along to the seminars.  His brother joined as his father was a member in [Country 2].  The party was against the democracy in Pakistan, the war in Afghanistan and all that sort of thing. The party was against the current government – General Musharraf. Later on, his father left the party because they were going extreme, their values were not the same anymore in that they wanted to introduce Muslim sharia law.  His father told them the party did not represent them anymore, so he left, and the family had no further involvement.  His father resigned from the party just before he left [Country 2], about 2009.  The applicant told the Tribunal his father had no further involvement with the party.  His brother left the party after he was arrested in 2005 outside the mosque where he was handing out pamphlets.  His brother was held for about six months with about five to six other party members. 

29. The applicant told the Tribunal the party was banned by the Pakistani Government because it was going against the Government.  When asked what the aims were, the philosophy, the goals of the party, the applicant told the Tribunal that his father told him they want to take over countries and they are willing to go to whatever extent it takes and that contradicted the aims and goals of his family.  The applicant told the Tribunal that what he knew was that the party wanted to change the democratic system and introduce sharia law.

30. When asked why he feared returning to Pakistan, the applicant responded that his brother was held for six months in prison.  For the first month and half the family did not know his whereabouts.  A few of the party lawyers who came from [Country 2] found him.  They managed a visit after about three months.  There was no charge and no hearing.  He was bailed out after five months and once he returned home, the police, either uniformed or in plain clothes, regularly visited the house asking questions about the brothers, what they were doing, where were they hanging out.  They literally stayed outside the house, questioning his mother and [brothers].  His father was in [Country 2] at the time, and he was very young. The police would not leave unless they were paid money.

1. He fears returning to Pakistan because of all this harassment and torture his family has suffered.  His brothers left for the same reasons, his sisters were married earlier than usual to escape the harassment.  His father was picked up by the police and held for no reason. He went with his father to the head of the police department in Gujranwala who told them that he would ask them to stop.  The family moved to another house in the colony, then moved to another house and the police still regularly visit.  The applicant claims that it is not safe for anyone to visit the family. The applicant claims that his brother in [Country 1] divorced his wife in Pakistan because he could not visit her and was unable to attend his sister’s wedding in Pakistan as a FIR was issued in his name in 2021 and he has not visited Pakistan since 2016.  His brother found out because there was a red flag when he was renewing his passport because he was booked for terrorism.  The applicant says none of his brothers attended the weddings of his sisters and culturally it is important for family to attend these events.

2. When asked when his brother went to [Country 4], the applicant responded 2017/2018, but he can’t remember the exact year.  The Tribunal pointed out that in 2019 he refers to his brothers still being in Pakistan apart from the brother in [Country 1].  The applicant responded that maybe he was leaving at the time, that he is not really in touch with his family, and he rarely talks to his brothers, especially the younger brother.  He can not really remember the exact year he left.

3. When asked about when his sisters were married, the applicant indicated the eldest before he left Pakistan and the others within the last three years. He claimed his youngest sister was married earlier than needed because of the harassment.  When the Tribunal pointed out that she was in her [age range] and that did not appear to be a young age to be married, the applicant responded she wanted to finish her studies before marriage, so she felt she was married too early. The sister who lives in [Country 2] married because her husband was a [Country 2] citizen.  She chose him out of the proposals she had as she wanted to leave the country.

4. When asked again why he feared returning to Pakistan, the applicant responded because of the harassment.  He does not think he can face the harassment.  In Pakistan if you go against the Government, then it is not safe for you.  His brother was booked for terrorism, even though it was 7 to 8 years ago, and the family is still harassed. 

5. The Tribunal referred to the order dated July 2011 issued after the brother had already left Pakistan for [Country 1] that was also referred to in the delegate’s decision, saying that it is the only document provided by the applicant in support of his claims. The Tribunal referred to his claim that he fears the harassment, yet his brother has left Pakistan and was no longer involved with the group, his father had left the group and was not involved in Pakistan.  The applicant confirmed his father was not involved with the group in Pakistan. The applicant had difficulty recalling the document.  The applicant showed a copy to the applicant at his request. The Tribunal repeated its question at the request of the applicant.

6. The applicant responded that it was the on-going harassment about his brother.  They would come asking where his brother was, when was he coming back.  The Tribunal put to the applicant the authorities would have all that information from his departures from the country, his application to renew his passport overseas, his return to Pakistan to get married and asked why would they keep visiting his family, particularly his parents to ask the whereabouts of his brother?  The applicant responded because this is how they collect the money.

7. The Tribunal put to the applicant that the group his family and brother belonged to a banned organisation, his brother has been held and the laws of Pakistan entitled the authorities to follow up on members of a banned organisation.  The applicant told the Tribunal that his brother was studying in Lahore at the time when he was arrested. The applicant referred to the authorities knowing his brother had left the country, but they still visit the family very week.

8. The applicant referred to the FIR for terrorism issued in 2021 when his father went to renew his brother’s ID card and passport and was told there was a red flag on his brother.  They later discovered a FIR had been issued.

9. When asked again why he feared returning to Pakistan.  The applicant responded they will book anyone because they cannot get his brother.  The Tribunal referred to his other brothers remaining in Pakistan and was told that his father was jailed for two days for no reason.

10. The Tribunal referred to the delay in applying for protection.  The applicant responded that he wanted to keep it legal, finish his studies and get a future career, but it didn’t work out for him. The Tribunal referred to his earlier evidence that he could not afford to continue to study due to financial issues so how could he continue to afford to study. The applicant responded that when he came here, he was [age] years old and did not have much knowledge of the laws or visas available. His father did the application with the assistance of his brother, and he was told to finish his studies, get a job and settle in Australia. His father’s business was lost because of the regular presence of the police. The Tribunal put to him that he came in 2011 when protection visas were in the news, he could not continue his studies and was corrected by the applicant that it was in 2012 he could not continue studying.  The Tribunal indicated that in 2012, protection visas were particularly in the news and asked why he did not apply for protection because he was very fearful of returning and was unable to continue his studies.  The applicant responded that he was very young and did not know these things and the people he lived with were all students and there was no talk of refugee/ protection in the house.  All they talked about was migration.  The applicant claimed that he got to know about protection visas in the detention centre after he signed up to go home. The Tribunal put to him that he was a reasonably intelligent person who could have applied earlier.  The Tribunal referred to the applicant being unlawful for six years and asked what he did in that time to rectify his visa status.  He was pulled over by the police who discovered he did not hold a valid visa.  The applicant told the Tribunal that had he known he could apply for a protection visa he would have.  The applicant told the Tribunal that he made no attempt to rectify his visa status as he was too afraid of being sent back.

11. The Tribunal referred to the delegate’s decision which refers to the applicant being asked whether he had any reasons why he could not return to Pakistan in his Located Persons Interview. The applicant’s response to this question was that he and his family did not get along and he has a different lifestyle now.  The applicant responded that he came here when he was [age] years old and has spent most of his adulthood in Australia, the culture he has adopted, the people he has lived with, his views on religious matters are different to his family/parents.  He has been told by Pakistani people here that if he repeats his religious views in Pakistan, he will be shot.

12. The Tribunal referred to the applicant being able to relocate to a larger city to which the applicant responded he has no friends in Pakistan, everything he has is in Australia.  He has no ties to Pakistan and the lifestyle he has adopted is different to Pakistan.  He does not think he will fit, and it is what people who have come from Pakistan tell him.

13. The applicant told the Tribunal that he fears the harassment and fears for his life. As an adult he can do something about these people, to retaliate to fix things but when these people are the law enforcement are the ones harassing him, he will need to find other ways. 

14. The Tribunal put to the applicant that it has nothing before it apart from the applicant’s claims that his family are being harassed.  The applicant responded that his family is being harassed. The Tribunal put to him that his brother and father were members of a banned organisation which meant that the authorities were entitled to follow up on them.

15. The applicant referred to him calling the police as “goons’.  If he goes back and faces these things, he will act as he will not suffer this harassment anymore and he will retaliate and get into trouble.  All the authorities need is a reason, and he is sure they will get a reason.  At the moment he barely talks to his family but all they tell him is that these people come and sit for hours. 

16. The Tribunal put to the applicant that he claims his family are under constant surveillance, yet his brothers managed to leave the country.  The applicant responded that the family bribed their way out.  The Tribunal put to him that his brother was a member of a banned organisation yet managed to leave the country.  The applicant responded that as long as you have money and power you can leave the country.  The Tribunal put to the applicant his evidence his family have been under observation and surveillance for a very long time.  The applicant responded, 19 years.  The Tribunal put to the applicant that if the authorities were so interested in his family for 19 years as claimed, then why would they have allowed his siblings to depart the country, especially his [brother] for whom the order was issued.   

17. The applicant responded that every time they moved, the Order was passed on and the local police used the paper to harass them.  The local police do this to take the money and leave then return the following week.

18. When asked how he is so familiar with what happens in Pakistan despite claiming to have lived in Australia for his adult life, the applicant responded because he lives with Pakistani people who have lived here for various periods.

19. The Tribunal put to the applicant that he could return to Pakistan and relocate to a different city.  He spoke English, Urdu, Punjabi, had experience and skills in living in a different culture and finding employment in a different culture. The applicant responded he only had 10 years education and had lost 13 years being here.

20. The Tribunal referred to the delegate’s comments about his claims of returning to Pakistan then moving to [Country 1].  The applicant referred to that as an option and they tried to contact a lawyer in Pakistan to see if it was OK for him to return to Pakistan then make an application for any other country.  At the time the Prime Minister was Imran Khan and things were getting better, including the law enforcement departments and because of that he thought it would be better to return.  Then that family was killed on the main road, and he rethought his return.  The Tribunal put to him that this did not mean what happened to the family would happen to him.  The applicant told the Tribunal it was about feeling safe anywhere else except Pakistan.

21. The Tribunal asked how being regularly harassed was serious or significant harm.  The applicant responded that most of the money sent by the family was paid to the police and if he returns, he will try to stop this continuing. He barely talks to his parents.  His parents are harassed for money.  They come for the money.  The police visit for money, and it is a bad sight for the family in the village as it is talked about.  If he returns, he won’t be helpless, and he will find a way to do something. They owe him 13 years as he has been away from his family living in this country.

22. At the beginning of the second hearing the applicant provided further documents to the Tribunal. The first was a poorly copied document dated 10 January 2005. The document appears to be an Order by the Government of Punjab, Home Department that the persons listed below be detained for 90 days pursuant to s11EEE of the ATA 1997. The applicant’s brother is listed as [a number] on the list. The Tribunal referred to his earlier evidence that his brother was detained for six months which does not appear to be consistent with the information in the Order that he be detained for 90 days. The applicant responded that was his recollection that his brother was detained for six months.

23. Another copy of the Order dated [July] 2011 already provided to the Tribunal was also given again. This Order indicates that the applicant’s brother is an activist with Hizbul-Tehrir under s11EE of the ATA 1997 and he is entered into the fourth schedule of the Act. The order indicates he is to request permission to move from his house of permanent residence, report once a month, not to visit certain areas without permission and a bond is to be executed for good behaviour. His activities are to be monitored and he is to be kept under surveillance and the Order is to remain in force for three years. The Notice indicates that any person aggrieved by being included within the fourth schedule may within 30 days appeal to the relevant bodies.

24. An untranslated document was also provided which the applicant explained as a legal document of a formal complaint presented at the police station against his brother, framing him as a terrorist. He does not know who presented the complaint and his father is trying to determine who made the complaint. The applicant indicated it was dated 2021. The Tribunal indicated that it was unable to give any weight to the document as it was not translated. A translation was provided following the hearing.

25. The translation indicates it is a Police Report referring to Case [number] dated [date] October 2009 Crimes [deleted], City Kamoke. It deals with an application to block the identity card of [Mr A], son of [Mr B]. It refers to the person being declared a proclaimed offender by the Court and to efforts to arrest him and he is likely to abscond so it was requested NADRA be ordered to block his identity card so he cannot use his passport, transfer property or use his bank account. It bears signature and stamp of a magistrate 1^st class with a date [date]-06-illegible year.

26. The Tribunal referred to country information indicating document fraud is widespread in Pakistan, other than for identity documents issued by NADRA. DFAT do not consider the existence of a FIR as conclusive evidence the events in the FIR actually occurred.[1]

    [1] 2022 DFAT Country Information Report – Pakistan at [5.52-5.55].

27. Also provided was an undated copy of an unsigned letter purported to be from the applicant’s father addressed to the Home Secretary, Punjab. The letter points out his son’s CNIC has been blocked and his son, who is currently in [Country 1], is unable to renew his passport. The letter refers to his son at the age of [age] years being arrested without court conviction then released. His son left Pakistan in 2010 to go to [Country 1] to study, returning in 2017 for two months where he renewed his CNIC and passport. It is clear his son has not been in Pakistan for over 12 years and there is zero evidence of any activity during that time. It requests any restriction against his son be removed.

28. The applicant told the Tribunal that his brother applied for [Country 1] citizenship and the application was delayed due to COVID. The [Country 1] Government indicated that there was a red flag from his country that needed to be sorted. It took the family quite a while to work out what the red flag was, and they determined that there was a complaint that he was a terrorist made to the police station.

29. The Tribunal asked how it affected him to be told it affects the whole family, the situation that was going on. The applicant told the Tribunal that this is how the corrupt system worked in Pakistan. They are harassed and the family have to pay money for them to leave.

30. The Tribunal referred to country information that corruption is considered to be a way of life in Pakistan. The applicant responded that some try not to be part of that a way of life. The Tribunal referred to his evidence that his parents are part of the system to which the applicant responded people do what they want. The Tribunal referred to his brothers and one sister have left Pakistan and he himself considered returning to Pakistan before moving to [Country 1]. The applicant responded that during Imran Khan’s tenure as Prime Minister their complaints were received but now things are back to normal. The Tribunal referred to there being no evidence as to who made the complaint to which the applicant responded that this is how the security agencies worked. The applicant indicated that they were trying to work out who made the complaint. The Tribunal asked why it was taking so long as his evidence was that this occurred in 2021. The applicant responded they have just found out. The Tribunal referred to his evidence that he claimed this occurred in 2021 and was told that his brother applied for a [Country 1] passport as he was eligible for citizenship, and this is when his brother found out he was coming up as a red flag.

31. The Tribunal referred to his earlier evidence that he has limited contact with his family, yet he suddenly knows everything that is going on. The applicant indicated he has not spoken to his brothers for months or his parents for about three months but spoke to them the other day when he got the documents. He spoke to his parents twice after the last hearing.

32. The Tribunal referred to his earlier evidence that he would have difficulty returning to Pakistan as he had lived in Australia for too long. The way people in Australia respect others’ values and beliefs, believe in justice and social equality. Australia is not corrupt like Pakistan. He would have difficulty with they way people go to his family’s house, and he would try to get rid of this and if you try to reach out for help, you do not get it.  The Tribunal put to him that he is returning to his parent’s home and would not he respect them. He cannot return due to the harassment he will face and now he is [age] years old and will react to the harassment.

33. The Tribunal referred to country information that indicates that there are many returnees to Pakistan from western countries. Western films and western branded chains operate through Pakistan. English is widely spoken, and many have relatives living in western countries.[2]

    [2] South Asia Tourism Society n.d., Pakistan Culture. >

    The applicant responded that the people who tried to get his brother will try to get him on his return. When asked why they did not get to his other siblings before they left Pakistan, the applicant responded that they were harassed, and they left before 2021. His brother was targeted as a terrorist. The Tribunal referred to the earlier evidence that his brother was considered to be a terrorist according to the documents provided as far back as 2005 to which he responded that his brother was only handing out pamphlets. The applicant told the Tribunal that he was labelled a terrorist for handing out his opinion. The Tribunal put to the applicant that if his brother was labelled a terrorist, he would have had difficulty obtaining in student visa in 2010 for [Country 1]. The applicant applied for an Australian visa in 2011 and his other brother a [Country 1] visa yet there were no flags at that time that any were associated as family members of a terrorist. The applicant responded that everything was happening by the law and the harassment was not through the system and the power was being misused. Police still do things without authority. The applicant told the Tribunal that he will resist them going to his house and take action. The Tribunal asked why all of a sudden, he would take action when he has done nothing to date.  The applicant told the Tribunal he was always the one who stood up.

1. The Tribunal indicated to the applicant that if there is a red flag for his brother, then there will be a red flag indicating he is a member of the family of a person indicated as a terrorist which could be an exclusion. The applicant interrupted to say his brother was very young when this happened. The Tribunal indicated that it did not make decisions on those matters.

2. The Tribunal referred to his family departing Pakistan and suddenly there is a red flag. The applicant indicated he had no criminal history. The Tribunal pointed out his evidence is that his brother has been identified as a terrorist, his family identified as family of a terrorist and he may also be identified. It also indicated that in 2021 his brother was identified as a terrorist and now some years later the family was doing something about it. The applicant told the Tribunal that the complaint was lodged recently but they have only just found out when he applied for his passport. The applicant then told the Tribunal that when his sister went to renew her CNIC that there was a red flag on his brother and that started the process.

3. The applicant told the Tribunal that if his brother could be booked for terrorism and if he was not present in Pakistan then they could do something to him if he returns. His father is unwell, and it keeps going on. The applicant told the Tribunal that he believes in the justice system. The Tribunal pointed out that, yet he remained unlawful and did nothing about rectifying his status until he was picked up by the police. He even then indicated that he would be returning home before applying for protection.

4. Following the hearing the applicant provided a further detailed statement. In the statement the applicant claims that his father was a supporter of Nawaz Sharif, Prime Minister and head of PML, who was overthrown in October 1999 by General Pervez Musharraf. His father was a staunch supporter and active member of the local PML at his workplace, [and] in the Karachi community and fled to [Country 2] in fear of persecution and for the survival of the family. His [brother] moved to Lahore for his studies after matriculation and while taking part in a protest against General Musharraf in October 2004 was arrested. He was aged [age] years at the time and was held by agencies where he was tortured before being handed to the police and held for 3 months under an executive order call 11eee. They did not know where he was. He was held under Order11eee to maintain the public peace and before his detention ended, it was extended for another three months. He was released in April 2005. He was not convicted of any crime and stopped his political activities after his release. However, he was constantly watched as was our house. We were constantly harassed, and we were living in perpetual fear. They ended selling their house and moving to a rental house, but it was only a matter of time before they managed to find them and commence persecuting them. His father returned in 2008 and the harassment increased. In 2010 they managed to get his brother to [Country 1] in secrecy. The harassment continued and the threats were that if we did not produce his brother, one of the other boys would be taken. The family kept moving and in 2014 his father was taken into police custody without explanation and was released after a hefty bribe was paid. In 2011 his family sent him to Australia to study. His father asked for favours and found that his brother had been put on a blacklist by the Pakistan Government Agencies. Eventually his father managed to get his brother’s name of the blacklist. His brother obtained his permanent residency and returned in 2017 for a brief visit to get married. In 2019 his bother applied for [Country 1] citizenship and was told that inquiries with the police department in Pakistan kept coming up with a red flag in Interpol records. His father looked into it and was told that an anonymous complaint was lodged against his brother to void his passport to prevent him escaping Pakistan. The applicant submits his brother has been cleared by the counter terrorism department, there is no proof he is involved in terrorism activities, and he is not wanted by them anymore. It is evidencing his family remain on the radar of police enforcement authorities as supporters of the opposition and his brother being labelled as a terrorist is evidence of this. The applicant claims that many dissenters have gone missing. The applicant submits the articles he has provided paint the picture of the political climate in Pakistan. His brother charges are false, and he has been framed. He fears returning to Pakistan as he will be dealt with harshly and likely to face death as an example.

5. A search of the Interpol website indicates a red notice has been issued for a [Mr A], date of birth [date], age [age] years old of Pakistan, born Gujranwala, Pakistan on charges under Anti-Terrorism Act.

6. The Interpol website indicates that a rigorous review of requests by bodies for persons to be listed under a red notice is undertaken and that such requests must meet stringent guidelines. This was put to the applicant at hearing.

7. The applicant indicated that if the authorities can do this to his brother, they can do anything to him. The charges against his brother are false. They are fighting against the establishment and the security forces conspire with them to get the family.

8. The following documents were also submitted:

   ·A summary published 13 February 2024 of Politics in Pakistan 2022 – 2024 and upcoming elections - these detail Imran Khans removal and subsequent conviction; the overturning of Nawaz Sharif’s corruption convictions; the arrest and jailing of senior PTI supporters.

   ·Human Rights Watch, Pakistan, Events of 2023 Report.

   ·GIS Report published May 2024 on Pakistan politics.

   ·An article on Enforced Disappearances in Pakistan dated May 2022 referring to the disappearance of those predominately of Balch and Pashtun ethnicities.

   Findings and reasons

   Credibility

9. The Tribunal acknowledges the importance of adopting a reasonable approach when making findings of credibility.[3] However, the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, that it is ‘well‑founded’ or that it is for the reason claimed. Rather it remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.

   [3] Guo v MIEA (1996) 64 FCR 151, per Foster J at 194 (Full Federal Court)

10. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at [482]:

    … care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

11. The Tribunal also accepts that ‘if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196.) However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.

12. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

13. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

14. 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 (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.

    Delay in applying for protection

15. The applicant significantly delayed applying for protection after his arrival in Australia. He entered the country in November 2011 as the holder of a student visa, firstly studying English before starting his [studies] which he claims he was unable to continue for financial reasons. His student visa was cancelled in November 2012, and he remained unlawfully in Australia for around six years before being pulled over by the police in November 2018 where it was found he did not hold a valid visa.  He was then detained, applying for protection in March 2019. The applicant waited over seven years before finally lodging a protection visa claim. It would be expected that the applicant would have sought to regularise his status in Australia and sought assistance to remain lawfully in Australia, including seeking protection earlier than he did. As noted by the delegate, an applicant’s delay in applying for protection can support an adverse credibility finding as well as a finding that the person’s fear is not well‑founded.[4]

    [4] Selvadurai v MIEA (1994) 34 ALD 347.

16. In the hearing, the Tribunal asked the applicant why he did not apply for protection earlier as he claimed to have been sent to Australia for his safety. The Tribunal put to the applicant that he was reasonably intelligent, competent in English and as such plausibly had the means and ability to investigate and understand his protection visa options, particularly as protection visas were dominant news in 2012. The Tribunal noted that the fact that he spent many years in Australia, only applied for protection when in immigration detention, and the fact that he had been residing unlawfully for some time, may cause the Tribunal to doubt that he genuinely feared persecution. In response the applicant submitted that he was very young and did not know these things, the people he lived with were all students and there was no talk of refugee/protection in the house as all they talked about was migration.  The applicant claimed that he got to know about protection visas in the detention centre after he signed up to go home.  Had he known he could apply for a protection visa he would have, and he made no attempt to rectify his visa status as he was too afraid of being sent back.

17. The Tribunal did not find the applicant’s explanation for his delay convincing. The Tribunal has considered the submission, but also the case law and the guidance in the Tribunal Guidelines on the assessment of credibility.[5] Consideration of such a lengthy delay in applying for protection is in the Tribunal’s view open on the material in this case. The applicant had lived in Australia for many years, is competent in English, is intelligent and educated. He made no effort to explore his protection options. The Tribunal does not accept the applicant’s various explanations as reasonably plausible explanations for his failure to explore his protection options for such a long period of time. The Tribunal finds that the failure of the applicant to apply for protection earlier than he did leads it to have significant concerns about the applicant’s overall credibility and to the genuineness and extent of his claimed subjective fear of persecution and significant harm.

    [5] AAT, Migration & Refugee Division – Guidelines on the Assessment of Credibility, July 2015, p. 7

18. The applicant claims if returned to Pakistan he will act against those who regularly harass his family for money.  He claims his family are under constant surveillance because his brother was a member of Hizb Ut Tahrir and was detained for about six months in 2005 for handing out pamphlets outside a mosque. His father was a member of the organisation while living in [Country 2] but resigned and had no further dealings with the group on his return to Pakistan.

19. The applicant claims that his family are against the establishment who are conspiring with the security forces to get his family and the charges against his brother, which are false, are evidence of this.

20. The applicant also claims that his father was an active supporter of the PML(N) in Karachi and fled when General Musharraf overthrew the Government in late 1999. His [brother] moved to Lahore for his studies after matriculation and while taking part in a protest against General Musharraf in October 2004 was arrested. His brother was aged [age] years at the time and was held by agencies where he was tortured before being handed to the police where he was held for 3 months under an executive order call 11EEE which was extended by 3 months before his brother was released in April 2005. The applicant claims that when his father returned from [Country 2] in 2008, the harassment increased, and they threatened to take another son if his brother was not presented. His father was detained in 2014 and only released after a hefty bribe paid. His father managed to get his brother off the blacklist by using his connections so that his brother could return to Pakistan in 2017 to marry. In 2019 his brother applied for [Country 1] citizenship and was told there was a red flag in Interpol records against his name when enquiries were made with the Pakistani police. The applicant told the Tribunal that as far as he is aware his brother’s application for citizenship has not been refused and his father is investigating to resolve the problem. He is unsure what his brother is doing to resolve the issue. His father made enquiries and found an anonymous complaint was made against his brother requesting his identity card be blocked so he cannot use his passport. The applicant submits there is no proof his brother is involved in terrorism activities, and he is no longer wanted by the Pakistani authorities, but this evidences that his family are on the radar of the police as supporters of the opposition. The charges against his brother are false and indicate what can happen to him if he returns to Pakistan.  He refers to the articles provided that indicate many are missing in Pakistan as a result of the security forces.

21. The applicant claims that his father still supports PML(N) but the rest of the family support Imran Kahan. He claims the treatment of Imran Khan is another example of the establishment taking action against those it does not favour.

22. The applicant claims that his brother was expressing his democratic right to free speech by handing out the pamphlets. In detaining him, the Pakistani Government was denying him his right to free speech and the articles demonstrate the Pakistani Government takes action against those who speak out. His brother was fighting against the establishment as all his family did and for that they are being persecuted. As indicated to the applicant, according to the documents provided, his brother was an activist with Hizb Ut Tahrir and was handing out pamphlets on behalf of a proscribed organisation.

23. The Tribunal has considered the attached articles. The articles refer to events in politics in Pakistan over the past few years and provide a history and analysis of the events in Pakistan politics. The article referring to many going missing, essentially refers to predominately those of Balch and Pashtun ethnicities disappearing, usually where the authorities are involved.  

24. The applicant claims that he and his family have fought against the establishment and as a result the security forces have conspired false charges against his brother and the family. If he returns to Pakistan, he will become a scapegoat and false charges will be against him as the other brothers have left. He will act against those who harass the family and seek bribes.

25. The applicant claims that a Red Notice has been issued by Interpol based on the false accusations. The Tribunal raised with the applicant that Interpol have stringent guidelines regarding applications by countries for persons to be included as a Red Notice as well as stringent vetting of requests so it would require more than one FIR for Interpol to agree to a Red Notice for his brother. The Tribunal indicated that it found it difficult to accept that Interpol would issue a Red Notice on the basis of false allegations that had no substance. The applicant believes that this is part of the harassment of his family.

26. According to the American Foreign Policy Council (AFPC),[6] Hizb Ut Tahrir (“HT”) is a transnational Sunni political party or movement.[7] Nevertheless, the AFPC reports that HT recruits new members irrespective of their Islamic sect.[8] The party was founded in Jerusalem in 1953 by a Palestinian judge, Taqi al‑Din al‑Nabhani[9] ‘for the dual purpose of establishing an Islamic state and liberating Palestine.’[10] From its initial base in the Jordan-ruled West Bank,[11]  the party spread to other areas of the Middle East, North Africa, East Asia, Eurasia and Europe.[12] In 2007 the Transnational Terrorism, Security and the Rule of Law Program (TTSRL)[13] reported that HT has branches in approximately 40 countries[14] including Australia.[15] According to the AFPC, the party’s ‘major organizational center’ is based in London.[16] Regarding membership numbers of the group, the AFPC notes that ‘because the group operates clandestinely in most parts of the world, its global membership numbers are unknown.’[17] Notwithstanding this, the AFPC notes the party is estimated to have ‘tens of thousands’ of members including ‘at least 20,000 in Central Asia.’[18]

    [6] According to its website, the American Foreign Policy Council is non-profit organisation ‘dedicated to bringing information to those who make or influence the foreign policy of the United States.’ It is described by Source Watch as a ‘conservative think tank’ based in the US. < <

    [7] American Foreign Policy Council 2013, Hizb ut-Tahrir, October, Endnote 1, p.1 < Accessed 28 August 2014 <29732>

    [8] Global Security Organisation n.d., Hizb ut-Tahrir al-Islami (Islamic Party of Liberation) < Accessed 28 August 2014 <29736>

    [9] International Crisis Group 2005, Jordan’s 9/11: Dealing with Jihadi Islamism, 23 November, UNHCR Refworld, footnote 42, p.6 < ut-Tahrir al-Islami &coi=JOR> Accessed 28 August 2014 <29739>;  Transnational Terrorism, Security and the Rule of Law Program 2007, Hizb ut Tahrir al Islami (Islamic Party of Liberation), 15 April, p. 3 < Accessed 30 August 2012 <23852>

    [10] Commins, D 1991, ‘Taqi Al-Din Al-Nabhani and the Islamic Liberation Party’, The Muslim World, Vol. LXXXI, No. 3-4, p.194 < Accessed 28 August 2014 <29735>

    [11] Commins, D 1991, ‘Taqi Al-Din Al-Nabhani and the Islamic Liberation Party’, The Muslim World, Vol. LXXXI, No. 3-4, p.194 < Accessed 28 August 2014 <29735>

    [12] American Foreign Policy Council 2013, Hizb ut-Tahrir, October, Endnote 1, p.1 < Accessed 28 August 2014 <29732>

    [13] According to their website, the Transnational Terrorism, Security and the Rule of Law Program is a research consortium consisting of six research institutions from four member states of the EU including the Danish Centre for International Studies and Human Rights and the Netherlands Institute of International Relations. Research undertaken as part of the project focuses on the threat of terrorism within the EU and generating various response options to terrorism that are available to European governments. The project is funded by the European Commission < <

    [14] Transnational Terrorism, Security and the Rule of Law Program 2007, Hizb ut Tahrir al Islami (Islamic Party of Liberation), 15 April, p. 3 < Accessed 30 August 2012 <23852>

    [15] Hizb ut-Tahrir Australia 2012, About Us, 1 March <

    [16] American Foreign Policy Council 2013, Hizb ut-Tahrir, October, Endnote 1, p.5 < Accessed 28 August 2014 <29732>

    [17] American Foreign Policy Council 2013, Hizb ut-Tahrir, October, Endnote 1, pp.5-6 < Accessed 28 August 2014 <29732>

    [18] American Foreign Policy Council 2013, Hizb ut-Tahrir, October, Endnote 1, p.1 < Accessed 28 August 2014 <29732>

1. With respect to HT’s objectives, the International Crisis Group states that the group is an ‘ideologically radical but professionally nonviolent political movement that seeks the creation of an Islamic Caliphate administered according to Shari’a law.’[19] An undated article by the Global Security Organisation similarly reports that the ‘ultimate aim’ of the group is to ‘unite the entire ummah, or Islamic world community, into a single caliphate’ to bring ‘Muslims back to living an Islamic way of life in ‘Dar al-Islam [the land where the rules of Islam are being implemented, as opposed to the non-Islamic world].’[20] While the group is described as ‘holding radical Islamist views’, it openly advocates for peaceful change[21] and achieving its ‘objectives through nonviolent means.’[22] According to the abovementioned Global Security Organisation article, HT ‘has not been involved in any known terrorist activities.’[23] Of note, HT has publicly announced that it does not recognise the caliphate declared by the Islamic State (formerly the Islamic State in Iraq and al-Sham – ISIS).[24]

   [19] International Crisis Group 2005, Jordan’s 9/11: Dealing with Jihadi Islamism, 23 November, UNHCR Refworld, footnote 42, p.6 < ut-Tahrir al-Islami &coi=JOR> Accessed 28 August 2014 <29739>

   [20] Global Security Organisation n.d., Hizb ut-Tahrir al-Islami (Islamic Party of Liberation) < Accessed 28 August 2014 <29736>

   [21] Transnational Terrorism, Security and the Rule of Law Program 2007, Hizb ut Tahrir al Islami (Islamic Party of Liberation), 15 April, p. 3 < Accessed 30 August 2012 <23852>

   [22] Global Security Organisation n.d., Hizb ut-Tahrir al-Islami (Islamic Party of Liberation) < Accessed 28 August 2014 <29736>

   [23] Global Security Organisation n.d., Hizb ut-Tahrir al-Islami (Islamic Party of Liberation) < Accessed 28 August 2014 <29736>

   [24] Hizb ut-Tahrir Australia 2014, Regarding what has been declared by ISIS about the establishment of the Khilafah, 2 July < Accessed 28 August 2014 <29738>

2. Hizb Ut Tahrir was declared a proscribed terrorist organisation on 19 January 2024 in the United Kingdom.[25] Australia and Canada have not declared Hizb Ut Tahrir a proscribed organisation. As confirmed with the applicant, Hizb UT Tahrir is a proscribed organisation in Pakistan since 2004.

   [25] Home Office to ban Hizb ut-Tahrir as terror group (bbc.com).

3. On March 2024, Shehbaz Sharif of PML(N) was elected Prime Minister of Pakistan after negotiating with the Pakistan People’s Party (PPP) to form a coalition.[26]

   [26] 'Pakistan: COI Compilation April 2024 (Reporting period: January 2022 to March 2024)', Accord, April 2024, pp. 17-18, 20240508112304; 'Shehbaz Sharif elected prime minister for 2nd time, vows to steer Pakistan ‘back to shore’ in victory speech', Dawn (Pakistan), 03 March 2024, 20240304085450.

4. Provided to the Tribunal was a poorly copied document dated 10 January 2005. The document appears to be an Order by the Government of Punjab, Home Department that the persons listed below be detained for 90 days pursuant to s11EEE of the Anti-Terrorism Act (“ATA”) 1997. The applicant’s brother is listed as [a number] on the list. The Tribunal notes the evidence from the applicant is that his brother was detained for six months. The Tribunal notes that s11EEE of the ATA 1997 enables a person to be held for a further period as long as the total time does not exceed 12 months.

5. A copy of the Order dated [July] 2011 was provided to the Tribunal. This Order indicates that the applicant’s brother is an activist with Hizbul-Tehrir under s11EE of the ATA 1997 and he is entered into the fourth schedule of the Act. The Order indicates he is to request permission to move from his house of permanent residence, report once a month, not to visit certain areas without permission and a bond is to be executed for good behaviour. His activities are to be monitored and he is to be kept under surveillance and the Order is to remain in force for three years. The Notice indicates that any person aggrieved by being included within the fourth schedule may within 30 days appeal to the relevant bodies.

6. The Tribunal notes from the document, that members of a proscribed organisation can be monitored, kept under surveillance, required to report regularly and pay a bond to the satisfaction of the City Police Officer, Gujranwala. 

7. The applicant provided a copy of a document and translation indicating it is a Police Report referring to Case [number] dated [date] October 2009 Crimes [deleted], City Kamoke. It deals with an application to block the identity card of [Mr A], son of [Mr B]. It refers to the person being declared a proclaimed offender by the Court and to efforts to arrest him and he is likely to abscond so it was requested NADRA be ordered to block his identity card so he cannot use his passport, transfer property or use his bank account. It bears signature and stamp of a magistrate 1^st class with a date 20-06-illegible year. At hearing the applicant was asked for further detail about the charge referred to in the document that appeared to indicate was [date] October 2009, prior to the brother travelling to [Country 1]. The applicant was unable to enlighten the Tribunal about the charge.  When it was pointed out that the date of the document was illegible, the applicant indicated he thought it was issued in 2019 or 2021. The applicant’s evidence to the Tribunal has been that he thought the FIR was from 2021.

8. The applicant’s evidence is that following his brother’s release in 2005, his family were constantly monitored, with family members being questioned, particularly about what the brothers were doing and where they were hanging out. He claims the police would not leave until they were paid money. As discussed with the applicant, the Tribunal finds that the surveillance and monitoring of the applicant’s family and particularly his [brother] would be consistent with the authorities’ treatment of members of a proscribed organisation, pursuant to s11EEE of the ATA 1979. The Tribunal would expect the local police and other enforcement organisations to monitor known members of proscribed organisations and their families to locate other members and determine the nature of future activities of the organisation. The Tribunal would expect that this surveillance and monitoring would continue despite the family moving addresses as the evidence from the applicant is that they remained within the Gujranwala locality and the Order applies to the Gujranwala locality.

9. The applicant claims that the surveillance and monitoring increased when his father returned to Pakistan from [Country 2]. The applicant’s evidence was that his father was an active member of Hizb Ut Tahrir in [Country 2] where it was, at that time, not a proscribed organisation. The applicant’s evidence was that it was because of his father that his brother joined the organisation.

100.   The applicant’s evidence is that his father was an active member of PML(N) in Karachi who fled to [Country 2] in 1999 when General Musharraf deposed of Nawaz Shaif’s PML(N) Government. General Musharraf listed Hizb Ut Tahrir as a proscribed organisation in Pakistan in 2004. The applicant’s father returned to Pakistan around 2008 and according to the applicant’s evidence, did not continue his involvement with Hizb Ut Tahrir.

101.   The Tribunal accepts based on the evidence presented that the Pakistan authorities have detained the applicant’s brother as a member of a proscribed organisation pursuant to the ATA and have, consistent with the provisions of the ATA, monitored and kept the family under constant surveillance since his brother’s detention. 

102.   The applicant claims that his father used his influence to arrange for his brother to be able to secretly depart Pakistan in 2010 to study in [Country 1]. The applicant claims that if you have influence and money, these things are possible.

103.   The Tribunal accepts, based on country information, that corruption at both high and low levels, is endemic in Pakistan.[27] The Tribunal accepts that the applicant’s father used his influence, contacts and bribes to enable his son to depart Pakistan for [Country 1] in 2010. As Hizb Ut Tahrir is not a proscribed organisation in [Country 1], membership of, or past involvement in, possibly would not have been a reason for refusing a student visa to the applicant’s brother at that time.

[27]2022 DFAT Country Information Report – Pakistan at [2.28-2.30]; [5.26].

104.   The Tribunal also notes that it was after the applicant’s brother had departed for [Country 1] to study that the Order dated [July] 2011 was issued placing the applicant’s brother on the Fourth Scheduled pursuant to s11EE of the ATA 1997. This appears to indicate that the authorities were not aware that the applicant’s brother had departed Pakistan and is supported by the applicant’s evidence that despite his brother departing Pakistan in 2010, the monitoring and surveillance of the family continued, with officers regularly visiting the family home asking where his brother was.

105.   The applicant’s brother returned to Pakistan about 2017 to marry. At that time, he was a [Country 1] permanent resident but still travelled on his Pakistan passport. The applicant claims that his father used his influence to arrange for any terrorism charges to be removed so his [brother] could return then depart Pakistan for [Country 1]. The Tribunal accepts the applicant’s evidence, supported by country information, that the applicant’s father used his contacts to enable his son to return and depart Pakistan freely in 2017, despite the Order dated July 2011.

106.   The Tribunal accepts that the applicant’s brother and family would have been monitored and kept under surveillance in the period after the brother’s arrest and release in 2005 due to his membership of a proscribed organisation. According to the Order dated July 2011, it was to remain in force for three years indicating the monitoring, surveillance of the family would continue, despite the applicant’s brother living in [Country 1] at the time.  

107.   The Tribunal accepts the possibility that the brother divorced his Pakistani wife as he was unable to return to Pakistan to visit her. The Tribunal does not accept the applicant’s contention that his sisters were married off early because of the attention by the authorities.  According to the applicant’s evidence, his sisters married after he lodged his protection visa application which would put the youngest in her [age range] at the time of her marriage.  While the Tribunal appreciates his youngest sister may have wished to finish her studies prior to her marriage, the Tribunal does not accept that this indicates she was married off early because of the surveillance and monitoring. While the Tribunal acknowledges that it is culturally appropriate for family to attend weddings, it does not accept that the reasons the brothers did not attend was because of the claimed on-going harassment of the family. The Tribunal accepts that as the holder of a bridging visa, the applicant may not have been in a position to return for his sisters’ weddings.

108.   The Tribunal notes the applicant’s claim that his father’s business had financial problems due to the constant monitoring and surveillance however does not accept that the family and/or individual members of the family were denied the capacity to earn an income of some kind for reasons of race, religion, nationality, membership of a particular social group or political opinion.  While the applicant claims his brothers now support his parents, the Tribunal notes that his parents have now retired. 

109.   The Tribunal accepts that the applicant’s father may have been detained in 2015 but does not accept there was no reason for him being detained. The evidence before the Tribunal is that the applicant’s brother was the subject of an Order made under the ATA, the family were under surveillance and the Tribunal finds the fathers detention for two days was in relation to the activities of his son. The Tribunal accepts a bribe was paid for the father’s release. 

110.   As raised with the applicant, despite his claims that his family have been constantly under surveillance with regular visits from the local police and a Notice was issued in July 2011, his father was able to depart Pakistan for [Country 3] in 2011, the applicant was able to depart Pakistan for Australia in August 2011 and sometime after 2019, his other two brothers were able to depart Pakistan, one for [Country 1] and the other for [Country 4]. His remaining sisters were also able to marry and move to the homes of their respective husbands with one sister departing Pakistan with her husband for [Country 2].

111.   The Tribunal does not accept the applicant’s brother has been denied his democratic right to free speech because he was handing out pamphlets. The Tribunal does not accept the Pakistan Government took action against his brother for speaking out. The Tribunal does not accept the applicant, his brother or his family have ever fought against the “establishment” and does not accept they are being persecuted for their actions. According to the evidence, the applicant’s brother was handing out pamphlets for a proscribed organisation of which he was a member, as was his father. The Tribunal finds that the actions of the Pakistan Government were in accordance with the relevant laws of the country, specifically the Anti-Terrorism Act of 1997.

112.   The Tribunal does not accept that the applicant has ever spoken out against the Pakistan “establishment”. He has not resided in Pakistan since 2011 when he was aged [age] nor has he engaged in any activities while in Australia that would be perceived as being against the Pakistan “establishment”. In that regard the Tribunal does not accept that the applicant could be considered as a dissenter or fighter against the establishment.

113.   The Tribunal does not accept that as the PML(N) are currently in Government in Pakistan that the applicant’s father would be considered to be opposed to the Government or engaged in any activities against the Government. The applicant’s evidence is that his father was an active supporter of the PML(N) and fled Pakistan after the coup in fear of his life, returning in 2008 when General Musharraf was no longer President. The applicant’s evidence is that his father still supports the PML(N). The Tribunal accepts that the applicant may prefer Imran Khan but does not accept that the applicant has ever or will on his return to Pakistan, take an interest in Pakistan politics or an active participatory role.

114.   The applicant claims that the establishment is conspiring against the family with false claims against his brother, using the security forces to enforce those claims. The Tribunal does not accept this claim. The applicant’s own evidence was that his brother and father were members of Hizb Ut Tahrir, a proscribed organisation in Pakistan. His family have been under constant monitoring by the authorities looking for his brother pursuant to the ATA 1997. Various Orders have been made over the years culminating in an Interpol Red Notice in relation to his brother.

115.   The Interpol website indicates that before a Red Notice is issued a rigorous review of requests by bodies for persons to be listed under a red notice is undertaken and that such requests must meet stringent guidelines. The Tribunal does not accept that Interpol would issue a Red Notice based on one FIR or a request from the Pakistan security agencies with little to no evidence in support. 

116.   The Tribunal does not accept that continual monitoring and surveillance of the applicant and his family reaches the threshold of serious harm or significant harm. The Tribunal does not accept that continual monitoring and surveillance equates to significant physical harassment, significant ill-treatment or denies members of the family access to basic service or denies the family capacity to earn a livelihood of any kind. The Tribunal finds that the constant monitoring and surveillance of members of the family as members or formers members of a proscribed organisation would be in accordance with the laws of the country. The Tribunal also does not accept that the authorities engaged in systemic and discriminatory conduct of the applicant and his family for any reason including for their political beliefs or because of the membership of his father and brother of the proscribed group, Hizb Ut Tahrir.

117.   The applicant claims that the authorities are constantly turning up at his parents’ home and do not leave until they have been paid a bribe. According to the applicant’s evidence, the family regularly pays the bribes, and this has been on-going for a considerable period. He claims that if he returns, he will not put up with this and act against those seeking the bribery payments. The Tribunal accepts that corruption is present in Pakistan and considered very much to be a way of life.[28] The Tribunal finds that the requests for bribes on a regular basis is not for reasons of race, religion, nationality, membership of a particular social group or political opinion. The Tribunal does not accept that requests for bribes equates to serious or significant harm as described in the Act.

[28] 2022 DFAT Country Information Report – Pakistan at [2.28-2.30], [5.10].

118.   The Tribunal does not accept the applicant’s claims that he will not put up with the constant monitoring and surveillance or request for bribes if he returns to Pakistan. The Tribunal finds that the constant monitoring and surveillance is in accordance with the laws of the country, and should the applicant decide to act against the laws of Pakistan, he will be penalised in accordance with the laws of Pakistan. The Tribunal does not accept that being detained, fined, or monitored reaches the level of serious or significant harm.   

119.   Despite the claims that the family has been constantly monitored, the applicant himself as well as his two brothers were able to depart Pakistan freely and his father was able to travel to [Country 3]. The applicant’s family have continued to live their lives in Pakistan despite the constant monitoring for the applicant’s brother. His sisters were married and the brothers able to leave the country. The applicant claims that the authorities have threatened that if his brother was not produced, the authorities would take one of the other male siblings and if he returns, he will be made a scapegoat and detained on arrival. The authorities have not detained the applicant’s other brothers or prevented them from leaving Pakistan. The Tribunal considers that the if the Pakistan authorities intended to act on this claimed threat, the applicant’s other brothers resided in Pakistan until recently without being detained and were allowed to freely depart the country. The Tribunal finds the authorities interest as indicated from the Interpol Red Notice is for his brother. The request to Interpol for a Red Notice to be issued indicates that the Pakistan authorities are aware that the applicant’s brother is no longer present in Pakistan.

120.   After considering all the evidence and information before it, the Tribunal does not accept that the applicant is of any interest to the Pakistan authorities, the “establishment” or security agencies for any reason. The Tribunal does not accept he will be made a scapegoat on his return or be detained at the airport. The Tribunal accepts that the applicant’s brother is of interest to the Pakistan authorities but does not accept that they have any interest in the applicant for any reason whatsoever. The Tribunal therefore does not accept that the Pakistan authorities or the “establishment” are conspiring against his family, using the security forces.

121.   The Tribunal finds on the basis of the evidence before it, there is no real chance the applicant will face serious harm from the Pakistan Government, authorities, security agencies or any other person should he return to Pakistan now or in the reasonably foreseeable future for reasons of his race, nationality, political or imputed political opinion, religion or membership of a particular social group or because he is a member of his brother’s family.  

122.   The applicant fears harm returning to Pakistan as he has lived in Australia for most of his adult life, having arrived when he was [age] years old. He would have difficulty adjusting to the way of life in Pakistan. He values the way people in Australia respect others’ values and beliefs, believe in justice and social equality. He has adopted Australian culture and his views on religious matters are different to those of his parents. He has been told by Pakistani people here that if he repeats his religious views in Pakistan, he will be shot. People who have come from Pakistan tell him that he will not fit. The applicant also told the Tribunal that he barely talks to his family.

123.   DFAT assesses that returnees are ‘typically’ able to re-integrate in Pakistan. Further, DFAT reports that Pakistanis do not face a ‘significant risk of societal violence or discrimination as a result of their attempt to migrate, or because of having lived in a western country.[29]

[29] 2022 DFAT Country Information Report Pakistan at [5.30].

124.   Despite the applicant claiming to have little contact with his family, the applicant has his family network in Pakistan, was educated there and is familiar with the language and customs. His evidence to the Tribunal is that while in Australia, he continues to live with people from Pakistan. The Tribunal has considered the applicant’s claim he has little contact with his family, yet he was able to provide considerable information to the Tribunal obtained from his family in Pakistan, indicating that a relationship continues to exist.

1. The Tribunal acknowledges that the applicant does not want to return to Pakistan. However, many people in Pakistan do not dress traditionally and wear western clothes. Western culture in Pakistan remains pervasive in many parts of Pakistan, particularly in large urban centres. Western films and music are widely available and western branded chains operate throughout Pakistan.[30] Both Urdu and English are recognised as official languages in Pakistan.

   [30] ‘Metrosexual man is on the rise in Pakistan’ 2011, Agence France Presse, source: The National, 10 February < <CXCB3E63420650>  South Asia Tourism Society n.d., Pakistan Culture < <CISEC96CF1410>. 

126.   The Tribunal accepts that as he has resided in Australia for over ten years, his religious views would have developed without the presence of his parents. However, the applicant still identifies as Muslim, and the Tribunal finds he will continue to identify as Muslim on his return to Pakistan. The Tribunal does not accept the applicant’s claim that he will be shot if he expresses his religious views on return to Pakistan. Apart from claiming that his friends who were recently in Pakistan told him so, the applicant did not expand on why he thought this would happen, apart from indicating his views are different from those of his parents. The Tribunal does not accept that the applicant would need to make modifications of behaviour for any reason on his return to Pakistan to avoid harm.

127.   After considering the evidence and country information, the Tribunal does not accept there is a real chance the applicant will suffer serious harm reason for being a returnee from the West or for his religious beliefs.

128.   The Tribunal has considered the applicant’s claim that he does not have the mental capacity or emotional stability to move back to Pakistan. The Tribunal acknowledges that the applicant has lived in Australia since 2011 and will have difficulty adjusting on his return to Pakistan. The Tribunal accepts that should he require support for his mental health on his return, the standard and availability of mental health services in Pakistan would not be the same as that available in Australia.  The Tribunal does not accept that as a Pakistani citizen, the applicant would be denied medical care or that he would be denied access to health care at the same rate or opportunity as any other citizen of the country. As a result, the Tribunal finds that the applicant would be able to access health care in Pakistan at the same rate as other citizens.

129.   The Tribunal does not accept on the basis of the available evidence that the applicant would be subjected to systematic and discriminatory conduct in Pakistan that would amount to a real chance of him suffering serious harm, including being denied access to basic mental health services for any reason if he is returned to Pakistan now or in the reasonably foreseeable future. The Tribunal does not accept that any difficulty in adjusting to life in Pakistan after a long absence reaches the level of serious or significant harm.

130.   Having considered the applicant’s claims individually and cumulatively in conjunction with the evidence and information before the it, the Tribunal does not accept that there is a real chance the applicant would face serious harm by the Pakistan State or non-state actors, the authorities or the “establishment” for reasons of his race, nationality, religion, political opinions or political opinions imputed to him because of his brother; membership of a particular social group, returnee from the west, including being a member of his brother’s family or due to his mental health or for any other reason, if he is removed to Pakistan now or in the reasonably foreseeable future.

131.   Consequently, the Tribunal is not satisfied the applicant has a well-founded fear of persecution for any of the reasons specified in s 5J(1) of the Act, or for any other reason. Accordingly, the Tribunal is not satisfied the applicant meets the definition of refugee as set out in s 5H of the Act.

COMPLEMENTARY PROTECTION

132.   The Tribunal has considered whether there are substantial grounds for believing that the applicant will face a real risk of significant harm on being returned to his receiving country of Pakistan. The Tribunal has found above that there is no real chance that he will be seriously harmed on return in the reasonably foreseeable future for any of the reasons claimed or any other reason apparent.

133.   In considering whether the applicant meets the complementary protection criterion under s 36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.

134.   In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[31] For the same reasons, the Tribunal does not accept that there is a real risk the applicant will suffer significant harm from the Pakistan state or non-state agents, the authorities, the “establishment” or anyone else as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan.

[31] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342].

135.   Considering the applicant’s circumstances, and having regard to the findings of fact set out above, the Tribunal finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that the applicant will suffer significant harm, as set out in s 36(2A), for the reason of the applicant’s political/imputed political opinion, race, nationality, religion or membership of a particular social group, returnee from the west or because he is a member of his brother’s family.

136.   The applicant claims that he does not have the mental capacity or emotional stability to move back to Pakistan. While the Tribunal accepts that mental health care is not at an entirely satisfactory level in Pakistan, care is available both privately and via the public health system. In any event, the definition of ‘significant harm’ under complementary protection requires an element of intent. That is an act or omission by which the significant harm (torture, cruel or inhuman treatment or punishment or degrading treatment or punishment) is intentionally inflicted upon a person for a specific purpose or reason. Therefore intent, in this context, requires an actual, subjective, intention on the part of a person to bring about the applicant’s suffering by their conduct.[32] The Tribunal finds there is no actual, subjective, intention on the part of any person to bring on the applicant’s mental condition or to cause him significant harm by reason of his mental health upon his return to Pakistan. The Tribunal therefore finds that there is no real risk that the applicant’s mental health condition will cause him significant harm upon his return to Pakistan.

[32] SZTAL v MIBP; SZTGM v MIBP [2017] High Court of Australia (Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ, 6 September 2017) at [26]-[27] and [114]. This upheld the Full Federal Court judgement in SZTAL v MIBP (2016) 243 FCR 556.

137.   Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, and country information, as well as having considered the personal circumstances of the applicant as contained in his application and as discussed in the hearing, the Tribunal finds there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that the applicant will face significant harm for any reason on his return to Pakistan.

CONCLUDING PARAGRAPHS

138.   For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

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

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

   DECISION

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

Amanda Goodier
Member

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country,  in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)     conceal an innate or immutable characteristic of the person; or

(c)     without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and

(c)     the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)     a threat to the person’s life or liberty;

(b)     significant physical harassment of the person;

(c)     significant physical ill‑treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

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

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)     protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)     the person can access the protection; and

(b)     the protection is durable; and

(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

…