1913191 (Refugee) - [2024] ARTA 913

1913191 (REFUGEE) [2024] ARTA 913 (19 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 1913191
Tribunal:General Member R Da Costa
Date:19 December 2024

Place:Sydney
Decision:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 19 December 2024 at 4.55pm
CATCHWORDS
REFUGEE – Protection Visa – Pakistan – race – Indian ethnic background – political opinion – political beliefs and association with MQM – applicant has experienced some serious physical health issues in Australia – never involved in politics in Pakistan – applicant’s profile does not place him at an increased risk of harm – mental health issues – applicant had provided inconsistent information over time – applicant does not have a well-founded fear of persecution – decision under review affirmed

LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 May 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who is a national of Pakistan, applied for the visa on 19 December 2017. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
CLAIMS AND EVIDENCE
Background
In his protection visa application form, the applicant provides the following relevant information. He was born in the city of Karachi, Sindh province, Pakistan in [year]. He is a citizen of Pakistan. He speaks, reads and writes Urdu and English. His religion is Islam. In Pakistan, he has his parents and three sisters.
In Pakistan, from May 2005 to June 2009, he lived at [address]. From June 2009 to February 2011, he lived at [address]. From November 2008 to October 2009, he studied at [a college] in Pakistan.
He last arrived in Australia on [date] January 2013, legally, travelling on his Pakistani passport. He was the holder of a Student visa.
Evidence before the Department
Claims for protection
The applicant’s claims for protection are briefly set out in his Protection visa application form. He provides the following information:
·     He left Pakistan because he fears persecution and death due to his political beliefs and association with MQM.
·     If he returns to Pakistan he will be killed and tortured.
·     He tried to seek help from law enforcement agencies but they are unable to protect him.
·     He tried to move to other parts of the country but due to his political associations and ethnic and social background he cannot relocate safely anywhere else in Pakistan.
·     The authorities cannot protect him because they, ie law enforcement agencies, are also involved in extra judicial killing, nepotism, corruption etc.
·     He cannot relocate anywhere in Pakistan because of his political affiliations and ethnic background.
In the section of the Protection visa application form which contains the applicant’s claims for protection, it also says ‘See Statement’. There is no written statement on the Department file. The Tribunal followed up with the Department to check whether a written statement was provided by the applicant to accompany his Protection visa application form and the Department informed the Tribunal they had no record of such a document. In the hearing, the applicant was not clear about whether he provided a written statement at that time. The Tribunal has listened to a recording of the applicant’s interview with the delegate referred to below. Based on the questions asked in the interview, and the fact that there is no reference in the interview to the existence of a written statement, as well as the Department not having a record of such a document, the Tribunal is satisfied that the applicant did not provide a written statement of claims to the Department to accompany his Protection visa application form.
The interview and the delegate’s decision
The applicant attended an interview with the Department on 4 March 2019. In the interview, the applicant elaborated on his claims. Based on the applicant’s evidence in the interview, the delegate was not satisfied that the applicant was a worker for the Muttahida Quami Movement (MQM) party as he claimed, and therefore rejected the applicant’s claim that he has a profile in Pakistan from his claimed exit from, or affiliation with, the group. The delegate asked the applicant about his return trip to Pakistan in 2013. The delegate had concerns about the credibility of the applicant’s evidence relating to this and did not accept that he was targeted during this visit. The delegate also had concerns about the applicant’s delay in applying for a protection visa but accepted the applicant’s explanation about this. The delegate did not accept the applicant’s claims and found that he is not a person in respect of whom Australia has protection obligations. The applicant provided a copy of the delegate’s decision to the Tribunal.
Applicant’s migration history
The applicant’s migration and visa application history, aspects of which the Tribunal discussed with him in the hearing, is set out in the delegate’s decision. Relevantly, it shows:
·     23 June 2010: Vocational Education Sector visa application lodged
·     26 October 2010: Vocational Education Sector visa application refused
·     30 December 2010: Vocational Education Sector visa application refused
·     8 February 2011: Vocational Education Sector visa application granted
·     [Date] February 2011: applicant arrived in Australia
·     10 September 2012: Higher Education Sector Further Stay visa application lodged
·     13 September 2012: Vocational Education Sector visa expired
·     27 September 2012: Higher Education Sector Further Stay visa granted
·     [Date] January 2013: applicant departed Australia
·     [Date] February 2013: applicant arrived in Australia
·     25 July 2014: Higher Education Sector Further Stay visa cancelled
·     30 July 2014: Cancellation decision review lodged
·     21 January 2015: Cancellation decision affirmed
·     5 February 2015: Cancellation decision review lodged with Federal Court
·     19 December 2017: Protection visa application lodged
·     22 May 2018: Federal Court review application withdrawn
·     22 May 2019: delegate’s decision to refuse application for a Protection visa
Evidence before the Tribunal
The applicant has provided a number of written statements and documents to the Tribunal, and some he provided multiple times. The Tribunal has had regard to these documents and, where relevant, refers to their content in more detail below.
Pre-hearing statement provided 11 September 2024
In this pre-hearing written statement (first written statement) the applicant relevantly claims:
·     He left Pakistan because he had no future or security there;
·     He was attacked, chased, threatened and bashed several times;
·     He was always speaking up against corrupt political parties, judicial corruption, system injustice, lack of equal rights and other issues;
·     The political party members and workers were so wild and impatient. They punched his face, fractured his nose, knocked out his front teeth and stabbed him in his leg;
·     He tried to seek help from the police but that made things worse because the police are under the influence of the political parties;
·     His cell phones were stolen three times. Whenever he tried to call the police to seek assistance the people threatening him stole his phones because they knew their threatening messages were on the phone. They also stole cash and his ID card from him at gunpoint;
·     He was living in fear while going to school and college, to purchase groceries or visiting friends and relatives;
·     When he returned to Pakistan for his sister’s wedding, the criminals found out he was there. They followed him when he was driving his father’s car and opened fire on the car;
·     His family received a threatening call that if they complained or made a report they would be in serious trouble;
·     The applicant used to speak up with his relatives on his mother’s and father’s sides about injustice and corruption and some family friends use to get abusive towards him;
·     His father had to sell his car as the people threatening them recognised the car, and they had to move accommodation multiple times;
·     His sisters and parents have been robbed and harassed, losing their phones and cash;
·     His father was in his job for 44 years but was never promoted at work because of the corrupt political parties who promoted their supporters;
·     His family is of Indian ethnic background and are still considered migrants in Pakistan so they don’t have equal rights to get jobs in government or different sectors. The applicant’s father was a casual employee for 41 years;
·     When the applicant tried to raise his voice about injustices his life was in danger and the culprits always knew when he was contacting the police;
·     Political parties in Pakistan have too much influence in educational institutions and if students refuse to pay bribes they get threatened or harassed. They were asked to join political meetings and rallies forcefully;
·     His family decided he should leave Pakistan permanently for his safety;
·     When the applicant thinks about the trauma he gets stressed and becomes absent-minded and has migraine pain sometimes;
·     He has had serious health problems in Australia, including an operation in [2023] ;
·     As an asylum seeker he can’t renew his Pakistani passport;
·     He feels safe in Australia and would like to stay here.
Pre-hearing statement provided 30 September 2024 and country information
In another written statement (second written statement) provided prior to the hearing, the applicant relevantly claims:
·     Political parties in Pakistan have too much influence in educational institutions and if students refuse to pay bribes they get threatened or harassed. They were asked to join political meetings and rallies forcefully;
·     The culprits/criminals targeted and murdered two relatives of his mother. These are Mr [A], who was maybe [a politician], in maybe 1998, and Mr [B], who was a [occupation] and was shot with his son when they were going to pray;
·     Victims in Pakistan are scared to complain to the police because they are asked for bribes and noble families suffer a lot and never get justice and security;
·     The applicant is afraid because of the threats to his life;
·     This affected his physical and mental health. Sometimes his heart beats fast and his blood pressure is high;
·     He was in pain in Australia since early 2022 and in February 2023 he had an operation [and] follow-up treatment and medical appointments;
·     Because of the danger to him and his family in Pakistan, he can’t raise his voice or speak up or express his views against oppression or what the culprits do because they follow and trace on social media and openly make threats from different resources.
Prior to the hearing, the applicant provided a print-out of a BBC News report from 5 July 2011 entitled ‘Karachi: Report says 1,100 killed in first half of 2011’, which is an article about targeted political and gang violence in Karachi.
Post-hearing documents submitted by the applicant
After the hearing, the applicant provided copies of two screenshots of messages he says are from his phone. He referred to these messages in the hearing. The Tribunal explained to the applicant that if he wanted the Tribunal to consider the messages they would have to be translated into English because otherwise, it could not verify what they say. The Tribunal gave the applicant the opportunity to provide copies of the message after the hearing and this was followed up with the applicant in writing. In a letter from the Tribunal and in phone calls, a Tribunal officer provided the applicant with information about obtaining a NAATI[1] certified translation of the screenshots. The applicant expressed some confusion about how to do this and the Tribunal officer attempted to assist him, but the applicant has not provided a NAATI certified translation of the screenshots. He has, however, provided an email containing his own explanation of what the screenshots say which the Tribunal has referred to below.
[1]
On 25 October 2024, after the hearing, the applicant sent an email to the Tribunal in which he describes what the screenshot messages say and says the messages were from a family member who argued with him about MQM and used to force him to say things in favour of MQM. He also reiterates some of the evidence he gave in the hearing about threats he experienced while a student and in college in Pakistan from MQM, fear of political extremists in Pakistan who threatened him, how he does not want to be involved in political activities, and the fear this causes him and how it affects his physical and mental health. This is referred to in more detail below where relevant.
The applicant sent three other email messages to the Tribunal on 25 October 2024. One states:
The local area residents and neighbours also involved in political activities and involve others also forcefully to join them.
Another states:
I don’t like, don’t support and don’t agree to the locals residents, neighbours and family relatives wrong corrupt political ideologies activities so they always and still after me they as they’re still and always there and silent so that I think that things would be fine now but they silent so if I returned back so they get me and kill me those extremists.
In the further email of the same date, the applicant says he was feeling unwell and reiterated his physical health problems and that he was going to see the doctor.
On 28 October 2024, the applicant sent another email to the Tribunal in which he reiterates why raising his voice against injustice in Pakistan resulted in threats to his life, the physical attacks on him in Pakistan in 2013 and before he departed in 2011, and the physical and psychological problems he has suffered, all of which was discussed with him in the hearing. He says the stress he experiences from the trauma makes his memory weak. He refers to the physical health problems he has experienced in Australia and why he wants to stay in Australia where he can focus on his career and education and feels safe. The applicant attached some undated photographs of what appears to be his abdominal area after surgery, as well as a radiology request from Dr [C] dated 5 September 2024 for a scan of his abdomen, which refers to the applicant having had [a medical condition] in 2023 and [treatment]. The applicant said he is under observation for the next five years and requires regular check ups. Where relevant, the content of this email is referred to in more detail below.
The applicant’s health conditions
On 25 June 2024, a Tribunal officer contacted the applicant by email informing him that his case was being prepared for allocation to a Tribunal Member for hearing.
The applicant responded, explaining that on 11 July 2024, he was scheduled to have surgery and would need five or six weeks afterwards to recover. He provided a letter from his General Practitioner (GP) dated 26 June 2024, confirming that he had been referred to Dr [D], a [Surgeon], for further surgery (unspecified) and he had also been referred for a mental health assessment due to the pressure and stress caused by his health condition and the Tribunal process. The letter attached a mental health questionnaire with the applicant’s responses to questions, but no diagnosis. The applicant also provided contact details of his surgeon, Dr [D]. In response to further information sought by the Tribunal about the applicant’s prognosis and likely recovery time, the applicant provided a letter from Dr [D] dated 8 July 2024 confirming that the applicant would require a recovery period of up to six weeks after his major surgery, the nature of which she did not specify.
On 30 August 2024, a Tribunal officer contacted the applicant by email seeking an update on his recovery from surgery. In a telephone conversation later that day with a Tribunal officer, the applicant indicated his recovery had gone well and he was now able to participate in a hearing. He said he would prefer to attend a hearing in person rather than by video. On 6 September 2024, the applicant was invited to attend a Tribunal hearing on 24 October 2024.
The applicant provided the Tribunal with a copy of a medical imaging request from Dr [D] to be carried out in February 2025. As noted above, the applicant also provided a radiology request from Dr [C] in his email dated 28 October 2024.
Prior to the hearing, on 15 October 2024, the applicant provided the Tribunal with a letter of the same date from [Mr E], General [Psychologist]. [Mr E] says he has had one appointment with the applicant. They briefly discussed the applicant’s mental health concerns that stem from his history of trauma and threats of violence in Pakistan (which are not specified), as well as his ongoing fear of returning to that environment. [Mr E] states that the applicant detailed numerous traumatic events that have impacted his psychological well-being. [Mr E] states the applicant migrated to Australia in 2011 to escape threats and violence in Pakistan and continues to experience symptoms consistent with trauma. These symptoms have impacted his day-to-day functioning and overall mental health. The applicant has also reported medical issues which have exacerbated his mental health struggles and would be challenging to manage if he returned to an unstable and unsafe environment. [Mr E] states that given the serious mental health issues the applicant faces, remaining in Australia is essential for his well-being and recovery. [Mr E] offers the professional opinion that a return to Pakistan ‘would likely lead to a significant deterioration in [the applicant’s] mental health, as well as potential endangerment to him, given the traumatic experiences they have endured there.’
After the hearing, the applicant provided another letter from [Mr E] dated 4 November 2024. [Mr E] says he is writing to offer his professional support for the applicant’s application for permanent residency in Australia. He says he has had two appointments with the applicant so far. He reiterates some of his comments from his previous letter about the applicant referring to past (unspecified) traumatic events that led to him leaving Pakistan and suffering trauma-related symptoms. [Mr E] says these symptoms heavily impact the applicant’s daily functioning, overall mental health and ability to manage routine activities, work commitments and appointments and his fears have intensified his symptoms of depression. [Mr E] refers to the applicant reporting serious physical health concerns that are being exacerbated by his mental health struggles and which are limiting his ability to work and function peacefully in day to day life. [Mr E] says the applicant will be consulting with his GP about this. [Mr E] says the applicant has said his prospects in Pakistan would be limited and he expressed concern about the lack of adequate medical facilities, safe employment opportunities and essential security measures, making his ability to establish a stable life in Pakistan nearly impossible. He refers to the applicant having built a meaningful and stable life in Australia which is where he would like to stay. [Mr E] expresses the professional opinion that ‘a return to Pakistan would likely cause a severe decline in [his] mental and physical health, further compromising his quality of life and safety. He experiences extreme anxiety at the thought of returning, describing it as a “nightmare” that stirs overwhelming fear and distress.’

On 29 November 2024, the applicant sent the Tribunal photos of two documents:
· NSW Health Consent for Medical Procedure/Treatment form dated 29 November 2024 which is in the name of the applicant and indicates the proposed treatment is [details deleted]”.[2] The form indicates where the patient should sign, but it is unsigned;
· NSW Health [a] Hospital pharmacy prescription dated 29 November 2024 in the name of the applicant for [medication][3] capsules to be taken for 5 days;
[2] [deleted]
[3] [deleted]
On 1 December 2024, the applicant sent the Tribunal two photographs which he says are images taken from his surgery on 30 November 2024. They are images of his abdominal area. On 17 December 2024, he sent a screenshot of a text message showing he has a scan scheduled at [a] Hospital on 20 February 2025 and a copy of the medical imaging request from his doctor.
The Tribunal has considered the applicant’s physical and mental health in the context of his claims for protection below.
The hearing
The applicant appeared before the Tribunal on 24 October 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages. The applicant spoke mostly in English and requested the assistance of the interpreter as required.
The applicant was a bit tearful and nervous at the start of the hearing. The Tribunal progressed cautiously, offering the applicant breaks and asking him whether he felt able to continue with the hearing. During this time, the Tribunal monitored the applicant’s state and his responses and considered whether it was appropriate to continue with the hearing or to adjourn to another day. The applicant indicated that he wished to continue. After the Tribunal’s introductory remarks, the Tribunal began the substantive part of the hearing by asking the applicant straightforward questions about himself, his protection visa application form and then about his family. As these questions progressed, the applicant calmed down. The Tribunal is satisfied that the applicant had the opportunity to participate in the hearing in a meaningful way.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, 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.
REASONS AND FINDINGS
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The reliability and credibility of the applicant’s claims and evidence
In the hearing, the Tribunal discussed with the applicant his personal background, his family and their circumstances, his educational, residential and employment history, his migration history, his physical and mental health, claimed events in Pakistan and why he fears returning there.
The Tribunal is mindful of the difficulties faced by protection visa applicants in hearings, including issues related to the use of interpreters, nervousness and anxiety in a tribunal environment, as well as other factors such as stress caused by separation from home and family.[4] An applicant may also have memory issues resulting from the lapse of time, trauma and/or cultural issues. An applicant may forget dates, locations, distances, events and personal experiences due to the lapse of time or other reasons.[5] As suggested by the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility,[6] such factors are taken into consideration both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole. The psychological effects of trauma can also impact adversely on a person’s memory and their ability or willingness to disclose information, as explained in the AAT’s Migration and Refugee Division Guidelines on Vulnerable Persons.[7] While these documents have not yet been updated for the Administrative Review Tribunal, the Tribunal considers their content and guidance remains relevant.
[4] See, eg,
[5] AAT, Migration and Refugee Division, Guidelines on the Assessment of Credibility (July 2015)
[6] Ibid
[7]
Nevertheless, in determining whether an applicant is entitled to protection in Australia, it is necessary for the Tribunal to make findings of fact on relevant matters. In assessing the credibility of an applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. The Tribunal is also mindful that if it makes an adverse finding in relation to a material claim made by an 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.[8] 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 in order to find that a particular factual assertion by an applicant has not been made out.[9]
[8] MIMA v Rajalingam (1999) 93 FCR 220
[9] 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
The Tribunal has no doubt that the applicant has experienced some serious physical health issues in Australia and this has caused him a level of trauma, along with the uncertainty associated with his unresolved migration situation. The medical evidence indicates the applicant was operated on in 2023 [and] has experienced some ongoing health issues since that time. In June 2024, the applicant’s GP referred him to a psychologist and the evidence shows he saw a psychologist, [Mr E], for the first time shortly before the Tribunal hearing. There is no evidence before the Tribunal to indicate that the applicant had previously sought or received treatment for mental health or memory issues, including at the time he lodged his protection visa application or attended the interview with the delegate. He did not raise memory or mental health issues with the delegate. The Tribunal finds that at the time the applicant lodged his protection visa application and attended the interview with the delegate, he did not have a diagnosed mental health or memory issue.
In the hearing and in his correspondence to the Tribunal after the hearing, the applicant has claimed to have a weak memory and to have issues with his mental health due to trauma he suffered in Pakistan and his health issues in Australia. As noted above, the Tribunal accepts that the passage of time can cause memories to fade, and trauma and mental health, amongst other issues, can impact the quality of a person’s evidence. This is the case for many applicants who appear before the Tribunal. However, it does not follow that the Tribunal must therefore uncritically accept the claims the applicant is making about what happened to him in Pakistan. For the reasons explained below, the Tribunal does not accept that the discrepancies in some aspects of the applicant’s evidence over time can be fully explained by the passage of time or the applicant’s mental health situation, including a fading memory.
The Tribunal has considered the letters from the psychologist, [Mr E]. [Mr E]’s letters were written after his first and second consultations with the applicant. The Tribunal accepts [Mr E]’s professional opinion that the applicant suffers from trauma. [Mr E] refers to the applicant discussing his history of trauma and threats of violence in Pakistan, but his letter does not provide detail about the events they discussed. For the reasons explained below, the Tribunal has concerns about the reliability of aspects of the applicant’s claims about events in Pakistan. The fact that the applicant told [Mr E] about events that occurred in Pakistan does not overcome the Tribunal’s concerns in this regard. The Tribunal acknowledges [Mr E]’s professional opinion as a psychologist that if the applicant returned to Pakistan, this would likely cause a severe decline in his mental health, although the Tribunal notes this opinion appears to be based in part on the premise that [Mr E] accepts what the applicant told him about his past traumatic experiences in Pakistan. The Tribunal has reservations about [Mr E]’s qualification to offer a professional opinion about a decline in the applicant’s physical health if he returned to Pakistan as he is a psychologist and not a medical doctor. The Tribunal does not accept [Mr E]’s opinion that the applicant would potentially be in danger in Pakistan due to the traumatic experiences he experienced there in the past or that the environment there is unstable and unsafe, as the Tribunal considers this to be outside his area of expertise. These are questions of fact for the Tribunal to decide based on the evidence before it. The Tribunal has elaborated on these matters below.
In light of the above, the Tribunal finds that the applicant had the capacity to participate in the hearing in a meaningful way. The Tribunal accepts that the quality of the applicant’s evidence in the Tribunal hearing and afterwards was affected, to an extent, by the passage of time and his mental health situation, but this does not fully overcome the Tribunal’s concerns about discrepancies in the applicant’s claims and evidence over time. For the reasons explained below, the Tribunal considers that some of the discrepancies in the applicant’s claims and evidence over time raise doubts about the credibility of his claims. The Tribunal also found aspects of the applicant’s evidence to be vague and speculative.
In terms of the applicant’s mental health and physical health situation giving rise to a real chance of serious harm or a real risk of significant harm if he returned to Pakistan, the Tribunal has considered that separately below.
The applicant’s claims about his involvement in politics in Pakistan
By way of background and for context, the 2019 DFAT Country Information Report Pakistan[10] (2019 DFAT Report) describes MQM as follows:
3.163 MQM is a Karachi-based secular political party which advocates the rights of ‘Mohajirs’, or Urdu-speaking Muslim migrants (and descendants) from India. MQM also has power bases in Hyderabad and Nawabshah districts, Sindh. Prior to the July 2018 general election, MQM exercised considerable political influence in Sindh holding 50 seats in the 167-seat Provincial Assembly of Sindh. Its influence has diminished in the wake of the general election: it now holds 21 seats in the Provincial Assembly. It remains a political force, but leadership and faction conflicts have affected performance. MQM’s representation of Karachi’s Urdu-speaking community often brings it into conflict with the Sindh-based Pakistan People’s Party and Pashtun parties.
3.164 In 2013, the Rangers – a federal, paramilitary force - (see Police, Frontier Corps and Rangers) commenced operations in Karachi that significantly reduced political violence. MQM leaders claim the Rangers disproportionately targeted MQM, affecting over 500 families since 2013. MQM claims that, since 2013, over 140 of its members were subject to enforced disappearances and over 100 to extra-judicial killings. MQM further claims that government forces detained more than 1000 of its members in the same period. MQM reports a decrease in numbers of new enforced disappearances in the context of an increase in enforced disappearances across Pakistan.
3.165 While numbers are difficult to verify, reports indicate the Rangers killed many MQM members during operations against alleged violence and extortion. In August 2016, the Rangers announced they had apprehended 848 assassins affiliated with MQM ‘militant wings’ since September 2013. The Rangers claimed that 654 of those arrested were responsible for more than 80 per cent of all targeted killings in Karachi and Hyderabad. MQM suspects have reportedly confessed to involvement in 5,863 incidents of targeted killings.
…
3.167 In August 2016, the controversial exiled leader of the MQM, Altaf Hussain, made an address from London to MQM supporters on a hunger strike in Karachi. Altaf allegedly urged supporters to attack media outlets that did not give MQM sufficient media coverage. Following the speech, a group of MQM supporters attacked an ARY News office. The attack and subsequent violent clashes with police killed one person and injured several others. Rangers sealed MQM’s offices in Karachi, launched a treason case against Altaf, and arrested five MQM leaders in Karachi.
3.168 Anti-Pakistan rhetoric in Altaf’s speech led to senior MQM leaders to declare they would no longer answer to Altaf and run the movement from Pakistan. The party split into two factions, one loyal to Altaf Hussain’s leadership from London (MQM-London, or just MQM) and one led by Pakistan-based party officials (MQM-Pakistan). The government formally recognised MQM-Pakistan (MQM-P) and its former leader, Farooq Sattar. Sattar was replaced by Khalid Maqbool Siddiqui as the leader of MQM-P in February 2018.
[10] 20 February 2019.
The current DFAT Country Information Report Pakistan 25 January 2022 (DFAT Report) states, in part:
3.77 In 2016, MQM leader Altaf Hussein made a speech from London that allegedly spurred violence in Karachi and resulted in a split between MQM-London and MQM-Pakistan. Soon afterwards, the paramilitary Rangers commenced operations in Karachi that significantly reduced political violence, but which MQM claims involved arbitrary arrests, extrajudicial killings and enforced disappearances of its members. These abuses allegedly still occur. In June 2020, an MQM worker and a member of a Sindh nationalist group were found shot dead in Karachi. The MQM worker had gone missing in 2019. In December 2020, an MQM worker who went missing four years earlier was found dead on the outskirts of Karachi. His body was covered in bruises. The MQM has also been targeted by the TTP because of its secular ideology and support for the US-led ‘War on Terror.’
3.78 DFAT assesses MQM members face a low risk of violence from militant groups and criminal elements in Karachi, and that this risk has significantly reduced since security operations began in 2013. DFAT assesses that MQM members who are associated with (or perceived to be associated with) political violence and/or criminal activities face a moderate risk of violence from security forces.
The applicant has not distinguished between MQM and MQM-P in his claims and evidence and much of the country information does not distinguish either. The Tribunal understands that the applicant’s claims relate to MQM generally rather than one or other of the factions and so this is the term used by the Tribunal. However, at least since 2018 it is the MQM-P faction which is the party that participates in elections and which is the active political party in Sindh province and at the national level. This does not affect the Tribunal’s reasons and findings.
In his protection visa application form, the applicant claims that he fears persecution and death in Pakistan due to his association with MQM.
In the interview with the delegate, as set out in the delegate’s decision, the applicant claimed that he was a worker for MQM and he was involved in campaigning and recruiting others. He said he joined the party in 2009 when he was in college and ended his association with them in January 2011. He also said he was involved at election time in 2013. He later told the delegate he fears MQM because once someone joins that party they will not be permitted to leave alive. He is not currently a member. He said that when he went to Pakistan, he told relatives that he had left the party, but he did not tell the party directly.
In the Tribunal hearing, when asked if he was involved in politics in Pakistan, the applicant responded that he was not involved at all and he was harmed in Pakistan because he would not join. He said his parents have never been involved in politics in Pakistan. He confirmed he has never been a member or supporter of a political party in Pakistan, he does not have a political background and he had nothing to do with politics in Pakistan.
In the hearing, the applicant gave evidence that when he was in high school there were boys who were involved in politics, connected to MQM and PPP[11], and he didn’t like it because they used to harass people. The applicant confronted them and they beat him and told him to stay out of it. Once they broke his teeth. He told his parents and the teachers but nobody would interfere because they were involved in politics too. After he finished school he didn’t see these boys again or have problems with them.
[11] PPP is the Pakistan People’s Party. See DFAT Report.

At college, the political parties like MQM and PPP had a presence. MQM organisers asked him to join but the applicant didn’t want to. They threatened him and pressured him by doing things like cancelling his enrolment for exams and demanding donations. He gave donations a few times. At election time, MQM people told him he had to vote for them but he didn’t vote. When he went to the shops or market in his area, he used to talk to vendors and ask them why they supported MQM. MQM people found out about this and bashed him. This was around 2009. MQM people used to ask the applicant to go to rallies and said if he wanted to live, he needed to join them. They were particularly interested in him because he used to speak up against corruption and criminal activities in his local area and at college. He did not do anything else apart from talking.
These discrepancies in the applicant’s evidence between the claim in his protection visa application form, what he told the delegate and what he told the Tribunal about his involvement in politics in Pakistan raises a concern for the Tribunal about the reliability of his evidence and the truthfulness of his claims. In the hearing, the Tribunal put to the applicant that there were some significant differences in his evidence over time which raised a concern about whether his claims about what happened in Pakistan are truthful. The applicant gave a discursive response and said that as a person who matures, whatever he mentioned in the immigration interview or in the past, as a human there was a lack of maturity in the past, we are always in a learning process so if he could not explain properly or define things, he will say what he has gone through and whatever he has told the Tribunal today has been truthful. He went on to say that he was beaten in the past, in 2013 they tried to shoot him and so they have shown the extent to which they will go to kill him. They hold grudges and it could be from relatives also. People are scared to speak against the guns and weapons. He tried to speak and now he is on their list.
The Tribunal has considered the applicant’s response but does not accept it as it is indirect and vague and does not overcome the Tribunal’s concern. The applicant’s original claim in his protection visa application form and to the delegate is that he was actively involved with MQM and his decision to leave the party is the main reason he fears harm if he returns to Pakistan. The applicant’s claim in the Tribunal is that he was never involved in politics in Pakistan and it was his refusal to be involved that led to him being harmed. This discrepancy, which goes to the heart of the applicant’s claims, raises a concern for the Tribunal about whether his claims and evidence are reliable and credible.
Where the applicant lived and travelled in Pakistan
In his protection visa application form, the applicant indicated that from May 2005 to June 2009, he lived at an address in [Karachi]. From June 2009 to February 2011, he lived at an address in [address], Karachi.
In the interview with the delegate, the applicant said that he had relocated within Pakistan to Hyderabad, Lahore and Rawalpindi, but the people who wanted to harm him were following him because they have contacts there.
In his first written statement, the applicant said he and his family had to move accommodation multiple times because of the problems. He did not reiterate this claim in the hearing.
In the Tribunal hearing, the applicant confirmed that from 2008 until he came to Australia, he lived at the address [with] his parents. Before that, he lived with his parents at the address [from] 2005. Before that, they lived at a different address. He confirmed he always lived with his parents and never lived anywhere else and not even for a short time. He said he had travelled to Hyderabad in the past to visit relatives but that was all.
These discrepancies in the applicant’s evidence between the information contained in his protection visa application form, what he told the delegate in the interview, what he said in his first written statement and what he told the Tribunal about where he lived and his movements within Pakistan, and the reasons for this, raise a concern for the Tribunal about the reliability of his evidence and the truthfulness of his claims. For the reasons set out above, the applicant’s response to the Tribunal’s concerns about the discrepancies in his evidence over time do not allay the Tribunal’s concerns.
The applicant’s return visit to Pakistan in 2013
In his protection visa application form, the applicant indicated that the date of his last arrival in Australia was [date] January 2013. Departmental movement records show that in fact, he departed Australia on [date] January 2013 and returned to Australia on [date] February 2013. This is reflected in the delegate’s decision and is not in dispute.
In the interview with the delegate, as set out in the delegate’s decision, the applicant gave evidence that he returned to Pakistan in 2013 for his sister’s wedding. He said during this visit he was targeted twice and his car was fired upon on two occasions. He said people from different political parties were pursing him. They told his parents that if he wanted to stay in Pakistan he had to join the party or else he would be killed. Nobody knew about his visit to Pakistan but through extended family members who are MQM members, news leaked about his presence. He said his sister insisted he attend her wedding and he didn’t know there would be a bad reaction if he returned.
In the Tribunal hearing, the applicant gave confusing evidence about the timing of what happened during his return to Pakistan in 2013, but he was very clear that he was only targeted once during this visit when some people shot at his car. As the Tribunal understands his evidence, he returned to Pakistan to attend his sister’s wedding. During the visit, he stayed at his parents’ home. He went out to help with shopping but that is all. After he had been in Pakistan for about two weeks, he reported his presence to the police in the local area to ask them for protection from MQM in case anything happened to him. He told them MQM had bashed and stabbed him in 2009. It was like a pre-report. The police said they could not help him. The Tribunal expressed scepticism that he would expect the police to provide him with protection. The Tribunal asked the applicant why it took him two weeks after arriving in Karachi to speak to the police and seek their protection if he was concerned for his safety. The applicant responded that the first week he was sick and didn’t go out, and then later when he went out some people were following him and he was feeling insecure. The Tribunal expressed its doubt about this.
The next day, when the applicant was driving to his uncle’s house at night to deliver some cards related to his sister’s wedding, he was being followed by another car. At first he ignored it but then they came up beside his car and opened fire shooting two bullets. The applicant was not injured and drove off. He didn’t go home, but instead he went to his uncle’s place where he stayed and then he departed for Australia. This incident was the only problem on the 2013 visit. He suspects the police and MQM were involved because this happened the day after he spoke to the police and in 2011, MQM people had told him they owned the police. A few days after the shooting incident, these people called the applicant’s father and told him they were after the applicant and he is on their target list. His father had some photos but his phone was destroyed.
The discrepancies between the applicant’s account to the delegate and his account to the Tribunal of what happened during his return visit to Pakistan raises concerns for the Tribunal. In particular, the applicant clearly told the delegate that he was targeted twice during his return visit in 2013 and his car was fired upon on two occasions, whereas he told the Tribunal he was only targeted once. In the Tribunal’s view, given the short duration of the applicant’s return visit and the significance of being shot at, the Tribunal does not consider that the applicant would be mistaken or have forgotten whether he was targeted and shot at on one rather than two occasions if this truly occurred. For the reasons set out above, the applicant’s response to the Tribunal’s concerns about the discrepancies in his evidence over time do not allay the Tribunal’s concerns about the reliability and credibility of his claims and evidence.
The applicant’s activities in Australia
The applicant gave evidence that since being in Australia he has not been involved with politics at all and he has not spoken up about issues of injustice like he did in Pakistan. This is because everything is on social media and is being traced and he is concerned for his family’s safety. Also, his parents have told him there is no need for him to speak up anymore because he tried his best but now, he is in Australia he should focus on his matters here. The Tribunal asked him whether he would speak up if he returned to Pakistan. He said they (the people who targeted him) have told him that if he comes back they will shoot him. His mother’s brother was also against MQM and he used to confront these people and one night in the 1990s he was shot by killers. The Tribunal asked the applicant whether he had any evidence to support this. He said he remembers, but he was young and there was no social media and this uncle was not very well known. He tried searching on Google but there was nothing. The Tribunal explained to the applicant it had some concerns about his claims to be on MQM’s target list and it would have to consider how he would behave if he returned to Pakistan and why. The applicant said he and his family are afraid and that is why he refrains from being involved in political discussions now and in the future.
In the hearing, the Tribunal asked the applicant whether he has had any contact with the people he claims threatened him in Pakistan, since coming to Australia. He said that on [social media] there were relatives on both parents’ sides who belong to MQM and they ask him how he is going and when he is planning to return, and accuse him of being against MQM. The Tribunal asked the applicant whether he had any proof of this and he said he blocked them a long time ago and they didn’t say anything openly. He has not had any contact as they don’t have his Australian details. When asked if he had any evidence these people were still interested in him or were tracking him on social media, the applicant said these people are so smart and they never reveal their plans as they don’t want to expose themselves.
The Tribunal put to the applicant that it might find he does not have a political or activist profile that would be of interest to anyone in Pakistan and he would not be targeted by political parties or people connected to them if he returned there. The applicant responded that he can’t post or share on social media about MQM and PPP, weapons have become common, people are impatient, and they shot at him. He has trauma and he was stabbed in the leg. After the attack, he has not returned to Pakistan and there is no guarantee he will be safe. They have told his family on the phone they are after him and the police can’t do anything.
Later in the hearing after a break, the applicant said he had a screenshot of a [message] from 2018. He said the relatives are supporters of MQM and they know he is not a supporter. He said the message shows his relatives are after him and the comment in English in the message means MQM is the only solution for Pakistan, and these people are very extreme and won’t let him live. The Tribunal expressed its doubt to the applicant about why these people would be interested in him and want to harm him if he returned. He said it is because he is against their party and leaders and they are aggressive and extremist people.
The Tribunal explained to the applicant in the hearing that he could submit a screenshot of the message to the Tribunal Registry after the hearing, and that if he wanted the Tribunal to take the contents of the message into account then it would need to be translated into English. The applicant said his evidence to the Tribunal in the hearing of what the screenshot says and means was his explanation of its contents. As referred to above, the Tribunal had some further correspondence with the applicant about the screenshots he submitted, after the hearing. In his email dated 25 October 2024, he says the screenshot shows a relative arguing with him in the past and constantly forcing him to say ‘long live Altaf Hussain the leader of political party MQM’. He says they are extremists and he has blocked this person.
One screenshot submitted by the applicant is two lines of text in an unknown language. It is not dated and the sender and recipient of the message are not clear. The second screenshot appears to be taken from the screen of someone called [name] (which the Tribunal is prepared to accept is the applicant), but it is not dated. It is also not clear who the messages were sent by. The top message on the screenshot is an image of a man accompanied by some text which is not in English. The second part of the message is also not written in English and was received on 24 November 2018 at 4.15am, and is followed by some emojis of a laughing face. The response to this message says in English, “Altaf only Altaf is the leader of Pakistan.” The Tribunal has considered the applicant’s explanation of what these messages say and mean, but in the absence of a full English translation and combined with the Tribunal’s concerns about the credibility of the applicant’s claims, it is not prepared to accept that the messages mean or show what the applicant says they do, namely, that relatives affiliated with MQM are threatening him and they, or people connected to them, will harm or kill him if he returns to Pakistan. Accordingly, the Tribunal gives these messages no weight.
The Tribunal has considered the applicant’s evidence about his lack of political engagement or expression in Australia and his explanations for this. Given the Tribunal’s concerns about the credibility of aspects of his claims and evidence discussed above, the Tribunal has doubts about the truthfulness of the applicant’s explanations for his lack of political engagement in Australia, as well as doubts about the nature and extent of his claimed political profile and engagement in Pakistan.
The applicant’s family in Pakistan
In the hearing, the applicant gave evidence that his parents live together in Karachi and his three sisters also live in Karachi with their husbands. His father is retired and worked in the government sector for 44 years. His father receives a government pension but sometimes the government does not pay. He is in regular contact with his parents a few times a week.
The applicant gave evidence that his family have received calls making threats about him. The Tribunal asked the applicant when this happened most recently. After a long pause, he said he thinks it was in 2021 during the Covid-19 pandemic. Someone called his parents on a private number and said they were keeping an eye on the applicant coming back to Pakistan. He said in the past, his father and sisters have been robbed, their phones stolen and people have followed them. The Tribunal asked the applicant how he knows this had anything to do with him. He said they told his parents they follow everything because of the applicant. Again, he said the last time this happened was in 2021. The Tribunal expressed its doubts about his evidence in relation to this. The Tribunal also put to the applicant that country information,[12] including online media articles and the article he provided from 2011, indicates that street crime in Karachi has been a problem for years, including mobile phones being stolen, and so it might not accept that these incidents, if they occurred, had anything to do with the applicant.
Findings
[12] (accessed 19 December 2024)
Having considered all the applicant’s claims and evidence, based on the Tribunal’s concerns and reasons set out above, the Tribunal finds as follows.
The Tribunal does not accept that the applicant was ever a member or supporter of MQM in Pakistan, or that he was a worker for MQM, or that he was otherwise associated with MQM in Pakistan. It follows that the Tribunal does not accept the applicant was harmed in Pakistan because of his association with MQM, including when he tried to leave MQM, or that as a result he tried to seek help or protection from law enforcement agencies, or that he tried relocate to other parts of Pakistan. The Tribunal does not accept that the applicant informed relatives that he had left MQM, because the Tribunal does not accept he was ever a member of MQM.
The Tribunal finds that the applicant has never been a member or supporter of a political party in Pakistan. The Tribunal accepts that he does not have a political background and that he had nothing to do with politics in Pakistan and nor did, or do, his parents.
The Tribunal is prepared to accept that there were boys at the applicant’s high school who were involved in politics. The Tribunal is prepared to accept that the applicant had some confrontations with these boys and that he was beaten and injured. Given the Tribunal’s concerns about the credibility of aspects of the applicant’s claims and evidence, the Tribunal does not accept these confrontations were related to politics. The Tribunal accepts that after the applicant finished school he never saw these boys again and had no further problems with them.
The Tribunal is prepared to accept that political parties such as MQM and PPP had a presence at the applicant’s college and wanted the applicant to join them and vote for them in elections. The Tribunal finds that this was because these parties wanted to increase their support base and not because the applicant had a particular profile that was attractive to them. The Tribunal accepts that the applicant did not join a political party. Given the Tribunal’s concerns about the credibility of aspects of the applicant’s claims and evidence, the Tribunal does not accept that when the applicant refused to join a political party this led to him being threatened or harassed or attacked or mistreated. Given the Tribunal’s concerns about the credibility of aspects of the applicant’s claims and evidence, the Tribunal does not accept that the applicant spoke up against the political parties or corruption or criminal activities and other issues in his local area and at college or with his relatives or anyone else. As a result, the Tribunal does not accept that he was harmed as a result of these activities or that he tried to seek assistance from the police, or that he was living in fear. As the Tribunal does not accept the applicant’s claims about being threatened and harmed, it does not accept that his mobile phones or other possessions were stolen when he tried to seek assistance from the police, or that the culprits always knew when he was contacting the police. The Tribunal also does not accept that people living in the applicant’s local area in Karachi, or his relatives, or anyone else tried to forcefully make him join in political activities.
The Tribunal finds that in Pakistan, the applicant always lived at home with his parents. The Tribunal does not accept that the applicant or his family had to move accommodation or relocate within Pakistan due to the problems the applicant was having, or that the applicant’s father had to sell his car, as the Tribunal does not accept that the claimed events took place.

The Tribunal accepts that the applicant returned to Pakistan in 2013 for his sister’s wedding. Based on the Tribunal’s concerns about the reliability and credibility of the applicant’s evidence, the Tribunal does not accept that during this visit the applicant asked the police for protection from MQM and it does not accept that he was targeted or shot at on one or two occasions, or at all, by anyone on this visit for any reason. It follows that the Tribunal does not accept that a few days after the applicant was shot at, MQM people or anyone else called the applicant’s father and said the applicant was on their target list. The Tribunal does not accept that the applicant is, or ever has been, on a target or hit list.
The Tribunal is prepared to accept that since being in Australia, the applicant has had contact with some of his relatives in Pakistan via social media and some of the messages have included mention of politics. Based on the Tribunal’s concerns about the reliability and credibility of the applicant’s claims and evidence, the Tribunal does not accept that these messages have involved threats against the applicant or that he has relatives in Pakistan, or people connected to them, who wish to kill him if he returns there. The Tribunal also does not accept that these people have made threats about the applicant to the applicant’s parents. The Tribunal finds that the applicant has not been involved in politics or speaking up against oppression and corruption or other matters in Pakistan since being in Australia via social media or other means. The Tribunal finds that this is consistent with his lack of prior political involvement and political profile in Pakistan. The Tribunal does not accept that it is due to threats or fear. The Tribunal finds that the applicant did not have a political profile of interest in Pakistan, and nor does he now.
Based on the lack of independent evidence, the Tribunal does not accept that two relatives of the applicant’s mother were murdered when the applicant was younger, or that this is relevant to his claims for protection.
The Tribunal is prepared to accept that the applicant’s parents and sisters have been the victims of street crime in Pakistan, such as having their mobile phones stolen. As the Tribunal does not accept the applicant’s claims about him being targeted in Pakistan, the Tribunal does not accept that these incidents had anything to do with the applicant. As the Tribunal does not accept the applicant’s claims about being threatened and harmed in Pakistan, it does not accept that his family members have been threatened or harassed in connection with this.
The Tribunal does not accept that the claimed events occurred or that the applicant left Pakistan in fear for his safety.
Does the applicant satisfy the refugee criterion for protection?
In his protection visa application form and the interview with the delegate, the applicant claims he fears returning to Pakistan because he will be killed and tortured due to his association with MQM. The Tribunal has found above that the applicant was never associated with MQM and so the Tribunal does not accept the applicant’s claim. Therefore, the Tribunal finds that if the applicant returned to Pakistan in the reasonably foreseeable future he would not face a real chance of serious harm arising from these circumstances.
In his written statements and the hearing, the applicant claims he fears returning to Pakistan because he is on the target list to be killed by people connected to MQM or PPP. He claims the people who want to harm him could be people from his college, his relatives, or from around the city because the parties have big networks of political gangsters. They will target him because he always spoke against the corrupt political system and they don’t want him to speak out. He fears for his life. The Tribunal has found above that the applicant was not involved in politics in Pakistan, he did not speak up against political parties, or criminality or corruption in Pakistan, he was not threatened or harmed as a result and he is not on a target or hit list. Therefore, the Tribunal does not accept the applicant’s claim and finds that if the applicant returned to Pakistan in the reasonably foreseeable future he would not face a real chance of serious harm arising from these circumstances.
The Tribunal has found above that the applicant did not speak up about politics or corruption or related issues in Pakistan and he has not done so in Australia. The Tribunal has found that this is because he was not, and is not, involved in politics or in opposing those involved in politics. The Tribunal does not accept that the applicant has not spoken up due to fear. Based on the Tribunal’s findings, including about the applicant’s past conduct and lack of political profile, the Tribunal finds that if the applicant returned to Pakistan in the reasonably foreseeable future he would not involve himself in politics and he would not speak up about matters such as corruption or criminality or political issues more generally. For the reasons explained above, the Tribunal finds that this would not be due to fear. Therefore, the Tribunal finds that if the applicant returned to Pakistan in the reasonably foreseeable future he would not face a real chance of serious harm arising from these circumstances.
In his protection visa application form, the applicant says he cannot relocate within Pakistan because of this political affiliations and ethnic and social background. For the reasons explained above, the Tribunal does not accept the applicant’s claims about his political affiliation and he did not elaborate in the form about what he means by his ‘ethnic and social background’. In his first written statement, the applicant claims that his family are of Indian ethnic background and as a result, they don’t have equal rights to get jobs in government or different sectors. He said his father was a casual employee for 41 years. The Tribunal notes that at another point in the same statement, the applicant says his father was employed in his job in the government sector for 44 years but was never promoted because he didn’t support the corrupt political parties who promoted their own supporters. The applicant gave evidence in the Tribunal hearing that his father had been a government employee and receives a government pension. He also said that being of his ethnicity and race, his family are discriminated against because of their ancestry, but did not elaborate further or explain how this had affected him personally, or provide any independent evidence about his family’s ethnic origins. The applicant has also not provided any independent country information to support this claim about ethnic, social or racial discrimination. Further, he has given different evidence at different times about the details of his father’s employment and his explanation for why his father was not promoted does not appear to relate to ethnic or racial discrimination. Based on the Tribunal’s concerns about the vague nature of this claim, the lack of evidence to support it, including the lack of country information, and the differences in aspects of the applicant’s evidence over time about this claim, the Tribunal does not accept it and finds that if the applicant returned to Pakistan in the reasonably foreseeable future he would not face a real chance of serious harm arising from these circumstances.
In the hearing, the applicant gave evidence that his parents still live at the same address in Karachi which is where he lived before he came to Australia. His parents live alone. His sisters all live in Karachi with their husbands’ families. The Tribunal asked the applicant where he would live if he returned to Pakistan. He responded indirectly and said he would be in danger if he returned there. The Tribunal put to him that it might find he would return to live with his parents and he would have the support of his family. The applicant said he would not have their support because they can hardly support themselves. The Tribunal put to him that he would be able to work and he would be able to subsist. The applicant said he doesn’t have work or a place to stay and he is under threat everywhere in Pakistan. The Tribunal has considered the applicant’s responses but does not accept them. The Tribunal has found above that the applicant would not be under threat if he returned to Pakistan in the reasonably foreseeable future. The applicant has given evidence that his father has an income from a government pension (albeit which may not be paid sometimes) and his parents still live in the same place where the applicant lived before coming to Australia. The applicant gave evidence in the hearing that he has been working [since] 2018 or 2019 and before that he worked around 25 to 30 hours per week in security and customer service jobs. He speaks good English. The Tribunal finds that if he returned to Pakistan, the applicant would live with his parents, he has skills that would enable him to find work and he would be able to subsist.
The Tribunal has considered the applicant’s claims about him and his close family members being subjected to theft and low-level violence in Karachi. Based on the Tribunal’s findings above, the Tribunal does not accept that these events, if they occurred, were connected to the applicant and the people who he claims were targeting him, because the Tribunal does not accept the applicant’s claim that he was being targeted. In the hearing, the Tribunal discussed country information with the applicant about the security situation in Karachi, including referring to the article provided by the applicant. As discussed with the applicant in the hearing, country information indicates that there are particular risks due to terrorist incidents and street crime in Karachi.[13] The CRSS Annual Security Report 2023 Pakistan[14] records an increase from 2022 to 2023 in fatalities arising from terrorism and counter-terrorism incidents in Pakistan, including at 28% increase in Sindh[15] and the PIPS Pakistan Security Report 2023[16] refers to an overall rise in terrorist attacks in Pakistan for the third year in a row, with an increase from eight to 15 terrorist incidents in Sindh from 2022 to 2023, with the majority of the attacks taking place in Karachi. Karachi also has problems with street crime such as robberies, muggings, drug related criminal activity and sectarian violence.[17] The Australian Institute of International Affairs reports that there were 17 sectarian targeted killings in Karachi from September 2023 to February 2024, and between 2022 and 2024 more than 250 people were killed in street crime. The Diplomat reports that police data shows that in 2024, there were 33 people shot dead resisting robberies up to the end of March.[18]
[13]
[15] Sindh is the province in Pakistan where Karachi is located.
[16] >
In the hearing, the Tribunal put to the applicant that it might find despite the general security situation in Karachi, the chance of him being harmed for this reason would not rise to the level of a real chance or real risk. The applicant responded that the relatives who like arguing with him and being aggressive towards him are still there and if they hear he is back in Pakistan they will send someone to kill him. There are so many extremists and they could take revenge if they want to. Based on the Tribunal’s findings above about the applicant’s claims, it does not accept this response. The Tribunal finds that even in light of the country information about the general security situation in Karachi, based on the reported rates of incidents in a city of 20 million people, the applicant would not face a real chance of serious harm arising from these circumstances. Further, the Tribunal finds the applicant’s profile does not place him at an increased risk of harm.
In his written statements, the applicant has claimed that political parties in Pakistan have too much influence in educational institutions and students are asked for bribes and donations and to join rallies forcefully. He has also claimed that victims of crime in Pakistan are too scared to complain to the police because they get threatened and asked for bribes. These written claims are expressed in a general sense rather than being specifically about the applicant, and the applicant has not provided independent country information to support them. On this basis, the Tribunal does not accept these claims and finds that if the applicant returned to Pakistan in the reasonably foreseeable future he would not face a real chance of serious harm arising from these circumstances.
The Tribunal has considered the applicant’s physical health if he returns to Pakistan. As referred to above, the Tribunal accepts that the applicant has experienced some serious health issues in Australia and that he continues to have follow-up monitoring. The Tribunal asked the applicant in the hearing whether he had concerns about returning to Pakistan related to his physical health. He said his parents can’t look after him because they are old, they don’t have the resources to afford the cost of his medical treatment and there is no proper treatment in Pakistan for his conditions. The applicant has not provided any independent evidence, such as country information, about what the situation might be for him in terms of access to healthcare in Pakistan. However, the Tribunal is prepared to accept that the overall standard and availability of healthcare in Pakistan is low[19] and so the quality of healthcare and treatment the applicant would have access to in Pakistan if he needed it may not be as good as that which he has access to in Australia, and this could amount to harm to him. The Tribunal put to the applicant in the hearing that it might find that any lack of access or lower standard of care would not be for the essential and significant reason of his race, religion, nationality, membership of a particular social group or political opinion.[20] The Tribunal also put to him that it might find any lack of access or lower standard of care would not involve discrimination towards him or a discriminatory withholding of access to treatment.[21] The Tribunal also put to the applicant that it might find this situation regarding health care is something faced by the population generally and not him specifically, due to the economy and resourcing issues in Pakistan and that any hardship he may face would not be intentionally or deliberately inflicted on him.[22] The applicant responded that he would like to stay alive and he thinks about the stress of past trauma. The Tribunal has considered the applicant’s responses and finds that if the applicant is unable to access the same level or quality of health care in Pakistan as he can in Australia, this would not amount to persecution and so he does not have a well-founded fear of persecution under s 5J(1) of the Act for this reason.
[19] DFAT Report 2.10
[20] Section 5J(4) and s 5J(1) of the Act
[21] Section 5J(4) of the Act
[22] Section 36(2A) and s 36(2B) of the Act
In terms of the applicant’s claim that his parents are old and can’t look after him, the Tribunal has made findings above about the applicant’s access to medical care in Pakistan. There is no suggestion that the applicant’s parents would be providing him with medical care and the nature of any medical care the applicant may require in Pakistan in the future is speculative. The Tribunal has found above that the applicant would live with his parents if he returned to Pakistan. The Tribunal also notes that the applicant has been receiving medical care in Australia without the presence or assistance of his parents. For these reasons, the Tribunal does not accept the applicant’s claim and finds that if he returned to Pakistan in the reasonably foreseeable future he would not face a real chance of serious harm arising from these circumstances.
The Tribunal has considered the applicant’s mental health if he returns to Pakistan. In the hearing, the applicant gave evidence that he has started seeing a psychologist, but he has not been prescribed medication for his mental health. The Tribunal asked the applicant what he thinks may happen with regard to his mental health if he returned to Pakistan. The applicant said he would die, he has other medical issues and he would be killed. The Tribunal has made findings above about the applicant’s other medical issues and his claims that he would be killed if he returned to Pakistan. In terms of the applicant saying he would die, the Tribunal notes that [Mr E] has expressed the opinion that a return to Pakistan would cause a significant deterioration in the applicant’s mental health but he has not gone into detail and has not expressed the opinion, for example, that the applicant would become suicidal if he returned to Pakistan. The Tribunal explained to the applicant that it had some concerns about some of [Mr E]’s opinions about the applicant’s situation if he returned to Pakistan and may not agree with them all. As the Tribunal has noted above, it acknowledges that the applicant told [Mr E] that he suffered trauma, threats and violence in Pakistan (which are not detailed in [Mr E]’s letters), but for the reasons explained above, the Tribunal does not accept the applicant’s claims about this and the fact that he told [Mr E] about this does not overcome the Tribunal’s concerns. As the Tribunal has also noted above, it considers that some of [Mr E]’s opinions about the difficulties the applicant would face if he returned to Pakistan such as access to medical facilities and employment, reiterate claims the applicant has made which, for the reasons explained above, the Tribunal does not accept and the Tribunal considers that some of [Mr E]’s opinions are outside his area of expertise. Given the Tribunal’s concerns about aspects of [Mr E]’s opinions and the basis for them, the Tribunal is prepared to accept that returning to Pakistan may adversely impact the applicant’s mental health but not to the significant extent that [Mr E] opines. [Mr E] has explained in his letters that the applicant’s mental health issues have impacted his day-to-day functioning. The Tribunal accepts this, but also notes that the applicant has given evidence that he continues to work, he has been able to deal with his health issues, and that he has friends and a cousin in Australia with whom he is in regular contact, which suggests that he is still able to function effectively in society.
In the hearing, the Tribunal discussed country information with the applicant about mental health treatment in Pakistan. The Tribunal put to the applicant that country information indicates that mental health disorders are reportedly common in Pakistan and treatment options are limited.[23] Country information, including online news articles, refers to there being a stigma around mental illness in Pakistan which means many people do not seek help.[24] The Tribunal has found that the applicant would return to Karachi and live with his parents, and as discussed with him, there are mental health clinics and services available in Karachi, including at low or no cost for underprivileged people.[25] The country information does not suggest that the standard of treatment available to the applicant in Pakistan would be lower, but simply that access may be more limited than in Australia. The Tribunal also put to him that given he has sought help for his mental health in Australia, it might find he would be able to seek help in Pakistan for mental health issues if he wanted to. The applicant responded that the stress people have in Pakistan is about their living conditions, but his stress there is about life security. For the reasons explained above, the Tribunal does not accept that the applicant’s life would be in danger if he returned to Pakistan and so it does not accept this response. The Tribunal notes that the applicant has not claimed that he would face stigma in Pakistan as a result of his mental health issues and based on the evidence before it, the Tribunal finds that he would not. The Tribunal put to the applicant that it might find that in Australia, he has managed to work and take care of his health issues and generally functioned in society despite his mental health issues and he could do that same in Pakistan, and he would not face a real chance of serious harm or a real risk of significant harm.
[23] DFAT Report 2.14.
[24] 2m Karachiites suffer from mental, other disorders: Dr Haroon - Newspaper - DAWN.COM; 6 Most Advanced Karachi Psychiatric Hospitals to Battle Mental Problems - Healthwire; Free Mental Health Help n Treatment in Karachi; Karwan – e – Hayat is providing free of cost, quality healthcare to 96% underprivileged mental health patients - DAWN.COM (accessed 19 December 2024)
[25] Karwan-e-Hayat, Institute for Mental Health Care | MHIN; 6 Most Advanced Karachi Psychiatric Hospitals to Battle Mental Problems - Healthwire; Department of Mental Health | Liaquat National Hospital; Karachi Psychiatric Hospital | Mental Health Clinic; Free Mental Health Help n Treatment in Karachi; Karwan – e – Hayat is providing free of cost, quality healthcare to 96% underprivileged mental health patients - DAWN.COM (accessed 19 December 2024)

Based on the information referred to above, the Tribunal finds that the applicant would be able to access mental health treatment in Pakistan and any lack of access he may experience would not be for the essential and significant reason of his race, religion, nationality, membership of a particular social group or political opinion.[26] The Tribunal also finds that any lack of access would not involve discriminatory conduct towards the applicant or a discriminatory withholding of access to treatment.[27] The Tribunal finds that if the applicant has difficulty accessing mental health treatment in Pakistan, this would not amount to persecution and so he does not have a well-founded fear of persecution under s 5J(1) of the Act for this reason.
[26] Section 5J(4) and s 5J(1)
[27] Section 5J(4)

100. In his first written statement, the applicant says that being an asylum seeker means he can’t renew his Pakistani passport. He did not raise this claim in the hearing and has not provided independent country information to support this claim, but he did say in the hearing that in Pakistan, once you have sought asylum the authorities detain you for this and they are all corrupt and will ask him or his father for money to release him and if not, they will kill him. The Tribunal asked him whether he had any evidence to support this and he said that Pakistani people know these things and when he left Pakistan in 2011, the customs officer asked him where he was going and asked for money. The Tribunal has considered the applicant’s response but does not accept that it provides sufficiently reliable evidence to support his claim. Further, he has not provided any independent country information to support the claim that he will be detained on return to Pakistan for having sought asylum and his claim is not supported by information contained in the DFAT Report.
101. In relation to the applicant’s claim that as an asylum seeker he cannot renew his Pakistani passport, country information indicates that in June 2024, the Pakistan Interior Ministry announced a new policy to suspend the renewal and issue of passports for Pakistani citizens who have sought or been granted asylum in a foreign country, but on 22 July 2024, the government reversed its decision with immediate effect.[28] On this basis, the Tribunal finds that the applicant would be able to renew his Pakistani passport as an asylum seeker and therefore, the Tribunal does not accept this claim and finds that if the applicant returned to Pakistan in the reasonably foreseeable future he would not face a real chance of serious harm arising from these circumstances.
[28] (accessed 17 December 2024)
102. Taking into account the findings set out above and the country information referred to in this decision, and having considered the applicant’s claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant returns to Pakistan now or in the reasonably foreseeable future that he faces a real chance of serious harm for any reason set out in s 5J(1)(a) of the Act.
103. Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the Act, or for any other reason. As the Tribunal is not satisfied the applicant has a well-founded fear of persecution, it is not satisfied that the applicant meets the definition of refugee in s 5H(1). As the applicant does not meet the definition in s 5H(1), the Tribunal is not satisfied he is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Does the applicant satisfy the complementary protection criterion for protection?
104. 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).
105. As the ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion,[29] for the same reasons as those set out above, the Tribunal finds that the applicant does not face a real risk of significant harm in respect of his claimed political profile and political or anti-political activities, his ethnic and social background, his parents’ inability to look after him or the general security situation in Karachi.
106. In relation to the Tribunal’s finding that the lower standard and availability of healthcare and medical treatment and lower availability of mental health treatment in Pakistan could result in harm to the applicant, the Tribunal has considered whether these circumstances amount to ‘significant harm’ to the applicant. ‘Significant harm’ is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
107. In light of the evidence referred to above, including the country information, there is no suggestion that the death penalty will be carried out on the applicant as a necessary and foreseeable consequence of him being removed from Australia to Pakistan. As to whether the applicant will be arbitrarily deprived of his life, ‘arbitrarily deprived’ is not defined in the Act and so the words are to be given their ordinary meaning.[30] It is clear that the concept involves the infliction of harm by a third party[31] and judicial commentary in Australia suggests that the concept does not involve, for example, the consequences of scarce or inferior medical resources in developing countries such as Pakistan.[32] Accordingly, the Tribunal does not accept that the applicant will be arbitrarily deprived of his life as a necessary and foreseeable consequence of him being removed from Australia to Pakistan due to the lower standard and availability of healthcare and medical treatment and lower availability of mental health treatment available in Pakistan.
108. The definitions of “torture”, “cruel or inhuman treatment or punishment” and “degrading treatment or punishment”, which are the other circumstances that fall within the definition of “significant harm” in s 36(2A), all involve the element of intention on the part of a third party to bring about the suffering by their conduct[33] and all are directed to serious forms of human rights abuses.[34] Based on the Tribunal’s findings above, the evidence does not indicate that there will be the intention on the part of any third party to deny the applicant access to healthcare or medical treatment or mental health treatment in the event he required it and the applicant has not made such a claim.
109. Therefore, for the reasons explained above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
[29] MIAC v SZQRB [2013] FCAFC 33
[30] SZTEQ v MIBP [2015] FCAFC 39
[31] EZC18 v MHA [2019] FCA 2143
[32] MZAAJ v MIBP [2015] FCCA 151; SZDCD v MIBP [2019] FCA 326
[33] SZTAL v MIBP [2017] HCA 34; s 5(1)
[34] SZDCDv MIBP [2019] FCA 326
Conclusion
110. 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).

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION

113. The Tribunal affirms the decision not to grant the applicant a protection visa.
Date(s) of hearing: 24 October 2024
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.
…