1914905 (Refugee)
[2024] ARTA 888
•16 December 2024
1914905 (REFUGEE) [2024] ARTA 888 (16 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Representative: Mr Iqbal Chaudhry (MARN: 1174774)
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 1914905
Tribunal:General Member M Oakman
Date:16 December 2024
Place:Sydney
Decision:The Tribunal affirms the decision under review.
Statement made on 16 December 2024 at 12:36pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – political opinion – Pakistan Tehreek-e-lnsaf member – threats from Pakistan Muslim League Noon – arranging love marriage – fear of killing – threats from Pakistan Taliban – return visit to Pakistan – fear of honour killing – political violence – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2CASES
MIAC v SZQRB (2013) 210 FCR 505
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 claims to be a national of Pakistan, applied for the visa on 30 June 2017. The delegate refused to grant the visa on the basis that the applicant was not entitled to protection in Australia.
The applicant appeared before the Tribunal on 16 September 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu (Pakistan) and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
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 (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.
BACKGROUND
Evidence before the Department
The applicant lodged his protection visa application on 30 June 2017. His protection claims were set out in a statement that said:
“MY CLAIMS FOR PROTECTION
MY FAMILY BACKGROUND
My name is [applicant’s name].
I was born on [applicant’s DOB] in Pakistan.
My residential address in Australia is [applicant’s address].
I am unmarried.
I have [specified family members], and they reside with my parents at [Town 1], Distt Punjab Pakistan.
MY EDUCATIONAL BACKGROUND
I have completed FA, in [specified years] from Board of Intermediate and [Secondary Education].
I completed [two qualifications] in Sydney, Australia.
MY EMPLOYMENT BACKGROUND
During my stay in Pakistan I assisted in [the] shop of my father for few years.
I worked as a part time sales person at few [businesses] for few months in Australia.
MY RELIGIOUS BACKGROUND & MY PROBLEMS DUE TO THIS BACKGROUND
I am a born Sunni Muslim.
MY DECISION TO LEAVE PAKISTAN & RESIDE PERMANANTLY IN AUSTRALIA
I came to Australia on a student visa [in] May 2014.
I went back to Pakistan in April 2017 and returned back to Australia [in] May 2017,
I was threatened by a councillor, [Mr A], who currently belonged to Pakistan Muslim League Noon (PMLN).
He threated to kill me as he believed that I have been politically opposing him and his family members.
As a matter of fact I did oppose him and his family in 2013 Elections as then I was worker of Pakistan Muslim League Noon (PMLN), but his [relative] was an independent candidate.
Now, he is the Muslim League Noon (MLN)'s local councillor.
One of my friend got married to his niece without the will of the family.
[Mr A] perceives me as the person who would have facilitated in this matter, and now when I was in Pakistan, he openly threatened me.
I have Talibans threatening me as well. They believe that I somehow acted against them.
I will provide a detailed account of my claim later on.
In this respect, I have no other country to go. I am pleading the authorities in Australia to give consideration to my application. I cannot go to Pakistan as there is a strong possibility I could be a target of a Taliban killing.
NO SAFETY IN PAKISTAN AS A STATE
There is no safety in Pakistan as anarchy and restless is on the rise and Pakistan as a State does not have enough resources to cope with all these problems. They get so many complaints like this and do not take them seriously. I cannot expect help from them.
MY APPEAL FOR REFUGE
I would like to request that my application be kindly considered for protection in Australia.
I believe that Australia is a peaceful and peace loving country and I can live here peacefully without being harmed or threatened by others.
I strongly believe that my life would be at risk once and if I go back to Pakistan.”
In an email dated 16 May 2019 the applicant’s representative advised the Department that:
“We refer to the above and confirm that our client [the applicant] has provided us with the following for your consideration:
·In 2013, I joined Mohalla Organisation BGM-RT (Bazme Ghulamarie Mustafa-Rifahi Tanzeem). I was [Position 1] of BGM-RT.
·Very quickly I realised that I could have other youth following me. Therefore, I was suggested to become member by a bigger organisation called ANI (Anjomane Nojwanam Islam). I became [Position 2] of ANI.
·During this period I became affiliated with Muslim League Noom (MLN). I was very close to [Mr B], a city councillor and participated in almost all activities conducted by MLN in my area.
·[Mr B] passed away in [year] and his [relative] [Mr A] became in charge of MLN in the area. I became member of PTI after [a specified] incident.
·[Mr A] then became in charge of MLN in the area started threatening me about the consequences if I kept on going against MLN.
·Niece of [Mr A] fled away from her house and participated in Nikah ceremony via telephone (Skype) [in] February 2015, and I happened to be present on that day in [Australia].
·[Mr A] perceived me a culprit and the middle man for this ceremony in order to take revenge from [Mr A] for his threats.
·As I mentioned above that I was very active in religious organisations, I was also threatened by the Local Taliban group to be killed. I believe this threat was on behalf of [Mr A].
·In my area MLN is very strong and they have full control of the area. Therefore, I face threats against myself as some people have been suspected to be killed mysteriously.
·I went to Pakistan in 2017 and had a meeting of PTI workers at my place. [Mr A] forcefully joined our meeting and later on posted on Facebook that MLN workers are having a meeting. He is a big bully in the area.”
The applicant attended an interview with the delegate on 20 May 2019. Details of the information the applicant provided at the interview are summarised in the delegate’s decision record of 22 May 2019. The Tribunal has listened to the recording of that interview. At the interview the applicant also provided four photos which he identified as:
·A photo of him attending a rally for the group he was a member of, Bazme Ghulamarie Mustafa-Rifahi Tanzeem
·A photograph of his membership card for the same group
·Two screen shots of [social media entries] of Mr A
Evidence before the Tribunal
The applicant lodged his application for review with the Tribunal on 8 July 2019.
The matter was listed for hearing on 6 August 2024. On 5 August 2024 the Tribunal received a request from the applicant’s representative, together with a supporting medical certificate, requesting the hearing be rescheduled due to the illness of the applicant. It was relisted for hearing on 16 September 2024.
The applicant appeared before the Tribunal in person on 16 September 2024 to give evidence and present arguments. The applicant had requested an interpreter in the Urdu language and the Tribunal arranged for an Urdu interpreter to attend the hearing. At the commencement of the hearing the applicant advised that he was generally capable of participating in the hearing using the English language. The Tribunal encouraged the applicant to rely upon the interpreter at any stage if he did not understand the Tribunal’s questions or wished to convey his responses through the interpreter using the Urdu language rather than speaking with the Tribunal directly in the English language. In the event, on occasion the applicant used the services of the interpreter during the hearing and the Tribunal elected to direct some questions to the applicant through the interpreter. Where relevant, the applicant’s oral evidence at the hearing is referred to in my analysis below.
At the conclusion of the hearing the applicant was given until 30 September 2024 to provide any further material and submissions in response to the concerns and issues that arose at the hearing. Following a request from the applicant’s representative, the Tribunal subsequently extended the time for a response to 8 October 2024. In an email dated 8 October 2024, the applicant’s representative provided further submissions. The submissions, together with attached media articles, provided clarifications in relation to concerns raised at the hearing as follows:
“Moving to Australia in 2014
[The applicant] is a young activist who left Pakistan during a time when the ruling political party, the Pakistan Muslim League-Nawaz (PML-N), was losing public support, and the Pakistan Tehreek-e-lnsaf (PTI), led by lmran Khan, was gaining momentum. Like many others, [the applicant] underwent an ideological shift, finding his views no longer aligned with the PML-N. Consequently, he transferred his support to PTI, a decision that displeased his local leader and councilor, [Mr A], a prominent member of PML-N.
[The applicant] faced frequent threats and pressure from [Mr A], who demanded that he renounce his new political beliefs and return to supporting PML-N. Despite these threats, [the applicant], driven by his desire for what he considers better leadership for his country, refused to submit to [Mr A’s] demands.
In 2014, [the applicant] left Pakistan to pursue studies in Australia.
Marriage Incident in 2015, Australia
In or around 2015, a friend of [the applicant] married [Mr A's] niece without her family's consent, a serious violation of societal norms in Pakistan that can bring disrepute to a family. The friend, who was in Australia at the time, conducted an online Nikah (Islamic marriage), and [the applicant] attended the ceremony in support of his friend. When [Mr A] learned of [the applicant’s] involvement, he became enraged and perceived the marriage as part of a conspiracy orchestrated by [the applicant]. [The applicant], however, maintains that he had no role in planning or encouraging the marriage.
Trip to Pakistan in 2017
During a trip to Pakistan in 2017, [the applicant] hosted a gathering at his residence with friends who happened to share his political ideology. The gathering, however, was purely social and not political in nature. [Mr A], who lived nearby, became offended by the event and confronted [the applicant], accusing him of hosting a political meeting. He asserted his authority, claiming he had the power to disrupt any gathering at [the applicant’s] residence without fear of consequences. [Mr A']s intrusion without consent and his abusive use of power demonstrates his influence, as local authorities refused to act against him.
On the same occasion, [Mr A] also renewed his accusations, claiming that [the applicant] had conspired to arrange his niece's marriage to disgrace [Mr A’s] family.
Following this event, [the applicant] chose to maintain a low profile during his time in Pakistan. He did so to prevent any potential disruptions to his family life and to avoid further conflicts with [Mr A].
Ongoing Threats
If [the applicant] is to move back to Pakistan, he cannot move away from his parents' house, which is located in the same vicinity as [Mr A’s] residence, due to Pakistan's joint family system where children live with their parents. [The applicant] remains at risk of continued targeting by [Mr A]. Fortunately, [Mr A] has not directly targeted [the applicant’s] family because in Pakistan, personal disputes are often considered to be between men, with families, especially elderly parents, remaining uninvolved to avoid appearing weak.
As an activist, [the applicant] remains outspoken about his political beliefs and refuses to remain silent in the face of what he perceives as oppression. However, this bravery and straightforwardness continue to provoke hostility from [Mr A], who will likely target [the applicant] whenever he is aware of his presence in Pakistan. Enclosed are news excerpts demonstrating the violence faced by PTI supporters at the hands of the ruling party.
The PTI (Pakistan Tehreek-e-lnsaf) supporters have faced targeted violence and arrests at the hands of the ruling party and authorities in Pakistan. The crackdown has intensified following the arrest of PTI leader lmran Khan in May 2023.
The attached News reports indicate that hundreds of PTI supporters have been arrested for protests, with some facing trials in military courts. Included on page 15 is an article penned by an Australian writer, shedding light on the coercive measures employed to suppress Imran Khan and his supporters.
The ongoing political repression and targeting of PTI supporters have set a tense stage for Pakistan's political landscape. It would be unwise for [the applicant] to return to Pakistan under the current circumstances. Considering the targeted violence and suppression faced by PTI supporters and the personal risks [the applicant] faces from [Mr A], it is evident that the safety and well-being of [the applicant] may be compromised upon his return to Pakistan. As such, it is strongly recommended that [the applicant] refrain from relocating to Pakistan, as his return to Pakistan is likely to be a potentially dangerous decision.”
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 (DFAT) 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 matter should be remitted for reconsideration.
Receiving Country
The applicant provided a copy of his Pakistani passport to the Department and the Tribunal. He stated in his protection visa application that he was a citizen of Pakistan and confirmed the same at the hearing. Based on that documentary and oral evidence, I accept that the applicant is a national of Pakistan. Pakistan is the receiving country for the purpose of this assessment.
Migration history
The applicant said he arrived in Australia in May 2014 on a student visa and his date of last entry into Australia was in May 2017. He lodged an application for a protection visa in June 2017.
Applicant’s personal background
According to information given by the applicant in the protection visa application process and at the hearing, he is [age] years old and was born in [Town 1], Punjab, Pakistan. He has never married and has no children. His parents and [a sibling] continue to live in the family home in Punjab, Pakistan. [Another sibling] is married and lives elsewhere in Punjab. He is Punjabi and a Sunni Muslim. He reads, writes, and speaks Urdu and English.
In Pakistan he completed intermediate education (equivalent of college) and worked as a casual salesman in a shopping centre for three to four years. He has studied a range of courses in Australia, including completing [specified qualifications]. He is working in Australia as a part time [occupation 1] and previously worked in a range of jobs including [jobs listed].
Does the applicant satisfy the refugee criterion for protection?
At the hearing the applicant said he left Pakistan in 2014 to study and for no other reason. He said he went to Pakistan in 2017, on a return ticket from Australia, when he was still to complete his first course of study. He was asked why he then decided not to return to Pakistan. He said there was a guy, Mr A, who was angry at him for a political reason and a personal reason.
He said he was politically active before he came to Australia in 2014. He joined a political party and was involved in the community. He was in the youth wing of the PMLN from 2012 to 2014. He became close to a politician, Mr B, who was Mr A’s [relative]. Mr B mentored the applicant. He was involved in some local elections in 2013 although they were called off a couple of times. Mr B ran as a PMLN candidate in two of those elections and then as an independent candidate because the party wouldn’t put Mr B on their ticket as a candidate at that time. When Mr B died, Mr A took over and became the leader of the youth of the local PMLN party. The applicant suggested that maybe Mr A remembers that the applicant wasn’t supporting the party at that time. He also said that there were only two places that the youths would meet – at the applicant’s or at Mr A’s place. When Mr A took over, he behaved aggressively; he wasn’t listening to the youths; and did things differently including not holding meeting where the youths would have preferred. The applicant said there was always some friction between him and Mr A, but it got worse after Mr A’s [relative] died. Mr B died in [year]. After [a specified incident], he stopped supporting the PMLN and started supporting the PTI. This was in 2014 while he was in Australia. He explained that he never applied or got anything from the PTI, he just started following their social media accounts, including joining a WhatsApp chat group. He didn’t think you could join the PTI outside of Pakistan. He attended some rallies in 2022. He said he was a follower and supporter of the PTI.
The applicant was asked about his personal problem with Mr A. He said he was visiting a friend, who had a relationship with Mr A’s niece, and the friend told him he was marrying the niece, while the applicant was there. They did the Nikah [in] February 2015, and it was broadcast on Skype. The applicant, the groom and some other friends / housemates of the groom were in [Australia] and bride and family and friends of the groom were in Pakistan, for the Skype call. None of the bride’s family were present as she was marrying without her family’s approval. He confirmed that he had no other personal issues with Mr A, it was just that the niece had married without her family’s consent and the applicant was there at the ceremony. He said that he otherwise had no personal or business dealings with Mr A.
The applicant was asked at the hearing if he had any other issues or problems prior to the 2017 incident. He said before he left Pakistan in 2014 there was an incident with a local madrassa. He is not sure if they were Taliban related or not. He was in their local area doing things for his non-political community groups – [named] – such as looking after graveyards and cemeteries. They warned him to keep out. This was in 2012 or 2013. He said Mr B was sometimes a guest speaker at events for these community groups and sometimes gave the groups money to support their activities. He confirmed Mr A was not at all involved with these community groups.
The applicant spoke about his return visit to Pakistan in 2017. It was during a college holiday, and he returned to catch up with his family. He arranged a gathering of about 15-18 friends at his house, to have dinner. His friends were all members of the community organisations. After about 45 minutes Mr A showed up. Mr A questioned why he wasn’t invited to the meeting. The applicant told him it wasn’t a meeting, just a dinner with friends. Mr A said he was the councillor and if they have a meeting he should be invited. Mr A then mentioned his niece and said the applicant had insulted his family. The applicant said he was just part of it and just supporting his friend. Mr A said he knew the applicant was involved and he said he was a councillor, and he could do anything to the applicant. Mr A then took photos of their dinner group. The photos were posted by Mr A on social media as his attending a political gathering. After this incident the applicant spent the rest of his time at home or in the near street. The applicant said that before he visited Pakistan that time, his family and friends had warned him he should stay at home because of Mr A. On his return to Australia, the applicant saw a lawyer, told him what had happened, and he lodged his protection visa application.
The Tribunal asked the applicant what his friends and family said when they had warned him, prior to his trip. He said that they had told him that before Mr A had taken over in 2016, he had convinced the other candidates not to run for the party spot, Mr A was being aggressive and not allowing anyone to oppose him. The applicant’s friend (the groom) had [a] brother who died. Local gossip was that Mr A was involved in poisoning the [brother]. This death was in [year] and this was the incident he had been warned about before his trip to Pakistan in 2017. The applicant said that, bearing this incident in mind, during the last few days of his trip he just stayed quietly at home and didn’t have any friends over. The Tribunal asked if the warning was about the applicant himself. He said no, it was just about Mr A’s general behaviour. At the time of his visit there were no elections coming up for several months and the applicant said he had no political intentions for the visit. The applicant said the warning was that anyone who is politically active were not having a chance to have their say and he was told if Mr A spoke to him, he should not say anything and just keep quiet. The applicant said he had no confrontations with Mr A on his 2017 visit, until that dinner, and that was the only time he had a confrontation with Mr A.
At the hearing, the applicant further discussed the 2017 visit and incident with Mr A, and what had happened to Mr A’s niece and her husband. He said honour killings happened in Pakistan, so when Mr A told him he could do anything while talking about his niece, the applicant considered that a threat. He said his friend (the groom) was okay because he was in Australia, but the niece (the bride) had moved to be safe, about three streets away into the area of another local councillor, and the groom’s brother had died. He said that previously any meetings of the PMLN youth wing were either at the applicant’s house or Mr A’s house, and the applicant suggested that is why Mr A thought the gathering at his house in 2017 was a political meeting. The applicant also said the bride’s family had made a First Incident Report (FIR) to the police about those who attended the Skype wedding in Pakistan. The FIR also referred to other people attending it overseas. He said there was a funeral procession involving the groom’s family where the bride’s family barged in and took away [young female relatives] of the groom. He was asked if he had heard from Mr A or any of his associates since he last returned to Australia and he said no, but he had seen Mr A’s posts on social media and that Mr A may have looked at his posts, but they have had no direct interaction including on social media. He said the last time he had an interaction or any contact with Mr A or his associates was in 2017. He was asked if Mr A or any of his associates had contacted any of his family in Pakistan since he came back to Australia and he said no.
The applicant was asked what he fears will happen to him if he returns to Pakistan. He said before his fears were just concerning the local problems, but now he fears anyone in the PTI could be targeted. He fears he will have problems if he doesn’t delete his posts. People are disappearing in Pakistan including National Assembly members. People he knows from the PTI have gone quiet. He mentioned a woman who had joined the PTI from the PMLN, whose son was taken and killed. He said the PTI is no longer popular, they are feeling the pressure. It's been happening since the Prime Minster went in April 2022, everyone is just keeping quiet. He doesn’t know what will happen to him. He said he was threatened before by the local councillor, but now people are disappearing because of masked people. He has always been political, so he will do something and therefore will be harmed. Before he feared charges from local councillors and the like, now he fears people are disappearing.
He said he also fears his involvement in his friend’s wedding will place him in danger. If Mr A becomes a local councillor again, he doesn’t know what may happen to him. He was asked about the status of Mr A. He said Mr A was elected to council again in 2019 but then a court decision abolished it. However, a new local election may come up. No date is set for the election, there was just a motion in the state assembly for it to be done. He was asked if he had any other fears or concerns if returned to Pakistan. He said it was just the political problem with Mr A, the problem from the wedding, and the political situation now in Pakistan. At the end of the hearing, he reiterated that politically things have gone bad in Pakistan, and that it is a big problem in Pakistan if you are politically active and you have a local politician who has issues with, both political and personal. Family honour is also a big deal in Pakistan.
He was asked what he would do if he returned to Pakistan. He said he has only one home in Pakistan and would live with his parents if he returned. He said he would be involved in politics given his history in Pakistan and he has been following the PTI in Australia. He said he would also have to find a job.
The Tribunal raised with the applicant that the Tribunal had looked at recent country information about the treatment of PTI officials and members since the change of government and although there are some reports of problems for very high ranking PTI officials, including two recent arrests, that country information did not seem to suggest that ordinary members of the PTI were subject to targeting and systemic harm. Taking that into account, and also that he was just a follower of the PTI, albeit one who posts things online, this may raise a concern that if he returned to Pakistan and continues to support the PTI he would be unlikely to suffer serious or significant harm as a result. The applicant said they are known as digital terrorists who post online. This name is given by the government in its official channels. The media gives coverage of the status of people. But it is an admitted fact that at the local level if 4-5 people get together and do some activity they are rounded up. In his local area the people who were organising the September 2024 convention for the PTI were rounded up, on 5 and 6 September. He also has knowledge of these things from his local social media, and he knows the people arrested, some he has known since childhood. That is why he says not only are high level people targeted, but local people also are monitored and taken from their vehicles. In by-election held last week it was reported in media that six wives were taken away, and they were just followers, low level supporters of the PTI. He doesn’t say the country information is wrong, just that it is national level information. The local information is only available at the local or micro level and that’s what he knows. The PTI has filed applications in court saying 10,000 people are missing and these 10,000 are not leaders, just workers. The big leaders have been released or they have left the country. The common people are in the courts, PTI mentions them on their website and has also launched appeals for financial assistance for legal expenses of lower level PTI people. Common people are missing for two years, and their names are not known much. The news of their families asking for them is just local news, not national news. He also mentioned the US Congress and other US institutions had reported on the PTI not receiving justice, the election was rigged and that political opponents are victims, and not allowed to work, in Pakistan. The high-level officials are discussed and get bailed but the lower level, common, people can’t get bail, aren’t produced in court, and end up trialled in absentia. Now the media doesn’t report it but previously it was reported.
In assessing the applicant’s evidence, the Tribunal is mindful of the difficulties often faced by applicants for protection, particularly those for whom some period has passed since they departed their country of origin, including factors such as recall problems, cultural communication issues, misunderstandings in interpreted material, or a lack of cohesive narration due to experiencing trauma or the passage of time.
In the protection visa application process before the Department and at the hearing he provided generally consistent information about his family, education, and employment history, and I accept those details as summarised in the background above. At the hearing he provided generally consistent information about his fears, if returned to Pakistan. I am satisfied he is generally a credible witness9except as discussed below). I accept the applicant fears to return to Pakistan because of his political and personal issues with Mr A; and because of his support for the PTI. I accept that these fears are ones that he genuinely holds. However, for the reasons discussed below, I do not consider any of his fears to be well-founded.
When the applicant returned to Pakistan for a visit in 2017, he had a confrontation with Mr A, when Mr A gate-crashed the applicant having dinner at home with 15-18 friends. Mr A criticised the applicant for holding a political meeting without him and the applicant explained it was dinner and not a political meeting. Mr A told photos. Mr A mentioned his niece and the applicant’s perceived role in Mr A’s family’s shame in relation to that marriage. Mr A said he could do anything he wanted, which the applicant took to be a threat. Mr A subsequently posted the photos on [social media] with a caption suggesting it was one of Mr A’s political meetings. While the applicant was in Pakistan on that visit, Mr A did not attempt to physically harm the applicant before, during or after his gate-crashing of the dinner. The applicant confirmed that was his last direct contact with Mr A and that since then neither Mr A nor anyone associated with Mr A had contacted the applicant or his family in Pakistan. In short, Mr A had an opportunity during the applicant’s 2017 visit to do more than make a threat against the applicant, had Mr A wished to do so. Mr A didn’t, nor did he have any subsequent contact with the applicant or the applicant’s family in Pakistan, whether to make other threats or otherwise. At the hearing the Tribunal raised several concerns about this aspect of his case with the applicant:
·He was in Pakistan for a few weeks in 2017. During that time Mr A came to his home. The applicant doesn’t claim he suffered any harm from Mr A at that time, other than him making threats. As Mr A didn’t otherwise harm him at that time, it may raise concerns about whether he, his associates, or anyone else had an adverse interest in him at the time he left Pakistan to return to Australia in 2017. The applicant said Mr A saying he had ignored him and not invited him to his house, that was a sufficient threat. Plus, Mr A said he could no anything and no one can stop him.
·He had not claimed that Mr A, his associates, or anyone else, had shown any interest in the applicant, such as making enquiries about him, since he left Pakistan in 2017. This may raise concerns in relation to whether Mr A, his associates, or anyone else would have an ongoing adverse interest in the applicant and would be adversely interested in him if he returned to Pakistan. The applicant said when Mr A named his niece in front of the 15-18 people at his house, and said he knew the applicant was responsible for her marriage and her fleeing, when a person can say that in front of 15-18 people, if he finds him alone in Pakistan, where people can be taken away and they can’t be found, they can do something to him. The applicant said he is also an opponent of Mr A’s political party, and he is afraid people will come and make him disappear. He said it is not done to mention family shames in front of strangers, but as Mr A did that it show his state of mind that Mr A can do anything, and the applicant cannot trust him.
·It is now seven years since he last left Pakistan. Given the passage of time, this may raise concerns in relation to whether Mr A, his associates, or anyone else would have an adverse interest in him if he returned to Pakistan. The applicant said he realised time had passed but Mr A will still enjoy status if the elections take place and Mr A’s party is in power. In those circumstances the applicant feels more fearful. In the marriage issue, nothing can be said until he or his friend goes back to Pakistan. He was a witness to the wedding, but not an official witness, and people do not forget the honour killing issue, so he cannot take the risk to go back.
Given Mr A’s failure to take any action to harm Mr A, other than gatecrashing the dinner and issuing a threat, while the applicant was visiting Pakistan in 2017 and the passage of time since that visit, together with Mr A showing no adverse interest in the applicant or his family in Pakistan since that time, I consider there to be only a remote chance that the applicant may be subject to any harm or other adverse interest from Mr A, if he were to return to Pakistan, now or in the reasonably foreseeable future. None of the applicant’s responses to the concerns raised by the Tribunal, including in his post-hearing submissions, were ultimately convincing in relation to the applicant facing a real chance of harm from Mr A. I accept that honour killings, and the like, occur in Pakistan. However, I do not consider this is a relevant risk factor for the applicant given Mr A’s niece continues to live in Pakistan, some three streets away from where she lived when she got married, and she has not been harmed by Mr A or anyone else in her family.
In its most recent (January 2022) report on Pakistan, DFAT stated that politically motivated violence has historically occurred across Pakistan, especially in Karachi and Balochistan, but has substantially reduced in recent years. It says mass protests are very common in Pakistan and are conducted with varying levels of violence by both protesters and police. The level of risk depends on the protest but the risk of violence by either side cannot be ruled out. DFAT did not identify any specific issues in relation to PTI officials, members or supporters.[1]
[1] DFAT, “DFAT Country Information Report Pakistan”, 25 January 2022.
Country information since the DFAT report indicates that former Prime Minster Imran Khan’s PTI government fell in April 2022 when he resigned after a no confidence vote initiated by an alliance that included the PMLN.[2] Demanding elections, Mr Khan started a nationwide ‘Long March’ from Punjab province to the capital Islamabad. 11 per cent of ‘Long March’ demonstrations turned violent. On 3 November 2022 a gunman fired at Khan’s convoy during a protest in Wazirabad, Punjab, wounding him and killing a PTI supporter; Khan blamed the government and military. In May 2023 Khan was arrested on corruption charges. PTI supporters organised demonstrations in hundreds of locations, 21 per cent of which turned violent, including attacks on government and military properties. Security forces responded with a brutal crackdown, dispersing demonstrators with live ammunition, tear gas and baton charges, killing at least 11 people in May 2023, a rare use of deadly force by police against political party members, and arresting thousands of PTI supporters and senior leaders. PTI claimed many members in custody were tortured. Dozens of senior members resigned from the party amid claims of pressure from authorities. Demonstrations by PTI supporters fell by 90 per cent from the second to the last quarter of 2023.[3] The Election Commission of Pakistan (ECP) rejected Imran Khan’s nomination to contest the February 2024 parliamentary elections.[4] Members of the PTI were consequently unable to participate in the 2024 general elections under the PTI party name and instead ran as independents. A week before polling day. Mr Khan, in jail since August 2023, was sentenced to 10 and 14 years in jail on charges of leaking state secrets and corruption.[5] Although the PTI secured the most seats in parliament, as independent candidates, the PMLN and PPP formed another coalition after negotiations. On 3 March 2024 Shahbaz Sharif, of the PMLN, became Prime Minster.[6] Opposition political figures in Pakistan have been subjected to the law with Mr Khan facing some 150 cases since he left office in 2022. Many protesters associated with the PTI, including senior party leaders, had been in detention for over a year up to September 2024.[7] The applicant also provided media reports on other arrests of top PTI officials and PTI supporters that have occurred at protests supporting Imran Khan.[8]
[2] ‘BTI 2024 Country Report - Pakistan', Bertelsmann Stiftung, 19 March 2024.
[3] ‘Election-related violence in Pakistan', Pearl Pandya, Armed Conflict Location & Event Data Project (ACLED), 14 February 2024; 'Political Repression and Militant Targeting Set the Stage for Pakistan's 2024 Elections', Pearl Pandya [& Ana Marco], ACLED, 1 February 2024; 'Election Office Blasts in Pakistan Kill at Least 22 a Day Before Vote', Zia ur-Rehman, The New York Times, 7 February 2024; 'Islamic State claims responsibility for bombings on eve of Pakistan election', Shah Meer Baloch, The Guardian, 8 February 2024; and 'Pakistan general elections: At least 12 people killed in 51 terror attacks', Business Recorder - Pakistan, 9 February 2024.
[4] ‘Pakistan poll body rejects ex-PM Imran Khan’s nomination for 2024 elections', Al Jazeera, 30 December 2023, 20240104121918; and 'Pakistan: COI Compilation April 2024 (Reporting period: January 2022 to March 2024)', ACCORD, April 2024.
[5] ‘Election-related violence in Pakistan', Pearl Pandya, ACLED, 14 February 2024; and 'Political Repression and Militant Targeting Set the Stage for Pakistan's 2024 Elections', Pearl Pandya [& Ana Marco], ACLED, 1 February 2024.
[6] ‘Pakistan: COI Compilation April 2024 (Reporting period: January 2022 to March 2024)', ACCORD, April 2024; 'Pakistan: Authorities Must Immediately Release Imran Khan From Arbitrary Detention' (ASA 33/8507/2024), Amnesty International, 11 September 2024; and ‘Shehbaz Sharif elected prime minister for 2nd time, vows to steer Pakistan ‘back to shore’ in victory speech', Dawn, 3 March 2024.
[7] ‘Top leaders of Imran Khan’s party briefly arrested, released in Pakistan’s Rawalpindi’, Arab News, 12 November 2024; and 'Pakistan: Authorities Must Immediately Release Imran Khan From Arbitrary Detention', Amnesty International, 11 September 2024.
[8] 'Direct attack' on democracy: Pakistan police arrests top PTI leaders, lmran Khan supporters in Islamabad’, WION, 10 September 2024; ‘PTI protests against 'rigging' met with arrests across country’, Dawn, 3 March 2024; ‘Six PTI supporters arrested as party protests against alleged vote rigging’, Business Recorder, 2 March 2024; ‘Pakistan police crack down on PTI protests over alleged rigging in election’, Al Jazeera, 11 March 2024; and ‘State Repression an Human Rights Violations in Pakistan’, Dr Seema Khan, 6 July 2023.
Based on the country information, I accept that PTI supporters, especially PTI leaders and those who take part in pro-Imran Khan / pro-PTI demonstrations, may face a risk of arrest and in some cases of suffering serious harm in Pakistan. However, having regard to the applicant’s circumstances, including his political profile, I do not accept that the applicant is such a person. Although he was described several times as an activist in the post-hearing submissions, I do not accept that is an appropriate description of the applicant as a PTI follower. I accept he was involved in non-political community organisations in his local area, and at the local level with the PMLN from 2012 to 2014, before he came to Australia. I accept that he became a follower of the PTI since 2014, when living in Australia, including participating in a WhatsApp discussion group. However, when discussing his political activities in Australia at the start of the hearing, the applicant said he had attended 10-15 protests about human rights in Palestine but claimed to have been to only one protest involving a PTI related issue – a protest in support of Imran Khan when he was removed as Prime Minister after the no confidence vote. Given the country information on the range of protests by P TI supporters in Pakistan since 2022 and continuing through 2024 (albeit there was a drop in such protests in the last quarter of 2023 in the lead up to the 2024 election as noted), I do not consider the applicant’s attendance at one pro-PTI protest in 2022 to support a claim that he is an activist in relation to his support of the PTI. I accept he is a follower of the PTI but based on his participation in pro-PTI protests in Australia, where he is generally otherwise free to participate without fear of harm, I am not satisfied that he would participate in such protests, if in Pakistan, except on a very limited, ad hoc, and occasional basis. As such, I am not satisfied that there is a real chance that the applicant may face harm as a follower of the PTI, if returned to Pakistan, now or in the reasonably foreseeable future.
Considering the findings set out above, the Tribunal is not satisfied that if the applicant returns to Pakistan now or in the foreseeable future, he faces a real chance of persecution.
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).
Does the applicant satisfy the complementary protection criterion for protection?
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).
For the reasons set out above I have found that there is not otherwise a real chance of harm for this applicant for any reason were he to return to Pakistan. As ‘real risk’ and ‘real chance’ involve the application of the same standard,[9] he also does not face a real risk of any harm in Pakistan. I find that the applicant does not face a real risk of significant harm in Pakistan.
[9] MIAC v SZQRB (2013) 210 FCR 505.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Conclusion
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) or s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision under review.
Date(s) of hearing: 16 September 2024
Representative for the Applicant: Mr Iqbal Chaudhry (MARN: 1174774)
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.
…
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