1916649 (Refugee)

1916649 (Refugee) [2023] AATA 2422 (9 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Ahmad Shakil (MARN: 1791991)
CASE NUMBER:  1916649
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Ann Duffield
DATE:9 May 2023
PLACE OF DECISION:  Canberra
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 09 May 2023 at 10:56am

CATCHWORDS
REFUGEE – Protection visa – Pakistan – political opinion – applicant was not a member of any political party – involved in the election campaigns of opposition party candidates – not a witness of truth – applicant had provided conflicting, inconsistent and contradictory information– credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 411, 499
Migration Regulations 1994, Schedule 2

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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 June 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 citizen of Pakistan, applied for the visa on 8 February 2018. The delegate refused to grant the visa on the basis that it would be reasonable for him to relocate to another part of Pakistan to avoid the harm he fears.
The applicant appeared before the Tribunal on 14 April 2023 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 was represented in relation to the review.
CRITERIA FOR A 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.
BACKGROUND
The applicant is Muslim Punjabi man born in [year] ([age] years old), from Sialkot, Pakistan. The department has not raised any issues in relation to the applicant’s identity and the Tribunal has no evidence before it to indicate that the applicant is not who he claims to be. For the purposes of this assessment, therefore, the applicant’s country of nationality is Pakistan.
The applicant worked in [an] industry since he was [age] years of age. He started his own [business]. He had four staff and ran the business for a few years. When he left Pakistan, the business collapsed. All of his brothers are in Pakistan but have worked overseas [for] various periods of time. One of his brothers [did specified work] and the other is involved in [other areas]. All remain in Sialkot when in Pakistan. Three of his brothers are married. At his interview with the delegate, he did not claim that any of his brothers were being persecuted or threatened with harm by anyone. One of his brothers is a drug addict.
The applicant was granted a [visa] on 22 December 2017 and travelled to Australia on [date] January 2018. He lodged the application for a protection visa subject to this review on 8 February 2018.
Protection claims
In his interview with the delegate the applicant said that his involvement in the API began when he was very young. He said his friend was the president of the student organisation and involved with the API. The applicant said that this person was murdered in 2009. The applicant was a social worker in his area and worked for the welfare of the community. He described his role as solving community problems. He did not describe it as a political role.
The Applicant claims he was politically active in the Pakistan Muslim League as a member but switched allegiance to PTI (Tehreek-e-Insaf) post the 2013 elections, in order, he claims, to combat corruption. He said that they didn’t know the parties charter or the policies of the PTI, but other members of his family were involved and Imran Khan was a national hero.
In his interview with the delegate the applicant said that the PTI looked to his family and community and saw a large voter block. He said that their family friend, [Mr A] was trying to find candidates for the area, and he started working with [Mr A] to find them. He said that he arranged all the meetings and conducted the entire campaign for the election in 2015. He said in the beginning it was very light work but after around March 2014 they started working harder.
The applicant claims that the 2014 election campaign saw problems emanate from rivalry with PML-N candidates and supporters in his region of Sialkot. One such man, [Mr B], along with others, assaulted the PTI workers on their way to a rally. The applicant does not claim to have been injured in this attack, but others were. [Mr B]’s brother, [Mr C] was elected as [position] of [an agency].
After the election the applicant claims that [Mr B] became his enemy and made life for himself and his family in Sialkot very difficult. He claims that [Mr B] wanted him dead.
The applicant claims that in March 2016 [Mr B] filed false claims against him with the police. He left Sialkot for several months and went to Faisalabad first for a couple of weeks before going to another place and finally Islamabad before leaving for Australia. During this time [Mr B] visited his home and abused his family. The applicant claims that the police took his brother to the police station where they tortured him, allegedly in the presence of [Mr B].
In August 2016 [Mr B] was accused, along with his brothers, of murdering two advocates of the PTI and who were close friends of his. He claims that [Mr B] was charged and convicted of these murders.
In December 2018, the applicant claims that [Mr B] and his brothers murdered his friend [Mr A]. [Mr B] was allegedly arrested, charged, prosecuted and convicted for 25 years imprisonment. He only served 10 months and was released in around July 2019.
The applicant said that he can’t return to Pakistan because of some enmity with [Mr B] and his brother [Mr C]. The applicant said that the enmity between them started when he began working with the PTI in the middle of 2014.
Country Information – Political Opinion – DFAT Country Information Report Pakistan
Shehbaz Sharif of the Pakistan Muslim League (Nawaz) (“PML-N”) was elected Prime Minister of Pakistan on 11 April 2022, following a no-confidence motion against the former PM, Imran Khan of PTI on 9 April 2022. General elections must be called by August 2023, though Imran Khan and PTI have made calls for early elections. The Presidential position is filled by Dr Arif Alvi, who was elected on 4 September 2018, was a founding member of Khan’s PTI party.
According to the DFAT Country Overview, the Australian Government remains concerned about the human rights situation in Pakistan. The use of capital punishment, blasphemy laws, the rights of women, the treatment of ethnic, religious and sexual minorities and freedom of expression are all matters of concern in the human rights arena. Australia has raised its universal opposition to the death penalty, continues to promote inter-faith harmony and has urged the Pakistan Government to address human rights concerns through both bilateral and multilateral representations.
Parliamentary reserved seat system
Minority groups in Pakistan are not formally barred from participating in government and politics, though informal barriers do exist. There are 10 seats reserved in federal parliament (the National Assembly) for non-Muslim minorities and 60 seats reserved for women, though these are proportionally distributed to parties. Critics of this system say that non-Muslim and women candidates are often unaccountable and ineffective advocates for their communities where they have been directly appointed by the political parties themselves.
Targeting of political opponents
Accusations have been made against the National Accountability Bureau (NAB) and the Federal Investigation Agency (FIA) of unfairly targeting political opponents through the legal system. Prominent members of the PML-N (Pakistan Muslim League N) and PPP (Pakistan People’s Party) opposition parties are targets of the current government. Members of the ruling PTI party are rarely subject to investigations. The Supreme Court ruled in 2020 that the NAB had violated the rights to fair trial and due process of two PML-N politicians after they were detained by the NAB for 15 months without reasonable grounds. The FIA also targets journalists and human rights defenders who criticise the government, as well as their families.
Political parties and associated violence
Most political parties active in Pakistan have suffered casualties from terror attacks or non-terrorist violence during the past decade. Politically motivated violence has occurred across the country. In 2020 6 politicians were killed, and 29 were killed in 2019. In September 2020 a senior PTI leader was shot and killed in Haripur by unknown assailants. In October 2019, a PTI worker was killed in Azizabad after having received threats against his life. In 2018, clashes between supporters of political parties occurred on Election Day in all four provinces.
The most recent general elections in July 2018 saw incidents of political violence, clashes between political activists and law enforcement, and restrictions on freedom of expression.
Country Information – Other sources
The Tribunal also accessed the following material which carried articles about the shooting of Zafar and Imran Baig as follows:
[Deleted].
JI Leaders “shot dead” by PML-N activists: 01 September 2016
[Deleted].
Local elections 2015
The following article entitled, Punjab, Sindh face violent vote in Local Bodies polls published on 31 October 2015 describes the environment of the 2015 elections in which the applicant claims he was involved.
LAHORE/KARACHI (Staff Report) - Polling is underway for the first phase of the much-delayed Local Bodies polls in 20 districts of Sindh and Punjab today.
Polling started at 7.30am and will continue till 5.30pm without any break. In some polling stations, polling began late as presiding officers were not aware of the notification that polling was to be started at 7.30am.
Over 25 million citizens will exercise their right to elect local government (LG) representatives in 12 districts of Punjab and eight of Sindh. Other districts in the two provinces will go to polls in two phases to follow.
The Central Control Room of ECP is monitoring the polling process, reported Radio Pakistan. The control room will continue functioning till compilation of the results.
Complaints about the polling can be registered on the control room's telephone numbers: 051-9204342 and 9210816-9.
The last LG polls were held during the era of General (r) Pervez Musharraf in 2005.
Public holiday is being observed in the concerned districts of Punjab, following the directions of Election Commission of Pakistan (ECP).
The ECP has directed the voters to bring their original National Identity Card (CNIC); without original card no one will be able to cast his/her vote in LB polls. Also the time of polling has also extended from 9 hours to 10 hours.
A large number of independent candidates are also contesting in the local government elections.
The distribution of election material began on Friday morning.
For Lahore, 3,500 polling stations have been set up. The designated election officials on Friday handed over material for their respective polling stations, including ballot boxes, lists and ballots under the watchful eye of the Punjab police.
PUNJAB
In Faisalabad’s UC 54 Abdullahpur, a “fake policeman” attempting to influence the polling was arrested, Dawn News reported.
A fake voter was reportedly arrested in polling station no. 3 in Lahore’s UC 207.
polling halted for a brief time in Ward No 1 of Union Council 6 Gujrat following the death of presiding officer Muhammad Sharif - headmaster of a government school - due to cardiac arrest.
The polling remained suspended for 15 minutes before it resumed under the assistant presiding officer.
Meanwhile, it was reported that some PML-N workers uprooted PTI’s camps in Lahore’s Shahdara area.
ARMY CALLED IN
A total of 32,000 police personnel are on ground officiating the election while 4.44 million voters are supposed to cast their votes.
All voters of Punjab can check their vote and polling station details by sending CNIC number on 8300.
Army and Rangers personnel have been deployed but they will keep out of the polling stations, defying demands of main opposition parties.
Quick Response Force of the Army and Rangers are deployed at sensitive areas on polling day to prevent clashes between party supporters, Punjab Election Commissioner Masood Malik said.
Opposition parties, PTI, PPP, JI and PAT had demanded Punjab Election Commission to deploy Army and Rangers inside all the polling stations. They openly rejected the police saying that they have an inclination towards the ruling party.
According to security agency sources, the districts of Lahore, Gujrat, Faisalabad, Kasur and Bhakkar are marked as dangerous. In another threat assessment, security agencies marked Lahore, Faisalabad, Bhakkar, Lodhran, Vehari and Bahawalnagar as the possible targets of terrorist attacks.
SINDH
Polling was halted in polling station No.102 after two groups clashed in Jacobabad district. At least two people were injured in the clash.
Two groups clashed in wards 1 and 4 in Ghotki district's tehsil Mirpur Mathelo.
The ruling PPP appears to be in a strong position in the eight districts of upper Sindh where polling is being held.
More than 4.6 million voters in the eight districts will vote for over 10,000 candidates vying for 2,333 constituencies falling in various tiers of municipal units.
The districts - Larkana, Shikarpur, Jacobabad, Kashmore, Kamber-Shahdadkot, Sukkur, Ghotki and Khairpur - fall within the territorial jurisdiction of Larkana and Sukkur divisions.
With the traditional election symbol of ‘arrow’, PPP candidates are facing rivals belonging to the PML-Functional, Muttahida Qaumi Movement, Jamiat Ulema-i-Islam-Fazl, Jamaat-i-Islami, Sindh United Party (SUP) and an alliance of several parties called the Larkana Awami Ittehad.
Sons of the Leader of the Opposition in the National Assembly Khurshid Ahmed Shah, Senator Islamuddin Shaikh, Sindh LG Minister Nasir Shah in Sukkur, and a daughter of Senior Sindh Minister Nisar Khuhro in Larkana have been elected unopposed.
According to the officials figures by provincial election commission, a total of 5,193 candidates are in the run for 950 constituencies in Sukkur division. Of them, 1,558 candidates will contest on 392 seats in Sukkur district, 2,664 candidates on 111 seats in Khairpur, and 971 candidates on 447 seats in Ghotki district.
In Larkana division, a total of 4,894 candidates will vie for 1,383 seats. They included 625 candidates for 101 seats in Jacobabad district, 609 candidates for 220 seats in Kashmore, 1,357 candidates for 466 seats in Kamber, 1,363 candidates for 314 seats in Larkana and 940 candidates for 282 seats in Shikarpur.
There are 54 town committees - 28 in Sukkur and 26 in Larkana - in the two divisions. Khairpur district has 20 town committees, the maximum number of town committees in any of the eight districts, while Jacobabad has the least number of town committees that is only three.
Also, there are 222 wards for the 28 town committees of Sukkur division and 163 wards for the 26 town committees of Larkana division.
Each of the eight districts has one district council with 187 union councils in Sukkur division and 239 in Larkana division. In all, there will be 4,031 polling stations including 678 of them being marked as sensitive from a security point of view.
Similarly, there are 26 union committees in the city of Sukkur and 20 union committees in urban Larkana.
Each of the two cities will have a municipal corporation having the elected chairmen of the union committees as its members.
The Sindh government has deployed over 31,000 police officials besides the 80 army troops and 2,219 Rangers personnel for election duty in the eight districts.
The army troops have been deployed at sensitive polling stations in Nara and Kingi areas of Khairpur district only.
FIRST PHASE
In this first phase, voters will elect chairmen and vice chairmen of the union councils, as well as the members of the district council.
More than 20 million registered voters of 12 districts will use their right to vote for the local bodies elections in Punjab.
The number of registered voters in Lahore are 4,305,880; Faisalabad 3,944,545; Gujrat 1,726,760; Kasur 1,614,042; Okara 1,507,246; Vehari 1,430,692; Bahawalnagar 1,387,865; Chakwal 1,009,947; Pakpattan 898,144; Lodhran 817,445; Bhakar 765,171; and Nankana Sahib 676,587.
Over 40 thousand candidates are in race for various offices of the Union Councils in the first phase of the local bodies’ polls across Punjab.
As many as 4,500 candidates will appear for [position]/vice [position] of District Councils whereas a total of 19,213 will contest for General Members of District Council's Union Councils and 5531 candidates will be in the field for General Members of Municipal Committee's Wards.
According to the Punjab Local Government (Amendment) Ordinance 2015, a union council shall have a directly elected [position] and a vice-[position] as joint candidates, and six councillors on general seats- one each from a ward. These members can contest polls either on party tickets or as independent candidates.
The electorates will only vote for the panel of a [position] and one general councillor from their respective ward. Once elected, the general members will elect two female members, one worker, a youth and a non-Muslim member for their wards.
Pakistan Muslim League-Nawaz (PML-N) is the only party which organised three local bodies' elections in the past and not only accorded significance to local bodies but also ensured devolution of power to the grass roots level.
Unfortunately, Pakistan has not so far been able to evolve a viable and sustainable system of local governments because during each period of military rule, military dictators introduced a new system of local bodies to serve their own political agenda. Such a system naturally could not survive the transition from military to civilian rule Punjab, Sindh face violent vote in Local Bodies polls (dailypakistan.com.pk)
Before the Tribunal

The Tribunal has a copy of the delegate’s decision provided by the applicant along with his application for review.
The Tribunal has also had regard to the Department’s file and has listened to the interview between the applicant and the delegate. The Tribunal also received information and submissions from the applicant through his adviser prior to the Tribunal hearing, including the following:
a.A detailed submission from the applicant through his adviser dated 10 April 2023.
b.Some photographs of the applicant with others allegedly at a political rally, undated
c.A photograph of a woman allegedly murdered by [Mr B], undated, not captioned and not identified as having been murdered by [Mr B].
d.A screen shot of a news report allegedly on the murder of [Mr A] undated – in Urdu and no translation provided.
e.A Poster of someone allegedly the relative of [Mr B], undated – in Urdu and no translation provided
f.Dossier on violations of human rights by PDM government post regime change.
g.Amnesty International Human Rights Report 2022-2023
h.First Information Report dated [March] 2016 by [Mr B variation] ([Mr B]) accusing the applicant (amongst 13 or so others) of firing at him and beating him up in the street. Police attended the incident, but the applicant and his friends had fled.
i.First Information Report numbered [deleted] on Police Form number [deleted] lodged on [date range] August 2016 [at] [Police] Station [details deleted].
j.There is also a second “First Information Report” numbered [deleted] lodged [in] August at [police] station about the same [incident].
k.An application for the registration of a case dated [April] 2018 whereby [the] son of [the applicant’s brother], was going to sleep when he heard a loud knock at his door and was confronted by 3 unknown armed men who opened fire at him. It is alleged that these men were shouting about the applicant saying that he had to be killed. They sped off on a [car]. There is also a Court notice about this matter dated [April] 2018
l.A First Information Report dated [December] 2018 at [time] was submitted to [police] station by [a named person] about an incident that occurred at around 8.15pm [in] December whereby a person [Mr D] shot at him and his brother [Mr A]. [Mr A] was killed in the altercation.
m.A First Information Report dated [February] 2023 from [a named person] states that [in] February at around 4.22 pm his son [Mr B variation] called him stating that he was being followed by men on motorcycles carrying weapons. When he stopped. the men threatened him and shot his son [Mr B variation] several times. [Mr B variation] died on the way to hospital. A First Information Report dated [March] 2023 from [a person] states that his cousin and brother were at their home and around 2am several men attacked their house including the applicant’s [brother]. It is alleged that the complainant’s wife was killed in this attack. ([Mr B] is not mentioned as an assailant or victim).
Tribunal hearing
The Tribunal reminded the applicant that it was not able to rely on the findings of the delegate and would be examining all his claims afresh including his protection claims. The Tribunal also asked the applicant to be direct and truthful and answer all its questions with as much detail as possible. The Tribunal informed the applicant that it had listened to his interview with the delegate and noted that there appeared to be a lot of misunderstandings between himself and the delegate and that his answers to the delegate’s questions appeared to be evasive. The Tribunal told the applicant that if he did not understand its questions then he should let it know and it would rephrase the question. The Tribunal told the applicant that it would otherwise assume that he understood the question and that he considered his response relevant to the question asked. The Tribunal put to him that if it found his answers to be evasive, it may form a view that his evidence may be untruthful. The applicant indicated that he understood.
The applicant told the Tribunal that his parents and two brothers still resided in Sialkot and his sister was married and living in Pakistan. His elder brother is married and has a [son]. A third brother is married and lives in [another country].
Until 2013 the applicant and his family, led by his uncle, supported the Muslim League. His uncle became disillusioned with the party after an incident in which the applicant said he was publicly humiliated. A friend of the family for over 20 years, [Mr A], was involved in the PTI and was a member of the [agency]. They decided to get involved with that party. They also were very supportive of Imran Khan’s election effort.
At the end of 2014 the applicant and his friends were involved in organising a rally for [Mr A] but that meeting was cancelled because along the way the supporters were all attacked by the opposition party members who supported the election of [Mr C].
[Mr C] was a candidate for [position] of the [agency] and so was [Mr A]. However, after this attack [Mr A] decided to withdraw his candidacy. [Mr C] subsequently won the election.
The Tribunal asked the applicant what he did specifically in the campaign that would attract the adverse attention of someone such that they would want to kill him. The applicant claimed that he was involved with [Mr A]’s re-election “every step of the way”. When pressed for more details he said that he had his own business and financially supported [Mr A]. He helped to print banners and provided food and encouraged more members. He said that after his uncle passed away, he became the leader of the family. He clarified that he was not a member of the party; he did not hold any official or elected role and was not otherwise involved except to help [Mr A].
There was no police report made about the attack, but the situation was mediated. It was after this mediation attempt that there was an altercation outside the police station and [Mr B] allegedly threatened the applicant. The applicant slapped [Mr B] and made his nose bleed.
The applicant said that when they (the Muslim League) lost the election they blamed him. The Tribunal put to the applicant that [Mr C] won the election as [position] of the [agency]. The applicant said that he had nevertheless opposed them and that’s why they wanted to kill him.
The applicant later said that one of the men that were shooting at them on the way to the rally was [Mr D]. Mr [D] was the man who allegedly killed [Mr A] in December 2018.
The applicant went on to state that the Pakistani Defence Minister lived in Sialkot and the [B relatives] were closely associated with him. He said that the [B relatives] would occupy territories by force for him. He said that Zafir and Imran’s uncle ran against [Mr C]’s best friend and won. He said that this person was in the land mafia and illegally occupied [Mr D]’s land. [Mr D] tried to get his land back and reported it to the police and that’s why the [B relatives] hated him.
The Tribunal asked the applicant what happened in relation to the charges that [Mr B] made against him in March 2016. The Tribunal put to him that he was able to leave Pakistan unhindered by the authorities. He continued to live in his house unmolested in between that time. He wasn’t arrested or charged nor attended court in relation to that complaint. The applicant said that after the FIR was registered, he ran away from home and moved around various places trying to avoid [Mr B] before he departed Pakistan in January 2018. He said that when they couldn’t find him, they arrested his brother who was tortured in front of [Mr B] for five days in the police station. The applicant said that the incident that [Mr B] reported in the FIR of [March] 2016 was wrong as it was the [B relatives] who attacked him and his friends, not the other way around.
The Tribunal discussed the incident two FIR’s relating to the alleged murder of the Baig brothers in August 2016 along with a media report. He said that [Mr B] was arrested and convicted and sent to jail. He said that he was in the courtroom during the trial and [Mr B] shouted at him in front of about 100 people that he wouldn’t be in jail for ever and would get him.
The Tribunal put to the applicant that the media reports about the incident were contradictory; one stating that the brothers were shot outside their home and were members of JI and another stating they were shot in their car. The applicant said that they were shot by the Baig brothers and were not JI but members of PTI.
The Tribunal asked how it was possible for [Mr B] to have been tried, convicted, sentenced and released between the time of the alleged incident on 31 August 2016 and early 2017. The applicant said that he escaped while on bail and still lives in the community. He said that [Mr B’s] family are powerful criminals and get away with everything. He had no evidence of this.
The applicant told the Tribunal that the [B relatives] would continue to pursue him. He said that while he was in Australia [Mr B’s family] caused problems for his brothers and shot at their house. He says that their neighbour was killed, and [their] bodyguards shot a woman at a wedding ceremony. He said that the family are criminals and act with impunity.
The Tribunal asked the applicant how he got the FIRs and he said that he keeps an eye on what’s going on and his brother went to the police and asked for the report. He said that because they have been involved in issues against [Mr B’s family] for several years it is for their own safety that they get copies of those records.
The Tribunal put to the applicant that it had contradictory news reports about the alleged murder of Zafar and Imran Baig. The Tribunal also showed the applicant a Facebook page of the brothers showing that they were active in December 2016. ZAFAR BAIG - advocate Shaheed & MIRZA IMRAN BAIG Shaheed | Sialkot | Facebook
The Tribunal put to the applicant that it had no evidence that the [B relatives] were charged, taken to court, convicted, or sentenced for any crimes at all. The Tribunal put to the applicant that there may or may not have been a feud between himself and [Mr B’s family] but there was no evidence to support his allegations that any such feud involved threats of significant harm against him.
The Tribunal put to the applicant that there may be a family feud or there may have been disagreements involving politics, but the Tribunal was not persuaded that it was to the extent that it would motivate [Mr B’s family], or anyone else, to want to kill or harm him or his family. The applicant said that he had tried living in different parts of Pakistan, but that [Mr B’s family] would know where he was and would bother his friends to tell him where he was. He said that [they] had targeted him for murder and his group was involved with [Mr A]’s election. The applicant said that [Mr B] thinks that he is the main character that is responsible for everything. The applicant said that [Mr B] thinks he is one of the main opponents that he has. He is very dangerous.
The Tribunal put to the applicant that even if his claims were true it appeared to be a local feud and there was no reason why he couldn’t live in some other part of the country.
The applicant denied that it was just a local feud. He said it’s a politically based issue and he has tried living in three other cities, but they continued to harass his family and he had to close his business. The applicant said that [Mr B] said in a courtroom that he wanted to kill him. He said it was a political matter as well as a matter of ego. He said that the political leaders and influential people in their area tried to mediate between them but they still attacking him. He said that they know he has left the country. The Tribunal reminded him that he had said that his political opponents did not know that he had left the country and that’s the reason they attacked his brother in April 2018. He said that they found out after that. He said that his brothers have stopped talking to him because he is the reason for all their problems. The Tribunal notes, however, that the applicant has claimed that one of his brothers obtains the FIRs on his behalf.
The applicant said that his enemies knew he was in Australia because someone came to his house [to] threaten him. The applicant said that this man was the brother of the person who killed [Mr D]. He said that they were trying to mediate with him. The Tribunal said it seemed quite far-fetched for that to have occurred. Asked if he reported the threat to the police, he said that the man was an Australian citizen and so he had not.
The applicant’s representative made a submission stating that the applicant’s claims are true and that the [B relatives] are dangerous and will kill him as they have killed others in the neighbourhood. He said that the situation in Pakistan at the moment is politically volatile and dangerous for PTI workers in particular and there is a lot of fighting, and the applicant wouldn’t be safe anywhere else in Pakistan.
Reasons and Findings
The Tribunal found the applicant’s oral and documentary evidence unpersuasive, contradictory, unreliable, and frequently irrelevant. The Tribunal has formed a view that the applicant fabricated the material claims in his application solely for the purpose of obtaining a protection visa. For the following reasons is not satisfied that the applicant is a person to whom Australia has protection obligations.
The applicant’s claims, in essence, are that he fears persecution by reason of his political opinion in that he claims to having been involved in a political party and election campaign for a candidate who campaigned against a local politician in another party.
The Tribunal accepts that the electoral and political environment in Pakistan can be volatile, particularly recently. The Tribunal also accepts that political opponents can resort to violence and target each other for serious harm.
The applicant told the Tribunal that he was not a member of any political party or an office holder of a political party or that he had been nominated or ran for any elections as a candidate in any political party. Although he did suggest late in the hearing that people had asked him to nominate but he did not elaborate. The applicant has not been active politically or spoken out publicly or through social media or any other avenue about his opposition to [Mr B] and his brother, or the PLM more generally. He was not able to persuade the Tribunal that any involvement he might have had in the election of his friend [Mr A] was such that it would cause anyone to form an adverse view of him such that they sought to persecute him or cause him, or members of his family, serious harm.
For example, he said that his family as a block supported the PTI and he provided financial assistance to [Mr A]’s campaign in the form of posters and such and helped with the provision of food. He later added that he “organised everything” and was with [Mr A] “every step of the way” but was unable or unwilling to provide details of his actual involvement and activities despite prompting from the Tribunal. He talked about himself and his group of friends providing [Mr A] with assistance when needed. He was unable to discuss the policies of the PTI except to say that they were anti-corruption, and the PLM was corrupt.
The Tribunal accepts that someone can have strong political views without having detailed knowledge of public policy or even the platforms of various political parties. Equally, the Tribunal accepts that if the applicant was involved in an electoral campaign for his friend [Mr A], it would not be unreasonable to impute him with the same political views of the candidate he was supporting, even if he did not share them. The Tribunal notes that in the delegate’s decision the applicant is recorded as assisting a candidate named [name] who was a family friend. This is also in the applicant’s written submission.
However, the applicant stated that he was a community welfare worker and worked with youth and only became involved when his friend [Mr A] was running for election in 2014. He has provided some photographs, allegedly of him with political figures, however he has not identified those figures, provided dates of when the photographs were taken or the context in which they were taken or where they were taken. Nor has he provided any evidence of [Mr A] running as a candidate in the election. This information is published by the Pakistan Electoral Commission, and he could have been expected to keep some of the posters or other material he claimed to have provided for [Mr A]. The Tribunal notes that [Mr C] was still the [position] of the [agency] as of 2019.
The applicant’s adviser, in his submission of April 2023 states that the applicant was involved in assisting the election campaigns for PTI [candidates]. The applicant’s adviser states that these candidates won their campaigns against PML candidates, and this was the reason that [Mr B] blamed the applicant and sought to harm him.
Furthermore, the Tribunal was unable to locate, and the applicant did not provide any evidence to the effect, that the local elections of 2015 were marred by excessive violence, particularly in the Punjab or Sialkot, the local government area in which the applicant claims that he was active. He told the Tribunal that the matter was not reported to the police and no charges were ever laid against anyone. He did say there was some kind of mediation in a court after which he slapped [Mr B]’s brother causing his nose to bleed.
The applicant provided no corroborating evidence that he and [Mr A] and members of the PTI were attacked and shot at by members of the PML whilst they were on their way to a rally in December 2014. The Tribunal would expect that an event of this kind may be reported, either locally or nationally however the applicant did not provide any evidence to corroborate his account of this incident.
The applicant claims that [Mr B] wanted to kill him because he opposed him/his party in the elections. [Mr B] however was elected as [position] of the [agency] that he was contesting, and members of the applicant’s political party were elected in Rangpura, according to the applicant’s representative. The Tribunal put to the applicant that [Mr B] had no reason to make him an enemy, much less hunt him down and kill him, his friends or members of his family. The applicant claims that [Mr B] is a member of the land mafia, is a criminal and murderer and no one dares to oppose him. The applicant has provided no evidence of his involvement in the Rangpura campaigns.
The applicant has provided photographs of himself with others claiming that this is proof of his political activity. However, he has not identified the people in the photos, the dates that the photos were taken or the context in which they were taken.
On the basis of the evidence before it, even if the applicant was involved in the election campaigns of opposition party candidates, the Tribunal is not satisfied that such assistance as he claimed to have provided would lead the brother of the winning candidate in different [agency], [Mr B], to form a negative view of him such that he would be motivated to kill him, or cause him or his family and colleagues significant harm, or to even take an interest in him.
FIR incident of [March] 2016
To support his claim that [Mr B] wants to kill or harm him, the applicant states that [Mr B] was a member of the land mafia and in 2016 he confiscated land from his friend. [Mr B] then lodged an FIR against the applicant claiming that the applicant and his friends attacked and shot at [Mr B] and his colleagues. The applicant however states that it was [Mr B] that attacked him and his friends but because of his influence with the police, he was able to make the complaint first.

In relation to the “First Information Report” provided by the applicant to support his claims, the Tribunal put to the applicant that these documents merely reflect allegations made to the police and even if reliable and not fabricated documents, they did not corroborate his claims.
For example, if the FIR against the applicant alleging that he and his friends shot at and attacked [Mr B] and his friends in March 2016 were genuine, it would seem to the Tribunal that the applicant would have at least been questioned by the police about this matter and there would be a warrant out for his arrest.
However, he told the Tribunal he was never questioned by the police, and never arrested or charged in relation to the alleged attack by him on [Mr B]. He claims that it was because he went away for a few months, before returning to Sialkot where he remained until shortly before his departure for Australia. The applicant did not go to the police to provide what he claims was the truthful account and in so doing clear his name.
In the delegate’s decision it is recorded that the in late 2016, through the courts, the applicant reached a settlement over the false allegations against him and returned to Sialkot. The applicant did not mention this either to the Tribunal during the hearing nor in the submission to the Tribunal dated April 2023.
The Tribunal asked the applicant how he obtained the FIR and he said that his brother went to the police station to ask for it and they were allowed to have it because they were involved in the case. Whilst it seems unlikely that a third party would be able to access such a report the Tribunal does not, for the reasons above, accept that above event occurred or that the applicant was ever in conflict with any of the [B relatives].
The inconsistencies in the applicant’s claims along with his overall lack of credibility have led the Tribunal to form a view that the incident did not occur and that the FIR is a bogus document fabricated solely for the purpose of supporting a protection claim.
FIRs in relation to the event of 30 August 2016
The applicant also provided copies of two FIRs dated [in] August 2016 in relation to the allegations that [Mr B] murdered the Baig brothers. Both were lodged by the uncle of the Baig brothers. They include a significant amount of detail, including what gun was fired by whom and what part of the body was struck by each particular bullet and in what order. It seems unlikely that such level of detail could be included in a police report a short time after the event which happened in the middle of the night. The following is an extract of the English translation of the FIR copy provided to the Tribunal:
[Deleted].
The Tribunal finds it unlikely that a witness would be able to witness or recall that level of detail about a shootout between multiple parties that occurred in the middle of the night less than two hours after it allegedly occurred.
One of the FIR reports states that the incident happened on [date]-08-2016 at about [time] and the second one, also dated [date].08.16 at about [time]. Otherwise the event number is the same, the report number ([deleted]) is the same, the name and address of the informer is the same (an uncle of the brothers), the offence numbers are the same, the name of the officer taking the report is the same and the place of the incident is the same. However, the content in each of the reports is slightly different, as are the copies of the original documents in Urdu. One of the versions of the FIR has the translator’s stamp but not the stamps of the notary. Given that the applicant provided the department with a version of the FIR which differs from one of the two provided to the Tribunal, the Tribunal asked the applicant if he had forgotten he had provided a version of the FIR to the department and produced another one to provide to the Tribunal. The applicant denied this.
The media reports in relation to this incident were unhelpful and inconsistent with the applicant’s claims that the Baig brothers were supporters of PTI. The media articles state that the brothers were leaders in JI, another political party, and were shot by the [B relatives] because of a political dispute. The article quotes a number of JI leaders condemning the attack that JI and Shabab-e-Milli activists staged a demonstration against the killings. When this was put to the applicant, he stated that the brothers were members of PTI. The Tribunal also noted that the newspaper reports refer to [Mr C] as being the [position] of [an] [agency], not [a different agency].
There is no evidence before the Tribunal, and none was provided by the applicant, to indicate that the allegations in relation to the murder of the Baig brothers by the [B relatives] were pursued and investigated by the police, or that charges were laid, or prosecutions conducted or that the [B relatives] were convicted and sentenced. The Tribunal has considered the applicant’s account that [Mr B] was arrested, charged, prosecuted and sentenced in a matter of days of the incident occurring [in] August and apparently released from jail within a matter of months despite being sentenced to 15 years. The applicant provided no satisfactory explanation for this and no evidence to support the claim, including for example newspaper articles or court reports. The Tribunal could not locate any further articles reporting the matter.
The newspaper reports include significant details of the FIR. Its difficult to imagine how a reporter could have access to the details of a report (its number, for example) made to the police at [time] and be able to publish an article about it later that morning.
The article also states that the brothers were leaders in JI not PTI. This does not accord with the applicant’s account that [Mr B] was targeting PTI because they were his rivals. The applicant has not mentioned that [Mr B] had any difficulty with JI.
In the FIR, the Baig brother’s uncle states that he heard a loud shout from one of the assailants that they were “teaching them a lesson for campaigning against us”. If the newspaper article is correct, then the [B relatives] were attacking JI supporters for their help in campaigning against [Mr B]. The applicant is not a member of JI and there is no evidence that he knows the Baig brothers, even though he has claimed that they were his lawyers. The Tribunal has assumed therefore, that this incident relates to the applicant’s claims to demonstrate that the [B relatives] are prepared to kill their political opponents.
The applicant told the Tribunal that his brother could obtain copies of FIRs where they related to his cases. However, this FIR was in relation to an event unrelated to the applicant and he is not mentioned in it. It’s unclear how he obtained it or why it would be provided to him. The applicant claims that the Baig brothers are his lawyers, but he has provided no evidence to support that claim or demonstrate that he had any connection with them at all.
The Tribunal finds the applicant’s account of the alleged shooting of the Baig brothers by the [B relatives] to be unreliable. It does not align with the documentary evidence provided and the documentary evidence itself contains conflicting information.
Even if there is truth in the Newspaper article, the Tribunal is unable to reconcile that with the fact that the applicant seems to have acquired a copy of an FIR that is entirely unrelated to him. As with the other FIRs provided to the Tribunal there is no indication as to when the FIRs were translated. They are stamped by a translator in Sialkot, but the stamp is undated. The applicant provided no further details to the Tribunal as to how, when and why he obtained these documents and had them translated.
It would not be farfetched to suggest that the applicant obtained or produced a bogus FIRs, based on the news report well after the fact, in order to support a claim for protection. In any case, the Tribunal is not satisfied that the FIRs are genuine documents and do not support the applicant’s claims that the [B relatives] were involved in, accused or, or convicted of the incident relating to the alleged murder of the Baig brothers.
FIR [December] 2018
The applicant has claimed that [Mr B] continues to murder his political opponents and people associated with him. The FIR dated [December] 2018 is in relation to the alleged murder of his friend [Mr A] by [Mr D], a political rival and the man who also fired into the PTI rally in December 2014. The applicant claims that [Mr A] was killed because the [B relatives] blamed him for helping the applicant escape from Pakistan.
The Tribunal has seen a news clip of a man by that name having been killed on that date. However, the FIR does not report that [Mr A] was killed by [Mr D] but injured. The FIR states that the informant wishes to accuse [Mr D] of injuring himself and having an intention to kill [Mr A].
Be that as it may, the Tribunal accepts that a man named [Mr A] was murdered in December 2018. However, given the concerns about the applicant’s credibility, and providence of the FIR’s, the Tribunal cannot be certain that this is the [Mr A] who was his friend or accept that he was killed because he helped the applicant escape Pakistan, or that [Mr D] was acting on instruction from or on behalf of any of the [B relatives].
FIR [February] 2023 and [March] 2023
These FIRS relate to incidents in Sialkot reported which the applicant claims demonstrates that the [B relatives] are above the law and continue to threaten opponents and his family even in his absence.
The Tribunal maintains its concerns about the access the applicant and his family have to police reports which are unrelated to them. Even if the FIR’s are genuine documents, they relate to allegations and do not constitute evidence that an event actually happened or that the accused are actually guilty. There is no evidence that any charges were laid against the persons named nor do they prove that the accused are related to the [B relatives] or were acting on their behalf.
Be that as it may, the Tribunal has no evidence before it to corroborate the applicant’s account of his dealings with [Mr B] or his brother. The Tribunal does not accept that the FIR’s constitute evidence to corroborate any of his claims even if they are genuine documents, which the Tribunal is not satisfied they are.
The applicant claims that [Mr B] has sent the brother of the person who killed [Mr D] to threaten him at his [home]. However, he has no evidence to support this claim and did not report his concerns or the alleged threats to the police. He said the reason he did not report this man was because he was an Australian citizen. He did not explain why that was relevant. The Tribunal does not accept that that [B relatives] have an adverse interest, indeed any interest in the applicant such that they would contact someone in Australia to go and visit the applicant and threaten him.
Credibility
The Tribunal accepts that inconsistencies in evidence can occur, particularly in circumstances of high stress and when applicants are being asked to recount potentially traumatic events which may have occurred several years prior. The Tribunal is also mindful 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 was very clear with the applicant about the aspects of his evidence it considered lacked credibility or were implausible and the applicant was given the opportunity to respond at the hearing. The applicant was unable to allay the Tribunal’s concerns to its satisfaction. The lack of credible and consistent corroborating evidence, his evasive and contradictory responses to concerns with oral and documentary evidence reveals, in the Tribunal’s mind, a contrived account of events rather than a recollection of memories from actual lived experiences.
The discrepancies identified by the Tribunal were about significant and central aspects of his claims. Considered collectively and along with the manner in which he testified, the Tribunal finds that the applicant has not been truthful.
Conclusion
The Tribunal thus finds that the applicant’s claims about his persecution by his political opponents, the [B relatives], are not credible. The Tribunal is not satisfied that the applicant’s claimed involvement with the PTI, even if true, would be such that it would attract the adverse attention of anyone such that they would seek to persecute him or harm him.
On the basis of the evidence before it, and for the reasons above, the Tribunal is not satisfied that the applicant has a political enmity with the [B relatives], or the PML, or anyone else for the reasons claimed or for any other reason such that they would want to cause him, his family, friends or colleagues significant harm or kill him should he return to Pakistan either now or in the reasonably foreseeable future.

100. The Tribunal is not satisfied, on the basis of the evidence and information before it, that the applicant has a well-founded fear of persecution by reason of his political opinion, or for any other convention related reason.
101. 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).

103. The Tribunal has found the applicant’s account of the harm he fears to be entirely contrived and lacking in credibility. Considering all the evidence before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Pakistan, there is a real risk the applicant will suffer significant harm for the reason stated, or for any other reason. The Tribunal therefore 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

105. The Tribunal affirms the decision not to grant the applicant a protection visa.
Ann Duffield
Senior Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

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

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 2422

9 May 2023

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction