1917429 (Refugee)

1917429 (Refugee) [2024] AATA 4432 (26 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Stephen John
CASE NUMBER:  1917429
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Rachel Da Costa
DATE:26 September 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 26 September 2024 at 3:19pm
CATCHWORDS
REFUGEE – Protection Visa – Pakistan – girlfriend killed by her family in honour killing – applicant threatened by girlfriend’s family – lack of independent supporting evidence – inconsistent evidence –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 56, 65, 424, 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 17 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 is a citizen of Pakistan, applied for the visa on 4 August 2017. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
CLAIMS AND EVIDENCE
Background
In his protection visa application form, the applicant provides the following relevant information. He was born in Lahore city, Punjab province, Pakistan in [year]. He has never been married. In Pakistan, he has his parents, a brother and a sister. He is in contact with his parents. He speaks, reads and writes Punjabi, Urdu and English. He is a Sunni Muslim.
In Pakistan, he always lived at the same address in [address]. He was a student in Pakistan and was supported financially by his parents. He completed Middle School in June 2015.
The applicant departed Pakistan legally on [date] July 2017 and arrived in Australia on [date] July 2017 as the holder of a medical treatment visa. He travelled on his Pakistani passport.
Evidence before the Department
Protection visa application
The applicant’s claims for protection are contained in a handwritten statement attached to his protection visa application form. The applicant claims as follows:
·     He came to Australia accompanying his father on a medical treatment visa but in reality, he came to Australia due to his need to escape Pakistan to keep himself safe and alive.
·     In Pakistan, he had a girlfriend called [Ms A]. She lived in the city of Mardan.[1] They met over the phone when the applicant mistakenly called her phone number. Over the next six months, they kept talking to each other and established a strong connection and friendship.
[1] According to Google Maps, Mardan is about 470km from Lahore by road Lahore, Pakistan to Mardan, Khyber Pakhtunkhwa 23200, Pakistan - Google Maps
·     [Ms A] has a sister who lives in Lahore and she convinced her parents to let her visit her sister for three months. The applicant and [Ms A] were able to meet in person without the knowledge of their parents or families. They fell in love. They spent all their free time together and made promises to spend their lives together. The relationship became a physical relationship.
·     [Ms A]’s visit to Lahore was cut short as her mother came to her sister’s house one day and took [Ms A] back to Mardan.
·     The applicant and [Ms A] maintained contact by phone and messages like before. [Ms A] eventually told the applicant she could not live without him and pleaded for them to run away together.
·     The applicant said to give him some time and said he would speak to his parents to agree to the marriage.
·     Soon after this, [Ms A]’s mother found her phone and found out about the relationship. [Ms A] is from a strict Pathan (Pashtun) family which forbids marriage outside their culture. When [Ms A]’s father found out about the relationship and its nature, he beat [Ms A] severely.
·     [Ms A]’s father spoke to the community leaders in their area and they agreed the applicant should be punished. [Ms A]’s father called the applicant, threatened to kill him and said death was the applicant’s destiny even if he tries to run away in Pakistan.
·     The applicant told his parents and questioned why he had made such a mistake. His father said he would speak to [Ms A]’s father to appeal for their marriage.
·     They heard nothing back from [Ms A] or her family for a few days and then one day bullets were fired into their house, piercing the front door. Two armed gunmen tried to break down the door and enter the house, shouting the applicant’s name and demanding his family hand him over. They said they would not harm anyone in the family if they obeyed the orders. They said the applicant had tarnished [Ms A] and brought shame to her people. The applicant’s family refused to bow to the attackers’ will and the attackers left. The attackers said this was not the end and they would continue to seek revenge.
·     They went to the police station the next morning to try to lodge a formal complaint but the senior police officers said they could not face the Pathans because their brutality has scared the police before and it would be better if the applicant moved to another location to save his life.
·     In fear, the applicant’s parents sent him to his aunt’s house in Tobateksingh.[2] He changed his phone number and tried to disappear but [Ms A]’s family managed to trace him and made contact with him by phone. [Ms A]’s father told the applicant that they murdered [Ms A] for bringing shame to their family and disrespecting the honour of their lineage and the applicant would suffer the same fate at his hand. The applicant was horrified to hear that [Ms A] had been murdered simply for loving him.
·     The appilcant had not spoken to [Ms A] for two days before this phone call and has not spoken to her since. He believes she is dead.
·     After hearing about this threat, the applicant’s father moved him again to stay in Karachi.[3] After a few days, the applicant started to hear rumours in the neighbourhood that strange people were asking about him but because he was new, nobody knew where he was living. A few days later when he was in town collecting food he saw [Ms A]’s father and brother walking through the streets stopping people, showing them a picture of the applicant to see if anyone had seen him. They were both carrying guns and being followed by four other armed gunmen sitting in a [car].
·     As soon as the applicant realised they were hunting him, he ran to the train station and called his father. His father told him to deactivate his social media and change his SIM card again.
·     The applicant’s father tried to report the threats and chasing to the police again but the police said they were scared of the Pathans and registering the complaint would put their own lives at risk. They said the applicant should keep running until [Ms A]’s family forgets about him because the Pathans in Mardan are dangerous and have connections all over Pakistan. This group has connections with the Taliban and they would be able to find the applicant anywhere in Pakistan and kill him.
·     [Ms A]’s brother also belongs to a powerful terrorist group called [name].
·     After realising that [Ms A]’s father murdered her and that he planned to kill the applicant too, the applicant’s father fell into a spiral of stress and anxiety. He suffered a stroke. The doctor said he needed to go abroad for treatment. The family pushed for the applicant to accompany his father to Australia to save his father’s life and his own.
·     The applicant knows that if he returns to Pakistan he will be hunted down and killed.
Interview with the delegate and supporting documents
[2] According to Google Maps, Toba Tek Singh is about 220km from Lahore by road Lahore, Pakistan to Toba Tek Singh, Pakistan - Google Maps
[3] According to Google Maps, Karachi is about 1200km from Lahore by road Lahore, Pakistan to Karachi, Pakistan - Google Maps
The applicant attended an interview with the delegate on 21 May 2019 to discuss his claims for protection. The Tribunal has listened to a recording of the interview. In the interview, the applicant made a number of new or different claims as follows:
·     He didn’t speak directly to [Ms A]’s father while he was still living at home in Lahore and it was the applicant’s father who spoke to [Ms A]’s father and relayed that her father had made threats;
·     He was still living at home the last time he spoke to [Ms A];
·     When the police refused to register their complaint about the threats to the applicant, the applicant’s father made an application to the Capital City Police Officer (CCPO);
·     The applicant didn’t know what [Ms A]’s father or brother looked like and isn’t sure who the people he saw in the market in Karachi were;
·     After leaving Karachi, he and his father stayed with the visa agent in Rahim Yar Khan for about 20 days before they departed Pakistan;
·     The applicant’s father paid immigration officials at the airport;
·     Last Eid some people came to the applicant’s old address asking about him and whether he had come back to Pakistan;
·     The applicant fears he will be charged for engaging in a sexual relationship with [Ms A] because they were not married.
Where relevant, aspects of the applicant’s oral evidence to the delegate are referred to below.
At the interview, the applicant provided a number of medical documents from Pakistan and Australia about his father’s health conditions and treatment and he showed the delegate some photos of himself and [Ms A] on his phone. He was given time by the delegate to provide further documents after the interview.
Following the interview, the applicant’s representative (who is not his current representative) provided written submissions and a number of documents including:
·     Undated photos of the applicant and [Ms A] presented on the applicant’s phone at interview;
·     A series of online news articles about honour killings in Pakistan;
·     Amnesty International Annual Report on Pakistan for 2017/2018;
·     Amnesty International article about honour killings in Pakistan;
The applicant’s post-interview written submissions state that the applicant travelled to Australia with his father on a medical treatment visa but his real reason for travel was to seek protection in Australia because his girlfriend had been killed by her family in an honour killing and her family were also trying to kill the applicant. The submissions set out the applicant’s written statement and submit that the applicant has a well-founded fear of persecution if he returns to Pakistan. It is submitted that honour killings are common in Pakistan and the Pathan community practises honour killings. The submissions provide some background and context about honour killings and it is submitted that despite an anti-honour killing law being passed in 2016, it has been ineffective. The submissions attach various articles and reports in relation to honour killings in Pakistan. It is submitted that the Pakistani police and security forces will be unable to protect the applicant and it would be difficult for the applicant to relocate within Pakistan as the Pathan community is all over Pakistan and he would require family support if he returned. It is submitted that [Ms A]’s family are still searching for the applicant, the applicant’s family do not welcome him anymore because they think his siblings might be killed in an attempt to save the applicant’s life and there is a serious threat to the applicant. It is submitted that the applicant meets the criteria for the grant of a protection visa.
On 14 June 2019, the applicant provided an additional statement to the Department about his efforts to obtain further documents. He said that his family had tried to obtain documents by going to the town police station where they submitted their application to the police in 2017 but the police said they do not have a record of the application and offered to provide a fake one and asked for a bribe to provide a First Information Report (FIR) instead of an application. The applicant does not want to provide fake documents The applicant said that his father is unwell and unable to go every day to the court and police station. Also, his family is scared that this will reopen the case and someone in the police will tell the other party about it and his family will face harm. His family is already living in a scary environment and he is depressed that everything happening to them is because of him.
The delegate’s decision
On 17 June 2019, the delegate made their decision. The delegate accepted that the applicant was in a relationship with [Ms A] but found the other aspects of the applicant’s claims, including the threats from [Ms A]’s family, reporting to the police and the police response, the applicant’s relocation within Pakistan due to the threats, his claims that people continue to search for him in Pakistan to harm him, and that his father paid immigration officials so he could depart Pakistan, to be lacking in credibility. The delegate found that the applicant is not a person in respect of whom Australia has protection obligations.
Evidence before the Tribunal
On 1 July 2019, the applicant lodged an application for review of the delegate’s decision with the Tribunal. He provided the Tribunal with a copy of the delegate’s decision.
On 21 August 2024, the applicant’s representative provided the following documents to the Tribunal:
·     Further statement of the applicant dated 19 August 2024;
·     Written submissions from the representative;
·     Applicant’s NSW Marriage Certificate showing he married on [date] January 2020.
Further pre-hearing statement of the applicant
In his further written statement dated 19 August 2024, the applicant states that he does not have access to documents or reports as he was only [age] or [age] years old at the time and they did not file any reports with the police about the incidents [in] Lahore. He did not wish to pursue further action against those trying to locate his sister and him as they were unable to access their properties and business in Pakistan and their relatives are too fearful to assist.
He states that his family fled Pakistan between 2019 and 2020, first moving to [Country 1] for security reasons before relocating to [Country 2]. He has been in Australia since then and could not join his family who were living in [Country 1] then [Country 2].
He is married to an Australian Permanent Resident who is currently living in Pakistan with her mother. She applied for a visa for her mother and it has been refused several times. She is an only child and her mother is alone so she has to live with her.
Pre-hearing submissions
The pre-hearing written submissions set out an overview of the applicant’s story. The submissions go on to set out the law relating to ‘refugee’ and ‘well-founded fear of persecution.’ It is submitted that the applicant is such a person and he will not be able to avail himself of state protection from an honour killing in Pakistan. The submissions refer to the DFAT Country Information Report Pakistan[4] which states that once a threat of honour killing is established the victim remains at risk even if they relocate, and it is submitted that this is the situation for the applicant who unsuccessfully tried to relocate in Pakistan. It is submitted that corruption in the security forces makes victims more vulnerable to being tracked as bribes can be paid for information. It is submitted that the applicant faces a real chance of persecution in Pakistan. It is submitted that the applicant will not be able to access state protection, and that he tried to access this but was refused. In relation to complementary protection, it is submitted that the applicant faces a real risk of an honour killing which would amount to significant harm. It is submitted that it would not be reasonable for him to relocate as he will face the ongoing threat of being found and harmed. It is submitted that the adverse credibility findings by the delegate were not cogent. It is submitted that the applicant meets the criteria for the grant of a protection visa.
[4] DFAT Country Information Report Pakistan 25 January 2022 (DFAT Report)
The hearing
The applicant appeared before the Tribunal on 27 August 2024 to give evidence and present arguments. The applicant speaks fluent English and indicated that he did not require an interpreter. In the hearing, the Tribunal confirmed this with him and made it very clear to him that if at any time he did not understand the question he was being asked or needed the Tribunal to clarify something then he should speak up immediately. The Tribunal also made it very clear to the applicant that if, at any time, he changed his mind and decided that he would like the assistance of an interpreter then he should say so and this would be arranged. The Tribunal does not consider that during the hearing the applicant had difficulty understanding the Tribunal’s questions or communicating his story and responses or that he required the assistance of an interpreter, and the applicant did not request an interpreter. His representative did not raise any concerns. The Tribunal is satisfied that the applicant had the opportunity to participate in the hearing in a meaningful way.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
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.
Analysis, reasons and findings
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
In the hearing, the applicant gave evidence that his lawyer or migration agent at the time helped him to fill out his protection visa application form and he wrote his written statement himself. An Urdu-speaking person in the lawyer’s office assisted the applicant to write his written statement in English but all the information in it comes from the applicant. The applicant confirmed that all the information in his protection visa application was true and correct.
In the hearing, the Tribunal discussed with the applicant his family, education and employment background, his travel and migration history, his father’s health, his and his family’s current circumstances, the events he claims took place in Pakistan and why he fears returning there. While the Tribunal found some aspects of the applicant’s claims and evidence to be credible and accepts those, it also considers that over time there have been significant inconsistencies in the applicant’s evidence about key events in Pakistan which raises concerns for the Tribunal about whether his claims about the threats he faced in Pakistan and the harm he fears on return are credible.
In making its findings, the Tribunal has been mindful of the fact that the events the applicant is describing in Pakistan took place when he was only around [age] years old and he is now [age] years old. This means he was relatively young when the claimed events occurred and the Tribunal has considered to what extent this might have affected his ability to consistently recall what happened. The Tribunal has also considered the potential effect of trauma and fear on the applicant’s memory and the fact that memories can fade with the passage of time. In the hearing, the applicant claimed that he has a poor memory but it is not a serious memory problem. He said that he took anti-depressant medication during the Covid-19 pandemic but he doesn’t take that now. He is not currently receiving medical treatment and does not have a diagnosed mental health condition or issue with his memory. On this basis, the Tribunal does not accept that the applicant has a diagnosed medical condition which affects his memory. The Tribunal has also taken into account the fact that many applicants feel nervous appearing before the Tribunal and this can affect the quality of their evidence. Despite taking all these factors into account, they do not fully overcome the Tribunal’s concerns. The Tribunal considers that some of the inconsistencies or discrepancies in the applicant’s evidence over time relate to matters that are sufficiently significant that the applicant would not be mistaken about them or have difficulty recalling certain details if he was speaking about events that had truly taken place. The Tribunal explained this to the applicant in the hearing.
The Tribunal’s concerns are discussed further below.
The applicant’s relationship with [Ms A]
In his written statement, the applicant says that he first started talking to [Ms A] when he mistakenly called a strange number which happened to belong to her. They kept communicating over the next six months and stablished a strong friendship and connection. She lived in Mardan and had a sister in Lahore. She managed to convince her parents to let her come and visit her sister for three months. The applicant and [Ms A] were able to meet in person without the knowledge of their parents or families. They spent a lot of time together and their friendship turned into love. It became a physical relationship. [Ms A]’s visit to Lahore was cut short when her mother came and took her back to Mardan. They maintained contact again over the phone and messages. Eventually, [Ms A] pleaded that they run away together.
The applicant gave similar evidence in the interview with the delegate and to the Tribunal, with additional detail. The Tribunal considers the applicant’s evidence to the delegate and Tribunal about the types of things he and [Ms A] talked about together, where in Lahore her sister lived, when they first met in person and how, how and when they continued to meet in secret in the late evening or at night in Lahore and [Ms A] leaving unexpectedly, to have been mostly consistent over time and to include the type of specific, plausible details that lead the Tribunal to find that the applicant’s evidence about this is truthful. The applicant told the Tribunal that the last time he saw [Ms A] was on a Friday night at her sister’s house after he had been to prayers, and about five days later her mother came and took her back to Mardan.
The applicant told the Tribunal he thinks he first met [Ms A] in person in around September or October of 2016, or early 2017. He remembers he was still in Academy, which is a type of school like TAFE. He said [Ms A] stayed in Lahore for less than two months. He does not remember the date [Ms A] left but thinks it may have been in April 2017. He also said he thought the last time he spoke to [Ms A] was 2016. The Tribunal put to the applicant that some of the timeframes he had given didn’t make sense and he said he couldn’t recall because it had been a long time. While the Tribunal, like the delegate, has some concerns about the timeframes around [Ms A]’s visit to and departure from Lahore, the Tribunal is prepared to accept that [Ms A] existed, she and the applicant had a relationship which was mostly conducted over the phone and through messages, [Ms A] came and stayed in Lahore for a while with her sister and then she left and the applicant did not see her again.
The Tribunal’s findings are strengthened by the fact that applicant provided the delegate with copies of photos of himself and a girl who he says is [Ms A] that he had on his phone and the Tribunal has no reason to doubt the genuineness of these photos. These photos are the only independent evidence that corroborate the applicant’s claims about his relationship with [Ms A]. The Tribunal does not consider the documents about the health conditions and treatment of the applicant’s father corroborate his claims. They simply provide an explanation for the type of visa the applicant and his father held to come to Australia.
By way of contrast to the applicant’s evidence above about how his relationship with [Ms A] developed, the Tribunal considers there to be significant inconsistencies in the applicant’s claims and evidence about what happened after [Ms A] left Lahore which raises concerns about the credibility of his claims and evidence in relation to these matters.
The last time the applicant spoke to [Ms A] and where he was when he found out about her death
In his written statement, the applicant says he was in Toba Tek Singh when he received a phone call from [Ms A]’s father who told him they had murdered [Ms A] and that the applicant would suffer the same fate. The applicant said he had not spoken to [Ms A] for two days before this call. Upon hearing about this, the applicant’s father moved him to Karachi.
In the interview with the delegate, as reflected in the delegate’s decision, the applicant told a different story. He said that he stayed in Toba Tek Singh and after 14 days [Ms A]’s father contacted him, said he knew where the applicant was and threatened him. After this threat, the applicant’s father moved him to Karachi. The applicant did not tell the delegate that in the threatening phone call [Ms A]’s father said that he or anyone else had murdered [Ms A].
In the interview with the delegate, as reflected in the delegate’s decision, the applicant said the last time he spoke to [Ms A] was when he was still living at home in Lahore. [Ms A] called the applicant from a different phone number, said her parents were aware of the relationship, said her family would kill her and asked the applicant to come and get her so they could escape together. After this, the applicant told his parents about the relationship. His father agreed to call [Ms A]’s father about a marriage in the future and the fathers spoke several times by phone. The applicant did not claim that he spoke directly with [Ms A]’s father or tell the delegate when he found out that [Ms A] was dead or how he found out.
In the Tribunal hearing, the applicant gave evidence that he thinks the last time he spoke to [Ms A] was 2016 because in 2017 he came to Australia. He said it was nighttime and he was in the family home in Lahore. He and [Ms A] were talking on the phone and she said she thought her mother had found out about the relationship and she was worried her mother would tell her father. She suggested they run away because if her family found out, they would kill them. They didn’t speak for long and the applicant never spoke to her again. This conversation happened on [Ms A]’s and the applicant’s normal phone numbers that they communicated on.
The Tribunal asked the applicant how he knows [Ms A] is dead. The applicant said that he never thought her family would kill her but she never contacted him again. He said that [Ms A]’s father told the applicant and his father that [Ms A] was ‘gone’ because of what she did and next it was the applicant’s turn. The Tribunal asked the applicant when this conversation took place. The applicant said it was after his final conversation with [Ms A] and he thinks [Ms A]’s father called him from the phone number the applicant and [Ms A] used to talk on and [Ms A]’s father also spoke to the applicant’s father. The applicant was still at home in Lahore at this stage.
The Tribunal put to the applicant that there were significant discrepancies in his evidence about when and how he found out [Ms A] was dead and this raised a concern about whether his claims about what happened to him after [Ms A] left Lahore are true. The applicant responded that if the Tribunal could speak to some Pakistani agencies, this is his memory and he knows it is bad and he is not refuting what he wrote in the statement but he said it in his language and some of the things in it might not be accurate. He doesn’t have access to other evidence and friends and relatives are afraid to talk or make a statement.
The Tribunal has considered the applicant’s response but it does not allay the Tribunal’s concerns. Early in the hearing, the applicant confirmed that the contents of his written statement were true and came from him. The Tribunal also notes that his written statement was made closest in time to the claimed events occurring compared to the evidence he gave in the subsequent interview and hearing. The applicant only resiled from the accuracy of his written statement when the Tribunal raised its concerns with him. In terms of the applicant’s memory, in the hearing he recalled quite specific details about the circumstances and content of his last conversation with [Ms A] and did not claim to be having difficulty remembering. It is not the Tribunal’s responsibility to speak to Pakistani agencies to establish the applicant’s case for him.[5] The Tribunal has considered the lack of corroborative evidence separately below.
[5] Migration Act 1958 (Cth) s 5AAA.
The applicant’s written statement says very clearly that he found out [Ms A] had been murdered when her father told him this and also threatened him over the phone when the applicant was in Toba Tek Singh. The applicant said he had spoken to [Ms A] about two days earlier and did not speak to her again. Although the applicant did not specify timeframes in his written statement, in the Tribunal’s view and in the context of his story, the clear implication in the written statement is that the last time the applicant spoke to [Ms A] he was already in Toba Tek Singh, having fled Lahore after shots were fired at his house.
The applicant told the delegate very clearly that the last time he spoke to [Ms A] was when he was still living at home in Lahore and [Ms A] called him from a different phone number than the one she usually used. She said her parents had found out about the relationship. The applicant did not tell the delegate that he was ever told that [Ms A] had been killed or how he knew she was dead. The applicant said it was his father who spoke to [Ms A]’s father several times while the applicant was still in Lahore and then [Ms A]’s father threatened the applicant over the phone when he was in Toba Tek Singh.
The applicant told the Tribunal that the last time he spoke to [Ms A] he was still living at home in Lahore and she called him on her usual phone number. [Ms A] said she thought her mother had found out about the relationship and was worried her mother would tell her father. The applicant said he spoke with [Ms A]’s father directly and was threatened and his father also spoke to [Ms A]’s father. Some time later, shots were fired at their house and armed gunmen came inside shouting the applicant’s name and shouting about a blood exchange . The applicant was not home when this happened. The applicant’s father and uncle tried to report this incident to the police but the police wouldn’t help them when they found out the people responsible were from Mardan. The day after the shooting, the applicant went to Toba Tek Singh. While he was there, he received threatening phone calls from people including [Ms A]’s father, whose voice he recognised from the call he received in Lahore, saying they knew where he was.
Given the applicant claims he and [Ms A] were in love and in regular contact, the Tribunal would not expect the applicant to be mistaken about something as fundamental as where he was when he found out [Ms A] was dead and how he found out. The differences in the applicant’s evidence about whether he was ever told directly that [Ms A] had been killed, where he was when he found out about this, where he was when he had his last conversation with [Ms A] and whether she called him on her usual phone number or a different phone number, whether she told him her parents had actually found out about the relationship or she thought her mother had found out and she was worried her father would find out, and whether or not the appilcant ever spoke directly with [Ms A]’s father while still in Lahore, raises doubts for the Tribunal about the credibility of the applicant’s claims and evidence. These matters go to the heart of the applicant’s reasons for claiming to fear that he will be harmed or killed by [Ms A]’s family if he returns to Pakistan. The extent of the discrepancies in his evidence about this key period when he claims he was told or realised [Ms A] was dead and his own life was threatened by her family raises concerns for the Tribunal about whether his evidence about these matters, and about his claims more generally, is truthful and reliable.
What happened in Karachi
In his written statement, the applicant says that a few days after he had been staying in Karachi he was in town collecting food and saw [Ms A]’s father and brother walking through the streets stopping people and showing them a picture of us (meaning him and [Ms A]) to see if anyone had seen the applicant around. They were carrying guns and accompanied by four other armed gunmen sitting in a [car] close by. As soon as the applicant realised they were hunting him down he ran to the train station and called his father.
In the interview with the delegate, as reflected in the delegate’s decision, the applicant said that when he was out in Karachi getting food he saw gunmen at the market walking around. He told the delegate he did not know who the men were but when he saw these men with guns and beards he was worried that they looked like Pathans (also known as Pashtuns) and so he thought it might be [Ms A]’s father. He told the delegate he had never seen [Ms A]’s father and brother before because she did not show him photos. He called his father and his father told him to leave.
In the Tribunal hearing, the applicant said that while in Karachi he felt that someone was following him and once he went out to do shopping and saw some gunmen and had a feeling they were looking for him and he was afraid. The Tribunal asked him if he knew who these people were. He said they looked Pashtun and he didn’t see them up close. They were perhaps 100m away. He said he had seen photos of [Ms A]’s father and he had a beard and fair skin which is what these people looked like. He said he was not sure if it was them. The men were showing a piece of paper or something to local shopkeepers and things like that. He called his father who told him to leave. Earlier in the hearing, the applicant had told the Tribunal that he had seen photos of [Ms A]’s family, which is different from what he told the delegate.
The Tribunal put to the applicant that the differences in his evidence about what happened in Karachi and whether he had ever seen photos of [Ms A]’s family raised concerns. The applicant responded that he remembered [Ms A] showing him the photos. He said in his interview with the delegate he made a lot of mistakes, he was fasting and stressed and he is helpless. The Tribunal has considered the applicant’s response but it does not overcome the Tribunal’s concerns. The Tribunal notes that the applicant’s representative was present in the interview with the delegate. Neither the applicant nor his representative raised concerns during or after the interview about the applicant’s capacity to participate or sought to correct his responses in the post-interview submissions. The differences in the applicant’s evidence about whether he knew the people he saw in the market in Karachi were [Ms A]’s father and brother and how he knew this, as well as what they were doing and how he knew this, particularly given he told the Tribunal he didn’t see them up close and they were around 100m away, raises concerns for the Tribunal about whether his evidence about these matters and his claims more generally, is truthful and reliable.
Where the applicant lived after fleeing Karachi and his departure from Pakistan
In his written statement, the applicant claims that after leaving Lahore, he stayed with his aunt in Toba Tek Singh and then fled to Karachi. He does not provide detail on what he did or where he went after Karachi, or the length of time between leaving Karachi and departing Pakistan with his father.
In the interview with the delegate, and as reflected in the delegate’s decision, the applicant gave evidence that in about February or March 2017 he left Lahore where he was living with his family and his father sent him to stay in Toba Tek Singh for about 14 days and then to Karachi for about 14 days. He gave evidence that after fleeing Karachi, on the advice of his father he took a train and travelled to Faisalabad and met up with his father. His and his father’s departure from Pakistan was arranged by an agent. The applicant told the delegate that he stayed with his father and uncle and they lived with the visa agent in Rahim Yar Khan for more than 20 days, and then they got their visas and flew out of Pakistan.[6]
[6] This detail about staying with the agent is not referred to in the delegate’s decision.
In the Tribunal hearing, the applicant gave evidence that he always lived in Lahore with his family up until the time he went to stay with his aunt in Toba Tek Singh and then he went to Karachi and stayed with another aunt. The applicant confirmed that he never lived anywhere else. He said he visited different places for holidays but not for living. The applicant gave evidence that immediately before he came to Australia he had been hiding in Karachi for about two or three weeks staying with his aunt who is the sister of his father. He was waiting for the granting of visas for him and his father to travel to Australia. The applicant gave evidence that as soon as he found out the visas had been granted he took a train to Lahore. He said that at this time, his father was in Islamabad. He was in Lahore for less than a day during which time he met up with his father, they gathered their belongings for travel, went to the airport, farewelled people and departed Pakistan

The Tribunal put to the applicant its concern about differences in his evidence over time about events in Pakistan after [Ms A] left Lahore. As set out above, the applicant told the delegate that after leaving Karachi he went to meet his father and for about 20 days before departing Pakistan, he and his father and uncle stayed in a place called Rahim Yar Khan with the visa agent who was helping arrange the visas. They stayed with this person until they departed. In the Tribunal hearing, the applicant gave evidence that after leaving Karachi he travelled straight to Lahore, spent less than one day there getting organised to travel, and then departed Pakistan with his father. This difference in the applicant’s evidence raises a concern for the Tribunal about the credibility of the applicant’s claims and evidence as the Tribunal does not consider that the applicant would be confused or would have forgotten whether, when departing Pakistan, he had been staying for last 20 days or so in the house of the visa agent in Rahim Yar Khan or he travelled directly from his aunt’s place in Karachi to Lahore and departed the same day, if these events had truly happened.
The lack of supporting documents and evidence
In his written statement, the applicant states that the morning after the shooting, ‘we went to the police station’ to bring the attackers to justice and lodge a formal complaint, but the senior officers said they could not face the Pathans due to their brutality and it would be better if the applicant moves location. Later in the statement, the applicant states that his father again tried to report the threats and chasing to the police (seemingly after the Karachi incident) but again, the police refused to register the complaint due to their fear of the Pathans.
In the interview with the delegate, the applicant said that the day after the shooting, he and his father attended [a] police station to try to report what happened but the police would not consider the matter. He said that due to the police inaction, his father submitted a written complaint or application with the Capital City Police Office (CCPO) but they did not receive a response.
As set out in his written statement dated 14 June 2019 about his efforts to obtain documents after the interview with the delegate, the applicant states that his family had tried to obtain documents by going to the town police station where they submitted their application to the police in 2017 but the police said they do not have a record of the application and offered to provide a fake one and asked for a bribe to provide a First Information Report (FIR) instead of an application. The applicant states that he submitted an application to the CCPO Lahore-Punjab in 2017 but he does not have access to it. He asks the Tribunal to investigate his case.
In his further written statement dated 19 August 2024, the applicant states that he does not have access to documents or reports as he was only [age] or [age] years old at the time and they did not file any reports with the police about the [in] Lahore. He did not wish to pursue further action against those trying to locate his sister and him as they (he and his sister) were unable to access their properties and business in Pakistan and their relatives are too fearful to assist.
In the hearing, the applicant said his father unsuccessfully tried to report the shooting at their home to the local [police]. He said it was his father and uncle who went to the [police] station to report the shooting and the applicant did not go. The Tribunal asked the applicant whether his father submitted an application to a higher level of police and the applicant said he did not.
In the hearing, the Tribunal put to the applicant that the lack of supporting evidence in his case was a concern, particularly given he had had the benefit of legal assistance and advice since he lodged his protection visa application. The applicant said that his relatives in Pakistan are too fearful to go the police station to get a statement or paperwork about the problems that happened and his friends are fearful and don’t want to get involved in case someone in Pakistan finds out and targets them. He asked friends and neighbours to make a written statement but they are fearful. His aunties said they could do it but they are worried about the applicant using such a statement in court in Pakistan and then they might get into trouble. The Tribunal expressed its doubt about this and reminded the applicant that evidence provided to the Tribunal in Australia was all confidential.
The inconsistencies in the applicant’s evidence about whether or not he personally attended the police station after the shooting at his home and whether his father submitted an application to a higher level of police (CCPO) due to the inaction of the local police raises concerns for the Tribunal about the credibility of the applicant’s claims and evidence.
Further, given the Tribunal’s concerns set out above about the credibility of the applicant’s claims and evidence generally, the Tribunal finds that applicant’s explanations about why friends and relatives are reluctant to provide written statements difficult to accept.
In relation to the applicant’s parents, the applicant gave evidence in the hearing that that his parents and siblings are together in [Country 2]. The applicant is in contact with his family once or twice a week. He mainly talks to his father. He thinks his parents pretend not to like him because they think he doesn’t believe in his religion. His family have been in [Country 2] since around November 2023 and the applicant visited them in December 2023 because his father is very unwell and the doctor advised him to visit. The applicant’s sister has [a medical condition] and she is receiving some medical treatment in [Country 2] as well. He thinks they have Visitor visas. They are planning to stay in [Country 2] but he doesn’t know for how long. The applicant has an uncle in [a city in another country] so they might go there afterwards.
Before his family were in [Country 2], they were hiding in [Country 1] from 2018 or 2019 until 2023. They left [Country 1] and went back to Pakistan for a few months and then they went to [Country 2]. They have been moving around since September or October 2017 because they have been afraid that [Ms A]’s father could harm them after the shooting at their home. They are afraid because of the threats made against the applicant but they have never suffered any harm. The applicant says [Ms A]’s family would only harm him and not his family because that is what they said. The Tribunal expressed its concern about the evidence the applicant gave about his family’s movements after he left Pakistan and the claimed reason for their movements.
The fact that the applicant’s parents and/or brother have not provided a witness statement or offered to give oral evidence is a concern for the Tribunal. Even if the applicant’s father is too unwell, the applicant has not explained why his mother or brother were not able to provide evidence. The Tribunal put this concern to the applicant and noted he has had the benefit of legal assistance throughout his application process. The applicant responded that he didn’t know what to say and that as long as he is safe he does not have an issue. He said he was helpless, his family has left Pakistan and referred to his memory problems. The Tribunal has considered the applicant’s response but does not accept it as it does not respond directly to the Tribunal’s concern. Even after the Tribunal raised this concern about the lack of supporting evidence, the applicant and his representative did not seek time to provide additional evidence or submissions after the hearing about this matter.
It is the applicant’s responsibility to establish his own case[7] and the absence of supporting evidence and the applicant’s explanations for this absence raises concerns for the Tribunal about the credibility of his claims and evidence for the reasons explained above.
The applicant’s family circumstances in Pakistan and Australia
[7] Migration Act 1958 (Cth) s 5AAA
The applicant’s evidence about the current situation and whereabouts of his parents and siblings is set out above.
The applicant gave evidence in the hearing that growing up, he lived in Lahore with his family. When the applicant was around [age] or [age] his father bought another house in Lahore for his and his siblings’ studies. Their permanent home was the family home in Lahore where he lived with their large extended family. His father was in [a] business and had various investment properties in Pakistan. His father also had vegetable farms. Now, the [business] is closed and the farming business still runs but only generates a small income and is looked after by workers. One worker looks after the family house. Some of the investment properties are rented and others are empty and unfinished. The [business] ceased in around 2016 after the applicant’s father went to hospital. The applicant’s family still own property in Pakistan. The applicant’s uncle (his father’s younger brother) lives in Lahore where the business and properties are and he collects the rent from the properties. The applicant has an aunt in Toba Tek Singh and an aunt in Islamabad. Most of his family was in Lahore but he is not sure where they are now.
The applicant gave evidence that he finished the equivalent of [a grade] in mid-2016 and then started working for his father in the business as well as continuing to study in the Academy. His father was already sick by this time and wanted the applicant to join the business. The applicant would drive his father, help him at the farm and the office, observing and learning. This is what the applicant was doing up until the time he came to Australia. The Tribunal accepts this.
The Tribunal referred the applicant to his written statement of 19 August 2024 in which he said he did not wish to pursue further action against those trying to locate his sister and him as they were unable to access their properties and business in Pakistan and their relatives are too fearful to assist. The Tribunal asked the applicant to explain what he meant by this. He said he is worried that if he takes any steps in the matter in Pakistan things will get worse and [Ms A]’s family might do something again. He said that now, his family has left Pakistan. His uncle collects the rent from the properties and the applicant does not have access to the properties. In relation to his sister, the idea is that in Pashtun culture if you murder or kill someone they will do the same thing to you. The Tribunal put to the applicant that he had never suggested threats had been made against his sister. He said it was his personal opinion because these things are normal in Pakistan.
The Tribunal notes that earlier in the hearing, the applicant had expressed the view that [Ms A]’s family would only ever harm him and not his family because the people who came to the house to do the shooting honestly said they only wanted the applicant and would not harm anyone else. The Tribunal considers that the applicant having expressed two opposing opinions in the hearing about whether there was a threat to his sister from [Ms A]’s family undermines the credibility of his evidence.
The applicant gave evidence that in Australia, he has been married since 2020 to an Australian Permanent Resident. His wife is currently in Karachi, Pakistan looking after her elderly mother. The applicant’s wife wants him to apply for a Partner visa but he would have to go offshore to do this. In Australia, the applicant owns his own [shop] which he started [recently]. He has also worked as a [occupation] and has a [qualification] in this area. He speaks Urdu, Punjabi and English. The Tribunal accepts this.
Section 424A
As set out above, the applicant has given different evidence at different times about certain aspects of his claims. The Tribunal considers this different evidence is in the nature of inconsistencies between the applicant’s written statement, the evidence he gave in the Departmental interview and the evidence he gave in the Tribunal hearing. The Tribunal considers that these matters go to the applicant’s credibility[8] and that they are not ‘information’ for the purposes of s 424A as they do not, in their terms, contain a rejection, denial or inherently undermine the applicant’s claims to be a person to whom Australia owes protection obligations.[9]
Findings
[8] SZBYR v MIAC (2007) 253 ALR 609 at [18]; MIAC v SZGUR (2011) 273 ALR 223 at [9], [77]; SZTGV v MIBP (2015) 318 ALR 450 at [102], [103]
[9] SZBYR v MIAC (2007) 253 ALR 609
Having considered all the applicant’s claims and evidence, based on the Tribunal’s reasons above, the Tribunal finds as follows.
The Tribunal accepts that in Pakistan the applicant had a relationship with a girl from Mardan called [Ms A]. The Tribunal accepts the applicant met [Ms A] over the phone sometime in 2016 when the applicant mistakenly called her phone number and that over the next six months or so they spoke and sent messages regularly and developed a friendship. The Tribunal accepts that [Ms A] came to stay with her sister in Lahore for a visit. The Tribunal accepts that during this time, [Ms A] and the applicant met regularly in secret in the late evening and at night and they fell in love. The Tribunal is prepared to accept that the relationship briefly became a sexual relationship. The Tribunal accepts that the applicant’s and [Ms A]’s families, including [Ms A]’s sister, were not aware of the relationship. The Tribunal accepts that after less than two months [Ms A]’s mother took her back to Mardan and that is the last time the applicant saw [Ms A]. The Tribunal accepts that for a time after [Ms A] left Lahore, she and the applicant stayed in contact. The Tribunal finds that sometime before the applicant left Pakistan and came to Australia, he and [Ms A] ceased contact and they have not been in contact again.
The Tribunal finds that the applicant’s family and [Ms A]’s family did not become aware of their relationship or its nature. This is because, for the reasons explained above, including the Tribunal’s concerns about the credibility of various aspects of the applicant’s evidence and the lack of independent supporting evidence, the Tribunal does not accept most of the applicant’s evidence about what happened as a result of the families finding out about the relationship after [Ms A] left Lahore.
For the reasons set out above, the Tribunal does not accept that [Ms A] told the applicant she wanted them to run away together or that the applicant said he would speak to his parents about marriage, or that he did so. The Tribunal does not accept that soon after this, [Ms A]’s mother found her phone and discovered the relationship and told [Ms A]’s father. The Tribunal does not accept that [Ms A]’s father beat [Ms A] severely. The Tribunal does not accept that [Ms A]’s father spoke to community leaders in his area and they agreed the applicant should be punished. The Tribunal does not accept that the applicant spoke to [Ms A]’s father or that [Ms A]’s father called the applicant and threatened to kill him. The Tribunal does not accept that the applicant then told his parents about the relationship. The Tribunal does not accept that the applicant’s father said he would, or that he in fact did, speak to [Ms A]’s father about a potential marriage in the future. The Tribunal does not accept that the applicant’s father told him [Ms A]’s father had made threats against the applicant.
The Tribunal is prepared to accept that the last time the applicant spoke to [Ms A] was by phone when he was still living at home in Lahore. The Tribunal does not accept that in this conversation, [Ms A] said her parents, or perhaps her mother, were aware of the relationship and she was afraid of being killed or that her family would kill the applicant too, and that she and the applicant should escape. The Tribunal does not accept that after this final conversation with [Ms A], the applicant had a phone conversation with [Ms A]’s father who said [Ms A] was ‘gone’ because of what she did and the applicant would be next.
The Tribunal does not accept that a few days after the applicant’s father spoke to [Ms A]’s father, when the applicant was not at home, armed gunmen fired bullets at the applicant’s family home, came inside, demanded the applicant be handed over and said they would not harm anyone else. The Tribunal does not accept that the applicant’s family members who were home at the time refused and the gunmen left, vowing to continue to seek revenge.
As the Tribunal does not accept that these claimed events occurred, it follows that it does not accept that the next day, the applicant’s father and uncle, or the applicant, went to the local police station to report the incident. The Tribunal does not accept that the police refused to register the case because they were scared of the Pathans or for any other reason, or that they told the applicant it would be better if he relocated to save his life. The Tribunal does not accept that the applicant’s father made an application to the CCPO when he was not satisfied with the police response or for any other reason. As the Tribunal does not accept that the claimed events occurred, it follows that the Tribunal does not accept there are documents supporting the occurrence of the events or that the applicant has asked his family for assistance obtaining copies of these documents from the authorities in Pakistan.
As the Tribunal does not accept that the claimed events occurred, and in light of the Tribunal’s concerns about the credibility of aspects of the applicant’s evidence as set out above, the Tribunal does not accept that the day after the shooting the applicant’s parents sent him away to his aunt’s house in Toba Tek Singh for his safety and the applicant changed his phone number and tried to disappear. The Tribunal does not accept that he stayed there for about 14 days. The Tribunal does not accept that while in Toba Tek Singh, [Ms A]’s father managed to trace the applicant and call him on the phone and told the applicant that [Ms A] had been murdered for shaming the family and the same would happen to the applicant. The Tribunal does not accept that the applicant had spoken to [Ms A] two days before this phone call and this was the last time he spoke to her. The Tribunal also does not accept that while in Toba Tek Singh the applicant received threatening phone calls from various people, including [Ms A]’s father, saying they knew where he was but not mentioning [Ms A]’s death.
The Tribunal does not accept that as a result of the threat made by [Ms A]’s father, or for any other reason, the applicant’s father then moved the applicant to stay in Karachi. The Tribunal does not accept that after being in Karachi for a few days, the applicant started hearing rumours about people asking about him. The Tribunal does not accept that a few days later, while collecting food, the applicant saw [Ms A]’s father and brother walking through the streets, stopping people and showing them a phone of the applicant and [Ms A] and asking about the applicant’s whereabouts. The Tribunal does not accept that they were accompanied by other armed gunmen in a [car]. The Tribunal does not accept that while in the market, the applicant saw gunmen with beards walking around and although he did not know what [Ms A]’s father looked like he was afraid that these people might include [Ms A]’s father and they were looking for him. The Tribunal also does not accept that while in the market he saw Pashtun men from a distance who he thought might be [Ms A]’s father and brother who were showing people a piece of paper and he was afraid. The Tribunal accepts that the applicant does not know what [Ms A]’s father and brother look like and does not accept that they came to Karachi searching for him. The Tribunal does not accept that the claimed incident in Karachi happened or that the applicant then fled Karachi on the instructions of his father.

The Tribunal does not accept that when the applicant realised he was being hunted he called his father who told him to deactivate his social media, change his SIM card and leave Karachi. The Tribunal does not accept that the applicant’s father tried to report the threats to the police again and that the police again refused to register the complaint due to their fear of the Pathans or for any other reason. The Tribunal also does not accept that the police told the applicant’s father that [Ms A]’s father and brother were connected to the Taliban or another powerful terrorist group.
The Tribunal does not accept that after leaving Karachi, the applicant stayed with his father, uncle and the visa agent in Rahim Yar Khan for over 20 days until he departed Pakistan or that the applicant travelled directly from Karachi to Lahore for less than one day and then departed with his father. The Tribunal accepts that the applicant was in Lahore before departing Pakistan.
The Tribunal accepts that the applicant’s father has health problems, however as the Tribunal does not accept the applicant’s claims about the threats made to him by [Ms A]’s family, the Tribunal does not accept that stress related to these events is the reason the applicant’s father suffered a stroke and came to Australia for medical treatment. The Tribunal accepts the applicant’s father came to Australia for medical treatment and that the applicant accompanied him as a support person in accordance with his visa. The Tribunal does not accept that the applicant’s father paid immigration officials at the airport to facilitate their departure and finds they departed legally, as indicated in the applicant’s protection visa application form. The Tribunal does not accept that the applicant accompanied his father to Australia to save his own life.
As the Tribunal does not accept that the claimed events occurred, it follows that the Tribunal does not accept that during Eid, some people connected to [Ms A]’s family came back to the applicant’s old address asking about him.
As the Tribunal does not accept that the claimed events occurred, it does not accept that any difficulties the applicant may have in his relationship with his family are due to those events. The Tribunal accepts that the applicant’s immediate family have wound down the family’s businesses in Pakistan and they have lived outside Pakistan for a number of years and are currently in [Country 2], but the Tribunal does not accept they have done this due to fears for their safety from [Ms A]’s family as the Tribunal does not accept that any threats have ever been made to the applicant or his family by [Ms A]’s family or people associated with them.
Does the applicant meet the refugee criterion?
The applicant claims that if he returns to Pakistan he will be harmed and killed by [Ms A]’s family or people connected to them in an honour killing because he dishonoured or shamed [Ms A] and her family by having a relationship with her. He has not claimed there are any other reasons why he fears harm if he returns to Pakistan.
The Tribunal has considered the applicant’s claims and evidence above. The Tribunal has found that the applicant had a relationship with a girl called [Ms A] which lasted for less than one year and was mostly conducted over the phone and by messages. The Tribunal has found that the applicant did not see [Ms A] again after she left her sister’s house in Lahore. The Tribunal has found that the applicant lost touch with [Ms A] before he came to Australia in July 2017 and that he has not been in touch with her since that time. The Tribunal has also found that their families were not aware of the relationship or its nature. For the reasons explained above, the Tribunal does not accept that [Ms A] was killed in an honour killing, or that the applicant was told that [Ms A] had been killed in an honour killing or for any other reason, or that [Ms A]’s family threatened to kill or harm the applicant. In light of this, the Tribunal does not accept the applicant’s claim that he will be harmed or killed by [Ms A]’s family or people connected to them in an honour killing or for any other reason if he returns to Pakistan in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not face a real chance of serious harm arising from these circumstances.
The applicant also claimed in the interview with the delegate that he feared being charged for engaging in a sexual relationship with [Ms A] because they were not married. The Tribunal has found above that neither the applicant’s family nor [Ms A]’s family were aware of the relationship or its nature. Further, the applicant did not raise this concern again in the Tribunal hearing or in his written submissions. On the basis of the evidence before it, the Tribunal finds that the chance of the applicant being charged by the Pakistani authorities for engaging in a brief sexual relationship with his girlfriend in around 2017 to be remote. Therefore, the Tribunal finds that the applicant would not face a real chance of serious harm arising from these circumstances if he returned to Pakistan in the reasonably foreseeable future.
In the applicant’s pre-hearing submissions, it is submitted that there is a real chance the applicant will not survive in Pakistan because his family has left Pakistan and he has no one there to support him so he is more vulnerable. This submission is made in the context of the applicant’s claim that he will face harm from [Ms A]’s family which, for the reasons explained above, the Tribunal does not accept. Therefore, the Tribunal does not accept this submission that the applicant will not survive in Pakistan. Therefore, the Tribunal finds that the applicant would not face a real chance of serious harm arising from these circumstances if he returned to Pakistan in the reasonably foreseeable future.
For completeness, the Tribunal accepts that the applicant’s family circumstances have changed since he was last in Pakistan and that his parents and siblings are not currently residing there, although it does not accept the applicant’s claims about why this is the case. The Tribunal finds that the applicant is an adult man with skills, he has close relatives in Pakistan, his family still owns property in Pakistan including property from which it derives an income and on this basis the Tribunal finds that the applicant would have access to family support if he returned to Pakistan and on this basis, and with his skills, he would be able to subsist. The fact that the applicant is now married does not affect the Tribunal’s findings. Therefore, the Tribunal finds that the applicant would not face a real chance of serious harm arising from these circumstances if he returned to Pakistan in the reasonably foreseeable future.
In light of the Tribunal’s findings that the applicant does not face a real chance of becoming the victim of an honour killing, the Tribunal finds the written submissions and country information he has provided about honour killings in Pakistan, state protection and relocation is not relevant and does not accept them.
The Tribunal notes the section in the applicant’s pre-hearing submissions about credibility in the context of a critique of the delegate’s reasoning and findings. As the Tribunal is undertaking merits review and making a new decision in the applicant’s case, it finds these submissions are not relevant and therefore does not accept them.
Taking into account the findings set out above and the country information referred to in this decision, and having considered the applicant’s claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant returns to Pakistan now or in the reasonably foreseeable future that he faces a real chance of serious harm for any reason set out in s 5J(1)(a) of the Act, or for any other reason.
Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the Act, or for any other reason. As the Tribunal is not satisfied the applicant has a well-founded fear of persecution, it is not satisfied that the applicant meets the definition of refugee in s 5H(1). As the applicant does not meet the definition in s 5H(1), the Tribunal is not satisfied he is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Does the applicant meet the complementary protection criterion?
As the Tribunal has found that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, it has considered whether the applicant meets the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa).

100. As the ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion,[10] for the same reasons as those set out above, the Tribunal finds that the applicant does not face a real risk of significant harm for any reason. Therefore, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
[10] MIAC v SZQRB [2013] FCAFC 33
Conclusion
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). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION

104. The Tribunal affirms the decision not to grant the applicant a protection visa.
Rachel Da Costa
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.
…

[2024] AATA 4432

26 September 2024

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

Statutory Construction