1922270 (Refugee)
[2025] ARTA 776
•24 March 2025
1922270 (REFUGEE) [2025] ARTA 776 (24 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 1922270
Tribunal:General Member S. Zelinka
Date:24 March 2025
Place:Sydney
Decision:The Tribunal affirms the decisions under review.
Statement made on 24 March 2025 at 10:50am
CATCHWORDS
REFUGEE – protection visa – Pakistan – political opinion – former Pakistan Muslim League Nawaz Youth Wing member – murder accusation – physical assault – fear of killing – attempted kidnapping – multiple return visits to Pakistan – passport renewal – internal relocation – state protection – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2CASES
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 July 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The applicants who claim to be nationals of Pakistan applied for the visas on 3 December 2018. The delegate refused to grant the visas on the basis that there was no real chance or risk that either applicant would face serious or significant harm if they returned to Pakistan.
The applicants appeared before the Tribunal on 21 February 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
The applicants are husband and wife who were married in Pakistan in April 2013 in their home state of Punjab. They are now aged [ages] respectively. The applicant husband was living and working in [City 1], x [in Country 1], prior to the wedding and returned to [City 1] alone after a four-month stay in Pakistan. He continued to live and work in [City 1] for the next four years although he made a number of trips back to Pakistan. The applicant husband was on his own in [Country 1] until April 2017 when he brought his wife to join him. They lived there together until she became frightened by several criminal incidents and they departed [Country 1] in October 2018, returning briefly to Pakistan before arriving in Australia [in] November 2018.
The applicants have made claims about harm feared in [Country 1]. However, as the applicants neither want to, nor are entitled to, return on a permanent basis to [Country 1], the Tribunal does not set out those claims in this decision. It will confine itself to claims about Pakistan. (See paragraph 48.)
Initial claims
The first named applicant – the husband (hereafter called simply the applicant) – set out some claims as answers to the questions in the Protection Visa Application form. They referred to harm feared in both [Country 1] and Pakistan, but only the latter are reproduced here. He said he left Pakistan because of ‘imminent danger’ to his life as he had been attacked by ‘unknown individuals’ who tried to kidnap him but fortunately he escaped with minor injuries. He said he was continuously receiving threats from the Pakistan Muslim League Nawaz (PLMN) Youth Wing who informed his they would do everything in their power to exterminate him. He attempted to relocate to Karachi but ‘the news later spread and he experienced the same maltreatment from PLMN Youth Wing’ which has members across the country.
The applicant expanded on his claims in a statutory declaration dated 22 November 2018. He stated that whilst living in Pakistan he was a member of the PMLN having joined in April 2006. He became a youth mentor, responsible for recruiting other youth members and raising any concerns with the leader of the youth wing, [Leader A]. During a public meeting in the lead-up to the 2008 elections, the applicant noticed a security officer manhandling some youth members out of the hall – possibly about 15 in all. The applicant saw them being asked to pay or stand accused of being spies or informants. Those who could not pay were taken to a secret location where the applicant asserts they were tortured and molested.
The applicant was appalled that his party could act in this fashion; he had also heard stories of other sorts of corruption among the leadership. He went to the office and tendered his resignation to [Leader A] who became very angry. The applicant did not react to this anger. Shortly afterwards, he started receiving death threats from party members, especially youth wing members. He said that the messages said things like “You’ve betrayed our trust and you can’t go scot free” and “We would do anything to set an example”.
In July 2009 he was ‘physically attacked’ by individuals who were trying to kidnap him. He escaped with a minor wound to his forehead. He reported this to the police but they advised him to go to hospital. He decided to leave Pakistan and seek protection in [Country 1]. He was legally allowed to stay and work in [Country 1]; he started his own business there. There were local problems in [Country 1] from those who said they didn’t want foreigners in their country. However, things settled to the extent that he decided to bring his wife to join him which she did in April 2017. However, they encountered problems again which distressed his wife. After an incident where she was robbed in August 2018, they departed [Country 1]. He concluded that he could not live in Pakistan permanently as he was told that PLMN people are constantly asking his whereabouts.
Departmental interview
The applicant and his wife were interviewed by a Departmental officer on 26 June 2019 commencing at 9.35 and concluding 10.45 am. The delegate made it clear at the beginning of the interview that it was the obligation of the applicant to put forward all the information he felt relevant and to make out his claims.
The delegate asked when the applicant had originally left Pakistan and was told it was in September 2010. The applicant agreed that he returned to Pakistan for a four month period in 2013 which was when his marriage took place. During this time they stayed at their parents’ homes; they travelled to Karachi for about three weeks, and then they went to Lahore. The applicant returned alone to [Country 1] leaving his wife in Pakistan.
The delegate put it to the applicant that his passport indicated that he had made many trips to Pakistan – perhaps 15 – in the period between 2013 and 2018. The delegate put it that this was not consistent with a well-founded fear of harm in Pakistan. The applicant replied that he returned to Pakistan to see his wife and parents and to attend to business. He stayed either at his parent’s home or that of his parent-in-law. He agreed that he would catch up with friends. When asked if he experienced problems, he said that he did, and mentioned the attack in 2009. The delegate said he was interested in the period between 2013 and 2018.
The applicant said he was attacked twice between 2013 and 2018. The first time was in April 2013, after his wedding. He was still in his home town. Four people on bikes carrying knives approached him about nine or ten at night in the local markets very close to his home. He felt a knife at his back and when he grabbed it, he cut his hand which needed stitches. He went to the police but did not get a First Incident Report (FIR).
The second attack occurred in March 2018 when he was playing five-a-side cricket with some friends. A group of men approached them saying “Where is the guy who came from [Country 1]?” They tried to grab him but his friends prevented it and they all left.
The applicant also referred to two earlier attacks that had occurred before he went to [Country 1]. The first was in 2009: that was the first time that he had been physically harmed and he had referred to it in his statement (see paragraph 16 above). In January 2010 he was again attacked by five or six people as he sat in the marketplace with two friends. He and his friends got away but he bears a scar on his knee as a result of that encounter. He said he knew the people but did not elaborate. The delegate noted that he did not leave Pakistan until nine months after this incident. He said he was caught up in a matter when a person had made a complaint about a mobile phone that the applicant had either sold or serviced: the police called him in for interviews a few times. He doesn’t know what happened to this case as he left Pakistan and has not heard any more about it.
The delegate turned to politics and the applicant said he had joined the PLMN of which [name] was the leader. The applicant’s role was to help set up chairs, banners etc. for meetings; he also donated money to the party. He was not following any family tradition – his father did not support the PLMN. The applicant said he quit the party in 2009 having seen things from an insider’s perspective which were not visible to a person outside the party. He resigned by telling [Leader A], the leader of the youth wing, that he wished to resign. [Leader A] was upset and angry.
The delegate said that his information indicated that political violence in Pakistan had decreased significantly since 2013. He also put it to the applicant that the PLMN had lost power at the last elections. Given these factors, and given that the applicant had fallen out with the party in 2009 – ten years ago – he asked why the applicant feared harm in Pakistan.
The applicant replied that ‘they are powerful people’ and he himself is not powerful. He could not relocate to another Pakistani city as he would be in fear anywhere he went.
The delegate also spoke to the applicant’s wife and she said that her father says that some people from the party were coming to ask about her husband’s whereabouts. Apart from this comment, her testimony was confined to her own claim that she feared her infertility might result in pressure on her husband to divorce her and then she would be without anyone to protect her.
Tribunal hearing
Before the Tribunal hearing on 21 February 2025, the applicant sent a number of submissions. Apart from police character certificates from Pakistan, [Country 1] and Australia, these are all business documents relating to leasing, tenancy and tax matters and are not relevant to this case. The applicant and his wife both attended the hearing.
The Tribunal began by asking the applicant what harm he feared if he returned to Pakistan seven years after he was last there, and 15 years since he first departed. He said he feared returning because he had faced serious threats to his life: so serious that in 2010 he fled without even having enough time to get his documents in order. His problems were with the political party PML-N and they are still in power today.
He said that in 2010 he was smuggled into [Country 1] by traders who must have supplied a false passport. The Tribunal noted that it had examined the passports he had presented and was satisfied that they were genuine Pakistani ones, in chronological order, issued at the Pakistani Consulate General in [City 1]. The Tribunal asked if he had any difficulties departing Pakistan and he said he did not. The Tribunal asked how he first obtained a passport from the Pakistani authorities in [Country 1]. He said that after arriving in [Country 1], the traders with whom he was travelling had not returned his passport to him, so he went to the Consulate and told them he had lost his passport. He showed them a photocopy of his original one obtained in Pakistan. The Consulate then issued him a new one dated [in] 2011, noting that it replaced an original issued in Pakistan [in] 2008 which was reported lost. This passport was in turn replaced five months later after the one issued in May was damaged by having coffee spilled all over it; the replacement dated [later in] 2011 was in use until it was replaced by the current passport [in] 2015.
The Tribunal said it was satisfied that he travelled to [Country 1] on his own genuine passport which had subsequently been taken by the traders with whom he was travelling. They were men engaged in import/export whom the applicant had met in Pakistan and who he thought would assist him in getting into business in [Country 1]. They have no further role in the applicant’s narrative.
Returning to the issue of why the applicant left Pakistan, he said that he started complaining about corruption in the PLMN in 2008 and then ‘they’ started attacking him. In the following years, he tried ‘community involvement’ to solve the question of this enmity against him. The Tribunal established that this meant that the applicant’s parents and elders talked to ‘them’ (presumably the PLMN) to ‘settle things down’ so that he could continue his return visits to his hometown. This, he said, gave him some sort of flexibility.
The applicant’s passports, all of which he submitted, show that he returned to Pakistan in March 2013 and married the following month. He stayed nearly five months, departing at the end of July. He did not return to Pakistan until a year later (July 2014) and on this occasion stayed for three months. Three months further on (January 2015) the applicant went back to Pakistan. His wife had remained in Pakistan since the wedding.
Things changed in 2015 and thereafter he made only brief trips to Pakistan. The key event was the assassination of the local PLMN leader [Leader B and other people associated with the party]. The applicant claimed that [this leader’s Relative A], who took over the party leadership, believed that the applicant was involved in the assassination which took place [in] May 2015. This [Relative A] believed that not only the applicant but also his close friend [Friend A] were both involved: before 2008, the applicant and [Friend A] were both close to [one of the victims] but after the former two started making allegations of corruption against the PLMN, [Leader A] sided with [Leader B].
The Tribunal put it to the applicant that he was not in Pakistan at the time of this assassination and therefore it was difficult to believe that he could be accused of this crime. The applicant said he was there very shortly before the assassination – he believed that he left Pakistan [earlier in] May 2015 to return to [Country 1] – and the accusers believed that he had planned the assassination, leaving someone else to carry it out.
The Tribunal asked what happened after the assassination. The applicant said that the police arrested a number of people, but some of these people died in ‘a police encounter’, which the Tribunal understands is the term used in Pakistan to describe deaths in custody or deaths at the hands of the police. In any case, there was no trial and no-one was ever sentenced or punished for the assassinations, according to the applicant. [Leader B’s] [Relative A] still believes that the applicant is responsible and will still seek revenge.
The Tribunal asked if he was ever questioned by the police, or whether there were any summonses left at his home instructing him to contact the police. He said that ‘they’ (presumably [Leader B’s] [Relative A] or those connected to him) used the police to see if he, the applicant, was at home – that is, the police called around to his father’s house twice to ask his whereabouts. The police also asked at the home of his in-laws. However, no warrants or other documentation were left for him. The Tribunal asked if the applicant’s parents asked the police why they wanted to speak to their son and the applicant said that they did and the police told them that the applicant was suspected of the assassination.
The applicant said that following this assassination, he made only very short trips to Pakistan and tried to hide himself. He has had to keep himself alive since 2008 and this has led to a state of anxiety for which he now takes medication. He said he has been targeted since 2008 and that he is their main target since 2015. He also said that he tried using his community to help him and make it safe for him to visit his parents.
The applicant said that ‘everyone’ knows that the applicant has been accused of the assassination: ‘they’ publicly announced that the applicant should be killed. The Tribunal asked for this to be explained more fully and as the Tribunal understands it, ‘publicly’ just means that the news spread somehow – there was no sort of announcement or any official statement. Again as the Tribunal understands it, the applicant’s parents and some respected people such as the imam approached people who were known to have access to [Leader B’s] [Relative A] and other PLMN people and tried to explain that the applicant had nothing to do with the assassination and they would be grateful if he could return to his hometown without being attacked. Apparently [Leader B’s] people were unmoved by these approaches and were adamant that they must take revenge on the applicant.
The Tribunal put it to the applicant that this was the first time he mentioned he was accused of assassination. The Tribunal asked why he had not mentioned it before – on his PVA, in his statutory declaration or at the departmental interview. The Tribunal put it that this was the most serious threat he faced and yet he had not mentioned it, spending more time talking about harm (such as robberies) that had befallen him in [Country 1]. The applicant said that the departmental interview was very short – only about 20 minutes – and the delegate asked him questions about [Country 1]. The Tribunal put it to him that the delegate specifically told him it was his (the applicant’s) responsibility to put forward all relevant claims.
The Tribunal put it to the applicant that he had had the opportunity to put this information to it prior to the hearing – in fact, the correspondence from the Tribunal specifically asked for any further information. He said that the migration agent he used initially advised him to wait for the Tribunal hearing. He said he had to educate himself about Tribunal processes; and repeated that he needed medication for anxiety.
The applicant returned to his initial problems which he said began in 2008. He claimed he was then ‘on the run’ until his departure for [Country 1] in September 2010. The Tribunal said it found it hard to accept that he was on the run for two years: the applicant said it may have been a year or eighteen months. He said he couldn’t run his business after 2008 and although he went home at night, he kept a low profile during the day. Then he met the import/export traders and made an instant decision to go with them to [Country 1]. When asked why he had not thought of relocating to another city in Pakistan rather than to [Country 1], he said that he was young at the time and he was not familiar any other cities in Pakistan. He was running from a political party which is a nation-wide party. He said that later he and his wife tried to relocate to Karachi for 15 months but it was too difficult and they got robbed. He said that when he made his brief visits to Pakistan after 2015 he stayed in hotels and his wife and his parents would come to see him, or they met at friends’ houses. In April 2017 he took his wife from Pakistan to live with him in [Country 1].
The Tribunal put it to the applicant that his resignation from the party had not represented any threat to it. It was well-entrenched and formed the provincial government and any accusations he made against the party at the time were minor. The applicant said that at the time he didn’t consider that – he just wanted to go away. However, his fear remains: the same PLMN are still around in his town. They will still target him. Since 2015, his problems have increased because they want revenge for his alleged role in killing the politician.
The Tribunal said that, in summary, his claims are that he fell out with the PLMN in 2008-9, and resigned saying that he had seen corrupt and criminal behaviour. He was attacked in July 2009 and in January 2010 and left Pakistan in September 2010. He returned to Pakistan for a trip of nearly five months ([March]-[July]) in 2013 and during that time he married his wife. He returned twice more before 2015. During his trip in 2015 a PLMN leader was assassinated and the applicant claims that the dead man’s [Relative A] believes that the applicant was responsible for the assassination and that revenge must be taken against him. Since 2015, he has made six further visits to Pakistan which he claims are very short trips. He states that the PLMN is still in power and that he is still their main target. He cannot relocate elsewhere in the country as the PLMN is a national party.
He agreed that was the outline of his claims and said he was very scared of going back to Pakistan. The Tribunal put it to him that there may be no basis to his belief that he is accused of responsibility for the assassination in 2015; it may be a story. He said that he was very good at business in Pakistan, in [Country 1], and currently in Australia: he has no reason to be here just for economic reasons. He is here in Australia because he cannot go back to Pakistan or he will be killed. The Tribunal put it to him that the fact that he had made so many trips back to Pakistan since he first feared harm in 2009 undercut his claim to having a well-founded fear of harm in Pakistan. He repeated that his trips since 2015 have been very brief and that he was at pains to keep a low profile. He has no social media presence.
Applicant wife
The Tribunal then spoke to the applicant wife. She said her claim was that if anything happened to her husband because of his political enemies, she would be alone, and what would happen to her? Therefore she was relying on his claims.
She said that ‘they’ went twice to his parents’ house in Pakistan and two or three times to her parents’ house to enquire about her husband. When the Tribunal asked who ‘they’ referred to, she said she did not know their identities although she did recognise that one of them came on more than one occasion. Her father told her that the people belonged to the PLMN party and said that they were not good people. He grumbled that she had married the applicant and she believes that if anything happened to her husband because of politics, her family would not help her.
She said that after her marriage in 2013 she stayed mainly at her parents’ home she visited her in-laws. On three occasions when her husband was visiting Pakistan, he was bleeding when he came to see her. Once he said he had been punched; another time he had a big bruise on his knee. Once he got stitches. He just said it was ‘the same people’, meaning the PLMN. However, as she is not very well, her husband does not involve her in all his problems.
She had one further claim. This was that despite being married since 2013, she has not had a child. This is not only disappointing for her but it also transgresses traditional Pakistani expectations. She has tried to remedy the situation, seeking advice in Australia from fertility clinics but it appears that her condition cannot be changed. She stated that she was very worried that if they were to return to Pakistan, her husband might be pressured by his family to divorce her and marry another wife with whom to have children. She stated that this would make her a divorced infertile women in Pakistan and they are treated badly by society. She would have no support except possibly her parents who may not be in a position to help.
REASONS AND FINDINGS
The issue in this case is whether the applicants are persons in respect of whom Australia owes protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Nationality
On the basis of the passports of the two applicants, the Tribunal finds that each is a national of Pakistan and that Pakistan is the receiving country in this case. The Tribunal notes that the applicant husband was permitted to live and work legally in [Country 1] for several years on [a temporary basis] but this is now expired and is inoperative. (He has submitted documentation on this point). The applicant wife was permitted to reside legally in [Country 1] with her husband which she did between 2017 and 2018. However, neither applicant is entitled to reside in [Country 1] and it is not the receiving country.
Credibility
The Tribunal notes that the number of incidents of harm the applicant alleges have befallen him have increased over the course of the protection visa process. Initially he stated that he had left Pakistan in 2010 because some individuals tried to kidnap him, although he escaped with minor injuries. At the departmental interview, he referred to two attacks before his departure – one in 2009 and another in January 2010 – and then talked about two attacks in April 2013 and March 2018. In none of these four attacks did he claim to have been seriously harmed, although on one occasion a cut required stitches. His language, however, indicated something more serious: ‘I left Pakistan because of imminent danger’, “I was continuously receiving threats’, ‘I have had to keep myself alive since 2008’, etc. The cause of all these incidents was a falling out in 2008-2009 between the applicant and a political party, the PLMN, from which he resigned.
The Tribunal further notes that an entirely new claim was presented at the hearing, over six years since he lodged his PVA and his statutory declaration of claims. This claim is that he is accused of planning the assassination of a Punjabi politician: an incident in 2015 which the politician [and people associated with the party] all died. The applicant claims that the [Relative A] of the dead politician (himself a politician) has made it known that the applicant is responsible and has sworn revenge. This claim appears more serious than his previous ones and should have been uppermost in his mind when he was writing or recounting at interview the details of the harm he feared. The threat was also more recent than those resulting from his adverse encounter with the party in 2009 and should have been more easily remembered occurring only three years before he lodged his PVA. Yet the applicant made no mention of this until the Tribunal hearing and when asked why not, he said that he had insufficient time at the departmental interview (which he said lasted only 20 minutes) and the delegate had asked him about [Country 1]. Neither of these responses matches the objective facts of the interview. The Tribunal has listened to the recording of the interview and finds that it ran from 9.35 until 10.45 am – that is, an hour and ten minutes. It also notes that the delegate expressly told the applicant that information about [Country 1] was not relevant as it was not the receiving country. Furthermore, the delegate made it plain that the onus was on the applicant to provide all relevant claims and information that should be taken into account. The delegate also asked the applicant if he had any more to say before he ended the interview.
The Tribunal concludes from this that the applicant’s story about being blamed for the assassination is unreliable. The applicant would have known about the incident at the centre of his claim: the murdered politician represented his city; the death was publicly reported. The Tribunal has read an account of the assassination in Dawn, the daily English-language national newspaper of Pakistan.[1] The Tribunal expressed concern that the applicant had not previously raised this claim. He did not explain his failure to do so prior to the Tribunal’s hearing. The Tribunal finds that the applicant’s claim is unreliable.
[1] [Source deleted.]
The Tribunal also notes that the applicant’s evidence was not wholly consistent with, and sometimes contradicted, statements he had made before. For example, he claimed initially that he ‘attempted to relocate to Karachi’ to avoid those in the PLMN whom he thought would cause him harm (see paragraph 13) and later claimed that he and his wife ‘tried to relocate to Karachi for 15 months’ (see paragraph 40). The Tribunal finds either these statements to be unreliable. The Tribunal specifically asked the applicant if he tried to relocate within Pakistan before going to [Country 1] in September 2010 and he said he did not: he said he was young and had not had any experience in any other cities in Pakistan other than his own. Instead, he went with the traders to [Country 1]. In relation to relocating with his wife, the Tribunal notes that the longest period he has spent in Pakistan since his marriage was the two and a half-month trip in first quarter of 2016. His marriage trip itself in 2015 was nearly five months long. Hence the applicant’s assertion that he and his wife relocated to Karachi for 15 months cannot be accurate. The Tribunal finds that the applicant’s evidence about the issues above was unreliable.
Also in relation to dates, the Tribunal had put it to the applicant at hearing that his assertion that he was blamed for the assassination lacked credibility because he was not in the country at the time (see paragraph 34). The applicant said that he had left the country only a short time before the murder – [earlier in] May 2015, with the murder occurring [later in] May 2015 – and therefore the accusers believed he had set it up and left it to others to actually carry out. However, the applicant’s passport clearly shows that he left Pakistan on [a day in] March 2015 which is just under three months before the shooting. The Tribunal does not find it plausible that the applicant could be accused of a plot requiring careful timing by persons who were aware that the applicant had departed Pakistan nearly three months previously. The applicant has spoken of his adversaries being aware of his movements – that is the reason he gave for ‘keeping a low profile’ and ‘hiding’. This adds to the Tribunal’s conclusion in paragraph 52 above that the applicant’s evidence about being accused of the assassination and therefore being an ongoing target for revenge is unreliable.
The applicant claimed that he had been ‘on the run’ since his problems with the PLMN began in 2008 and that he could not run his business after that time (see paragraph 40). This contradicts his other evidence that his business was very successful in Pakistan (see paragraph 42); that he was in his hometown going to the marketplace with friends in January 2010 and attending police interviews for a matter relating to his business during 2010 (paragraph 22). The Tribunal finds that the applicant’s evidence about the issues was unreliable.
He also said that fear of harm from his enemies after 2015 ensured that he kept his visits to Pakistan very short, just a few days at a time. However, his passport shows that his first visit back to Pakistan after the assassination – the incident he alleges made him the ‘main target’ of the PLMN – was for a period of two and a half months ([January] – [April] 2016), followed by three further trips that same year although each of those did not exceed two weeks. He made another two short visits to Pakistan in 2018. The Tribunal is of the view that the number of trips and the length of the first one in 2016, and all to his home town, are inconsistent with his claim of a well-founded fear of serious harm in Pakistan.
In reviewing all the above information, the Tribunal finds that the applicant’s evidence about his fear of harm if returned to Pakistan is generally unreliable and that the applicant is not a credible witness.
Incidents of harm
The Tribunal accepts that the applicant became a member of the PLMN party in 2006 and that he was involved in some activities through its youth wing: he mentioned setting up the hall and putting up banners for meetings. The Tribunal accepts that the applicant resigned from the party in 2009. The Tribunal notes that the applicant had some familiarity with the names of local politicians and a party worker in his home town. The Tribunal is not prepared to accept that the four incidents of harm that he described as happening to him in July 2009, January 2010, April 2013 and March 2018 were deliberate attacks on him by members of the PLMN for reason of the applicant’s political opinion – his resignation from the party because of malpractices he claimed to have seen; and later because of his being allegedly accused of complicity in the death of a politician. The applicant never gave evidence that his assailants were PLMN people – he described them initially as ‘unknown individuals’ – and did not claim that they said anything while attacking him that would lead him to the conclusion that they were deliberately attacking him because of his former PLMN affiliations. He has simply asserted that the PLMN were out to get him and has asserted that the incidents where he was harmed were instigated by PLMN for political reasons. The Tribunal does not find on the basis of the applicant’s evidence that he was attacked by people affiliated with or acting on behalf of he PLMN.
The Tribunal is not satisfied that the applicant’s resignation from the PLMN in 2009 resulted in ongoing enmity and intentions on the part of the party not to allow him to go ‘scot free’ (as he said: see paragraph 15). There is no evidence to support his assertion that the four assaults he described were politically motivated nor carried out by persons from the PLMN. In any case, the applicant suffered no serious harm.
The Tribunal has already set out its reservations about the 2015 incident (being accused of assassination) in paragraphs 52 and 53 above. There are other reservations about the story itself, not just the fact that it was presented so belatedly. As the Tribunal noted above, the murder of the politician [and party associates] received wide coverage and yet the applicant did not provide and the Tribunal has not found information following the deaths that indicates that the assassins were still being searched for or that the case remained unsolved. There has been no attempt on the part of Pakistani officialdom to reach the applicant to interview him about this matter. The Tribunal notes that the applicant’s passport was renewed in [2015], five months after the assassination, and there are no claims, nor does the evidence suggest, that the applicant had any difficulty with this renewal process. The Tribunal is satisfied that the applicant was not regarded adversely by the Pakistani authorities at that time or at any time since.
The only ‘official’ connection between the assassination and the applicant has been his assertion that a policeman came to his parent’s house and mentioned that the applicant was a suspect. The applicant did not claim that the police returned after that visit to discuss the assassination. The applicant did not explain why, if a policeman expressed such a serious accusation, he would not leave documentation requiring the applicant to appear for questioning; or even put out a search warrant for him, including a notice to ports and airports. The applicant has returned to his hometown seven times since the assassination in 2015, including for a period of two and a half months early the following year (2016). The applicant asserts that the PLMN was able to influence the police and the Tribunal is of the view that if the party was so sure that the applicant was complicit in this murder, then the police would pursue the applicant, at least to the extent of questioning him. This has not happened. The Tribunal does not accept the applicant’s claim that a policeman came to his parent’s house and mentioned that he was a suspect.
The applicant stressed the power of the PLMN as compared to his own individual weakness. The Tribunal notes that the PLMN is strong in the applicant’s city: [one local] district had a majority of PLMN parliamentarians in the 2008-2013 Punjab Provincial Assembly and no-one but PLMN representatives during the next two terms. It is only in the recent provincial elections in 2024 that other parties have some representation, although half of the parliamentarians are still PLMN. [2] There is no plausible reason that the PLMN was threatened by the applicant’s resignation, even if he had observed malpractices: he did not make these public either at the time nor at any point since.
[2] Members’ Directory, Provincial Assembly of the Punjab, at pap.gov.pk
The Tribunal gives weight to the evidence in the applicant’s passports that despite claiming a well-founded fear of serious harm for political reasons involving activities in 2009 and 2015, he returned to Pakistan on [multiple] occasions until his final departure in 2018. His first return visit in 2013 lasted nearly five months and he made two visits of a month and three weeks in 2014. In early 2015 he returned for six weeks and despite his new and heightened fear he returned in early 2016 for two and a half months, followed by another [number] short visits of no more than two weeks a time. The Tribunal finds that this history of returning to Pakistan does not support the applicant’s claim of well-founded fear of persecution if returned to Pakistan.
Overall assessment
The Tribunal does not find that the applicant was assaulted on four occasions between 2009 and 2018 because he was disillusioned with, and resigned from, the PLMN in 2009, having told a youth leader there that he had observed malpractices by party officials. The Tribunal does not accept that the applicant suffered harm for those reasons. It does not find that he is implicated in a political assassination in 2015. The Tribunal does not find that there is a real chance that serious harm will befall the applicant in the reasonably foreseeable future for reason of any past political activity or for reason of an actual or imputed political opinion.
On all the evidence before it, the Tribunal finds that there is no real chance that serious harm amounting to persecution will befall the applicant if he were to return to Pakistan. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in s 5J(1)(a) of the Act or for any other reason. The Tribunal finds that he does not meet the definition of refugee set out in s 5 H(1) of the Act.
Applicant’s wife
The applicant’s wife has claimed that if her husband was taken away (detained or killed) from her then she would have no-one to protect her. Any harm she fears is only as a result of harm that would befall her husband. As the Tribunal has found that there is no real chance that her husband, if he returned to Pakistan, would be persecuted for one or more of the reasons set out in s 5J(1)(a) of the Act, then it follows that there is no real chance that she would suffer serious harm as a consequence.
The applicant wife also advanced her own claim that her husband might succumb to pressure from his family to divorce her for her infertility and that she would become a divorced, infertile woman in Pakistan who would be unprotected and subject to harm for that reason. Even if the Tribunal allows for the sake of argument that divorced infertile women constitute a particular social group in Pakistan, and can suffer harm for membership of that group, the facts remain that she has been married to her husband for 12 years and he relocated her to [Country 1] and then to Australia to be with him. He has demonstrated no intention of leaving her. Indeed, he has stated consistently at both the departmental interview and the Tribunal hearing that he would not leave her or divorce her. He understands the problem of her infertility and has been supportive of her over the years while she investigated the problem. He is an adult man who has not been dependent on his parents since he left home in 2010. He cannot be made to divorce his wife, even if there were any evidence to suggest that his family may bring pressure on him to do so. On the evidence before the Tribunal, there is no real chance that the applicant wife will in future become abandoned and without the means to support herself.
The Tribunal does not find that there is a real chance that serious harm will befall the applicant wife for any of the reasons set out in s 5H(1)(a) of the Act or for any other reason in the reasonably foreseeable future. It does not find that the applicant wife meets the definition of refugee in s 5H(1).
Having concluded that neither applicant meets the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
Complementary protection
The ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion.[3] The Tribunal must be satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of removing the applicants from Australia to Pakistan, they face significant harm.
[3] MIAC v SZQRB [2013] FCAFC 33
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decisions not to grant the applicant protection visas.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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.
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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.
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36 Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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