1929939 (Refugee)

[2024] ARTA 665

1929939 (REFUGEE) [2024] ARTA 665 (15 NOVEMBER 2024)

DECISION AND  

REASONS FOR DECISION

Respondent:  Minister for Home Affairs

Tribunal Number:  1929939

Tribunal:General Member R Mikhail

Date:15 November 2024

Place:Sydney

Decision:The Tribunal affirms the decision under review.

Statement made on 15 November 2024 at 3:20pm

CATCHWORDS

REFUGEE – protection visa – Pakistan – race – Balti ethnicity – religion – Shia Islam – political opinion – opposition to the Taliban – Shia Imamia Student Organisation activist – returnee from a western country – mass murder incident witness – fear of killing – kidnapping – mental health issues – organising Shia religious activities – 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, 424AA, 499
Migration Regulations 1994, Schedule 2

CASES

MIAC v SZQRB (2013) 210 FCR 505

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF REASONS

APPLICATION FOR REVIEW

1. The applicant, who claims to be a citizen of Pakistan, last arrived in Australia [in] July 2013 on a student visa.

2. On 11 November 2016 the applicant applied for a permanent protection visa.

3. On 25 September 2019 a delegate of the Minister for Home Affairs refused the grant of the visa under s 65 of the Migration Act 1958 (Cth) (the Act).

4. This is an application for review of that decision.

5. On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.

6. The issue in this case is whether the applicant meets the refugee criterion and, if not, whether he is entitled to complementary protection. The relevant law and mandatory considerations are set out in the attachments.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   APPLICANT’S CLAIMS FOR PROTECTION AND EVIDENCE

   Before the Department

8. The applicant’s claims, as outlined in his application for protection, can be summarised as follows:

   ·He was born in [specified year] in Skardu, Gilgit Baltistan.

   ·He is of Balti ethnicity and is a Shia Muslim.

   ·His parents and [specified family members] reside in Pakistan.

   ·He left Pakistan because he was a victim of an attack by the Taliban because he is a Shia Muslim and witnessed a mass murder incident on a bus by Al Qaida.

   ·He lodged two police reports relating to the above incidents and it was because of these reports that he was targeted by Muslim extremists.

   ·He fears he will be arrested and possibly killed by the Taliban.

   ·His family have received a few warning/threat certificates from the police in Skardu to warn them about the Muslim extremist group.

9. In support of his claims, the applicant provided the following documents with his application for protection:

   i.Copies of two First Information Police Reports (FIR) dated [in] March 2012 and [in] August 2012 and their unaccredited translations.

   ii.A copy of a police warning certificate issued by the [specified] Superintendent of Police dated [in] February 2013 in respect of the applicant noting he has a ‘high threat’ from terrorist groups, and he was directed to review his security and lesson his social activities.

   iii.A copy of a police warning certificate issued by the [specified] Superintendent of Police dated [in] May 2015 in respect of the applicant who it notes is in a state of ‘high threat apprehension’ by the Taliban because in 2012 the applicant lodged a FIR against them. It noted he should curtail his social activities and not move freely without security.

   iv.A copy of a threat information report dated [in] December 2014 in relation to the applicant by the [Official A] in Skardu noting that, as the applicant is a Shia contractor and businessman, he is at the top of the list of Al Qaida and should be vigilant and keep weapons for self-protection and is not allowed to travel outside Skardu without the permission from the District Administration.

   v.The applicant’s education qualifications and employment records from Pakistan and Australia.

   vi.News reports and country information.

10. On 6 September 2019 the applicant attended an interview with a delegate of the Minister for Home Affairs in relation to his application for protection where he provided further evidence in relation to his claims for protection (PV interview).

11. At the PV interview the applicant provided a copy of a letter dated [in] July 2016 from the [Official B] in Skardu which stated the applicant’s brother, who was abducted in June 2016 from [Town 1], was safely recovered from Waziristan in an army operation.

12. After the PV interview, on 20 September 2019, the applicant provided to the Department of Home Affairs (the Department) a legal submission and further documentary evidence. The legal submissions cited country information and addressed concerns of the delegate that were raised in the PV interview. It also stated that the applicant had a well-founded fear of persecution in Pakistan on the basis of his:

    ·His ethnicity, as Balti.

    ·His religion, as a Shia Muslim who is perceived as contravening fundamental principles of Islam.

    ·His actual and imputed political opinion as an opponent of Sunni extremist groups, particularly the Taliban and the Sepah-e-Sahaba, imputed to him on account of:

    ohis religion as a Shia Muslim.

    ohis elevated profile for being a family member of a well-known businessman.

    ohis past association with Shia Imamia Student Organisation.

    oas a returnee from a western country.

    ·His membership of a particular social group as a:

    oreturnee from a western country.

    omember of influential family due to business networks.

13. It noted he feared this harm from the Taliban and other Sunni terrorist groups.

14. Attached to the above submission were:

    i.A statutory declaration from the applicant dated 16 September 2019 addressing concerns raised at the PV interview.

    ii.A medical report from a doctor at [a named medical centre] dated 18 September 2019 in relation to the applicant.

    iii.A copy and accredited translation of a FIR dated [on a day in] March 2012 relating to an incident on [the day in] February 2012.

    iv.A copy and accredited translation of a police report by the [Police Station 1], dated [in] September 2019, in relation to a report by the applicant’s brother reporting that unknown people had approached his house seeking information about the applicant.

15. The delegate refused the grant of the visa on the basis that, due to concerns with the applicant’s evidence, he did not accept the applicant had been involved in any incidents  involving armed men in 2012 and did not accept, as credible, that the applicant lodged the FIRs with the police and that armed groups sent threat letters to his family, nor kidnapped his brother in 2016, nor visited his home on three occasions in 2019.

16. The delegate also noted that there was no information to indicate any groups are targeting Balti and found the applicant would not face a real chance of persecution on this basis. Further, given the applicant’s profile, his previous findings and country information before him, the delegate found the applicant did not have a real chance of persecution on the basis of being a Shia Muslim. The delegate accepted that the applicant had joined the ISO but did not accept he would face a real chance of persecution because of his former association with the ISO. On the basis of country information, the delegate was not satisfied the applicant would face a real chance of persecution from Sunni extremist groups or the Pakistan authorities as a person who would be returning to Pakistan after living in a western country. He also found the applicant’s claims did not give rise to a real risk of harm for the purpose of s 36(2)(aa) of the Act.

    Review application

17. On 22 October 2019 the applicant lodged an application for review of that decision with the AAT. He provided the AAT with a copy of the delegate’s decision record with his application. He was represented in relation to this review.

18. Prior to the AAT hearing, in August 2024, the AAT received the following documents in relation to this application:

    i.A legal submission and attached country information.

    ii.Photos purportedly to be of the applicant’s father’s [business 1s] in Skardu and [another town].

    iii.A letter from the [Community Organisation 1] dated [in] August 2024 in respect of the applicant.

    iv.A letter from the [Community Organisation 2] dated [in] August 2024 in respect of the applicant. It noted it was a charity established by Shia Muslims in [that city].

    v.Confirmation of the applicant’s studies from [University 1] dated 22 August 2024.

    vi.A medical certificate from the [named] Medical Centre in Sydney dated 20 August 2024 in respect of the applicant.

    vii.A statutory declaration dated 23 August 2024 from [Friend A], a friend of the applicant. Attached was a copy of the bio data page of his friend’s Pakistan passport.

    viii.A statutory declaration dated 23 August 2024 from [Friend B], a friend of the applicant. Attached was a copy of the bio data page of his friend’s Pakistan passport.

    ix.A document from an advocate in the [Court 1] dated [in] August 2024, verifying the information that the three FIRs the applicant provided are correct and their cases were under adjudication in a different court of law in Pakistan.

    x.A letter of recommendation dated 18 August 2024 from the [Welfare Organisation 1] in Skardu in respect of the applicant’s father.

    xi.An undated letter from the [Official 1] of the [Division 1] of the Imamia Students Organisation to the applicant expressing their appreciation for his hard work and dedication to the organisation.

    xii.A photo card of the applicant issued by the Imamia Student Organisation [named] Division, noting his title as [Position 1] for the period 2012-2013.

    xiii.A letter from the [named local] Police Department dated [in] July 2024 and addressed to the applicant. It noted that, concerning the prior FIR lodged in [District 1], the recent wave of terrorism and operations by the Pakistan Armed Forces in the North Pakistan, which had increased the risk of targeted killing, and that the applicant was already on the list of targeted people. It also noted the applicant was threatened with death under the FIR and the criminals were charged. It requested that he completely avoid travelling and limit his movements until further written communication.

    xiv.Ownership Certificate in relation to the applicant’s father’s [businesses].

    xv.Photos of the applicant participating in Shia religious activities in Australia.

19. Also provided to the AAT was a new statement from the applicant which can be summarised as follows:

    ·Since the delegate’s decision in September 2019, Pakistan’s security and political security had worsened significantly.

    ·He is a Shia and belongs to a business family. Shias who are perceived as wealthy and educated are targeted by Sunni extremists. 

    ·He continues to be involved in Shia religious activities and will continue to do so in Pakistan.

    ·Since the collapse of Afghanistan in 2020, the activities of the Pakistani Taliban have increased.

    ·Due to his profile as a Shia, who belongs to a business family of Shias and a Shia who has already confronted Sunni extremists, there is a real possibility he will be targeted and harmed. Shias face harm from the Islamic State of Iraq and Syria (ISIS) as well.

    ·He has an opinion against Sunni extremists and will continue to express his opinion if he is returned to Pakistan.

    ·He fears harm throughout Pakistan and does not consider it reasonable for him to relocate due to his Shia identity and health issues.

20. On 30 August 2024 the applicant appeared before the AAT. The hearing was conducted with the assistance of an interpreter in the Urdu and English languages. During the hearing the applicant provided oral evidence in relation to his background and claims for protection. The applicant also brought his friend [Friend B] (who provided the above statutory declaration noted in paragraph 17 (vii) of this decision) as a witness to give evidence. I took oral evidence from [Friend B] during this hearing. This hearing was adjourned.

21. At the end of the above hearing the applicant raised some concerns about the interpreter. I noted to him that he could provide me with written submissions correcting any errors in interpretation prior to the next hearing. I also requested an accredited translation of the FIR dated [in] March 2012. I requested this information be provided by 16 September 2024.

22. The resumed hearing was scheduled on 24 September 2024.

23. On 24 September 2024 prior to the hearing, the applicant provided to the AAT, two accredited translations of the March and August FIRs and letter from [Agency 1] dated 9 September 2024 confirming the applicant’s volunteer service between 2015 and 2017.

24. The hearing was resumed with the assistance of an interpreter in the Urdu and English languages. At the beginning of the resumed hearing the applicant’s representative advised me that the applicant had instructed him that there were no material mistakes in the interpreting in the first hearing.

25. At the resumed hearing I asked the applicant what relevance the letter from [Agency 1] had to his application. The applicant responded that he had mentioned it in his statement, but it had no relevance. I noted that, given this, I may not give it any weight in my assessment, and he said he understood. Given the nature of the letter and that the applicant confirmed it had no relevance to his claims for protection, I have not given it any weight in my assessment.

26. At the conclusion of the resumed hearing, the applicant was given further time to provide any further submissions in response to the concerns I had raised during this hearing and was advised that these submissions were to be provided by close of business on 8 October 2024. On 8 October 2024 the applicant’s representative sought an extension until 14 October 2024, which was granted. On 14 October 2024 the applicant’s representative sought another extension on the basis that they had only received a copy of the hearing recording recently. A further extension was granted until 18 October 2024.

27. On 18 October 2024 the Tribunal received a further statement from the applicant dated 14 October 2024) (October 2024 statement) which reiterated his claims and addressed some of my concerns and a copy of a Pakistan ‘Affidavit’ from a person in Pakistan named [Friend C] who states that the applicant accompanied them in the [District 1] attack on [the day in] February 2012 and a photocopy of the author’s Pakistan national identity card.

    REFUGEE ASSESSMENT

    Health issues

28. As noted, after his PV interview, the applicant provided to the Department, a medical report from his doctor dated 18 September 2019, which stated that the applicant had been suffering from a number of health issues since 2018 including that he had been admitted to hospital in 2018 where he was found to have [specified medical conditions]. It stated he had subsequently been prescribed medication to manage [these] problems. It also noted he had issues with his mental health due to being exposed to significant trauma in Pakistan and other circumstantial factors such as illness, being away from his family, lack of employment and financial stress. It also noted he possibly had [further medical conditions], but these had not been formally assessed. It noted that, given his current [condition] and other undiagnosed illnesses, he needs ongoing management and treatment in Australia.

29. To the AAT, the applicant provided another medical certificate from the applicant’s general practitioner dated 20 August 2024 which stated that he had to be on regular medications due to his [specified medical conditions] that was diagnosed on 29 September 2018. He was also diagnosed with [a specified] injury during his hospital admission in 2018.  It also noted he suffers from [several more medical conditions]. It also listed his current medications.

30. I accept the information noted in the above reports about the applicant’s physical health conditions. The applicant has raised his health issues in respect of it being unreasonable for him to relocate but has otherwise not raised a fear of harm in Pakistan in relation to his health. I also accept his mental health may have been impacted by illness, being away from his family, lack of employment and financial stress although I note the above 2019 medical report does not elaborate further in this regard and does not otherwise indicate he has been diagnosed with a specific metal health disorder. For reasons I have outlined below I do not accept his mental health has been impacted by exposure to significant trauma in Pakistan for the reasons he has raised in his claims for protection.

31. At the beginning of the first hearing the applicant indicated he felt well enough to proceed with the hearing but said he sometimes suffers from breathing problems. He was advised to request a break at any time if needed. I am satisfied he was able to effectively participate in the hearings. I am not satisfied his physical or mental health issues are a factor in the credibility concerns I have raised below in respect of some of his claims for protection.

    Migration History

32. As noted, the applicant arrived in Australia [in] July 2013 on a student visa. During the hearing the applicant said that when his student visa expired, he applied for a visitor visa which was refused in September 2016. I accept this occurred as it corresponds with information outlined about the applicant’s migration history in the delegate’s decision.

33. When I asked the applicant why he left Pakistan and travelled to Australia, he said he travelled to Australia to study in 2013 because his life was threatened, and he received admission to [Country 1] and Australia, but he preferred Australia. He said he left Pakistan due to fear of persecution and the easiest path to come to Australia was to study. He said he also came to Australia to study.

34. I asked the applicant why he waited so long to lodge his application for protection, he responded that he thought the situation in Pakistan would calm down, but it did not, and his brother was kidnapped and, as a result, his father wanted him to remain in Australia. The applicant said that his plan was to complete his degree and then apply for protection but, because the evidence he prepared for his application for protection was ready, he decided to apply for protection earlier before completing his Australian degree. I asked him why he was waiting to complete his degree first and he said because he came to Australia on the degree program, and he was worried that, if he applied for protection, he would have to stop studying because he was on a student visa.

    Nationality, identity, and background

1. With his application for protection the applicant provided certified copies of his Pakistan passports issued in 2011 and 2016. The passports confirm his Pakistan nationality. He also provided a certified copy of his Pakistan national identity card with an unaccredited translation and a copy of his Pakistan birth certificate.

2. On the evidence before me I am satisfied the applicant is a national of Pakistan and that Pakistan is the receiving country for the purpose of this assessment.

3. The applicant’s birth certificate confirms the applicant’s claimed identity and that he was born in [year] and resided in [a location] in Skardu, Baltistan. His national identity card issued in 2010 also confirmed this address.

4. I accept the applicant was born and raised in [a location] in Skardu, in Gilgit-Baltistan.

5. The applicant has consistently claimed to be Shia and of Balti ethnicity. The letter he provided from the [Community Organisation 1] confirms he is Shia and that he participated in Shia programs and events. The letter from the [Community Organisation 2] also confirmed the applicant regularly attended their religious congregations and was an active volunteer whilst he resided in [that city] from 2013 until 2019.

6. The applicant has consistently claimed to be from a wealthy family in Skardu and has provided evidence of his father’s [businesses]. I accept he is from such a family.

7. I also accept that the applicant is highly educated as evidenced by the documentary evidence he provided about his education including that he completed a [Qualification 1] at [University 2] in [year]. Further that he completed a [Qualification 2] at [University 1] in 2024.

   Area to which the applicant will return

8. As noted, the applicant was born and resided in Skardu, Gilgit-Baltistan. During the hearing he said he moved to Peshawar in [specified year] and resided in a hostel and stayed there until [year] to complete his secondary education. He said he then moved to Lahore to attend university [between specified years]. He said he then moved back to Skardu but would travel back and forth to Lahore for short periods to see the migration consultant who was assisting him in his application for an Australian student visa and to attend English classes for the purpose of that application. He said he resided in Skardu for several months prior to travelling to Australia.

9. During the hearing the applicant also said he has [specified family members] and that they and his parents continue to reside in Skardu. He said his father still owns his [business] but two of his brothers now run [one] business which is based in Skardu.

10. Towards the beginning of the first hearing when I asked the applicant which area he would return and said he merely said he cannot go back to Pakistan at all.

11. At the end of the resumed hearing, I noted to the applicant that given he originates from Skardu and all his family continue to reside there, I may find he will return there. In response he said that if he returned to Pakistan, he would not return to Skardu as there are no good jobs there and he is highly educated. I noted to him that he previously had said during the hearing that he may work with his father on return. In response he said he may work with his father in relation to his religious activities, but his brothers are looking after the family business. The applicant also said one cannot live in Skardu as it is very cold in winter. I noted to him that he had claimed to have grown up there. He then said that he also studied for two years in Peshawar. I then asked the applicant where he would return to, and he said Islamabad, Lahore or Karachi but then said there is no safe place in Pakistan.

12. I have considered the applicant’s claim that he will not return to Skardu as he will not be able find a suitable job as he is highly educated, and the weather is cold. I have accepted he has a high level of education. Nonetheless, I have also considered that in legal submissions to the Department, it submitted he belonged to Gilgit-Baltistan. It also submitted that it would not be reasonable for the applicant to relocate to Islamabad, Lahore, or Rawalpindi because it is not safe and because the will not have anyone to support him and needs support from his family and relatives and community and that all his relatives live in Baltistan. In the written submissions prepared by the applicant’s representative that were provided to the AAT, it also noted that if the applicant were to return to his ‘home area’ and ‘province’ there is a real chance he will be subjected to persecution. It also submitted that it would not be reasonable for the applicant to relocate to another area. Although this submission did not articulate exactly what home area it was referring to, given it refers to his home ‘province’ and has not claimed that the applicant will return to another area other than the area which he originates from being, Gilgit-Baltistan, I am satisfied its reference to the applicant’s home area was a reference to Gilgit-Baltistan. In the applicant’s written statement to the AAT dated 26 August 2024 he also noted that he fears harm in all areas Pakistan and moving to other areas of Pakistan is not reasonable. Further, during the hearing, when I asked him if he could relocate to another area of Pakistan he said no and he will be identified because his Urdu accent will reveal he is from Baltistan.

13. I do not accept that when he previously claimed in the hearing he will work with his father, that he meant in relation to his father’s religious activities, as he specifically said in his oral evidence that he would have to travel to Islamabad for the family business.

14. Although the applicant also resided for some time in Peshawar and Lahore for his studies, he has claimed during the hearing that he returned to Skardu after completing his studies in 2012.

15. Having considered all the evidence before me, I am satisfied that if applicant were to return to Pakistan, he will return to Skardu in Gilgit-Baltistan.

    Involvement in the ISO

16. According to the delegate’s decision, during his PV interview the applicant claimed when studying at [University 2] in 2010, he joined the Imamia Student Organisation (ISO) and was involved in providing information about the organisation to new students at the university. He claims on one occasion, the ISO were celebrating the ‘Day of Hussain’, a Shia Muslim celebration, when members of the Islami Jamiat Talba (IJT) attacked the Shia Muslims. He claims this led to a physical altercation between the two groups. The applicant said he was not involved in any further incidents with the IJT and stated that he ceased to be part of the ISO at the end of 2013, approximately five months after he travelled to Australia to continue his education.

17. In their decision, the delegate cited country information which stated that the ISO was active at [University 2] when the applicant claims to have been completing his degree. The country information also referred to an incident that occurred in [year] in which there was a sectarian clash between the Islami Jamiat Talba (IJT) and ISO members at this university because the ISO students informed the university administration they planned to celebrate ‘Youm-e-Hussain’ (Day of Hussain) on the university grounds which corresponds with the applicant’s description of the incident he described.[1]

    [1] [Source deleted.]

18. To the AAT, the applicant provided an undated letter from the [Official 1] of the [Division 1] of the ISO to the applicant expressing their appreciation for his hard work and dedication to the organisation. The applicant also provided a photo card of the applicant issued by the ISO [named] Division noting his title as [Position 1] for the period 2012-2013. At the hearing I asked the applicant how he obtained the above documents and he said he requested them from the ISO. I asked him why he did not provide these documents to the Department, and he said his previous lawyer did not tell him anything and did not read his case and they gave his case to another firm without telling him.

19. I noted to the applicant that I had concerns about the credibility of his claims to have been involved with this organisation and involved in an altercation with the IJT. I noted I was concerned with the timing of the provisions of the ISO letter and photo card given he did not provide them to the Department. I also noted that the letter from the ISO was undated and that country information from a 2022 report on Pakistan from the Australian Department of Foreign Affairs and Trade (DFAT 2022 report)[2] had noted that document fraud was widespread in Pakistan and given these concerns I may give these documents little or no weight as corroborative evidence of this claim. He said he provided this evidence now because prior to that he did not have it and thought he had enough evidence to provide to the Department. He said he can provide other documents and there is footage on YouTube in relation to the above altercation that occurred his university. I asked if he can be seen in the footage, and he said he was not sure. I then said if I cannot see him on it then it only establishes that the altercation happened but not that he was there. The applicant did not subsequently provide evidence of this YouTube footage to the Tribunal nor any other documents in support of this claim. In oral submissions his representative noted that the delegate had accepted the applicant was a member of the ISO so perhaps that is why he did not provide any evidence. However, the delegate only made such a finding in his decision and the applicant had the opportunity to establish his clams with supporting evidence prior to the delegate’s decision as he did so with the provision of other documentary evidence provided with his application for protection, during the PV interview and after that interview. In his October 2024 statement the applicant said it was his mistake for not providing a letter from the ISO to the Department, however, at the time the Department did not request such a letter and his representative did not advise him or tell him to obtain one and he was depending on his representative for such assistance. He said that when the AAT invited him to a hearing, his current representative advised him to obtain a letter from the ISO and other documents including a letter from a lawyer regarding the authenticity of the documents. He confirms that the documents are genuine and that when he was studying, he was associated with the ISO.  However, I am not convinced of this explanation, as noted above, the applicant’s previous representative who assisted him in the preparation of his application for protection provided a number of documents to the Department in support of his application and prior to any request from the Department for specific evidence in relation to his claims. Given the concerns I have noted above, I have given no weight to the documentary evidence he provided in relation to this claim.

    [2] 'DFAT Country Report: Pakistan', Australian Department of Foreign Affairs and Trade (DFAT), 25 January 2022, 20220125094359 (DFAT 2022 report)

20. In regard to my concern with the credibility of this claim, I noted to the applicant other discrepancies in his evidence. At the first hearing he said he worked with the ISO whilst at university [between specified years] and managed their media. I noted this was different to his claim at the PV interview that he worked with this organisation until the end of 2013. Further the ISO letter he provided to the AAT indicated he worked with them until 2013 and not [an earlier year]. Further his previous evidence at the PV interview, that he worked with the ISO until the end of 2013, is at odds with his claim at the first AAT hearing that he completed his degree in [an earlier year] after which he moved back to Skardu. In response he said his university session was [between specified years]so when the university begins a new session, they will transfer the responsibility of the ISO to other students. He said he worked with the ISO [between those years] but he remained a member until 2013 until a new session began so he finished his role before June/July in 2013. His explanation is still at odds with evidence he provided at the PV interview that he worked with this organisation until the end of 2013.

21. At the hearing the applicant also claimed he still feared harm as a result of this altercation with the IJT because it attracted attention to him, and he claimed ‘all these Muslim guys’ are connected. During the hearing he referred to an incident that he had not raised previously. He claimed three to four weeks after this altercation with the IJT, a few people attacked him in his university room, and he was subsequently hospitalised for one to two days, and he suffered [an injury] and [another physical problem]. He said the hospital just gave him a band aid and tetanus injection and pills and bandages and wrapped his [injury]. He said nothing happened to him after that but that he was threatened. I noted to the applicant that had concerns with the credibility of this claimed incident because he did not raise his claim before the Department. I also noted to him that when I first asked him why he feared returning to Pakistan, he did not raise his involvement with the ISO and the above related incidents. In response he said that was because he did not have too much evidence about it. However, I note he has not provided any evidence to the AAT in relation to the incident where he was attacked in his room and he raised claims about the ISO before the Department without providing any supporting evidence, so I am not convinced of this explanation.

22. The altercation between the ISO and the IJT that occurred in [year] in relation to the ‘Youm-e-Hussain’ (Day of Hussain) was reported in the media and the applicant would have been aware of it as it occurred at his university whilst he was a student there. Given my concerns with the credibility of many of his claims and the concerns I have raised above in respect of this claim, I find the applicant has claimed to have been involved in reported attack against Shias at his university for the purpose of his application but which I do not find to be credible.

23. I do not accept the applicant was a member of the ISO and had a role in this organisation whilst at university. I do not accept that he was involved in any altercation with the IJT or was subsequently attacked and threated by them. I am not satisfied he has a well-founded fear of persecution in relation to this claim.

    2012 militant attacks, brother’s kidnap, and subsequent threats

24. For reasons I have outlined below, I do not accept the applicant was a victim of three militant attacks in 2012, nor that he was subsequently threatened by militants for having lodged FIRs against them nor that his brother was kidnapped.

25. According to the delegate’s decision, during his PV interview, the applicant claimed that, on [the day in] February 2012, he was travelling in a convoy of [buses] to Skardu for his university break. On the way, an armed group stopped the buses and then started checking the identity cards of passengers to identify Shia Muslims. When they got to the applicant, he spoke to them in Pashto so that they could not identify he was from Baltistan, as this would identify him as a Shia Muslim. He informed them that he did not have an identity card. He claimed the armed group could not confirm that he was a Shia Muslim, so they did not take him out of the bus. He claimed he lodged a FIR with the police some 20 to 25 days following this incident.

26. According to the delegate’s decision, the details of this incident were largely similar to the details contained in the FIR dated [in] August 2012 provided by the applicant as part of his application for protection but relating to an incident that occurred that day. The unaccredited translation of this FIR stated that the applicant reported to the police at [Town 2] Police station on [the day in] August 2012, that he resides in Skardu and is studying at [University 2] and was travelling home for Eid at 6.30am when someone stopped the vehicle and some people from Al Qaida entered the vehicle and their faces were covered. It noted they commenced ‘dropping’ travellers after checking their identity cards and ordered him to come down from the vehicle and commenced firing and killing these people because they belong to ‘[a Shia group]’. It also stated that they beat him and he was injured, but he was saved.

27. According to the delegate’s decision, the delegate put this inconsistency to the applicant, and he replied that he is unable to recall the exact date of the February 2012 incident as a significant amount of time had passed since the incident and he was taking medication due to a [medical] condition that was affecting his memory.

28. According to the delegate’s decision, during his PV interview, the applicant also claimed that in either September or December 2012, he was having tea in Rawalpindi when an unknown individual started firing towards him. He was not sure if he was the target, however, he strongly suspects that he may have been the target due to the FIR he had lodged earlier in 2012 in relation to the bus attack. Following this incident in Rawalpindi, he lodged another FIR with the police. He claimed that due to lodging the two FIRs, his family, specifically his father, started to receive intermittent threat letters from armed groups or people stating that the applicant was of adverse interest.

29. As noted, the applicant also provided another FIR to the Department which appeared to be in relation to this incident. The unaccredited translation of this FIR noted someone named [Officer A] reported to the [named] Police Station in Rawalpindi [in] March 2012 that [Officer A] was on duty near [a location] when he heard firing and saw some people in conflict with each other and some had their faces covered with a mask. It reported that they were trying to attack a person who seemed to be a student and had been hit by a bullet and the other person with him had also been injured and that this person, the applicant, was a student and habitant of Skardu and resided in the area for study. It also stated that the applicant informed [Officer A] that the Taliban had attacked him.

30. According to the delegate’s decision, the applicant stated during the PV interview that he lodged this FIR following the incident in Rawalpindi. The delegate put to the applicant that he stated the incident in Rawalpindi occurred in September or December 2012 and not March 2012. Further, he added that the timeline of events would not be plausible as he recounted that the first FIR he lodged, was 20 to 25 days following the purported [February] 2012 incident, and that the incident in Rawalpindi occurred in retaliation for his lodging of the first FIR. He also added that it is not plausible that the Rawalpindi FIR was lodged in March 2012 when he recounted that the incident in Rawalpindi occurred in either September or December 2012.

31. According to the delegate’s decision, to address the above significant inconsistencies with the timeline of events, the applicant submitted a new statutory declaration dated 16 September 2019 after the PV interview. In it, he claimed that he was involved in three incidents in 2012, and not two as claimed in his application for protection and during the PV interview. In this statutory declaration, the applicant claimed the timeline of events in 2012 were as follows:

    ·The first incident occurred on [the day in] February 2012 in [District 1] with the FIR lodged [in] March 2012.

    ·The second incident occurred [in] March 2012 in Rawalpindi with the FIR lodged [later in] March 2012.

    ·The third incident occurred on [a day in] August 2012 in [Town 3] with the FIR lodged on [that day].

32. As noted above, the applicant provided a new FIR dated [in] March 2012 (and its accredited translation) with the post-interview submission to the delegate in support of his claim that he was involved in the [February] 2012 incident. According to the accredited translation of this FIR, it was reported to the [Police] station in [District 1] on [the day in] March 2012 at 11am by the applicant in relation to an incident that occurred on [the day in] February 2012 at 6.30pm. It stated the matter was reported after recovery from the injury. It noted the applicant was studying at [University 2] and was returning home to Skardu for the holidays when their vehicle was stopped at 6.30am by armed people from Al Qaida who had covered their face. It stated these people made everyone get down from the bus after checking their identity cards and they also made the applicant get down from the bus. It stated that, after enquiring about their religious sects, the militants killed those who were Shia. It stated the applicant was on their target list, but he was saved although severely injured. It stated the applicant requested legal action be taken against them.

1. In the applicant’s statutory declaration dated 16 September 2019, the applicant claimed he was unable to recall the dates of these incidents due to the stress surrounding the PV interview. In addition, the applicant’s representative in the submission dated 19 September 2019, submitted that the severe pressure of interview, the absence of an interpreter and the applicant’s mental and physical health condition, contributed to the applicant’s inability to recall dates. The representative submitted that, although the applicant was not directly claiming post-traumatic stress disorder (PTSD), nevertheless he complains of problems with his memory and patients with PSTD show an increase in memory distortion.

2. At the hearing I noted the above issues that before the delegate to the applicant. I noted to him that I was concerned that, only after the delegate raised concerns with his evidence at the PV regarding these incidents, that the applicant then claimed he was involved in three incidents in 2012 and that the Rawalpindi incident occurred in March 2012 and not late 2012 as he had said in his PV interview. Further that he then provided a new FIR indicating he had been involved in another bus incident in February 2012. I also noted to the applicant that this was at odds with his claim in his protection visa application that he had lodged two FIRs (and not three).

3. In response, the applicant said that when they try to lodge a FIR, sometimes the police respond at the same time and sometimes they are late because they have to check everything. He said he made an FIR in Skardu but nobody dared to lodge a FIR against the militants as other people were scared they would be targeted. He also said he provided international news articles about the two bus incidents. He also said that when the delegate raised this question, he provided the other FIR to him.

4. Given he provided two previous FIRs to the Department with his application for protection and only referred to having lodged two in his application for protection, I am not convinced he only provided the third because the delegate did not believe his evidence in the PV interview.

5. I noted to the applicant that I may not be convinced of the explanation he provided to the delegate in relation to the discrepancies in his evidence in regard to his health, the lack of an interpreter and the pressure of the PV interview. I noted to him that the medical evidence he provided to the Department does not indicate he had been diagnosed with PTSD.  In response the applicant said the problem was during the PV interview he had 20L of water in his body and his body was bloated and he was feeling that pressure but now his health has improved. He further said the interview was online and he was not feeling really well after his diagnosis. He also had a headache because of his health issues.

6. In relation to the 2019 medical report the applicant provided to the Department, it noted that his mental health had been impacted by significant trauma in Pakistan. It does not say what this trauma is. I accept the applicant had a [medical] condition at the time and was prescribed medication, but the medical evidence does not indicate his memory had been impacted by his medication. It may be that his mental health has been impacted by other factors, but I am not convinced this is explanation for the significant discrepancies in his evidence at the PV interview particularly given the significance of these events and that the applicant had documentary evidence in relation to these incidents prior to the PV interview and referred to only two FIRs in his application for protection, which was prepared prior to the development of his health issues in 2018, and that he only provided a new FIR regarding a third incident shortly after the PV interview when challenged by the delegate at that interview.

7. I also have concerns with other discrepancies in the evidence before me in relation to these claims.

8. In relation to the first incident in February 2012, during the hearing the applicant said that he was travelling from Islamabad to Skardu in a convoy of [buses] with number range people] people when militants from Taliban/Al Qaida stopped the buses and took the identity cards of the travellers. He said those with Shia names were taken from the buses and killed. He claimed the buses were lit on fire and some people ran away and some people jumped in the river. He claimed they killed more than 10 to12 people. He said the militants asked him for his identity card, but he spoke Pashto to them and that is why he remained safe as Balti people cannot speak Pashto. He also claimed he told the militants that he did not have any identity card on him and said he was not from there but was Pashto. He claimed he was hit with a baton and was [injured] and fainted. He claimed he stayed on the bus until the militants left. He claimed the police and army came, and they took the passengers to hospital. He claimed he went back home to Skardu approximately the next day. He claimed he gave a report to the police on the same day it happened. He claimed they took his report and wrote it down whilst at hospital. The police also spoke to other people. He claimed he then lodged a FIR a month later in order for action to be taken. I noted the applicant that he earlier said that the police and army came to location of the incident and took his statement in hospital and questioned why he needed to lodge a FIR a month later in order for the authorities to take action. In response he said he lodged the FIR after he felt better. He also said the army was lacking evidence at that time, and it was not his area and he wanted to lodge the FIR in a safe area. He also said if he did not lodge it then no action would be taken. He said only two to three FIRs were lodged in relation to this incident and it required more than ten FIRs for the authorities to take action. When I asked if the authorities took any action, he said the terrorists fled to the tribal zone and nothing happened after. He said he then stayed in Skardu for several months then returned to Islamabad. He later said two or three of the militants were caught.

9. The applicant’s oral evidence that he stayed on the bus is at odds with the FIR which stated he was made to get down from the bus. His claim that he was saved because they did not identify him as Shia is at also odds with information in the related FIR that he was on their target list. When I noted these concerns to the applicant, he said they brought everyone down from the bus and checked their identity cards, but he did not give them his identity card and said to them in Pashto that he was not from there and he did not have identity documents and had just travelled for work. He said they then sent him to return to the bus. I note this was not what he initially said when asked about this incident.

10. The witness at hearing, [Friend B], claimed he saw the videos and read news about how militants would stop buses and separate people and kill them for being involved in religious activities. When I asked him if this had happened to the applicant, he said it had not happened to him. He then later said that in 2012 there was an incident in which buses were set on fire after identifying Shias on the bus. I asked him what that had to do with the applicant, and he said it happened on the way to their area and the applicant’s family was worried because they had relatives who were victims in that incident. I noted to the applicant, pursuant to the former s 424AA, that [Friend B] had claimed in his oral evidence that the applicant had not been a victim of a bus attack targeting Shias in 2012 but that the applicant’s family had relatives who has been such victims in a bus attack in 2012. I noted this information was relevant because it contradicts his claim to have been a victim of two such attacks in 2012 and that he had been targeted and threatened by Sunni militant groups ever since for having lodged a FIR in regard to the first attack in February 2012 and this may lead me to find that his claims in this regard are not credible. In response he said he had a relative in this incident and gave an online interview and he can provide me with that, and the interpreter mistranslated the evidence of [Friend B] who he claimed had said the applicant was involved in such a bus attack. In his October 2024 statement to the Tribunal, the applicant reiterated that the witness said that he had been present during such an attack. However, this response is undermined by the applicant’s submissions at the beginning of the second hearing that there were no material interpretation errors in the first hearing.

11. As noted, the applicant later provided to the Tribunal, a Pakistan ‘Affidavit’ from a person in Pakistan named [Friend C] who stated that the applicant accompanied them in the [District 1] massacre on [the day in] February 2012. However, no other independent evidence was provided in support of this person’s claim to have been on this bus. Although this person could be the relative the applicant referred to above, other than having the same last name, no other evidence has been provided to indicate it was his relative. Given this, I give this document no weight as corroborative evidence of the applicant’s claim to have been on this bus when it was attacked. 

12. With his application for protection the applicant provided news reports regarding the February 2012 bus attack. One report provided by the applicant published in [Publication 1] regarding the incident on [the day in] February 2012, reported that [number] terrorists stopped four vehicles which had departed Rawalpindi and ordered the passengers to leave the vehicles. They killed 16 people and left only aged persons and children and then ran away into the mountains. An English language report by [Publication 2] published [in] April 2012 regarding the above incident noted that four buses were travelling in a convoy from Rawalpindi to Gilgit when [smaller number range] armed masked men wearing military uniforms ambushed the bus in the [District 1] area. They stopped three vehicles and searched them and picked up batches of people in [a number of batches] and shot them and killed at least [number] people who were all Shia. Another [Publication 3] report noted the attack took place near [Town 4] where the attackers checked the identity cards of all the passengers before removing the Shia passenger and shooting them, whilst about [number] other passengers were spared.

13. I noted to the applicant that the newspaper reports he provided to the Department just confirm the incidents took place but not that he was involved or was a victim in these attacks. He said the newspapers can write anything and can show anything, but the FIR is the biggest proof, and I can check them. However, this is at odds with an earlier statement he made that his claims are supported by international reports.

14. Another report of this incident that I obtained reported that gunmen flagged down the buses, climbed on board and asked passengers for identification. They then proceeded to drag a group of men off the bus, stood them in a line by the roadside, and shot them. [All but one] of the [number] passengers killed were Shias. According to sources, the outlawed terrorist group [Group 1] claimed responsibility for the attack. It reported that [Town 4] police station SHO [named] told [Publication 4] that one bus and [number] minibuses, carrying approximately [number] passengers, were travelling from Rawalpindi to Gilgit when [number range] gunmen disguised in military fatigues blocked the vehicles at a deserted section of the [Highway]. The official went on to add that the assailants did not target women or children passengers. According to his eyewitness account, [number range] men dressed as soldiers intercepted the Gilgit-bound passenger vehicles and shot a group of men with [rifles] after tying their hands to their backs. The assailants, carrying hand grenades and rocket propellers, then hiked into the nearby hilly areas and resorted to aerial firing. The bus conductor of one of the vehicles was also killed in the attack when he failed to convince the gunmen that was a Sunni Muslim. A police official recorded statements from the surviving passengers.[3]

    [3] [Source deleted.]

15. The applicant claimed he lodged a FIR in relation to this incident because the army was lacking evidence at that time, but the above media report indicates the police took statements from the surviving passengers and it was reported a day later that [Group 1] had claimed responsibility for the attack. When I noted this concern to the applicant, he said the [Group 1] is part of the Taliban, and they captured the [Group 1], but the police and army did not capture the people who did it, so they had to obtain evidence about them. His response does not overcome my concern that the that the police recorded statements from the surviving passengers. Further, the applicant had also claimed they did so on the same day the incident occurred and that he also provided a report to the police whilst in hospital. I am not convinced they were lacking in evidence such that he subsequently had to lodge a FIR.  

16. The applicant claimed there were [number range] buses in the convoy, but the media reports referred to only four buses. When I noted this concern to the applicant, he said the media can say anything and they also said that more than [a larger number] people died but they did not. However, he provided two of the reports that referred to only four buses in support of this claim and none of the above reports claim that [this larger number] people died.

17. I also noted to the applicant I may find it difficult to believe that these militants would remain interested in him for so many years for lodging a police report regarding a well-documented and reported incident in which the police took statements from surviving passengers. He said he was on their list because he lodged the FIR against them. He also said now the problem is his religious activities and beliefs and working and taking over his father’s legacy working with different Shia organisations. He said the Taliban is now has more power and the government shakes hands with the Taliban in Afghanistan so now his fear is greater. I do not find the applicant’s response overcome my concern with this particular incident and I find it difficult to believe Sunni militants would take an adverse interest in the applicant at all, and for so many years, just because the applicant lodged a FIR in relation to an incident the Pakistan authorities were aware of and investigated on the day it occurred.

18. The applicant said at hearing that, after the February 2012 incident, he stayed in Skardu for several months and then went back to Islamabad. This is at odds with his claim that he was attacked again in Rawalpindi in March 2012. When I noted this concern to the applicant, he said that he went to Rawalpindi for a few days and then returned.

19. When referring to the Rawalpindi attack, during the hearing the applicant claimed that he was attacked at the end of March 2012. He said he was drinking some tea with others when some people tried to shoot at him and his friend, and he was injured. He said he went to hospital and had some cuts and wounds and scratches. He said he lodged a FIR on the same day and the police said he was targeted by the Taliban because their men are local, and he and his friend were not from the area. He claimed the police asked him if he had a problem and he told them he had a FIR against the militants. I asked him why he thought he had been attacked and he said he believed the Sunni extremists in all areas have connections with militants and because he lodged a FIR against them and because what he did at university. I have not accepted his claims in relation being attacked whilst working with the ISO whilst at university.

20. I questioned the applicant how the Rawalpindi incident could be retaliation for his earlier FIR when the earlier FIR was lodged four days after the purported Rawalpindi attack. He said he did not have any problem other than this and his problems at university. He confirmed the dates on the relevant FIRs were correct and then claimed he booked a timeslot to make the FIR regarding the February incident on [the day in] March 2012 in [District 1]. I noted to him that the dates would indicate he was not even in Rawalpindi then as he lodged the FIR on [the later day in] March 2012 in another area. He then said he lodged the FIR with regard to the February incident in another district and the authorities told him he can think about it as these things take time to confirm. He said then the Rawalpindi incident happened, and the police said he had four more days to consider lodging the [District 1] FIR so then he went back to report this incident in March 2012.

21. I put to the applicant that his explanation regarding how he lodged the FIR regarding the incident in March 2012 is not reflected in that FIR nor the other FIRs regarding his claim to have been given time to confirm that report. In response to these concerns, he said he wanted to report the FIR, but the police did not want to due to their fear and pressure, so they reported it superficially because they wanted him to be present there. He then said when he went to report it physically, they did it properly and that is why he flew from Islamabad to Skardu to lodge this FIR. Again, this is not reflected in the documentary evidence he provided, nor has he provided any other corroborating evidence in support of this explanation which I find far-fetched.

22. Even if I were to accept that the FIR regarding the February 2012 incident was officially lodged on [a day in] March 2012, it remains hard to believe that the militants knew of his complaint four days prior and attacked him for it in Rawalpindi. In response to this concern the applicant said the Rawalpindi FIR was not done in one day. He said the police did research and found out the Rawalpindi incident was conducted by the Taliban and before that he never had interactions with the Taliban, and he had no other problem. He said he lived in a small area, and everyone knows about it, so it is a big thing and at that time terrorism was high and the police have links everywhere. He said the militants are interconnected and targeting Shias is easy for them anywhere in country. The applicant has not provided any corroborative evidence that the militants had the capacity to locate him anywhere in Pakistan in such a short amount of time. Further, as I have doubts that the applicant was of adverse interest for lodging the first FIR, I also remain doubtful he was attacked for it in another city.

23. During the hearing the applicant also said he did not know if he was shot during the Rawalpindi incident. I said to him I would expect him to know if he was shot and he said he did not know. I asked if the hospital advised of him of his injuries and he said he did not check that much. I noted to the applicant that I may not accept, as plausible, that he did not know if he had been shot. In response he said the militants shot at him few times, but he was not shot but was wounded. Again, I remain concerned the applicant initially said he was not sure if he has been shot and was uncertain of his injuries.

24. I also have concerns with the credibility of the Rawalpindi incident given the discrepancies in the related FIR. For example, the date of incident is noted as [a day in] March but the date of report is noted as [the previous day]. When I noted this to the applicant, he said the incident happened on [the previous day] at 11.30am and the report was done after 12am, the next day. However, the report reflects that it was reported before the actual incident occurred. I also noted to him it also states it was registered on [a day in] May 2022. He said he a got registered copy on this date. That is not what the accredited translation states.

1. In regard to the claimed bus attack in August 2012 in [Town 3], during the hearing, the applicant claimed that on [the day in] August he was travelling from Rawalpindi to Skardu for Ramadan Eid on a convoy of [bus] when the bus was stopped by Al Qaida militants in [Town 3]. He said they start checking the passengers’ identity cards looking for Shias but only checked a few buses and not all of them. He claimed they did not come to his bus and nothing much happened to him.  He said he then went back to Skardu the same day. He claimed he then lodged a FIR the next day in [Town 2]. He said stayed in Skardu approximately two months then went back to university. He said the perpetrators of this incident were not caught. I asked him why he lodged a FIR when he was already targeted for lodging a previous FIR and he said because, if they do not do that, the government will not take action.

2. One media report provided by the applicant about this incident, published in [Publication 1], reported that armed terrorists wearing army uniforms stopped a car at 6am and killed [number] people from [an area in] Skardu. It reported that, after hearing of it, the administration, and police of the Khyber Pakhtunkhwa reached the area and identified these people and referred them to hospital. It reported a case was registered in the [Town 2] police station. Another report published by [another publication], also provided by the applicant, reported [number] buses were traveling from Rawalpindi to Gilgit for Eid. The victims were checked for their identification documents before they were lined up and killed and were either shot or bludgeoned to death and as many as [number] were killed.

3. The FIR he provided in relation to this incident indicates he lodged it the same day of the incident. I noted to the applicant that this was at odds with his own evidence that he lodged this FIR the next day. He said the border is between his area and the KPK government so perhaps their timing is different. This appears to be speculation on his part. He then said the incident occurred in the morning and maybe the report was lodged the next day and he was not sure and 6.30am was still nighttime. However, the FIR notes it was lodged at 11am the same day.

4. I noted to the applicant that he has claimed in his oral evidence that the militants did not come to his bus and nothing much happened to him but the related FIR states that the militants came to his bus, and he was ordered to come down from the bus and he was beaten and injured. In response he said they hit him with the back of gun. He said perhaps what he had said was a mistake, but he remembers being beaten. I note he did not claim to have been beaten when he first relayed what happened and he appeared to be changing his evidence in response to my concerns.

5. In relation to the 2019 medical report the applicant provided to the Department, it also noted that his mental health had been impacted by significant trauma in Pakistan. It does not say what this trauma is. I noted to the applicant that I may not give this any weight as corroborative evidence of these claims as it does not say what the trauma is, and it appears to reflect information he provided to the doctor. He said the doctor asked him if anything happened to him, so he told him about these events. Given this, I have not given this letter any weight as corroborative evidence of the applicant’s claims as it merely reflects information the applicant gave the doctor about his life and circumstances.

6. The applicant also provided to the Tribunal a document from an Advocate in the [Court 1] dated [in] August 2024 verifying the information in the three FIRs as correct and that cases were under adjudication in a different court of law in Pakistan. The applicant did not previously claim these cases were at court. When I noted this concern to the applicant, he said they allocated a lawyer to these cases, but he did not proceed as the lawyer said that if he goes against these militants, he will be killed. However, this is at odds with this recent letter which states the cases are under adjudication.

7. I noted to the applicant that he has claimed that he fled Pakistan because of these events but he also told me at the first hearing that he stayed in Skardu most of the time from the end of 2012 until he left Pakistan in mid-2013 to travel to Australia and continued to travel back and forth to Lahore for short periods. I put to him that this seems at odds with his claims to have been attacked twice on this trip only a year earlier and was in fear of his life from these militants for these reasons. In response, he said he had to come to Lahore anyway for his documentation to attend the consultancy firm assisting him with his student visa application. He said he had an option to escape so he had to do something. I am not convinced of this explanation given his claims of being targeted by militants in this area in the previous year.

8. I have also considered that the applicant fled Pakistan because of these events but decided to apply for a student visa to enter Australia which takes time to process and does not suggest he was in a hurry to leave Pakistan. During the hearing he also admitted he came to Australia, in part, to study and had also applied to [Country 1] to study. He also claimed to have started the application process right after completing his degree in Pakistan. This strongly suggests he travelled to Australia study and not because he feared for his life in Pakistan because of these events. When I noted this concern to the applicant, he said he received admission to [a named university] (in [Country 1]) as well, but he proceeded with Australia and obtained his Australia visa in seven days. I reiterated my concern to him, that preparing the application for a student visa takes time and he said he finished his degree in [year] and it took time to prepare his documents and the necessary English exam. His response merely confirmed my concern.

9. I also noted to the applicant that he remained in Australia on a student visa for over three years and, when that ceased, he applied for a tourist visa and, when that was refused, he applied for a protection visa less than two months later. I noted he waited three years before lodging his application for protection and he had said he wanted to finish his degree first as he came here on a degree program. I put to him that the timing of his application for protection and the reasons he gave for applying at that time may also cause me to have concerns about the reason he left Pakistan and the credibility of these claimed events. In response he said, when he came to Australia, he did not know one could apply for a protection visa and he thought he should finish his degree first and then apply. He said he applied for tourist visa to buy some time to finish his degree, but this visa was rejected. He said, after that, he had no choice and his brother had been kidnapped as well so he could not go back, and his studies were almost finished by then. His explanation that he did not know about protection visas is at odds with his earlier oral evidence that his plan was to finish his degree then apply for protection. Further, the importance he seemingly has given to completing his degree first also strongly suggests he came to Australia to study rather than because he fled after being targeted due to these incidents in 2012.

100.   In regard to the subsequent threats the applicant claims he received after leaving Pakistan, according to the delegate’s decision, the applicant claims that, due to his lodgement of the FIRs, armed groups started intermittently issuing threat letters to his family, especially his father, from 2012 to at least 2016. The applicant added, at the PV interview, that he could not recall when the armed groups issued the last threat letter.

101.   As noted, he provided two police warning certificates issued in 2013 and 2015 and a police threat information report issued in 2014 with his application for protection.

102.   When I asked the applicant why these certificates and report were issued in 2013, 2014 and 2015. He said they were threat alerts for him to look after himself as there was a Sunni/Shia war in Gilgit and he was a targeted person due to his religious activities. I noted to the applicant that he had previously said in the PV interview that these were in relation to the FIRs he lodged and the 2015 warning certificate states it was because he lodged a FIR in 2012. He said nobody dared to lodge a FIR against the militants, but he lodged the FIR because of his religious activities so he thought it was his responsibility to do the FIR. I do not find his explanation convincing as he did not refer to the lodgement of the FIRs at all when I first asked him what these certificates and reports related to.

103.   As noted, according to the delegate’s decision, during his PV interview the applicant claimed in June 2016, [Brother A], the applicant’s brother, was kidnapped by the Taliban and found 18 months to two years later (approx. 2018) when the Pakistani government commenced missions to remove armed groups from the province of Waziristan.

104.   During the hearing the applicant referred to his claim and said his parents had not initially told him that his brother [Brother A] had been abducted by the Taliban and claimed he was abducted when he was travelling back from Rawalpindi in 2016/2017, and he was found two years later by the army in Waziristan. He said his father told him about it in 2017. He said he found out from his father that his brother had been kidnapped because of the applicant and the applicant was being targeted due to his religious activities and organising these activities on behalf of his father. I asked if the Taliban said something to his brother about why he had been kidnapped and he said he did not know. He said his family did not have any other interactions with Sunni militants since then.

105.   As noted above, at the PV interview the applicant provided a copy of a letter dated [in] July 2016 from the [Official B] in Skardu which stated the applicant’s brother, who was abducted in June 2016 from [Town 1], was safely recovered from Waziristan in an army operation.

106.   The information in the above document is at odds with the applicant’s oral evidence at hearing that his brother was found eighteen months to two years after he was kidnapped in June 2016. When I noted this to the applicant, he said perhaps the authorities were right because he was not there. I find it hard to believe he was mistakenly of the impression his brother had been missing for nearly two years as opposed to approximately a month even if he was not there and particularly given he provided the above documents as supporting evidence.

107.   I put to the applicant that I may find it hard to believe the militants waited four years to kidnap a family member because they could not find him. He said that Taliban are after him and maybe they know he is not there and took action and maybe they tried to bribe his father or do something else and so they kidnapped his brother. He said that I could check with government officials as well. He said no one will lodge a FIR in his area because they are a small area.

108.   I noted to the applicant that the only evidence he provided was a recovery report and, as I noted, DFAT has indicated that document fraud is widespread in Pakistan so I may not give this document any weight. I also noted he had not provided any other independent objective reports of his brother’s kidnapped and rescue such as news reports. He said there is other targeting in his area and international tourists come to his area, so they do not want to report these things in the media, and it is not easy to make a FIR there. However, I note he has provided a number of news reports about the bus attacks in February and August 2012 so evidently these types of incidents are reported in the media.

109.   The statutory declaration from the applicant’s friend, [Friend A], noted that during his stay in Pakistan from 2018 to 2021 he interacted with the applicant’s family, and he said they faced threats from anti-religious elements including the kidnapping of the applicant’s brother in 2016. In his evidence he appears to be relaying information given to him by the applicant’s family, so I do not consider it objective corroboration of the threats the applicant claims his family received and of his brother’s kidnap. When I noted this concern to the applicant, he said his friend knows everything about him and he told him to see his family and his mother told him everything about him and that he applied for asylum, so he wrote down in that statement what he heard from his mother, and until now he lives with this friend. As the applicant has acknowledged, [Friend A] is merely relaying what the applicant’s family purportedly told him. I do not give the evidence provided by [Friend A] any weight as corroboration of these claims.

110.   The statutory declaration provided from [Friend B], also appears to be relaying information given to them by his family so I do not consider it objective corroboration of threats they have received. When I noted this concern to the applicant, he said his friends can only listen to his family and did not talk to anyone else, confirming my concern. I do not give this evidence any weight.

111.   According to the delegate’s decision, during his PV interview, the applicant claimed in 2019, members of armed groups or people who had some association with armed groups visited his family home in Skardu on three occasions. On each occasion, they asked for the applicant’s whereabouts, but they were advised that his location was not known. The members of these armed groups, or people who had some association with armed groups, did not take any action against the applicant’s family on each of these occasions with the exception of shooting some bullets in the air. Further, their third, and last visit, occurred approximately two weeks prior to the applicant’s PV interview.

112.   I noted to the applicant that when I asked him if his family had any other interactions with militants since his brother was released, he did not mention the above incident so I also may have concerns regarding the credibility of this claim. In response he said they harass and put pressure on his family at nighttime or during religious occasions due to their religious activities and if he has evidence of this, he will provide it. I then noted to him that he had provided evidence of this in the form of a police report issued in 2019. He said sometimes they bring guns, and they have to get officials involved. I noted that I remained concerned that he did not remember raising this claim or providing this supporting evidence to the Department. He said he told his father to send him evidence to send to the Department and, if he sent it to him, he just forwarded it to the Department. I do not find his response overcomes my concern as he appeared to not be able to recall what he has previously claimed nor what he has previously provided as evidence.

113.   I also noted to the applicant that the 2019 report stated that his brother [Brother A] lodged this report in regard to the militants coming to his house asking about the applicant. I noted that his brother had supposedly been under threat from armed groups and had been kidnapped but nothing happened to him when they came to his door in 2019. He said they are not the main people, and they just send others, and they cannot kidnap his brother because they are not trying to kidnap him, but they are just acting on orders of the main people. The applicant appears to be speculating in this regard particularly given he was not there and could not even initially recall this incident.

114.   I also noted to the applicant that country information from DFAT’s 2022 report also noted that document fraud is widespread in Pakistan and that FIRs are relatively easy to counterfeit. It further states that reports exist of police accepting bribes to verify fraudulent FIRs. It noted DFAT did not consider the existence of an FIR as conclusive evidence the events described in the FIR actually occurred. Give this and my other concerns regarding these claims, I noted to the applicant that I may not give the documentary evidence he provided in relation to these claims any weight in my assessment. He said I could check with the police and talk to them, and the holy book is in front of him. Having considered this information and the numerous concerns I have raised in relation to his claims and the documentary evidence he has provided in support, I am not satisfied of the genuineness of the FIRs, and the other Pakistan letters and reports he provided from the police, lawyers, and courts in relation to being under threat and the kidnapping of his brother.

115.   On the evidence before me I do not accept that the applicant was the victim of attacks by militants on three occasions in 2012 and subsequently lodged FIRs in relation to these incidents. I do not accept he was subsequently threatened by Sunni militants for lodging these reports or that his brother was kidnapped in 2016 or that he and his family continued to receive threats from the militants or that militants approached his home looking for the applicant in 2019. I am not satisfied he has a well-founded fear of persecution in Pakistan in relation to these claims.

Threats to applicant and his father due to their Shia religious activities

116.   At the hearing the applicant also claimed he feared harm from Sunni militants if he were to return to Pakistan because of his Shia religious activities.

117.   The letter from the [Welfare Organisation 1] in Skardu notes the applicant’s father had been a member of their organisation for more than 36 years and has donated charity funds for various activities and is a leading member as well as a respected social community leader. I accept this information.

118.   At the hearing the applicant claimed Taliban militants stopped his father’s [business vehicles] at the end of 2017 but then let them go. He said the militants did this because they thought his father was a religious person and participated in religious activities and they had asked him to reduce his involvement via a letter sent to his father’s business. He said his father was the only one to receive such a letter because he is a well-known businessman, and they were an easy target because [their business requires long distance travel]. When I asked about the father’s religious activities, he said his father used to support people by giving money and donating during Muharram. He said he did not raise this claim earlier as he did not have any evidence. He said this was the last incident that impacted his family.

119.   I also noted to the applicant that the [Official B] of Skardu issued him with a threat information report in December 2014 which it states was due to the applicant being a Shia contractor and businessman. In response he said that his family [business involves long distance travel] and the militants threatened his father and his business. I then asked why this letter was then issued to the applicant in relation to his father’s business when the applicant was not even in Pakistan at that time. In response he said his father is old and he managed everything on his behalf. I then noted to him that he was not in Pakistan at that time. He said they did not know that he came to Australia. I asked if his brothers received the same threat certificate, and he said it would be issued in his name as his brothers are not involved in religious activities. However, the applicant has claimed he had managed everything on his father’s behalf and the above letter refers to him as a contractor and businessman and I remain unconvinced that this letter was issued to the applicant for the reasons he has explained as he was not in Pakistan at the time and not involved in his father’s business then, unlike his brothers who he has claimed are involved in the business. Further, the above letter states it relates to his profile as a businessman and not because of his religious activities.

[24] Dr K.M. Butt and Z. Abbas, ‘Ethnic diversity and collective actions in Gilgit-Baltistan’, Journal of Political Science XXXII (2014), available at

167.   I also noted to the applicant he has not provided any evidence of his involvement in these events such as photos. He said in 2012 he did not have a mobile and they got the internet in 2014 as they were in a mountain area. I note that photos are not restricted to internet access.

168.   I have not accepted the applicant’s claim to have been targeted by Sunni militants for his involvement in Shia events in the past nor that his father has. I am not convinced of the reasons the applicant raised for why he did not raise a fear of harm in relation to his political opinion before the Department. His oral evidence in relation to this claim did not reflect his written claim. Overall, I found this claim lacking in credibility. I accept he may have an opinion against Sunni extremists as many Shias will likely have, but I am not satisfied the applicant has expressed his opinion towards other Sunnis in his area and I am not satisfied there is a real chance he will, and I am not satisfied this will be due to a fear of persecution. I am not satisfied the applicant will face a real chance of harm because of his opinion against Sunni extremists.

Fear of harm on the basis of being a returnee who studied in a western country

169.   During the hearing the applicant claimed that he feared being killed by the Taliban in Pakistan on the basis of being a returnee from a western country because he lived and studied in Australia and the Taliban did not like people studying in western countries due to the influence of western culture. He also said he will be targeted for having a high position in employment. Although considered by the delegate, the applicant did not raise a fear of harm from the Pakistan authorities as a returnee from the west.

170.   I noted to the applicant that country information does not reflect that people of this profile have been targeted in Gilgit-Baltistan or Skardu including Shias who had studied overseas or had high positions. He said people who go outside do not want to come back and he does not want to work in Skardu, and they do not like that he studied in Australia. 

171.   I also noted to the applicant that in its 2022 report, DFAT assessed that returnees to Pakistan do not face a significant risk of societal violence or discrimination purely as a result of their attempt to migrate, or purely because they have lived in a western country.  Further other country information before me does not suggest that returnees from western countries are targeted by Sunni militant groups. I noted that I may find he will not face a real chance of harm due to being a returnee who studied in a western country and/or due to having a high position, individually or cumulatively. He said he also has a background of already being persecuted and due to being a Shia and there is no safety. As noted, I have not accepted his claims about having been of adverse interest to Sunni militants prior to his departure.

172.   On the evidence before me I am not satisfied the applicant will face a real chance of harm from Sunni militants or any other group or person as someone who studied in a western country and/or because he will have a high position in employment if he returns to Pakistan in the reasonably foreseeable future or in combination with being a Shia or any other aspect of his profile.

Cumulative profile

173.   I have considered the applicant’s profile as a whole and relevant country information. On the evidence before me I am not satisfied, he will face a real chance of serious harm from any group or person if he were to return to Pakistan.

174.   The applicant does not meet the requirements of the definition of refugee in s 5H(1).

175.   I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

COMPLEMENTARY PROTECTION ASSESSMENT

176.   I have not accepted the applicant was a member of the ISO and had a role in this organisation whilst at university or organised events with the ISO in Skardu. I do not accept that he was involved in any altercation with the IJT or was subsequently attacked and threated by them. I do not accept that the applicant was the victim of attacks by militants on three occasions in 2012 and subsequently lodged FIRs in relation to these incidents. I do not accept he was subsequently threatened by Sunni militants for lodging these reports or that his brother was kidnapped in 2016 or that he and his family continued to receive threats from the militants or that militants approached his home looking for the applicant in 2019. I also do not accept the applicant, nor his father, were ever threated by militants for their Shia activities or for any other reason. I am not satisfied he will face a real risk of significant harm in Pakistan relation to these claims.

177.   I have found the applicant will not face a real chance of harm in Pakistan in relation to his other claims. Consequently, he will also not face a real risk of any harm in Pakistan.[25]   I am not satisfied the applicant will face a real risk of significant harm in Pakistan in relation to these claims.

[25] MIAC v SZQRB (2013) 210 FCR 505.

178.   Having considered the applicant’s profile, individually and cumulatively, his evidence and the country information before me about the security situation in Gilgit-Baltistan and Pakistan, I am not satisfied he will face a real risk of significant harm from any group or person if he were to return to Pakistan. I am not satisfied there is a real risk he will be arbitrarily deprived of his life, or the death penalty will be carried out on him, or he will be subjected to torture or cruel or inhuman treatment or punishment or degrading treatment or punishment as defined in the Act.

179.   There are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.

180.   I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

DECISION

181.   The Tribunal affirms the decision under review.

Hearing dates: 30 August 2024 and 23 September 2024

Representative: Mr Mahalingham Sutharshan (MARN: 0961664)

ATTACHMENT A - CRITERIA FOR A PROTECTION VISA

1. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). 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.

2. 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.

3. 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).

4. 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 Attachment B.

5. 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 Attachment B.

   Mandatory considerations

   In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   ATTACHMENT  B-  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.

   …