2001817 (Refugee)

2001817 (Refugee) [2022] AATA 4565 (29 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr James Hammond
CASE NUMBER:  2001817
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Denis Dragovic
DATE:29 September 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 29 September 2022 at 10:12am
CATCHWORDS
REFUGEE – protection visa – Pakistan – Federal Circuit Court remittal – political opinion – member of the Youth Wing of the Pakistan Muslim League-Nawaz (PML-N) – supporter of Abid Sher Ali, son of Chaudhry Sher Ali – low-level volunteering – credibility concerns – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65, 91WA, 424AA
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 1 May 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims and I accept to be a citizen of Pakistan, applied for the visa on 10 January 2017.
The delegate refused to grant the visa on the basis that they found the applicant to be lacking credibility on the key claim of being harmed in the past.
On 27 June 2018 a differently constituted Tribunal found that the Tribunal did not have jurisdiction for reasons of the appeal not being lodged within the relevant time limit.
The Tribunal’s decision that it did not have jurisdiction was remitted by consent by the Federal Circuit Court on 21 January 2020. The reason for the remittal was not related to the substantive elements of the applicant’s claims but rather, as noted in the reasons:
jurisdictional error of the type identified in DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 at [41]-[65]. That is, because the refusal notification letter did not clearly state the time by which the application to the Tribunal was to be made as required by s 66(2)(d)(ii) of the Migration Act 1958 (Cth), the Tribunal erred in concluding that the review application was out of time and was therefore wrong in determining that it had no jurisdiction to entertain the review application: see DFQ17 at [62].
The matter is now before the Tribunal pursuant to the order of the Court.
The applicant appeared before the Tribunal on 3 June 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu (Pakistan) and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Procedural matters
A non-disclosure certificate was appended to the Departmental file. The certificate was not valid as it did not give reasons for why disclosure of certain folios would be against the public interest other than stating that they related to internal working documents.
The material behind the certificate is not related to the applicant’s protection claims but rather to the veracity of passport details which were entered into the applicant’s separate visitor visa application form. The applicant has claimed that his agent had completed the application form listing his passport details as being from [Country 1]. The folios behind the certificate raise concerns about the veracity of [Country 1] passport details.
At the hearing we discussed the certificate. I put to the applicant and his legal representative that my preliminary view was that it was not valid. I discussed the documents reading through the key elements. I explained to the applicant that I have placed no weight on the material behind the certificate as it does not relate nor impact the applicant’s protection claims. The applicant’s legal representative had no objections to proceeding without further discussions or considerations.
As the provision of the incorrect information did not include the provision of a bogus document, but rather only information, s 91WA of the Act is not triggered. Section 91WA(1) requires the Minister to refuse to grant a protection visa to an applicant who provides a ‘bogus document’ as evidence of their identity, nationality or citizenship, or has destroyed or disposed, or caused the destruction or disposal of, documentary evidence of their identity, nationality or citizenship.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF Claims and evidence
Evidence and findings of fact
The applicant was born in Faisalabad, Pakistan, the eldest of [number siblings]. He described his upbringing and family status as middle class.
Currently, his parents reside in Bhawalpur, Punjab Province. [Some siblings] live with his parents, [others live in a university hostel]. He claimed at the hearing that his parents moved to Bhawalpur in 2018 to seek safety, though he claims that despite this move they continued to be threatened even after he moved to Australia.
I accept that the applicant’s parents have moved to Bhawalpur and that his siblings live in the locations listed above. With regards to the reasons for the parents’ move and whether they have received threats, I will consider these claims holistically further below.
Political claims
The applicant’s fears of harm arise from claims of being perceived as a supporter of one of two warring senior politicians. The applicant claims to have been a member of the Youth Wing of the Pakistan Muslim League-Nawaz (PML-N) and specifically a supporter of Abid Sher Ali, son of Chaudhry Sher Ali. He claims that Abid Sher Ali is the enemy of Rana Sanaullah Khan. Both politicians were elected to office in Faisalabad.
The applicant claims that he was harmed many times by the supporters of Mr Khan who beat him and tried to kill him.
The applicant explained that Mr Khan is a powerful man and was the Punjab province Law Minister for nine years but according to the applicant, he acts like a gangster and has even threatened people on live television.
In submissions by the applicant’s legal representative country information pertaining to the individuals was presented which is not in dispute. I have reproduced this country information for the purposes of context:
In the 2016 local government elections, Chaudhry Sher Ali and Sanaullah pitched their nominees against each other. The former ran a vitriolic campaign against the latter — even accusing him of murdering 22 people. Yet, a Sanaullah- nominee trounced Chaudhry Sher Ali’s son Amir Sher Ali in the election for union councillor. That same nominee would become Faisalabad’s mayor, even though Chaudhry Sher Ali made a last-ditch effort, only to have his endorsement overturned by the top party leadership. Clearly his clout within the Sharif family has waned.
At the hearing the applicant explained that he became involved in politics in 2010 as he was starting university and becoming interested in the political parties present on campus. He thought that the PML was one of the strongest parties, so he joined the youth wing in 2011. He was part of the group that would gather members to join rallies or sometimes he would contribute to organising the rallies. He said that he would convince people to put up posters, give out flyers and go door knocking. In his written statement he said that he would work a few hours a day most days but during elections he’d work from 9am through to 1am or later.
The applicant didn’t have a position title initially but then in 2013, he claims that they saw how active he was and as a result gave him the role of [position title] in his locality. This was an unpaid role.
The applicant explained the structure of the PML-N in the locality in which he was involved. He said that there was a President above him and a Secretary below him and then 15 to 20 members working with them. He said that there were about 100 members in total who worked in the same locality but that they were divided into different groups separate to his.
The applicant said that the President of the locality in which his group worked reported directly to Mr Ali who at the time was the Federal Minister of Water and Power. The applicant said that he was always only focused on supporting Mr Ali in his locality and not others. In addition, he said at the hearing that he only focused on supporting Mr Ali and that he doesn’t know about what was happening in the other electorates. He said that his locality would meet with Mr Ali every two to four months. He said that Mr Ali would come and chat with the members, but he wouldn’t talk with them face to face or one on one. He explained that such politicians didn’t talk to members. This isn’t done, according to the applicant, as they see themselves as being above that.
Since being in Australia the applicant has not been involved in anything related to PML-N. Nor has he been active on social media.
I accept the above evidence regarding the applicant’s political activities and roles as an accurate representation.
During the applicant’s university years, the applicant was suspended due to fighting, but he acknowledged at the hearing that this was not related to the tensions between Messrs Khan and Ali but rather general conflict with members of another party. I accept this as fact.
The applicant said that his family were not involved in politics other than being general supporters of the PML-N. I accept this as fact.
The applicant stated that he was involved in a 2015 incident in which shots were fired into his house. In his written statement dated May 2022 he described the situation as:
In 2015, a group of people came to my house and fired at the front door. I wasn’t home but my family was inside. Some of the bullets were stuck in the door. Luckily no one was hurt in the incident. I suspected Sanaullah as I don’t have any other enemies. We didn’t make a complaint as Sanaullah was the Law Minister and had influence in the police force in Punjab.
At the hearing the applicant explained that at the time Mr Ali was a federal minister and Mr Khan was the Law Minister of Punjab. He claimed that Mr Khan was close to the chairman of the PML-N. He said that they clashed in the media and parliament as Mr Khan wanted to be the loudest voice in the party, but he claimed that Mr Khan would misuse his power.
As an example, he mentioned an incident in 2014 where members of another political party were targeted by Mr Khan and more than 12 people were killed. The legal representative provided several references to country information showing the various accusations against Mr Khan. These included from 2015:
Arif Commando, a target killer who has been awarded death sentence for murdering a Pakistan Muslim League-Nawaz (PML-N) leader Bhola Gujjar, has alleged that Punjab Law Minister Rana Sanaullah ordered him to commit the crime.
And more recently but from another source dated 2 May 2022:
According to details, PTI leader Zulfi Bukhari while talking to media on the occasion of appearance of Sheikh Rashid Shafiq said that 18 murder cases have been registered against Rana Sanaullah, he is a terrorist.
The applicant described an incident in which his brother was attacked. He said that in early 2015 some people slapped his brother, pushed him around and asked about the whereabouts of the applicant. They also made threats against the applicant, saying that whenever they find the applicant, they are going to harm him.
The applicant claimed that he was attacked in March of the same year. In his written statement he described it as:
In March 2015, I was in my area with 4 of my friends and party members and was attacked by 8-10 of Sanaullah’s thugs. I was hit by a large stick and it broke my leg and had some internal injuries. My friends had various injuries on their head. I was taken to [Hospital 1] in Faisalabad. I stayed there for about 2 ½ months recovering and having surgery on my leg. I have a large scar on my leg from the attack and surgery. After being discharged from the hospital, I moved to Gojra to stay with my uncle for around 4-5 months. Gojra is about 80km from Faisalabad. I stayed in hiding while I was there and didn’t get involved with PML-N activities.
Regarding this incident, at the hearing he said that it occurred [in] March 2015. He said that he and his political colleagues held a rally and after 3-4 days he said that he was standing on the side of the road along with his friends when Mr Khan’s people came and started to physically assault them. He claimed that they started hitting him with stakes, batons and hockey sticks. He claims that he was hit on the leg and his leg was fractured. The beating stopped when people around them started making noise and tried to disperse the fight. The applicant claimed that he had to go to hospital afterwards and had surgery. He claims that he remained in hospital for 2-2.5 months. He said that he still has a scar on his leg and offered to show it to the Tribunal.
The applicant claims that he was afraid following this incident and so moved to Gorja where his uncle lived. In his written statement he explains:
While in Gojra a couple of guys came to my uncle’s house and asked for me saying they knew I was staying with him. My uncle told them I wasn’t staying there and eventually the men went away. I was scared and didn’t want my uncle’s family to get hurt because of me. I then decided to return to Faisalabad to be with my family.
At the hearing he said that he stayed there for four months as he wasn’t stable when walking and was still recovering from the attack. He said that while he was there two men came to his house and asked his uncle about him. He doesn’t have an idea of who would have told them where he was or how they found out where he was staying. He claimed that his uncle simply told them that he’s not living there. The applicant did not claim that there were any further visitations.
I asked how they could find him in Gorja and yet didn’t know where he lived in Faisalabad while they managed to find his brother and felt compelled to threaten him to learn of where the applicant lived. He said that his brother went to a school which wasn’t far from their house. I find this answer unconvincing. Having found his brother near to their house would only lead to suspicions that they knew where he was. He added that he suspected Mr Khan and his people know a lot of people, so they probably found a way to find him in Gorja. I put to him again that it seemed incomprehensible that they couldn’t find him in Faisalabad where he had grown up and was active politically and yet found him in Gorja. He then said that they knew where he was living in Faisalabad, but it was a tactic to frighten everyone by threatening his brother instead.
I asked the applicant that if they knew where he lived, why he thinks that they didn’t just wait until he left his home in the morning and attack him then, rather than waiting for him to be with his friends elsewhere. He said that he had a routine that when he left the house he would leave with other friends. He believes that they undertook surveillance of his house to get a sense of his routine before choosing when to attack him. He said that he had seen some people on bikes circling his home to see what he was doing.
He believes that he was targeted despite being junior in the hierarchy because he was strongly involved in political activities. He said that they knew that he was an easy target and yet was active.
The applicant said that following the visit to Gorja he returned to Faisalabad in February 2016 and resumed activities with PML-N. I put to him that this seemed strange as he expressed fear of being found and yet he chose to return and become active again. He said that he had to leave his uncle’s house because of the risk to his uncle and his family. As for his resumption of activities, he said that he didn’t resume his activities straight away. He first spent a week in Lahore with another friend who also was claimed to have feared the ramifications of his presence and so the applicant left. When he came back to Faisalabad he claims to have stayed at home for a while and only then did he resume his political activities in February 2016.
He said that he had been in touch with his members and believed the situation had calmed down and that he could do some good for the community, so he chose to go back to his political activities. He said that other parties were gaining momentum (PPI) so he believed he would be able to contribute to the PML-N.

The applicant claimed that in 2016 he was stabbed. In the applicant’s written statement, he explained:
On 25 August 2016, I was at the front of my friend [Mr A]’s house with my father and was attacked by 5-6 guys on motorbikes. My friend [Mr A] was not in the party and we were there because [Mr A]’s father had died recently. I recognised some of the attackers as Sanaullah’s enforcers. They had guns and were threatening us. They grabbed us and started beating us. I was pushed to the ground and dragged. One guy held my arms down and another guy started cutting me on the [arm] with a knife. He was also burning me with a cigarette. I still have scars from this attack. After a little while, some bystanders intervened, and the attackers sped off on their motorbikes. As they did so they again threatened to kill me next time they found me.
At the hearing the applicant provided some more context. He said that he had mobilised people for Independence Day on the 14 August 2016. He said that this triggered Mr Khan’s people to realise that he was once again involved. He claims that after his re-emergence as an organiser he noticed that people were monitoring his house.
He said that not long after the father of a family friend had passed away, they went to mourn his passing at the friend’s house. He said that Mr Khan’s people came to this house and started beating him and pushed him to the ground. He claims that they used a knife to put scars on his [arm]. I put to him that if it had happened at a house where people were mourning then there would have been a lot of others, he said that there weren’t a lot of people there. He added that it was the day after the funeral, so there weren’t a lot of people. He also added that everyone else was just kicked and punched but he had a knife put into him.
The applicant provided a hospital report with the following details:
a.Date and Time of arrival 25 August 2016 7.15pm
b.Accompanied by father and friend
c.‘fight at about 6.30pm with political rivals’
d.‘multiple lacerated wounds on inner side of [forearm]…multiple lacerated wounds on the outer side of [forearm]…multiple lacerated wounds on the inner side of [arm].’
Following the hearing and at the request of the Tribunal the applicant provided a medical certificate from an Australian doctor dated 20 September 2022 with the following assessment:
This is to certify that [the applicant] was seen today at our clinic. He said he was stabbed on his [arm] by rival political group in Pakistan in 2016. Examination today revealed multiple scars on his [arm] which may have resulted from the stabbed injury.
The applicant had also provided a scanned copy of a private complaint by the applicant recorded by a magistrate’s court dated 3 September 2016 relating to the 25 August event. The action is a private complaint against ‘Shahid son of Imran’ and 7-8 unknown persons. The complaint runs through the claimed series of events of that evening. Specifically, it recalls that the applicant was at a friend’s house offering condolences for the passing of his friend’s father when the attackers came into the house and apprehended the people at gun point. The record continues to detail what is claimed to have happened including that the applicant was held down and beaten, that Shahid pulled a knife and used it to slash the applicant’s [arm]. Following a ‘hue and cry’ of the people from the locality the attackers left, according to the applicant who was then taken to hospital. The private complaint also includes the accusation against the police for not taking action due to ‘political influence’.
A power of attorney was provided showing the applicant had provided to an advocate authority to ‘act, appear and plead’ in the private complaint on behalf of the applicant. In a brief statement dated 29 September 2016 it is recorded that no one appeared before the court on the date of the hearing and as such the complaint was dismissed.
I asked the applicant how he knew that he was the target of the attack at his friend’s house. He responded by saying that he had received the worst of the injuries among all of the people present and so assumed he was the target. He also noted that Shahid had been seen at various Khan rallies and so knew that there was a political connection.
I put to him under s 424AA adverse information arising from oral evidence he had provided to the delegate at the Departmental interview. Specifically, that the only August 2016 incident he had described at the Departmental stage was when he went to his friend’s place after sunset. He said at the Departmental interview that he was riding his motorbike through an area that wasn’t residential and he was stopped by people who accused him of being a supporter of Mr Ali. He claimed that they told him many times to stop his support and then they started hitting him. He explained that he didn’t ride off when he saw them because they were also on motorbikes and there were 7-8 of them. He claims that he went to the police after the incident, but he didn’t get an FIR because the police called someone, and they made the issue go away. He said that he required hospitalisation.
It was explained to the applicant that the discrepancy of narration between what he had said at the hearing versus what he had said at the interview regarding the events in August 2016 was relevant to his credibility.
The applicant chose not to take an adjournment and instead to answer the question. He said that they were two separate events, the one relating to his family friend’s funeral was on the 25 August event while the one I had mentioned occurred about a week or a week and half earlier.
I reiterated to him that he didn’t mention at the delegate’s interview the incident at the friend’s home following the funeral. He said that at the interview he didn’t know that he had to explain everything in detail as he didn’t have legal representation and was expecting only to have his fingerprints taken. He said that it was his first interview in his life and that maybe he missed it.
I find this response troubling. At the hearing the applicant claimed that he was slashed numerous times by a knife cutting across his upper and lower [arm]. This is the most violent attack that he has claimed to have suffered. Such an attack would be indelibly marked in his memory.
I note that he provided to the Tribunal hospital records in 2022 from an incident in 2016.
I stated to the applicant at the hearing that he had not included the medical reports in his submissions to the Department despite noting in the protection visa application, dated 6 January 2017, that he would (question 97 of the application form), being invited to do so at the interview held on the 29 March 2017 but not making it available then, and being given two weeks after the interview to do so but still not providing it. The applicant did not respond.
From the point in time when the applicant wrote in his protection visa application that he would provide medical documents through to the end of the two-week deadline over three months had passed, a period that would be reasonable for the applicant to be able to obtain the records. His inability to access the records on time but his ability do so several years later is concerning.
Instead of explaining the violent attack to the Departmental officer, he recalled another incident that he claims occurred at around the same time which he claimed required hospitalisation but as noted above did not align with the circumstances described at the hearing. When this was put to him, he said that both events occurred. But when asked why he hadn’t mentioned the more violent one, he said that he wasn’t prepared for the interview and he didn’t have representation. While I acknowledge that a representative could have better prepared him for the interview, I am not convinced that an interview that lasted an hour and covered a variety of issues would not have been an opportunity for him to raise this most serious of attacks on him. This raises serious concerns over the applicant’s credibility.
Regarding his family, the applicant has claimed that the reason for his parents’ move to Bhawalpur was because of the threats that he was receiving and in turn they received. He said that they had been threatened over the phone saying that they will hunt the applicant down and kill him when he returns. He claims that the callers pretended to be someone else in an effort to get information about him. He said that despite his parents moving out of Faisalabad in 2018 they are still receiving threatening calls. He said that the threats extended to the family and not just him, but that he is their main target. He stated that the family have not been harmed.
I note that the claimed persecutor, Mr Khan, has been a senior politician in Punjab. It is difficult to reconcile this move out of Faisalabad to another town in Punjab simply to escape the reach of a politician who has authority and power throughout the state of Punjab. While I accept that his powerbase would be in Faisalabad, the applicant is claiming that they chased him down to Gorja, a separate town to Faisalabad. If that is to be believed, then it would be reasonable for the family to assume that they could be found in Bhawalpur negating the value of moving.
While I acknowledge that Bhawalpur is further from Faisalabad than Gorja, Mr Khan was a minister in a government overseeing all of Punjab. The influence that would have allowed him or his henchmen to find the applicant in Gorja would extend to Bhawalpur and any other town or city in Punjab. It is vexing that the applicant is claiming that he was found at his uncle’s house in Gorja but that his parents fled their hometown seeking safety by leaving Faisalabad but moving to another town in Punjab. This adds further concerns about the applicant’s credibility.
The applicant claims that his siblings who were not living with his parents are not at risk as they live in university compounds which have their own security. It is not plausible that someone as powerful as Mr Khan and whose people have been claimed to have an unrelenting intention to harm the applicant would be prevented from pursuing the applicant’s siblings by university guards. This is vexing.
It was submitted that the applicant had been granted a Bridging Visa B on the 26 July 2022 for the purpose of allowing the applicant to depart Australia and return. It was submitted that he intended to travel back to Pakistan to visit his family as his mother was very sick. It was put in the submission by way of the legal representative that the applicant had said that he would take precautions to conceal his return. I place no weight on the applicant’s willingness to return for a short visit. The type of fear he is claiming, were I to accept it, is such that he can undertake precautionary measures for a few weeks.
The applicant claims that he left Pakistan for [Country 1] to seek refuge from his problems, but he only remained for six days. He said that he thought that he could remain longer but that they don’t grant refugee visas. When pressed on why he only remained for six days he said that his uncle’s housemates with whom he was staying asked him to leave as the house was not big enough. He said that he was told he could stay longer if he found work. I note that the applicant had written in his application form that the reason for the visit to [Country 1] was for the purposes of ‘holidays’. Based upon my serious concerns about the applicant’s credibility and noting that he had written in his protection application form as ‘holidays’ as the purpose of his trip and that he was told that he could remain longer if he sought work, but he had chosen not to, I do not accept that the applicant sought refuge in [Country 1] whether through a formal pathway seeking visas that may offer some sort of refuge (albeit [Country 1] is not a signatory of the Refugee Convention) or informal route by way of working. This raises further concerns about the applicant’s credibility.
The applicant stated at the hearing that he left Pakistan on a Pakistani passport. I note that there is an exit stamp that supports this claim. This is relevant so far as it indicates that he left the country legally and there is no claim or inference of a claim that arises from this.
I acknowledge that the applicant claims to have been desperate to flee Pakistan so much so that he was accepting of his agent providing false information regarding his passport. While I accept that the agent completed the form using incorrect information, the motivation could equally be for reasons of fearing that he would not be granted a visa on a Pakistan passport. Noting my concerns regarding the applicant’s credibility, I place little weight on this claim.
In considering the applicant’s evidence I note that his claims of being a politically active member of the PML-N were convincing. I accept that he was a member and supporter of Mr Ali and active in a very limited geographical locality. I also accept that he was involved in some incidents as there is widespread country information on physical clashes between opposing political youth groups.
Regarding the claimed incidents, I accept that bullets were fired into his family house in 2015. The applicant explained that he didn’t know who fired the shots. He said that he wasn’t home at the time. I find it completely speculative to assign motivation of the shooting to him and his political activities under these circumstances. There could be many reasons for the shooting including that an incident had occurred in front of the house involving others, that shots were fired mistakenly at their house and not another or that another member of the family who was resident in the house at the time was the target of a warning. For this reason, I do not accept that the shooting was related to the applicant’s low-level volunteering for the PML-N as a supporter of Mr Ali.
I accept that the applicant was involved in a melee with Mr Khan’s supporters in March 2016. I accept that he was injured in the way described.
I do not accept either of the claimed events from August 2016 for the doubts raised earlier, particularly the discrepancy between the recollection of events between the evidence provided at the interview and what was said at the hearing and the unconvincing reasoning he provided.
While I accept that the applicant has some scarring, I note that the Australia doctor indicated that it ‘may’ have resulted from a stabbing. I am particularly concerned by the applicant’s inability to obtain Pakistan hospital records relating to the claimed scarring in a timely fashion and then an ability to obtain them several years later. That the applicant has associated the scars with an incident that I have not accepted occurred is particularly relevant. These conclusions have weighed heavily in my decision to not accept the scars as being stab wounds arising from a politically motivated incident. Instead, I find that the scarring is related to another event which does not lead to a basis upon which the applicant fears harm.
I do not accept that the applicant’s brother was attacked or that any of his family have been threatened or pursued. The applicant lived and grew up in Faisalabad. He was active in the electorate of Mr Ali. I find it implausible that others would be unable to find him and instead would seek to threaten his brother and family in an effort to seek him out. As noted above, I find it unconvincing that the family would relocate out of a sense of fear to another town in Punjab. For the same reasons I do not accept that his uncle was approached in Gorja.
I asked if he had been harmed in any other way before he came to Australia. He said that he had not been. I accept this as fact.
Considerations
I now consider whether the applicant would face harm from specific individuals with whom he had clashed in the past. In considering this I note that the only confrontation I have accepted as having occurred and being related to his political actions was the March 2016 melee. Following this event, the applicant remained in Pakistan through to the end of December 2016 without any incidents. It is now six years since the claimed fight. Whether any of the 3-4 individuals who were involved are still active in politics or even resident in Faisalabad is unknown. I acknowledge the country information submitted by the legal representative of political violence and the lack of legal protections. But the circumstances of the applicant are not aligned to those referred to in the extracts from the DFAT report as political ‘leaders’. The applicant was an unpaid, deputy of a locality within the electorate of Mr Ali. For this reason, I find him to be a low-level volunteer. The nature of the fight was a random crossing of paths of two groups of low-level political supporters rather than some pre-meditated attack. Such confrontations may occur, but their occurrence is not representative of a targeting of the applicant or a pattern of behaviour such that he would face a real chance of serious harm or a real risk of significant harm into the future. For these reasons, I find that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from this past melee.
I have also considered the circumstances of the applicant’s fight while at university. This is approximately twelve years ago. He remained in Pakistan for six years or more after the fight. As there was no further action against him by any of the individuals involved over the subsequent years, I find that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from his involvement in a university fight.
With regards to his past political involvement separate to any specific melees, I find that through the passage of time and the applicant’s lengthy absence from the local political scene there would not be any intent by any of Mr Khan’s supporters or Mr Khan himself to harm the applicant for reasons of his past political involvement.
When asked of Mr Ali’s current situation, the applicant said that he had been in London but was now back in Pakistan though without any position. Country information was submitted that was interpreted by the legal representative as indicating an intention on the part of Mr Ali to return to politics.
The applicant said that he can’t go back to Pakistan because Mr Khan, as Interior Minister, is in power and in control of the entire country. I put to him that Mr Khan has many things to worry about other than a low-level organiser who was active six years ago. He responded by saying that they won’t forget him.
I asked why he thought Mr Khan would care if Mr Ali is no longer involved in politics? The applicant said that Mr Ali was in London because Nawaz Sharif was in London. He added that Mr Khan is aligned with the prime minister of Pakistan, the brother of Nawaz Sharif.
I noted that this scenario would suggest that Mr Ali won’t have a pathway to returning to politics as Mr Khan is the Minister of Interior and he is closely aligned to the Prime Minister. He responded by explaining that Mr Ali is a relative of Nawaz Sharif and so that will help him get a position. I put to him that it would only be on the basis of Mr Khan and the Prime Minister, who is the brother of Nawaz, making it happen. The applicant said that the position of the party is determined by Nawaz Sharif and he will ensure that Mr Ali gets what he wants.
I note that Mr Ali is no longer in politics. The applicant speculates that he may seek to return in some capacity, but the news articles provided by the legal representative do not go so far as to mention such speculation. They simply note his return to Pakistan from self-imposed exile. Even had the applicant provided some independent sources regarding the speculation of a return to politics there are many obstacles confronting Mr Ali including the very powerful position that his arch enemy currently holds. As it would be speculative to assume how, when, where or in what capacity if at all Mr Ali may return to politics, I do not consider further the applicant’s claimed fears of what would await him were he to resume his support of Mr Ali’s political ambitions. As such I find that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from supporting the political actions or lack of any political action of Mr Ali.

I note that the applicant exhibited an evident lack of knowledge of politics beyond his support of Mr Ali. Since arriving to Australia in 2016 the applicant has not exhibited any continued contribution or engagement with Pakistani politics. For this reason, I find that upon return the applicant would not support another political figure and would not engage in politics and as such does not face a real chance of serious harm or a real risk of significant harm arising from the machinations of other political players.
Even were the applicant to choose, sometime into the reasonably foreseeable future, to become involved with PML-N again, there is no claim and no evidence that arises from the material available to the Tribunal to suggest that simply being a member of that party, as opposed to being caught between two warring political leaders, would lead to a real chance of serious harm or a real risk of significant harm.
When considered cumulatively, namely that he has been involved in two melees, first while at university and the second in 2016 with supporters of Mr Khan, that he was a supporter of Mr Ali and a member of the PML-N who held the position of [position title] in his locality and that some shots were fired in front of his house, I find that even when considered cumulatively the applicant does not face a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of removal from Australia.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
Denis Dragovic
Deputy President

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 4565

29 September 2022

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