2007911 (Refugee)

[2023] AATA 1392

2007911 (Refugee) [2023] AATA 1392 (17 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:2007911

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:James Silva

DATE:17 February 2023

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 17 February 2023 at 6:00pm

CATCHWORDS

REFUGEE – protection visa – Pakistan – Federal Court remittal – political opinion – Pakistan People’s Party – forced Tehrik-e-Taliban Pakistan recruitment – religion – mixed religious marriage – fear of killing – threats from family – return visit to Pakistan – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 91R, 417, 424A, 499
Migration Regulations 1994, Schedule 2

CASES

Fox v Percy (2003) 214 CLR 118
MIAC v SZQOT (2012) 206 FCR 145
MIAC v SZQRB [2013] FCAFC 33
MIMAC v SZRHU (2013) 215 FCR 35
SZLVZ v MIAC [2008] FCA 1816
SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362

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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.    The applicant is a man in his [age range] who claims to be a citizen of Pakistan.

1. The applicant first arrived in Australia [in] June 2012, on a student visa. He left Australia [in] November 2012, and returned [in] December 2013, still holding his student visa.

2. He applied for a protection (class XA) visa on 22 January 2014. On 4 September 2014, the delegate of the Minister for Immigration and Border Protection (the delegate) refused the application pursuant to s.65 of the Migration Act 1958 (the Act).

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

   5.    On 26 June 2016, the Tribunal (the ‘first Tribunal’, differently constituted) affirmed the decision not to grant him a protection visa. The applicant sought judicial review of the Tribunal’s decision. [In] 2019, the Federal Circuit Court dismissed the application for review. [In] 2020, the Full Federal Court ordered that the matter be reconsidered, on the basis that the first Tribunal had breached its statutory obligation to give the applicant an opportunity to give evidence and present arguments on the issues arising in the case.

   6.    The matter is now before the Tribunal pursuant to the order of the Federal Court.

   7.    For the following reasons, the Tribunal affirms the decision not to grant the applicant a protection visa.

   CLAIMS, AND CRITERIA FOR A PROTECTION VISA

3. The applicant claims to fear persecution or significant harm in Pakistan at the hands of Muslim extremists, and in particular his step-brother. He claims that his father and other family members have been politically active in the Pakistan People’s Party (PPP). A step-brother also pursued a political career, and is now a senior member of the Tehrik-e-Taliban Pakistan (TTP). He tried unsuccessfully to recruit the applicant into the TTP, and has threatened to forcibly recruit or kill him. The applicant fears that if he returns to Pakistan, his step-brother will renew his attempts to recruit him, and/or seriously harm him. He claims that the Pakistan police are unable or unwilling to protect him from such harm.

4. The applicant married a divorced [Country 1] woman in Australia in 2017. He claims that his relatives and the local community in Pakistan are pressuring him to convert his wife to Islam, which \neither he nor his wife are prepared to do. He fears that they will be subject to persecutory or significant harm if they go to Pakistan, due to his wife’s religion and failure to convert. He fears that this could take the form of violence at the hands of family members and the community; or the possible prosecution of the couple for adultery. He claims that, even if he returns to Pakistan alone, he faces the risk of pressure and violence, and being forced to marry a woman of his family’s choosing.

5. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. A summary of the relevant law is set out in Attachment A.

   CLAIMS AND EVIDENCE

   Background

6. The applicant is [an age] year old man. He is a speaker of Urdu and English, and identifies as a Muslim.

7. The applicant was born in Lahore and attended school there up till [specified year]. Following his father’s death in 1999, he moved to Karachi with his mother and brother. They lived in [Town 1], where the applicant’s mother also worked in a [service 1] company. He indicated on the application form that in 2002, the family moved to [suburb] of Karachi some [distance] away. The applicant lived there until his departure from Pakistan.

8. In Karachi, he [was educated], up to [specified year]. He did [an] internship at a [product 1] company owned by an uncle, from late [year] to February 2012. As noted above, he departed Pakistan for Australia in June 2012, as the holder of a student visa.

9. The applicant stated in his protection visa application that he had never married or been in a de facto relationship.

   §  His immediate family are his widowed mother and a [brother]. Both live in the family home in Karachi, although the applicant now claims that they have moved home several times in recent years. The brother lived in Australia from 2014 to 2019.[1]

   [1] The applicant’s statement of 16 September 2021.

   §  This was his father’s second marriage. From his first marriage, the applicant has a step-mother and [several] step-siblings ([specified]). One step-brother, [Step-brother A] ([name variants][2]) features in his protection visa application as his alleged persecutor

   [2] This name also appears as [another variant], for instance on the step-brother’s [social media] page. This is a slight variant in the transliteration of the Urdu script into English.

   §  The family background forms part of the applicant’s protection claims and is set out in more detail below.

10. The applicant married an [Country 1] national, [Wife A], in May 2017. He has since presented protection claims based on this relationship. At the recent hearing, the applicant said that he and [Wife A] are living together in [Town 2], where he works in [his profession].

11. The applicant holds a Pakistan passport issued on [2011], valid for five years. Department records show that he obtained a student visa on 23 May 2012, and arrived in Australia [in] June 2012. He was outside Australia from [November] to [December] 2013. He said that he has an ongoing application for a [Skilled] visa, in which [Wife A] is included as his partner. Meanwhile, [Wife A] has lodged her own protection visa application, on the basis of the couple’s relationship.

    Evidence

12. The evidence before the Tribunal includes the following relevant material:

    To the Department

    §  Protection visa application form lodged on 22 January 2014. This includes a detailed statement of claims, dated 31 December 2013. The applicant provided a large amount of country information relating to the period from July to November 2013.

    §  Identity documents: The applicant provided a partial photocopy of a Pakistan passport issued in [2011], and what appears to be a Pakistan national ID card.

    §  Supporting documents:

    -   Photocopy of a worn business card for the applicant’s father, [Father A], ‘[An official of] [a named agency]’ and ‘[An official of] Pakistan Peoples Party’.

    -   An untranslated document described as a ‘family certificate’.

    §  The Department file includes screenshots from [social media] relating to ‘[Step-brother A variant]’ (the applicant’s step-brother), the applicant, his mother [Mother A] and his brother ([Brother A]), with what appear to be the delegate’s annotations. These indicate that they are all [social media] friends.[3]

    [3] The delegate provided details of this information in the decision record, which the applicant submitted to the Tribunal.

    §  The applicant attended a protection visa interview on 2 September 2014 , an audio recording of which is on the Department file.

    §  The protection visa decision record (‘delegate’s decision’) of 4 September 2014, which is the subject of this review. The applicant provided a copy of the decision to the Tribunal.

    §  The Department file includes some folios from the applicant’s student visa application (financial documents provided by his mother).

    To the Tribunal (first and current Tribunal, key relevant documents, not exhaustive):

    §  Statements of claims, 15 February 2016 (statutory declaration) and 16 September 2021.

    §  Pakistan [Agency 1] list, showing the applicant’s grandfather’s name listed as [a specified position] from May 1974 to January 1975

    §  Documents relating to the applicant’s [Step-brother A] (these are set out in detail in the body of this decision).

    §  Mother’s medical documents: Copy of statement from [a named] Clinic, Karachi, dated 22 October 2013, stating that the applicant’s mother suffers from ‘unstable angina’, and recommending that she undergo an ‘immediate angiography/angioplasty’ under specialist care and presence of her elder son’. Also, an executive clinic medical report dated 1 December 2014 relating to the mother’s routine check-up the previous week, and associated reports.

    §  The applicant provided to the first Tribunal a copy of a Department decision dated 1 May 2014, refusing to grant his mother a visitor visa.[4]

    [4] The agent sent this via a pdf document entitled ‘Review Applicant Mother Visa 600 Refusal Decision indicating recent country information.pdf’, i.e. suggesting that the applicant intended to rely on country information referred to in the decision record, about security in Pakistan.

    §  Copies of photographs, purportedly showing the applicant’s brother in hospital after an attack in August 2020.

    §  (To the current Tribunal) an original itinerary showing the planned return date [in] February 2014, and a copy of a revised booking on 14 December 2013 for flights from Karachi to Sydney [in] December 2013.

    §  A large number of photographs and other documents relating to his relationship with [Wife A].

13. The applicant appeared before the first Tribunal on 22 February 2016 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Urdu and English languages. The applicant’s former representative, [named], attended the hearing.

14. The applicant provided to the current Tribunal a statement dated 16 September 2021, with updated information and new protection claims.

15. The applicant appeared before the current Tribunal at a hearing held over two sessions, on 21 July 2022 and 8 August 2022. The first session was held at the Tribunal’s office in Sydney. An interpreter in Urdu was present, but the applicant is fluent in English and did not require an interpreter. The second session was held via videoconference, having regard to the applicant’s current location in [Town 2]; the nature of the new claims and evidence; and the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick. The Tribunal also notes the expense to the applicant and the delay if it had scheduled the resumed hearing to also take place in person. It is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

16. The applicant did not present any witnesses.

    Country of reference / receiving country

17. The applicant claims to be a national of Pakistan. He entered Australia on a Pakistan passport, speaks Urdu and is familiar with that country. These is nothing to suggest that he has any other nationality. The Tribunal accepts that the applicant is a national of Pakistan. Pakistan is therefore the country of reference for assessing his refugee claims, and the country of reference when assessing his eligibility for complementary protection.

    CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS

    Assessment of claims

    23.      When assessing claims the Tribunal must make findings of fact in relation to the claims made, in order to assess whether there is a real chance of serious harm or a real risk of significant harm. The Tribunal recognises that the assessment of credibility is inherently difficult, and that special considerations apply in relation to asylum seekers. It has had regard to guidelines on the assessment of credibility issued by the Tribunal, Department and others.[5] Relevantly, the courts have noted that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[6] However, it is also well established that the Tribunal is not required to accept uncritically claims made by an applicant.[7]

    [5] The Tribunal has before it the AAT’s Migration and Refugee Division , Guidelines on the Assessment of Credibility; Department of Home Affairs, Policy – Refugee and humanitarian – Refugee Law Guidelines, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines); and the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection, re0issued February 2019 at [203]-[204] (UNHCR Handbook)

    [6] Fox v Percy (2003) 214 CLR 118

    [7] SZLVZ v MIAC [2008] FCA 1816 at [25].

18. In the present case, the Tribunal found the applicant to be a confident, articulate witness. However, it has broad concerns that he submitted claims and evidence about his political claims that appeared to be inconsistent, exaggerated and/or misconstrued. He gave the impression of being willing to make statements and submit documents with little regard to their cogency. When asked to address such anomalies (for instance, his and his brother’s return trips to Pakistan), he tended to gloss over these or make further, often unsubstantiated or improvised, assertions.

19. The Tribunal’s concerns about the applicant’s political claims lead it to consider that he is an unreliable witness as a whole. This weighs heavily in the assessment below, including in its consideration of his new protection claims based on his relationship with [a Country 1] national in Australia, and his family’s reaction to it.

    Circumstances in Pakistan

    Family background

    26.      The applicant claims, and the Tribunal accepts, that his father’s family has extensive political and business links in Punjab. His father, [Father A], was [in a business 1 and was] ‘a politician’ with the then ruling Pakistan People’s Party (PPP). At the Department interview, he said that his father had worked with the [Agency 2], and was a former politician, a councillor and a tehsil[8] mayor. The applicant also told the first Tribunal that his grandfather had been [an Official] of the [Agency 3], and that his father had been close to former [Prime Minister A].

    [8] This is an administrative sub-district, sometimes approximated to as a ’county’. Lahore District has 4 tehsils: Lahore Cantonment, Lahore City, Model Town and Raiwind.

20. General country information indicates that the PPP is a centre-left political party with a power base in the southern province of Sindh. It is one of the main opposition parties. The applicant claims that his father often travelled for work and tended to spend most of his time with his first wife and family. As a result, the applicant did not see him often. His father died in 1999.

21. The Tribunal accepts that the applicant’s father was businessman with political connections; that the family is well-connected in Lahore and Punjab; and that their business interests may also extend to Karachi, Pakistan’s largest city.

22. The applicant’s mother is originally from Karachi, and returned there with the children ([Town 1]) following the father’s death in 1999. The applicant wrote that his mother has [number] siblings, some of whom live abroad; and that they have a strong support network in Karachi. His mother is educated, and was appointed as [a] manager of a [service 1] company in their local area. The applicant told the Tribunal that she continues to work casually [in a service 1 role].

    [Step-brother A]

23. The central figure in the applicant’s protection claims is his step-brother [Step-brother A]. The applicant told the Tribunal that [Step-brother A] runs various businesses, mainly in [business areas]. He is also involved in politics and social work, for various Muslim parties. The applicant’s description of [Step-brother A’s] business and political activities strongly suggests that [Step-brother A] has followed in his father’s footsteps.

24. At the Tribunal hearing, the applicant gave further insights into [Step-brother A’s] links with Karachi and his family there. He said that [Step-brother A’s] business links with Karachi include [business areas], and that there are further connections within his and his ‘step family’, eg. his mother’s brother had married the [a relative] of his father’s first wife (in other words, the applicant’s maternal uncle is married to [Step-brother A’s] [relative]).

    [Step-brother A’s] mainstream political work

25. The applicant has consistently stated that [Step-brother A] is involved in politics, ‘just like [their] father’. He has at various points given details of [Step-brother A’s] political work within the mainstream parties:

    §  The applicant wrote (December 2013) that [Step-brother A] was planning to run for political office in Lahore.

    §  He later wrote (February 2016) that [Step-brother A] worked for the PPP; and later joined the Awami National Party (ANP); and in 2011, started working for the Pakistan Muslim League Nawaz (PMLN). General country information in indicates that the ANP was formed in 1986 following the merger of several leftist Pashtun parties, with strong support in the Khyber Pakhtunkhwa and a growing base in Karachi. The PMLN, founded in 1962, is a mainstream Muslim party which won a parliamentary majority in the National Assembly in 1997, when Nawaz Sharif became Prime Minister.

26. At the Department interview, the applicant confirmed his claim that [Step-brother A] supports the PPP, and had political ambitions to follow in their father’s footsteps. In 2013, he actively campaigned for the local PPP candidate. He has gained some profile within the PPP.

27. During both the primary and review stages, the applicant has claimed that [Step-brother A] is powerful and ‘was trying to control the area in order to win the election’ (December 2013 statement). He variously referred to [Step-brother A’s] goal of increasing his personal power and reputation, and his recruitment of young people so that he can deliver ‘vote banks’ (loyal blocks of voters) to political candidates.

    [Step-brother A’s] links with Muslim extremist parties

28. In his original statement, the applicant wrote that his mother’s friends in Lahore told her [Step-brother A] was recruiting militants to help him ‘control the area’. In his February 2016 statement, he wrote that [Step-brother A] used to recruit disaffected youth from schools (including religious schools, madrassas), colleges and mosques. He would appeal to their needs for money or spiritual rewards, train them and then arrange for them to join militant groups. The applicant noted that each political party has its own security agents and militant wings.

    36.      The applicant claims that he became aware of [Step-brother A] working for Tehrik-e-Taleban Pakistan (TTP). The Tribunal notes, by way of background, that the TTP is a Pakistani umbrella group for a range of Sunni fundamentalist Islamist militant groups with different agendas, styled to some extent after the Afghan Taliban. According to the most recent DFAT country report , the TTP and other domestic jihadist groups are responsible for most of the terrorist attacks in Pakistan.

    §  In his original statement, he claimed that a mullah in a local mosque in Karachi, who had tried to educate him in Islam and extremist politics, had revealed his close connections with the applicant’s father and [Step-brother A]. The mullah told the applicant about [Step-brother A’s] political activities for the TTP. He said that [Step-brother A] was determined to work against the PPP, and was supporting the TTP, with a view to introducing Sharia throughout Pakistan and to rejecting US influence. The mullah then advised him of [Step-brother A’s] plans for the applicant to start military training for the TTP.

    §  The applicant later explained (July 2016) that [Step-brother A] enlists recruits from all over Pakistan. He trains them and assigns them to different political groupings. Those from extremist backgrounds join the TTP, and those from more moderate political backgrounds join the militants attached to the mainstream parties. He arranges for some of them to assist him during election campaigns.

    §  The applicant maintains that [Step-brother A] holds a senior position in the TTP, and yet maintains ‘very good relationships’ with the major parties, as he has the resources to help them with unlawful or corrupt activities, and he holds their secrets. This enables him to pursue his work with the TTP with de facto impunity.

    37.      The applicant provided to the first Tribunal a number of photographs and screenshots that seek to demonstrate [Step-brother A’s] political profile, in the PPP and PMLN, and purportedly also the TTP. The applicant claimed that [Step-brother A] is a senior member of the Tehrik-e-Taliban; that he is linked to their terrorist activities, and is subject to an Inter-Services Intelligence Agency (ISI) arrest warrant in Karachi.

    38.      The applicant told the current Tribunal that [Step-brother A] is now older. While he maintains political ties and business interests, his focus has shifted towards religious matters. The applicant said he is not sure whether the Pakistan authorities (the ISI) are still pursuing [Step-brother A]. However, he knows that [Step-brother A] is still using his religious profile and his political ties as cover to recruit young men into the Taliban, through mosques and madrassas, and support extremism. Supporting evidence

1. The applicant presented a range of photographs, largely drawn from social media, showing [Step-brother A] in political settings, such as in front of posters, with politicians and other local people, and in mosques and similar venues. These include the following:

   §  A [social media] posting by [Step-brother A] [in] March 2016 sharing an image ‘Allah o Akbar’.

   §  Photographs with annotations, purporting to show [Step-brother A’s] political profile, religious activities and contacts with the police:

   -   Several photographs of [Step-brother A] engaging in political activities, sitting at a table with political posters behind him.

   -   Photographs purporting to show [Step-brother A] with a ‘famous’ politician ‘[name]’, former Minister of [portfolio]; and with former [official, named]. Another photograph shows him socialising with politicians and policemen, indicating that they are all friends.

   -   Various photographs showing his involvement in Islamic activities. Two photographs show him performing Muslim prayers with a small number of men (the applicant annotated one of these to state that [Step-brother A] provided free food to talibs). Several show him visiting mosques.

   -   Several photographs showing men posing with guns – one of these appears to be [Step-brother A]; two show [Step-brother A’s] younger brother posing with guns, and with young recruits.

   -   A photograph of a bearded man described as [Step-brother A’s] personal guard.

   -   A photograph of him next to a policeman described as his ‘good friend’, which the applicant provided as evidence of his ‘very strong links’ with the police.

   -   A photograph of [Step-brother A] with a gun against his head, which the applicant described as an attempt to ‘terrorise’ him (and others).

   -   Photographs of men at a mosque gathered around listening to Tablige Mullah.

   §  Three of these appear to be screenshots of [social media] postings, dated [in] April 2016[9], showing satirical US Western-style ‘wanted’ posters, with messages such as ‘Wanted dead or alive reward $10000 sheriff’.

   [9] The three postings were made on ‘[a day in] April’, with the year ‘2016’ implied.

2. In the Tribunal’s view, most of these materials are consistent with [Step-brother A’s] profile as a businessman and politician, who fosters ties with local social and religious groups, including young people who can support his campaigns. General country information indicates that personal connections, patronage and reliance on youth activists are common features of Pakistan’s political culture generally.

3. The Tribunal sought the applicant’s comments about the photographs showing [Step-brother A] and/or people associated with him posing with guns (including the one with someone supposedly holding a gun to his head). It also asked about the images that seem to show posters declaring [Step-brother A] as a wanted person.

4. The applicant said that [Step-brother A] has posted these images to appeal to younger people, by presenting himself as a ‘cool guy’, and to intimidate his adversaries (including the applicant and his immediate family). He said that [Step-brother A] had put up posters around Lahore, as a means of boosting his profile among young people (although it is not clear from the images whether these are mock-ups or genuine photographs taken on the streets of Lahore).

5. In this context, he added that [Step-brother A] had become ‘crazy’ for fame and power, and sent contradictory messages. While espousing religious values and presenting as a Muslim on the one hand, he also drank alcohol and promoted violence on the other. The applicant implied that [Step-brother A] was now more powerful, reckless and volatile.

6. The Tribunal queried why, in these circumstances, the applicant and his family had maintained contacts with [Step-brother A] on [social media] . The applicant explained that the family had social media contacts from many years earlier; and that he was hesitant to ‘unfriend’ [Step-brother A] or otherwise provoke him, for fear that he might react badly and threaten or harm his (the applicant’s) mother).

7. Analysis and findings: The Tribunal accepts on the available evidence that [Step-brother A] is a businessman with interests in Lahore and Karachi, with some political profile in PMLN, and various social and religious connections.

8. It finds unconvincing, and does not accept that [Step-brother A] has any association with the TTP, including as a member (or senior member), or a person who has provided material support to it in any other form. It also does not accept that the applicant, or others, believe that he is in any way associated with the TTP. First, the social media materials that the applicant submitted show [Step-brother A] in mainstream political and religious activities, such as in front of PLMN political banners, in the company of politicians and police, and at Islamic events and venues. The Tribunal detects nothing in these, even the more provocative images showing him with weapons and on ‘wanted posters’, that indicate his actual support for the TTP. Second, the applicant claims to have relied on information provided by his mother, a local mullah (during an alleged attempt to recruit him) and public knowledge, with no further insight as to why [Step-brother A] would align himself with the TTP, or why he would risk maintaining such a public profile. Third, the family’s continued contacts with [Step-brother A] on social media, the applicant’s return to Pakistan in late 2013 and his conduct as a whole – discussed elsewhere in this decision – all undermine his claim about [Step-brother A’s] links with the TTP.

9. In sum, the Tribunal does not accept that the applicant’s step-brother [Step-brother A] is a leader, member or recruiter for the TTP, or perceived as such.

   Experiences in Pakistan prior to 2014

10. The applicant’s protection claims arise from two related sources of conflict: (a) tension between his immediate family and his father’s first family; and (b) his step-brother [Step-brother A’s] determination to recruit the applicant to join the TTP.

    Family conflict

11. The applicant claims that there was tension between his family and his father’s first family. They resented the father’s marriage to the applicant’s mother, and the two sons. After the father’s death in 1999, the applicant’s step-mother and her children ‘chased’ the applicant (and his family) out of Lahore. They (particularly [Step-brother A]) blamed the applicant’s mother for the father’s death. They also believed that their father had used political funds for the upkeep of his second family; and demanded that they repay the money.

12. In his original statement, the applicant wrote that when they moved to Karachi, his mother initially rented a house. She later used her savings to purchase the family home in [Town 1]. When the applicant’s paternal relatives found out about the home purchase, they threatened to file a case against his mother, alleging that she had wrongly siphoned off from the father.

13. At hearing, the applicant said that his father’s first family had never accepted his second marriage and the children; he intimated that financial and property issues continued to fuel the animosity.

14. As noted in the delegate’s decision record[10], information on [social media] shows that [Step-brother A] is listed as friends with the applicant, his mother and his brother. At the Department interview, the applicant initially could not explain these contacts, but he later said that [Step-brother A] had started communicating with him and his brother with a view to persuading them to join politics.

    [10] As noted in the delegate’s decision record, a copy of which the applicant provided to the Tribunal.

15. At hearing, the applicant said that [Step-brother A] has multiple [social media] accounts (the relevance of which is unclear), and they become friends many years ago, when [Step-brother A] was ‘very different’. Responding to the Tribunal’s disquiet, he added that he maintained contacts with [Step-brother A], as his mother was alone in Pakistan. He was worried that ignoring or ‘unfriending’ [Step-brother A] would provoke his rage. He acknowledged the Tribunal’s concern, but that things are ‘different’ in Pakistan. He added that they have since severed all contact with [Step-brother A]. The Tribunal notes that the applicant’s mother is a well-educated professional with an extensive family network in Karachi. It does not accept the premise that she is ‘alone’ or vulnerable; it also does not accept the suggestion that the applicant and his family have maintained social media or other contacts with [Step-brother A] out of fear, or to reduce the risk of harassment.

16. The applicant submitted to the first Tribunal screenshots of [social media] texts apparently sent between [Step-brother A] and a relative, in Urdu (Roman script) with translation. The screenshots do not show the name of the other party, or the date of transmission, but have the caption ‘4 hours ago’. The applicant appeared to indicate that they were from late 2015. The translations are of poor quality. [Step-brother A] appears to ask the recipient (identified as the mother’s daughter-in-law) to convey the following message: ‘We request you not to come to our world otherwise it would become very difficult for you to save your honour’. At face value, these messages appear directed to the applicant’s mother, and do not mention the applicant directly. The tone is polite, although this does not rule out the possibility that they convey, and are meant to convey, a veiled threat. There is no further context. The Tribunal accepts that they may reflect some disagreement between [Step-brother A] and the applicant’s mother, but it place no weight on these messages as evidence that [Step-brother A] has an adverse interest in or any intention to pursue the applicant.

17. In brief, the applicant’s claims that [Step-brother A] and his other step-siblings are in dispute with his family do not sit well with their contacts on social media. More generally, the Tribunal considers these claims to be contrived, and lacking in detail and supporting evidence. It finds that, notwithstanding occasional family spats, there is no ongoing conflict between the applicant and his immediate family on the one hand; and [Step-brother A] and the rest of the step-family, on the other.

    [Step-brother A’s] pursuit of the applicant

18. The applicant claimed that his step-brothers were often in Karachi for political purposes. His mother, who was busy with work, pressed the applicant and his brother to focus on their studies and stay away from his step-brothers. This became more pronounced over time, as [Step-brother A] gained political influence in Lahore, and had an increasing number of militants working for him. The applicant and his mother feared that he would call on their home during his trips to Karachi, and ‘create an argument’. 

19. As noted above, the applicant provided a screenshot of what appears to be a [social media] text, in Urdu (Latin script) with a few English phrases, with a poor English translation. It appears that [Step-brother A] is asking a relative to convey a message to the applicant’s mother for her to stay away. The Tribunal does not consider directly relevant to the applicant’s circumstances, or interpret it as any kind of threat to him.

20. The Tribunal has accepted that [Step-brother A’s] business, religious and family interests extend to Karachi (for instance, some maternal relatives of [Step-brother A’s] and the applicant have married and are living there). [Step-brother A] is obviously older, more experienced and more focused on his own pursuits; in these circumstances, the Tribunal accepts as plausible that the applicant’s mother prefers the applicant and his brother to concentrate on their studies and establishing themselves in their own right. However, for the reasons stated above, the Tribunal does not accept that [Step-brother A] is in the TTP or any extremist groups, and it does not accept that his visits to Karachi and contacts with the applicant are in any way menacing.

    Local mullah’s attempt to recruit the applicant

21. The applicant claims that in late 2011 and early 2012, a local mullah in Karachi, with close links to [Step-brother A], tried to recruit him for military training and deployment to Khyber Pakhtunkhwa (KPK)[11]. This unfolded in the following way:

    [11] The applicant referred to this by the name used prior to April 2010, North West Frontier Province, NWFP

    §  The applicant completed his studies in [specified year], and had been unable to find work.

    §  A local mullah ‘instructed’ him to work at the mosque. (The applicant claims by way of background that his mother relied on the mullah’s support, as he was being brought up in a single parent household; but she had no idea about the mullah’s ‘motives’.)

    §  The mullah encouraged the applicant to join a madrassa (Islamic school), study the Koran and undertake physical training, all with a view to obtaining work in Peshawar (in the KPK). The applicant was initially open to this idea, to help support his family.

    §  The mullah’s discussions became increasingly political, promoting Muslim extremism, such as the introduction of Sharia law throughout Pakistan and the rejection of US influence. He revealed to the applicant his close links with [Step-brother A], and that he would encourage [Step-brother A] to offer the applicant military training and work in the KPK.

    §  The applicant informed his mother, who was furious and forbade him to have anything further to do with the mullah. She arranged for him to get an internship in a local [product 1] company owned by an uncle.

    §  In January 2012, the mullah contacted ta and expressed his displeasure that the applicant had been avoiding him and the mosque. He said that [Step-brother A] had agreed to take him for military training in the KPK in the near future.

22. The applicant claims that, on hearing this, his mother told him that she had also heard that [Step-brother A] was in the TTP, and was involved in recruiting young Muslim youths for training in the KPK (‘tribal areas’).

23. Having found that [Step-brother A] is not a TTP member or recruiter, the Tribunal does not accept the applicant’s claim that he collaborated with al local mullah to indoctrinate and later attempt to recruit the applicant into the TTP. Several factors reinforce this conclusion. First, this account rests on the notion that the applicant’s family was somewhat vulnerable and isolated.  This is why they on they relied on the mullah for support, why he (the applicant) was initially receptive to the mullah’s idea of him finding work in Peshawar (some 1500km from Karachi); and why the family was previously unaware of the mullah’s extremist leanings. This does not sit well with the applicant’s own claims about his mother’s extended family network in Karachi, and her professional career and standing there. Second, the Tribunal does not accept at face value that the mullah, or [Step-brother A] working through him, relied on chance meetings and such a circuitous route to try recruiting him. Third, for the reasons addressed below, the applicant’s subsequent conduct – the circumstances of his departure from Pakistan in mid-2012 and his return there in late 2013 – is not consistent with his claim that he was singled out for enlistment into the TTP.

    Departure from Pakistan

24. The applicant claims that, following the mullah’s last exchange with him (in around January 2012), his mother arranged for him to stay at a friend’s home, while she made arrangements for the applicant’s travel.

25. The applicant claims that, after he left Pakistan, his mother told him that [Step-brother A’s] men had come to the family home in Karachi to take him away. On learning that she had sent him abroad, they ordered her to call [Step-brother A] and speak with him directly. [Step-brother A] was abusive, and threatened to abduct the applicant if they ever found him in Karachi.

26. The applicant claims that [Step-brother A] and his men then started to pursue his younger brother, with a view to recruiting him. His mother sought police protection for the brother. However, the police declined, saying that it would be too dangerous for them as [Step-brother A] is a senior member of the TTP. On learning about this, the mother’s relatives took the younger brother away for his safety. His mother then made arrangements for the brother to leave Pakistan as well.

    Return to Pakistan: November 2013

27. The applicant returned to Pakistan in November 2013, during a study break from his [course] in Sydney. He claimed that he had been homesick, and missing his mother and brother.

    §  The applicant suggests that he had compelling reasons to risk returning to Pakistan, despite his claim to have fled in mid-2012 (and despite the more general high level violence in Karachi around that time.) The applicant submitted a copy of a certificate from a Karachi clinic, dated 22 October 2013, stating that his mother has had ‘unstable angina’ for the previous six months, and could suffer a heart attack at any time. It states that she requires angiography/angioplasty (a common surgical procedure to repair a blood vessel) and that the ‘presence of her elder son is necessary for her treatment’. A later medical report ([from a named] Hospital, Karachi) dated 24 November 2014 indicates that the applicant’s mother had suffered hypertension in the previous two years; that she is receiving routine check-up; and that she was advised to pursue healthy eating and exercise habits. The documents do not reveal any serious illness.

    §  The Tribunal accepts that the applicant was keen to see his family, but does not accept that his mother had any urgent medical issues (such as imminent surgery), or that there was any other reason compelling him to return.

    §  The applicant claims that, at that stage, he and his family had not heard from [Step-brother A] for a while. However, this does not sit well with the applicant’s other evidence that [Step-brother A] has enduring political and business links in Karachi, and indeed family connections (other than directly through the applicant’s mother).  

    §  The applicant also claims that, as a precaution, he stayed with maternal relatives in Karachi, and his mother joined him there (she was working during the day, and overnighted with the relatives with whom the applicant was staying). They were worried that, if they stayed in the family home, neighbours would inform ‘the terrorists’. The Tribunal accepts as plausible that the applicant stayed with maternal relatives, particularly if his mother was working during the day. However, it does not accept that this was in response to any specific threats, from [Step-brother A], the mullah or others.

28. The Tribunal finds that the applicant’s return to Pakistan in November 2013 significantly undermines his claims about [Step-brother A’s] pursuit of him in 2012, and about his departure from Pakistan as a flight from imminent harm.

    Renewed threats in Pakistan

29. The applicant claims to have enjoyed his holiday with relatives in Karachi. However, he returned to Australia earlier than originally planned due to the deteriorating security situation in the city and (as he wrote on 15 February 2016, after assuring himself that his mother was fine). He submitted to the Tribunal two itineraries for his return travel from Karachi to Sydney, one showing an original return date [in] February 2013, and a second one – changed on 14 December 2013 – showing a new return date of [in] December 2013. Country information indicates that Karachi experiences high levels of general criminality, as well as violence based on a complex mix of political, sectarian and ethnic interests. These were at historically high levels during 2013.[12] The Tribunal accepts that the applicant brought forward his return to Australia at least in part due to the poor security situation in Karachi.

    [12] International Crisis Group 2014, Pakistan: Policing Urban Violence in Pakistan, Asia Report No.255, 23 January, Executive Summary, p.i and p.30: Express Tribune, The (Pakistan), Tackle Extortion, kidnappings: Rangers to form special task force, 2 July 2014 /729831

1. The applicant claims that on [a day in] December 2013, things unexpectedly took a turn for the worse.

   §  On [the day in] December 2013, ISI officers conducted a raid on his mother’s home in [Town 1] in search of TTP militants who had been planning an attack. They questioned the applicant and other family members about their knowledge of [Step-brother A]. The applicant’s mother was at work at the time, but his uncle told the investigating ISI officers that [Step-brother A] had been threatening her.

   §  When the ISI left, the applicant (and his relatives) started to worry about [Step-brother A’s] reaction if he learned about their complaint to the ISI. As feared, [Step-brother A] called the applicant’s mother. He let her know that an ISI officer had intimated that a family member had made a complaint about him. He also said that he was aware of the applicant’s return to Pakistan, and threatened to abduct him within hours.

   §  The applicant’s mother immediately sent the applicant into hiding at a friend’s home. Meanwhile, she paid a large sum for some local Mutahidda Qaumi Movement (MQM) cadres to provide protection from the TTP, ‘for the time being’.

   §  [Step-brother A] and his men in fact came looking for the applicant, but ended up having an altercation with the MQM cadres.

   §  The applicant had a return flight to Australia booked for [a day in] February 2014, but rebooked for an earlier flight in response to the imminent danger.

2. In his statement of 15 February 2016, the applicant also claimed that – unbeknownst to him at the time – the MQM had been protecting him during his return visit to Pakistan. The applicant referred to the MQM on several occasions during this application. This is a Karachi-based secular political party which advocates for the rights of Muhajirs (Urdu-speaking Muslim migrants from [Country 1] and their descendants). They rose to prominence in the 1980s and 1990s, during which their militants were involved in widespread political violence. They continue to operate as a political force. Like other parties, they have militias that protect members, and are also associated with political violence and criminal activities.

3. As noted above, the Tribunal accepts that security conditions in Karachi were poor at the time of the applicant’s return there in late 2013. Formal responsibility for Karachi’s security rests with the paramilitary Rangers. They initially focused on tackling ethnic, political and sectarian violence in Karachi, but in September 2013, the Pakistan government approved their deployment in targeted anti-crime operations. The Tribunal accepts, on this basis, that the applicant may have witnessed such house to house sweeps during his stay in Karachi, and that these may have included his mother’s or other relatives’ homes. It also accepts that these may have added to the applicant’s sense of insecurity.

4. The Tribunal has significant concerns, however, about this claim. First, for the reasons stated above, it does not accept at face value that [Step-brother A] is a member of the TTP, or for that matter that he has inside sources in the ISI to tip him off. Second, it is striking that the alleged raid took place just four days after the applicant amended his return flight to Australia, and five days before his new departure date. The Tribunal accepts that coincidences do occur. However, the timing of the raid and the suggestion that the ISI officer(s) who conducted it contacted [Step-brother A] to alert him, taken together with the Tribunal’s broader concerns about the applicant’s credibility, lead it to disbelieve that there was any such incident.

   Delay in seeking protection

5. The applicant’s delay in seeking protection in Australia until January 2014, 18 months after he first arrived here and only after he had made a return visit to Pakistan in late 2013, adds to the Tribunal’s concerns. It raises questions as to the applicant’s need for protection, suggesting instead that he lodge the application only as a means of obtaining permanent residency.

6. The applicant told the Tribunal that he not originally planned to apply for protection, preferring instead to obtain permanent residency after completing his studies. The Tribunal accepts that the applicant may have preferred to obtain permanent residency on the basis of his studies and skills, and that he sought protection only after it became apparent that he could not obtain further visas or permanent residency. Clearly, these pathways to residency are not mutually exclusive.

7. However, the Tribunal does not accept the applicant’s claims about his experiences in December 2013 (i.e. [Step-brother A’s] renewed pursuit of him), therefore does not accept that this propelled him to seek protection. This brings the timing of the application into sharp relief. It adds to the Tribunal’s view that he did not lodge his protection visa application due to a need for protection, but rather as a means of securing permanent residency in Australia.

   Recent developments

   Brother’s return to Pakistan

8. The applicant wrote in his original statement of claims (December 2013) that, after his departure for Australia, [Step-brother A] and his men started to pester the applicant’s brother [Brother A]. The police, responding to the mother’s request for police protection, said that they were unable to assist, due to [Step-brother A’s] role as a senior member of the TTP. His mother moved [Brother A] to a relative’s home, and started making arrangements for him to depart Pakistan.

9. In his submission to the Tribunal, the applicant wrote that [Brother A] moved to Australia in 2014, and lived here until October 2019, when he returned to Pakistan permanently to live with his new wife. In his statement and his responses to the Tribunal’s questions at hearing, the applicant gave the following further information:

   §  [Step-brother A] had tried to recruit [Brother A], but ‘not to the same extent’ as the applicant, who was the oldest son and who looked more like their father.

   §  The applicant said that [Brother A] returned at the insistence of his wife’s family. They are Mohajir, and were therefore able to secure protection from the MQM.

   §  The applicant added that [Brother A] had also been motivated to return to Pakistan because their mother had been unwell. (As noted elsewhere, the applicant provided medical evidence relating to his mother’s hypertension, but no other pressing health issues.) [Brother A] first moved in with a maternal uncle, and since then has been renting his own home.

   §  During the course of the discussion, the applicant said that [Brother A] had opened a [business 2] on his return to Karachi, but that the business failed during the COVID pandemic. He now works in [another industry], mainly from home. The Tribunal flagged that [Brother A’s] return to the area, and his confidence in investing in a business there, undermined the applicant’s claims as to [Step-brother A’s] adverse interest in the family. In response, he said that [Brother A] is a professional [occupation 1], and relied on the protection that his wife’s family had been able to secure.

10. Even taking into account [Brother A’s] position as the younger brother, the Tribunal finds it difficult to believe that he left Pakistan for reasons related to the applicant’s protection claims, i.e. [Step-brother A’s] threats, and yet later returned to live in the same Karachi neighbourhood and to open a [business 2]. The applicant’s efforts to explain [Brother A’s] conduct – for instance, by reference to their mother’s health, and his wife’s family ability to secure protection from the MQM – lacked detail and supporting evidence. This adds to the Tribunal’s doubts about the applicant’s claims regarding [Step-brother A’s] profile and his pursuit of the applicant are untruthful.

    [Step-brother A’s] continued threats and violence

11. The applicant claims that in August 2020, [Step-brother A] again called on his mother to demand money, referring to the funds that his father gave to her (i.e. the unresolved financial issues following the father’s death in 1999). He also stated that he was aware of the applicant’s marriage to a non-Muslim [Country 1 citizen] in Australia (see below).  

12. The applicant’s brother was at work, and returned home immediately to deal with [Step-brother A]. [Step-brother A] repeated his demands for money, and assaulted the brother, kicking him in the head until he lost consciousness and had an epileptic seizure. [Step-brother A] then left the house, threatening all family members (including the applicant’s wife in Australia).

    80.      At hearing, the applicant said that [Step-brother A] punched and kicked [Brother A], knocking him out. Family members took him to a clinic on the ground floor of the apartment. He received painkillers for a pain in his shoulders, but did not require any further specific treatment (for instance, following the seizures).

    §  The applicant presented: (a) photographs showing a man said to be his brother lying on a hospital bed, fully clothed, with dressing on the nose and forehead, and a drip attached to his left hand; and (b) a photograph of him with bandages on his nose and forehead (this time, in different clothes and what appears to be in a home setting). There is no other evidence, such as documentation of [Brother A’s] hospital admission, treatment, work-related papers or correspondence within the family about the incident.

    §  The applicant claims that his brother is still suffering ‘mental trauma’ and living in fear.

    §  The police have refused to take any action against [Step-brother A], due to his power and influence.

13. The Tribunal accepts, on the basis that it is plausible, that the photographs show [Brother A]. They appear to show an injury to his nose and forehead. This may be consistent with him having had an epileptic seizure, suffering impact injuries following a fall and losing consciousness. It is not possible to tell from the photographs whether there was any assault prior to the seizure; or whether there are other injuries from punches and kicks (for instance, the applicant referred to his shoulder).

    82.      At hearing, the applicant intimated that [Step-brother A’s] sustained interest related to his unfinished business with the applicant, his wish to extract money from the family, and the new issue of the applicant’s marriage in Australia.

14. The applicant claims that, following the Taliban takeover in Afghanistan in 2021, the general security situation in Karachi has deteriorated, and [Step-brother A] and his other step-brothers have become more powerful. Local mullahs and Pathans regard them as heroes for supporting the Taliban with financial and military assistance. The applicant’s mother has heard they are planning suicide bomb attacks. The applicant wrote that [Step-brother A] is now ‘seldom seen in Karachi’, but that he kept harassing his mother and brother, such that they have had to move home three times in the previous two years (i.e. between 2019 and 2021). He did not provide details or supporting evidence of them having moved home.

    Findings

15. The Tribunal accepts that the applicant’s stepbrother [Step-brother A], following on from from their father and grandfather, is a businessman and would-be politician associated with the PMLN (and previously other mainstream parties), who cultivates social, religious and family contacts in Lahore and Karachi. It does not accept that [Step-brother A] has anything to do with the TTP, or, on the available material, that he is engaged in significant criminal activities such as terrorism or drug trafficking. It accepts as plausible that the applicant’s mother, and others, are somewhat wary of [Step-brother A], for reasons such as occasional family spats or his brashness, However, it does not accept that there is ongoing enmity between the families; unresolved disputes about the father’s money; that he threatens or intimidates them, or that he tried to recruit the applicant for military training, directly or through a local mullah in Karachi. It does not accept that [Step-brother A] has threatened to harm the applicant; that he has intimidated and on one occasion assaulted his brother; or that he has caused the applicant’s family to take precautions such as moving home or hiding. The Tribunal finds that the applicant’s initial travel to Australia in mid-2012 and his earlier than expected return in December 2013 were for reasons unrelated to his protection claims. The Tribunal does not accept any of the associated claims, including that the applicant genuinely fears [Step-brother A], his brothers and associates.

16. The Tribunal finds that the applicant departed Pakistan, and has applied for permanent residency, for reasons unrelated to these protection claims.

    Marriage to [Country 1] national, [Wife A]

17. The applicant claims to have married [Wife A] [in] May 2017.  In his statement of 16 September 2021, he stated that she is [a Country 1] national currently living in Australia, who divorced in 2016. He gave few details or supporting evidence about her identity, the relationship or the marriage.

    §  Regarding her background, he claimed that she was previously married, and divorced in 2016. He did not identify her former husband.

    §  He suggests that they met at college in Australia. Her ex-husband used to humiliate and stalk her on the way to and from college. In response to her request for help, the applicant accompanied her to and from college. Eventually, they fell in love and decided to marry.

    §  The name indicates that [Wife A] is [Religion 1]; in his statement, the applicant referred to her father and uncle being members of [Party 1] ([in Country 1]).

18. The applicant did not present [Wife A] as a witness. It transpires that she accompanied the applicant to Sydney when he came for the in-person hearing. At the resumed hearing, the applicant replied, somewhat casually, that she was busy at work.

19. The applicant submitted a large volume of material relating to the relationship in July and August 2022, which includes the following:

    §  Advice that his wife is [Wife A], [DOB].

    §  [Wife A’s] divorce certificate, showing she married [her first husband] [in] November 2014, and the divorce was finalised [in] April 2017, with effect from [May] 2017.

    §  A significant number of photographs and a few videos showing the applicant and [Wife A], together and with family members in Australia. Broadly speaking these cover the following:

    ­   Wedding photographs and several short videos.

    ­   Various selfies taken by the couple, annotated to indicate that they are from the period 2017 to 2022; in locations such as Sydney, [and other locations]; and for occasions such as their wedding, honeymoon, first wedding anniversary; on their birthdays over a number of years ([dates] respectively), successive New Year’s Eves, with extended family, at the applicant’s brother-in-law’s wedding in 2022; and in other settings such as at home or on outings.

    ­   Several short videos.

    §  Quote for the wedding reception at [a type of] restaurant, with a paid deposit of $300.

    §  Email dated 3 May 2017 in which [Wife A] cancelled her lease and advised the real estate agent that she was getting married later in the month.

    §  [Wife A’s] income tax returns (2017-2021), in which the applicant is identified as her spouse.

    §  The applicant’s and [Wife A’s] advice to superannuation trustees, nominating each other as beneficiaries.

    §  [Wife A’s] doctor’s report from March 2021, recommending fertility testing for her (with reference to the applicant’s name as her partner), and various pathology requests for both of them.

    §  Tenancy agreement in both names, from 4 February 2019, for premises in [a named suburb].

    §  Tenancy ledger for property in [Town 3], July 2019 to January 2020; with electricity bill in [Wife A’s] name (March 2020).

    §  Evidence of travel together: Hotel bookings (2-6 June 2016, for two in [one location]); bus trips to [another location] October 2021; and flights (to Sydney for the first Tribunal hearing).

    §  Four statements of support from friends, attesting that the applicant and [Wife A] are in a genuine relationship.

20. As the Tribunal put to the applicant at hearing and in s.424A letter, in December 2017, [Wife A] informed the Department that she was single, and planning to return to [Country 1] following the completion of her studies. At hearing and in its letter, the Tribunal invited the applicant’s comments/responses, noting the relevance of this information to: (a) the genuineness of the relationship; and (b) whether he had any genuine or well-founded fears of persecution or significant harm arising from it. The letter set out the information as follows:  

    [Wife A] made an online application for a student visa on 20 December 2017. In the application, she gave her relationship status as ‘never married’; and that there are no other members of the family unit.

    She stated that she relied solely on her parents for financial support. She wrote ‘My only intention is to complete my study and go back to [Country 1] to establish myself as a skilled professional [occupation 2] and also to assist my family to upgrade our family business and take it to the next height’.

    [Wife A] signed a statement acknowledging that she had provided no false or misleading information. She provided a personal email address for correspondence, indicating that there was no authorised recipient or other person providing advice.

    [Wife A] gave as a residential address [specified], which is a three-bedroom home.

21. At hearing, the applicant stated vaguely that [Wife A] provided this information on the recommendation of her former agent. In his written comments/response, he stated that the migration agent did not declare their role, and had failed to give [Wife A’s] correct marital status. The applicant provided (among other things) a copy of an email dated 20 December 2017 from [agent name and address], to [Wife A name variant] (his partner’s former married name) advising that they had lodged the student visa application on her behalf. The applicant did not address the statement that [Wife A] had made regarding her reliance on her parents for financial support, or her future intentions to return to [Country 1] after her studies. As noted above, he did not request the Tribunal to take oral evidence from her.

22. The applicant gave the Tribunal the name of [Wife A’s] first husband, saying that he (the applicant) and [Wife A] had known each other during her first marriage, as friends. He described the first marriage as having been arranged by her family. He spoke with some familiarity about [Wife A’s] visa history, and her efforts to secure residency. He did not know the whereabouts or current circumstances of her first husband.

23. It was after the first hearing session and the Tribunal’s presentation to him of adverse information that the applicant submitted the supporting documentation relating to the relationship.

24. At the resumed hearing, the Tribunal discussed the supporting documents that the applicant had submitted. It flagged its surprise at the late submission of the documents, and sought further details relating to the photographs, and circumstances such as the wedding, the applicant’s and [Wife A’s] accommodation, any pending applications and their future plans, if this application were not to succeed. He said that their friends and colleagues in Australia are aware of the relationship, and they present as a couple.

25. The applicant spoke with ease and in detail about aspects of his and [Wife A’s] relationship, their travel around Australia and their social contacts. However, he was unable to provide details or supporting evidence on a number of relevant matters. For instance, he said that he paid $5,000 in cash for the wedding reception, and had no receipts or other proof of payment. Similarly in relation to their accommodation in Australia, which appeared to include apartments with multiple bedrooms, the applicant said that some family members had stayed with them from time to time. He said that this had been done for cash in hand, and he was vague about their current circumstances.

1. The Tribunal noted that the applicant and [Wife A] had nominated each other as superannuation beneficiaries, and [Wife A] had declared the applicant as her spouse for taxation purposes. It enquired about their other financial arrangements, such as joint purchases and any shared accounts. The applicant said that they opened a joint bank account at one point, but it did not work out. He gives [Wife A] money for grocery purchases.

2. The applicant referred to some modest gift purchases, but said that they had bought only a few household items, as they are currently in hotel-style accommodation provided by his employer. He said that [Wife A] sometimes drives his car, using her [Country 1] licence, but when asked for details of the last occasion she did so, advised that she no longer uses her [Country 1] driving license.

3. The Tribunal noted the large number of photographs showing the applicant and [Wife A] in social and private setting, and other documentary evidence, but flagged its concern that the applicant and [Wife A] may have contrived this as a means to obtain permanent residency. In this context, it enquired about any joint plans if this application were not to succeed. The applicant had advised that he also has a pending [skills visa] application, and that [Wife A] has lodged a separate protection visa application, on the basis of the claimed relationship with the applicant. The applicant replied that, as he and [Wife A] cannot live as a couple in either [Country 1] or Pakistan, he had explored job opportunities abroad, such as in [specified countries]. After the hearing, he submitted a copy of a form he completed in October 2018 for a [Country 2] migration consultant, in which he gave his marital status as ‘married’ (with no further details); and copies of several emails from early 2018, acknowledging applications for positions in [Country 2] and [another country].

4. In sum, the Tribunal is troubled by the applicant’s generally poor credibility (including his adherence during this review to claims that it considers fabricated); the somewhat patchy evidence as to their living and financial arrangements; and [Wife A’s] evidence to the Department in December 2017 that she is unmarried, and not reliant on the applicant for financial (or other) support. In these circumstances, the Tribunal has concerns that the relationship is either wholly contrived, or that it is motivated by a shared purpose in securing permanent residency in Australia, rather than a genuine commitment to a shared future (including exploring all options for living together in Pakistan or [Country 1]).

5. Nonetheless, taking into account the applicant’s oral evidence, and the large volume of photographs and other documents showing the applicant’s and [Wife A’s] companionship, social recognition as a couple and personal affairs (such as the fertility reports), the Tribunal accepts for the purpose of this decision that they are in a genuine relationship. 

   Opposition from the applicant’s family

100.   The applicant wrote in September 2016 that he told his mother of his intention to marry [Wife A]. She and other relatives demanded that he convert [Wife A] to Islam before the marriage. The applicant wrote that neither he nor [Wife A] wanted the other to convert to their faith. Furthermore, they find this kind of expectation ‘unreasonable and unfair’, as they fear it would infringe on their customs and religious practice. This, in turn, would be detrimental to the relationship.

101.   The applicant provided purported text messages from family members indicating their opposition to the marriage. These are in Roman script, a mix of English and Urdu, without translation.

§  In one exchange ‘[Name 1]’ writes: ‘listen carefully stills end’, and the applicant replies in English ‘Can’t you guys mind your own business? Please stay away from my married life.’ (The rest of the exchange is in Urdu.)

§  In an exchange with ‘[Name 2]’, the applicant’s text includes some English phrases and appears to ask this person to conceal the relationship from others, and not try to ruin it or show disrespect to the applicant and his wife.

102.   At hearing, the applicant confirmed that he had told his mother in advance about his intentions to marry [Wife A], adding that she had sent a wedding dress from Pakistan. Responding to the Tribunal’s observation that this would suggest that she approved of the marriage and of [Wife A], the applicant replied obliquely that the wedding outfit had not been measured, and was ‘baggy’. The Tribunal took this to mean that this had been a gesture, perhaps an empty gesture, from his mother.

103.   The Tribunal asked how – given claimed the claimed sensitivity of his marriage to a non-Muslim – other family members and neighbours came to learn about it.  He replied that many guests attended the wedding, and there was mention of it on social media platforms such as [specified social media platforms].

104.   He said that his mother had told her extended family at a gathering, and they did not approve of him marrying a non-Muslim. His aunts had been pestering, and an uncle had spoken to him about it on [a messaging service]. His maternal relatives had warned him that they will forcibly (re-)marry him to a Muslim woman. The Tribunal noted the purported text messages, and wondered if these indicated any more than disappointment or disapproval. In response, the applicant said that his relatives would not hold a gun or knife to him if he returns to Pakistan, but they will pester him and ‘make life a living hell’. It was in the context that he said that he and [Wife A] had already explored the option of living together in third countries, as life for them in Pakistan would be untenable.

105.      In his statement of 16 September 2021 and at hearing, the applicant also claimed that his marriage to [Wife A] had come to the attention of [Step-brother A], as well as members of the broader community, in particular local MQM activists. (Note: The applicant had earlier claimed that his mother had been able to secure MQM protection for him during his return visit to Pakistan in late 2013. His brother [Brother A] married a local woman with close MQM links, and their protection had enabled him to return to and settle in Karachi).

106.      The applicant claimed that [Step-brother A’s] disapproval of his marriage was one of his motives (alongside his ongoing pursuit of the applicant for recruitment to the TTP, and his demands for money) for the alleged assault of [Brother A] in August 2020.

107.      The Tribunal accepts that the applicant’s extended family have learned about his marriage to [Wife A], and it accepts as plausible that they have indicated some degree of disappointment or disapproval – for instance, that he married in Australia rather than in a family setting in Karachi, and that he married a non-Muslim. At hearing, the Tribunal drew on general country information about attitudes towards interfaith marriages in Pakistan. This shows a generally more liberal approach in urban areas, particularly among the well-educated and more cosmopolitan sectors, whereas more traditional practices, including the outlawed practice of honour killings also persist.[13] As noted by the UK Home Office in a June 2020 report: ‘The Freedom House report, Freedom in the World 2020, noted that whilst  men and women enjoy personal social freedoms and recourse to the law in some urban areas of Pakistan, ‘… traditional practices in much of the country subject individuals to social control over personal behavior, and especially choice of marriage partner. Despite successive attempts to abolish the practice, “honor killing,” the murder of men or women accused of breaking social and especially sexual taboos, remains common, and most incidents go unreported.’’[14]

[13] The Tribunal drew on, among other things, advice in the UK Home Office Islam.org, ‘Marriage (Part I of II)’ (Issue 2406), n.d.

[14] UK Home Office: Country Information and Policy Information Note: Pakistan: Background information, including internal relocation, June 2020, paragraph 17.1.2     In the present case, the applicant’s family is evidently educated and well-travelled. While [Step-brother A] makes a public display of his Islamic faith, the Tribunal does not accept that he is devout or a member of the TTP, or that the family enforce traditional practices. Given its broader concerns about the applicant’s credibility, the Tribunal does not accept that his maternal relatives, [Step-brother A], MQM activists or anyone has signalled their strong displeasure that his marriage, let alone made threats to harm him or force him to marry on Muslim on his return to Pakistan. Even taking the purported messages with his [relatives] at face value – which the Tribunal does not, as they appear to be selected snippets, out of context – these indicate no more than that some of his aunts are somewhat intrusive. The Tribunal does not accept that the applicant is fearful of either the aunts, or other relatives, or their intention and capacity to cause (and potentially [Wife A]) trouble in the future.

109.      The Tribunal has rejected above the applicant’s claim that [Step-brother A] assaulted his brother in August 2020, for any reason at all. It does not accept that [Brother A], the applicant’s mother or anyone has come under pressure or threats, arising from the applicant’s marriage to [Wife A]. It also does not accept that the applicant’s mother has moved home, or taken other precautionary steps, in response to such threats.

Threats in [Country 1]

110.   In his statement of 16 September 2021, the applicant gave details of his wife’s background, including her father’s and uncle’s links with the [Party 1], and their adverse experiences in [Country 1]. He claims her ex-husband informed the [Country 1] authorities that she has married a Pakistani terrorist; and that both [Wife A] and the applicant had been involved in terrorist attacks in [Country 1].

111.   The applicant states that, due to the [Country 1] authorities’ belief that he is a Pakistani terrorist, they will not grant him an [Country 1] visa. This appears to anticipate the question of whether he has safe third country protection within the meaning of s.36(3), such that Australia does not have protection obligations in respect of him. However, the Tribunal is not satisfied that the applicant has a currently existing right to enter and reside in [Country 1], temporarily or permanently. It is not necessary for the Tribunal to determine whether he could make a visa application, the prospect of it being granted and/or whether any such visa would confer on him the ‘right to enter and reside’ there.

112.   The applicant presented claims in relation to [Country 1], including the [Country 1] authorities’ threats to kill him if he attempts to enter [Country 1], and against [Wife A]; and threats from the family of [Wife A’s] ex-husband. There is no suggestion that any such threats would affect the applicant’s on his return to Pakistan (eg. that the [Country 1] authorities, the ex-husband’s family or anyone else has the motivation and means to target him in Pakistan). The applicant’s purpose, in recounting these, appears to be to echo and support claims that [Wife A] may have made in her separate protection visa application.

113.   The Tribunal therefore considers them irrelevant to this decision.

Summary of findings

114.   The Tribunal accepts that the applicant and [Wife A] are married; and that this is an interfaith marriage that does not have the prior approval of the applicant’s family It accepts, for the purpose of this decision, that the applicant and [Wife A] are in a genuine relationship. The Tribunal accepts that some members of the applicant’s family have expressed their disapproval of the relationship, but it is not satisfied on the evidence before it that they have threatened to harm the applicant; that [Step-brother A] has referred to it as part of his ongoing pursuit of the applicant; that [Step-brother A] and others have targeted the applicant’s mother and brother, including an assault in 2020, motivated in part by the applicant’s marriage; or that the family has had to move home or take other precautionary measures.

ASSESSMENT: REFUGEE CRITERION

115.   The Tribunal now assesses whether, on the basis of the findings of fact above, the applicant’s future conduct if he returns to Pakistan, and relevant country information, he has a well-founded fear of Convention-related persecution, now or in the reasonably foreseeable future.

116.   For the reasons stated above, the Tribunal does not accept that the applicant’s step-brother is a senior TTP figure who is targeting him for recruitment to the Taliban, or who has any other adverse interest in the applicant, for family, personal, financial or other reasons. The Tribunal accepts that the applicant has married an [Country 1] non-Muslim national, and (albeit with some reservations) that he is in a genuine relationship with her. It accepts that some members of his family have expressed concerns about the marriage, but it does not accept that this has resulted in threats to the applicant or his family, or that the step-brother assaulted the applicant’s brother (for this or any other reason).

117.   In relation to his future conduct, the applicant anticipated returning to Karachi, as the only place that he in Pakistan he is familiar with, implicitly because he has an extended family network there. He contrasted this with Punjab, where [Step-brother A] would have easy access to him (although, for the reasons stated above, the Tribunal does not accept that [Step-brother A] has any adverse interest in him.) In response to the Tribunal’s questions, the applicant thought that he might look to pursue his career in [his profession], as the country has revamped the [relevant] sector. The Tribunal notes that this opens the possibility that the applicant might find opportunities in other parts of the country.

118.   The applicant said that he would not take [Wife A] to Pakistan with him, as that would entail risks for both himself and herself. The Tribunal accepts that [Wife A] would not accompany the applicant if he were to return to Pakistan, for multiple reasons.

§  First, it is clear that the applicant and [Wife A] are determined to remain in Australia, including (if necessary) through the applicant’s skilled visa application; or in the alternative, seek to migrate to another developed country. The Tribunal finds that they have no interest in going to Pakistan. As such, it accepts that they have not specifically turned their minds to the prospect of the applicant returning to Pakistan, and what arrangements they would make.

§  Second, the Tribunal considers that, if the applicant were to return to Pakistan, there would be many reasons – including personal, cultural, lifestyle and economic factors – why he and [Wife A] would decide that he goes there alone.

§  Third, the Tribunal takes into account that, in any event, there may be other practical reasons hindering [Wife A’s] travel to Pakistan, such as uncertainty whether she would be granted a Pakistani visa on the basis of a marriage that is not recognised in that country.

§  Fourth, the Tribunal accepts that the applicant and [Wife A] would also be motivated by safety considerations. Country information discussed at hearing indicated that for Muslims in Pakistan, marriage is government by Islamic law and the Muslim Family Laws Ordinance 1961. Islamic law does not recognise marriage between a male Pakistani national Muslim and a female [Country 1] national who is [Religion 1].[15] Sources indicate also that couples in illegal interfaith marriages can face prosecution for sexual relations outside of marriage, with potential punishment of up to five years’ imprisonment and a fine,[16] or face the risk of violence at the hands of family members or religious extremists.

[15] [Source deleted.]

[16] ‘Zina: A man and a woman are said to commit zina if they wilfully have sexual intercourse without being validly married to each other’ - 'Offence of Zina (Enforcement of Hudood) Ordinance, 1979', National Legislative Bodies, National Legislative Bodies, 01 February 1979, 4. Zina; ‘496B. Fornication. (1) A man, and woman  not married to each other are said to commit fornication if they wilfully have sexual intercourse with one another.(2) Whoever commits fornication shall be punished with imprisonment for a term which may extend to five years and shall also be liable to fine not exceeding ten thousand rupees.’ - 'The Pakistan Penal Code, 1860',

119.   The Tribunal therefore proceeds on the basis that the applicant would return to Pakistan alone, and not together with [Wife A].

120.   Country information discussed with the applicant at hearing indicates that Pakistan faces multiple security challenges, arising from (as noted in the most recent DFAT report) ‘domestic politics, religious extremism, ethnic conflicts, gender-based issues, sectarian hatred, economic hardship, petty and organised crime, tensions with India and the situation in Afghanistan’. The Tribunal takes into account that Karachi, Pakistan’s largest city, faces protracted law-and-order issues, as well as sporadic ethnic and religious violence between communities in close proximity to each other.

121.   The applicant alluded to these in his written submission to the Tribunal, citing information he claims his mother gave to him. In relation to general political developments and their impact in Karachi, his mother stated that there is a more noticeable Pathan presence on the street (he also refers to TTP members and Afghan nationals in this context); that many Afghans and other foreigners are paying the authorities off, and expanding the narcotics trade; and that the Pakistan government is working unofficially with the Taliban to at least control the Federally Administered Tribal Area and, he seems to imply, Pakistan. He referred to several press articles about the potential impact on Pakistan from the Taliban takeover of Afghanistan, including a resurgence in TTP activity and possible refugee flows. The Tribunal accepts that developments in Afghanistan have affected Pakistan’s general security outlook, with increased instability in Karachi. However, it is not satisfied that the applicant’s account of what his mother told him is a balanced, objective assessment of the impact on her or her family.

122.   The applicant also claimed to have heard from his mother about [Step-brother A’s] increased activity in the light of these developments. She has allegedly heard that [Step-brother A] and his brothers are buying properties around the city to accommodate Taliban businessman and terrorists involved in drug trafficking; that [Step-brother A] and his brothers have been seen ‘more in Karachi than in other states’; and that [Step-brother A] is ‘planning suicide bomb attacks around Karachi in order to topple the government’. There are no details as to what the applicant’s mother knows directly, or had heard from other people, or has merely speculated. Furthermore, given the Tribunal’s findings above that [Step-brother A] has nothing to do with the TTP and that the applicant is not a witness of truth, it does not accept any of these claims.

123.   The Tribunal now considers whether the applicant has a well-founded fear of Convention-related persecution in Pakistan, if he were to return there alone, arising from two circumstances: (a) the fact of his marriage to and relationship with [Wife A]; and/or (b) his separation from [Wife A].

124.   Marriage to [Wife A]: The applicant claims that, even if he were to return to Pakistan alone, he faces the risk of being targeted (by [Step-brother A] and other extremists in the community) for being married to a non-Muslim, and for failing to convert her. This puts him at risk of being perceived to be an infidel and/or being subject to an honour killing. He also claims that he is at risk of his family forcing him to marry a Muslim woman of their choice.

125.   As noted above (paragraph 107) country information indicates that attitudes towards interfaith marriages vary across Pakistan, in part reflecting general features (such as the location, education and ethnic/religious background of a particular family) as well as personal and family traits (such as the views of key family members). In the present case, the Tribunal takes into account that the applicant would be returning to Pakistan without [Wife A]. It places some weight on the applicant’s evidence that his extended family, on both his father’s and mother’s side, is urbane, well-educated and moderate, even though some like [Step-brother A] make a show of their Muslim faith (hypocritically, as the applicant noted). Finally, given the Tribunal’s adverse view of the applicant’s credibility, it does not accept at face value his claims that [Step-brother A] and other family members will target him if he returns to Pakistan.

126.   The Tribunal accepts as plausible that the applicant’s immediate and extended family may have some reservations about his marriage to [Wife A], reflecting perhaps their own religious and traditional values, as well as a broader concern about the challenges the couple may face if they were to move to Pakistan. However, the Tribunal does not accept on the available evidence that there is any opposition that extends beyond that are relevant to the applicant’s prospects if he were to return to Pakistan. As discussed at hearing, it finds no persuasive evidence that his immediate family (his mother and brother) disapprove of the wedding, particularly in light of the applicant’s statement that his mother sent [Wife A] fabric. The evidence as a whole – including the applicant’s return visit to Pakistan, and its rejection of his claims about [Step-brother A’s] extremist political and religious views – strongly indicates that the family is fairly cosmopolitan, and supportive of the applicant’s efforts to live abroad, including establishing a family there.

127.   The Tribunal accepts as plausible that the applicant’s aunts have made some comments that the applicant regards as intrusive or unwelcome, but it does not accept that there have been any threats, actual or implied, of actual harm against him, from [Step-brother A], other family members, or anyone. Moreover, it does not accept that the applicant genuinely fears that anyone will target him as an infidel (for having married a non-Muslim and failing to convert her to Islam), or for any reason. (The Tribunal notes in this context that, while the applicant flagged that [Wife A’s] [Country 1] nationality may complicate her obtaining a Pakistan visa, his references to his mother’s and his sister-in-law’s access to protection from the Muhajir-linked MQM suggest that the family has at least some ancestral or political ties to [Country 1].)

128.   As such, the Tribunal finds that there is no real chance of the applicant being subject to serious harm, including any possible honour killing, for reason of him having married and being in a relationship with [Wife A]. It also does not accept on the available evidence that, because the marriage is not recognised in Pakistan law, there is a real chance of his family forcing him to marry a Muslim girl.

129.   Separation from [Wife A]: The Tribunal accepts that the applicant’s return to Pakistan without [Wife A] would mean their separation, resulting in some psychological harm. However, it is not satisfied that this gives rise to a real chance of Convention-related persecution, for the following reasons.

§  First, it considers that the real reason for the applicant’s return to Pakistan without [Wife A] will be the couple’s resolve to forge a future together in Australia or another advanced country, for a range of personal reasons. It accepts that a potentially significant consideration would also be that they could not live together as a couple without fear of discrimination and harassment, unless [Wife A] were to convert to Islam; and that this could give rise to a well-founded fear of Convention-related persecution.[17] However, on the available material, the Tribunal is not satisfied that the applicant and [Wife A] have given detailed thought to their prospects on the basis of any eventual return to Pakistan, and it is not satisfied that any risk of persecution or significant harm to the applicant and/or [Wife A] has been determinative.

§  Second, the Tribunal is not satisfied that the applicant’s separation from [Wife A] – that is, his return to Pakistan without her – and resulting psychological harm, amounts to ‘systematic and discriminatory conduct, as required by s.91R(1)(c).

[17] MIAC v SZQOT (2012) 206 FCR 145

130.   In sum, the Tribunal accepts that the applicant has married an [Country 1] national; that they have decided for her not to convert to Islam; and that they are in a genuine relationship. The Tribunal finds on the available material that the applicant and [Wife A] have decided that she would not go to Pakistan with him, for mainly personal and practical reasons; although it accepts that if the applicant and [Wife A] were to face removal from Australia, their safety in Pakistan (presuming she could obtain entry) would also be a key factor.

131.   The Tribunal does not accept that the applicant faces a real chance of being targeted, for having married [Wife A] and/or failing to convert her to Islam; or that his separation from [Wife A] (i.e. his return to Pakistan alone) would amount to Convention-related persecution.

Overall assessment

132.   The Tribunal has considered all the applicant’s claims and evidence, including their cumulative effect. It is not satisfied that he faces a real chance of serious harm for reason of his religion, his political opinion (actual or imputed) or any other Convention-related reason, in the reasonably foreseeable future, in Karachi or anywhere in Pakistan. It finds that he does not have a well-founded fear of Convention-related persecution, and does not meet the refugee criterion in s.36(2)(a).

Assessment: Complementary protection

133. The Tribunal, having concluded that the applicant does not satisfy s.36(2)(a) now proceeds whether he meets the complementary protection criterion in s.36(2)(aa). It has regards to the findings of fact above, his future conduct and relevant country information. It notes also that s.36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.

134.   Relevantly, the Tribunal has not accepted that the applicant’s [Step-brother A], his agents and/or a mullah have tried to recruit him into the TTP, or that there has been any other similar political or religious pressure on him; or that these people have pursued the applicant’s family members as a proxy. It therefore finds no substantial grounds for believing that there is a real risk that he will suffer significant harm for such reasons.

135.   The Tribunal accepts that the applicant’s removal would result in his return to Pakistan without [Wife A]. Based on the factual findings and analysis above, the Tribunal finds that there are no substantial grounds for believing that his relatives or others would inflict significant harm on him, whether for reason of his having married [Wife A] without their approval and without converting her to Islam; or by way of forcing him to marry a Muslim woman.

136.   The Tribunal accepts that the applicant would suffer psychological harm if he were to be separated from [Wife A]. As noted above, the reasons for such separation could include: (a) her and the applicant’s choices and preferences; (b) any practical considerations such as visas; and (c) concern for their safety if they were to travel together and attempt to cohabit. It is difficult to quantify the degree of such psychological harm on the applicant, In any event, the Tribunal is not satisfied that it would involve ‘significant harm’ within the meaning of s.5(1), as it would not involve pain or suffering intentionally inflicted on him, as required in the definition of ‘torture’ and of ‘cruel or inhuman treatment or punishment’, and the applicant’s removal from Australia would not be an act or omission which causes, and involves an actual, subjective intention on the part of a person to cause, extreme humiliation which is unreasonable, such as to amount to ‘degrading treatment or punishment’.[18]

[18] SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362 at [26]–[27] and [114].

137.   The applicant raised broad concerns about Pakistan’s political and security situation, mostly (though not exclusively) in the context of explaining that the country’s unstable conditions, particularly following the rise of the Taliban regime in Afghanistan, have enhanced [Step-brother A’s] capacity to pursue him, and also led to a further rise in crime (such as human and drug trafficking).

138.   Country information supports the applicant’s claims, including his reference to a further recent deterioration in the security situation. For instance, the most recent DFAT country information report, from January 2022, includes the following summary:

2.34 Following improvement over recent years, the security situation in Pakistan has deteriorated since mid-2021. Causes of insecurity include domestic politics, religious extremism, ethnic conflicts, gender-based issues, sectarian hatred, economic hardship, petty and organised crime, tensions with India and the situation in Afghanistan.

2.35 Terrorist attacks increased in 2021, following a six-year downward trend noted by the Pak Institute for Peace Studies (PIPS) (see figure 1). There were 146 terrorist attacks in 2020, killing 220 people and injuring another 547. PIPS recorded 97 terrorist attacks from January-July 2021, which killed 300 people and injured another 765. Tehreek-e-Taliban Pakistan (TTP) and other domestic jihadist groups carried out most of these attacks. International jihadist groups and domestic ethnonationalist groups also carried out attacks. […]

2.36 Most terrorist attacks target civilians or security forces, vehicles and outposts. Places of worship, schools, and other buildings have also been targeted. Attacks usually involve improvised explosive devices (IEDs) or gun attacks, although rocket, grenade and suicide bomb attacks also occur. Most attacks happen in Khyber Pakhtunkhwa (especially North Waziristan) and Balochistan, although Punjab and Sindh (especially Karachi) are also targeted. There were no attacks in Islamabad, Gilgit-Baltistan or Azad Kashmir in 2020.

2.37 While the large-scale security operations carried out in 2014-17 have mostly wound down, Pakistan Armed Forces continue to conduct operations against terrorist groups who attack its interests and in response to specific threats and incidents. There has been an uptick in these operations commensurate with the recent increase in terrorist attacks. According to PIPS, security forces carried out 47 operations or raids in 2020 compared to 28 in 2019. Since 2018, Pakistan has taken concerted action to address terrorist financing and money laundering on the recommendations of the Financial Action Task Force (FATF).

139.   The Tribunal accepts that terrorist, criminal and other violent groups continue to pose threats throughout Pakistan, including Karachi, and that they impact on residents’ feeling of security. However, the applicant’s family is well-established in Karachi, and his brother’s return there permanently in 2019 suggests that the impact of terrorist, criminal or other activity on daily life there is manageable. This strongly suggests that, despite generally poor security conditions in Karachi and Pakistan, these do not amount to a real risk that the applicant will suffer significant harm. Moreover, even if the applicant were to face a real risk of significant harm (which the Tribunal does not accept is the case), s.36(2B) provides that there is taken not to be a real risk if the Tribunal is satisfied that the real risk if faced by the population generally and is not faced by the applicant personally. In the present case, the Tribunal is not satisfied that the applicant has any profile – including on the basis of his marriage to [Wife A], and his separation from her – that would distinguish him from the general population of Pakistan, or the general population of Karachi. In sum, the Tribunal finds that there is not a real risk that the applicant will face significant harm arising from terrorist or criminal activity on his return to Pakistan and that, even if there were such a real risk, s.36(3B) would apply as it is a risk faced by the population generally, and not the applicant personally.

140.   Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm: s.36(2)(aa).

CONCLUSION

141.   The Tribunal has considered the applicant’s claims and evidence, individually and cumulatively. 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).

142.   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).

143.   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).

Humanitarian considerations

144.   The Tribunal’s focus in this review is on whether Australia has protection obligations in respect of the applicant. For the reasons stated above, it has concluded that it does not. However, his circumstances – such as the duration of his stay in Australia, any contribution to the Australian community and economy, and the prospect of his separation from [Wife A] – might be matters that he could request the Minister to consider, in the context of the discretionary powers under s.417. The applicant did not request the Tribunal to make any such referral, but it is open to him to make a request directly to the Minister. Of course, such a request would need to take into account any ongoing visa applications that the applicant and/or [Wife A] have, and the availability of further evidence to support the relationship and the consequences of the applicant’s removal from Australia.

DECISION

145.   The Tribunal affirms the decision not to grant the applicant a protection visa.

James Silva
Member

ATTACHMENT A – RELEVANT LAW

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

Refugee criterion

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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

Protection Obligations

Subsection 36(2) of the Act, which refers to persons in respect of whom Australia has protection obligations, is qualified by subsections 36(3), (4), (5) and (5A) of the Act. They provide as follows:

Protection obligations

(3) Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.

(4) However, subsection (3) does not apply in relation to a country in respect of which:

(a) the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or

(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.

(5) Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that

(a) the country will return the non-citizen to another country; and

(b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.

(5A) Also, subsection (3) does not apply in relation to a country if:

(a) the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and

(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.

This means that where a non-citizen in Australia has a right to enter and reside in a third country, Australia will not have protection obligations in respect of that person if he or she has not availed himself or herself of that right unless the conditions prescribed in either s.36(4), (5) or (5A) are satisfied, in which case the s.36(3) preclusion will not apply.

The Full Federal Court in MIMAC vSZRHU (2013) 215 FCR 35, has held that the term ‘right’ in s.36(3) should not be restricted to a right in the strict sense which is legally enforceable. Rather, it should include the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of enforcement; or a liberty, permission or privilege which does not give rise to any particular correlative duty upon the state in question.

In determining whether these provisions apply, relevant considerations include: whether the applicant has a liberty, permission or privilege lawfully to enter and reside in a third country either temporarily or permanently; whether he or she has taken all possible steps to avail himself or herself of that right; and whether s.36(3) does not apply because of the operation of s.36(4), (5) or (5A).

Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

Complementary protection criterion

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 a protection 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 the applicant 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’).

Section 499 Ministerial Direction

In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment 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.

Government of Pakistan, last amended on 16 February 2017, 496B. Fornication.