2008688 (Refugee)

[2023] AATA 4757

2008688 (Refugee) [2023] AATA 4757 (18 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2008688

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Wayne Pennell

DATE:18 October 2023

PLACE OF DECISION:  Brisbane

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

Statement made on 18 October 2023 at 1:51pm

CATCHWORDS
REFUGEE – protection visa – Pakistan – fear of harm and honour killing by wife’s influential family – inter-caste marriage against her family’s wishes – assault, threats and attempted abduction of wife – claims but no evidence of threats to applicant – wife’s statement to court and restraining order do not mention applicant – no further interaction between wife and family – relocation, one brief interaction between applicant and wife’s relatives, and return to home area – delay in applying for protection – long residence, previous visas and return trips – country information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2

CASES

CXR18 v MICMA [2022] FedCFamC2G 581

Kavan v MIMA [2000] FCA 370

MIAC v SZQRB [2013] FCAFC 33

MIBP v SZSCA (2014) 254 CLR 317

MIEA v Guo Wei Rong (1997) 191 CLR 559

Randhawa v MILGEA (1994) 52 FCR 437

Re Prasad v MIEA (1985) 6 FCR 155

Subramaniam v MIMA (1998) VG310 of 1997

SZATV v MIAC (2007) 233 CLR 18

SZFDV v MIAC (2007) 233 CLR 51

SZSRQ v MIBP [2014] FCCA 2205

Zhang Su Rong v RRT [1997] FCA 423

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. This is an application for a review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) to refuse to grant the applicant a protection visa under section 65 of the Migration Act 1958 (Cth) (‘the Act’).[1]

   [1]The Delegate’s decision was provided to the applicant on 22 May 2020.

2. The applicant, who claims to be a citizen of Pakistan, applied for a protection visa.[2] The delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Pakistan, there was a real risk he would suffer significant harm. The delegate refused to grant the visa[3] on the basis that he was not a refugee as defined by the Act[4] and therefore he was not a person in respect of whom Australia has protection obligations.[5]

   [2]The applicant’s application was received by the Department of Home Affairs on 12 March 2018.

   [3]The Delegate’s refusal was made on 22 May 2020.

   [4]Migration Act 1958 (Cth), s 5H.

   [5]Migration Act 1958 (Cth), s 36(2)(a), s 36(2)(aa).

3. The applicant was not represented in relation to the review, and he filed an application with the Tribunal to review the delegate’s decision.[6] At a subsequent time, the Tribunal wrote to him and advised that it had considered all the material relating to his application but was unable to make a favourable decision on that information alone.[7] He was then invited to attend an in-person review hearing.

   [6]The applicant’s review application was filed with the Tribunal on 24 May 2020.

   [7]The Tribunal advised the applicant on 30 June 2023.

4. As explained later in these reasons, because of the applicant’s personal circumstances, the review hearing was twice postponed, with the in-person hearing undertaken on 11 October 2023. The applicant was not represented at the hearing.

   CRITERIA FOR A PROTECTION VISA

5. The measures for a protection visa are set out in the Act[8] and Schedule 2 to the Migration Regulations1994 (Cth) (‘the Regulations’). An applicant for the visa must meet one of the alternative criteria as provided in the Act.[9] 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.

   [8]Migration Act 1958 (Cth), s 36.

   [9]Migration Act1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).

6. The Act 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, or the Tribunal at a review hearing, is satisfied Australia has protection obligations because the person is a refugee.[10]

   [10]Migration Act1958 (Cth), s 36(2)(a).

7. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country.[11] In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country.[12]

   [11]Migration Act1958 (Cth), s 5H(1)(a).

   [12]Migration Act1958 (Cth), s 5H(1)(b).

8. The Act also provides that a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, and there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country.[13] Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in the Act, which are extracted in the attachment to this decision.[14]

   [13]Migration Act 1958 (Cth), s 5J(1).

   [14]Migration Act 1958 (Cth), s 5J(2) – s 5J(6) and s 5K – s 5LA.

9. If a person is found not to meet the refugee criterion in the Act,[15] that person may nevertheless meet the criteria for the grant of the visa if they are a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm (‘the complementary protection criterion’).[16] The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are expressly provided in the Act, which are extracted in the attachment to this decision.[17]

   [15]Migration Act 1958 (Cth), s 36(2)(a).

   [16]Migration Act 1958 (Cth), s 36(2)(aa).

   [17]Migration Act 1958 (Cth), s 36(2A) and s 36(2B).

10. The Act makes provision for, and clearly defines that a non-citizen will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on that person; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.[18]

    [18]Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhuman treatment or punishment and degrading treatment and punishment are further defined in the Migration Act 1958 (Cth), s 5(1).

11. Notwithstanding that, the Act goes on to provide certain circumstances where it is taken not to be a real risk that they will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.[19]

    [19]Migration Act 1958 (Cth), s 36(2B).

    COUNTRY OF REFERENCE AND APPLICANT’S IDENTITY

12. The applicant claims to be a citizen of Pakistan and provided a copy of his passport to authenticate this claim. The Tribunal accepts his identity and based on the evidence he provided, and in the absence of any other evidence to the contrary, the Tribunal finds that Pakistan is his country of nationality and his receiving country for the purposes of the refugee and complementary protection assessments.[20]

    [20]Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).

13. Based on the evidence, the Tribunal is satisfied the applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that he is not excluded from Australia’s protection obligations.[21]

    [21]Migration Act 1958 (Cth), s 36(3).

    MANDATORY CONSIDERATIONS

14. In accordance with Ministerial Direction No. 84 made under the Act,[22] the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    [22]Migration Act 1958 (Cth), s 499.

    CONSIDERATION OF APPLICANT’S CLAIMS AND THE EVIDENCE

15. The issue in this matter is whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Pakistan, there exists a real risk that he will suffer significant harm or there is a real chance he would suffer serious harm; and whether he is a person in respect to whom Australia has protection obligations as defined in the Act.[23]

    [23]Migration Act 1958 (Cth), s 36(2).

16. The mere fact that the applicant claims he has a fear of persecution for a particular reason does not establish either the genuineness of his asserted fear or that it is well-founded or that it is for the reason claimed. Similarly, because he claims that he faces a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to significant harm. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out.

17. The Tribunal is not required to make the applicant’s case for him. It is his responsibility to specify all particulars of his claims to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish his claims. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of his claims, or to establish or assist in establishing his claims.[24] Nor is the Tribunal required to accept uncritically any and all the allegations made by the applicant.[25]

    APPLICANT’S BACKGROUND AND CLAIMS

    [24]Migration Act 1958 (Cth), s 5AAA.

    [25]Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596; Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169–170.

    Background

18. The applicant told the Tribunal that he was born into a liberal, educated Sunni Muslim family and raised in Lahore in the Punjab Province of Pakistan. He does not practise his religion in Australia.

19. He is the youngest of four children and he has a brother and two sisters. He comes from a wealthy family and his father worked at a senior level for [Employer 1] and was posted by his employer to [Country 1] for the last 10 years of his career. His paternal grandfather also worked in this same [employer]. His father was well connected in Pakistan and he had retired in 2002, but had since died in early 2013 after a protracted illness. For most of his father’s posting to [Country 1] for work, the applicant, his mother and his siblings lived in Lahore.

20. In 2005, the applicant finished his education in Pakistan. In 2006, he travelled to [Country 2] where he undertook vocational and tertiary studies in [Subject 1]. He returned to Pakistan in either late 2009 or early 2010.

21. The applicant and his wife have known each other since 2002 when they both lived in the same locality in Lahore. Although they had periodically been in touch with each other when he lived in [Country 2], it was not until his return from [Country 2], that their relationship became more serious. They were married in Lahore on [Day 1] December 2010. Their daughter was born late the following year.

22. From 2011 to 2012, the applicant worked at the [work section] of [Employer 2] in Islamabad. As explained in his claims, he travelled to Australia in July 2012 and since that time, his wife and daughter have lived with his mother and brother in Lahore. His mother financially supports his wife and daughter.

23. For much of his stay in Australia, the applicant has been financially supported by his family, although he holds part of an investment in Pakistan which he inherited from his father. His most recent work in Australia has been as [an Occupation 1] in Brisbane, and he has also worked casually at a [workplace] and as [an Occupation 2].

24. In 2014, he completed a Masters of [Subject 2] from the Brisbane Campus of [University 1], and in 2017, he completed a Masters of [Subject 3] from [Institution], Brisbane.

25. To assist further with the applicant’s background, the following chronology outlines the circumstances surrounding the applicant’s arrival in Australia, and amongst other things, his application for various visas.

    Date Event details

    27 Apr 2012       Applicant lodged an application (off shore) for a Student (Higher Education) visa.

    9 May 2012 Student (Higher Education) (subclass TU-573) visa granted to the applicant. This visa ceased on 19 September 2014.

    [Jul] 2012 The applicant arrived in Australia for the first time.  

    [Mar] 2013The applicant departed Australia.

    [Apr] 2013 The applicant arrived in Australia for the second time.

    4 Aug 2014 The applicant lodged an application (on shore) for a Skilled (Provisional) Post-Study Work Stream visa.

    19 Sep 2014 The applicant’s Student (Higher Education) visa granted to him on 9 May 2012 ceased and he was granted a Skilled (Provisional) Post Study Work Stream (subclass VC-485) visa. This visa ceased on 19 September 2016.

    9 Aug 2016 The applicant lodged an application (on shore) for a Student (Higher Education) (subclass TU-500) visa.

    19 Sep 2016The Skilled (Provisional) Post Study Work Stream visa granted to the applicant on 19 September 2014 ceased.

    28 Sep 2016 The applicant was granted a Student (subclass TU-500) visa. This visa ceased on 15 March 2018.

    [Feb] 2017The applicant departed Australia for the second time.

    [Mar] 2017The applicant arrived in Australia for the third and last time.

    12 Mar 2018The applicant lodged an application for a Protection (subclass XA-866) visa.

    15 Mar 2018The Student (subclass TU-500) visa granted to the applicant on 28 September 2016 ceased.

    26 Mar 2019The applicant attended an interview with the delegate.

    22 May 2020      The delegate made a decision to refuse the applicant’s application lodged on 12 March 2018 for a Protection (subclass XA-866) visa.

    24 May 2020      The applicant lodged an application with the Tribunal to review the delegate’s decision to refuse his application for a protection visa.

    Claims

26. The applicant claims that if he returns to Pakistan, he will become the victim of an honour killing. He said that members of his wife’s family wish to harm him because he has offended their honour by marrying his wife against their wishes. He specifically nominated his wife’s paternal uncle, [Mr A] and her brother, [Mr B] as the people he fears will harm him. He said that the Pakistani authorities are unable or unwilling to protect him from this harm. He also said that he is unable to relocate within Pakistan to avoid harm from his wife’s family, as her family are wealthy and well connected. They would be able to find him wherever he settled in Pakistan to get what he called was ‘their vengeance on him’.

27. The applicant claimed that in September 2010, his mother and brother approached his wife’s family to propose the marriage between him and his wife. Her family rejected the proposal and he said that his wife’s family physically assaulted and threatened his wife and his brother, and his mother was verbally abused.

28. The applicant went on to claim that on [Day 1] December 2010, he helped his wife to escape from her family’s home. They then went to a Court Registry where they were married. The Tribunal accepts that they are married and they were married in a Court Registry. Neither his family, nor his wife’s family were aware that they were getting married when they did. [After] their wedding, his father-in-law, [Mr C], along with his wife’s uncle, [Mr A] and his wife’s brother, [Mr B] came to the house that he was sharing with his wife in Lahore. Her family tried (unsuccessfully) to abduct his wife. Although he was not home at the time, and he only arrived home after his wife’s family had left, he said that his wife was assaulted and threatened by her family members. 

29. The Tribunal had the opportunity to assess his wife’s statement where she addressed that incident, as well as the copy of a single page court document which the applicant had earlier provided to the Department. The date of [Day 3] December 2010 is inserted at the top of the page of that court document. The statement from the applicant’s wife was provided to the Tribunal on 5 October 2023. 

30. What stands out in both of those documents is the distinct lack of any reference to any threat of harm or violence being made about or directed towards the applicant. More particularly, the focus of her family members in that incident was clearly not the applicant, but rather his wife who had only within the past few days fled her family home and married the applicant.

31. When assessing the information provided by the applicant’s wife about that incident, the court document provides:

    The respondent [Mr C], [Mr B] and [Mr A] alongwith (sic) other persons forcibly trespassed into house and started abusing. The respondent [Mr B] pointed a pistol at me and started beating me. They attempted to took me alongwith (sic) the forcibly. I raised hue & cry, thereon [names of others] attracted to the place of occurrence and rescued me. The respondents on having had sighted [inserted into here were the words (in hand writing) – “said witnesses”] fled away by extended threats. The incident was reported to Police but no action was taken. Hence this complaint.   

32. Within the statement purportedly provided by the applicant’s wife, she described this incident and said:

    [The applicant] went to meet up with his mother and I was alone in the flat when [Mr A] and [Mr B] came to our place. It was a terrifying situation. They forcefully entered in the apartment and tried to abduct me. I was shouting for help and a lot of people gathered and stopped them from abducting me. I immediately called [the applicant] and he came back with his friends and we went to his mother's house.

33. What is distinguishable between those two versions is that although they appear to relate to, and claim that the applicant’s family members tried to abduct her away from the house, in the first version she claimed that a person she identified as [Mr B] pointed a pistol at her and then started ‘beating’ her. None of this was identified within her later statement made 13 years after the incident took place.

34. Returning to the applicant’s claims, he said that after this incident, he and his wife left Lahore to avoid further harm. They stayed with the applicant’s sister and her husband in Okara for two months and then moved to Islamabad and stayed with his father from February 2011 to March 2012.

1. The applicant also claims that in approximately 2011, his mother was forced to sell their family house in Lahore and move in order to distance herself from his wife’s family who lived close by. Although she moved, she remained living in Lahore. The Tribunal observes that he did not rely upon his mother to provide evidence to support his claims, and in reaching a conclusion in this matter, the Tribunal places no weight upon his claims in respect to the alleged sale of his mother’s house in determining whether he is a person whom Australia had protection obligations.

2. The applicant went on to claim that he and his wife returned to Lahore in March 2012 after members of his wife’s family saw him in his workplace in Islamabad. At the time of his departure from Pakistan in July 2012, his wife and their daughter were living with the applicant’s mother in Lahore.

3. The Tribunal notes that although he claims that members of his wife’s family saw him at his work place in Islamabad, he does not claim that he was approached by those family members; or that he was threatened by them; or that he was in any way intimidated or assaulted by them.

4. Apart from that single incident in Islamabad, he does not claim that there was any other occasion within the 13 months that he and his wife lived in Islamabad where he saw members of his wife’s family; or that there was any type of interaction between him and any member of his wife’s family.

5. Notwithstanding those features just identified, and despite his claim that members of his wife’s family saw him at his workplace, the Tribunal particularly notes that he and his wife relocated back to Lahore, which is the very same locality where her family lived.

6. The applicant went on to explain that in April to May 2012, his wife’s father passed away. Although the applicant claimed that his death was from depression, there has been no evidence provided to the Tribunal in the form of a medical report or death certificate to validate his cause of death, or indeed verify that he is indeed deceased.

7. According to the applicant, his wife’s uncle, [Mr A], accused the applicant of causing his father-in-law’s death and this added to the desire of his wife’s uncle to kill the applicant. There have never been any specifics provided to the Tribunal by the applicant about any personal interaction between him and his wife’s uncle, nor have there been any specifics or evidence provided about when (if any) those threats were made, or the circumstances of those alleged threats.

8. The applicant said that his own family have tried on multiple occasions to mediate peace between him and his wife with her family, but those attempts were unsuccessful. To escape harm from his wife’s family, he travelled to Australia. He also claims that he came here to study. His plan was to finish his studies, and then return to Pakistan because he believed by that time the ill feelings his wife’s family had towards him would have diminished, but it never did.

9. On this point, apart from the claims about the attempted abduction of his wife in the period immediately following their marriage in late 2010, and a later incident in May 2018 when members of his wife’s family went to where his wife was living and shouted threats, these are the only two incidents within the applicant’s claims where there was any suggestion of any type of actual interaction by his wife’s family into his marriage.

10. It is also identified that within that eight year period between those two incidents, the applicant had returned from Australia to Lahore on two occasions, and both times he did not claim that he experienced any difficulties from any member of his wife’s family, or that there was any interaction at all between them. He does not make a claim about any other incident involving his wife’s family outside what was alleged in his application and statement.     

11. In regard to seeking protection within Pakistan, the applicant said that the Pakistani authorities had been approached a number of times to assist him with the issues he and his wife had with her family. He said that the authorities took no meaningful action to protect him, or his wife, or his family from members of his wife’s family. The Tribunal can identify two things from that claim. Firstly, the applicant says that the authorities within Pakistan took no action to protect him and his wife. Secondly, his own evidence does not support that proposition.

12. Within the material he relied upon as evidence at the hearing, the applicant provided to the Department a single page from a statement made by his wife. That page is dated [Day 2]  2010 and outlines that the statement was ‘Dictated by me in open court’, and the document is signed by [Mr D], a Judicial Magistrate from [Court] in Lahore. The Tribunal accepts that this single page document is an indication that a complaint was made to a court by the applicant’s wife about the incident on [Day 2] December 2010, however it does not afford any further information as to what decision was made by the court about the complaint.

13. When assessing the court documents relating to this incident, including her court statement and the Court’s Order, the Judicial Magistrate considered that the statement made by the applicant’s wife and her complaint were not sufficient evidence to summons any member of her family. The court considered that it was necessary to return to the court on [Day 4] December 2010 and she was directed to produce a witness or witnesses for the purpose of ascertaining the veracity of her complaint. It does not appear that her complaint proceeded beyond the court making that Order, possibly because the applicant and his wife left Lahore soon after and lived with the applicant’s sister for two months at Okara before moving to Islamabad to live with his father for a further 13 months. It does not appear that the applicant’s wife pursued her court action against her uncle and others.

14. Contained within the material the applicant provided to the Tribunal on 5 October 2023 was a Court Order, and a letter from his lawyer in Lahore. Both of those documents provide that [in] May 2018, a Judge from the District and Sessions Court in Lahore granted a Restraining Order restraining members of his wife’s family from causing illegal and unlawful harassment to his wife. The Order further directed the Station House Officer at the [Police Station] in Lahore to prevent members of his wife’s family from harassing his wife.

15. When careful consideration is applied to those court documents and the lawyer’s letter, the crux of the complaints made to the courts in 2010 and 2018 relate specifically to incidents involving the applicant’s wife and members of her family. None of the allegations made by his wife about the circumstances of either of those incidents mention any threat made towards the applicant by members of her family. The Tribunal does not accept the applicant’s claims that the Pakistani authorities took no meaningful action to protect him and his wife. Clearly, the courts considered that protection of his wife was warranted, however he is not named in the 2018 complaint because he was in Australia at the time that this incident occurred.

16. The applicant disclosed that since he arrived in Australia, he has twice returned to Pakistan and travelled back to Lahore. On each of those trips, he did not encounter any concerning incidents with his wife’s family. He said that the purpose for those trips was to attend his father’s funeral in 2013 and to visit his wife in 2017.

17. The applicant explained in his claims that his wife has not been physically harmed by her family since they have been married. He claimed this is because it is the applicant who is their ‘target’ for vengeance. He explained that if they kill his wife, her family know that he (the applicant) will never return to Pakistan. He also claimed that at present, his wife and daughter are being protected from harm by his brother-in-law, [Mr E].

18. The Tribunal does not accept that claim and finds that the evidence contained within his wife’s statement and the Court Restraining Order does not refer to the applicant being targeted by his wife’s family, and his claims are refuted by the contents of his wife’s statement and the court’s Order.

19. The applicant claimed that the most recent concerning incident involving his wife and her family took place on 12 May 2018 where his wife’s uncle, [Mr A], along with her brother, [Mr B] came to the front door of the house where she was living. Her uncle and brother were accompanied by two other people who were not known to her. She told the applicant that these people shouted threats at her that she and the applicant would be killed.

20. As earlier outlined in these Reasons, after that incident occurred, his wife took action in a court and on 30 May 2018, a Restraining Order was issued by the court and [Mr A] was directed to stop harassing the applicant’s wife and their daughter. The applicant claims that because of his wife’s family, he has a well-founded fear of returning to Pakistan.

21. However, the Tribunal does not accept that arising from that incident there was any threat made to kill the applicant. As it has been identified in these Reasons, within the material before the Tribunal was a statement from his wife, and there is a copy of a Court Order made by a Judge in the [Court] in Lahore.

22. Firstly, within the court document relating to that incident, it specifically provides that the uncle of the applicant’s wife:

    started threatening the petitioner to teach a lesson for love marriage and used abusive language.  

23. The Court Order was made within a few days of the incident occurring and there is absolutely no reference within that document of threats to kill the applicant, or that revenge is being sought by the family of the applicant’s wife. In the statement of the applicant’s wife provided to the Tribunal on 5 October 2023, she discusses that in May 2018 her uncle and others arrived at the house where she was living. She said:

    He abused me and my family and told me that he will take revenge from [the applicant] and me.

24. When carefully assessing those two references to the 2018 incident, it is firstly noted that five years had passed before the applicant’s wife made her statement, and in her recollection of that incident, although similar as to the factual events, there has been a significant degree of fluidity in her recollection of the oral exchanges which took place. The Tribunal accepts and places greater weight on the court document as opposed to his wife’s statement made in 2023 and it is not accepted that any threats were made to harm the applicant.

25. For the purposes of clarity in respect to those comments made by his wife, the below passage has been extracted from the Petition filed by his wife in the District and Sessions Court, Lahore. This gives a clearer context to how her recollection of that event now differs. The court document outlined:

    2.   That the brief facts leading to file the present petition are that the petitioner solemnized love marriage with [the applicant] on [Date] 2010 against the consent and wishes of her family, that’s why the family of the petitioner was became inimical towards the petitioner.

    3.   That on 12.05.2018 (Saturday) the respondents No . 2 & 3 came to the house of petitioner (sic) and gave door bell, the petitioner told who is on the gate then the respondent No. 2 started threatening the petitioner to teach a lesson for love marriage and used abusive language, on the hue and cry of the petitioner the people of vicinity started gather there then the respondents No. 2 & 3 leave the spot by extending life threats to the petitioner. 

    Pre-hearing issues

26. In regard to the events which took place after the applicant’s application was lodged with the Tribunal for a review of the delegate’s decision to refuse the applicant’s application for a protection visa, the following events took place.[26]  

    [26]All written communications between the Tribunal and the applicant have been by way of an exchange of emails.

    Date Event details

    7 Jun 2023The Tribunal wrote to the applicant advising him that his file was being prepared for allocation to a Tribunal member. He was invited to complete a pre-hearing information form and return it to the Tribunal within seven days.

    13 Jun 2023The applicant returned the pre-hearing information form indicating that there were no dates in the next three months that he and any other participants would not be able to attend a hearing at the Tribunal.

    30 Jun 2023The Tribunal advised the applicant that a hearing had been scheduled for his application on 27 July 2023. He was invited to attend that hearing and asked to provide all documents he intended to rely on to support his case by 20 July 2023.

    3 Jul 2023The applicant wrote to the Tribunal and advised that because he had an underlying health condition, he would not be able to attend the hearing. He was requesting the hearing be postponed because his health condition necessitated that he undergo a colonoscopy scheduled on 20 July 2023. He explained that his health condition was an infection in his colon due to diverticulosis.

    4 Jul 2023The Tribunal responded to the applicant and acknowledged the date of his colonoscopy and noted the absence of any medical report to confirm there were any medical reasons why he would not be able to attend the scheduled hearing because of the colonoscopy procedure. His request for a postponement was refused.

    6 Jul 2023The applicant sent to the Tribunal the completed response to the hearing invitation and advised that because of the colonoscopy, he would be unable to attend the scheduled hearing.

    19 Jul 2023The applicant provided to the Tribunal a number of documents described as submissions and his Pakistan identification card.

    20 Jul 2023The applicant provided to the Tribunal a number of other documents as evidence to support his claims.

    21 Jul 2023The applicant provided to the Tribunal a translated and an untranslated copy of a marriage certificate to support the claim that he was married in Pakistan.

    26 Jul 2023On the day prior to the scheduled hearing, the applicant advised the Tribunal that because of his underlying health condition, he would not be able to attend the hearing on 27 July 2023. He provided a medical certificate to support his request for a postponement of the hearing.

    Noting that the medical certificate said that the applicant was unavailable on the day of the scheduled hearing because he was unfit to continue his usual occupation on that day or sit for prolonged interviews, the Tribunal responded to his request for a postponement and acknowledged the medical certificate. The Tribunal took into consideration that he was unavailable on 27 July 2023 and postponed the hearing to the following day, being 28 July 2023. 

    28 Jul 2023The applicant attended the scheduled hearing. He was not represented, and he was clearly unprepared for the hearing. Taking all of that into consideration, the Tribunal postponed the hearing and wrote to him as a reminder of his requirements so far as preparing for the hearing, and his obligation to provide evidence to support his claims. He was also provided with a copy of the Tribunal’s Practice Direction and he was invited to attend the Tribunal hearing, now scheduled for 12 September 2023. 

    4 Aug 2023The applicant responded to the Tribunal’s invitation for him to attend the hearing on 12 September 2023. He said that his health condition may be an issue which affects his ability to participate in the hearing. He further advised that he would be relying upon his wife, [Ms F], as a witness. 

    1 Sep 2023The applicant asked for the scheduled hearing on 12 September 2023 be postponed. He explained that he had not received his documents from Pakistan, and his wife had applied on 21 August 2023 through their lawyer in Pakistan for a copy of a court document, but the document had not been received as yet. He was hoping that the documents would be couriered from Pakistan the following week, and there would be a need to have them translated into English.

    The Tribunal considered his request and granted the postponement of the hearing until 11 October 2023. A new hearing invitation was sent to him for that new date.

    8 Sep 2023The applicant returned the hearing invitation response form, in which he outlined that the documents he would rely upon at the hearing are the Pakistan court documents, his marriage certificate, a witness statement from his wife and his submissions. He also indicated that his wife was going to be a witness at the hearing. 

    5 Oct 2023The applicant provided copies of documents and statements he intended to rely upon at the hearing.

    11 Oct 2023The applicant appeared at an in-person hearing. He was not represented.

    The applicant’s evidence

27. In explaining why he left Pakistan, the applicant claimed in his statement that a couple of months leading up to when he married his wife on [Day 1] December 2010, he had received threats of being killed.

28. He went on to explain that since he has lived overseas in Australia, he has been trying to equip himself academically and with skills to improve his chances of employment.

29. The applicant claimed that he had experienced harm in Pakistan and went on to describe that he, along with his wife and their daughter are being targeted by his wife’s family because of their inter-caste marriage that is unacceptable to his wife’s family, yet that is not entirely consistent with the court documents he provided or his wife’s evidence.  No reference is ever made within the applicant’s materials about a threat to his daughter.

30. He also claimed that he has been mentally harassed, stalked and was on the verge of being killed for an honour killing by his wife’s family. The Tribunal completely rejects this assertion and claim as the evidence does not support that he was stalked, with the closest that this could relate to anything the applicant claims was a one-off event when members of his wife’s family went to where he worked in Islamabad, yet he did not claim that there was any interaction between them.

31. The claims that he was on the verge of being killed for an honour killing by his wife’s family are rejected by the Tribunal because this is not supported by the evidence. At best, the evidence in this matter is that since he married his wife, there have only been two occasions in the 13 years they have been married where members of her family have come to where she was living. The first was in 2010, and the second in 2018, and there is no evidence that any incident has taken place in the past five years or any concerns since she took out a Restraining Order against her uncle and brother.

32. Further to those incidents, there is not a scintilla of evidence that the applicant has been threatened at any time, let alone during the 2010 incident or the 2018 incident. The only reference of a threat to him comes from within his wife’s statement made in September 2023 where she alleges that her uncle said to her that he would take revenge against the applicant and her. That comment is completely inconsistent to the contents of the document she filed in a Pakistan court in 2018 where she makes no reference to any threat or revenge towards the applicant. The Tribunal rejects the hypothesis that any threat of harm was directed at the applicant.

33. In respect of seeking help in Pakistan, the applicant claimed that he approached the Pakistan authorities for help and on [Day 3] December 2010 he and his family registered a complaint in the  [Court], Lahore. He also claimed that he repeatedly sought help with the police against his wife’s family, however, despite his complaint, none of the law enforcement agencies have been able to stop what he described as being the untoward activities of harassment to him and his family. Apart from the court documents relating to the 2010 and 2018 incidents, he has provided no evidence to support the claim that he sought help from the authorities for any alleged incident, apart from those two that have been discussed.

1. To avoid the issues associated with his wife’s family, the applicant claimed that he tried to move to Islamabad from Lahore and took up a job at [Employer 2]. This was a place which was well protected due to the presence of [Specified people]. However, he was spotted by his wife’s relatives and had to immediately return back to his parents’ house in Lahore. He further claimed that the ‘reach’ of his wife’s family is extensive, both in regard to influence and financially, and they are able to have an influence on law enforcement agencies in Pakistan. The Tribunal notes that notwithstanding his claim that he feared members of his wife’s family, they live in Lahore. Despite possessing those concerns, he returned to the same city of Lahore to live with his wife and child. In the Tribunal’s view, his conduct of returning to Lahore is not indicative of a person who is afraid of, or fears he will be harmed by his wife’s family.   

2. The applicant further claimed that if he returned to Pakistan, he will be assaulted and killed. He explained that at present, his wife and their daughter are living in [Neighbourhood], Lahore, which is a protected area for [Specified people]. He claimed that his wife and their daughter cannot step out of this area at all without armed protection. His daughter is attending the local school within the protected area.

3. The applicant also claimed that a few months prior to when he made his application in March 2018, his family were receiving this protection because his brother-in-law was a retired army officer. He added that his family are constantly stalked and tracked, with his wife’s family sending death threats from time to time. The Tribunal does not accept that his wife and child were being stalked by her family. His wife has provided a statement to the Tribunal and she does not discuss within that statement anything about being stalked or harassed by her family.

4. When explaining why he feared returning to Pakistan, the applicant claimed that he and his wife are from different castes, and because of this his wife’s family believe in the traditional barbaric honour killing. He said that his marriage was a love marriage and because there was much opposition from his wife’s family, he claims that he will be assaulted and instantly killed. He added that his wife’s family are in a position to bribe and easily influence the law enforcement agencies, and because of this they do not fear repercussions from the authorities.

5. The applicant does not believe that the Pakistani authorities can and will protect him if he went back to Pakistan. He repeated an earlier example that he had already lodged a complaint with the Judicial Magistrate, however, nothing was ever done to provide security or safeguard the lives of his wife and daughter.

   [Ms F] – statement and evidence

6. The Tribunal heard evidence from the applicant’s wife. She lives in Pakistan and she appeared at the review hearing by telephone. At an earlier time, she had provided a statement in regard to the applicant’s application and claims. She adopted that statement in her evidence and she told the Tribunal that at the time of giving her evidence she had a copy of her statement in front of her. She also said that her statement was made from her memory of the events that have taken place, and no person has told her what to say in the statement. She also said that she did not want to add anything to her statement.

7. She was asked by the Tribunal what she understood about the applicant’s claims, and her reply was that he, herself and their daughter should live together in a safe environment, free of any fear. When asked why he wanted that, she said that he ‘wants protection’, and when asked to clarify if she understood why he needs protection, she said the applicant ‘wants to live together without fear and as a family living together in Australia, it would be safer’.

8. She confirmed in her statement what the applicant has claimed about them meeting and him travelling to [Country 2] for work in 2009 and then returning to Pakistan in 2010. She and the applicant met about three or four times between February and September of 2010 and she confirmed the applicant’s claim that his mother and brother visited her family home after a marriage proposal from the applicant to marry her. Her father called her uncle, he came over to the house and the situation got out of control. She said that ‘they’ assaulted the applicant’s brother.

9. She went on to state that she came out of the house to tell her father that she wanted to marry the applicant, but ‘they’ did not listen to her, and ‘they assaulted her in front of everyone’. By her use of the term ‘they’, the Tribunal assumes that she is referring to her father and uncle.

10. The Tribunal notes that within the claims made by the applicant, he said that his mother was also assaulted at this time, although the Tribunal accepts that he was not there when this occurred and it was only afterwards that he was told what happened. The Tribunal also notes that within her statement, she does not suggest that his mother was assaulted, it was only his brother and herself who were assaulted.

11. Briefly pausing the Tribunal’s observations in regard to the statement made by the applicant’s wife, the Tribunal also acknowledges that within the applicant’s statement, he suggested that after the incident, or as he described ‘the fight’ was stopped by neighbours and his wife’s uncle threatened to kill the applicant. Notably, the applicant was not there at the time and his claim of any threat to kill him is not supported by either his wife’s statement or the statement of his brother. An assessment of the statement of the applicant’s wife shows that she is silent in regard to any threat to kill. What she stated about his family coming to her house was:

    [The applicant]’s brother and mother came to my house for marriage proposal. My father called my uncle [Mr A]. The situation went out of control and they assaulted [the applicant’s] brother. I came out of the house to tell my dad that I want to marry [the applicant] buy they didn’t listen to me and assaulted me infront of everyone.[27]   

    [27]Statement of [Ms F] dated 4 September 2023, paragraph 2.

12. In the statement made by the applicant’s brother, he said:

    In September 2010, I along with my mother went to [Ms F]’s house for marriage proposal of my brother [the applicant].

    I had an altercation with [Ms F]’s family. They physically assaulted me and neighbours broke out the fight.[28]

    [28]Statement of [Mr G] dated 4 September 2023 at paragraphs 2 – 3.

13. There is nothing within those statements to suggest that during that incident any threat was made by any persons towards the applicant, or that there was anything said that could be misconstrued as a threat.

14. Her testimony at the review hearing about this incident was similar to what her statement outlined. In addition to what her statement said, her testimony was that her family were not happy and they were abusive towards the applicant’s mother and brother. Her uncle had arrived at the house with his sons (her cousins) and they assaulted the applicant’s brother. She also said that she was told by her family that the applicant was not a nice person and that the family would find a better person for her. They wanted her to be married into their own family. When asked by the Tribunal if there was anything else said by her family about the applicant, her evidence was that her family were against any love marriage. She did not suggest that any threats of harm were directed towards the applicant. 

15. Returning to the statement of the applicant’s wife, she stated that her father and uncle planned to arrange a marriage for her. They even called her maternal uncle and cousin in an effort to convince her to forget about the applicant. She said that her father would not listen to her desire to marry the applicant, and there was an occasion when she contacted the applicant and told him that she wanted to marry him. She and the applicant made plans to marry and on [Day 1] December 2010, she escaped from the family home. She and the applicant then got married in a Court Registry.

16. A friend had arranged for a flat for them to live in, and immediately after they got married, they moved into the flat. On the day after they were married, the applicant left the flat to meet with his mother. His wife was left alone at the flat. She stated that [Mr A] and [Mr B] came to their flat. Those people have been identified during the review hearing as her uncle and her brother, although the Tribunal does note that in documents she filed in a court which relate to this incident she identifies that her father, her uncle and her brother, ‘along with other persons’, all came to the flat at that time.

17. She stated that it was a terrifying situation because they forcefully entered the apartment and tried to abduct her. She was shouting for help and a lot of people gathered around and stopped them from abducting her. She immediately called the applicant, and he came back with some friends and they went to his mother’s house. Although she does not say it, it is clear from what she is saying in her statement that by the time the applicant arrived at the flat, the others had departed.

18. The applicant’s wife said that the following day, on [Day 3] December 2010, she filed in the court a complaint against her family for trying to abduct and assault her. She does not say what court she filed her complaint in, or what happened to her complaint; and nor does she say what the result was (if any) of any decision (if any) undertaken by the court, however the Tribunal notes that the applicant provided to the Tribunal copies of the court document.

19. In regard to the incident at their flat, this took place on [Day 2] December 2010. In her statement dated [Day 3] December 2010 to the [Court] in Lahore, she said that her father, her uncle, her brother, along with other persons forcibly trespassed into her house and started abusing her. She said that her brother pointed a pistol at her and started beating her. In her evidence at the review hearing she repeated these allegations but confirmed that when she earlier alleged that she was beaten, what she meant was that she was slapped across the face. It is noted that although the court document references that her brother pointed a pistol at her, she did not repeat this in either her statement or her testimony at the review hearing.

20. She also said in her court statement that they attempted to forcibly take her with them but they left the flat because neighbours were coming to her assistance. She also said that ‘they’, being her family, ‘fled away by extended threats’. She clarified this with the Tribunal as to mean that her family would not leave her there with the applicant.

21. When assessing the court documents, including her court statement and the Court’s Order, the Judicial Magistrate considered her statement and her complaint were not sufficient evidence to summons her family members. The Order goes on to say that therefore, it was necessary to direct her to produce a witness or witnesses on [Day 4] December 2010 for the purpose of ascertaining the truth or falsehood of the complaint.

22. It does not appear that her complaint proceeded beyond the court making an Order that a witness or witnesses were required by [Day 4] December 2010 because as both she and the applicant told the Tribunal, they left Lahore soon after and lived with the applicant’s sister for two months at Okar before moving to Islamabad to live with his father for a further 13 months. She did not pursue her court matter after she relocated away from Lahore. 

23. Her testimony at the review hearing of the events of [Day 2] December 2010 when her family members came to the flat are mostly consistent with her September 2023 statement to the Tribunal, although she clarified that her family were looking for her. They wanted to take her away from the flat and the applicant. She told the Tribunal that nothing was said by her family at that time about the applicant, their focus was on her.

24. She described that in [Year], their daughter was born. Again, the applicant’s father contacted her family about the birth of the grandchild, however her family did not respond in a positive way to the news. She said that her family wanted to meet her and the applicant ‘face-to-face’ but the applicant’s father did not accept what she described as ‘this condition’.

25. When discussing the applicant’s claims about her family seeing him at [Employer 2] in 2012, her evidence about the applicant’s claims that members of her family saw him at [Employer 2] was that when they left Lahore in December 2010, they moved to Okara for two months and lived with the applicant’s sister. They then moved to Islamabad and lived with the applicant’s father.

26. It was sometime well after they were living in Islamabad that she did not see her relatives in Islamabad, but rather her cousin told her that they (meaning her cousin and other family members) had seen the applicant in [Employer 2].

27. She went on to explain that their relocation back to Lahore was undertaken because the applicant’s father was unwell and they made the decision to move back to Lahore to keep the applicant’s family together. It appears that their relocation back to Lahore took place shortly before her father passed away in May 2012 and she insists that she and the applicant were blamed by her family for his death as the family considered that he died from depression caused by their marriage.

28. She confirmed in her statement that the applicant went to Australia to study. She stayed back in Pakistan with their daughter due to some legal issues, although she does not outline what those issues were, but she said that their lawyer told her that her family could file a false case against the applicant’s family, even though they had their marriage registered in the union council.

29. The applicant’s wife went on to state that in March 2013, the applicant’s father passed away. The applicant returned from Australia, but he only stayed a few weeks. This was confirmed by the applicant’s travel records held by the Department which show that he left Australia [in] March 2013 and came back into the country a little over three weeks later [in] April 2013. She does not report in her statement that there was any interaction or conflict between her and the applicant with her family during the time that the applicant was in Lahore.

30. She also stated that in February 2017, she was told by an extended member of her family that her uncle and his sons were going to Saudia Arabia for Umrah. She told the applicant, who then travelled back to Pakistan in the time that they were in Saudia Arabia. Again, she does not report in her statement that there was any interaction or conflict between her and the applicant with any member of her family during the time that the applicant was in Lahore.

31. The applicant’s wife went on to state in her statement that in May 2018, her uncle and four other people came to their house. She did not identify within her statement that she knew any of the four other people who accompanied her uncle, although she claimed that she was sure that those people worked for her uncle.

32. In her statement, she said that her uncle abused her and told her that he will take revenge on her and her husband. She said that neighbours came out to see what was happening and she again filed a complaint in the court against her uncle.

100.   The Tribunal notes that in her statement, which was made in September 2023, she stated that her uncle said to her that he would take revenge against her and the applicant. However, that is not what she deposed to in a statement in May 2018 soon after her uncle came to her house. By way of explanation, she commenced proceedings against her uncle for a Restraining Order to prevent him from harassing or threatening her. Also named in the application was the local police station and the four unknown persons who accompanied her uncle.

101.   Her testimony at the review hearing was that she was at home when her uncle came to the house with four other people. She told the Tribunal that he said to her that he ‘will take revenge from [the applicant] and me’. When asked what she meant from this, she said that her uncle was saying that he will not leave her, he will take revenge because the family is ashamed that she went out and got a court marriage.

102.   She then commented about her uncle shooting her. When asked to explain, she said that her uncle told her this and he had a gun with him. When pressed on who specifically her uncle was threatening to kill at that time, she said that he was threatening to kill her. She clarified that she was the only person that he threatened to kill.

103.   In her application to the Lahore court for a Restraining Order against her uncle after this incident, she said in her court statement that her uncle started threatening her to teach her a lesson for her marriage to the applicant. She went on to say that he used abusive language and when she raised a fuss, her neighbours came to her assistance. Her uncle and the other four persons then left. When her uncle left, he was ‘extending life threats’ to her. Nowhere in that statement does she refer to the applicant, and nor is there any reference to any comment being made by her uncle about the applicant or that any threat was made towards him.

104.   The inconsistencies between her 2019 statement and her 2015 statements are stark. She +knew that by this time, her husband had already lodged an application in Australia for a protection visa and he was claiming that he feared being an ‘honour killing’ because he was married to her, yet her application and statement is silent about the applicant. When carefully assessing the contrast in the statements as identified, the Tribunal does not accept that any threats to harm the applicant were made by her uncle.

105.   In furtherance to that, when she gave her testimony at the review hearing, she told the Tribunal that when her uncle came to the house in May 2018, he was armed with a firearm and threatened to kill her. Yet, when carefully examining her 2015 application and statement to court in Pakistan for a Restraining Order, she makes no reference at all to her uncle or any other person being armed, or any reference to a threat that she will be killed.

106.   The Tribunal does not accept that there was any threat made towards the applicant on this occasion, and her evidence in her statement is not consistent with what she deposed in a court document soon after the event took place. The Tribunal is inclined to place greater weight on what was said within days of the event taking place as opposed to a statement made five years later.

107.   The Tribunal is of the view (and so finds) that her evidence is punctuated with inconsistencies and the fluctuations in the facts were her attempts to bolster the applicant’s claims for a protection visa. The Tribunal finds that she was not a credible or a reliable witness and rejects her evidence in regard to the claims that the applicant was threatened with an honour killing because he married her.

108.   A further point the Tribunal makes about the claims that her uncle poses a threat to the applicant and his wife is that it appears from the Pakistani court documents provided by the applicant that his wife was successful in obtaining a Restraining Order to prevent her uncle from harassing her. The Tribunal particularly notes that since that time, there is no suggestion by the applicant or his wife that her uncle or any other member of the family have engaged in any way with him or his wife, or his family.    

109.   As already identified in these Reasons, the Tribunal does not accept that there was any threat made towards the applicant on this occasion, and the applicant’s wife’s evidence in her statement is not consistent with what she deposed in a court document soon after the event took place. The Tribunal is inclined to place greater weight on what was said within days of the event taking pace as opposed to a statement made five years later.

[Mr G]

110.   [Mr G] is the applicant’s brother. He provided a statement[29] in which he outlined in his statement that the applicant shared with him that he was in a relationship with a girl named [Ms F]. He explained that in September 2010, he, along with his mother went to [Ms F]'s house for a marriage proposal from the applicant. He described that he had an altercation with [Ms F]'s family and ‘they’ physically assaulted him. He said that neighbours broke up the fight.

[29]Dated 4 September 2023.

111.   He went on to state that on [Day 1] December 2010, the applicant married [Ms F] in what he described as a ‘court marriage’. He was not happy with the applicant’s decision to marry [Ms F] because their culture and society are against court marriages.

112.   [Mr G] stated that a lot of issues arose, and the applicant and [Ms F] moved to Islamabad and lived with their father. He explained that it was his opinion that from the beginning, the issue of the applicant’s marriage to [Ms F] would never be resolved. Their father tried to fix what he described as ‘this mess’, but he was unable to convince [Ms F]’s family about the marriage.

113.   He went on to say that in May 2018, [Mr A] with some unknown people tried to enter what he described as ‘our house’. He was not there at the time, but was told about it by his mother when he returned to the house. He went on to say that he told the applicant that ‘they’ will not forgive you and you will have issues once you come back’.

114.   When applying a careful assessment to this evidence, the Tribunal is satisfied that he went to the house belonging to [Ms F]’s family and that he had an altercation with her family. His evidence differs in that he does not suggest, or indeed corroborate the suggestion that [Ms F]’s family assaulted [Ms F] and the applicant’s mother as was suggested in the applicant’s claims.

115.   The Tribunal finds that any knowledge this witness has about this matter involving [Ms F]’s family is derived from conversations he has had with her and the applicant. He provides no direct evidence of seeing or hearing any threatening behaviour or comments directed at the applicant or the applicant’s wife. Because of those features, when a careful assessment is undertaken of his evidence, the only evidence considered is what took place when he went to the home belonging to the family of the applicant’s wife. No weight is applied to the remainder of his evidence in the determination of this matter.  

COUNTRY INFORMATION

116.   It is the applicant’s claims that because he married his wife against the wishes or permission of her family, he has a well-founded fear that he will be killed as an ‘honour killing’ by her family if he returns to Pakistan.

117.   The information in respect to honour killings contained within the DFAT Country Information Report provides that so-called ‘honour killings’, in which family members murder relatives perceived to have brought dishonour on the family, are common in Pakistan. Human Rights Watch estimates there are about 1,000 honour killings in Pakistan each year. Honour killings can be carried out in response to behaviour including refusing an arranged marriage, forming an unapproved romantic attachment, or ‘immodest’ dress or behaviour, including social media posts.

118.   The DFAT report went on to say that while young men can be targets of honour killing, most victims are female. Once a threat of honour killing is established, the victim remains at risk even if he or she relocates. In some cases, victims have been killed years after the initial transgression. In tribal areas honour killings are sometimes ordered by traditional jirga councils.[30]

[30]     DFAT Country Information Report, Pakistan, 22 January 2022, page 32, paragraph 3.96.

119.   When assessing that information and weighing it against the known facts of this matter, there are only two distinct incidents over the past 13 years where it is alleged by the applicant that he was threatened as part of an honour.

120.   Firstly, as already discussed in these Reasons, the evidence repudiates any suggestion of threats; it is only from what the applicant says other members of his family said to him that caused him concern. Yet, when an analysis is made of his brother’s statement, there is no reference to any threat of harm to the applicant. At best, his brother told him that his wife’s family will not forgive him and he will have issues once he came back to Pakistan. The Tribunal considers that this is his brother’s opinion, and in the Tribunal’s view it is not a determinable point in the overall findings of this matter.

121.   Secondly, any focus by his wife’s family is upon her, not the applicant. That part was very clear from her testimony to the Tribunal. She obtained a Restraining Order in 2018, and from the evidence made available to the Tribunal, in the past five years there has been no further interaction between the applicant’s wife and her uncle, or any other member of her family.

DELAY

122.   The Tribunal notes the applicant first arrived in Australia [in] July 2012. From early 2012 when he claimed that he was last threatened with an ‘honour killing’ because he married his wife against the wishes of her family to when he made his application for a protection visa in March 2018, this is a period of approximately six years.

123.   During that substantial period which he spent in Australia, he made three separate applications for visas. His first visa application was made when he was off shore in Pakistan, however the other two were lodged when he was on shore. The Tribunal also notes that when making those applications, his wife and daughter had not joined him in Australia as his dependants. It is also noted that in 2013 and 2017, he travelled back to Pakistan and did not claim that he had a well-founded fear of returning to Pakistan on either of those two occasions. It is particularly noted that his application for a protection visa was made almost 12 months after he had returned from his second trip back to Pakistan.  

124.   In respect to any consideration given by the Tribunal about the almost six year delay between the applicant’s arrival in Australia [in] July 2012 and his application for a protection visa being lodged on 12 March 2018, the Tribunal is guided by the determinations reached in Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997 where the Court held that even a three-month delay in lodging a protection visa application is a legitimate matter to consider when assessing the genuineness or depth of an applicant’s fear of persecution.

125.   Therefore, a delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm.  A significant delay is not behaviour indicative of someone who fears for their physical safety[31] and the Tribunal particularly notes that the applicant has provided no evidence or offered any explanation as to the extraordinary delay in making his application.

[31]     ZHANG SU RONG V REFUGEE REVIEW TRIBUNAL AND ANOR [1997] FCA 423; KAVAN V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS [2000] FCA 370, [22].

126.   When asked why there was a significant delay, the applicant said that when he came to Australia he did not have it in his mind that he needed protection because he had come here to undertake his studies. He said that he did not want to lodge an application for a protection visa, he wanted to go back to Pakistan. He thought that while he spent all this time in Australia things would have ‘normalised’ in Pakistan and his wife’s family would have moved on and forgotten about him. He claimed in the hearing that since his father’s death in 2013, his mother had made a number of telephone calls to his wife’s family to try and settle the dispute, however this was new evidence to the Tribunal and not supported by any evidence from his mother and no weight is given to his comments about those phone calls.  

127.   In the review hearing, the Tribunal discussed with the applicant that he had been in Australia on three separate visas over a period of almost six years prior to him lodging his application for a protection visa. The timing of that application being lodged was also discussed, in particular it being within three days of his student visa expiring.

128.   The applicant told the Tribunal that in the time that he was in Australia he did undertake studies. The Tribunal accepts that he did study. He went on to tell the Tribunal that because he came to Australia to study, his intention was to return to Pakistan because he did not have it in his mind that that he needed protection. He thought that as time went by, things between him and his wife’s family would normalise. However things did not normalise.

129.   His father acted as a type of mediator or negotiator to try and settle the issues with his wife’s family when he was alive, and after he passed away his mother had what the applicant described as ‘phone calls’ with his wife’s maternal uncle to try to settle the issue about the applicant’s marriage to his wife.

130.   At this point the Tribunal will identify that so far as the applicant’s evidence and material before the Tribunal provides, there are four incidents of concern raised by him. However, at the time leading up to when he made his application for a protection visa on 12 March 2018 only three of those incidents had occurred. They were:

(a)September 2010. The applicant’s brother and mother went to the family home of his wife’s family to propose the marriage of the applicant and his wife;

(b)[Day 2] December 2010. Family members of the applicant’s wife came to the flat where she and the applicant were living and her father, uncle and brother tried to ‘abduct’ her; and

(c)Sometime in 2012. The applicant and his wife were living in Islamabad. He was employed at [Employer 2] and he claims that members of his wife’s family saw him there. Soon after that he and his wife relocated back to Lahore.

131.   Therefore, at the time of lodging his application, the only evidence which could provide the applicant with a well-founded fear of returning to Pakistan were those events, of which the most recent event took place approximately six years previously. He arrived in Australia within a few months of the 2012 event, and had travelled back to Lahore in Pakistan twice (2013 and 2017) during that time.

132.   About two months after the applicant’s application was lodged, a further fourth incident took place involving the applicant’s wife and her uncle. When logically looking at the chronology of the four main events, his application was primarily based on what he said was his well-founded fear of persecution because of those three incidents, and the fourth incident is a further example or a claim why he requires protecting.      

133.   The Tribunal has very carefully considered that significant period of delay between the applicant’s arrival in Australia and his application. The Tribunal is therefore satisfied that the noteworthy delay casts significant doubt on the genuineness of his claims that he has a well-founded fear of persecution if he were to return to Pakistan, and finds that the delay in lodging his protection visa application adds weight to the finding that his claims do not appear to reflect the reality of his circumstances.

RELOCATION

134.   It was discussed during the review hearing with the applicant whether he and his wife could relocate to another part of Pakistan for their own protection. The applicant claims that he cannot relocate to another part of Pakistan for protection because his wife’s family are wealthy and have influence across the country.

135.   The evidence provided by the applicant was that prior to his father’s death, he had the support of his father who tried unsuccessfully to resolve the issue between the applicant, his wife and her uncle. The applicant told the Tribunal that there was no point in him and his wife relocating because if his wife’s family found out where they were, his wife’s family ‘would come after them’. He said that because his father is now deceased, there is no one to help them.

136.   Having heard the applicant’s evidence on that point, the Tribunal’s observations are that immediately following the events of [Day 2] December 2010 when his wife’s father, uncle and brother went to their flat and tried to take his wife away, the applicant and his wife moved to Okara to live with the applicant’s sister. They stayed there for two months and then moved to Islamabad where they lived with his father for 13 months.

137.   During his stay in Islamabad he was employed in the [work section] of [Employer 2]. [Information about employer redacted.]

138.   The applicant claimed that members of his wife’s family reported to his wife that they had seen him working at [Employer 2]. He resigned from his employment and moved back to Lahore with his wife. When the Tribunal delved deeper into why he relocated back from Islamabad to Lahore with his wife, he said that she (his wife) told him that some other distant cousins of hers told her that they had seen the applicant working at [Employer 2].

139.   The applicant went on to tell the Tribunal that to his knowledge, he does not know how many of her cousins there were, and they did not come into his workplace at the [employer], or at least he is not aware if they did because he did not see them. All he knows is what his wife has repeated to him what her cousins had told her.

140.   The applicant told the Tribunal that about two to three weeks after his wife told him about her cousins, he resigned from his job at [Employer 2] and they moved back to Lahore. His evidence at the review hearing was that he and his wife went back because his father said to him that it was time to go back to Lahore because ‘they’, meaning his wife’s family, knows where he is working and it was not safe here.

141.   That evidence was contradicted by his wife; her evidence was that their relocation from Islamabad back to Lahore was because the applicant’s father was not well, and the decision was made to make the move back to Lahore to allow the applicant’s family to be all together, and the Tribunal is aware from what the applicant had earlier said that his father passed away in March 2013 from cancer.

142.   The starting point for the Tribunal in considering the applicant’s relocation to another part of Pakistan for protection is whether his feared persecution is localised and, if so, whether it would be reasonable to expect him to seek refuge in another part of the same country.[32]

[32]SZSRQ v Minister for Immigration and Border Protection [2014] FCCA 2205.

143.   In SZSRQ v Minister for Immigration and Border Protection,[33] the Court considered that there are two distinct questions which must be addressed in considering relocation. Firstly, whether there is a different region in the country where, objectively, there is no appreciable risk of the occurrence of the feared persecution; and if so, whether it is reasonable, in the sense of practicable, to expect the applicant to be sent to that other region.[34]

[33][2014] FCCA 2205.

[34]SZSRQ v Minister for Immigration and Border Protection [2014] FCCA 2205, [45].

144.   Further to this, in deciding whether an applicant meets the criteria for a protection visa, a question may arise as to whether the applicant can relocate within their country of reference to avoid a real chance of persecution or a real risk of significant harm. The real chance of persecution relates to all areas of the receiving country.[35]

[35]Migration Act 1958 (Cth), s 5H(1) as qualified by s 5J(1)(c).

145.   In a much earlier determination by the court, the ‘internal relocation principle’[36] was accepted by the Full Federal Court in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs[37] (‘Randhawa’) on the basis that the focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country’.[38] In Randhawa, the Chief Justice reasoned that:

[36]Also known as the ‘internal flight alternative’ and ‘internal protection alternative’. For further discussion see for example: UNHCR Guidelines on international protection: ‘Internal Flight or Relocation Alternative’ within the Context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees, HCR/GIP/03/04, 23 July 2003 (‘Internal Flight Guidelines’).

[37](1994) 52 FCR 437.

[38]Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437, 440–441.

If it were otherwise, the anomalous situation would exist that the international community would be under an obligation to provide protection outside the borders of the country of nationality even though real protection could be found within those borders.[39]

[39]Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437, 441.

146.   In respect to any reasonableness for the applicant to relocate within Pakistan, guidance can be found in the determinations of the High Court where it was confirmed in SZATV v Minister for Immigration and Citizenship that as a general proposition, depending on the circumstances of the particular case, it may be reasonable for an applicant to relocate in their country to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution.[40] Similarly, it may be reasonable for an applicant to remain in a place in that country where he or she will be safe.[41]

[40]SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18; SZFDV v Minister for Immigration and Citizenship (2007) 233 CLR 51.

[41]Minister for Immigration and Border Protection v SZSCA (2014) 254 CLR 317.

147.   Therefore, when considering if an applicant is a person in respect of whom Australia has protection obligations, it may be necessary to consider whether the applicant might reasonably relocate to or remain in a region within their own country, free of the risk of persecution.

148.   The Tribunal must assess the place or places to which the applicant is likely to return.[42] If the Tribunal finds the applicant faces a real chance of persecution (or significant harm) in that place or those places, the decision maker must look at any other places in the country of reference where they do not face those risks.

[42]CSO15 v Minister for Immigration and Border Protection (2018) 260 FCR 134, [45].

149.   Where those places are new or unfamiliar locations for the applicant, the issue of relocation needs to be considered.[43] Where an applicant does not face a real chance of persecution (or significant harm) in the place or places to which they will return or be returned, the question of reasonableness of relocation generally does not arise.[44]

[43]CSO15 v Minister for Immigration and Border Protection (2018) 260 FCR 134, [46]–[47]. The Court held that at this final step, there must be an assessment of the reasonableness and practicability of the particular individual living in that new place. Issues of reasonableness and practicality are discussed further below.

[44]In CXR18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 581.

150.   The evidence in this matter is that the applicant did relocate from Lahore to Islamabad in late 2010 to early 2011. He remained there for about 13 months before relocating back to Lahore. He claimed that when living in Islamabad, members of his wife’s family visited the place where he worked. He does not claim that these family members interacted with him or that they did anything which caused him a detriment. Although after relocating back to Lahore, he does not say that between when that took place to when he departed for Australia that he experienced any harm from his wife’s family. The Tribunal finds that his relocation from Islamabad back to Lahore was because of his father’s illness and all alleged threats that he claims were made to his safety seem to have been discarded when he made that relocation.

151.   The country information contained within the DFAT Country Information Report on Pakistan outlines that the Pakistan Constitution guarantees the right of Pakistani citizens to the freedom of movement in Pakistan. Although internal migration is widespread and common, this all depends on the person making the relocation having both the financial means and family, tribal and/or ethnic networks to establish themselves in a new location. Larger urban centres such as Karachi, Islamabad and Lahore have ethnically and religiously diverse populations, and offer some anonymity for people fleeing violence by non-state actors. The Tribunal notes that certain types of threats, such as honour killings, are persistent, and even if people do relocate, they can be tracked down and killed years later.[45]

[45]DFAT Country Information Report, Pakistan, 25 January 2022, page 43, paragraphs 5.23 to 5.24. 

152.   The Tribunal does not accept that any threat of harm has been made to the applicant. At best, the evidence shows that the target or the focus for any retribution by his wife’s uncle is his wife. Even though he claims he fears her uncle, he has previously relocated to another destination within Pakistan seemingly without any issue of concern occurring and the Tribunal does not accept that he cannot again relocate.

153.   When an overall careful assessment is undertaken of all the evidence, the Tribunal does not accept that the applicant could not relocate to another part of Pakistan for his own protection should he return.

CONCLUSION AND REFUGEE FINDINGS

154.   To recap on the applicant’s case, he claims that he cannot return to Pakistan because his wife’s family, in particular her uncle is displeased that they are married and that he fears that because of alleged threats made by her family, he will be killed as part of an honour killing. 

155.   The applicant also claims that he cannot relocate to another part of Pakistan for his own protection because his wife’s family are wealthy and influential; their reach across Pakistan would allow them to locate the applicant. 

156.   When carefully assessing the facts, circumstances and evidence in this matter, the Tribunal finds that at no point has the applicant ever been personally confronted by any member of his wife’s family in regard to his marriage to her; and nor is there any evidence of him being directly threatened or assaulted or otherwise harmed by her family.

157.   The evidence given to the Tribunal by his wife in the form of her statement and her oral testimony shows that she is the focus of any action taken by her family in respect to her marriage to the applicant. The Tribunal, when carefully analysing her evidence, identifies that the veracity of her evidence is questionable given that her evidence in respect to the events of May 2018 as described in Pakistani court documents differ to her evidence to the Tribunal. The Tribunal attributes no weight to her evidence so far as the applicant’s claims, except for accepting that she is the focus of adverse attention by her family, and not the applicant.        

158.   When careful consideration is given to the evidence provided in this application, the Tribunal finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Pakistan, a real risk exists that he would suffer significant harm or there is a real chance that he would suffer serious harm.

159. Having regard to, and carefully considering all the evidence, in particular the facts as outlined above, the Tribunal finds that the applicant is not a person in respect to whom Australia has protection obligations as defined in the Act.[46]

[46]Migration Act 1958 (Cth), s 36(2).

160. Therefore, the Tribunal does not accept that the applicant is a refugee as defined in section 5H of the Act, and nor has the applicant satisfied the criterion as provided in section 36(2)(a) of the Act that Australia should apply the protection obligations to him.

COMPLEMENTARY PROTECTION CONSIDERATIONS

161. The Tribunal has considered the applicant’s claims under the complementary protection criterion and given regard to whether there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed to Pakistan, there is a real risk that he will suffer significant harm. Having already concluded the applicant does not meet the refugee criterion as provided by the Act,[47] the Tribunal has considered the alternative criterion[48] and an assessment was undertaken as to whether there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed to Pakistan, there is a real risk that he will suffer significant harm as it is defined in the Act.[49]

[47]Migration Act 1958 (Cth), s 36(2)(a).

[48]Migration Act 1958 (Cth), s 36(2)(aa).

[49]Migration Act 1958 (Cth), s 36(2A).

162.   Because of the findings already outlined, the Tribunal is not satisfied that in the reasonably foreseeable future there is a real risk that the applicant would suffer significant harm for any of the reasons he claims if he returned to Pakistan. Helpfully, the courts have discussed the test for ‘real risk’ and determined that 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.[50]

[50]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.

163.   Having considered all the applicant’s claims, individually and cumulatively, along with the evidence, the Tribunal does not accept that if he returned to Pakistan now or in the reasonably foreseeable future he will be arbitrarily deprived of life; the death penalty will be carried out on him; he will be subjected to torture or to cruel or inhuman treatment or punishment; and nor will he be subjected to degrading treatment or punishment.

CONCLUSION: REFUGEE CRITERION

164. Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds that there is not a real chance he will be persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group. The Tribunal finds that his fear of persecution is not well-founded as required by section 5J of the Act and, therefore, he is not a refugee within the meaning of section 5H of the Act.

CONCLUSION: COMPLEMENTARY PROTECTION CRITERION

165.   Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds there are not substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Pakistan, he will be exposed to a real risk of suffering significant harm.

OVERALL CONCLUSION

166. 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 section 36(2)(a) of the Act.

167. Having concluded that the applicant does not meet the refugee criterion in section 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in section 36(2)(aa). The Tribunal is not satisfied that he is a person in respect of whom Australia has protection obligations under section 36(2)(aa) of the Act.

168. There is no suggestion that the applicant satisfies section 36(2) based on being a member of the same family unit as a person who satisfies section 36(2)(a) or section 36(2)(aa) of the Act and who holds a protection visa. Accordingly, he does not satisfy any of the criteria in section 36(2) of the Act.

DECISION

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

Wayne Pennell
Senior Member

ATTACHMENT  -  Extract from Migration Act 1958 (Cth)

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country,  in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)     conceal an innate or immutable characteristic of the person; or

(c)     without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and

(c)     the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)     a threat to the person’s life or liberty;

(b)     significant physical harassment of the person;

(c)     significant physical ill‑treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)     the characteristic is not a fear of persecution.

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)     protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)     the person can access the protection; and

(b)     the protection is durable; and

(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

…