2012181 (Refugee) - [2025] ARTA 828

2012181 (REFUGEE) [2025] ARTA 828 (5 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2012181
Tribunal:Senior Member Denis Dragovic
Date:5 March 2025

Place:Melbourne
Decision:The Tribunal affirms the decision under review.

Senior Member D. Dragovic

Statement made on 5 March 2025 at 11:42 AM
CATCHWORDS
REFUGEE – protection visa – Pakistan – threats from land mafia through work in property sector – student visa and long stay – attacked during return visit, police inaction and later threats to family – no recent threats and long delay in applying for protection – mental health and treatment – availability of medication – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J, 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 July 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a national of Pakistan. He applied for the visa on 1 November 2019. The delegate refused to grant the visa and the applicant appealed the decision to the then Administrative Appeals Tribunal.
The applicant appeared before the Administrative Review Tribunal on 4 March 2025 to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
REASONS AND FINDINGS
The applicant is being treated for depression. He takes medication. At the onset of the hearing, I asked whether the medication and circumstances would affect his ability to participate in the hearing to which he responded that it won’t.
I offered to adjust the hearing in a way that would suit him if he had any suggestions or requests. He did not have any.
The applicant is a [Age]-year-old male from Gujrat, Pakistan. He is married and has two children. This wife and children live in Australia. The applicant’s wife is on a subclass 485 visa according to the applicant and she does not have any reasons to fear returning to Pakistan.
The applicant’s original claims made in 2019 were that in 1999 he had experienced threats from the land mafia:
I arrived in Australia on student visa. Before my arrival, I had been through severely difficult situations involving disputes and legal battles on land-related matters. After my Year 12; before coming here I started working for [Employer] just to kill my time and to gain market experience. My manager gave me one account to handle. Those people use to buy and sell properties. Initially it was all good but later I realize they are linked with land mafia; they use to capture other peoples land illegally. I tried raising my voice against them; but no one listened me and these guys Harassed and threaten me.
At the hearing he said that his role at the time was as an apprentice and that he was working while waiting for admission to university. He was [Age] years old at the time.
He said that when he started the role he didn’t know about the corruption, and that even now he doesn’t know all the details. He believes that the land mafia change the ownership of land through the official ownership records.
The applicant claims that he discussed this with his then boss and believes that the man was also involved. He also discussed it with other colleagues. He was told by them that they were handling the situation.
He claimed that he had received some threats over the phone and on the way to work about the issue and that he thought that it was normal. He affirmed that he came to Australia to study and was not fleeing harm at that time.
He said that following the threats he moved back to his family home in Gujrat for a couple months rather than stay in Islamabad.
The applicant was not harmed and travelled to Australia to undertake studies in the year 2000.
In November 2003 the applicant returned to Pakistan for his sister’s marriage ceremony. According to a first instance report, he was attacked on 7 December 2003. The incident occurred at 9.30pm when he was on his way to meet a friend and four men approached him, one with a pistol. He was shot in the right leg and then the men attacked him with knives. As he was being attacked a police patrol passed and seeing the police the attackers fled.
The injuries were detailed in a medical report provided to the Tribunal:
a.Injury No 1: Firearm entry wound of about 2cm x 0.1cm in diameter on right leg...Wound is actively bleeding. Injury is not bone exposed. Movement not restricted sensation intact…
b.A lacerated would of about 0.5cm x 0.1 cm in diameter on left leg…wound is actively bleeding. Injury is not bone exposed. Movement not restricted sensation intact…
The applicant claimed he remained in hospital for 24 hours and then returned home. He did not change his flight to return to Australia but instead stayed what he estimated to be another 25 days. He said that he remained in Pakistan because of his injuries. I noted that he had remained in hospital only for 24 hours and as such that would indicate that they thought he could be mobile. He said that he was mobile but only with the assistance of others and that is why he didn’t change his flight to an earlier flight.
I noted that the attackers were named in the first instance report. He said that he didn’t know them personally and that the police told him who they were. I asked how the police knew when it was dark, and they fled. The applicant thought that probably the police recognised them.
I note that the FIR states that the accused had invested money with him in 1999 and that they suffered a loss and blame him for it. Noting that the applicant told the Tribunal that he did not know who they were and that the police told him to include their names, I place no weight on this evidence about the men being directly known to the applicant as having ‘invested’ with/through him.
The applicant recalled that in 2005 one of the agency colleagues was ‘tortured and harassed’. I asked whether it was for reasons of being involved with the land mafia or reporting them. He said that he is not sure but believes the latter.
The applicant claims that his family were threatened by the land mafia. He claims that this happened while he was in Pakistan, and after he returned to Australia. The threats were to ensure that the applicant does not say anything when he comes back, otherwise they will kill him. They also threatened his father that if he were to get involved they’d do the same thing. The applicant is not sure for how long these threats continued.
He claims that his elder brother was also threatened particularly as he was starting a new business involved in [job task]. He claimed that his brother’s customers and clients were also threatened and that when he took out a loan, they threatened him that they’ll take everything. I put to him that it sounds like business competitors rather than arising from the applicant’s situation. He said that his brother, who at the time was handling the applicant’s 2003 matter through a lawyer, said that they were the same people, but the applicant was not sure and acknowledged maybe it was for reasons of competition.
The applicant’s elder brother, who remains in Pakistan, was the point of contact for the police and a lawyer. A letter from the lawyer was provided to the Tribunal which the applicant believes he obtained in around 2005 through his brother. A news article was also provided reporting on the 2003 incident.
The applicant has not received any threats while in Australia.
I asked the applicant why he had applied for protection in 2019 considering the last relevant event was in and around 2003. He said that in the early years after the 2003 incident he initially feared returning. And similarly, when he heard in 2005 about the other [occupation].
He said that he applied in 2019 because his wife told him to and that he hadn’t applied earlier because he was afraid that the land mafia will know where he is if he had. He said that he has heard that such people know the movements of those that they are interested in.
I asked why he thought that the land mafia would care about him now or even remember him. He said that he doesn’t know, and he is not sure if they would remember him.
The applicant believes that despite the 2003 incident being reported to the police no action was taken. When pressed about how he knew this, he claimed that his brother told him that no action had been taken.
With regards to the applicant’s wife and family. At an earlier stage he had fears arising from his wife’s family in part because they were not married but had a child.
The applicant is now married and confirmed that he has good relations with her family. He also said that he has no reasons to fear them.
I note that the applicant has had one child before he was married in Australia, which according to him was in 2023. I noted to him that there is evidence that he was married in 2018, namely that the child’s birth certificate states that they were married in the wife’s hometown of Multan. The applicant denied this. I accept that they were not married until 2023.
I raised with the applicant access to medication and asked whether he had any concerns as to whether he would be able to access them. He said that he hadn’t thought about that. I noted that the information before me was that medication for depression and other common mental health conditions was available.[1] The applicant said that he didn’t know.
[1] See DVAGO, a Pakistan online pharmacy ( along with academic research that indicates that essential medications are available in public and private clinics. >
I asked if he had any other reasons to fear harm, he confirmed that he did not.
I found the applicant to be a credible witness and accept the narration of his claims.
Considerations
With regards to the land mafia. I note that the applicant was a young apprentice 25 years ago when he stumbled across them and their activities. He was warned about not saying anything and he didn’t. Instead, he moved to Gujrat. Some three years later he is attacked while in Pakistan. Based on the details of the incident including that it appears a random attack rather than targeted, but giving the applicant the benefit of the doubt, I accept that this incident somehow had some relationship to the knowledge he had about the land mafia. I note that the lawyer’s letter written circa 2005 carries some weight for the situation at the time.
I note that his brother who has handled his case with the police and lawyers encountered some problems, but based on the evidence before me I find that they are related to his own business endeavours and not related to the applicant even if the persecutors are somehow related. In addition, there is no claim that the elder brother has been harmed.
The question to consider is whether twenty-two years after the most recent incident that could be associated with the land mafia that they would remember him, know of his return, be able to find him, have the resources to act against him and decide that it is prudent to act against him considering that his knowledge of their activities is now dated from twenty-five years ago. I find that there is a remote chance and a remote risk that this situation will eventuate. I find that the applicant does not face a real chance of serious harm or a real risk of significant harm from the land mafia.
I have also considered whether the brother’s business activities may cross over and impact the applicant but in doing so I note that there is no claim that the brother was ever harmed. As such, I find that the brother’s circumstances carry no future risk to the applicant. For this reason, I find that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from his brother’s adversaries.
I note that whereas in the earlier stages of his application process and review the applicant had claimed to fear harm from his wife’s family but at the Tribunal hearing he acknowledged that they are now on good terms. As such, to avoid doubt, I find that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from the wife’s family.
In considering whether the applicant faces any harm for reasons of having a child born before he was married, I note that he has no subjective fear of any harm and there is no evidence before me that he would face such harm. As such I find that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from having a child who was born before they were married.
To avoid doubt, I have also considered how the applicant’s depression and general mental health may impact any of the above claims and note that the potential persecutor’s choices of whether to pursue him would not be influenced by him, therefore his condition has no impact.
The applicant takes anti-depression medication. There was no claim that he would be unable to access it in Pakistan and I note that country information indicates that he can. On the basis that the applicant can access medication into the reasonably foreseeable future and there being no claim of any fear of harm for reasons of his mental health, I find that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from his mental health.
I have also considered the situation of whether the above circumstances can cumulatively increase the applicant’s level of risk and harm. That some people in the community may come to learn of the applicant having a child with his wife before they married as well as learning that he was once a target of land mafia or that some come to learn that he has depression, I find, does not compound the risks he faces. Similarly, the land mafia is not any more likely to pursue the applicant because he had a child before he was married or that he has depression. I accept that the applicant’s past together with his brother’s activities raises his profile somewhat. But when considering all of the circumstances the applicant would be returning into cumulatively, I find that he does not face a real chance of serious harm or a real risk of significant harm.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision under review.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
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5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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