2012255 (Refugee) - [2025] ARTA 1380

2012255 (REFUGEE) [2025] ARTA 1380 (18 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2012255
Tribunal:Senior Member Denis Dragovic
Date:18 March 2025

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

Senior Member D. Dragovic

Statement made on 26 March 2025 at 10:31 AM
CATCHWORDS
REFUGEE – protection visa – Pakistan – political opinion – low-level volunteer activities supporting major party while a student – general threats by supporters of other parties – minimal involvement while in Australia or motivation to resume on return – no harm to family members supporting same party – country information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 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 10 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 20 September 2018. The delegate refused to grant the visa on 10 July 2020.
The applicant appealed the decision to the then Administrative Appeals Tribunal.
The applicant appeared before the Administrative Review Tribunal (‘the Tribunal’) on 14 March 2025 to give evidence and present arguments.
At the hearing no further submissions were requested by the Tribunal nor flagged by the applicant. A general indication was given by the Tribunal at the hearing that the applicant would receive a decision within a couple of weeks. On 18 March 2025 notice was sent indicating that the member would be making a decision imminently, and that as such two further days were given to make any submissions. No submissions were received by the time of this decision.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant is a [Age]-year-old man from Lahore, Pakistan. He describes himself as coming from a middle-income family and having graduated with a bachelor’s degree from the [University].
Prior to coming to Australia in 2013, in part overlapping with his studies, the applicant was working fulltime in the [work sector] for about two and a half years.
While at the [University] the applicant claims to have become involved in student politics with the Pakistan Tehreek-e-Insaf (PTI), Imran Khan’s political party. He claimed in his submissions that he would go to rallies, organise and manage campaigns, distribute campaign materials, and speak to people among other activities. At the hearing he clarified the extent of his involvement, noting that his role in ‘managing’ campaigns was volunteering to help others to bring together students who were interested in discussing current events such as cost of living or poverty. He clarified that he never spoke at such events. With regards to his claim of speaking to people, he explained that this meant one-on-one engagements that he would have.
The applicant said that his motivation for supporting Imran Khan was that Pakistan had been ruled by two parties for 25-30 years and he saw the PTI as an opportunity for Pakistan to do things differently.
The applicant claims that his family were originally supporters of PML-N, another political party, but the applicant had convinced them to change and support PTI at the 2013 election.
The applicant said that there were physical altercations between the different political groups on the [University] campus, but he would avoid them.
In the applicant’s application he wrote, ‘My activism placed me on the radar…leading to threats and intimidation.’ At the hearing he clarified that this remark referred to the general threats being made by students from opposing political groups who claimed that once they held power, they could do anything. I noted that nothing happened to him after the election to which he said that he remained in Pakistan for only a few months.
The applicant wrote in his application form in response to the question of whether he had sought to move to another part of Pakistan, ‘When I left, it was not necessary as I did not face any threat or harm’. At the hearing he confirmed that he had never received any personal threats, during his time in Pakistan nor since having come to Australia. He also confirmed that none of his family nor cousins have received any threats as far as he knew. He clarified that when he wrote of ‘ongoing threats’ he was referring to the general situation in Pakistan as being a threat to him.
In the applicant’s September 2018 application form he wrote, ‘I am contact with my family and friends and they have told me that I am being ‘requested’ to visit Pakistan for few weeks and join the campaign. This was made by party workers of couple of political organisations.’ I asked who was contacting the applicant. He said that his cousins called as they are a part of PTI. He claimed to have convinced his cousins to join PTI along with his family members when he had been involved with them while living in Pakistan. When he said that he would not be returning to Pakistan from Australia for the 2018 election his cousins did not react negatively.
The applicant’s claims in his written statement of ‘couple of political organisations’ or that ‘people have been asking him’, I find, to be limited to one political party, the PTI, as he has not had any engagement with other political parties, and that the reference ‘people’ is to his cousins and no one outside of his family.
The applicant also explained his claims in his written statement that there were increasing threats referring to the volatile political environment and noted that in his neighbourhood there are supporters of both political parties and sometimes altercations occur, though he clarified that he had never been involved in any.
The applicant had social media accounts while in Pakistan. He provided screen shots of some of them. At the hearing he said that he would mainly repost others’ material about the PTI and Imran Khan. He said that his followers were mainly friends. He confirmed that he had not received any abuse relating to his posts.
The applicant has not been active on social media relating to issues in Pakistan since arriving to Australia.
The applicant was not involved in any way in the February 2024 elections in Pakistan.
The applicant has attended one rally relating to Pakistan over the past twelve years while living in Australia. The rally was organised after Imran Khan’s arrest, a few years prior to the hearing. The applicant could not remember which year specifically.
We discussed what his future political involvement may be. He claimed that he would be supportive of the PTI if he were to return to Pakistan. He claimed that he would participate in rallies. I noted that he hasn’t had any political activity for more than ten years and doubted that he would resume activities into the future. He said that he would be motivated to do this because he will be frustrated with the circumstances, he will face such as unemployment and inflation. I noted that he has good qualifications, attended a prestigious university in Pakistan and speaks English fluently, all of which would help him secure employment. He said that there is widespread unemployment and that his father lost his job in 2013.
Following the loss of his job, the applicant’s father started [a] business in partnership with another man and continues to operate the business through to the date of the hearing.
We discussed whether the applicant could work with his father or take over his father’s role in the business. The applicant said that he couldn’t, reasoning that it is because his father’s stake in the business is a minority stake.
Assuming that he would be able to find work, I suggested those motivators for him to engage in politics would disappear. The applicant agreed that if he were to find work, he wouldn’t have the reason to involve himself.
I noted that Pakistan has 87 million users of social media, and that Imran Khan has 20 million followers on X (formerly Twitter).[1] I put this information to the applicant in the context of there being many millions of people who post and comment on social media and asked why he thought he would be a target of the government if he were to post pro-PTI material into the future. The applicant acknowledged that he didn’t have a following but claimed that he feared the government would randomly identify him.
[1] AND REASONS
The applicant fears harm from the Pakistan government for reasons of his support of PTI. When he left Pakistan in 2013, he confirmed that he did not face any harm.
I find that none of his past actions will be remembered and none of the students who supported the opposition parties at university will recall the applicant in such a way that there will be any lingering animosity or negative view.
As the applicant did not fear harm from his past while living in Pakistan, and it does not arise from the evidence that his past actions would be a source of harm, I find that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from the applicant’s past activities while living in Pakistan.
I now turn my mind to considering the type of support the applicant would provide to PTI into the future. The applicant was, during his student years in Pakistan, involved with PTI as a volunteer. He didn’t publicly lead political discussions or hold a position within the party. He distributed campaign materials, volunteered on campus, and spoke to others about PTI including via his social media channels. His role is best described as low-level.
In the following ten years while in Australia he did not lend any support to the PTI other than participating in one rally following the arrest of Imran Khan which would have been sometime in mid-2023[2] (the applicant could not recall exactly when). The applicant has previously posted about politics on social media but claimed that he hadn’t since he came to Australia. During the most recent 2024 national elections, which were critical for the PTI as they occurred while Imran Khan was in jail, he did not make any contribution.
[2] >
The applicant nevertheless claims that were he to return he would re-engage with PTI and become more active by participating in rallies. He justified this by suggesting that he would be motivated to do so because of the circumstances he will face. But I note that even when we discussed his motivation, the applicant acknowledged that were he to be employed he wouldn’t be motivated to join the protests. This adds to the view that his political commitment to the PTI cause does not run deeply.
In considering the applicant’s claims, I find that the applicant will find a job whether by his father’s side in his business or in a job independent of his father. I find that as a result he will not be motivated to re-engage politically to the same extent that he had in the past when he was a student. I find that his participation in a rally in Australia was a one-off and not representative of any underlying motivation that would see his continued participation in future rallies. I do not accept that he would participate in political rallies for the PTI even was he free from fear.
As such, I accept that the applicant is a supporter of the PTI as are his family members and a large part of the Pakistan population, noting that Imran Khan’s proxy delegates won the most seats in Parliament during the 2024 election.[3] I note that there is no claim that any of his family members, as supporters of PTI, have been harmed nor have his cousins. I find that the same fate awaits the applicant.
[3] >
I accept that the applicant would make some social media posts regarding the PTI. But noting that the applicant never had a following outside of his circle of friends, that he has never received any abuse let alone threats arising from his past social media posts and considering the country information about the size of social media engagement in Pakistan, I find the chance that the applicant would post something sufficiently riling, that the government would identify the applicant and despite his meagre following decide to act against him for such a post to be remote.
For the reasons given above, when considering the circumstances the applicant faces for his support of PTI, and taking into consideration his past activities, I find that the applicant does not face a real chance of serious harm or a real risk of significant harm.
Despite repeatedly asking whether the applicant had any other reasons to fear harm, to which he said that he did not, and seeing that none arise from the evidence before me, I find that the applicant is not 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), I have considered the alternative criterion in s 36(2)(aa). I am 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.
Date of hearing:                   14 March 2025
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…