2108650 (Refugee)

2108650 (Refugee) [2021] AATA 5644 (16 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2108650
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Paul Windsor
DATE:16 September 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 September 2021 at 2:42 pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – clan/family feud – claimed killing of 20-30 family members – credibility concerns – inconsistent evidence – delay in seeking protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5LA, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 June 2021 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Pakistan, applied for the visa on 21 April 2021.
In his Protection visa application the applicant indicated he was born on [date] in Sheikhupura, Punjab province, Pakistan. He indicated he is ethnic Punjabi, a Muslim and has never married. He indicated he departed Pakistan legally via Lahore [in] August 2017 and arrived in Australia [in] August 2017, entering on a student visa.[1]
[1] See the Departmental file.
In his application, the applicant claimed he fears returning to Pakistan because of a decades old feud with another clan/tribe, which started due to a dispute over land, and which has claimed the lives of his great grandfather, grandfather and cousins. He claims his father was shot twice but survived, and he was attacked twice but was unharmed, the first time when his father was shot in the leg and their driver was killed, and the second time when he was dining with his cousin in a restaurant and his cousin was shot dead while he was in the toilet.[2]
[2] See the Departmental file.
The delegate refused to grant the visa finding the applicant’s claims were not credible.
The applicant applied to the Tribunal for review of this decision on 2 July 2021. He provided the Tribunal with a copy of the delegate’s decision record.[3]
[3] See the Tribunal file.
The applicant appeared before the Tribunal on 13 August 2021 by video-link from the Melbourne Immigration Transit Accommodation (MITA) where he is being held in immigration detention. The hearing was conducted in the English language. The applicant was unrepresented.
Criteria for a protection visa
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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 (the Department), 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.
CONSIDERATION OF Claims and evidence
The applicant’s claims for protection were set out in his protection visa application. His claims are summarised as follows:[4]
·He left Pakistan because his family was concerned about his safety as all his blood cousins have been murdered or left Pakistan because his family is a victim of decades old feud/rivalry with another clan/tribe.
·The feud/rivalry started when his great grandfather was murdered over a land dispute. Enmity was carried on by his grandfather who was also murdered and then his uncles took it over.
·They tried to stop it when his young cousins were killed but it was too late.
·His father was shot twice but luckily survived both attacks.
·He was attacked twice. The first time was when he was travelling with his father. His father was in the front passenger seat and was shot in the leg. His father survived but the driver was killed. Fortunately he was uninjured.
·The second time was when he was dining out with his cousin in a restaurant. His cousin was shot dead while he was in the toilet.
·They sought help from the police but did not get it as the police are corrupt. Instead of protecting them the police give information regarding their whereabouts and help the other group hunt them down because the other group has a lot of money for bribes and has political support. The other tribe has very high connections with police, politicians and the underworld.
·He went to a hostel in another city to complete his college but was always fearful and not allowed to go out. After college he lived in his maternal village to save his life but lived in fear.
[4] See the Departmental file.
The delegate’s decision record indicates that the applicant raised the following relevant additional matters at the interview with the delegate held on 20 May 2021:
·His father passed away due to natural causes in May 2021.
·His father was a landlord and farmer. He owned [various businesses] and other agricultural land.
·His two sisters and brother are studying [Discipline 1]. His mother lives at home.
·He lived his whole life in [Village 1], Sheikhupura city in Punjab province. His family own two houses, one in the village and one in Sheikhupura city. He also lived in hostels while attending school and college, returning home on weekends. He lived with his maternal uncles for a year before he came to Australia.
·The disputed land was possessed by the government about 20 years ago from his grandfather. His grandfather killed 6 or 7 people from the rival tribe in retribution for the murder of the applicant’s great grandfather. His grandfather was murdered as a consequence.
·His male paternal relatives have also been killed. His uncle was killed when he was three years old. A cousin moved to another part of Pakistan but was double-crossed by a friend and killed.
·The incident at the restaurant occurred ‘in maybe 2018’.
·His father sent him to Australia as a student for his protection.
Included with the review application were copies of five police First Information Reports (FIRs) and English language translations of these FIRS. The FIRs relate to incidents in January 2008, November 2009 (two incidents), July 2015 and August 2020.
Findings and reasons
Identity
Considering the copy of the applicant’s passport submitted to the Department,[5] the Tribunal accepts that the applicant is a citizen of Pakistan and that his identity is as claimed. The Tribunal accepts that Pakistan is his ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.
Issues
[5] See the Departmental file.
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Pakistan, there is a real risk he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Credibility
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
For the reasons set out below the Tribunal found the applicant’s claims were not credible.
Assessment of claims
Evidence from the hearing
At the hearing the applicant advised that he came to Australia in August 2017 to undertake a Bachelor [degree] at [University 1]. He indicated that he did an ELICOS course from 11 September 2017 and was enrolled in the degree course but after two-three months he stopped attending because he got ‘into drugs’. He said he attended exams but was on heroin and did not know what he was doing. He indicated his student visa was not cancelled because of his non-attendance at his course (it ceased on 30 August 2020), but he got involved in crime – burglary and theft of credit cards. He said he was arrested [in] September 2020 in relation to these offences as well as possession of heroin. He said he was released but after 20 days was arrested again (on 1 October 2020) for the same offences and was also found to have breached his bail conditions because he was again using heroin. He indicated that he served six months imprisonment (minus 14 days early release) and was released on 16 March 2021. The applicant indicated that he was granted a Bridging E visa valid for 7 days at the police station when he was arrested [in] September 2020 but his priority was getting heroin so he did not apply for a further Bridging E visa and again became unlawful. He said when he was released on 16 March 2021 he was then taken into immigration detention.
The applicant confirmed the advice in his protection visa application that he had worked as a [Occupation 1] for six months from December 2019 until June 2019 and as a [Occupation 2], but indicated that rather than work as a [Occupation 2] from September 2019 until February 2020 he did that for a couple of months and then was using the [business asset] for private use.
The applicant confirmed the advice in the delegate’s decision record that his father is now deceased, having passed away almost four months ago of natural causes. He confirmed that he has his mother, two sisters and a brother in Pakistan. He said his elder sister had graduated in [Discipline 1] after studying in Rawalpindi and is doing an internship. He said his other sister is in the last year of a [Discipline 1] degree in Lahore (the capital of Punjab province). He indicated that his younger brother, who has also been studying in Lahore, has completed his ‘Inter’ (years 11 and 12) and is awaiting admission to a course in [Discipline 1]. He indicated that his brother is seeking to do his tertiary study in [Country 1].
The applicant indicated that his mother is still living in the family home in the village of [Village 1], observing the traditional Islamic 4 months and 10 days mourning period following her husband’s death. He said she will then move to her brother’s house. He indicated he is in contact with his mother every day but, when asked, said she was not aware of his circumstances.
The applicant indicated that he went to high school in Sheikhupura until he was [age] years of age and then stayed in a hostel while he completed his Intermediate years at [College 1] in Lahore. He indicated that he lived at home while he was attending school in Sheikhupura but said he rarely went to school and when he did he went with protection. He added that this was the time when his cousin was attacked with him in Lahore when they were dining out.
The Tribunal observed that the sense it has is that he is from quite a wealthy family, noting that the delegate indicated in his decision record (a copy of which the applicant provided to the Tribunal) that his family owns two houses, one in Sheikhupura city and one in [Village 1] village, and his father (who he described as a landlord and farmer) had owned [various businesses] and other agricultural land. The Tribunal also observed his parents appear to have given high regard to educating their children, noting his siblings studying [Discipline 1] and his having attended college in Lahore and then come to Australia to undertake a degree course. He agreed that is the case.
The Tribunal asked the applicant when the claimed feud started. He said it was almost 40-50 or 60 years ago, with his great grandfather. When asked why it started, he said it was between the cousins of his great grandfather because of distribution of property within the family. When asked for more detail about what happened that started the feud, he said there were three brothers on one side and 4-5 on the other, and they wanted the land to be divided equally to every single person, but it does not work like that, the land goes to the fathers and their children get a share of what their fathers are allocated. When asked, he said his great grandfather was killed because he did not want to give the others some of his share of the land. The Tribunal queried why he had described it as clan/tribe related if it was within the family. He said they are now a different tribe because his family don’t consider them family, and they don’t consider his family as family. He added that maybe he did not understand the meaning of ‘clan’.
The Tribunal asked the applicant what happened to the land after his great grandfather was killed. He said there was a lot of other killing but the land was distributed rightfully and his great grandfather got his claim, which is why the problem remains. He added that it was too late, however, as his great grandfather and his brother were murdered and then there were killings on the other side, as the other side did not believe the matter was rightfully settled. He added that according to law it is settled but the other side still do not believe it is settled.
The Tribunal asked the applicant why his grandfather killed 6-7 people. He said it was to avenge the death of his father and to protect his life and family. He commented that his grandfather left the village for 25-30 years and their family did not live there but lived in Sheikhupura, which he said is almost 40 km from the village. The Tribunal asked the applicant why the family moved back to the village. He replied that they did eventually because they wanted their life back. The Tribunal queried what they had been doing in Sheikhupura for 25 years. He replied that his uncles and his father were young at that time and when they grew up, his uncles were lawyers and they could take what belonged to them, but they couldn’t get all of it. When queried regarding what they were seeking to get the applicant replied, ‘all of our property’.
The Tribunal asked the applicant why he considers the other group is more influential that his family, given he has indicated his family is a wealthy landowning family. He said they are violent and have connections with the underworld, commenting that ‘everyone says they run a drug cartel’, and have connections in politics. He added that they can see that the others have influence everywhere and have money and his family are weak in comparison. The applicant commented that one of the other group’s members was sentenced to death for murder charges involving his family, but was released by the President of Pakistan, such is their power.

The Tribunal asked the applicant where the disputed land was located. He said some was in [Village 1], some was commercial land, some was in Lahore, some was in Sheikhupura city and there was some along the motorway as well. The Tribunal queried the applicant that he had not given the sense previously that there were multiple parcels of land in various locations and asked what is in dispute. He said it is ancestral land which was basically in the village but it is a very big property. When asked why he had not mentioned these multiple parcels of land previously, the applicant said his village is on the Lahore road. He said what was previously the village is now considered part of the suburbs of Lahore.
The Tribunal asked the applicant when his grandfather killed 6-7 people. He said it was before his father was born. He added that they were not all killed at the same time. Noting that his father was born in [year] the Tribunal asked if this happened in the early 1960s. He said it was the late 1950s to early 1960s. The Tribunal asked when his grandfather was killed. The applicant said it was 9-10 years ago. When queried that these people waited 50 years before killing his grandfather he said ‘yes’, but added that there were still other killings happening of his grandfather’s brothers and their children. He said his grandfather was safe because he left the village for a long time.
The Tribunal asked the applicant what he meant by his statement to the delegate at the interview with the delegate on 20 May 2021 (as recorded in the delegate’s decision record, a copy of which the applicant provided to the Tribunal) that the disputed land was ‘possessed’ by the government about 20 years ago. He said some part of it, about 20 per cent, was acquired by the government to build a new ‘trading airport’. He added that they tried to sell it before but nobody would buy it at market price because of the dispute. He said they were lucky the government bought it and paid compensation.
The Tribunal asked the applicant how many people, on his side of the family, had been killed as part of this dispute, apart from his great grandfather and grandfather, and who these people were. He replied that 20-30 people on his side had been killed from his side of the family, including first cousins. He said his first cousin was killed in the restaurant; one of his uncles - his father’s elder brother - had been killed; his father’s aunt’s first husband was killed and then her son was killed. He commented that a lot of his father’s and his cousins have been killed. After some time he added that his grandfather’s brother-in-law and his nephew were also killed.
The Tribunal asked the applicant about the two incidents when he claims attempts were made to kill his father. Initially he was unsure about the timing of the incidents, which incident occurred first, and indicated he was confusing details of the two claimed incidents. He indicated there are police reports about both incidents that record the dates but commented he has not been through the reports.
Eventually he said he thought the incident when he was with his father in the car was the first that occurred, and that it happened when he was around [age] years old (that is, in 2005 or 2006). He said his father was in the front passenger seat, their driver was driving and he was seated behind his father. He said they were returning from a marriage ceremony and were on the way to their village, and when the car was stopped at a very sharp turn people started firing from a field about 20 yards away. He said his father usually drove so they were thinking he was driving and were attacking the driver’s seat and the driver was killed on the spot. He said his father, who he indicated had been shot in the leg, tried to hide under the dashboard while he lay on the back floor. The Tribunal queried why the shooters did not approach the car if they wanted to kill his father. He said he did not know but then added that his father also had a gun and ‘retaliated’. He commented that they had murdered the person in the driver’s seat and did not know there was a person in the second seat. The Tribunal asked wouldn’t the assailants have known that his father had a driver. The applicant replied that most people do have a driver, but his father loved to drive the car himself.
The applicant said the second incident was in 2009, when he was [age] years old. When asked where it happened he said it was in the village. He indicated he was not present at the time. He said it was a planned attack at night-time and his father was returning to the house in the village when there was a shoot-out. He said 4-5 people died in the shoot-out and while his father’s guards were killed, his father got away. He added later that his father was shot through the arm in this incident.
The Tribunal asked the applicant about the second incident where he claimed he was attacked. He said it happened in Lahore during his college days in 2015-2016 He then said it was in 2016. He said he and his cousin went to ‘dine-out’ after their exams to celebrate. He said after they finished the dinner he went to the restroom and heard gunfire so he locked the restroom and did not go outside for 5-7 minutes. He said when he did go out he found the restaurant all turned upside-down and his cousin was on the floor and had been shot dead on the spot but nobody else had been hurt. When asked, the applicant said the name of the restaurant was [Name 1]. He said it is closed now, having closed after the shooting. The Tribunal asked what the date of the shooting was. He said it was 2015 and he finished his exams so it was June or July. The Tribunal expressed surprise that he did not remember the date or even if it was June or July, yet he is saying his cousin was killed. He said he is really bad with dates and doesn’t even remember the date his father died, other than it was in February. The Tribunal asked the applicant if there was any press reporting of the incident. He commented that his brother told him there was and is going to send them which will help with the dates and, if he gets a chance, he will send them to the Tribunal.
The Tribunal queried the applicant that he had indicated that when he went to college he was not allowed to go out and asked why he and his cousin were out together at a restaurant if there was a risk they would be harmed. He replied that they were kids and did not understand the circumstances and the risks. He added that he did not realise at that time that it was that serious. The Tribunal queried why this would be the case, given the previous incident where the driver was killed and his father was shot. He said he was just a kid, was always under observation and guard and just wanted to live a normal life.
The Tribunal asked the applicant about each of the five FIRs he had submitted with the review application. The Tribunal commented that it finds them very confusing and would like him to explain what each one is about and why each has been provided to the Tribunal.
The Tribunal indicated that the first FIR states it was made on 2 January 2008 by [Mr A] (although it is dated 1 January 2008) and asked him to explain what it is about. The Tribunal asked who [Mr A] is and why he had provided a copy of this FIR to the Tribunal. The applicant said he had not been through the FIRs and can’t explain the incidents but said he provided them to the Tribunal because they are all related to his family and all the people who were murdered. He said he does not remember all the dates or what exactly happened to them. He indicated he does not know who [Mr A] is. He said his memory is not good due to his drug use and depression he has suffered.
When asked about the second FIR, which states it was made on 7 November 2009 by [Mr B] (although it is dated 9 December 2009), the applicant said he is his uncle. He said he did not know what the FIR is about, commenting that his brother sent them to him but he has not been through them. He indicated he can’t explain any of them, but added they are all about who died and who was shot in his family.
The Tribunal asked the applicant if any of the FIR’s are about the incidents he has described involving himself and his father. He replied, ‘yes’, commenting that he believes his brother told him that was the case. The Tribunal asked which one. He said he does not know the date but one is about his father when he was shot. The Tribunal commented that the third FIR, made on 30 November 2009, is by [Mr C]. The applicant said that is his uncle. The Tribunal observed it also refers to [Mr D]. The applicant said his father is [Mr D]. The Tribunal commented that the FIR seems to regarding a wheat crop that was destroyed. The applicant said that was about the time his father was shot.
When the Tribunal sought to discuss the fourth FIR, made on 30 July 2015 by [Mr E], with the applicant, he indicated he could not answer. The Tribunal did not persevere with questioning the applicant regarding the FIRs and the hearing was adjourned for 15 minutes.
After the adjournment, the Tribunal asked the applicant what kinds of firearms were people using (noting that the FIRs referred to AK-47s being used). The applicant said they mostly used machine guns: AK-47s, M16s and M4s, and pistols. When asked where they got access to such weapons, the applicant said he had no idea but commented ‘those people have long hands’. The Tribunal added that the FIRs is that make reference to people being armed with AK-47s and it would seem that if groups were attacking each other which such weapons (military assault rifles which have a 30 round magazine) there would have been a lot of casualties very quickly, but that doesn’t seem to have been the case. He replied, ‘alright’.
The Tribunal observed that the DFAT Country Information Report comments that document fraud is widespread in Pakistan for forms of documentation not issued by a competent central authority such as the National Database and Registration Authority (NADRA). The report further comments that FIRs use standard forms with the relevant information written in by hand, and are relatively simple to counterfeit; that reports exist of police accepting bribes to verify fraudulent FIRs; and that DFAT does not consider the existence of an FIR to constitute evidence that the events described in the FIR actually occurred.[6] The Tribunal commented that it needs to take this advice into account when considering what weight to give to the FIRs he has submitted because, while the country information doesn’t mean all FIRs are fraudulent, it does mean that it is very easy to produce fraudulent FIRs.
[6] DFAT Country Information Report, Pakistan, 20 February 2019, sections 5.70-5.76.
The Tribunal asked the applicant where he was living with his maternal uncles after he completed his time at [College 1] in Lahore. He said before he came to Australia he lived with them in their family home the village of [Village 2] which is [number] km on the other side of Sheikhupura from his village ([Village 1]). He indicated that is where his mother will be going after her mourning period. He commented that they are well-respected in their area and no-one attacks them so they can take care of his mother, who he indicated is suffering a number of serious health issues. The Tribunal asked the applicant why he could not join his mother and maternal uncles there. He replied that as the eldest son he is now the target. He said females are not attacked as part of the feud. He added that his brother is living with his mother in [Village 1] but said it is very dangerous for him, he does not go out or do anything, and is waiting to go to university in [Country 1].
The Tribunal commented that he stated in his application that he can’t get help from police as the other family is so well connected and police will give information of their whereabouts and help the other group to hunt them down, but, as the delegate also observed, he and his family appear to have lived a relatively normal life in their home area - they have been living in the same village for many years and have not chosen to move away - so these people know where they are and don’t need help to track them down, yet he hadn’t been harmed while he was in Pakistan and his brother hasn’t been harmed. The applicant replied that his brother wants to leave as soon as he gets the chance, doesn’t go out of the house and has a lot of guards. He added that as soon as they get a chance they will not forgive him or let him go.
Noting the applicant had indicated he has family in [Country 1], the Tribunal asked the applicant why his parents did not send his brother abroad to study. The applicant said he has family in [Country 1], [Country 2] and [Country 3] but his brother has to wait until he is 18 years old to get a National Identity card before he can apply for anything. He added that before that you don’t have any proof of age or anything, and if a passport is sought for the purpose of study abroad the person must be 18 or older.
The Tribunal commented that his fear of harm appeared to be localised to the area around his village, where he states the disputed lands are, and asked the applicant why he could not relocate to a city such as Rawalpindi, Islamabad or Lahore, noting that his sister had studied in Rawalpindi. He said they are trying to relocate now, and as his sisters finish their education, they are focusing on getting them married, and are trying to get them partners who are abroad, so they can go abroad. He commented that he wants them to be close to him and his mother and wants to try to bring his family together in one place, maybe to Australia. The Tribunal asked the applicant why he thought he would be at risk in a places like Islamabad, Rawalpindi or Lahore. He said his cousin lived in Islamabad and he was attacked and his younger brother was killed in that attack and another cousin was killed in the restaurant in Lahore. He commented that he can’t relocate in Pakistan because the country is full of corrupt cops and politicians, bribery occurs everywhere, and people don’t care about the life of anyone.
The Tribunal queried the applicant why, given the picture he paints of his circumstances: of being at imminent risk due to a feud where 20-30 family members had been killed, he did not make a protection visa application when he arrived in Australia in August 2017, or when he ceased attending his course, or when his student visa ceased, and only applied (on 21 April 2021) after he was taken into immigration detention when he was released from criminal custody on 16 March 2021. The applicant said he never had any intention to stay in Australia by applying for a protection visa. He added that it is humiliating for him to disclose the circumstances he has been through and he always wanted to stay in Australia with dignity. He added that he didn’t know what he was doing once he started using heroin, almost three years ago, and only got off it once he was in custody and then he came to his senses.
When asked at the end of the hearing if there was anything he would like to add, the applicant asked if he could get another chance to present his case in a better way as he was not prepared at all as he thought it would just be a ‘mention hearing’. Noting that the applicant has good English language skills and the hearing invitation clearly informed him that it was a three hours hearing where he would be given the opportunity to give evidence and present arguments relating to the issues arising in his case, the Tribunal indicated that he would not be able to have a further hearing.
The Tribunal asked the applicant if there was anything else he wanted to tell the Tribunal. He indicated there was not. He asked whether he could provide additional information or evidence before the Tribunal makes its decision. The Tribunal indicated it would give him two weeks to provide any further evidence or information he would like to submit to the Tribunal. He commented that would be more than enough time. At the time of decision, no further submissions had been received from the applicant.
Assessment
After carefully considering all the available evidence, the Tribunal has concluded that the applicant’s claims are not credible and he does not face a real chance of suffering persecution involving serious harm due to a decades old feud/rivalry with another clan/tribe or descendants of his great, great grandfather. This is for the following reasons, considered cumulatively.
Firstly, the Tribunal found much of the applicant’ evidence was vague and confused. It is unclear why he referred to the dispute as being with another clan/tribe when its claimed origins are within his great, great grandfather’s family, and why he did not explain this to the delegate. The applicant also could only state that somewhere between 20 and 30 people had been killed on his side of the family, and could only provide specific details of a handful of these people. He indicated variously that the claimed incident in the restaurant in Lahore occurred in ‘maybe 2018’ (to the delegate), 2016 and 2015, and could not provide a date closer than June or July. His evidence regarding the two incidents where he claimed his father was attacked was very confused. He was unable to comment at all about the information in the FIRs he submitted to the Tribunal.
Second, the applicant claimed that the initial division of his great great grandfather’s land to his sons had occurred in the traditional manner and subsequently had been legally settled, so it is difficult to understand why the distribution of the land would have been disputed and his great grandfather killed.
Third, there is nothing in the FIRs submitted regarding any of the key incidents the applicant claimed occurred in more recent times – the two claimed attacks on his father, including the one where he claimed he was in the car with his father where the driver was killed; the claimed incident in at the restaurant in Lahore; the claimed killing of a cousin in Islamabad; and the claimed murder of his grandfather (which he said occurred 9-10 years ago, that is, in 2010-2011). As noted above, the third FIR discussed with the applicant at the hearing, purportedly made on 30 November 2009 by [Mr C], may be by his uncle and may make reference to his father and grandfather. The applicant indicated that this date was around the time his father was shot (referring to the second claimed incident involving his father which he said occurred in 2009). In his earlier evidence at the hearing, however, the applicant indicated this incident occurred at night-time when his father ([Mr D]) was returning to the house in the village, was a planned attack, and involved a shoot-out in which 4-5 people died but his father got away, having been shot through the arm. While the FIR states that [Mr D] received a pistol shot (in the leg rather than through the arm), the incident as recorded in the FIR is completely different to the applicant’s account at the hearing of the claimed incident involving his father in 2009, and the earlier claimed incident (in which the applicant claimed he was in the car with his father when they were attacked and their driver was killed). According to the FIR, no one was killed in this purported incident, which occurred during the daytime. In general, noting the DFAT advice cited above regarding FIRs, the applicant’s inability to comment on the content of the FIRs, and the discrepancies between what is recorded in the 30 November 2009 FIR and the applicant’s evidence at the hearing, the Tribunal gave the FIRs little weight.
Fourth, the applicant did not submit any press reports (which he indicated his brother had) or other documents (such as a death certificate) regarding the claimed killing of his cousin in the [Name 1] restaurant in Lahore. A Google search by the Tribunal brought up a reference to this restaurant in Lahore but did not identify any reporting of a murder at the restaurant in 2015 or 2016, something that would be expected if a teenager had been shot dead in a restaurant in a major Pakistani city such as Lahore, the capital of Pakistan’s largest province.

Fifth, the Tribunal found the applicant’s account of why he and his cousin would have been out together at a restaurant in Lahore to be implausible, if he had been told not to leave his hostel, his father had previously been attacked and shot twice as claimed, other cousins had been killed, and he previously had been under guard and had rarely attended school in Sheikhupura.
Sixth, the applicant’s father died of natural causes in 2021, the applicant was not harmed while he was in Pakistan and his younger brother has not been harmed. The Tribunal considers it improbable that, if there was a longstanding feud which had claimed up to 30 lives on his side of the family as claimed, and the opposing side were as wealthy, influential and well connected (with police, politicians and the underworld) as claimed, that the applicant, his father and brother would all have been able to avoid being killed.
Seventh, the applicant indicated that his grandfather had not been harmed after killing 6-7 people in the late 1950s-early 1960’s because he moved away from the village for 25 years. He indicated, however, that his grandfather moved to Sheikhupura, which is only a relatively short distance from [Village 1]. It seems improbable that, if there was a feud as claimed, that the other side would not have been able to target his grandfather and his grandfather’s children in Sheikhupura. The Tribunal also notes that, if this 25 year period is correct, his grandfather would have returned to the village between 1985-1990, but the applicant claims he was murdered only 9-10 years ago. As the Tribunal observed at the hearing, the applicant was saying that the other side waited 50 years to avenge the claimed killing of 6-7 of their family members. While the applicant indicated this was the case, the Tribunal considers it highly improbable given the close proximity of Sheikhupura to [Village 1] and the applicant’s assertion that the opposing side were much wealthier, influential and well connected (with police, politicians and the underworld) than his family.
Eighth, as the Tribunal observed at the hearing, the applicant is from a wealthy family with significant landholdings and businesses. They have resided in the same area since he was born and have been able to ensure he and his siblings received high quality education. Their lives do not appear to have been disrupted by a serious feud/rivalry that has claimed the lives of 20-30 extended family members. Their wealth would have afforded them the opportunity to move away to a safer location, such as Lahore or Islamabad, if male family members faced a real risk of serious or significant harm, but they never did this.
Nineth, while the Tribunal accepts that the applicant may have lived with his maternal uncles in [Village 2] village after he completed his Intermediate and before he came to Australia, the Tribunal does not accept this was because there was concern regarding his safety. In this regard, the Tribunal considers that if the applicant’s assertions that the opposing side were much wealthier, influential and well connected (with police, politicians and the underworld) than his family, and instead of protecting them the police give information regarding their whereabouts and help the other group hunt them down because the other group has a lot of money for bribes, and given the still relatively close proximity of [Village 2] to his home area, the Tribunal considers it is unlikely he would have been safe from harm there.
Finally, the Tribunal gives some weight to the delay of over three and a half years in the applicant applying for a protection visa after he arrived in Australia in August 2017. The Tribunal accepts that he may not have made an application immediately on arrival in Australia because he expected to obtain Bachelor [Degree] and might have considered this would provide an opportunity for him to obtain permanent residence in Australia as a skilled migrant. It is clear from the applicant’s evidence, however, that once he completed his ELICOS course he did not taken his planned further studies seriously and the Tribunal considers he must have realised shortly thereafter that he would not obtain a degree qualification. While the Tribunal also accepts that the applicant’s heroin addiction may have clouded his judgement to an extent, the Tribunal notes that he continued some aspects of his life normally for a time, such as working as a [Occupation 1] and [Occupation 2], and considers his ceasing his studies would have caused him to consider other options to remain in Australia, such as applying for protection, if he considered he faced a real risk of serious or significant harm if he had to return to Pakistan.
As the Tribunal finds the applicant does not face a real chance of suffering persecution involving serious harm due to a decades old feud/rivalry with another clan/tribe or descendants of his great, great grandfather, the Tribunal finds that he does not require the protection of the Pakistani authorities.
Does the applicant have a well-founded fear of persecution if he returned to Pakistan?
Having carefully considered the applicant’s claims, for the reasons given above, the Tribunal does not accept that there is a real chance that the applicant will suffer persecution involving serious harm from members of another clan/tribe or estranged descendants of his great, great grandfather or anyone else, for one or more of the five reasons mentioned in s.5J(1)(a) of the Act, if he was to return to Pakistan, now or in the foreseeable future.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
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).
In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of him being removed from Australia to Pakistan, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[7]
[7] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
Considering the applicant’s circumstances, and having regard to the findings of fact set out above, the Tribunal also finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Pakistan, there is a real risk that the applicant will suffer significant harm, as set out in s.36(2A), from members of another clan/tribe or estranged descendants of his great, great grandfather, or any authority, organisation, person or group.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Member of the same family unit
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, he does not satisfy the criterion in s.36(2).
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
Paul Windsor
Member

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.
…

[2021] AATA 5644

16 September 2021

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