2211202 (Refugee) - [2024] ARTA 602

2211202 (REFUGEE) [2024] ARTA 602 (28 OCTOBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs

Tribunal Number: 2211202
Tribunal:General Member C Wilson
Date:28 October 2024

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

Statement made on 28 October 2024 at 4:01pm
CATCHWORDS
REFUGEE – Protection Visa – Pakistan – fears harm from the family of [Ms A] – religion – Shia – marrying without the father’s consent – being a Shia who married a Sunni – short-lived mixed Shia-Sunni marriage – mental health – not satisfied that the applicant faces a real risk of serious or significant harm – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, 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 25 July 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a national of Pakistan, applied for the visa on 4 October 2017. The delegate refused to grant the visa on the basis that they did not accept the applicant had married a Sunni girl, and therefore did not accept he had been harmed by or faced ongoing threats from her family for this reason. The delegate also did not accept the applicant faced a real chance or real risk of harm as a Shia in Pakistan.
The applicant appeared before the Tribunal on 27 August 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
BACKGROUND
The applicant is a single Shia man from Punjab province, Pakistan.
Evidence before the Department
The applicant applied for the protection visa in October 2017 and made the following claims:
·On 3 April 2015 he married a Sunni girl [Ms A] whose family belong to the Deobandi sect of Sunni Islam. [Ms A] lived in his neighbourhood and he first noticed her in 2007. He got her phone number from her sister and they got to know each other over the phone. It was too dangerous to meet in person. In late 2014 they discussed marriage and [Ms A]’s mother and sister helped her to marry the applicant without the father’s knowledge.
·On 4 April 2015 [Ms A]’s father lodged a First Incident Report (FIR) complaining his daughter had been kidnapped by the applicant.
·On 7 April 2015 [Ms A]’s father, her brother, and two uncles came to the applicant’s house. They broke down the door and attacked him with sticks. They threatened to kill him, beat him unconscious with sticks and the butt of a gun, and forcibly took [Ms A] away. They did not kill the applicant because many people in the neighbourhood came to see what the noise was about. The applicant went to the police to lodge an FIR.
·On 12 April 2015 [Ms A] lodged a petition in the court to state she married the applicant without coercion, and that her father and male relatives opposed the marriage due to the differences in religion. No action was taken by the authorities but in response her father took her mobile phone and restricted her movements.
·He has not spoken to [Ms A] since but has spoken to her sister.
·In late April 2015 he moved to Lahore because it was no longer safe for him at home. He lived and worked in Lahore until he came to Australia. Whilst in Lahore he continued to receive death threats on his phone from [Ms A]’s father.
·He returned home on three occasions between 2015 and 2017. On the second visit in September 2016 [Ms A]’s father and other people caught him and beat him. He lodged another FIR with the police. In September 2017 he visited his parents before departing for Australia. [Ms A]’s father and uncles forced entry into his parent’s house and shouted abuse at them. They beat him with sticks and the butt of a gun and [Ms A]’s father attempted to stab him. A lot of people in the neighbourhood came, as well as the police. The police released [Ms A]’s father and relatives without any charges. The applicant lodged another FIR.
·[Ms A]’s father is a [Occupation 1] and is close to a prominent cleric of the Deobandi sect. [Ms A]’s father will not rest until the applicant is killed because he is still married to his daughter and the applicant has brought shame on their family by marrying without the father’s consent.
·The applicant cannot obtain protection as the police view this as a family matter. He cannot relocate to avoid harm as he will be found wherever he goes due to the large network of Deobandi’s throughout Pakistan.
In support of his claims the applicant provided a number of documents, including: an FIR lodged in December 2014 by [Ms A]’s father complaining about the applicant practising his Shia religion in the street outside his house; an FIR lodged on 4 April 2015 by [Ms A]’s father claiming the applicant kidnapped her; a court order dated 18 June 2015 granting bail for the applicant in relation to the father’s kidnapping complaint; an FIR lodged by the applicant on 7 April 2015 regarding the beating he received from [Ms A]’s father and other relatives; copy of a case lodged by [Ms A] on 12 April 2015 saying she married of her own free will and complaining of the beating of her Shia husband by her relatives; an FIR lodged by the applicant on 2 August 2016 in Lahore claiming [Ms A]’s father was repeatedly threatening him; an FIR lodged by the applicant on 20 September 2016 claiming he was beaten by [Ms A]’s father; an FIR lodged by the applicant on 5 September 2017 claiming he was beaten and stabbed by [Ms A]’s father and others; a certificate dated 1 January 2014 stating [Ms A] studied [for] two years; a family registration certificate dated 5 August 2015 for the applicant and [Ms A]; their marriage registration certificate; an undated letter from an Imam in his home district saying he knows the applicant and witnessed the serious issues caused by the marriage; and an undated letter from a local politician saying the applicant faced serious threats because of the marriage.
The applicant was interviewed by the delegate on 6 June 2022. The delegate summarises the oral evidence given at the interview in the decision record.
Evidence before the Tribunal
No pre-hearing submissions or evidence was provided. The applicant did not ask the Tribunal to take evidence from any witnesses.
At the hearing the applicant provided information on his family. He said his father passed away [in] 2021. His mother lives with his elder brother and his family in a town in Punjab province about 45 minute drive from where the family and the applicant used to live. The applicant had been living with another brother in the Northern Territory but moved to NSW in 2023. That brother has lived in Australia since 2010 after coming here as a student. Their mother travelled to Australia with the applicant in 2017 but returned to Pakistan before her visitor visa ceased.
The applicant said there had long been issues with [Ms A]’s father. His uncle and grandfather had issues with [Ms A]’s father because they had a mosque where the applicant lived, and [Ms A]’s father would complain and call the police when they were reciting prayers.
The applicant said he got [Ms A]’s phone number in mid-2010, after they had noticed each other as neighbours for some time. She gave him her number and they started messaging each other. They did not message much when he lived in [a county] from September 2012 to January 2013 as it was expensive. Their messages got more serious in 2014 and they started talking about marriage. [Ms A]’s mother and sister were supportive of them marrying and attended the wedding. His parents were open-minded about it. He expected [Ms A]’s father to be upset they had married but did not run away with her because he knew he had to face him eventually. The father however reacted violently and knocked down their front door to take back [Ms A] and beat the applicant.
The applicant said his family were also targeted by [Ms A]’s family and had to leave the area and relocate to another town 45 minutes away. He thinks they left in 2021 after his father died. They were not physically harmed during the 4 years they continued living as neighbours of [Ms A]’s family because the applicant’s father was also a man with connections so [Ms A]’s family did not harm them. But after his father died his brother and mother felt unsafe and had to move.
The applicant said he has not seen [Ms A] since her father took her a few days after their wedding. There was some messaging but then they stopped contacting each other. They were divorced in June 2020. He knows this because papers were given to his brother in Pakistan.
I asked the applicant where he would return to in Pakistan and he would not say because he says he will not return. I put to him I would likely find he would return either to Lahore where he lived for two years prior to coming to Australia, or to the town where his mother and brother live. He did not dispute this.
He said he cannot return to Pakistan because he is famous now. Everyone knows him for being a Shia who married a Sunni. The threat to him is both a personal and a sectarian issue. Whenever there are issues between Shias and Sunnis in his area he will be targeted. He will be tracked wherever he goes in Pakistan. They have not threatened him in Australia because they don’t know his number here, but if he returns to Pakistan [Ms A]’s family will know and will never leave him alone.
The applicant also said he was very stressed and had an incident about 9 months ago where he had to call the police He wanted the Tribunal to know that if he made mistakes around dates it may be due to his mental health. His representative submitted the applicant’s mental health will deteriorate if he has to return to Pakistan and would be unable to work or subsist for this reason. I raised that I did not have any medical evidence of mental health issues and none was provided after the hearing.
The representative also raised in oral submissions that the applicant has lived in Australia a long time now and he may be targeted by extremists for having spent time in a western country.
The applicant provided a post-hearing submission dated 5 September 2024 raising issues about the general security situation in Pakistan and attached a number of country reports.
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.
REASONS AND FINDINGS
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant claims to be a national of Pakistan, and provided copies of his Pakistani passport and identity card as evidence of this. I accept the applicant is a national of Pakistan and find Pakistan is his receiving county.
Does the applicant satisfy the refugee criterion for protection?
The applicant says he is high profile and that he is at risk because of the combination of his situation being an honour and sectarian issue. He also claims
Marriage to Sunni girl
Based on the documentary evidence provided by the applicant I consider it is plausible he married a Sunni girl named [Ms A], and that her father opposed the marriage. This may have been because of the religious differences or because they married without seeking his approval first, or any other reason. It is also plausible the father intervened to take his daughter home again, and helped her or forced her to divorce the applicant. I consider however the applicant has exaggerated the level of harm and threat he suffered in Pakistan and may face on return.
‘Honour’ killings are a problem in Pakistan, targeting both men and women although the majority of victims are women. The Human Rights Commission of Pakistan recorded 430 cases of honour killings during 2020, involved 148 males and 363 females. Of those cases 189 occurred in Punjab province, with 37 males killed. Examples of such killings in Punjab include: the torture and killing of a man for marrying without her family’s consent; the killing of a man by a woman’s family merely for asking for her hand; and a horrific attack on a man by two brothers for being in a relationship with their sister.[1]
[1] EASO COI Inquiry, Honour killings in Pakistan, with a focus on Punjab province, 17 January 2022.
The applicant claims he will be killed by [Ms A]’s father and family if he returns to Pakistan. He claims that on three occasions the father came with weapons and other men to kill him. However on each occasion the father retreated because neighbours either intervened or the fact of their gathering made him withdraw. Further, although he says the father and his supporters came at him with knives, guns, sticks, and other weapons, there is no medical evidence the applicant or members of his family suffered serious injuries. I consider that if [Ms A]’s father or family were intent on killing the applicant, or seriously injuring him, they would have done so. I acknowledge the applicant provided a number of FIRs that he says are evidence of him going to police to complain about being attacked and threatened by [Ms A]’s father, but I am concerned about the reliability of those documents noting the poor English translations that have been provided.
That no serious injury was inflicted on the applicant in the period between the marriage and his leaving Pakistan, a period of 2 and a half years, suggests any threats from [Ms A]’s family that they would kill him were hyperbole. I acknowledge the applicant moved away to Lahore and the occasions when he says they came at him with weapons only occurred when he lived in his hometown or on some of his home visits. However he also says [Ms A]’s father is well-connected and could find him anywhere. That no attacks or confrontations occurred in Lahore indicates there was no interest by her family in pursuing him. The applicant said he was in hiding in Lahore, but he also said [Ms A]’s father could find him anywhere in Pakistan. I note also he was out and about working [in] Lahore, and I do not accept he was in hiding. He says he got threatening calls from [Ms A]’s father when he lived in Lahore but I consider this is an exaggeration as I do not accept he would not have either blocked the father’s calls or changed his phone number if he was getting threatening calls.
The applicant says [Ms A]’s mother and sister were supportive of the relationship and attended the wedding. That they would do so indicates that even if they thought the father would be unhappy with the match, there was an expectation he would accept it once they were married. The mother and sister’s actions suggest they did not have a fear or expectation he would react violently. [Ms A]’s action after the wedding in going to the court to file a petition also suggests she had a level of freedom and confidence to do so, not an expectation of violence from her father targeting her or her new husband. There is no evidence [Ms A] was killed or seriously injured by her father or male relatives. The applicant said he cannot know what was happening behind closed doors, but he did have some contact with [Ms A] when he lived in Lahore and she never told him she had been harmed or was unsafe. I further note her family did not arrange the divorce until 2020, suggesting it was not a pressing matter for them.
The applicant says he is ‘famous’ because of his marriage to [Ms A], and his risk is heightened because it is both an honour matter and a sectarian issue with the tensions between Shias and Sunnis in his home area. He said at the hearing that if tensions escalate between the two groups he could be targeted due to his notoriety as a Shia who married a Sunni, however he did not provide any example of when this occurred in the past. Shia-Sunni mixed marriages do occur and are not illegal in Pakistan, but the treatment of such couples is said to differ depending on the locality, region, social stratum, and family circumstances.[2] I consider the applicant may have had some short term ‘notoriety’ in his community when people heard he had married a Sunni girl, but I consider any such notoriety would have been short-lived. I do not accept he was of adverse interest to people in his community outside of [Ms A]’s family. I do not accept people in his community have any ongoing interest in him, 7 years after a marriage that lasted mere days. In any event he is unlikely to return to the town where [Ms A]’s family live. I consider the applicant will either return to Lahore where he lived and worked for over two years before coming to Australia, or may live with his mother and brother whilst settling back into Pakistan. I have considered his claim that this mother and brother moved because they felt unsafe, but there was no evidence of incidents where they were targeted by [Ms A]’s family, no statements or oral evidence from his family, and I do not accept they were physically harmed in the 4 years they continued living as neighbours. I consider the decision to move may have been based on the brother’s work as a [occupation], and the mother moved with him now that she was widowed. I note also the mother travelled with the applicant to Australia in 2017 and went back to Pakistan voluntarily, indicating she did not have any fear of [Ms A]’s family.
[2] Immigration and Refugee Board of Canada, Pakistan: Treatment of persons in mixed Sunni-Shia marriages; ability to relocate to other parts of the country; state protection available; 31 December 2018.

I have considered the applicant’s claim that he will face harm from [Ms A]’s father or other relatives because they will never forget that he married her. However, I do not accept they have an adverse interest in him now after the marriage has been dissolved through divorce, there is no contact between him and [Ms A], and no suggestion they would reunite. Even taking into account his claim that [Ms A]’s family are said to be from the Deobandi sect of Sunni Islam, I consider that if they or anyone else in the local community had an interest in killing or otherwise inflicting physical harm on the applicant this would have occurred at the time of the marriage or shortly thereafter. I do not accept the applicant faces a real chance of harm from [Ms A]’s family or any other group or person in the reasonably foreseeable future because of his short-lived mixed Shia-Sunni marriage in 2017.
Shia from Punjab
The applicant claims to fear harm as a Shia from Punjab. He also says the security situation generally in Pakistan has deteriorated significantly and he faces a risk of harm from extremist Sunni groups including the Lashkar-e-Jhangvi (LeJ), Pakistani Taliban aka the Tehreek-e-Taliban (TTP), and Islamic State (IS), and also from the Balochistan Liberation Army (BLA).
In 2022 DFAT reported that Muslims comprise around 96 per cent of the population in Pakistan, with the majority being Sunni Muslims. Shias account for 10 to 20 per cent of the population, that is, 20 to 40 million people. Lahore is home to a significant Shia community. DFAT reports large urban centres such as Lahore have ethnically and religiously diverse populations and offer some anonymity for people fleeing violence by non-state actors. Shias have historically been targeted by sectarian groups such as the LeJ, TTP and IS, who have attacked Shia individuals, places of worship, shrines, religious schools, and Shias travelling for religious pilgrimages. However the frequency of such attacks has steadily declined since 2013.[3] In recent years the Pakistani government has increased security procedures for Shia religious events. Recent Muharram and Ashura commemorations have passed peacefully.[4]
[3] DFAT, Country Information Report Pakistan 25 January 2022.
[4] APP, 9^th Muharram procession concludes peacefully in federal capital, 7 August 2022; Dawn, Ashura observed peacefully, 31 July 2023; Dawn, Ashura observed peacefully across country amid heightened security, 17 July 2024.
In relation to the general security situation in Pakistan, the Center for Research and Security Studies (CRSS) reported that the overall fatalities recorded in 2023 were the highest since 2017. They recorded 1533 violence related fatalities and 1462 injuries from 789 incidents. The northwestern Khyber Pakhtunkhwa and Balochistan provinces accounted for over 90 per cent of the fatalities and 84 per cent of the attacks.[5]
[5] CRSS, Annual Security Report 2023 Pakistan.
The Pak Institute for Peace Studies (PIPS) reported a 65 per cent increase in terrorism-related fatalities in 2023. Khyber Pakhtunkhwa faced the highest number of attacks for any region in the country. PIPS report the TTP has adopted the Afghan Taliban’s operational and political tactics, and intensified its attacks against the security establishment. To position itself as the anti-establishment armed resistance force the TTP has distanced itself from the sectarian divide and now avoids sectarian attacks. PIPS reports however that IS has filled this space and has hit hard against sectarian targets in Pakistan and Afghanistan.[6] I note however for incidents occurring in Punjab province in 2023, the targets were largely police or other military or intelligence forces rather than sectarian based attacks against Shias.[7]
[6] PIPS, Pakistan Security Report 2023, January 2024.
[7] Illustrative incidents in 2023: 4 January 2023, two officials of the intelligence agency ISI were killed by a source they met in Khanewal, Punjab. TTP and Lashkar-i-Khorasan claimed the attack; 23 January 2023, TTP militants attacked a police checkpoint and killed two policemen in Taunsa, Punjab; 31 January 2023, heavily armed TTP militants were repulsed whist attacking a police station in Makarwal, Mianwali district; 16 February 2023, one person was killed and nine were wounded after a bomb exploded on the Jaffar Express train near Chichawatni, Punjab, BNA claimed the attack; 7 May 2023, unknown assailants killed a member of the Sikh community in a drive-by shooting in Lahore; 1 October 2023, at least a dozen TTP members attacked the Kundal police station in Mianwali, with militants and a policeman killed in the ensuing gun battle; 4 November 2023, nine militants of TJP were killed during an attack on the Mianwali Training Air Base of the Pakistan Air Force. Office of the Commissioner General for Refugees and Stateless Persons, Pakistan Security Situation, 25 May 2024.
August 2024 saw an increase in terrorist violence from previous months. PIPS reported 59 terrorist attacks, with two of these reported in Punjab. Khyber Pakhtunkhwa and Balochistan were hardest hit, with 29 and 28 attacks respectively. The majority of the attacks in Balochistan were carried out by the BLA.[8] The BLA is an ethnonationalist militant group fighting for independence or greater autonomy for the province of Balochistan.[9] The applicant relies on a report from the BBC of a recent BLA attack in Muse Khel district Balochistan where the BLA targeted people from Punjab, reportedly shooting them after stopping vehicles to check identity documents.[10] There is no suggestion however the applicant intends to or would need to travel through Balochistan.
[8] PIPS, Press release: Balochistan Plunges into Terrorist Violence in August 2024, 2 September 2024.
[9] DFAT, Country Information Report Pakistan 25 January 2022.
[10] BBC, At least 22 killed after having IDs checked in Pakistan, 26 August 2024.
Following the hearing the applicant provided a copy of the Australian government’s Smartraveller advice for Pakistan, dated 27 August 2024. The part of the advice particularly highlighted by the applicant included advice that the need to travel to Pakistan should be reconsidered as the security situation remains unpredictable and the threat of terror attack remains high. The advice in Smartraveller is intended for Australian citizens and permanent residents travelling to Pakistan. It is not intended for nationals of Pakistan who live or have lived there and have local connections in the country. I have given this travel advice little weight.
I find the country information before me indicates that while there has been a deterioration in the security situation in Pakistan, Punjab is one of the safer provinces. Most violent attacks and incidents are reported to occur in Khyber Pakhtunkhwa and Balochistan provinces. Sectarian violence against Shias in Lahore and in Punjab province generally are not commonly reported. Whilst there are incidents in Punjab the attacks there overwhelmingly targeted the police and military or other higher profile targets. There is a large Shia population in Lahore and in the Punjab province and I do not accept the applicant has a profile that would attract adverse attention. Even when considered cumulatively with his having a brief marriage to a girl from a Sunni Deobandi family in 2017 I do not accept he has a profile of interest to extremist Sunni or other militant groups. I find the chance of the applicant facing harm in Punjab for reason of his religion, even when considered cumulatively with his past marriage, is too remote to amount to a real chance.
Blasphemy
The applicant claims he fears being charged with blasphemy for reason of his Shia beliefs. Such charges have reportedly increased in Pakistan, due to a general rise in religious extremism and intolerance. However, even though such charges and convictions have increased, they are still rare in a country with a population of over 200 million people. In 2022 around 171 persons were accused of blasphemy.[11] Even taking into account that religious minorities including Shias, Ahmadis and Christians are disproportionately affected by blasphemy charges[12] I consider the chance of the applicant as an ordinary Shia being charged with blasphemy is farfetched and too remote to amount to a real chance.
Western returnee
[11] ACCORD, Pakistan: COI Compilation, April 2024.
[12] DFAT, Country Information Report Pakistan 25 January 2022.
The applicant’s representative raised at the hearing that the applicant may face harm as someone returning from a Western country. I note however the applicant has previously spent time in the United Kingdom and faced no harm for this reason on his return to Pakistan.
Over 6 million Pakistanis live outside of Pakistan, with significant numbers living in Western countries such as the United Kingdom and United States of America. Wealthy Pakistani families commonly send their children to Western countries for education, and English is one of the two official languages in Pakistan. DFAT assesses returnees to Pakistan do not face a significant risk of societal violence or discrimination purely as a result of their attempt to migrate or because they have lived in a Western country.[13] I consider the applicant will be indistinguishable from the many Pakistanis who travel in and out of the country from the West. I do not accept he has a profile for reason of his religion or his short-lived marriage to a Sunni such that cumulatively with spending time in the West he will be of adverse interest to any anti-Western extremist groups. I find the applicant does not face a real chance of harm for reason of spending time in Australia and returning from a Western country .
[13] DFAT, Country Information Report Pakistan, 20 February 2019.
For these reasons I find the applicant does not meet the refugee criterion in s 5H(1) and does not meet s 36(2)(a).
Does the applicant satisfy the complementary protection criterion for 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).
For the applicant to meet the complementary protection criterion I must be satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Pakistan, there is a real risk he will suffer significant harm. ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
I have found the applicant does not face a real chance of harm for reason of religion, past marriage to a Sunni Deobandi girl, or returning from the West, whether these matters are considered singularly or cumulatively. ‘Real chance’ and ‘real risk’ has been found to equate to the same threshold. For the same reasons given above, I find there is a not a real risk the applicant will suffer significant harm for the reason claimed, whether they are considered singularly or cumulatively.
It was submitted the applicant’s mental health may deteriorate if he returns to Pakistan. No medical evidence was provided to show the applicant currently has a diagnosed mental health issue or that he is being treated for any condition related to his mental health. In any event, even if a return to Pakistan causes his mental health to deteriorate, this may not amount to significant harm as defined in the Act. Australian courts have held that harm caused by the act of removal is not significant harm.[14]
[14] CHB16 v MIBP [2019] FCA 1089; CSV15 v MIBP [2018] FCA 699; GLD18 v MHA [2020] FCAFC 2.
I find there are not substantial reasons for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan there is a real risk he will suffer significant harm.
Conclusion
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.
Hearing:  27 August 2024
Representative:   Mr Ahmad Dostizada
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
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(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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