2212789 (Refugee)

2212789 (Refugee) [2024] AATA 3673 (19 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Muhammad Raza Ali
CASE NUMBER: 2212789

COUNTRY OF REFERENCE: Pakistan
MEMBER:Member Nathan Goetz
DATE:19 September 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision dated 2 October 2017 refusing to grant the applicant a protection visa.

Statement made on 19 September 2024 at 6:14pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – Federal Circuit and Family Court remittal – religion – Shia – work for a Shia Organisation – employment – shooting – fear of killing – threats from Lashkar e Jhangvi – internal relocation – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 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 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made under s 65 of the Migration Act 1958 (Cth) (the Act) by a delegate of the Minister refusing to grant the applicant a protection visa.
The applicant is represented in the review by an Australian legal practitioner.
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 (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.
Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations.
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal must take into 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.
BACKGROUND
On 5 February 2014 the applicant was offshore and granted a student visa to come to Australia. The applicant arrived in Australia holding that visa [later in] February 2014. That visa ceased on 22 July 2016.
On 9 June 2015 the applicant applied for the protection visa. On 25 July 2017 the applicant participated in an interview with the delegate. On 2 October 2017 the delegate refused to grant the applicant the protection visa.
On 23 October 2017 the applicant applied to the Tribunal for review of the decision.
On 21 April 2021 the applicant appeared at a Tribunal hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review (the first Tribunal hearing). On 25 June 2021 the Tribunal affirmed the decision to refuse to grant the applicant the protection visa: AAT 1725841. In that review, the Tribunal held that the applicant did not have a well-founded fear of persecution in Pakistan if he relocated to another part of Pakistan.
[In] July 2021 the applicant applied to the Federal Circuit and Family Court for judicial review of the Tribunal decision. [In] August 2022 the Court quashed the Tribunal decision and remitted the case to the Tribunal for reconsideration in accordance with law.
According to the Court Orders, the decision was made with the consent of the parties and the Minister conceded that the Tribunal’s decision was affected by jurisdictional error as the Tribunal failed to consider the applicant’s claim that the COVID-19 pandemic had adversely impacted Pakistan’s healthcare system and economy, and that this operated as an impediment to relocation in the applicant’s circumstances.
The Court Order noted that the Tribunal was obliged to consider this impediment to relocation because it was a clearly articulated submission of substance and was relevant to the considerations of whether it was reasonable, in the sense of practicable, for the applicant to relocate within Pakistan.
On 10 August 2023 the review was constituted to the Tribunal Member.
On 22 August 2023 the Tribunal wrote to the applicant and invited him to appear at a Tribunal hearing (the second Tribunal hearing) scheduled to commence at 10am on 3 October 2023 at the Melbourne registry. The Tribunal scheduled the Tribunal hearing at that time because the applicant’s representative had written to the Tribunal requesting that the hearing be delayed until he returned to Australia on 29 September 2023.
On 3 October 2023 the applicant appeared at the second Tribunal hearing. The applicant’s representative also attended the Tribunal hearing. The hearing was conducted with the assistance of an interpreter in the English and Urdu languages.
The Tribunal apologises for the delay in finalising the review.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a ‘refugee’ or meets the requirements for ‘complementary protection,’ or whether the applicant is a member of the same family unit as a person who is a ‘refugee’ or meets the requirements for ‘complementary protection.’
If the Tribunal finds that the applicant is either a ‘refugee’ or meets the requirements for ‘complementary protection’ or is a member of the same family unit as a person who is a ‘refugee’ or meets the requirements for ‘complementary protection’ the correct or preferable decision is to set aside the decision of the delegate refusing to grant the protection visa and remit the visa application back to the delegate for reconsideration, with a direction about the criteria the Tribunal finds that the applicant satisfies.
If the Tribunal finds that the applicant is not a ‘refugee’ and does not meet the requirements for ‘complementary protection’ and is not a member of the same family unit as a person who is a ‘refugee’ or meets the requirements of ‘complementary protection’ the correct or preferable decision is to affirm the decision under review.
As advised to the applicant at the second Tribunal hearing, the Tribunal considered the material provided in support of the visa application, as well as the material provided to the Tribunal on review, including the oral evidence provided at the first Tribunal hearing, which the Tribunal listened to. The Tribunal also considered the oral evidence provided at the second Tribunal hearing.
The Tribunal considered the applicant’s claims individually and cumulatively. The Tribunal also made the applicant aware that it was not bound by any finding or decision made by the delegate or the previous Tribunal Member who conducted the first Tribunal hearing.
MATERIAL BEFORE THE DELEGATE
The Tribunal considered the material that was provided to the delegate in the visa application. This included:
·     The applicant’s protection visa application form signed by him on 5 June 2015.
·     A copy of the applicant’s Pakistan passport issued [in] 2013, indicating that it had been certified by a Justice of the Peace for Victoria on 4 June 2015.
·     A written statement, undated, from the applicant headed ‘Statement of [the applicant] in support of his protection visa application in Australia.’ This was provided to the delegate sometime prior to the interview.
·     A letter headed ‘Tehrik-e-Tahaffuz-eHaqooq-e-Jaferia-Pakistan’ dated [in] July 2017. This document was provided to the delegate on the day of the interview.
·     A document in a language other than English, with an accompanying English translation with the translation by an accredited translator dated 21 July 2017 identifying that the document in the language other than English was a First Information Report made at [District 1] Police Station in Lahore, Pakistan [in] November 2013. This document was provided to the delegate on the day of the interview.
·     A letter headed ‘[Community Organisation 1]’ dated 19 July 2017. This document was provided to the delegate on the day of the interview.
·     An Affidavit of [Mr A] declared in Pakistan on 20 August 2014. This document was provided to the delegate on the day of the interview.
·     An Affidavit of [Mr B] declared in Pakistan on 12 August 2014. This document was provided to the delegate on the day of the interview.
·     An Affidavit of [Mr C] declared in Pakistan on 14 August 2014. This document was provided to the delegate on the day of the interview.
·     A letter from [Employer 1] dated 13 March 2017 confirming the applicant’s employment with that organisation, including payslips. This document was provided to the delegate on the day of the interview.
MATERIAL BEFORE THE FIRST TRIBUNAL
The Tribunal considered the material that was provided to the Tribunal in the course of the first review. This included (omitting material that was previously provided to the delegate):
·     The audio recording of the applicant’s interview with the delegate on 25 July 2017.
·     A statutory declaration made by the applicant on 12 April 2021 consisting of one page.
·     A statutory declaration made by the applicant on 12 April 2021 consisting of six pages.
·     A submission in support of the review dated 12 April 2021.
·     A document in a language other than English with an English translation that was attested to in Pakistan indicating a ‘list of members,’ a ‘statement of witness – list of administration of Tehrik Tahfiz Haqooq Jaferia,’ ‘membership terms,’ ‘expenses of the organisation,’ and ‘powers of members of executive body.’
·     A ‘Tehrik-e-Tahaffuz Haqoooq-e-Jaferia Pakistan’ card in English issued [in] 2011.
·     An Affidavit of [Mr C] declared in Pakistan dated 14 August 2014.
·     A death certificate from Services Institute of Medical Science, Service Hospital, Lahore, dated [in] November 2013 for [Friend A].
·     An Affidavit of [Person A] declared in Pakistan on 14 May 2014.
·     An Affidavit of [Mr D] declared in Pakistan on 14 May 2014.
·     An Affidavit of [Mr E] declared in Pakistan on 14 May 2014.
·     An Affidavit of [Mr F] declared in Pakistan on 14 May 2014.
·     An Affidavit of [Mr G] declared in Pakistan on 14 May 2014.
·     An Affidavit of [Mr H] declared in Pakistan on 14 May 2014.
·     An Affidavit of [Mr I] declared in Pakistan on 14 May 2014.
·     An Affidavit of [Mr J] declared in Pakistan on 14 May 2014.
·     An Affidavit of [Mr K] declared in Pakistan on 14 May 2014.
·     An Affidavit of [Mr L] declared in Pakistan on 14 May 2014.
·     An Affidavit of [Mr M] declared in Pakistan on 14 May 2014.
·     An Affidavit of [Mr N] declared in Pakistan on 14 May 2014.
·     An Affidavit of [Mr O] declared in Pakistan on 14 May 2014.
·     An Affidavit of [Mr P] declared in Pakistan on 14 May 2014.
·     An Affidavit of [Mr Q] declared in Pakistan on 14 May 2014.
·     An Affidavit of [Mr R] declared in Pakistan on 14 May 2014.
·     An Affidavit of [Mr S] declared in Pakistan on 14 May 2014.
·     An Affidavit of [Mr T] declared in Pakistan on 14 May 2014.
·     An Affidavit of [Mr U] declared in Pakistan on 14 May 2014.
·     An Affidavit of [Mr V] declared in Pakistan on 14 May 2014.
·     An Affidavit of [Mr W] declared in Pakistan on 14 May 2014.
·     The transcript of the audio recording of the interview with the delegate on 25 July 2017 prepared by the applicant through an accredited translator on 9 March 2018. The Tribunal has not relied upon the transcript because the Tribunal listened to the audio recording as the best source for the evidence about what was said at the interview by the applicant.
·     Six pages of writing in a language other than English that appears to be advertising.
·     Five pages of photographs of the applicant with four different people.
·     A twenty-nine-page post-hearing submission dated 2 May 2021.
MATERIAL BEFORE THE SECOND TRIBUNAL
The Tribunal considered the material that was provided to the Tribunal in the course of the second review. This included (omitting material that was provided to the delegate and the first Tribunal:
· The audio recording of the first Tribunal hearing on 21 April 2021.
SUMMARY OF THE APPLICANT’S EVIDENCE AND CLAIMS
As this matter has a long history, it is best to detail the applicant’s claims and evidence with reference to the material provided over time. The summary is as follows:
Protection visa application form
In the protection visa application form, which the applicant completed without assistance, the applicant declared that he is [the applicant’s name] who was born in Lahore, Punjab, Pakistan. He did not identify his date of birth in the form, but included a copy of his Pakistan passport issued in his name identifying that he was born on [DOB 1]. He claimed citizenship of Pakistan and no other country. He declared that he had no right to enter and reside in any other country. He identified that he can speak, read and write Urdu and English, and that his ethnicity was Punjabi and that his religion was Shia Muslim, He was the only person included in the visa application form and identified that he was raising his own protection claims. He identified a mother and father who were in Pakistan and did not identify that he had any siblings.
He provided his parents address in Pakistan as [Address 1], Lahore, Pakistan which was the same address he identified as living while in Pakistan.
He detailed that he arrived in Australia with a valid visa [in] February 2014 and that he arrived in Australia as a student. He left Pakistan legally on a passport issued [in 2013] and valid until [2023]. He departed Pakistan from Lahore.
He declared that he was not currently employed and declared no employment history in Pakistan.
He declared that he completed government high school in Lahore, [a named] college in Lahore, and that he completed a [Qualification 1] with [University 1] in Lahore in [year]. He did not declare any study in Australia at all.
The applicant was asked to detail his protection claims. He was asked why he left Pakistan and he responded that he left because he had ‘received life threats’ and that he had been ‘attacked in my home country.’ He did not elaborate.
The applicant was asked what he thought would happen to him if he returned to Pakistan. He claimed that he would ‘be killed because the terrorist who attacked me before and killed my friend are very active in my home country.’
The applicant was asked whether he had experienced harm in Pakistan. He declared he had, and that he had been attacked by Lashkar e Jhangvi because he is a Shia Muslim who worked as a [Position 1] for an organisation named ‘Tehreek E Tahafuz Hukook E Jafferia Pakistan.’
The applicant was asked whether he sought help within Pakistan after the harm. He declared that he did, identifying that he lodged a complaint to Punjab police but that they did not help him with this matter, saying that they were with him but they were unable to protect him.
The applicant was asked whether he moved, or tried to move, to another part of Pakistan to seek safety. He declared he did not. He declared that he did not have any friend or relative in another part of Pakistan and that his ethnicity as Punjabi meant that no other province would accept him, and that in most parts of Pakistan it is a bad situation for Shia Muslims.
He claimed that if he returned to Pakistan he would be harmed or mistreated by a terrorist named Lashkar e Jahangvi e Jahangvi because he is a Shia Muslim and an active member of a Shia Organisation who had been attacked previously. He did not think that the authorities in Pakistan could and would protect him because they were unable to protect him in the past. He declared that he did not believe that he would be able to relocate within Pakistan because of this ethnicity as his religion.
As detailed previously, the applicant provided a copy of his passport with the protection visa application. He indicated that he would provide a copy of police reports later.
In the course of applying for the protection visa, the applicant provided a number of documents that were put before the delegate before the delegate made a decision on the visa application. Those documents were provided at the interview with the delegate and are identified in that section of this decision record, save the document identified as ‘statement of [the applicant] in support of his protection visa application’ which is preferable to identify here. It is undated and consists of four pages.
The applicant detailed in the statement that his father was a police officer who faced a lot of discrimination which caused him to be transferred every couple of months. His father left the police force in [year] because he was facing ‘politics and discrimination’ which he though would create some serious allegations against him. The applicant claimed that when his father left the police force, the family moved to Lahore.

The applicant claimed that he studied at a public school in Lahore [between specified years] but he could not continue his studies because of religious persecutions, so he studied at home. He attended his eximination in [year] as an external student and completed those studies in [that year] (the equivalent of [grade]).
After completing this study, he was admitted to [College 1] in Lahore for his high school certificate and his bachelor’s degree. He claimed that he faced religious persecution while attending the school which made it difficult for him to find friends. He claimed fellow students did not want to sit near him because he was a ‘non-believer’ in their opinion. He discussed this with his parents without a resolution. He completed his high school certificate in [year] at that college.
After completing his high school certificate, he joined ‘Tehreek E Tahafuz Hukook E Jafferia’ in January 2011 as a [Position 1] and co-ordinator. He joined this group because he felt isolated and depressed at school and society. He became a prominent member of that society and community. He claimed that as a result, he was targeted.
The applicant claimed that during his time at [College 1] in Lahore, his classmates called him names, not allowed to enter the prayer room, and was not allowed to have lunch or afternoon tea in the college canteen, and was not included in sporting events. He attributed this to being a Shia. He claimed that he was assaulted once attempting to enter the prayer room. He also claimed that on the final day for his examinations for his bachelor degree he was accused or preaching to a class mate, but that he still managed to attend his examination and completed his graduation in [year].
The applicant wrote that on [a day in] April 2013 someone knocked on the door of his family home. His mother found a letter at the door which read that the applicant had to stop his religious activities or be killed. His parents became worried and his father told the applicant to go to the police. The applicant and his father did so, but the duty officer did not file a report suggesting that it may be a prank. The applicant claimed that he and his father forced the officer to take the report, but the officer did not take any serious action about this. The applicant’s parents sent him to his sister’s house and told the applicant to leave Pakistan. The applicant booked an IELTS test to get a visa and [in] May 2015 he received his results. He provided educational documents to a migration consultant so he could get the applicant out of Pakistan.
The applicant wrote that his religious activities were limited while he was awaiting the results of his visa application until Muharram because he was involved in religious activities to organise religious events. The applicant wrote that all the activities were routine until [in] November 2013. The applicant wrote that two motorbike riders came in front of a car in which the applicant was travelling with a friend. They were going home around 10:25pm after attending the religious Majils. The motorcycle riders started firing abruptly and the passenger the applicant travelling with, [Friend A variant] was hit with two bullets. The motorcylists escaped. The applicant screamed for help while his friend was unconscious, and called an ambulance. The applicant reached the hospital with his friend who was taken into emergency. The applicant called his father and his family arrived shortly afterwards. The applicant’s father contacted the family of his friend and they arrived at the hospital.
The applicant was taken by his father to the police station to lodge a police report. [In] November 2013 the applicant found out that his friend had died.
The applicant claimed that he faced persecution in employment in Pakistan, suggesting that he started to apply for jobs after he graduation but he did not receive any offers, which he attributed to his religion because his religion was required to be noted on employment forms. Despite this, he got a job at a [product 1] company but it was very basic. He claimed he was not allowed to pray in the common prayer room, was not allowed in the canteen and not allowed to participate in any events or company activities. The applicant claimed that he was once spat on while returning home from work. He claimed that two other Shia workers experienced the same problems and he would associate with them, with colleagues yelling at them that Shia flock together.’
The applicant also wrote that members of his family had suffered persecution. He identified this as his father being deliberately transferred because of his religious background. The applicant claimed that his father only received one promotion during his time as a police officer and that his father was abused and insulted by his fellow policemen. The applicant claimed that a cousin of his faced the same problems and escaped to [Country 1] and was granted asylum.
Oral evidence provided to the delegate
The Tribunal listened to the audio recording of the interview the applicant had with the delegate on 25 July 2017. The interview lasted for one and a half hours and was conducted with the assistance of an interpreter in the English and Urdu languages.
The audio recording does not identify when the written statement of the applicant was provided to the delegate. It is clear from the audio-recording that it was provided prior to the delegate interview but the Tribunal is not sure how long before it was provided.
The evidence provided by the applicant at that interview can be summarised as follows:
The applicant confirmed there was no information that he sought to change.
The applicant claimed that he had not applied for a visa to another country. The delegate noted that the Department had information that he had applied for a visa to [Country 1]. The applicant disputed he had done so.
The applicant confirmed that the evidence he provided in the protection visa application form about the composition of his family, residential history, education and employment history was true to the best of his knowledge. He confirmed that he last lived in Lahore before coming to Australia and lived there since [year].
The applicant told the delegate that he found out about protection visas after asking a few people. After he met a person, he was referred to a lawyer who required payment. After that, the applicant explained that he did not have the funds and the lawyer gave him the protection visa application forms and told him how to lodge the protection visa application.
Concerning a written statement that the applicant had provided to the delegate, the applicant said that he filled this out by himself and did not use anyone to assist him. The delegate noted that the information in the statement was different to what was included in the protection visa application form, such as the fact that the protection visa application form detailed that the applicant had only ever lived in Lahore and did not detail any family members, whereas the statement made reference to the applicant living in a variety of different places prior to [year] connected to his father’s work as a policeman, and made reference to siblings. The applicant said he had one sister who faced the same problems and moved to [Country 1] and that he had a brother and his parents living in Pakistan.
The delegate noted that the applicant had not identified any employment in Pakistan in the protection visa application form but declared that he had worked for a [product 1] company in Pakistan in the written statement. The applicant said that he had difficulty finding employment in Pakistan and then went somewhere and started working but was told that if he worked with that employer, he would need to pray with them, but because the applicant prayed differently to them, they started asking awkward questions. The applicant said that he later obtained employment doing a ‘basic job.’
The delegate asked whether the applicant had any documents to support that he was working for the ‘Shia organisation.’ He indicated he did and provided the document from [Mr X] dated [in] July 2017 at the delegate interview. The applicant said that he got this letter by requesting it and received it as a scanned email. The applicant said that he started with the organisation in 2011 and initially did not know much, but after one or two months he was asking questions of the religious leader of the organisation. He worked with the organisation four days a week and was studying at the same time. The applicant said that in the past other people in the organisation had been targeted like the applicant.
Noting that the applicant came to Australia in February 2014 as a student but had not returned to Pakistan, the delegate asked whether the applicant had completed his course of study in Australia. He said that he did not. He attributed not completing his course to the motivation of coming to Australia being to save his life. He could not continue the study in Australia because initially his parents were financially supporting him but afterwards his father became sick and could no longer financially support him.
The applicant said that he chose Australia to come to study because he spoke to a consultant and told the consultant that he wanted to leave Pakistan. The consultant told him that he would apply for two or three countries. The applicant just wanted to leave Pakistan because his parents were worried because of the threatening letters received telling the applicant to quit his activities.
The applicant said that the letters were sent by unknown people associated with Lashkar e Jhangvi. The applicant knows that the letters were sent by people associated with that organisation because a prominent person associated with that organisation had his name was on the letter. The applicant said that he was sent the letter, as opposed to any other member of his family, because the applicant was involved in the activities of the Shia organisation. This happened 12 months after joining the organisation when he started organising activities.
The applicant claimed that after he left Pakistan, his father was sent letters and received calls, but they were directed to the applicant and threatened harm.
The applicant told the delegate that between finishing his degree in Pakistan in [year] and his arrival in Australia in February 2014, he worked until April 2013 and left work when he started receiving threatening letters. After that time, he was involved in obtaining documents for his visa and was involved in organising religious activities. The applicant said that between the time of ceasing studying in Australia and applying for protection, he got involved with [Community Organisation 1] as a volunteer in [Suburb 1]. He provided the letter dated 19 July 2017 from [Mr Y] at the delegate interview.
In response to the delegate’s observation that he was in Australia for over 12 months before applying for a protection visa, the applicant said that he initially had no idea how protection visas work and lived three or four months in a garage before falling sick and requiring surgery.
The applicant told the delegate that people would know that he is a Shia Muslim in Pakistan because of his name, and it was inevitable that the next question he would be asked was whether he is a Shia Muslim and what the basic motto of the religion is. When the applicant answers, the person asking the question has an ‘awkward reaction.’
The applicant said that after learning and researching about what to do for the Shia Muslim community, he would organise events to educate Shias about their actual beliefs, as well as organising events held on specific religious das about their actual beliefs. These events included events on specific days such as Muharram which were open to everyone as well as events designed to bring Shia and Sunni Muslims together.
These events included scholars coming to events with the association providing food, accommodation and transport for those scholars. These events were usually peaceful but Lashkar e Jhangvi had targeted these types of events. Despite these risks, the applicant said that these events were held because Shias could not leave their beliefs. The applicant estimated that there were around 25 people who were volunteers doing this work for the organisation.
The applicant said that the organisation was funded through requests to people. He was told this by the Imam. The applicant was responsible for distributing the funds that were given to him. The applicant would distribute the funds to hire chairs for meetings, catering and other costs incurred holding events. It was the applicant’s father who took him to the Imam to address his depression and the applicant got to know the organisation through the Imam. His father saw an improvement in the applicant through his work with the organisation.
The applicant reduced his activities connected with the organisation for three months after receiving a threatening letter. The applicant reduced the number of days he attended from four or five days to two to three days and shifted responsibilities to other volunteers. The applicant said that he did not witness the people who took on his responsibilities being targeted or harmed.
The applicant said that he reported the incident when he was shot at to police. He said the police initially resisted completing a first investigation report, but after that the police told the applicant that they would undertake the investigation. The applicant also told the police about the threat letters, but the police said they would only be investigating the incident where he was shot at.
The applicant said that he did have reports to corroborate his claims. He identified to the delegate that he had a copy of the police report. The applicant said that he obtained the copy from the police first handed. The applicant said that he knew that the attack where he was shot at was not a random attack and was specifically targeted to him because the applicant received phone calls following the incident saying that next time his life would not be spared. The applicant provided the delegate with a document in a language other than English with an accompanying English translation dated 21 July 2017 from [Officer A], an ASI at a police station in [District 1], Lahore, Pakistan.
The applicant said that it was after the attack, he remained in Pakistan for a further few months before leaving.
The applicant said that at the time he started getting the threat letters, his parents started worrying. His father took the applicant to the police station to report the letter, but police said that it must be a joke. The police did not take a report. The applicant said he started getting the letters from April 2013 and then started applying for visas.
After being shot at, and receiving threatening telephone calls, nothing further happened to the applicant, which he attributed to limiting his activities in Pakistan and staying at home.
The applicant said that his sister has been in [Country 1] for two or three years. She left because her husband was also targeted so they left Pakistan. The applicant does not know what visa his sister and her husband had to travel to [Country 1].
The applicant said that his family still receive threatening phone calls about the applicant.
The applicant said that if he returned to Pakistan, he believes that he will be killed. Lashkar e Jhangvi chop off people’s heads and play football with them. Lashkar e Jhangvi have a strong network across Pakistan, they go to cities and chant ‘non-believers’ about Shia Muslims and paint the walls of the cities.
The delegate asked the applicant about why the applicant would be harmed in the future given the applicant was not aware of the people who took on his responsibilities with the Shia organisation being harmed after he left (reasoning that if they had been harmed, the applicant would be aware of this) and queried whether the applicant had applied for the protection visa not because he feared future harm in Pakistan, but because he could not complete his studies in Australia due to lack of funds.
The applicant responded that he was not sure whether people were working with the same responsibilities as the applicant, and that he was not a genuine student and the only reason to come to Australia was to seek protection. He told the agent he wanted to leave Pakistan, and the agent told him they would apply for visas to a number of countries.
The applicant told the delegate that he did not think he could move to another part of Pakistan because Lashkar e Jhangvi has a strong network everywhere in Pakistan. Further, there were other groups across Pakistan who kill people for speaking different languages. He also has no relatives anywhere else in Pakistan and his father endured discrimination when he transferred with his job to various posts.
The applicant told the delegate he had documents to demonstrate that discrimination he faced previously. He provided those to the delegate being the ‘Affidavit’ of [Mr A] dated 20 August 2014, the ‘Affidavit’ of [Mr B] dated 12 August 2014, and [Mr C] dated 14 August 2014.
The applicant also showed that he was working as [an occupation 1] and produced payslips from his employer in Australia, as well as a letter confirming this employment.
The applicant said that his sole motive coming to Australia was to save his life. He had a friend who was shot and died after a couple of days, and this makes the applicant think that the same thing can happen to him.
Oral evidence at the first Tribunal hearing
The Tribunal listed to the audio recording of the Tribunal hearing. The hearing last just under four hours.
The evidence provided by the applicant at that hearing can be summarised as follows:
The Tribunal noted that the applicant had applied for a higher education visa and that the applicant’s English would be strong. The applicant told the Tribunal that no one helped the applicant to complete the protection visa application form and that everything contained in the form was true and correct. There were no mistakes that he wished to correct.
The applicant provided his full name and said he was not known by any other names, but noted that he was referred as both [the applicant] and [a name variant]. His date of birth is [DOB 1]. His country of citizenship is Pakistan, and he is a citizen of no other country and does not have permission to live in any other country and had not visited any other country. He confirmed that he was born in Lahore in the Punjab province, Pakistan. He showed the Tribunal Member his Pakistan passport and said that he believed he had provided the delegate with a copy of his Pakistan national identity card which identifies his religion as ‘Islam.’
He told the Tribunal that his mother and father are still alive and living in Lahore. They moved from the house in which the applicant was born to another area of Lahore. The applicant’s father is no longer working. His father is [age range]. He was a police officer for the Punjab police. He reached the rank of ASI, which is an assistant sub-inspector. He retired in [year].
His mother has never worked. She is nearly [age] years of age. The applicant has one brother and one sister. The brother is living with his parents in Lahore, and he is aged [age] years. He has been studying privately in [subject]. He is doing it privately because the college near the family home is not well known and the applicant had a lot of religious problems at that college. It was his parents’ decision in light of that discrimination to send his brother to the private college. This brother is not married.
His sister is married and lives in [Country 1]. She has been there for approximately 5 years. She moved there on a partner visa.
The applicant is in contact with his mother and father once or twice a week. He contacts them by telephone. He speaks to his brother when he speaks to his parents.

The applicant has never been engaged or married. He has never been in a de facto relationship. He has never had any significant relationships in Pakistan or Australia. He has no children.
He can speak, read and write Urdu and English. He can also speak Punjabi. At home, he speaks a mixture of Urdu and Punjabi. His English is good but not great.
His ethnicity is Punjabi. His mother is Punjabi and his father in Punjabi. His religion is Islam and he is a Shia. [Details deleted.]
His highest education is a [Qualification 1] in Lahore which he completed. He wanted to find a job in that field of study, in [related occupations]. He wanted to be a manager in the [a related] field.

100. He was enrolled in higher education in Australia to get a student visa, but my real intention was to get out of the problems in Pakistan. He enrolled in Bachelor course in [College 2] in Australia. He did not start his studies other than doing the English course, but also said that he took a few classes in the Bachelor course because he had the admission and wanted to discuss some of the issues I was facing in Pakistan and how he had left Pakistan.
101. The applicant said he did not continue studying because my real purpose coming to Australia was to get out of Pakistan and save his life. He also did not continue studying because the applicant had already completed an equivalent course in [subject] in Pakistan so there was no benefit in completing the course in Australia. He did not study another course in Australia because his purpose in Australia was not to study. His real purpose was to save his life because he was facing lots of threats in Pakistan, and he told the agent who assisted him to get the visa to Australia that he needed to get out of Pakistan as soon as possible. He did the English course in Australia because there was a benefit in doing because people speak English in Australia, and the applicant would be able to get some information because he was new in Australia and it would help him communicate.
102. The applicant confirmed that he arrived in Australia in February 2014 and that he applied for protection in June 2015. The applicant said that it took him 15 months to apply for protection because in the preceding 15 months, he was meeting people and getting in touch with the community in Australia, and he was not getting information about what to do. He told the Tribunal that he met with a lawyer and discussed things with him and was charged $600 for the consultation and the lawyer gave him the protection visa application form so the applicant could complete it himself and submit it. The first meeting with this lawyer was in June 2015.
103. The applicant told the Tribunal that he did not do this earlier because he was in a completely new situation and had no idea which pathway to choose. He claimed that he was going through a lot of trauma and conditions were usual. Noting that the applicant had sourced an agent to obtain the student visa to come to Australia, the Tribunal asked why the applicant had not sourced an agent sooner to apply for a protection visa. The applicant told the Tribunal that he reached out to a lot of people to get information and then someone told him about a lawyer in the city so he went ahead with that. The applicant also attributed the delay lodging a protection visa to ill health which required surgery [specified] which caused him a lot a pain and swelling. Funding for the operation was provided through his health insurance that he obtained for the grant of the student visa.
104. The applicant told the Tribunal that he told his education provider in Australia that he was having the surgery and he was told he needed to submit documentation in order to obtain a deferral of his studies. The surgery took place [in] September 2014 and he was recovering until the start of 2015. The applicant said that there was a further delay in applying for protection because he met a lawyer who was going to charge him many thousands of dollars which the applicant did not have. The Tribunal asked whether the applicant then found other lawyers and the applicant said he did search for them. The Tribunal noted that the applicant had a good grasp of English and asked why the applicant did not search the internet to see how he could apply for protection in Australia. The applicant said he searched for lawyers and he did not know at the time about protection visas. The applicant said that he did not go to a non-profit organisation assisting asylum seekers because he did not know they existed.
105. The Tribunal noted that the delay in applying for protection may cause the Tribunal to doubt the truth of the applicant’s protection claims, or that the claims were embellished. The applicant disputed that this was the case, repeating that Australia was a new place and he was going through a lot of trauma and surgery. He told the Tribunal he did the best he could with the knowledge he had.
106. The applicant confirmed that he was presently working. He did previous work as [an occupation 2] for cash, as well as working in [specified industries]. The applicant tried to get a job in [one field], noting his degree from Pakistan, but was unsuccessful because employers valued experience which he did not have.
107. The applicant told the Tribunal that he worked in Pakistan in a [product 1] company in a role [specified]. He described the work as very basic and he worked there for almost one year. He told the Tribunal he stopped working at the firm when he received ‘threat letters.’ He finished at that employer in April 2013 and did not work after that time. He told the Tribunal that he did not leave the house much after that because of a fear that his ‘life would be ended.’ He described the ‘threat letter’ as a letter to the applicant that was sent to the family home.
108. The Tribunal asked the applicant why, if he received a ‘threat letter’ he remained in the family home, because the people sending the letters obviously knew he was there. The applicant said that he stayed at home to protect himself and if he went out, he could be attacked. The applicant said that he stayed at home but also left to conduct ‘religious activities.’ The applicant said the he did this, despite the risk of being attacked, because his religious responsibilities were part of his worship and that he participated in Shia community activities because he had responsibilities and he was needed.
109. When the Tribunal asked how this reconciled to responsibilities in employment, and financially supporting himself and the family household, the applicant told the Tribunal that he faced religious discrimination at work where he would be taunted and called things like infidel. He said that when he used communal dishes at work, other people would never used them. He described his work environment as toxic and when he received the ‘threat letter’ he doubted his security so he left the employment. The Tribunal asked why the applicant would not seek out employment with a business that was operated by Shia Muslims. The applicant said that he received out to a few places but was not hired and he had to find a job close to his house, and that Shia Muslims were not running large and successful businesses near his home. He suggested that people stop buying goods from businesses if they know the business is operated by Shia Muslims.
110. The Tribunal noted from a DFAT report that there are almost 20 million Shia Muslims in Pakistan, which the Tribunal identified as suggesting that the applicant would not have trouble securing employment working for a Shia Muslim in Pakistan. The applicant repeated his preference to working at a place close to his home and for there to be an available role for him.
111. The Tribunal expressed confusion about how the applicant, who had threats made against him, was prepared to go out of his family home and participate in Shia Muslim community activity but not be prepared to leave the house for employment. The Tribunal queried why this would be the case, when, presumably the applicant would face a greater risk from opponents when he engaged in Shia Muslim activity. The applicant said that he reduced the amount of religious activity he did, but he had to engage in religious activity because it was part of his faith.
112. The Tribunal noted that the applicant had claimed in the material he submitted that he had problems in Pakistan when he was in College. The applicant identified this as people looking at him in a way to make him feel uncomfortable, bullying him, and labelling him as a Shia infidel because he prayed in a different way to Sunni Muslims. The applicant said that he was not allowed to enter the common prayer room and would force me to sit at the back of the classroom. He would be consider a wrongdoer, an infidel and treated as impure and unclean and was told that his prayers would not be accepted. The applicant said that he experienced similar things in high school, noting that while at high school his teacher for Islamic studies used to identify the different ways that Shia Muslims and Sunni Muslims prayed. The applicant said that this high school was a majority Sunni Muslim high school and there was only two other Shia Muslim students with him.
113. The applicant told the Tribunal that his parents did not put him into a Shia Muslim school because there were none close to where the family lived. He put this experience down to the reason why the applicant completed his matriculation privately at home, where his mother and father taught him.
114. The Tribunal explored the applicant’s claim that he had problems when he played cricket during his schooling. The applicant said that he was a good cricketer but that he was not allowed to participate because of discrimination. The Tribunal noted that an Affidavit submitted by a friend of the applicant noted that the applicant was the captain of the cricket team. The applicant said that he was a captain on a trial basis but his role did not continue without explanation. The Tribunal hypothesised that maybe the applicant was removed from the role because he was not a good captain. The applicant said that he was given no explanation. The Tribunal noted that playing on a cricket team with a majority Sunni Muslim group may suggest that the applicant had friends who were Sunni Muslims. The applicant disputed this and said he faced a lot of discrimination and just because he played in a cricket team did not mean that he was friends with the other cricketers.
115. The applicant told the Tribunal that he did not go to [University 1], but that he sat the exams for the degree that was awarded from that organisation. He completed his studies at a [named] College. He lived at home during his studies.
116. The applicant said that he was responsible for organising religious congregations in Pakistan for the Shia Muslim community during Muharram. This involved selecting the place for this to occur, arranging a cleric to attend, religious experts to attend, reciting the Koran and arranging the catering, as well as organising events connected with paying respects to Iman Hussain. He told the Tribunal that he would engage with lots of contacts to arrange these events and would get in contact with the police and local administration for these events to occur, with the police issuing the applicant permits.
117. The applicant told the Tribunal that during Ashura he would have a congregation and would arrange for religious clerics to attend and would set up for them. He told the Tribunal that Ashura is a special time on the tenth day of Muharram and that it marks the remembrance off difficulties faced by Iman Hussain. The applicant also told the Tribunal that he took part in public flagellation as part of his religious practice and that he has scars from this from the last time he did it in Pakistan seven years previously.
118. The applicant said that the Shia Muslim organisation he was a part of, namely ‘Tehrik-e-Tahaffuz Haqoooq-e-Jaferia Pakistan’ was connected to the [named] mosque in Lahore.
119. The applicant told the Tribunal that he was traveling home in a car with a friend after a congregation with his friend [Friend A] when people on a motor bike opened fire on the two of them. He said shots were coming from everywhere and the applicant panicked. He hunched over as did his friend and his friend ended up laying on top of the applicant. After a little while, the applicant spoke to his friend and suggested that they get up, but the friend did not response. There was a lot of blood and the applicant pushed his friend off him and then saw that his friend received two gunshot wounds and was unconscious. The applicant got out of the car and saw there were lots of people standing around and the applicant asked for an ambulance to be called but he got no response. The applicant called and ambulance himself and explained what happened. The applicant also called his father and the ambulance came within 10 minutes.
120. The Tribunal asked why none of the people who were standing around did not call an ambulance or the police. The applicant said he did not know whether they did or not, but he did scream that his friend was injured and asked for help. He did not know why none of the people standing around did not say to him that they had called for an ambulance. The applicant said that ambulance came and took the applicant and his friend to hospital. The applicant was examined and cleared, after being given some medication which made him feel more relaxed. The applicant was taken home by his father.
121. The applicant told the Tribunal that he went to the police station with his father right after leaving hospital. He left the hospital around 10:30pm at night. He went to the police station from the hospital because the attack had just occurred and his father thought it best to report this straight away. The applicant said that his friend died two days after the shooting and that he died due to blood loss. The applicant told the Tribunal that he was at the police station for half an hour to forty five minutes. The Tribunal noted that the First Information Report submitted by the applicant suggested that he left the police station at 8am [in] November 2013. The applicant said that he returned to the police station after first going there at night, returning the next day to provide details.
122. The Tribunal noted that the applicant did not suggest in the written statement provided to the delegate shortly before the interview that he went to the police station twice. The applicant said that he answered questions to the best of his ability. He suggested that it is not unusual to attend a police station five or six times in the course of lodging a First Information Report.
123. The Tribunal noted that there was no independent reporting, such as a newspaper article, about his friend’s death and queried why this was the case. The applicant attributed this to Shia Muslim’s being persecuted. The Tribunal expressed doubt about this, stating that Shia Muslims do have their own newspapers in Pakistan and that it would be reasonable to expect that there would be some reporting of this incident had it occurred. The applicant said he reported the matter to police and to Tehrik Tahfiz Haqooq Jaferi and suggested that the media in Pakistan only report on bomb blasts because of discrimination. The applicant suggested that even then, the reporting is usually the result of Shia Muslims protesting.
124. The applicant told the Tribunal that it was the people who had given the ‘threat letter’ and associated with Sunni Muslims that were responsible for the shooting and attributed this to Lashkar-e-Jhangvi. The applicant said that when the assailants were shooting at the applicant and his friend, they were shouting the name of the leader of that organisation as well as chanting that God is great. The applicant said that he told the police who he believed was responsible for the shooting and that he attended his friends funeral but did not have any photos of that attended.
125. The Tribunal noted that the letter the applicant provided from Tehrik Tahfiz Haqooq Jaferi did not detail the shooting incident, and the Tribunal wondered why this would not be detailed in the letter, given the contents of the letter referred to three terrorist groups being after the applicant and wanted to kill him. The applicant responded that he had provided his friend’s death certificate and that the omission of the incident in the letter does not mean that it did not take place. The Tribunal asked why the applicant did not provide the death certificate to the delegate. The applicant told the Tribunal that he had the document at the time of the interview, but he did not provide it because he was nervous and confused.
126. The Tribunal noted that a number of the Affidavits had only recently been provided and queried why those Affidavits had not been provided to the delegate at interview. The Tribunal noted that the DFAT Country Information Report suggested that fraudulent documents were prevalent in Pakistan which may lead, when the Tribunal considered the totality of the evidence and the delay in applying for the protection visa, that the claims were contrived. The applicant disputed that this was the case, repeating that he received lift threats, was pushed around, shot at and left the country to save his life. The applicant said that all the incidents happened but that humans make mistakes which is why some of the documents were not provided to the delegate. These things have happened and the applicant has a lot of trauma so he could not think properly.
127. The applicant said that since being in Australia, the threats continue directed towards the applicant via his father. The threats detail that those making the threats know that the applicant has left Pakistan and that the next time they see the applicant he will be taken care of completely. The last time a threat was made was in November 2020 visa a telephone call to his father. The Tribunal queried why the applicant’s brother, who the applicant identified as a Shia Muslim, would also not receive threats. The applicant attributed this to the fact that the applicant worked with Tehrik Tahfiz Haqooq Jaferi. The threats come from Lashkar-e-Jhangvi because the people making the phone calls chant the same things that they chanted at the shooting. The applicant attributed the ongoing nature of the threats due to his profile and the assailants being fixed in their mind on the applicant.
128. The Tribunal queried why the assailants would not harm the applicant’s parents or brother in Pakistan as a means to hurt the applicant. The applicant said that the harm was always directed towards him because of his involvement with Tehrik Tahfiz Haqooq Jaferi. The Tribunal queried this logic, supposing that if Lashkar-e-Jhangvi hated Shia Muslims, they would harm the applicant’s family. The applicant said that this group likes to kill people in a big group, and suggested that his parents had moved to another part of Lahore because of the threats to the applicant.
129. The Tribunal noted that DFAT Country Information report suggested that there had been a crackdown by Pakistan authorities on anti-Shia violence in Lahore and that attacks on Shia Muslims had declined, and queried why the applicant would not be able to return to Pakistan now. The applicant said that he had been receiving threats constantly, and there was no safe place for a Shia Muslim to be in Pakistan, noting a recent protest by Sunni Muslims calling for Shia to be burned as infidels.
130. The Tribunal went on to note that the DFAT Country Information report details that there were three instances of sectarian violence which killed three people and injured one person in Punjab in 2017. There were no instances of sectarian violence between January and May 2017, with the largest sectarian attack in 2017 targeting Christians. The Tribunal detailed that while violence can occur in Punjab, DFAT assesses a low risk of violence to Shia Muslims.

131. In response, the applicant said on the surface it may look safe, but the incidents involving Shia Muslims are suppressed and despite protests from Shias, the government has taken no action.
132. The applicant said that there is a mainstream hate drive against Shia Muslims being labelled as infidels who are excluded from the mainstream religion even though they have the same Islamic beliefs. The applicant suggested that being labelled as an infidel was persecution because it is so hateful and suggests that a person needs to be killed. The applicant said that being insulted is a serious problem in Pakistan and that it is difficult for Shia Muslims to survive. They are in a constant state of fear, and the applicant’s own experiences add another layer of this fear. He told the Tribunal about a Shia Muslim bank manager who was killed by a bank security guard who was Sunni Muslim.
133. In response to the Tribunal noting that the applicant’s father was employed as a policeman in Punjab state which suggested that Shia Muslim’s were not excluded from employment. The applicant said that not being excluded from employment does not mean that Shia Muslim’s don’t face bullying and degrading behaviour in the workplace. The applicant also suggested that his mother had been accused in the past of spreading her faith by Lashkar-e-Jhangvi.
134. The applicant said that he could not relocate within Pakistan to a place where he would be safe because he would follow the same religious activities and could not get a job due to his age and his faith. He said hateful behaviour is across Pakistan and he believed that an attack could happen at any time. The Tribunal then discussed whether the applicant could relocate to Gilgit-Baltistan, which has a population of 40 percent Shia Muslims.
135. The applicant suggested that this area was a stronghold of the Taliban, before suggesting that Shia Muslims are targeted everywhere and that mainstream reporting of harm to Shia Muslims in that area is supressed. The applicant also said that there were also language barriers which would prevent his relocation.
Oral evidence provided at the second Tribunal hearing
136. The applicant participated in a Tribunal hearing on 3 October 2023 following the remittal of the review by the Court. The Tribunal hearing lasted approximately two hours and twenty minutes.
137. The evidence provided by the applicant at that hearing can be summarised as follows:
138. The applicant brought his wife to the Tribunal hearing. The wife was identified as born on [date]. She told Tribunal she was on a student visa. She told the Tribunal that she had not lodged a protection visa and that her student visa expires in 2024.
139. She is pregnant with a baby on the way and is due in [date].
140. The Tribunal explained that the matter came back from Court but despite the previous Tribunal Member making findings, I am not bound by any of these findings.
141. The representative advised that the material was the material previously submitted. The representative identified the protection claims to be considered by the Tribunal is the following in previous submission page 6 dated 13 April 2021 and were particularised at the Tribunal hearing as follows:
·     The applicant faces a risk of harm in Pakistan because he is a Shia Muslim
·     The applicant faces a risk of harm in Pakistan because he worked for a Shia Association in Pakistan
·     The applicant faces a risk of harm in Pakistan because the applicant will not be able to gain employment in Pakistan.
·     The applicant faces a risk of harm in Pakistan because he will receive threats from Lashkar-e-Jhangvi.
·     The applicant faces a risk of harm in Pakistan because the financial situation in that country is not good for returnees from a western country.
·     Relocation within Pakistan is not reasonable or viable option because the applicant has only ever lived in Lahore as an ethnic Punjabi and Shia Muslim.
142. The applicant confirmed he completed the protection visa application form by himself.
143. The applicant confirmed that he had entered Australia as a student, but did not declare in the form that he had undertaken any study in Australia. He attributed the failure to identify the study for which he was enrolled in Australia in the protection visa application form due to the fact that he came to Australia to save his life and because he was not in a health mental status and that he faced his medical condition in Australia. He also said that Australian study was different and that he was depressed. He said that he did not start his studies.
144. He said that the agent who assisted him with the student visa enrolled him in the same course, essentially, that he completed in Pakistan. The applicant said that when he arrived in February 2014 he attended no course at all, apart from an English language course which he completed. He said that this course lasted two months and he completed this course with [College 2]. He told the Tribunal that he did not declare this in the form because he thought the question in the protection visa application did not ask about this, and he did not receive a certificate completion for the course.
145. The applicant said that when he arrived in Australia in February 2014 his intention was not to study but it was to save his life. Despite his intention being not to study, he did the English language course because English is the language spoken in Australia. The applicant said that the course started in March 2014 and finished around May or June 2014. The applicant said that he did not return to Pakistan when the course finished because he did not come to Australia to go back to Pakistan.
146. The applicant said that he did not apply for a protection when he first arrived in February 2014 because he was doing the English course and he felt depressed and did not have enough information about where to go and explain about ‘all these things’ and his surgery took a long time to recover. He said he went to a few lawyers in the city and their fees were too high.
147. The Tribunal asked the applicant why he did not go to the Department when he did not start his education course, given the applicant’s visa was contingent on him studying in Australia and tell them that he was not complying with the visa. The applicant said he did not know what to do in those circumstances. The applicant said he did not go to the Department but went to [Agency 1] and explained his situation. He did this at the suggestion of a community member who suggested [Agency 1] might be able to advise the applicant what to do. The applicant was not sure when he visited [Agency 1], but it was either the end of 2014 or the start of 2015.
148.   The Tribunal noted that the applicant had not identified in the protection visa application form that he did not have any siblings. The applicant said that he did not declare them in the protection visa application form because he missed that information and he provided the information to the earlier Tribunal. He told the Tribunal that these siblings are as follows:
·     [Name], a brother, who was born [on date] and he is in Pakistan.
·     [Name], a sister, who was born on [date] and she is in [Country 1].
149. The Tribunal noted that the applicant declared one residential address in Pakistan in the protection visa application, and noted that the applicant declared that he did not move or try to move to another part of Pakistan after experiencing harm. The Tribunal asked the applicant whether this was correct. The applicant said that was not correct and that it was complicated. The Tribunal asked why the applicant declared this if it was not correct. The applicant said that in Pakistan, if required to fill out forms, a person is required to put in one address that is a permanent address. The applicant said that he had recently renewed his Pakistan identity card and he was unable to change his address. The Tribunal asked if that was the case, why the applicant declared he had not moved in the protection visa application. The applicant said that he did not move to another province. The Tribunal asked the applicant moved within Punjab state. The applicant said he did. The Tribunal asked the applicant why he did not declare this in the protection visa application form. The applicant said that he filled out the form to the best of his ability and that he did not understand the form and it was confusing for him.
150. The applicant confirmed that he departed Pakistan legally on a passport issued in his own name. The Tribunal asked the applicant how he was able to depart Pakistan legally on his own passport if he was of adverse interest to anyone connected with the Pakistan authorities. The Tribunal later sought to clarify whether the applicant was claiming that people connected with government authorities were seeking to harm him in Pakistan. The applicant said that the groups that had been banned, such as Lashkar-e-Jhangvi are actually a part of the government by being part of the government but with ‘different names.’
151. The Tribunal asked whether the Pakistan Government or its agencies would protect the applicant if he returned to Pakistan. The applicant said that they had failed to do so in the past. The applicant said that the authorities in Pakistan were trying to harm him because the people he feared were part of the government. The Tribunal asked why the police in Pakistan would not be able to protect him if he returned to Pakistan. The applicant submitted that corruption was very common. The applicant said that when he was in Pakistan he received a threat letter and went to the police station and was told that it was probably a prank and the officer did not respond very well to the report. The applicant said there were no criminal cases against him in Pakistan.
152. The applicant told the Tribunal that he provided documents to the delegate. The Tribunal told the Tribunal that he provided the first information report prior to the delegate interview. The Tribunal discussed the transcript of the delegate interview that had been provided in the course of the review, which detailed that documents were submitted during the course of the interview.
153. The Tribunal noted the Affidavit from [named person] which was dated 20 August 2014 and asked the applicant why that document was not submitted in the protection visa application form that was submitted in June 2015. The applicant said that he did not know why he did not include the document and asked if he was required to provide the document at the time he applied for the protection visa application form. When the Tribunal queried why this was the case, given the applicant apparently had this document at the time he applied for the protection visa (and he had indicated in the form that he would submit a police report at a later stage, and had attached his passport), the applicant responded that he just filled in the form and then gave all the documents to the delegate prior to the Tribunal hearing. The Tribunal noted that the protection visa application form made reference to the applicant being required to provide documents to support his claims, and specifically had a ‘documents’ section where he could list the documents that supported his claims. The applicant said that he did include the documents at the time because he did not think he needed to provide the documents and provided the ‘maximum’ information he had at the time.
154. The Tribunal hearing was told that the applicant received the documents as follows:
·     The Affidavit of [Mr A] dated 20 August 2014 was received by the applicant in October 2014. He told the Tribunal that he forgot to submit it to the delegate.
·     The Affidavit of [Mr B] dated 20 August 2014 was received by the applicant in October 2014. He told the Tribunal that he forgot to submit it to the delegate.
·     The letter from [Mr X] dated [in] July 2017 was received by the applicant in September 2017. He told the Tribunal that he forgot to submit it to the delegate.
·     The document in a language other than English, with an English translation titles ‘list of members’, a ‘statement of witness,’ ‘membership terms,’ ‘expenses of the organisation,’ ‘powers of the members of executive body,’ and membership card for Tehrik-E-Tahaffuz Haqooq E Jaferia Pakistan issued [in] January 2016’ was received by the applicant at a date he could not recall.
·     The ‘Affidavit’ of [Mr C] dated 14 August 2014 was received by the applicant in October 2014. He told the Tribunal that he forgot to submit it to the delegate.
·     The Death Certificate of [Friend A variant] dated [in] November 2013 was received by the applicant at the end of 2014. The applicant said that this was not included in the protection visa application form because he had a ‘limited understanding.’ The Tribunal asked the applicant why he obtained the death certificate because his friends told him to gather the material and submit it.
·     The First Information Report dated [in] November 2013 was given to the applicant when he went to the police station. The applicant said that he brought this form with him when he came to Australia. The applicant said that he did not include this in his protection visa application form because he a limited understanding and was advised to ‘finalise this’ by his friends and then submit it.
·     The letter from [Community Organisation 1] dated 19 July 2017 was received by the applicant the same day. The Tribunal asked the applicant whether the applicant made any reference to being a member of that organisation in his protection visa application form. He could not recall whether he did so. The Tribunal noted that the applicant was a member of that organisation since [a date in] September 2015 which would explain why the membership was not detailed in the protection visa application form. The applicant then told the Tribunal that he was a member of that community since 2014. The Applicant said he as a member of the society before applying for a protection visa and that the society does ‘religious rites and duties.’
·     The Affidavit of [Person A] dated 14 May 2014 was received by the applicant at a time he cannot recall, as he was receiving documents in portions.
·     The Affidavit of [named person] dated 14 May 2014 was received by the applicant at a time he cannot recall, as he was receiving documents in portions.
·     The Affidavit of [named person] dated 14 May 2014 was received by the applicant at a time he cannot recall, as he was receiving documents in portions.
·     The Affidavit of [Mr E variant] dated 14 May 2014 was received by the applicant at a time he cannot recall, as he was receiving documents in portions.
·     The Affidavit of [Mr F variant] dated 14 May 2014 was received by the applicant at a time he cannot recall, as he was receiving documents in portions.
·     The Affidavit of [Mr G] dated 14 May 2014 was received by the applicant at a time he cannot recall, as he was receiving documents in portions.
·     The Affidavit of [Mr H] dated 14 May 2014 The Affidavit of [Mr E variant] dated 14 May 2014 was received by the applicant at a time he cannot recall, as he was receiving documents in portions.
·     The Affidavit of [Mr I] dated 14 May 2014 was received by the applicant at a time he cannot recall, as he was receiving documents in portions.
·     The Affidavit of [Mr J] dated 14 May 2014 was received by the applicant at a time he cannot recall, as he was receiving documents in portions.
·     The Affidavit of [Mr K] dated 14 May 2014 was received by the applicant at a time he cannot recall, as he was receiving documents in portions.
·     The Affidavit of [Mr L variant] dated 14 May 2014 was received by the applicant at a time he cannot recall, as he was receiving documents in portions.
·     The Affidavit of [Mr M] dated 14 May 2014 was received by the applicant at a time he cannot recall, as he was receiving documents in portions.
·     The Affidavit of [Mr N] dated 14 May 2014 was received by the applicant at a time he cannot recall, as he was receiving documents in portions.
·     The Affidavit of [Mr O] dated 14 May 2014 was received by the applicant at a time he cannot recall, as he was receiving documents in portions.
·     The Affidavit of [Mr P] dated 14 May 2014 was received by the applicant at a time he cannot recall, as he was receiving documents in portions.
·     The applicant identified that it was the same responses for the remaining ‘Affidavits’ that were declared by various people on 14 May 2014.
155. The Tribunal was told that the six pages of documents in a language other than English were ‘advertisement of religious/community programmes’ that were advertised in Pakistan and that the applicant’s name and the Shia organisation. The applicant said he could not remember when he came into possession of that documentation.
156. The applicant said that he was not sure when he received the First Information Report dated [in] November 2013, nor the other documents identified as part of that bundle, namely: the ‘Report in respect of untrance addressing conducting under s 173 of the Code of Criminal Procedure’ dated [in] November 2013, the ‘Index police file,’ dated [in] November 2013,’ the ‘Before the station house officer, Police station, [District 1], Lahore’ dated [in] November 2013,’ the ‘State Through, Detail of map of scale of occurrence place,’ dated [in] November 2013, the ‘Recovery memo of cloths of deceased,’ dated [in] November 2013,’ the ‘Recovery Memo of two bullets of pistol 9mm bore,’ dated [in] November 2013, and the four ‘Statement of Witness,’ dated [in] November 2013, the three ‘Statement of Witness’ dated [in] November 2013, the two ‘Statement of witness,’ dated [in] December 2013, the ’Statement of witness’ dated [in] December 2013, the ‘Statement of witness’ dated [in] January 2014, the ‘Statement of witness’ dated [in] January 2014, the ‘Statement of witness’ dated [in] January 2014, the ‘Statement of witness’ dated [in] February 2014, the ‘Statement of witness’ dated [in] February 2014, and the ‘Statement of witness’ dated [in] February 2014.
157. The applicant identified the photos provided by email on 4 May 2021 to the Tribunal were photos of him meeting various religious leaders in both Pakistan and Australia. The told the Tribunal that the photographs were not included in the protection visa application because he filled in the form to the best of his knowledge, and he provided the photographs later.
158. The Tribunal noted that the applicant gave the delegate copies of payslips from his employer in Australia. He detailed the start date of this employment and advised that he no longer was employed with that organisation.
159. The Tribunal noted that the applicant claimed in the protection visa was attacked in his home country and asked the applicant when the last time he was attacked in Pakistan. He said this was [in] November 2013. He identified men on a motorbike as being responsible for the attack and told the Tribunal that it happened at an intersection. The men opened fire on the applicant while he was sitting is his car and he did not know these people. The applicant said that he deliberately targeted in this attack and he knows this because he had already received threat letters. The applicant said that he had not submitted copies of threat letters because he received phone calls, and he did not know how to submit telephone calls. The Tribunal sought to clarify whether the applicant had received letters or not. The applicant said he initially received a letter which he took to the police and the police confiscated that letter, even though the police suggested that the letter may be a prank. He told the Tribunal that he had copies of the First Information Report but no copies of the ‘threat letter’ because these were two separate events. The Tribunal queried why the police would hold onto the ‘threat’ letter if the police were not taking the threat seriously. The applicant said he did not know why this letter was taken by the police, but that they swung the letter around and told the applicant that if people kept on submitting things such as this, the police would not have any time to investigate. The applicant said that the letter identified that it was Lashkar-e-Jhangvi, which the applicant identified as a banned organisation that openly target and kill members of the Shia community.

198. The Tribunal’s questioning about the timing of his becoming a member of that organisation, predicated on it occurring three month after he applied for protection in Australia, clearly raised the applicant’s concern that the Tribunal may reason that he only joined that organisation after lodging his protection visa as a means of strengthening his claims. The Tribunal is satisfied that it was for this reason that the applicant told the Tribunal that he had been a member of that organisation since 2014 and that the date contained in the letter was the date he requested the letter. The Tribunal is not persuaded about the latter, because the Tribunal does not accept that the applicant requested a letter on [the day in] September 2015 that was eventually produced on 19 July 2017. Further, the letter makes it clear that the date [in] September 2015 referred to the date the applicant joined the organisation. The Tribunal is not satisfied that the applicant was a member of [Community Organisation 1] prior to [that day in] September 2015 based on the content of the letter and is satisfied that the applicant exaggerated the time he was a member of that organisation (identifying 2014) to address the available inference that the applicant had only joined the organisation to strengthen his claims. Given the totality of the evidence, the Tribunal’s assessment is that the inference is the facts in this case.
199. The applicant did not claim that he faced a real chance of serious harm or a real risk of significant harm in Pakistan because he is a member of the [Community Organisation 1] in Australia. The applicant provided no evidence that any person or group in Pakistan is aware of his involvement in that Australian organisation and that he has been threatened with harm in Pakistan because of that involvement. In any event, the Tribunal is satisfied that the applicant only joined [Community Organisation 1] to strengthen his protection claims and is satisfied that he will not continue with his involvement in that organisation in the event that he returns to Pakistan, because the only purpose of the applicant joining that society was to strengthen his protection claims.
200. The applicant also failed to identify in the protection visa application form that he had siblings, instead identifying his parents. The applicant’s explanation for his failure to do so was not persuasive, because the form makes it clear that he was required to provide this information. The Tribunal is not satisfied that the failure to identify the siblings was an oversight or a mistake. While the failure to identify his siblings does not in and of itself mean that the applicant has a flexible approach to the truth and is prepared to withhold or hide information from a decision-maker and that his claims are not credible as a result, in the circumstances of this review, there are many concerns that the Tribunal has about the applicant’s credibility in light of the delay in applying for the protection visa, and the timing of the production of claimed corroborative documents. In those circumstances, the Tribunal does find that the applicant’s failure to identify his siblings in the protection visa application form is indicative of a flexible approach to the truth.
201. The Tribunal has also considered the confused nature of the applicant’s evidence about whether he relocated within Pakistan after the claimed shooting. In the protection visa application form, the applicant declared one address in Pakistan, and specifically declared that he did not move because he had no other friends or relatives in any other part of the country. The Tribunal finds it curious that the applicant would be shot at in November 2013, resulting in the death of a friend, because he had been receiving ‘threat letters’ and yet would remain in the family home with no harm coming to him if the claimed threats directed towards him were serious.
202. However, this evidence changed at the Tribunal hearings, where the applicant said that his parents sent him to live at his sister’s house in preparation for leaving Australia and he attributed failing the residential address to not moving outside of Punjab province, and the fact that in Pakistan when requiring to fill out forms, you only put one address. The Tribunal is not persuaded by that response. The protection visa application form makes it clear that the applicant said that he did not move to seek safety, and with the applicant only declaring one address, the Tribunal is satisfied that the applicant manufactured the claimed move because he realised, in the course of the Tribunal’s questioning, the absurdity of the fact that he remained living at one address in Pakistan despite receiving ‘threat letters’ and being shot at, yet no harm came to him despite the people for the shooting apparently knowing where he lived.
203. The Tribunal’s assessment concerning whether the applicant relocated within Pakistan is a matter that demonstrates that the applicant has a flexible approach to the truth and that he was prepared to tailor his evidence to provide a narrative that he thought would be more persuasive to the Tribunal. In those circumstances, and considering the other concerns that the Tribunal has about the applicant’s credibility, it leads the Tribunal to determine that the applicant is not a witness of truth.
204. Taking the above matters into account, the Tribunal accepts that the applicant is a Shia Muslim, but is not satisfied that he was harassed or discriminated against or verbally abused in Pakistan. The Tribunal is not satisfied that he was sent ‘threat letters’ because he was involved with Tehreek E Tahafuz Hukook E Jafferia Pakistan. The Tribunal is not satisfied that he received those letters and is not satisfied that the applicant was involved with that organisation in Pakistan. Accordingly, the factual basis for the claim that the applicant faces a risk of harm in Pakistan because he was involved with a Shia Muslim organisation in that country is not made out. The Tribunal is not satisfied that there is any risk of harm to the applicant because it is not persuaded that there is any truth to the applicant’s claimed involvement with that organisation, or that there was any resulting threat or harm directed towards him.
205. Turning to the issue of the applicant claim that he faces a real chance of serious harm, or a real risk of serious harm in Pakistan because he would return to Pakistan from a western country and the economic situation in Pakistan was not good, the Tribunal does not accept that there is a real chance of serious harm or a real risk of significant harm to the applicant on his return to Pakistan from being in Australia for over 10 years. The applicant’s claim, as detailed in the oral evidence, was in essence that he would struggle to obtain employment. It is appropriate to deal with the issue about whether the applicant would be able to obtain employment in Pakistan as part of the claim about his return to Pakistan from Australia.
206. The Tribunal is not persuaded that this is the case, as the applicant has completed education in Pakistan, worked for a period in Pakistan despite being a Shia Muslim, and provided oral evidence of his many jobs in Australia. The Tribunal is not persuaded that the applicant would not be able to subsist in Pakistan, and the DFAT Country Information Report does not demonstrate that there is a real chance of serious harm or a real risk of serious harm in Pakistan directed to people who have returned from Pakistan from western countries. There is no evidence to suggest that returnees to Pakistan from a western country face systemic and discriminatory conduct and that the authorities in Pakistan withhold protection from returnees.
207. Turning to the claim that the applicant faces a real chance of serious harm in Pakistan because he is a Shia Muslim, and in the alternative, that he faces a real risk of significant harm in Pakistan because he is a Shia Muslim, the Tribunal is not satisfied that the risks are anything more than remote in light of the factual findings that the Tribunal has made about the applicant’s own claimed lived experiences in Pakistan, which is the Tribunal is not satisfied that he has been the subject of any abuse, harm, harassment or being shot at. The Tribunal’s findings are that he is a Shia Muslim who has no adverse profile in Pakistan to any person, group or authority.
208. The Tribunal has had regard to the DFAT Country Information Report. It does not suggest that there is systematic and discriminatory conduct at the hands of the Pakistan authorities towards Shia Muslims. There is a risk of sectarian violence, but the situation has improved, and the Tribunal is not satisfied that the material establishes that when sectarian violence occurs, the authorities in Pakistan refuse to do anything about it. The Tribunal also notes that the Country Information Report indicates that Shia Muslims can establish places of worship and practice their own religion without interference, that they are represented in Parliament and that religious intolerance and official discrimination may occur in the context of blasphemy accusations resulting in criminal charges. There is no evidence of this having ever happened to the applicant, and as the Tribunal has found that the applicant is a Shia Muslim with no profile in Pakistan, the Tribunal finds it remote that this would happen to him.
209. The DFAT Country Information Report details that there are significant Shia Muslim communities in Lahore, which is where the Tribunal is satisfied that the applicant will reside on his return to Pakistan. The Tribunal is not satisfied that because there is a risk of sectarian violence in Pakistan, that equates to a real chance of serious harm to the applicant, or a real risk of significant harm to the applicant in Pakistan. The Tribunal is satisfied that in all the circumstances of the case, any risk of harm to the applicant in Pakistan because he is a Shia Muslim is remote.
CONCLUSION
Refugee
210. For the reasons given above, the Tribunal is not satisfied that there is a real chance of serious harm to the applicant in Pakistan due to his race, religion, nationality, membership of a particular social group, or political opinion.
211. Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s 36(2) of the Act.
Complementary protection
212. For the reasons given above, the Tribunal is not satisfied that there are substantial grounds for belieiving that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Pakistan, there is a real risk the applicant will suffer significant harm.
213. Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Member of the same family unit
214. For the reasons given above, the Tribunal is not satisfied that the applicant is a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act.
215. Therefore, the applicant is not a person who satisfies s 36(2)(b) or (c) of the Act.
DECISION
216. The Tribunal affirms the decision dated 2 October 2017 refusing to grant the applicant a protection visa.
Nathan Goetz

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.
…

[2024] AATA 3673

19 September 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Remedies

Statutory Construction