2215662 (Refugee)

2215662 (Refugee) [2024] AATA 4267 (6 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Rayan Hazim
CASE NUMBER:  2215662
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Justin Meyer
DATE:6 March 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 06 March 2024 at 10:32am
CATCHWORDS
REFUGEE – protection visa – Pakistan – Federal Circuit Court remittal – imputed political opinion and membership of particular social groups – father and brothers in armed forces – Taliban’s attacks on bases and threats to personnel and families – family’s land dispute with uncle – refusal of arranged marriage with cousin – fear of harm from uncles and cousin – uncles’ political and police connections – relationship with woman from another caste – opposition and threats from her family – length of residence, passport expired and capacity to subsist – delay in applying for protection – applied after father’s dispute with uncles worsened – speculative claims and little supporting evidence – country information – honour and inter-caste violence against men – land disputes and violence – complex and volatile security situation – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1), (3), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB (2013) 210 FCR 505
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 by a delegate of the Minister for Immigration and Border Protection on 31 July 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Pakistan, applied for the visa on 10 April 2015. The delegate refused to grant the visa on the basis that he was not satisfied that the applicant was a refugee as defined by s5H(1) of the Act and a person in respect of whom Australia has protection obligations as outlined in s36(2)(a) of the Act. Further, he was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Pakistan, there is a real risk the applicant would suffer significant harm as outlined in s36(2)(aa) of the Act.
The Tribunal affirmed the delegate’s decision, and that decision was set aside by the Federal Circuit Court. The matter is now before the Tribunal pursuant to an order of the Court.
The applicant appeared before the Tribunal on 31 January 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
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.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this case are whether the applicant has a well-founded fear of being persecuted in Pakistan for one or more of the five reasons set out, and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the matter should be affirmed.
The applicant’s claims for protection to the department are summarised below:
Application form
·The applicant is seeking protection in Australia so he does not have to return to Pakistan
·He has [ ] experienced harm in Pakistan and therefore has not sought help within the country or move or try to move to another part of the country
·The applicant thinks he will be harmed or mistreated if he returns to Pakistan
·He does not think authorities in country can and will protect him if he returns and does not think he will be able to relocate
·Statutory declaration – folios 40-44
·The applicant is Sunni from Punjab and belongs to the [Name] caste
·His father was in Pakistani army and air force, while his brothers are also in the air force
·A family dispute between the applicant’s father and his uncles erupted over his grandfather’s land and in 2014, his father was detained overnight by police due to a false story made against him by his paternal uncle [Mr A]
·The applicant claims the police were bribed by the uncle who used his political connections to the Pakistan Muslim League Nawaz (PMLN) to have his father detained
·In 2013, the applicant’s parents made arrangements for him to marry his cousin [Ms B] but the applicant told them in 2014 that he did not want to marry [Ms B], bringing shame to [Ms B]’s family
·The uncle of [Ms B]’s father – [Mr C] – is a powerful man in [Town] and he is also a Lambardar (a powerful family in Pakistan who have been given powers by the state) and belongs to part of the Pakistan Tehreek-e-Insaf (PTI) party
·[Ms B]’s father [Mr D] and her brother [Mr E] are very angry with the applicant and [Mr E] has threatened the applicant
·The applicant therefore fears harm from [Mr E], [Mr D] and [Mr C]
·[Mr C] is now also working together with his paternal uncles against his father
·The applicant loves another woman [Ms F] who lives in Karachi and is a Mohajir
·If the applicant marries [Ms F], may be harmed by her family as he is a Punjabi and from a different caste
·The applicant also fears the Taliban as the Taliban have sent letters threatening those who work for the Pakistani army as well as their sons and there have been bomb blasts at [Airbase 1]
·The applicant fears the Taliban since his father was in the army and air force while his brothers are still in the air force, so the Taliban will therefore want to harm the applicant
·There is no state protection in Pakistan, given the police can be bribed
·The applicant fears harm from his uncles if he returns to Pakistan as he does not work in the air force since the air force may be able to protect his father and brothers but not him
·The applicant also fears harm from the Taliban
·Additionally, the applicant fears harm from [Ms F]’s family in Karachi over their relationship as they are from different castes
·The applicant only sought protection in 2015 even though he came in November 2011 because the problems started after he came to Australia, and his father’s disputes with his uncles worsened in 2014
·On 19 July 2017, the applicant’s agent submitted a post-interview submission addressing concerns, and also submitted screenshots of his mobile phone chat conversations purportedly with [Ms F]. These are documented at folios 148-155 of [Home Affairs reference number]. In summary, the applicant’s agent claims the applicant fears harm essentially for the following Convention reasons:
·Membership of a particular social group: Young men subject to harm for withdrawing from pre-arranged marriages
·Membership of a particular social group: Punjabi men in inter-caste relationships with Mohajir caste women
·Political opinion: imputed supporter of anti-Taliban sentiments or views because of his father and brothers’ occupation
·The applicant’s agent also submitted that the applicant fears harm from [Mr A], who is aligned with the PMLN, because of the family land dispute.
LEGAL SUBMISSIONS
BACKGROUND
[Name deleted] is the Applicant (the Applicant). He was born on [Date] and is currently aged [Age] years old.
The Applicant is a male Pakistani citizen born in [Location], [Town], Attock, Pakistan.
Should the Applicant be forced to return to his home country, he fears being subjected to persecution and serious harm on the convention grounds of membership to the following particular groups: a. Pakistani men who have refused pre-arranged marriage;
Punjabi man in intercaste relationship with a woman from the Mohajir caste.
In the Applicant’s Statutory Declaration dated 29 April 2021, the Applicant disclosed the following:
‘My parents contacted me and informed me that they wanted me to get engaged to my maternal cousin [Ms B], however I vehemently refused. I was formally engaged to [Ms B] in 2012, I found out about this engagement through my sister, [Ms G]. I was not present for the engagement and my parents ‘betrothed’ me to [Ms B] without my consent. I don’t believe this to be a true engagement because I did not consent to it…
In response to my adamant refusal, [Mr E] ([Ms B]’s brother) has threatened to harm me. In 2014 he stated that if I try and marry someone else, he will create big problems for me and harm me should I return to Pakistan.
Further, such threats have continued up until now. I speak with my brother and sister consistently on a weekly basis, and at least every fortnight they pass on messages from [Mr E], of him threatening to seek revenge against me for the damage that I did to [Ms B]’s reputation…
I refused to marry [Ms B] as I am in love with another woman named [Ms F]. [Ms F] resides in Karachi, Pakistan and is of the Muhajir caste…
[Ms F]’s mother discovered our relationship and was furious with disapproval as I was not from the muhajir caste. We would try and organise our telephone calls to be in secret when her parents were sleeping in order to avoid getting caught.
During 2014 or 2015, [Ms F]’s mother caught us speaking and snatched the phone off of [Ms F]. She was verbally abusive, directed derogatory language towards me, and demanded that I end our relationship right away. However I refused and remained sincere and loyal to [Ms F]. I continue to communicate with [Ms F] via her second phone, which she obtained for the purposes of speaking to me secretly.
These threats continued to spiral, in 2016 [Ms F]’s mother threatened that her family will definitely kill me if I come to propose and ask for [Ms F]’s hand. [Ms F] is now [Age] years old and has rejected a stream of proposals from her parents and she still has hope that we will get married one day and that I will bring her to Australia…
Every two days during our phone calls, [Ms F] passes on threats received from her parents, that they will seriously harm me and kill me if I continue pursuing our love story.’
The applicant also fears harm as an imputed supporter of anti-Taliban sentiments or views due to his father and brother’s occupations within the Pakistani air force. In his Statutory Declaration dated 29 April 2021, the Applicant stated that:
‘I believe that my family’s affiliations with the Air Force renders me to serious harm at the hands of the Taliban extremists. The Taliban sent a letter threatening people who work in the Pakistani army and honoured their threat when they carried out [bomb blasts] in [Airbase 1]. My brothers are living on the [Airbase1] and my father and brothers have fought against the Taliban.
Whilst my parents and brothers are being protected in the airbase as they live there, I am not afforded the same protection as I am not a dependant and over 18 years old. Further, since I have not served in the Pakistani air force, they will not allow me to stay with my family and b afforded such protection against the Taliban’.
Further, on the basis of complementary protection grounds, the Applicant fears that he will be rendered a victim to his uncle [Mr A]’s wrath, due to the ongoing family land dispute. The Applicant stipulated, in his Statutory Declaration dated 29 April 2021, that:
‘In 2010, my grandfather [died]. When my grandfather died, my father’s brother [Mr A] said that he should inherit all of my grandfather’s land in [Town], so much so that he forged a will attesting to his purposed sole ownership. However, this contravenes Pakistani law which states that all assets and land must be divided equally between sons. I am entitled to one price of my grandfather’s land, through my father should he pass away…
During these court proceedings [in 2012] [Ms B]’s family attended Court to show their support for my uncle’s effort’s against me, leaving me with no corner to turn to…
In around 2018 or 2019 my uncle not only threatened me, but the other people listed on title. He said that he is disowning them and is ending his relationship with them, including myself, and if anything bad happens to us then he will not get involved and protect us, suggesting that an ominous danger was waiting for us…
My uncle has made sure to pass on messages through the villagers living close to him, who have then informed my siblings that it is his property, and if I continue to get involved, he will try and kill me by running me over with a tractor.’
IMMIGRATION HISTORY
The Applicant arrived in Australia [in] November 2011.
Upon receiving legal advice and becoming aware of his eligibility to apply for a Protection (Class XA) visa, he applied for such substantive visa on 10 April 2015.
Unfortunately, this visa application was refused on 31 July 2017.
The Applicant subsequently lodged his appeal with the Administrative Appeals Tribunal on 4 August 2017.
The Applicant has not returned to Pakistan since he fled in 2011.
COUNTRY INFORMATION
The validity of the Applicant’s claim ought to be perceived in light of the following country information on Pakistan.
Honour Violence against Men
The far too prevalent ‘honour’ based violence in Pakistan, plagues the nation, as several innocent victims are rendered vulnerable to the wrath of their families, or other members of the village community.
The Department of Foreign Affairs, in their Country Information Report, stipulates that:
‘Family members carry out honour killings against relatives perceived to have brought dishonour on the family by refusing an arranged marriage, forming a romantic attachment not approved by the family.’
Such sentiments are echoed by several academic sources.
According to a representative of HRCP, 70 percent of the victims of honour killings are women, while 30 percent are men (qtd. in The Atlantic 28 Sept. 2011). A senior police officer told DW that in 2011 in Sindh Province, 73 women and 30 men were victims of honour killings (DW 20 Mar. 2012).
Many honor killings go unreported, making it extremely difficult to acquire accurate statistics. It is especially difficult to obtain accurate statistics since honor killings are often viewed as private family affairs instead of crimes worthy of condemnation by society at large.3 Additionally, since honor killings are motivated by cleansing the dishonor and shame brought upon the family, co-operating with researchers would only bring more attention to the family’s tarnished reputation. A study conducted by the Aurat Foundation exemplifies these principles; it found that of the 1,636 honor killings believed to have occurred in Pakistan between 2008 and 2011, less than two percent were registered with the local police authorities.
Between January and March 2009, there were fifty-three reported honor killings in the Sindh province of Pakistan, thirteen of which had male victims. This was a vast decrease from the first few months of 2008, when there were 550 reported honor killings in the same province, 96 of which had male victims. Over a period of ten months in 2007, a staggering 104 men were reported killed in the Sindh province for “harming family honour.5 The name for “honor killing” varies around the world, but in the Sindh province it is referred to as karo kali, whereby karo refers to the dishonored man and kali refers to the dishonored woman. Another term used to describe an honor killing is tor tora, which is used in the North-West Frontier Province of Pakistan; tor refers to the accused man and tora to the accused woman. These translations demonstrate that communities in Pakistan, in which honor killings are tragically common, understand the murders to be directed at both women and men.
The Telegraph reports that police "largely" treat honour killings as "private, family affairs" (22 Mar. 2012). The AHRC indicates that the police have been "complicit" with perpetrators of honour crimes to avoid filing cases or destroy evidence "in the name of the honour of the family and [the] victim" (10 Dec. 2011, 81). The AHRC also reports on a 2011 case for which autopsies of the three victims' bodies were not carried out and that there were delays in the registration of honour crime cases by law enforcement officials (ibid., 92). The US Country Reports for 2011 further notes that the criminal justice system is "weak" and lower courts lack judicial independence (24 May 2012, 1).
In corroborating the Applicant’s claims, his refusal of [Ms B]’s proposal renders him at risk of honour violence as his refusal to enter into the arranged marriage would have caused [Ms B] a loss of honour.
Further, country information indicates that such honour violence can be sparked following the refusal of a marriage proposal, as occurred with the Applicant. In 2016 an 18-year-old schoolteacher, Maria Sadawat, was burned alive following her refusal of a marriage proposal – a horrific ending to a simple arranged marriage rejection. Statistic evidence provided earlier suggest that whilst the majority of victims are woman, men are capable of being subjected to honour violence on the same victims.
Inter-Caste Relationship Violence
DFAT reports that ‘Pakistan is ethnically and linguistically diverse. Outside of large urban areas, Pakistani’s tend to live in ethnically homogenous communities. Punjabis form the largest ethnic group (44.7 per cent), followed by Pashtuns (15.4 per cent), Sindhis (14.1 per cent), Saraikis (8.4 per cent), Muhajir (Urdu-speaking immigrants from India, 7.6 per cent), Balochi (3.6 per cent), and others (6.3 per cent, including Hazaras who number at less than one per cent).’
Caste based endogamy is one of the main characteristics of the traditional caste system practiced in rural Pakistan. Subsequently inter-caste relationships which challenge the social norms of conservative rural Pakistani villages, such as the village of [Town] where the Applicant is from, tends to give rise to inter-caste violence and fuelling already persisting tensions.
Inter-caste relationships, in direct conflict with Pakistan’s caste-based endogamy system, has caused a spiral of violence between the different social groups.
‘Three family members brutally killed a woman with a sickle for marrying a man from a different caste in the eastern town of Sahiwal in Pakistan, a police source told Efe on Thursday.
Farzana, 20, was killed by three of her family members who were against her inter-caste marriage to Shabir, 26.
“The victim’s relatives kept chasing the coupe, following which the two jumped off a moving train”, Ejaz Ullah, a police officer from Sahiwal, said.
The family later convinced the woman to return to the town, where in front of the panchayat the two conflicting tribal clans accepted the marriage.
After the decision, the family of Farzana took her home where she was butchered with a sickle, police said.’
Anti-Taliban Pakistani Air Force
The Taliban has been notorious for attacking members of the Pakistani air force due to their campaign against the insurgent group.
‘Taliban militants have killed at least 29 people in an attack on an air force base in the northern city of Peshawar, Pakistani officials say. The gunmen, dressed in police uniforms, stormed the Badaber air base on Friday morning, Maj Gen Asim Bajwa said. At least 16 of the victims were killed during morning prayers at a mosque inside the compound, Gen Bajwa added.
The Pakistani Taliban said they ordered the attack. Peshawar has frequently been targeted by militants. Gen Bajwa said the militants entered the base, which is 10km (6 miles) south of Peshawar, at two points and then split into groups. A rapid response force was dispatched to the scene and contained the attackers around a guard room, he added. Thirteen militants were said to have been killed by security forces, although the Taliban said just one of their fighters died.
The total number of gunmen involved is unclear, but Gen Bajwa said his forces were hunting for the remaining attackers. The exchange of fire also left 29 people injured, the Pakistani military said. Gen Bajwa claimed that mobile phone intercepts suggested that the attackers had come from inside Afghanistan, though he said there was no reason to blame the Kabul government.’
‘However, PAF airbases have long been repeatedly targeted by TTP and associated groups, and long before the government launched its Operation Zarb-e-Azb anti-militant campaign in June 2014. For instance, PAF Base Kamra, in Punjab province, was targeted by Islamist militants in 2007 (Dawn, December 11, 2007). A likely reason for the TTP's attacks on PAF facilities is the air force’s role in military campaigns against the TTP in the country's tribal areas. The rugged terrain of the tribal areas, the epicenter of the Islamist insurgency, provides formidable cover for TTP militants, and as a result, PAF bombardments are often the only way for the military to progress in its operations, often causing considerable collateral damage in the process. Of the 11 active flying bases of Pakistani Air Force five have been attacked in last ten years, whereas another three airports (Karachi, Peshawar and Quetta) have also been targeted.’
The Taliban has only taken responsibility for the attack against the Pakistani air force and have extended its campaign of violence to include family members and children of air force members, such as the Applicant.
‘The Pakistani Taliban took responsibility for the attack at the sprawling Badaber Air Base, saying that 14 militants had taken part. A video released by the group showed a Taliban commander, Omar Mansoor, saying goodbye to fighters said to be the ones who stormed the base.
That commander is believed to have been involved in the massacre of more than 140 people, most of them children, at an army school in Peshawar in December. The attack on Friday was the first major Taliban assault on a Pakistani military base since then.’15
‘On December 16, 2014, six days after Malala Yousafzai received the Nobel Peace Prize, armed militants attacked the Army Public School in Pakistan’s Peshawar city, killing 145 people, almost all of them children. Gunmen systematically went from classroom to classroom, shooting children and teachers at the military-run school. Tehreek-i-Taliban Pakistan (TTP), the so called Pakistani Taliban, claimed responsibility for the attack as revenge for a Pakistan Army offensive in the Tribal areas of North Waziristan that began in June 2014. It remains among the deadliest attacks ever on a school in any country.’
APPLICATION FOR PROTECTION
The Applicant satisfies section 36 of the Act as he has not been assessed by ASIO as a security risk. Further, it is submitted that Australia owes protection obligations to the Applicant as he is a refugee. He has a well-founded fear of being persecuted on the basis of his membership to social group(s), imputed political opinions and complementary protection grounds.
Should the Department be of the view that the Applicant does not invoke Australia’s protection obligations under section 36(2)(a) of the Act, we submit that the Applicant nevertheless satisfies section 36(2)(aa) of the Act. In doing so, the Applicant invokes Australia’s non-refoulement obligations on the basis of Australia’s complementary protection.
Well-founded Fear of Persecution
Section 5J of the Act defines when a person has a ‘well-founded fear of persecution’.25
A person is deemed to have 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
‘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 under subsection (a); and27
The ‘real chance of persecution’ must related to all areas of the receiving country.
Conflict with a characteristic that is fundamental to the person’s identity or conscience; or
Conceal an innate or immutable characteristic of a person; or
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 practise of his or her faith;
Conceal his or her true race, ethnicity, nationality or country of origin;
Alter his or her political beliefs or conceal his or her true political beliefs;
Conceal a physical, psychological or intellectual disability;
Enter into or remain in a marriage to which the person is opposed, or accept the forced marriage of a child;
Alter his or her sexual orientation or gender identity or conceal his her true sexual orientation, gender identity or intersex status.
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: 29
As such, it is submitted that the Applicant has a well-founded fear of persecution as he is unable to modify his behaviour to avoid persecution on the basis that his stance opposing [Ms B]’s proposal is immutable. Section 5J(3) of the Migration Act stipulates that ‘enter[ing] into a marriage to which that person is opposed’ is prima facie excluded under the list of conduct in which an Applicant may carry out to mitigate against their persecution.
Further, the Applicant’s additional convention ground – that being his fear of persecution on the basis of his inter-caste relationship with [Ms F], is immutable – he is unable to conceal his ethnic caste as a Punjab, which is the source of his likely persecution by [Ms F]’s Muhajir family.
Well-founded fear of persecution for a Convention reason
Imputed Political Opinion
The Applicant believes that he will be targeted due to his imputed political opinion, namely, anti-Taliban views due to his father and brother’s occupations with the Pakistani Air Force, which has fought against the insurgent group. Please see attached evidence of the Applicant’s family’s ties with the Pakistani Air Force.
Such likely persecution will involve serious harm to the Applicant. The Applicant has a serious fear that if he should be forced to return to Pakistan, the Taliban will attempt to seriously harm him. Further, the suspected harm to the Applicant will constitute a ‘threat to his life and liberty’.
Subjective and Objective Fear
The Applicant’s fear of persecution is both objective and subjective in nature.
The Applicant’s fear of persecution from his persecutors is both objective and subjective.
It is subjective in that the Applicant received, on numerous occasions, death threats and threats of serious harm, by [Ms B]’s family, [Ms F]’s family and has witnessed countless civilians be attacked on the basis of their family’s contributions to the air force.
The Applicant fears that if he returns to Pakistan, the immutable characteristic of his identity as a member of a Pakistani air force family, which subsequently echoes anti-Taliban sentiments, and his status as an ‘outcast’ due to his refusal of arranged marriage in pursuit of his inter-caste relationship, will continue to subject him to harm, In light of the above country information about the prevalence of harm and significant abuse in Pakistan, his fear of being seriously harmed or killed, is objective.
It is submitted that the Applicant’s fear of persecution is well-founded in that he is likely to be persecuted upon his return to Pakistan. The basis upon which his fear of persecution is based, is not based on mere speculation or assumptions. Rather, such fear of persecution is based on his personal experience of receiving multiple death threats from [Ms B]’s family, [Ms F]’s family, the Taliban and his uncle [Mr A].
Unable or Unwilling to Avail Himself to Protection of Country
The Applicant was and continues to be unwilling to avail himself of the protection of the Pakistani Government. Such unwillingness is due to his fear that the Pakistani Government will not be able to afford him any real protection.
Should the Applicant seek protection from the Pakistani authorities, the Applicant is unlikely to be able to access protection.
Critique’s observe the failure of Pakistan’s legislature and judiciary, in safeguarding against honour killings and violence on the basis of arranged marriage refusal – which subsequently undermines the Applicant’s ability to seek protection within Pakistan, should [Ms B]’s family honour their threats.
‘The research and analysis presented in this article demonstrates that the Criminal Law (Amendment) Act 2004 did not have the desired impact of eliminating or reducing the incidents of ‘honour’ killings in Pakistan. This is both due to the civil society’s unawareness of this law or the specifics of this law, and the faulty drafting of the same. This law still allowed for the waiver and compound-ability of the right of qisas in the cases of honour crimes, whereby the majority of the perpetrators are allowed to go scot free. Similarly, the law left ample space for extenuating circumstances like ‘sudden and grave provocation’ to be used by the perpetrators to claim lenient punishments, and by the judges to grant the same, owing to their gender-based, social and cultural biases against female victims.
The new anti-honour killings law of 2016, as analysed in light of the 2004 law, suffers from the same defects as the old law did. As a result, incidents of honour crimes are still prevalent in the society at a large scale. The reported case law, post the enactment of the Criminal Law (Amendment) Acts of 2004 and 2016, shows that the plea of sudden and grave provocation is still being used as a mitigating circumstance though it is not available as an exception under the law. At the same time, some of the positive precedents set by the superior courts are not necessarily being followed by the lower courts, which not only continue to differentiate between a simple murder and a murder on the pretext of honour, but also murder under grave and sudden provocation and murder in the name of honour, to the disadvantage of victims.’
Further, as stipulated in the Applicant’s Statutory Declaration submitted before the Tribunal, the Applicant is denied protection by the Air base against the Taliban, where his family currently resides, due his status as a non-dependant.
It is submitted that should a politically motivated crime occur against the Applicant, it is unlikely that effective investigation will occur. This is particularly relevant to the Applicant due to his imputed political opinion, in line with an anti-Taliban stance.
Reasonableness of Relocation
Is Relocation Reasonable?
DFAT’s country information report on Pakistan notes that internal relocation is available for most individuals.
However, internal relocation is highly dependent on an individual’s financial constraints and or connections. Those with financial constraints and or without connections would find it difficult to relocate internally, whether to an area in which their sectarian group predominates or a mixed area.
For the following reasons, it is submitted that relocation is not reasonable for the Applicant: a. The Economic circumstances;
b. Social support;
c. Civil and Political Rights; and
d. Security Situation.
Such reasons will be discussed below in further detail.
Economic Circumstances
It should be noted that although the Applicant has been employed in Australia as [an occupation 1], he is likely to struggle in securing substantial employment in Pakistan. This is because of gaps in employment history, as well as his implied political association.
Whilst the Applicant does have assets in Pakistan, namely an entitlement to his grandfather’s land through his father, he is unable to access this land due to the ongoing contest by his uncle [Mr A]. Furthermore, the Applicant does not have substantial savings to rely on in order to allow himself to subsist in Pakistan, should he struggle to secure employment upon his forced return.
Additionally, the COVID-19 pandemic and its repercussions on the Pakistani economy further exacerbate the Applicant’s inability to survive in his home country:
‘Pakistan has so far registered nearly 270,000 cases of the coronavirus and over 5,700 related deaths. A week ago, President Arif Alvi congratulated the nation for its "victory" against COVID-19 during an interview with a local broadcaster. Alvi said the government successfully saved the country's poorest from the financial impact of the pandemic.
At the time of Alvi's commendation, the confirmed number of COVID-19 patients in Pakistan stood at 259,998 and 2,085 new cases had been recorded in the last 24 hours.
Prime Minister Imran Khan's government says the drop in the daily number of new coronavirus cases in July is due to its "smart lockdown" strategy. But observers say the trend could be a result of misreporting and inadequate testing.
The pandemic has also taken a devastating blow on the Pakistani economy. "Pakistan's economy is shrinking, unemployment is rising and various sectors are in crisis," warned Zafar Moti, the former director of the Karachi Stock Exchange (KSE). Moti told DW he is less concerned about Pakistan's financial markets and more concerned about the long-term impact of the pandemic.
Pakistan's exports primarily comprise of textile products. These exports are down since the COVID-19 crisis started, with some orders even being canceled. Moti does not expect demand to pick up again post pandemic. "All of this will negatively impact foreign reserves and ultimately the currency value. In the long run, financial markets will also be negatively affected," he said.
When Khan took power in 2018, Pakistan's GDP growth was around 5.8%; now it is 0.98% and is likely to decline further. The country's fiscal deficit is almost 10% and revenues have plummeted in the past two years.’
Social Support
As echoed in the Applicant’s statutory declaration dated 29 April 2021, the Applicant has effectively been ousted by both his maternal and paternal extended families.
His adamant refusal of the arranged marriage with [Ms B] was resulting in the banding together of [Ms B]’s family against him, in addition to his Uncle [Mr D], [Mr E] and [Mr C].
Further, the Applicant’s extended family from his father’s side have slowly all succumbed to the seemingly overwhelming power of his uncle [Mr A], in his mission to quash the Applicant’s claim to his grandfather’s land.
As such, the Applicant has effectively been left with no support system to turn to in order to assist his transition in Pakistan, should he be forced to return there and subsist. Whilst his immediate family are residing in [Airbase 1], their hands are effectively tied as their protection is limited to their status as Air Force officers, which does not extend to the Applicant per se.
Security Situation
It is submitted that [the applicant]’s protection claims ought to be perceived in light of the complex and volatile security situation in the Applicant’s home country.
DFAT reports: ‘The security situation in Pakistan is complex, volatile, and affected by domestic politics, politically motivated violence, ethnic conflicts, sectarian violence, and international disputes with India and Afghanistan. According to the South Asian Terrorism Portal (SATP), 3684 civilians have died in terrorism-related violence between 2014 and mid-January 2019. SATP bases its statistics from media reports, so this number may understate the actual number of casualties.
Overall, there was a 29 per cent decline in the number of reported terrorist attacks in 2018 (compared to a 16 per cent decline in 2017), marking a nine-year downward trend. Nevertheless, Pakistan continues to face security threats from insurgent, separatist and sectarian militant groups.
Up to 262 reported terrorist attacks, including 19 suicide and gun-and-suicide coordinated attacks, killing 595 and injuring 1030, occurred in 2018 (compared to up to 370 reported attacks in 2017). The Tehreeke-Taliban Pakistan (TTP), TTP splinter groups, and ISIL-affiliates conducted up to 171 of these attacks (compared to up to 213 attacks in 2017). Nationalist groups also carried out up to 80 attacks, killing 96 and injuring 216, in 2018 (compared to 138 in 2017), and there were up to 11 sectarian related terrorist attacks, killing 50 and injuring 45 (compared to 20 in 2017). Moreover, while there was a 21 per cent decrease in suicide attacks in 2018 (compared to 2017), the number of people killed by suicide attacks in 2018 actually increased by 11 per cent (from 286 in 2017, to 317 in 2018).
The security situation varies across the country, however, and militant attacks can occur anywhere. Balochistan faced the most significant security challenges in 2018, due to activity by both religious and nationalist non-state actors. While Khyber Pakhtunkhwa, including the former FATA, reported the highest number of terrorist attacks (125 attacks, killing 196), Balochistan reported the second highest number of attacks (115), but claimed the highest death toll (354). Sindh ranked third (12 attacks, killing 19), GilgitBaltistan fourth (5 attacks, killing 5), Punjab ranked fifth (4 attacks, killing 20), and Azad Jammu and Kashmir ranked last (attack, killing 2). The highest decrease in attacks (compared to 2017) was reported in Punjab (71 per cent decrease), followed by AJK (67 percent), Karachi (62 percent), Sindh excluding Karachi (57 percent), Balochistan (30 per cent), and Khyber Pakhtunkhwa (by 19 percent).
Security and law enforcement personnel were the target of the largest number of attacks during 2018 (136 attacks, or 52 per cent, killing 217), however the most lethal attacks were against political leaders and workers (24 attacks, killing 218). Politicians remain at risk of assassination. 47 attacks (killing 51) targeted civilians, seven targeted Shi’a, two targeted Christians, one targeted Hindus, one targeted Sikhs, and six targeted educational institutions (see Religion and Education). Moreover, four terrorist attacks (killing 8) targeted religious minorities in 2018 (compared to six in 2017), and up to six incidents of faith-based, individual or communal violence (killing 4) were also reported (compared to 5 in 2017). Three of the faith-based violent incidents targeted the Ahmadi community (see Religion and Ahmadis). Sectarian violence also reduced by 40 per cent (12 incidents reported) in 2018 compared to 2017.
Islamic State in Iraq and the Levant (ISIL, also known as ISIS or Daesh) increased its activity in Pakistan in 2017 and 2018, especially in Balochistan and northern Sindh (see ISIL, Anti-Pakistan Sunni groups and anti Shia sectarian groups). While ISIL was responsible for attacks with the largest death tolls, Tehreek-e-Taliban Pakistan (TTP, or the Pakistani Taliban) and associated groups conducted the largest number of attacks in both 2017 and 2018 (see Anti-Pakistan Sunni groups and anti-Shia sectarian groups).’
Complementary Protection under 36(2)(aa)
If a person does not satisfy the criteria set out in section 36(2)(a), he or she may nevertheless meet the complementary protection criteria: the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm (‘the complementary protection criteria’).
It should be noted that ‘significant harm’ is defined in section 36(2A) and section 5(1).62
Country Information
Family Land Disputes
Several sources have confirmed the blood-bath ensued by family land disputes in Pakistan:
‘Four people were shot dead on Thursday after an argument between two relatives over a land dispute intensified in Attock’s Jand. Four other people were injured in the incident. They have been shifted to a hospital. According to the police, someone opened fire during an argument between two relatives. “The dispute dates back six years,” a police officer said. A similar argument had taken place four months ago as well but it was resolved on a domestic level,” he said. The police are on the lookout for the accused. An FIR of the incident, however, has not been registered yet.’
‘According to the Human Rights Commission of Pakistan (HRCP), various forms of land grabbing continued relentlessly.7 USAID noted in its report on land rights that ‘Land disputes are prevalent in rural and urban areas throughout Pakistan.’
In July 2016, a Supreme Court judgement cited by The Express Tribune stated: ‘“In our society, the acts of illegal dispossession are largely committed at the behest of persons who are rich, powerful feudal lords, politicians, builders, government functionaries or persons who head large communities, and on account of their influence and power that place them in domineering positions either over their fellow community members or over less powerful communities living in an area of their influence”.’
According to an Amnesty International researcher, speaking to Al Jazeera in 2014, Pakistan’s blasphemy laws were reportedly used ‘to make unfounded malicious accusations to settle personal scores in land and business disputes...’ The International Crisis Group (ICG) stated in its 2014 report on policing urban violence that ‘Unresolved land disputes are often settled by force, turning civil cases into criminal ones.’’
The following media reports are illustrative of land disputes that have resulted in violence:
• The Express Tribune reported in February 2016 on the shooting of a man in Rawalpindi following an argument over an alleged land dispute.
• Two business partners dealing in real estate were reportedly killed in a land dispute in April 2016. According to the Asian Human Rights Commission (AHRC), the assailants claimed that 1 of the victims, a Christian, had committed blasphemy. The AHRC reported that local police held a jirga and decided the victim’s family could be financially compensated by the accused, who were reported to have political connections.
• The Express Tribune reported on a clash over land, that resulted in the death of 1 person and 5 others injured, in Karachi, in June 2016. According to police, the dispute between different sects had been ongoing for over a decade.14
• Police arrested 5 family members after 2 men were shot dead in September 2016, said to be over a property dispute in Haripur, Khyber Pakhtunkhwa.15
• On 10 November 2016 The Express Tribune reported on the arrest of a man who confessed to killing his wife over a property dispute in Vehari district, Punjab province.16
• The News International reported on 30 November 2016 that a father was murdered by his son, allegedly over a land dispute, in Hafizabad, Punjab province. The suspect was arrested, and a case registered against him.65’
The Applicant will Suffer Serious Harm
Due to the Applicant’s ongoing family land dispute with his uncle [Mr A], he is terrified of being forced to return to Pakistan, as he fears that he will be subject to serious harm, discrimination, and persecution.
The Applicant cannot take reasonable steps to modify his behaviour so as to avoid persecution in Pakistan. This is because doing so would require the Applicant to alter immutable characteristics including his political beliefs. Doing so would be contrary to section 5J(3) of the Migration Act, as his diagnosis is an innate and immutable characteristic.
The Applicant’s membership of a particular social group is the ‘essential and significant reason’ for his persecution by the Pakistani Taliban.
Such persecution involves ‘significant harm’ to the Applicant, namely a ‘threat to the Applicant’s life or liberty, significant harassment and physical ill-treatment.’
For the reasons mentioned above, the Applicant will not be able to relocate to a different area of Pakistan.
Economic Circumstances
In addition, it is submitted that the Applicant will struggle to relocate as he may struggle to secure employment in Pakistan.
State Protection
In light of the above country information, the Applicant will not be able to access effective state protection.
Judiciary
While Pakistan has a functioning legal system with civil, administrative, military and religious courts, the impartiality of judges may be difficult to obtain in light of the predominance of religion and politics in Pakistani society.
‘According to the USAID report: ‘Pakistan’s formal court system also has jurisdiction to hear land cases, creating a parallel structure of courts. Land disputes are the most common form of dispute filed with the formal court system, perhaps in part because filing a case may stay a pending revenue court proceeding. Pakistan’s judiciary is hampered by low pay, poor training, and a large volume of cases. Between 50% and 75% of cases brought before lower-level civil courts and the high courts are land-related disputes. By one estimate, over a million land cases are pending countrywide. Major causes of land disputes are inaccurate or fraudulent land records, erroneous boundary descriptions that create overlapping claims, and multiple registrations to the same land by different parties. Credible evidence of land rights is often nearly impossible to obtain. Land cases can take between 4 and 10 years to resolve, with the party in possession of the land delaying adjudication in order to prolong the period of beneficial use. Appeals are assumed.’
According to The News International, reporting in October 2016 on plans to overhaul Pakistan’s justice system, ‘... up to 80 percent of Pakistan’s civil case load is to do with land acquisition and titling disputes, with a tremendous percentage of those disputes arising out of land grabbing and misappropriation of property. The source said that it is imperative that as a part of social justice, the government ensures effective and speedy dispensation of justice.’ The report added that ‘[A] comprehensive computerised system of land title is being worked upon at both the provincial and federal government levels, to attempt to cure the root cause of so much of our litigation.’
USAID noted that: ‘A revenue court system has jurisdiction over disputes regarding land documents, tenancy, land revenue, and land transactions. Disputes are heard at the tehsil level (a level of local government similar to a county) by the tehsildar, the officer responsible for the collection of land revenue and land administration. A Chief Settlement Officer and the provincial-level Board of Revenue are the appellate authorities within the revenue court system. The revenue court system, which is designed to provide a specialized, local, rapid resolution of disputes, has been criticized by landholders as time consuming, complex, and subject to corruption. Land administration offices do not publish procedures for bringing a claim, documentation of land rights is often missing, land records maintained by the local authorities are often incomplete or of questionable validity, and land administration officials such as the patwari often do not appear to provide evidence. Cases may take years to resolve.’
The same report added: ‘Inhabitants of Pakistan’s Tribal Area do not have access to the High Court and Supreme Court except for constitutional claims and challenges. Land disputes are handled by the traditional jirga: a round-table conference in which there are no leaders, and participants are selected at the time of convening based on age, reliability, and shrewdness. Decisions must be unanimous and the jirga can impose fines for wrongful behavior. In Punjab and Sindh Provinces, local leaders and elected panchayat (local governance body) members often hear and resolve land disputes. In most areas, women are not permitted to participate in the jirga, and resolutions reached often perpetuate existing biases against women’s land ownership and control.’
In light of such country information, access to justice for the Applicant is likely to prove difficult.
Non-refoulement Obligations
It is urged that the decision-maker consider Australia’s international non-refoulement obligations under article 33 of the Refugee Convention, article 3 of the Convention against Torture and articles 6 and 7 of the International Covenant on Civil and Political Rights.68 Australia has an obligation not to ‘expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.’
In light of the Applicant’s experience of persecution and the above country information, Australia has non-refoulement obligations in respect of the Applicant. Such non-refoulement obligations preclude Australia from returning the Applicant to Pakistan as his life will be threatened due to his imputed political opinion.
In conclusion, the Applicant is likely to satisfy subsection 36(2)(a) and alternatively, section 36(2)(aa). As such, the Applicant should be granted a Protection visa.

Also submitted were records WhatsApp messages and calls with [Ms F], and employment certificate of the applicant’s brother being in the Pakistan air force, Airforce ID cards of [Mr I] and [Mr J]
Also submitted was the applicant’s statutory declaration of 29 April 2021 in these terms:
In this Statutory Declaration I would like to address why I fear returning to Pakistan, on convention grounds of membership of the following particular social groups:
Men subject to harm for withdrawing from pre-arranged marriage;
Punjabi man in inter-caste relationship with a woman from the Mohajir caste.
I also fear harm as an imputed supporter of anti-Taliban sentiments or views because of my father and brother's occupations with the Pakistani Air Force.
I refer to my previous statutory declaration dated 10 April 2015 and confirm its details to be true and correct. I reiterate the sentiments expressed in such aforementioned statement.
Background
I was born in [Location], in the [Town] village located in Attock, Pakistan on [Date]. My family are Sunni Muslims and we are from the Punjab province.
My family belong to the [Name] caste.
My father [and] my mother [had] four children together, namely;
My brother, [Mr J];
My brother, [Mr I]; and
My sister, [Ms G].
Immigration History
I arrived in Australia [in] November 2011.
Upon receiving legal advice and becoming aware of my eligibility to apply for a Protection (Class XA) visa, I applied for such substantive visa on 10 April 2015.
Unfortunately, this visa application was refused on 31 July 2017
I consequently lodged my appeal with the Administrative Appeals Tribunal on 4 August 2017.
I have not returned to Pakistan since I fled in 2011.
Refusal of Arranged Marriage
My parents contacted me and informed me that they wanted me to get engaged to my maternal cousin [Ms B], however I vehemently refused.
I was formally engaged to [Ms B] in 2012, I found out about this engagement through my sister, [Ms G]. I was not present for the engagement and my parents 'betrothed' me to [Ms B] without my consent. I don't believe this to be a true engagement because I did not consent to it.
The situation continued to escalate, and I continue to express my rejection to my parents throughout 2013 to 2014, whereby they became more insistent on enforcing their wishes for me to marry [Ms B] against my will,
My uncle [Mr D], who is [Ms B’s] father, and [Mr M], [Ms B’s] brother, also became very angry with me due to my rejection of the proposal. I live in the very isolated village of [Town]. Village cultural norms unfortunately taint a woman's reputation if she is rejected for marriage.
People have drawn adverse inferences of [Ms B] due to my rejection, forming the belief that she has a shameful character, and/or engages in promiscuous and 'immodest' tendencies, such that she is unfit for marriage. As such, despite relocating to my city of Attock in hopes of our marriage, [Ms B] is yet to be wed, and her family's rage increases as she ages.
In response to my adamant refusal, [Mr E] has threatened to harm me. In 2014 he stated that if I try and marry someone else, he will create big problems for me and harm me should I return to Pakistan.
Further, such threats have continued up until now. I speak with my brother and sister consistently on a weekly basis, and at least every fortnight they pass on messages from [Mr E], of him threatening to seek revenge against me for the damage that that I did to [Ms B]' s reputation.
As iterated in my previous Statutory Declaration, I fear that [Mr D], [Mr M] and [Mr C] will try to harm me if I return to Pakistan.
Inter-Caste Relationship
I refused to marry [Ms B] as I am in love with another woman named [Ms F]. [Ms F] resides in Karachi, Pakistan and is of the Muhajir caste,
[Ms F] and I began talking in 2010 prior to my departure from Pakistan. Our relationship strengthened and became serious around one or two years into our relationship, on/around 2011 or 2012. We fell in love with each other and soon established plans to spend the rest of our lives together.
We speak every day and make sure to maintain consistent communications despite our long-distance relationship. We are sure to celebrate and cherish each other on important occasions such as Valentines Day and New Years Day, as illustrated through the evidence of our communication (submitted to the Tribunal).
However, our love story did not continue without its hurdles. [Ms F] 's mother discovered our relationship and was furious with disapproval as I was not from the Mubajir caste. We would try to organise our telephone calls to be in secret when her parents were sleeping in order to avoid getting caught.
During 2014 or 2015, [Ms F]'s mother caught us speaking and snatched the phone off of [Ms F]. She was verbally abusive, directed derogatory language towards me, and demanded that I end our relationship right away. However, I refused and remained sincere and loyal to [Ms F]. I continue to communicate with [Ms F] via her second phone, which she obtained for the purposes of speaking to me secretly.
These threats continued to spiral, in 2016 [Ms F]'s mother threatened that her family will definitely kill me if I come to propose and ask for [Ms F]'s hand. [Ms F] is now [Age] years old and has rejected a stream of proposals from her parents and she still has hope that we will get married one day and that I will bring her to Australia.
However, as being unwed at such an age is frowned upon in the conservative village culture, her parents have only gotten more enraged. So much so that every two days during our phone calls, [Ms F] passes on threats that she received from her parents, that they will seriously harm me ad kill me if I continue pursuing our love story.
Anti-Taliban Views
After [Number] years of service, my father retired from the Pakistani [armed forces branch 2] in 2014. My two older brothers followed in his footsteps and joined the Pakistani [armed forces branch 2] and have been working there for around [Number] years.
I believe that my family's affiliations with the [armed forces branch 2] renders me to serious harm at the hands of the Taliban extremists. The Taliban sent a letter threatening people who work in the Pakistani [armed forces] and honoured their threat when they carried out [bomb blasts] in [Airbase 1]. My brothers are living on [Airbase 1] and my father and brothers have fought against the Taliban.
Whilst my parents and brothers are being protected in the airbase as they live there, I am not afforded the same protection as I am not a dependant and over 18 years old. Further, since I have not served in the Pakistani Air Force, they will not allow me to1 stay with me family and be afforded such protection against the Taliban.
Family Land dispute
In 2010, my grandfather [died]. When my grandfather died, my father's brother [Mr A] said that he should inherit all of my grandfather's land in [Town], so much so that he forged a will attesting to his purported sole ownership. However, this contravenes Pakistani law which states that all assets and land must be divided equally between sons. I am entitled to one piece of my grandfather's land, through my father should he pass away.
In 2012, [Mr A] initiated court proceedings against my father and my uncle [Mr N] for my grandfather's land, however [Mr N] succumbed to his power and pressure and joined him in 2014.
During these court proceedings, [Ms B’s] family attended Court to show their support for my uncle's efforts against me, leaving me with no corner to turn to. Both my maternal relatives, being [Ms B’s] family, and my paternal relatives, including my uncle and his supporters in the land dispute, have mobilised against me, and made it clear that my life is in danger for as long as I oppose them.
In around 2018 or 2019 my uncle not only threatened me, but the other people listed on title. He said that he is disowning them and is ending his relationship with them, including myself, and if anything, bad happens to us then he will not get involved and protect us, suggesting that an ominous danger was waiting for us.
I have never received any direct threats from my uncle, as I have made sure to close all lines of communication between us, as I fear for my life. However, my uncle has made sure to pass on messages through the villagers living close to him, who have then inforrned my siblings that it is his property, and if I continue to get involved, he will try and kill me by running me over with a tractor.
Just as my father was abandoned when he was falsely imprisoned, I fear that I will too be persecuted by my uncle and his supporters, and neither my maternal or paternal family will be able to protect me.
Conclusion
I cannot return to Pakistan due to the possibility of being subjected to persecution. I fear that [Ms B’s] family will inflict serious harm upon me and kill me due to my refusal of their arranged marriage proposal and the subsequent 'black listing' or tarnishing of [Ms B’s] reputation in the village. Such harm ought to be perceived in light of the death threats I have received from [Mr E] directly, and [Mr D] and [Ms C] indirectly.
Further, I am afraid that [Ms F]'s family will seriously harm me or kill me due to my inter-caste relationship with their daughter, as has been communicated on numerous occasions by [Ms F]'s mother. Such threats have been passed onto me through [Ms F] during our regular daily telephone calls.
Additionally, I am terrified that the Taliban will attack me as my now retired father and two brothers, [Mr J] and [Mr I] serve the Pakistani Air Force. As aforementioned, the Taliban has expressed that families of members who serve in the air force are targets, as evinced by the countless attacks against civilians. I am unable to be protected by my family as they all reside in an airbase and I am excluded from such protection as I am no longer dependant and have never served in the air force.
Lastly, I fear that my paternal uncle [Mr A] will seriously harm or kill me due to my adamant pursuit in our land dispute.
All my extended family is in Pakistan and I am unable to be protected from my maternal or paternal extended family due to the aforementioned reasons.
I believe I will be unable to relocate in Pakistan as the sources of threats, namely [Mr A], [Ms C] and the Taliban, are powerful and have connections within all areas of the country. I have no assets in Pakistan, no substantial savings, and will struggle to survive in any area of Pakistan that I relocate to, as I will be unable to access my support network, gain employment or speak the dialect.
A post hearing submission was made on 24 May 2021 in these terms:
BACKGROUND
This submission is made further to the submission dated 30 April 2021.
[Name deleted] is the Applicant (the Applicant). He was born on [Date] and is currently aged [Age] years old.
The Applicant is a male Pakistani citizen born in [Location], [Town], Attock, Pakistan.
Should the Applicant be forced to return to his home country, he fears being subjected to persecution and serious harm on the convention grounds of membership to the following particular groups:
Pakistani men who have refused pre-arranged marriage;
Punjabi man in intercaste relationship with a woman from the Mohajir caste.
The applicant also fears harm as an imputed supporter of anti-Taliban sentiments or views due to his father and brother’s occupations within the Pakistani air force.
Further, on the basis of complementary protection grounds, the Applicant fears that he will be rendered a victim to his uncle [Mr A]’s wrath, due to the ongoing family land dispute.
IMMIGRATION HISTORY
The Applicant arrived in Australia [in] November 2011.
Upon receiving legal advice and becoming aware of his eligibility to apply for a Protection (Class XA) visa, he applied for such substantive visa on 10 April 2015.
Unfortunately, this visa application was refused on 31 July 2017.
The Applicant subsequently lodged his appeal with the Administrative Appeals Tribunal on 4 August 2017.
The Applicant has not returned to Pakistan since he fled in 2011.
The Applicant attended a hearing before the Tribunal on 7 May 2021.
COUNTRY INFORMATION
The validity of the Applicant’s claim ought to be perceived in light of the following country information on Pakistan.
Honour violence against men
A Dawn Newspaper article dated 19 February 2020 indicates that at the time of writing, 510 women and 259 men fell prey to ‘honour’ killing in the preceding five years, in Sindh province alone. Of the total 649 criminal cases, courts only handed down sentences in 19 of those cases, between 2014 and 2019. Accused parties in 136 cases were acquitted and 494 cases were pending trial as at the time of publication, indicating that the conviction rate stood at a mere two per cent against the acquittal rate of almost 21 per cent.
The article goes on to state that:
A host of causes or motives have been cited in the study for the unabated killings such as elopement, refusal of an arranged marriage, being the victim of sexual assault or rape, seeking divorce from an abusive husband, committing adultery, alleged illicit relationship and flirting.
Other contributory factors are economic issues, preserving family land, allegation against some rich person, taking custody of the property of the enemy, settlement of a family dispute, old enmity, murder of enemy by alleging/declaring him as karo and practice of paying bride price, etc
The study cited several factors behind the failures to eliminate the heinous crime such as existence of centuries-old practices, deeply rooted socio-cultural factors, non-reporting of such cases or presenting the same as suicide or accidental death and silent social acceptance of such killings.
Other contributory factors were loopholes in the laws, faulty investigation, very low rate of conviction, ineffective deterrence of the law and criminal justice system, collusion between offenders and witnesses and unwillingness to implement the law due to the overwhelming social acceptance of the crime and the influence of power holders.
Moreover, majority of the cases were being settled out of court.
The police believed that the role of community also did not help to end such killings.
The community members were also seen allegedly pressurising and taunting men to control their family.
The police regretted that the murderers were being treated with “respect, seen as the custodians and protectors of honour” as there was a general disrespect for legal institutions.
Terrorism and human rights abuses
Human Rights Watch in their 2021 World Report on Pakistan, stipulates that:
The Tehrik-Taliban Pakistan (TTP), Al-Qaeda, and their affiliates carried out suicide bombings and other indiscriminate attacks against security personnel that caused hundreds of civilian deaths and injuries during the year. At least 109 people were killed in 67 attacks between January and July, twice the number in 2019, according to the FATA Research Centre. Balochistan Liberation Army (BLA) militants targeted security personnel and civilians. In June, four BLA gunmen attacked the Pakistani stock exchange in Karachi killing two guards and a policeman and wounding seven others.
Pakistani law enforcement agencies were responsible for human rights violations, including detention without charge and extrajudicial killings. Pakistan failed to enact a law criminalizing torture despite Pakistan’s obligation to do so under the Convention against Torture.
Pakistan has more than 4,600 prisoners on death row, one of the world’s largest populations facing execution. At least 511 individuals have been executed since Pakistan lifted the moratorium on death penalty in December 2014. Those on death row are often from the most marginalized sections of society.
Treatment of returnees from the West
Under Articles 4 and 6, attempting to enter or depart Pakistan without valid documentation or on fraudulent documentation is also punishable with up to three years’ imprisonment, a fine, or both. Those suspected of human trafficking or people smuggling may be prosecuted under the Prevention of Trafficking in Persons Act (2018) and/or the Prevention of Smuggling of Migrants Acts (2018).
DFAT understands that people returned to Pakistan involuntarily are typically questioned upon arrival to ascertain whether they left the country illegally, are wanted for crimes in Pakistan, or have committed any offences while abroad. Those who left
Pakistan on valid travel documentation and have not committed any other crimes are typically released within a couple of hours. Those found to have contravened Pakistani immigration laws are typically arrested and detained. Inter-Caste Relationship Violence
Pakistan, like many neighbouring countries, is bound by a caste endogamy. This social stratification system in Pakistan is referred to as the ‘biradari’ system.2
‘An expressed preference for marriage within the khandan (family), the zat (caste), the qaum (tribe, caste), or the biradari is reported from various parts of Pakistan. Biradari, literally 'brotherhood', usually denotes relatives who know each other well, can demonstrate their relatedness and live in the same place. Sometimes, however, biradari describes everyone with whom there is an assumed kinship link, known or not. This assumption is possible because biradaris usually have caste (zat) names. Although caste ranking and the existence of caste among Pak- istani Muslims is a matter of dispute, biradari identity is sometimes an explicit concern, especially if marriage between people of different castes is contemplated. One young British-raised Pakistani woman said: 'We don't marry outside the khandan, because other people are not of the same caste'.’
Such aforementioned caste system in Pakistan has given rise to an insurgence of honour based violence against the two opposing factions of the relationship.
‘According to Freedom House’s 2017 report, in much of the country, traditional practices subject personal choices, such as the choice of a spouse, to social control. Similarly, in correspondence with the Research Directorate, a representative of the Women Employee Welfare Association (WEWA) explained that “love marriages” [not arranged by families] may be allowed among the elite, but for other social classes, intercaste marriages are not accepted.’
Academic, Ahmed Usman, of the University of the Punjab, explained in his doctoral thesis on interactions between castes, gender-related issues and violence in Punjabi villages that marriages and relationships between members of different castes are not socially accepted and can lead to honour killings.
The murder of Qandeel Baloch in 2016, which was widely coered by the media, was also linked to caste, however censorship in the Pakistani media resulted in this vital contribution to her death being blatantly ignored. Anti-caste activist Auwn Gurmani critiques:
‘We remember Qandeel and we also remember she was killed because of her gender, class and most importantly caste background: Qandeel’s caste was Mehra.’
The Administrative Appeals Tribunal, in a recent decision dated 2016, accepted evidence of the prevalence of inter-caste relationship violence. The case of X was analogous on the facts as the Applicant whom for protection received many threats from family members, and other social counterparts, on the basis of her inter-caste relationship. The Tribunal accepted the following evidence as relevant to the probative value of such inter-caste violence protection claims:
‘She also provided some country information in relation to Pakistan and that included a media article dated 28 May 2014 which referred to a pregnant woman being stoned to death by her family in front of the Pakistani High Court because she had married a man she loved. In summary the media article also referred to incidents of honour killings in Pakistan apart from this particular incident. Another media article was dated June 28, 2014 and was headed "family kills Pakistani couple after they married for love" and referred to the killings of a couple in a village in Punjab after they had married for love. In summary the article also refers to reports about honour killings and killings in relation to modesty issues(in relation to women) in Pakistan more generally as well as the particular incident. There was a further media article dated July 2014 which referred to a report provided to the Asian human rights commission in relation to the death of a young couple after they engaged in a marriage of their choice and in summary the short article also refers to the father of the groom being required to hand over one of his daughters to the family of the bride in an arrangement that was described as being part of a "parallel judicial system" and the article also refers to issues of honour killings. Further media articles were also provided which in essence dealt with unrest in Punjab and Pakistan more generally and referred to incidents in Lahore and in Karachi in August 2014. One article also refers to the deployment of paramilitary rangers in Lahore in order to ensure security. Some of the media articles referred to attacks by the Pakistani Taliban as well as clashes between members of the Pakistan Awami Tehreek and Pakistan authorities.’
Such country information ought to be perceived in light of the Applicant’s inter-caste relationship, the death threats received by his partner, [Ms F]’s family, and the likely persecution and serious harm to follow.
Anti-Taliban Pakistani Air Force
The Taliban has been notorious for attacking members of the Pakistani air force due to their campaign against the insurgent group.
Whilst a string of attacks by Tehrik e-Taliban Pakistan can be traced back to 2015, recent events suggest an ominous future ahead for Pakistani officials and their family members, including those affiliated with the air force.
‘The TTP mostly targets Pakistani security institutions and their officials, seldom attacking soft targets,” says Abdul Basit, a Pakistani counterterrorism and security expert, in a reference to the targeting of civilians. “Rhetorically, the TTP has moved away from a global to local jihadist narrative."
With the Pakistani Taliban’s power and influence on the rise, Pakistani officials, including air force members and their immediate family, remain fearful of the potential ramifications to their safety and wellbeing. Recent events by the Taliban include the deadly bomb blast at the Serena Hotel in Quetta, Pakistan.9 This dreadful event has marked the rise of Tehrik-e-Taliban.
‘The TTP’s attack on the Serena Hotel in Quetta, the capital of the restive province of Balochistan, showed the militant group’s growing operational strength, observers say.
It was the first attack in Pakistan in years in which an explosive-laden car, or what military experts call “suicide vehicle-borne improvised explosive devices” (SVBIEDs), was used.
It was also the TTP’s first attack in a major urban center since its reunification “This shows that the TTP has regained the capability of assembling SVBIEDs and striking heavily guarded landmark targets,” says Basit.’
Impacts of COVID-19 on Pakistan
Country information must now be contextualised with respect to the consequences of the 2020 COVID-19 pandemic which potentially has extremely adverse and far-reaching future health, social, economic and human rights dimensions for Pakistan including civil unrest, a rise in extremism, weakening military control and a severe economic downturn’. The International Crisis Group has said that jihadist forces like to ‘exploit disorder’ states already weakened by the pandemic. In their publication, ‘Al-Naba’:
‘[ISIS] concludes from the foregoing that Muslims have a “duty” to protect themselves and their loved ones from COVID-19’s spread, but also to act. The editorial enjoins ISIS supporters to liberate Muslim captives from prisons and camps; to show no mercy to the “infidels” and “apostates” in their moment of crisis, and instead to attack and weaken them, rendering them less able to harm Muslims; and to bear in mind that the calamity befalling the West and its allies “will substantially undercut their ability to wage war on the mujahideen in the coming period”. The editorial closes by reminding readers that the best way to avoid God’s punishment – including coronavirus – is through obedience to Him, and that the act of obedience most beloved to God is “jihad” and inflicting pain on His enemies.’
The devastating resurgence of COVID-19 in India has impacted neighbouring Pakistan.
‘India’s second COVID-19 wave has left much of its population breathless and its healthcare system in ashes. There are dire shortages of oxygen, medicine, and hospital beds, while funeral pyres of the dead burn endlessly. “This is not a second wave in India as much as it is a whole new pandemic,” said Zulfiqar Bhutta, the founding director of the Institute for Global Health & Development at Aga Khan University in Karachi.
This is ringing alarm bells in Pakistan, which is also experiencing an uptick in cases. The country had 6,127 infections on April 17, the highest figure since last June 20. While the test positivity rate is very high—a sign of inadequate testing and uncontrolled viral spread—in major cities like Karachi and Lahore, areas throughout Pakistan’s four provinces (such as Gujranwala, Mardan, Hyderabad, and Quetta) are also reporting high rates. The impact is already obvious. Pakistan’s hospitals are treating more severely ill patients requiring oxygen than at any other point during the pandemic. Another grim milestone was reached on April 27 when a record 201 deaths were registered in a single day. At one point, 90 percent of the country’s oxygen supply was in use…
Spooked by the daily COVID-19 horror show next door in India, Prime Minister Imran Khan’s government is taking preventative measures to curb a cataclysmic third wave. But it faces formidable headwinds: pandemic fatigue, population density, relaxed Ramadan restrictions, contagious variants, limited genomic surveillance capabilities, a glacial vaccine campaign, and a starved healthcare infrastructure. As Federal Minister Asad Umar, who helms the nation’s pandemic response, tweeted on May 8, “Danger is higher than ever and knocking at our doors.”’
CONCLUSION
In conclusion, the Applicant is likely to satisfy subsection 36(2)(a) and alternatively, section 36(2)(aa). As such, the Applicant should be granted a Protection visa.

The applicant’s evidence in the hearing was in these terms:
In Pakistan he has his parents, and two brothers and a sister (they are in Attock, two hours from Islamabad).
His father was with the air force and is now retired. His two brothers are with the air force and live at [Airbase 1]. They live together.
He was in Australia from 2011 and struggled with his studies. He is now a worker with [an employer] in [a workplace].
He had been very stressed from a family issue – where he was arranged to be engaged to a cousin without his knowledge. He was actually in love with another woman. He resisted and the woman he loves, [Ms F] agreed to marry him. This evidence was delivered plausibly.
[Ms F] is a Muhajir, and thus from another caste. Muhajir people are Muslim migrants of various ethnic / regional backgrounds, and their descendants, who migrated from various parts of India after the partition of India, to settle in Pakistan.
The applicant’s mother ended contact with him over this.
He is still in contact with [Ms F] and spoke to her last week. He wants to bring her to Australia and marry her. He can go to court and marry.
If he went back his cousin’s brother is waiting for him and will threaten him. This is even though the marriage was arranged 12 years ago. They will force him. He will still be threatened by his brother the applicant said.
His brother’s wife is his fiancée’s sister.
I asked the applicant for the details of the threats against him. The threats are constant and are that when he comes back “I will see that he does not escape’. This has been relayed to his brother. The other threat was “I will never allow him to marry” and the consequences would be for him and his future bride. He said he would kill.
The applicant said the last time this was said was to his brother occurred a year ago.
I put it to the applicant that he might marry [Ms F] and live a separate life away from family and relations. He said he would like to, but his family will not allow it. They cannot have a secure and safe place.
However, I noted that he had told me that it was possible for him to marry without parental approval and that Pakistan was a country of size with some 230 million people. It seemed plausible that he could live elsewhere.
The applicant said that if he had to change cities he would have to start from scratch. There was racism in Pakistan. In Khyber Pakhtunkhwa it was difficult and there was a language barrier. With the applicant’s dialect he will not be able to settle as easily.
He has been in Australia for 13 years and he is easy to identify, to “tag him.” He can be blamed as someone of an infamous background. He could be seen as a foreign agent.
The Tribunal asked what [Ms F]’s family thought of their match. Her mother was opposed to her daughter marrying a Punjabi. It was a rare occurrence. I asked what would happen if the marriage went ahead. He said that they would threaten and “kill us.”
When he spoke with them her mother abused him, saying “If you do not leave her alone we will kill you.”
[Ms F] is in good health and [works]. She speaks Urdu as well as [Language].
I asked if she would be able to live in other parts of Pakistan. The applicant said that there was racism and it was not easy to live in another city. She is from Karachi.
The Tribunal enquired whether the applicant faced other risks in Pakistan. He said there was a land dispute with his uncle.
His brothers were in the air force and his father had served. There was persecution from the Taliban and he cannot live at risk.
The issue about the land arose from the time when his grandfather died. I asked why the sons had not received even shares. The applicant said that his uncle had been living with the grandfather in his house. The grandfather was an illiterate person and the uncle took the relevant documents and faked them. He obtained the grandfather’s thumbprint onto he documents and gained possession of the land for himself. The uncle had lived and worked on the land.
His father was in the air force and this was used as an excuse not to given him his share of the land. The fake documents were presented to his father and the local court (Jirga system) looked at the matter.
He said legally the land is “in my name.” Yet [Ms B]’s (the fiancée’s brother) and father where there and they were witnesses to support the uncle.
I enquired of the applicant whether there was anything else I need to know about the property dispute. He said the disputed land is passed on to him in a will. These documents were presented to the Tribunal. His brother was granted commercial property. Money from the land use was being transferred to the applicant.
I asked whether the applicant was a beneficiary under his grandfather’s will. He said the land was promised to him. The commercial properties however would go to his brother.
I asked whether his uncle’s interference was stopping him from being beneficiary. The applicant said his uncle did not want to give the property. I noted that there are a lot of disputes here, and perhaps uncle had tricked number of people. The applicant said that killing people is common to secure land. He said that fake documents were presented.
The Tribunal wondered whether this was a case of the applicant losing out in a dispute and that would be the end of the matter.
The applicant said that this was ‘our rightful share’ and his father would not have let this happen. He said we cannot leave it. He said it was a case of bribery. He said his uncle did not want to give anything. The applicant said ‘I’m an easy target’. His uncle can defame him as being a foreign agent and entice people to kill him.
I asked about the land and property in question and who was currently operating it. The applicant said it was ‘just sitting there’. The applicant said there were court cases pending. The applicant said ‘we can’t use it and they can’t use it’.
His father and brothers are parties to court cases. I asked whether he thought there was a high chance of being able to recover the property. He said that these cases will be ongoing. He says if the matter keeps going they will keep going with it. However, he said he might be forced to give up.
I asked if his uncle had ever threatened him. He said his uncle had not directly threatened him but this was because he did not have a telephone number. He said the uncle threatened via his father and brothers. His uncle had said ‘I will kill him’. His uncle has political connections. False charges will be created. The police kept his father in custody for two days. I noted however that his father nonetheless continued with the legal action. I noted that on his version of events his father might get himself killed, per the account of the applicant. The applicant said this was very much an issue. His father lives on an Air Force base and had protection. His brothers live in the Air Force Base. The applicant said however that he could not get some protection.
There is still violence taking place at official government facilities the applicant said. There are attacks of the Taliban for example and ‘not all people have the influence’ he said.
I noted that his family live on an air base and enquired as to whether they can leave it. He said his father lives with his brothers. When his brothers retire they will remain there. I asked if they spent every day of their life at the airbase. He said they have shopping centres at the airbase. I noted that his father must go to court and thus travel. He said his military status only protects in the case of remaining there.
I asked if his brothers and father were safe from threats of the uncle. The applicant said that yes, they were absolutely.
I asked how his uncle know if he was back in Pakistan. The applicant said if he returned he will be forced to live in the exact same area in that same village. He had no savings. His uncle has strong political influence. He said it is a deteriorating situation. His uncle can provide anyone with money. His uncles formed an alliance.
The applicant said his passport had expired. There were no supporting documents in the form of passport or ID because they had expired.
The applicant said he would be forced to go back to the village and re-establish himself. He had never tried to renew his passport at the High Commission or Consulate in Australia. His passport expired in 2016. This was because those having a refugee application cannot apply for a passport from Pakistan. The Pakistan High Commission or consulate will not grant him one for this reason.
I asked how the Tribunal would know a whether his uncle is not just someone who expresses his opinions very forcefully, and is simply a ‘talker’, (i.e. a talker rather than a doer).
The applicant said that his uncle is capable of extrajudicial acts. He created false claims. He convinced police to unlawfully hold his father for a two-day detention. He rigs elections. He said that his uncle will most certainly hit him and it is common to kill people in the name of property. The village will shame him if he loses the dispute. He would commit murder and no court would stop his grievance. The applicant asked how he could prevent this.
The applicant said his uncle used his influence to break anyone, get them killed and taken as a foreign agent. If his uncle does not kill him he will get police to do it on his behalf. He has given people money to kill. He cannot hurt his father because he presently has hypertension and is in a court case. The applicant said that he himself can be disposed of because he is unknown.
I noted that the applicant is not a party to the court case. The applicant said that after the property is secured it will become his inheritance. I said that the applicant had no direct involvement in the dispute. He said it was correct that he was not appearing but his father was on his behalf. I asked whether this meant that if his uncle killed him he would retain the property. He said this was not automatically the case but passing on of the property to the father would be denied.
I confirmed that the grandfather had three sons. I pointed out that resolution to the property dispute is possibly years away. The applicant said that if the uncle killed him after his father’s demise it would automatically transfer to the uncle. The Tribunal considered there to be a number of imponderables such as when the other uncles would die. If the uncle wins there is no need to harm because he would the obtain what he wanted. The applicant said that if he did not win the case he would challenge the matter in the Supreme Court.
I said that the applicant appeared to be a resourceful person who could get a responsible job in Pakistan. I asked why he would not be able to be successful in Pakistan. He said he had been living in Australia for 13 years. He was [an occupation 2]. He is [Age] years of age.
I suggested he might be able to secure a good job in a [workplace] in Pakistan for example he said that he was not capable of [specialised job task]. He said that for this sort of [job task] there was less scope smaller [workplaces] and its hard to make ends meet.
The Tribunal discussed the Taliban aspects of the his claims. I asked the applicant what the Taliban would have against him. He said that there was a lot of strife in Pakistan with the Army versus Taliban. He said that he would struggle in Pakistan because he grew up in an air force colony. He said he is known as being from an Air Force family.
I pointed out that if the family was protected as an armed services family what would happen to him. He said he could be targeted by his uncle and the Taliban.
I asked the applicant whether he ever had any threats from Taliban. He said in Pakistan no threats. However things have deteriorated. He is not able to return. I asked if anybody he knew had been threatened by the Taliban. He said that Taliban had made an attack on the school with hundred 40 children killed. This was an army school. These children had had an army background.
The applicant said that the political situation was bad and the former Prime Minister Imran Khan had been imprisoned. He said most civilians supported Imran Khan.
I discussed with the applicant [5.31] from DFAT’s Pakistan country report[1] which said that those with a Western country background had no significant risk. He did not agree and said Imran Khan had been falsely linked to the Jewish lobby.
[1] DFAT Country Information Report Pakistan 25 January 2022
The Tribunal discussed DFAT’s report regarding [2.46] Taliban [5.23] judiciary, and [5.24] internal relocation.
The Tribunal discussed where the applicant could live in relative security. He said that Islamabad is a diplomatic city. He said Karachi was a home city and did not like the Punjabis. He said Lahore was accessible to his ex-fiancée’s brother and his uncle.
He said if he went and lived somewhere even anonymously he has to tell the agencies why is living there. Otherwise he would not get access.
I asked how his uncle would know that he is back. He said that after six months he would know. He said he would find out by family. It is impossible to be in hiding. He would also need to return to his own village. He said he had no documents and he would need to visit the village to secure the papers.
The applicant’s representative said that migrants returning to Pakistan would face issues and internal relocation per the DFAT report. There are killings and he could be tracked and down. She said that living in Islamabad was cost prohibitive and that the applicant had no assets and little savings. He would also be away from family networks. This capacity to subsist would be drastically reduced. Lahore is accessible by family. There are no valid indemnity documents it was submitted. Australia would issue him with an ID. This may give him imminent risk. He has to get documents from his village and put himself in the line of fire. The applicant is very credible it was submitted. He made a 2015 protection visa application has been consistent the whole way through. His fears in Pakistan include problems from getting documents and court case documents, the family being in the Air Force, and there is no evidence that he is not credible. His protection visa should be granted on the grounds of his implied religious opinion and being in the Air Force category. In the area of the property dispute this could result in violence and killings. Blood feuds are arising from land disputes. The problems increased over the years and the security situation has worsened. There is no state protection. There is corruption and the judiciary is not reliable. There was a general election on February 8, 2024 and an increase in violence.
Findings & analysis
The Tribunal has considered the matters raised jointly and individually.
The Tribunal is prepared to accept the age and ethnicity of the applicant and that he is from a military family. I accept he is a Punjabi.
I accept that he is in relationship by long distance with a woman called [Ms F].
Breaking promised marriage agreement
His claim that he was betrothed without his knowledge is based on little but him saying so. Firstly he was in Pakistan when the betrothal occurred and he was told about it by his sister.
This raises questions about the level of seriousness by which such and arrangement is said to occur. The applicant submitted in writing that his parents contacted him and informed him that they wanted him to get engaged to his maternal cousin [Ms B], however he vehemently refused. In the hearing he said the first he had heard was when his sister told him.
The Tribunal has some doubts that there has been such a proposal or arranged engagement, or that it was meaningfully pursued by family. Yet for the purposes of this decision it assumes there was such an agreement, however structured, but that the prospect that there will be anything more than stigma from breaking it is remote.
Country information from the Canadian Immigration and Refugee Board is that stigma is the general limit of what would occur in the way of harm:
Speaking generally and without reference to the Pashtun community, the Joint Director indicated that a man who refused to accept an arranged marriage would be placed under great pressure socially and from his family and might have his family ties severed (ibid.). More serious consequences are unusual but would depend on the individual circumstances[2]
[Pakistan: The situation of men who refuse to participate in arranged marriages set up by their parents Canada: Immigration and Refugee Board of Canada 29 September 2009]
[2] >
The level of seriousness of the agreement is open to much doubt. The Tribunal notes that there have been repeated claims from the applicant that he has been threatened over the matter and some country information saying there are honour killings that affect men as well. While honour killings certainly occur and some affect men, I am not prepared to find that the risk is anything more than remote for the applicant. Firstly, the country information tends to place this as being rare occurrence. When it does occur certain country information including what has been submitted by the applicant states that the serious harm of being killed is a specific and discrete category as follows:
Male Victims of Honor Killings
In 2004, the number of female honor killing victims in Pakiistan was more than twice the amount of male victims. But while the vast majority of honor killing victims worldwide are women, about seven percent are men. Most male victims are killed by the family of the woman alleged to have been conducting an illicit relationship with the man.[3]
[3] Male Asylum Applicants Who Fear Becoming the Victims of ...CUNY Academic Workshttps://academicworks.cuny.edu › cgi › viewcontent
It is by no means certain that the applicant is seen to have been conducting an ‘illicit’ relationship with either of the women involved, although it might be a relationship that is not supported by family. There is an important difference here.
Secondly the applicant alone makes the claim. While he may be hamstrung in getting additional evidence and there may be fair reason for this, it can only be said that the absence of further evidence about his life does not aid his case. Finally there has been some passing of a decade since the claimed event, and it is a matter of common knowledge that time passing can cool a matter at least to some extent. This may not be true of everyone, but it remains a factor to the Tribunal’s mind. The claims that he will be killed or harmed by [Ms F]’s family are of a similar complexion and I make my finding in this regard as well that they would not go beyond stigma. While it is conceivable that the word kill was used against him, the Tribunal finds that it was not used as being anything more than a farfetched scenario where it or serious harm might literally occur.
Caste
The claim her is that the applicant faces harm because he is in a relationship with a Sunni from Punjab and belongs to the [Name] caste.
I consider DFAT’s most recent Pakistan report[4]:
RACE/NATIONALITY
3.1
Pakistan is home to five major ethnic groups and many smaller ones. According to the CIA World Factbook, the population is 44.7 per cent Punjabi, 15.4 per cent Pashtun, 14.1 per cent Sindhi, 8.4 per cent Saraiki, 7.6 per cent Muhajirs, 3.6 per cent Balochi, and 6.3 per cent others.
[4] DFAT Country Information Report Pakistan 25 January 2022
The Tribunal evaluates the prospect of harm as a victim of inter-caste violence of Muhajirs carrying out violence against him as a non- Muhajir with a Muhajir woman. It has little other than the individual account of the applicant on which to make a finding.
This claim, again is linked with the alleged form of honour violence that is being discussed which I have found (above) trends mostly towards women being victims, not men. This somewhat lessens his risk to the Tribunal’s mind. The Tribunal also evaluates the prospect of violence being carried out. Although the words like ‘kill’ and ‘kill you’ have been used, there is not level of satisfaction that this will translate into actual harm. Not everyone who says such things means it literally. Furthermore, I am not persuaded that such language goes beyond hurtful words. Not everyone who has family who take such a posture choose to spend time with them, live near them and contact them. I am not persuaded that the parties must have a connection with his fiancées family. Further, the Tribunal is not taking it as a given that the applicant will continue what is a presently a long-distance relationship upon return to Pakistan. This unknowable factor and the country information mentioned point towards this matter being remote and farfetched as a source of harm.
The uncle’s threats

The claimed result of the aggressive posture from the applicant’s uncle did not to the Tribunal’s mind resonate as being genuine. While there might be a property dispute and the Tribunal is prepared to accept that such a matter has been taken through legal processes, it is by no means clear what scenarios would involve the applicant if he had to return to Pakistan. The Tribunal is unable to speculate as to who is entitled to the property or properties in question. There could be a variety of outcomes. The applicant presumably might not obtain the land and income share that he is entitled to. If that is true, then he would have to pursue the matter or leave the matter. He is not under and obligation to pursue it. It may not be an easy life for him to not have asset in Pakistan but many people have low or no assets and of itself this is not persecution. It is not clear how this falls under s.5J Migration Act grounds as it is not a claim over race, religion, nationality or political opinion. As a claimed member of a particular social group claim it seems to be a case where the group is only united by a fear of persecution. In any event the claim is not satisfying the Tribunal as anything more than farfetched. It do not find him to be in particular social group, which shares a unifying characteristic that makes them cognisable in society. The matter will also be dealt with further in this decision under the topic of complementary protection.
Taliban, military
Further, the tribunal turns to the claim of the Taliban harming him, especially as he is of military identity.
The applicant is not a serviceman and never has been. I find he has military family members as described. I accept that he is estranged from them over his marital/family dispute. I accept he will not live with them and be protected in that way. However, it is an arduous task to assume that Taliban will know that he has military family members and will target him for that reason. While it is true that Taliban has targeted military facilities, there are a large number of military in Pakistan and associated family and this alone does not appear to be a prerequisite for facing persecution. To do so would be to cast a net so far and wide that it would potentially include 654,000 active personnel, plus 25,000–35,000 personnel in the Strategic Plans Division Forces and 482,000 active personnel in the various paramilitary forces[5]. Additionally, there would be the relatives and family of those individuals. This in and of itself is not a rational basis for finding that there is a real risk of serious harm.
[5] The International Institute of Strategic Studies (14 February 2017). The Military Balance 2017. Routledge, Chapman & Hall, Incorporated. pp. 319–320. ISBN 978-1-85743-900-7.
I also note that he has never been threatened by Taliban. The country information states accurately that where there have been terrorist and Taliban attacks on military personnel, they are not so widespread, and so regular and in such numbers that in and of itself his risk is anything more than remote. It is not evident that there is anything additional in his profile that would heighten the risk against him.
The applicant claims the police were bribed by the uncle who used his political connections to the Pakistan Muslim League Nawaz (PMLN) to have his father detained. While there is little evidential basis for concluding this to have occurred (other than the applicant making the claim), even if so it is by no means a risk the applicant necessarily faces. It is not known how far the uncle’s influence extends, whether having allegedly achieved the result once before it can necessarily be done again, and (as mentioned above) whether the applicant pursues the property matter when it is not necessarily going to lead to a positive outcome for him. I do not accept this claim as anything more than speculative.
I also do not accept that the applicant would not have access to identity documents including passports upon return to Pakistan. Firstly, it is not apparent that there is a policy of the Australian government for persons to be sent to their country of origin without appropriate documents. Secondly there is no evidence before me that the High Commission will not allow him to have a new passport and/or ID. No substantial country information has been submitted on this point other than an assertion, and I reject this assertion as not made out.
The Tribunal does not accept that the applicant will not be able to subsist in Pakistan. He has skills – he has [job task] skills and a responsible job in a prestigious division of [an employer]. His claims that [a specialised skill] is his only skill seems overly pessimistic and I do not accept that only [another job task] in lesser establishments. This to the Tribunal appears to be belabouring the distinction between [job tasks] and ignoring the ability of people to learn skills. His age is also comparatively young and he appears to be an able worker. It is also not shown that an absence of family support renders him unable to live in Pakistan. While I accept that he harbours concerns about his family disputation, I do not find that they prevent him from working. He has had a lengthy absence but it is not seen that as a Pakistani male with an education and multiple language skills he could not make adjustments to avoid significant economic hardship that threatens his capacity to subsist (the ability to continue to exist or remain in being). Unemployment sits at 6.9% in 2024,[6] which suggests that jobs are typically obtainable. I am unable to conclude that despite a diminished support network, he could not find work and support himself in this environment.
[6] Pakistan Unemployment Rate Data | Latest Data | Demographics on World Economics
As a Punjabi he has a number of locations where he might live, and the Tribunal does not nominate one fixed location as a suitable place. I do not accept that he cannot be in Punjab as I have disagreed with his claims about his harm risk from an uncle or other family or relations or future relations. Islamabad it is claimed without evidence is too expensive. I also am unable to see why he must go to his home town for administrative purposes as that is not apparent from country information and a plausible scenario where his passport is provided in Australia. Punjabis form the largest ethnic group (44.7 per cent) in Pakistan and there are numerous towns and cities in Punjab where life is potentially viable for him. Whether he unites with [Ms F] in Karachi or elsewhere, or at all, is to try to predict the course of a long-distance relationship, which cannot be done with any level of clarity. I am not satisfied that the ultimate ending up of the applicant in an ethnically fraught area for him will eventuate - there is negligible basis for the Tribunal to so find.
I accept that he does not wish to be in the air force district in Karachi in Sindh where family members reside. I note that he had lived in this area although his roots are in Attock in the north of the country, in Punjab. I accept that it is reasonable that he would not want to reside in the air force district in Karachi in Sindh because of conflict in the family. Nonetheless, I do not accept his claim that he has a real chance of persecution claim, but in any event find that more likely than not he will return to a place where such risks as he alleges do not arise. He has a previous connection to Punjab by his origins and find this is a more likely location for his return. His visa application form states that he resided in from [Birth] to November 2011 in Attock. I accept that he does not wish to be near his uncle in or near Attock because of conflict in the family. Nonetheless, I do not accept his claim that he has a real chance of persecution claim, but in any event find that more likely than not he will return to a place where such risks as he alleges do not arise. He studied in Rawalpindi according to his application which again is in Punjab. These to the Tribunal’s mind this is an example of the places within Punjab that arise on the facts as liveable for the applicant.
Treatment of returnees from Western countries and/or Australia
I have examined the applicant’s claimed status as a returnee from the West as source of harm. While I find that he would be considered as such the Tribunal’s examination country information runs counter to his claim that this is potential issue for him.
I refer to DFAT’s most recent Pakistan report [7]:
[7] DFAT Country Information Report Pakistan 25 January 2022
Conditions for returnees
5.28
Returnees tend to leave Pakistan on valid travel documents and therefore do not commit immigration offences under Pakistani law. Those who return voluntarily and with valid travel documentation are typically processed like any other citizen returning to Pakistan. The government issues ‘genuine’ returnees with temporary documents when they arrive. A genuine returnee is defined as someone who exited Pakistan legally irrespective of how they entered destination countries. Those who are returned involuntarily or who travel on emergency travel documents are likely to attract attention from the authorities upon arrival. Immigration officials will interview failed returnees and release them if their exit was deemed to be legal but may detain those deemed to have departed illegally.
5.29
People suspected of or charged with criminal offences in Pakistan are likely to face questioning on return, irrespective of whether they departed legally or not. DFAT understands that people returned to Pakistan involuntarily are typically questioned upon arrival to ascertain whether they left the country illegally, are wanted for crimes in Pakistan, or have committed offences while abroad. Those who left Pakistan on valid travel documentation and have not committed any other crimes are typically released within a couple of hours. Those found to have contravened Pakistani immigration laws are typically arrested and detained. These people are usually released within a few days after being bailed out by their families or having paid a fine, although the law provides for prison sentences. Those wanted for a crime in Pakistan or who have committed a serious offence abroad may be arrested and held on remand or required to report regularly to police.
5.30
Returnees are responsible for arranging their own onward transportation from their point of entry into Pakistan. Voluntary returnees may be eligible for assistance from the IOM and/or domestic NGOs. Returnees are typically able to reintegrate into the Pakistani community without repercussions stemming from their migration attempt, although involuntary returnees who took on debt to fund their migration tend to face a higher risk of financial hardship and familial shame. A small percentage of returnees do not reintegrate and go abroad again to seek asylum.
5.31
DFAT assesses that returnees to Pakistan do not face a significant risk of societal violence or discrimination purely as a result of their attempt to migrate, or purely because they have lived in a Western country. Nevertheless, DFAT notes societal or official discrimination or violence can still occur due to the reason they attempted to migrate, or because of behaviour or opinions they displayed while living abroad (see Race/Nationality, Religion, Political Opinion (Actual or imputed), Groups of Interest).
The Tribunal considers there to be only remote risk here, based on the fact that he has returned from a western country given the information from the reputable source of DFAT. I do not have reason to believe he is wanted for a crime anywhere or that he will be returned without valid documentation.
Covid-19

100. While there was a devastating resurgence of COVID-19 in India which impacted upon neighbouring Pakistan, recent statistics show Covid-19 to have been largely eliminated in Pakistan and poses negligible risk.[8] There is little basis for finding there to be foreseeable harm here.
Mental health
101. This has been raised in the hearing of the Tribunal differently constituted, but not elaborated upon subsequently in this reconstituted matter. I do not have a basis for finding that the applicant’s mental health brings about a well-founded fear and notes that there are mental health services available in Pakistan albeit limited ones, per the latest DFAT report at [2.14].[9]
[8] Pakistan COVID - Coronavirus Statistics - Worldometer (worldometers.info)
[9] DFAT Country Information Report Pakistan 25 January 2022
Complementary protection
102. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).
103. For the reasons set out above, the Tribunal has not accepted there is a real chance that the applicant will face persecution involving serious harm due to his relationship across another caste, refusal to marry a cousin, marrying against the will of family, having honour violence upon him facing Taliban caused harm, political harm, economic circumstances and inability to subsist, a lack of support, the security situation, family land disputes , perception of returnees from the west, being form a military family, the attitude of parents and relatives, or the impact of Covid-19 or mental health, or any other of the above claims if he returned to Pakistan now or in the reasonably foreseeable future.
104. In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of his being removed from Australia to Pakistan, the Tribunal has also considered the DFAT advice regarding the level of generalised violence in Pakistan, noting that in MIAC v SZQRB, the Full Federal Court held that the 'real risk' test imposes the same standard as the 'real chance' test applicable to the assessment of 'well-founded fear' in relation to the 'refugee' criterion.
105. Consequently, and having regard to the findings of fact set out above, and considering all evidence cumulatively, the Tribunal has concluded that the risk of significant harm to the applicant from the above is remote and not real. It follows that the Tribunal does not accept there to be a real risk that the applicant will suffer significant harm from extremist or terrorist groups, extremists, militants, or belligerent family members or relations, relatives and/or their sympathisers, government forces, criminal elements or anyone else as part of the societal violence, or for any other reason, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan.
106. In any event it would be reasonable for him to live in areas of the country described above where there would not be a risk of such harm.
107. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A) of the Act: s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
108. The courts have reasoned that the ‘real risk’ test aligns with the ‘real chance’ test. Inability to access services or employment – does not amount to torture, cruel or inhuman treatment or punishment, degrading treatment or punishment or arbitrary deprivation of life.
109. The Tribunal notes that the legislation requires that there must be intention on the part of relevant actors in order for harm to constitute significant harm in the form of torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.
110. It is not apparent from country information that this is because of an intention of the government. Instead, services are impacted by the state of the economy and lack of resources and underfunding rather than an intention to harm. DFAT [10]reports
[10] DFAT Country Information Report Pakistan 25 January 2022
Health
2.22
Basic health care in Pakistan is free, but limited capacity, lack of funding, corruption, slow economic growth and overarching governance challenges combine to reduce quality and accessibility. 2.23 Average life expectancy at birth in Pakistan is approximately 68 years (2018), compared to an average of 69 years (2016) across South Asia and 82 years (2018) in Australia. The elderly and people living with a disability have limited access to health care and to enabling devices to improve quality of life. Significant social stigma associated with disability in Pakistan further limits access as many families will not seek help outside the home. Social stigma also impedes access to health services for sexual minorities (see People who identify as LGBTI
2.24
Wealthier Pakistanis have access to better quality private health care. Rural areas have poorer access to health care services, compounded by a lack of infrastructure and transport facilities. Islamic religious practices, such as observation of the purdah, also restrict women’s activities outside the home and therefore create additional access barriers to health care for women and girls
2.24
Many religious and secular charities provide emergency relief, education and health services, but generally focus their support on the specific needs of their community or sect.

111. While the Tribunal acknowledges that it is very challenging for a person to live alone in Pakistan, the Tribunal is still bound by the terms of the legislative provisions where particular individual/s or group/s can be identified that lead to arbitrary deprivation of his life; or the death penalty being carried out on him, his being subjected to torture; or cruel or inhuman treatment or punishment; or degrading treatment or punishment. Identification of perpetrators of these matters would be a matter of speculation only. The Tribunal having discounted the prospect of family being perpetrators (per the above) is unable to extend to speculation about unknown third parties being possible perpetrators.
112. The Tribunal is not satisfied therefore that there is a real risk of significant harm in the form of torture, cruel or inhuman treatment or punishment or degrading treatment or punishment because of inability to access jobs, services or treatment as there is no intention by the state to cause such harm.
113. The Tribunal is also not satisfied that there is a real risk of significant harm in the form of arbitrary deprivation of life due to unavailability of jobs, services or treatment. There is no requirement for subjective intent applicable to ‘arbitrary deprivation of life’, but an element of deliberateness can be imparted into the words ‘arbitrarily deprive’. As there is no definition in the Act, the Tribunal has interpreted ‘arbitrary deprivation of life’ based on the ordinary meaning of the words, while also being guided by legislative intention as expressed in the Explanatory Memorandum and Second Reading Speeches to the relevant bills, and international and local jurisdiction.
114. ‘Arbitrarily’ is defined in the Oxford Dictionary of English as ‘on the basis of random choice or personal whim, without restraint in the use of authority’9 and in the Macquarie Dictionary as ‘subject to individual will or judgment, discretionary, not attributable to any rule of law, accidental, capricious, uncertain, unreasonable, uncontrolled by law, using or abusing unlimited power’.
115. ‘Deprive’ is defined in the Oxford Dictionary of English to mean ‘prevent (a person or place) from having or using something’11 and in the Macquarie Dictionary as ‘to divest of something possessed or enjoyed; dispossess; strip; bereave’ or ‘to keep (a person etc.) from possessing or enjoying something withheld’.
116. The Tribunal is not satisfied therefore that there is a real risk of significant harm in the form of torture, cruel or inhuman treatment or punishment, degrading treatment or punishment or arbitrary deprivation of life.

117. Similarly, the Tribunal is not satisfied that there is a withholding of state protection which would be faced by the applicant personally and that there would be an intentional withholding of protection.
118. The Tribunal is not satisfied therefore that there are substantial grounds for believing that as a necessary and foreseeable consequence of this applicant being removed from Australia to Pakistan there is a real risk that he would be arbitrarily deprived of his life due to crime or withholding of protection, or for any other reason claimed.
119. I do not accept that the applicant is at a more than remote risk of suffering significant harm, as defined in s 36(2A), in Pakistan at the hands of his family, or others and the absence of effective state protection.
120. The Tribunal is not satisfied that the applicant will suffer significant harm in the context of availability of mental health services and stigma and discrimination based on mental health status, although that has not been detailed or shown in any event. There is no suggestion any harm intentionally inflicted is due to denying the applicant services at the same standard as it is provided in Australia by the authorities in Pakistan that would amount to torture, to being subjected to cruel or inhuman treatment or punishment or to being subjected to degrading treatment or punishment. The Tribunal does not accept the real chances of stigma and discrimination in Pakistan arising from possible mental health problems to be faced by the applicant, amounts to serious harm.
121. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION

124. The Tribunal affirms the decision not to grant the applicant a protection visa.
Justin Meyer
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.
…

by C Steinke · 2013 · Cited by 14 — Caitlin Steinke, Male Asylum Applicants Who Fear Becoming the Victims of Honor Killings: The Case for. Gender Equality, 17 CUNY L. Rev. 233

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2215662 (Refugee) [2024] AATA 4267

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AWL17 v Minister for Immigration and Border Protection [2018] FCA 570

[2024] AATA 4267

6 March 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction