2301131 (Refugee)

2301131 (Refugee) [2023] AATA 4361 (28 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Mohammad Ajmal Malik
CASE NUMBER: 2301131

COUNTRY OF REFERENCE: Pakistan
MEMBER:Roslyn Smidt
DATE:28 September 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 28 September 2023 at 2:05 PM
CATCHWORDS
REFUFEE – protection visa – Pakistan – Federal Circuit Court remittal – particular social group – mixed religion and caste marriage – inconsistent accounts of marriage – delay in joining wife in Australia – rapid divorce – genuine relationship – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424AA, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 31 March 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who is a citizen of Pakistan, applied for the visa on 10 March 2016. The delegate refused to grant the visa on the basis that she was not satisfied his claims were credible.
The applicant applied for review of that decision and on 21 March 2021 a differently constituted Tribunal affirmed the delegate’s decision. 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 20 September 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu (Pakistan) and English languages.
The applicant was represented in relation to the review.
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–5LA, 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
NOTIFICATIONS REGARDING DISCLOSURE OF MATERIAL
On 1 March 2021, the Tribunal was notified by the delegate that s 438(1)(b) of the Act applied to information and documents contained in Department files relating to his protection visa application ([file number]) and his student visa application ([file number]). Apart from the different file numbers, the notices are identical.
The previous Tribunal noted that the notification relating to [file number] referred to the whole file and did not specify what information in particular was subject to s 438 of the Act. It also noted that the reason given by the Department for the issue of the notification was that “matters or information contained in the documents should not be disclosed to the review applicant(s) or their representative because they contain material provided to the Department in confidence as it is information that may not already be known to the review applicant and has not been provided by the review applicant themselves to the Department” and observed that the material provided to the Department in relation to that application was provided by the applicant or his agent and he would therefore be aware of the information.
The previous Tribunal informed the applicant of the contents of the notification, advised him that it appeared to be invalid and invited him to comment. He responded that the application was not prepared by a lawyer and added that his profession and everything else in his application are true and correct.
The previous Tribunal was of the view that this notification is not valid as it does not specify a reason that could form the basis for a claim to public interest immunity.
Apart from the file number, the notification relating to [file number] is identical to the notification relating to [file number]. At the hearing I advised the applicant of the existence of this notification. I advised him that in my view both notifications were invalid as there did not appear to be any information on either file of which he would have been unaware. I advised him that the only documents on [file number] which he had not provided related to his divorce and observed that he was already aware of this information. His response was confused but appeared to suggest that he had not been aware of his divorce prior to lodging his protection visa application. As discussed below, this is contrary to his evidence on other occasions.
Neither the applicant nor his representative made any submissions relating to the validity of the s 438 notifications.
In my view the notifications attached to the applicant’s Department files are not valid as they do not specify a reason that could form the basis for a claim to public interest immunity.
BACKGROUND
The applicant is [an age]-year-old divorced man of Sunni Muslim religion and [Caste 1] caste from [Village 1] in the Narowal District in Punjab in Pakistan. His parents both died after he arrived in Australia. His [specified family members] remain in Pakistan.
The applicant obtained a passport [in] 2013. He was granted a student dependent visa on 16 March 2015 and arrived in Australia [in] April 2015. He applied for protection on 10 March 2016. His application was refused by the delegate on 31 March 2017 and he applied for review of that decision on 28 April 2017. The first Tribunal held a hearing on 9 March 2021.
SUMMARY OF CLAIMS
The applicant claims he is at risk of serious physical harm from his ex-wife’s family who opposed their marriage because they are of different faiths (his ex-wife is a Shia Muslim) and castes (his wife is a [Caste 2]) and socio-economic status (his ex-wife’s family is better off and more powerful than his).
The applicant claims that he met his ex-wife, [Ms A], who was a student in Lahore, when she was visiting an aunt and uncle who lived near the village in which he lived in mid-2011. When her relatives found out they were in a relationship they tried to end it, but they continued to see each other and later married secretly. [Ms A’s] family then sent her to study in Australia in March 2014. The applicant joined her in April 2015, but they separated due to pressure from her family. They obtained a divorce in Pakistan in November 2015. Despite the end of the relationship the applicant believes he would be at risk of harm from her family if he returned to Pakistan.
FINDINGS OF FACT
After considering all of the relevant evidence, I am not satisfied that the applicant has provided an honest or accurate account of his relationship with [Ms A] or the problems which this caused.
Firstly, I found the applicant’s evidence regarding his employment and the manner in which he and [Ms A] first met lacked credibility.
According to the protection application lodged in March 2016, he worked at a [product 1] farm owned by his father in Pakistan. His duties involved [specified duties] and dealing with customers early in the morning and in the evening. He claimed that he first met [Ms A] when she came to the [farm] to buy [produce].
According to an affidavit signed by his father which was provided with his student visa application lodged on 27 February 2015, the applicant owned a [product 2] business called [Business 1] from which he earned a “handsome amount”. He provided a business card which named him as the proprietor of the company and photographs which appear to show him dressed in a suit at his place of business. According to the affidavit and other documents provided at the same time, his father owned a significant amount of farming land and earned an income as the landlord of that land. There is no suggestion of any direct involvement in [product 1] farming.
The first Tribunal put this information to the applicant in accordance with s 424AA of the Act and observed that it could lead to the conclusion that he was from a wealthy family in Pakistan and not the son of a [product 1] farmer as he had claimed, which also suggested that he had not met [Ms A] in the manner claimed. In response, he said that his father had owned two businesses, a [product 1] farm and a [product 2] shop. After he arrived in Australia his father died and his mother could not manage both businesses because she was alone and when he applied for protection his family only had the farm. As observed in the first Tribunal decision, according to his father’s death certificate he died in December 2020, long after he first applied for protection, and he has [siblings] in Pakistan which suggests that his mother was not left without support.
At the hearing I advised the applicant that I had significant doubts about his claim that he met [Ms A] when she came to buy [produce] from a [product 1 farm] owned by his father as it appeared that while his family may have owned farming land, they did not operate a [product 1] farm. In addition, it appeared that he owned a [product 2] shop from which he earned a significant income. In these circumstances it was not plausible that he would have been involved in [product 1 duties]. I observed that it therefore appeared that it was not possible that he had met [Ms A] when she came to the [product 1 farm]. I also observed that the fact that his family appeared to be relatively wealthy cast doubt on the claim that he had faced problems with [Ms A’s] family because they had much greater wealth and power than his family.
The applicant maintained that he was telling the truth about his work and the manner in which he met his wife. He said that he was helping his father at the [product 1] farm. He said that he had supervised the assistants who worked in the early morning because his father came later. He also looked after the customers. The [product 2] shop was next to the [product 1] farm. I asked why the [product 1] farm had not been mentioned in his student visa application and the [product 2] shop had not been mentioned in his protection visa application. He said that he had provided all the relevant information and maintained that he was telling the truth.
I do not accept that the applicant worked on a [product 1] farm owned by his father where his tasks involved [specified duties] prior to leaving Pakistan. He has not provided a plausible or persuasive explanation for the fact that the evidence provided with his student visa does not suggest that his father owned or operated a [product 1] farm at the time of his departure, but clearly states that he (the applicant) owned a [product 2] shop from which he earned a good income. And even if I accepted that the applicant’s father owned a [product 1] farm (which I do not) I find the claim that the son of a relatively wealthy man who also owned a successful shop would be responsible for [specified duties]. In reaching this conclusion I have noted the applicant’s claim at the hearing that he was at the farm to supervise others. However, there was no suggestion of this in his submissions prior to the hearing and I find that it is a late addition intended to overcome problems with earlier evidence.
As I do not accept that the applicant worked on a [product 1] farm prior to his departure from Pakistan, it follows that I do not accept that he met [Ms A] in 2011 when she came to the farm to buy [produce] while he was there [working].
Secondly, the applicant’s evidence regarding his relationship with [Ms A] in Pakistan was confused, contradictory and generally lacking in credibility.
According to a marriage registration certificate provided with the applicant’s student dependent visa application he was married on [a day in] November 2011, but the marriage was registered [in] June 2013. The nomination form 919 completed by [Ms A] and provided with his application also states that they were married on [the day in] November 2011.
According to the protection visa application form dated 10 March 2016, he began his relationship with [Ms A] on 10 May 2011 and they married on [the day in] November 2011 and divorced [in] November 2015.
According to a statement dated 10 March 2016 provided with that application, he and [Ms A] met sometime in December 2012. She lived in Lahore but was visiting relatives in the area. During the five weeks she remained in the area they spent time together and became friends. They remained in contact by phone after she returned to Lahore. During one of these conversations, he told her that he wanted to marry her but she said that her parents would not approve.
According to the statement [Ms A] visited her relatives in his village for two weeks from 1 February 2013. During that time they began a “spousal relationship”, but after a week he was unable to contact her. One day when he was near her relatives’ house her uncle threatened to break his legs if he came near the house again. [Ms A] sent a message telling him that her relatives knew of the relationship and they had taken away her telephone and told her to return to Lahore.
After she returned to Lahore, [Ms A] contacted him and invited him to meet her there. He went to Lahore for a week during which they decided to get married and tell their families later. He visited [Ms A] in Lahore another two or three times. Nobody suspected that they were continuing a relationship. They got married [in] November 2011. After that they returned to their homes.
About a week after the applicant returned to his home [Ms A] told him that she had told a female cousin about the marriage and her male relatives probably also knew. One day when he was working on the farm her cousins and some other boys attacked him with rods and sticks. Two days later her uncle and other [Caste 2] men came to his family home and threatened him. A few days later [Ms A] called to say that after her family had learned of the marriage, they beat her. She warned him not to visit her and not to remain in his home as her relatives were planning to attack him.
Following this he went to live elsewhere in [Town 1]. About three months later [Ms A] contacted him and told him that her parents planned to send her abroad. A few weeks later she told him that she was going to Australia and would contact him when she arrived. After she arrived in Australia, she told him to contact an agent in Lahore who made all the arrangements so he could join her in Australia.
A few days after he arrived in Australia [Ms A] told him that her parents had learned that they were in Australia together and had made threats. She said that they would have to separate to avoid further problems with her family who were also threatening to harm his family.
According to the delegate’s decision, during an interview held on 4 July 2016 the applicant said that he had made mistakes in earlier written submissions and the correct date for his marriage was [the same day, but in] November 2013. He also stated that he was assaulted by [Ms A’s] relatives on [a day in] April 2013, which he said was after he married, and again sometime in December 2013. The village head man warned his parents that he was in danger so they sent him to stay with an uncle in Lahore. After two weeks he returned to his village. [Ms A's] aunt gave him a letter about her travel plans for Australia and warned him not to follow. She also told the village head man he had returned. His family were told that they would all be kicked out of the village if he stayed, so he returned to Lahore where his uncle found him a job in a [factory]. About a week later he received a call from [Ms A] asking him to come to Australia.
During the hearing of the first Tribunal the applicant said that the details in his initial statement of claims were correct, apart from the date of his marriage. He said that he and [Ms A] got married on [a day in] December 2015 not 2013, then said that it was on [the day in] November 2013. The previous Tribunal advised the applicant in accordance with s 424AA of the Act that the marriage certificate which he had provided with his student visa application stated that he was married on [the day in] November 2011 and observed that he did not seem to be aware of the date of his marriage. He said that the date on the certificate was wrong and the correct date was [the day in] November 2013. In a written submission provided following the hearing his representative said that the date on the marriage certificate was a “typo mistake”.
When his relationship with [Ms A] was discussed, the applicant said that [Ms A] had spent three months in his village after they first met. He claimed that he had asked her to marry him during that stay. He initially stated that he had always lived in the same village in Pakistan, but then said that he had lived in Lahore for two or three months after he and [Ms A] were married and she would visit him there. Later he said that he could not speak to [Ms A] after they got married because she was under the control of her family, but also said that she had spoken to him at some time and told him that her family were sending her to Australia and he should go into hiding because they were looking for him. He said that he was in hiding in Lahore for four months, then returned briefly to his village after which he went to stay with a friend in Faisalabad.

At the hearing I observed that there were some significant inconsistencies in the evidence the applicant had provided regarding his relationship.
Prior to the hearing he claimed that he proposed to [Ms A] by telephone while she was in Lahore and that he proposed to her during her first visit to the village. During the hearing he said that he had proposed to her when she returned to the village after her first visit. I noted that he appeared to have given three different accounts of the proposal. He said that they had been in his village when he proposed.
I noted that he had given differing dates for their marriage and had claimed that the date on the marriage certificate was incorrect, which I found to be highly unlikely. His response was confused. He said that his father had obtained the marriage certificate provided with his student visa application and maintained the date was incorrect. He said that two weeks after they got married [Ms A’s] family found out about the relationship and they faced a lot of pressure. He had not been living in the village because he was afraid of being assaulted and they could not get their marriage registered until after the situation became more settled. I asked when the marriage had been registered. He said that he told his wife to register the marriage and failed to provide any indication of when this occurred.
I noted that he had given different accounts of when and where he and [Ms A] had spent time together in Pakistan. For example, he initially said that she was in his village for three weeks after they first met, but later said that she had remained in the village for three months on that occasion. He also claimed at different times that he spent two or three months in Lahore after their marriage during which [Ms A] visited him, but also claimed that they had little or no contact after they were married.
His response was confused. He said that [Ms A] used to come to the [product 1] with her aunt to buy [produce] and they spoke over a period of three months. I observed that this did not clarify what appeared to be differing accounts of the early days of their relationship. He said that [Ms A] was interested in seeing how the [produce was obtained] and after a time she came to the [product 1 farm] alone. When pressed to provide information regarding when he and [Ms A] spent time together in Pakistan he said that she had told him that she was in the village for three months and that they met over a period of about five weeks when she came to buy [produce]. Later in the hearing he said that he and [Ms A] were married in his village and that on that occasion she spent four weeks in the village, one before they married and three afterwards. [Ms A] stayed with her aunt during the visit. The marriage certificate provided suggests that this was in November 2011. According to the applicant’s evidence it was in November 2013.
I noted that he had given a very confused account of his own whereabouts between the time he first met [Ms A] and his departure for Australia in April 2015, stating at different times that he had always lived in his village, that he had spent several months in Lahore after his marriage, that he had lived and worked in Lahore immediately before he came to Australia and that he was in hiding in Lahore for four months and then moved to Faisalabad. His response was also confused. He initially spoke about [Ms A’s] whereabouts and actions. When pressed for information on his own whereabouts he said that after the relationship began, he was in the village and he spoke to [Ms A] by telephone. When asked for further clarification he said that he got a job in a factory.
I asked if he had ever spent more than a week in Lahore. He said that he and [Ms A] could not live together because her family had attacked him and he had been in hiding. I advised him that I was not ignoring his claims regarding the problems he had faced with [Ms A’s] family, but I needed him to clarify his whereabouts prior to leaving Pakistan. He said that the first time he was in Lahore was when he worked there for three or four weeks after he and [Ms A] were married. He saw [Ms A] several times during the period. The next time he went to Lahore was to meet the agent who was arranging his student dependent visa after [Ms A] came to Australia. I asked if he had spent time in Faisalabad. He said that he went there a few weeks after [Ms A] went to Australia because he had been attacked in his village.
I acknowledge that it is now over 10 years since the applicant claims to have begun a relationship with [Ms A] and that it is not uncommon for applicants to be confused about the precise date or nature of past events. However, there are major inconsistencies in the applicant’s evidence in relation to significant matters such as when he and [Ms A] married which in my view cannot be disregarded for these reasons. I find his inability to provide a reasonably coherent and broadly consistent account of the development of his relationship with [Ms A] and his whereabouts prior to his departure from Pakistan a strong indication that he has not provided an honest or accurate account of his relationship with [Ms A] prior to leaving Pakistan.
Thirdly, the applicant appears to have a limited knowledge of [Ms A’s] background which casts doubt on the claim that they were married.
During the first Tribunal hearing, he was unable to answer questions regarding her date of birth or what she was studying. When I reminded him of this at the hearing, he said that he had been unable to recall at the time because he was stressed, he did not know much English and he did not go out much in Pakistan. I noted that he and [Ms A] would have communicated in Urdu and observed that he appeared to have owned a business in Pakistan. He said that the business was run by his father and he had just helped. I noted that this was at odds with the information provided with his student visa application and asked if he was suggesting the information provided with his student visa application was false. He said that the information was provided by his father and provided no further clarification.
The applicant’s apparent lack of knowledge of these aspects of [Ms A’s] life is a relatively minor matter and considered in isolation would not have caused me to doubt the substance of his claims. However, in light of the many problems with his evidence I find it a further indication that he has not provided an honest account of his relationship with [Ms A].
Fourthly, despite claiming that he was at risk of serious harm and that [Ms A] wanted him to join her in Australia the applicant remained in Pakistan for about a year after her departure.
The applicant’s statement dated March 2016 suggested that [Ms A] was concerned for his safety and had begun arrangements to sponsor him to join her in Australia shortly after she arrived in March 2014. I asked him at the hearing why he had not left Pakistan until nearly a year after she left. He said that he was in hiding in different places. He and his father were in contact with the agent but he did not have all the documents and he was afraid to meet the agent because he feared he would be attacked.
As discussed above, the applicant’s claims regarding his whereabouts prior to his departure from Pakistan were confused and unconvincing. Furthermore, even if I accept that [Ms A] came from a powerful family it is not plausible that the applicant would have been so fearful of their capacity to harm him that he was unable to meet or communicate in some other way with an agent helping him to obtain a visa for Australia. I also note that documents on his student visa application related to [Ms A’s] student visa or the property which he and his father owned, neither of which appear to have been difficult to obtain.
I do not accept that the applicant remained in Pakistan for nearly a year after [Ms A] departed for Australia because he was unable to lodge an application earlier for the reasons claimed above. I find this failure to apply for a visa to join [Ms A] as soon as possible after her departure a strong indication that he was not fearful of harm in Pakistan and that his claims lack credibility.
Fifthly, despite only holding a temporary visa the applicant did not seek protection in Australia until a year after his arrival and his explanation for this was confused and unpersuasive.
The first Tribunal advised the applicant that the fact that the applicant did not apply for protection in Australia in a timely fashion cast doubt on the claim that he was at risk of harm in Pakistan. The applicant said that he had not understood the process involved. He also said that he had been busy working in order to pay [Ms A’s] school fees and he had not expected that they would separate. The first Tribunal noted that he had stated that they had separated a few days after he arrived in Australia. He said that they had been together for eight or nine months after he arrived in Australia, then that they were together for about five or six months, then that they were together for exactly four months.
At the hearing I advised the applicant that I also had concerns about his failure to apply for protection in a timely manner. I observed that the claim that he had delayed applying because he was still in a relationship with [Ms A] was at odds with information in his initial statement that they had separated almost immediately after he arrived in Australia. I noted that his changing evidence regarding when the relationship ended suggested that he was not providing an honest account of their relationship. I also noted that the claim that he had delayed applying for protection because he was illiterate and did not understand the processes appeared to be untrue as he appeared to be reasonably well-educated and could have sought advice if he genuinely feared for his life on return to Pakistan. In response the applicant said that after [Ms A’s] family found out that they were living together in Australia they attacked his family and pressured her to end the relationship. I observed that this appeared to make it even more likely that he would seek protection. He said that [Ms A] was very close to her mother and so they separated. He added that they had lived together for a few weeks, then he had to go to [Town 2] for work. I asked when [Ms A] had told him their relationship had ended. He said that he thought it was about six or seven months after he arrived.
I acknowledge that even reasonably well-educated applicants may not be aware of how to seek protection in Australia and I might perhaps have accepted that the applicant thought providing for his wife was an urgent priority after arriving in Australia if this had been the only problem with his claims. However, this is not the case. He has not provided a coherent and broadly consistent account of his relationship with [Ms A] in Australia and I have great difficulty reconciling the applicant’s claim regarding the lengths to which he and [Ms A] went to be together in Pakistan with his evidence that they spent very little time together in Australia when they finally had the chance to do so. I find his failure to seek protection until March 2016 another indication that he has not provided an honest or accurate account of their relationship and his reasons for seeking to remain in Australia.
Sixthly, the applicant has given a confused and unconvincing account of how he obtained a divorce from [Ms A].
According to the application lodged in March 2016, he and [Ms A] were divorced [in] November 2015. The first Tribunal observed that he and [Ms A] were living in Australia at that time and asked how the divorce had been arranged. The applicant said that he contacted his brother who organised everything and sent him the divorce documents. The Tribunal observed that the fact that he and [Ms A] divorced so soon after he arrived in Australia suggested that their marriage was not genuine. The applicant said that he was not aware of the processes involved. All the paperwork was done by [Ms A] because he was illiterate and could not organise things.
At the hearing I asked the applicant how he had obtained a divorce. His evidence was very confused. He said that his father had made the arrangements, then said that [Ms A’s] family had made all the arrangements and forced his father to co-operate. When asked if his father had told him about this, he said that his father suggested he remain in Australia and added that [Ms A] had told him about the divorce at some time while he was in [Town 2]. He said that about a week before his visa was due to expire, [Ms A] had told him she could not help him anymore.
I noted that it appeared that a divorce in Pakistan required the husband to provide notice in front of witnesses and his wife and that there is then a waiting period of 90 days before the divorce was finalised, which suggested that he must have initiated divorce proceedings in about August 2015. He said that he had no idea about procedures. He said that when [Ms A] ended the relationship, he did not speak the language and did not know what to do. He said that he only learned about the divorce when the delegate asked him to provide documents.
According to DFAT[1] corruption and fraud are major problems in Pakistan and it is perhaps possible that [Ms A] and her family would have been able to arrange a divorce outside the normal channels if they were powerful and the applicant’s family was not. However, as discussed above, I do not accept that the applicant has provided an accurate account of his family background. In addition, he has given contradictory accounts of how the divorce was arranged and when he became aware that his marriage had ended. I note that he mentioned the divorce in the application lodged in March 2016, which suggests that he did not become aware of it when responding to a request for more information from the delegate. In these circumstances I do not accept the applicant had provided an honest or accurate account of the end of his marriage or his divorce. I find this to be another strong indication that he is not a credible witness and has not provided an honest account of his reasons for wishing to remain in Australia.
[1] DFAT Country Information Report, Pakistan, 25 January 2022
Finally, I found significant aspects of the applicant’s account of the nature of his relationship with [Ms A] implausible.
At the hearing I reminded the applicant that the first Tribunal had found his claims regarding how he and [Ms A] were able to meet and spend time together implausible and advised him that I had similar concerns. I noted that according to DFAT and others, Pakistan is a conservative Muslim country and in general young women face severe restrictions on their personal, social and economic activities outside the home. While it appears that middle class urban women may have greater freedom than those in rural areas, the applicant’s account of the reaction of [Ms A’s] family and relatives when they learned of the relationship suggests that they are not particularly liberal in their attitudes.[2] I observed that this suggested that he may have provided an inaccurate account of his relationship with [Ms A].
[2] DFAT Country Information Report, Pakistan, 25 January 2022 pp 31 and 32
The applicant agreed that Pakistan was a conservative country which placed restrictions on the behaviour of women. He said that [Ms A’s] relative freedom was a new thing for her. As a guest she did not have as many restrictions while staying with her aunt as she would have had at home. She told her aunt she wanted to go alone to buy [produce] and liked seeing the animals. She also used to speak to her aunt about him and told her that he was a nice guy. He added that they used to go to the market together.
I acknowledge that even in a conservative Muslim country there are likely to be differences in attitudes from one family to the next and I would not have rejected his claims merely because of [Ms A’s] ability to pursue a relationship with him, albeit perhaps in secret. However, I find it highly unlikely that [Ms A] would have had greater freedom of movement while living with relatives in a rural area as this is at odds with DFAT advice which suggests that rural areas are more conservative than urban areas and as discussed above, this is not the only problem with the applicant’s evidence. In this context, I find the fact that the applicant’s evidence regarding at least some aspects of [Ms A’s] claimed behaviour is at odds with other evidence regarding the attitudes towards women in Pakistan another indication that his claims are not credible.
Findings
After considering all of the evidence I do not find the applicant to be a credible witness. I find that he has not provided an honest or accurate account of his reasons for seeking protection in Australia. The exact nature of his relationship with [Ms A] remains unclear. I do not accept that he was in a genuine romantic or spousal relationship with [Ms A] at any time or that any of his claims regarding being threatened or harmed by members of [Ms A's] family to prevent them continuing their relationship or to force them to separate and divorce are true. I believe that he and [Ms A] entered a relationship of convenience for the sole purpose of obtaining a visa to enable him to enter Australia and that the claims regarding threats or attacks on him or his family were all fabricated to support his application for protection. In reaching this conclusion I have considered the marriage and divorce certificates provided by the applicant. However, even if these documents are genuine, they do not alter my finding that the relationship between the applicant and [Ms A] was entered into so he could obtain a visa for Australia and his claims regarding problems with her family are untrue.
I do not accept that the applicant left Pakistan because he feared serious or significant harm from [Ms A’s] family or anyone else. There is no credible evidence before me which suggests that he is currently of adverse interest to anyone in Pakistan and I am not satisfied that there is a real chance that he would suffer serious or significant harm for any reason if he returned to Pakistan now or in the reasonably foreseeable future.
Does Australia have protection obligations to the applicant under the refugee criterion?
There is no credible evidence before me which suggests that there is a real chance that the applicant will suffer serious harm for any of the reasons set out in s 5J(1)(a) of the Act if he returns to Pakistan now or in the reasonably foreseeable future. Therefore, I am not satisfied he has a well-founded fear of persecution and find he is not a refugee as defined in s 5H of the Act. Accordingly, I find that he does not satisfy the criterion in s 36(2)(a) of the Act.
Does Australia have protection obligations to the applicant under the complementary protection criterion?
As I have found that the applicant does not meet the refugee criterion in s 36(2)(a) I have considered whether he may meet the criterion for the grant of a protection visa pursuant to the complementary protection criterion.
There is no credible evidence before me which suggests that there is a real risk that he would suffer significant harm for any reason if he returned to Pakistan. I am therefore not satisfied that 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 as defined in s 36(2)(aa).
CONCLUSIONS
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 criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Roslyn Smidt
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.
…

[2023] AATA 4361

28 September 2023

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