1415442 (Refugee)

[2015] AATA 3331

1415442 (Refugee) [2015] AATA 3331 (17 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1415442

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Susan Pinto

DATE:17 August 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 17 August 2015 at 3:51pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is a citizen of Pakistan. She is aged in her early [age]. She first arrived in Australia on a Subclass 676 (Visitor) visa [in] April 2013. She returned to Pakistan [in] April 2013 and again arrived in Australia [in] August 2013. She again returned to Pakistan in November 2013, returning to Australia in December 2013. The applicant’s husband is also residing in Australia. She gave birth to a daughter in Australia in December 2014. Her daughter is not included in the application.

2. The applicant applied to the Department of Immigration for the Protection visa [in] January 2014. The applicant essentially claimed that due to her involvement in promoting women’s education she and her family were harassed and harmed by the Taliban.

3. The delegate of the Minister for Immigration refused to grant the visa [in] August 2014. The delegate stated that the applicant was given considerable opportunity to provide details of her claims when she was interviewed, but failed to do so. The delegate also stated that she failed to mention significant aspects of her claims as set out in her application, and that her return to Pakistan on two occasions was not consistent with her claims to fear harm from the Taliban. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

4. A summary of the relevant law is set out in an attachment to this decision. The issues in this review are whether the applicant has a well founded fear of persecution in Pakistan for one or more of the five reasons set out in the Refugees Convention and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Pakistan, there is a real risk that she will suffer significant harm. The Tribunal must consider, therefore, whether the applicant has a well founded fear of persecution. If the Tribunal is not satisfied that the applicant has a well founded fear of persecution, the Tribunal must consider whether there are substantial grounds for believing that as a necessary and foreseeable consequence of her being removed from Australia that there is a real risk that she will suffer significant harm.

   CLAIMS AND EVIDENCE

   Application to the Department

5. The applicant indicated on the application form that she was born in [the] Khyber Paktunkhwa region of Pakistan. The applicant stated that she speaks, reads and writes Urdu and Pashto and she speaks reads and writes English (limited).

6. The applicant was married in [Pakistan] [in] January 2012 when she was [age] years of age. The applicant indicated that her husband’s name is [name deleted] and he was [age] years of age at the time of their marriage.

7. The applicant provided a statement when lodging her application in which she stated that she studied until [grade]. She states that from her childhood she observed that women in Pakistan are deprived of education, liberty and there is a strict restriction on their movements. The applicant states that her family is very open minded and liberal and she worked in her father’s family business. The applicant was married [in] January 2002. She states that her husband is an educated person and encouraged her to do what she wished for work and education. After her marriage, her husband was very co-operative and supported her desire to study. The applicant wanted the local girls in her village to be educated and make informed decisions about their lives and not be a “mere puppet”. The applicant states that women in her area were forced to wear the niqab (full veil) even though the religion does not call for such a burden. The applicant refused to wear the niqab and wore moderate clothing. She used to go to school but when the Taliban came into their area they threatened their school and this put a stop to her education.

8. The applicant states that the army conducted an operation in their valley against the Taliban and they were displaced from their homes. In the past few years, the Pakistan Army has launched various military operations to defeat the Taliban. The applicant refers to the political situation in her region and states that by early February 2009 the Taliban had managed to control most of the Swat valley. On 16 February 2009, the government announced that it would allow Sharia law and a Sharia appellate bench of the Supreme Court was set up in the Malakand region. Her father was persuaded by the extremists to force her to wear the full veil. The applicant’s safety was compromised and she and her family left their area for a while and the applicant stopped attending school. When she tried to attend again “most of the schools would not accept her” as the Taliban threatened to destroy the schools if girls attended. The applicant states that she kept working for her father’s business and she helped him with the accounts. She also started teaching little girls from her area to read and write. When the Taliban found out about this they threatened her father. Her father told them that the applicant is “just a kid”, but they did not listen and her father was bashed and threatened.

9. The applicant’s father came home and asked her to stop teaching girls because it was dangerous for their family. The applicant told him that the little girls deserve to learn how to read and write and they should not “bow down” to the Taliban. After a week, one night the men “barged into our house” and they tied up her father and grabbed her by the head and put a gun to her head. They were furious that the applicant had defied their orders and told her they would take her to another place and kill her in a public area. Her father pleaded with them and offered them some money and promised it would not happen again. They hit the applicant with their guns and her head started to bleed. She woke up in hospital the following morning and her father told her when she passed out on the floor they did not bother to pick her up.

10. After that time, the applicant’s father begged her to stop teaching girls to read and write. She did stop, but after that time the Taliban did not leave them alone and would come and check on them and abuse them. Her father was very upset and he found a nice family and arranged for her to be married. As this was the only way the Taliban would leave them alone. After her marriage, the applicant would take to other women and persuade them to educate their children especially their daughters and tell them that educated women make good mothers and it is a key foundation to a successful and prosperous society.

11. The applicant came to Australia in April 2013 and left again in July in order to meet her husband. He asked her to return because he told her that the situation had improved. However, in August 2013 one night the Taliban came and broke the door of her house and they dragged her by the hair and said that they will kill her if she is “making the other women and girls infidel with my poison”. They started hitting her but nobody came to assist her. The applicant passed out and the next morning she went to the police. The police told her that they could not protect her. They told her to return to her husband and not return to Pakistan. She had no choice but to leave the place she loved. The applicant states that she has undergone a lot of persecution and believes that she is in danger as a result of her views and support for women’s education.

12. The applicant was interviewed by the delegate [in] August 2014. The Tribunal has listened to the CD Rom recording of the interview and is satisfied that the summary of the applicant’s evidence as set out in the decision record is accurate.

    Application for review

13. When lodging the application to the Tribunal, the applicant provided a copy of the delegate’s decision record.

14. The applicant also provided a statement to the Tribunal in which she responded to the findings made by the delegate. The applicant states that the delegate made her findings based on her personal views and she “erred in her conviction about Pakistan”. The applicant states that nowhere in Pakistan is safe and the Taliban is “after women” and obsessed with making examples of females. The applicant states that the delegate does not understand the situation for women in Pakistan and the country information consulted by the delegate shows that there is a growing threat in Pakistan from the Taliban and the army and authorities have failed “miserably” and people are being killed every day. The applicant states that as a “women right activist” she has been under constant threat.

15. The applicant refers to the death of 14 women at the Sardar Bahadur Khan Women’s University and states that it this is acknowledged by the delegate but she “simply cut paste chunks of evidence” and failed to properly consider her claims. The applicant states that she has tried to save her liberty at all costs and this means avoiding going to the authorities because they are sympathetic towards the Taliban. The applicant states that her motivation for seeking protection is “nothing short of a woman trying desperately to save her liberty, respect and life”. The applicant states that she is “tired of running and scared to death” and she was initially of the opinion that the Taliban would be killed by the army and she would not have to apply for protection, but they kept coming and the terror is growing by the day. The applicant states that she is shocked and saddened by the delegate’s decision and she hopes that the Tribunal will be “empathetic, rationale and impartial”. She hopes she can continue to live in peace and raise awareness of the plight of Pakistani women whilst living in Australia.

16. The applicant appeared before the Tribunal to give evidence and present arguments at a hearing held on 12 August 2015.

    ASSESSMENT OF CLAIMS AND EVIDENCE

    Does the applicant have a well founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention?

17. As stated above, the Tribunal must consider whether the applicant has a well founded fear of persecution in Pakistan for one or more of the five Convention reasons. Having considered all of the evidence, the Tribunal accepts that although the applicant subsequently completed [grade], she was forced to cease her schooling and employment with her father for a period of time due to the conflict in the Swat region of Pakistan. The Tribunal also accepts that the applicant’s family was disrupted during that period due to the presence of the Taliban in the region and the conflict between the Pakistani security forces and the Taliban. The Tribunal does not accept that the applicant or her family were specifically targeted by the Taliban or she genuinely fears harm from the Taliban upon her return to Pakistan. The Tribunal’s consideration of the evidence and its reasons for reaching those conclusions follows.

18. The Tribunal firstly considers that there are significant discrepancies between the applicant’s written and oral evidence in relation to significant aspects of her claims. As indicated above, the applicant claimed in her written statement that she was attacked by the Taliban on two occasions, such that she passed out and was hospitalised and she also claimed that her father had been bashed and threatened. However, when asked at the Department interview for further details of her claims and her experiences in Pakistan, the applicant continually referred to the current situation in Pakistan and, despite considerable questions and prompting by the delegate, she stated only that the Taliban had approached the family home on several occasions and asked for money and they had issued verbal threats. Similarly, during the hearing the applicant was asked for further details of her experiences in Pakistan and what had happened such that she feared harm from the Taliban, and her evidence remained inconsistent with her written claims. The applicant told the Tribunal that when she returned to Pakistan from Australia in July to August 2013 she stayed in her village for only two to three days and she then went to a hotel in Islamabad where she stayed until she returned to Australia about 25 days later. The applicant stated that she did not stay in her village because she found out that she was in danger and her husband told her she should leave the village and stay in Islamabad. The applicant also stated that the Taliban targeted her because she had a successful job working with her father and when she returned they believed she had been working and studying in Australia. When asked for further details as to what had happened in her village, the applicant stated that the Taliban contacted her father and [relative] and asked them for money, and there is no police presence and they support corruption. When again if she could be more specific about what had happened in her village in relation to the danger she had spoken of, the applicant stated that the Taliban contacted her family and asked for money and they told her family that they will “kill your daughter”. They planned to come to her home and kidnap her, but the people in her village stopped them from kidnapping her and protected her. When asked how they protected her, the applicant stated that about three men came to their village but there were a lot of people to protect her. When asked whether she had any other difficulties or problems from the Taliban the applicant stated that they had contacted her father and told him she should not work in his business and she should not continue with her studies. The applicant confirmed that nothing further had happened to her in Pakistan. When advised of the inconsistencies in her evidence between her written and oral claims, the applicant stated that she had to stop her studies in 2011 due to the Taliban.

19. The Tribunal also considers that although the applicant had stated in her written claims that she had been active in promoting women’s rights and teaching young girls to read and write, resulting in her being hospitalised and her father beaten, and she further claimed in her most recent statement that she is a women’s rights activist, she did not mention these claims when asked by the Tribunal a number of times why the Taliban would have had any interest in her. When asked about this by the Tribunal during the hearing, the applicant stated that they were interested in her because they thought she had been studying and working in Australia and it was not acceptable for her to do so because girls are not allowed to study. She also referred to her previous work with her father and the fact that she studied until [grade].

20. The Tribunal does not accept that the applicant was assaulted or harmed in Pakistan by the Taliban, either before or after her arrival in Australia or that she was specifically targeted because of her education and employment in Pakistan or the perception that she had worked and studied in Australia. Nor does the Tribunal accept that her father was assaulted or harmed by the Taliban. As indicated above, the applicant appeared to be unfamiliar with her written claims when she was asked to provide details of her experiences in Pakistan during both the Department interview and the Tribunal hearing. The Tribunal considers that these claims have been manufactured to assist the applicant to obtain protection in Australia and the significant discrepancies between her written claims relating to two serious assaults, and her evidence to the Department and the Tribunal, where she failed to mention these assaults and made a different set of claims regarding an attempted kidnapping, is indicative of the fact that these claims were manufactured. The Tribunal is prepared to accept that the applicant’s father was asked for money by the Taliban for support, but does not accept that the applicant or her family were of any interest to the Taliban or that they or her [relative] were threatened or harmed at any time. The Tribunal does not accept that the applicant was a “women’s rights activist” or that she had any involvement in teaching young girls in Pakistan to read or write. Although the Tribunal accepts that the applicant was working with her father and ceased her studies after [grade], and may have been reluctant to pursue her studies at that time due to the unstable security situation, the Tribunal does not accept that it was because she had been threatened or harmed by the Taliban.

21. The Tribunal is strengthened in its above findings by the evidence indicating that the applicant returned to Pakistan on two occasions after her initial arrival in Australia. When asked about her return visit to Pakistan in November to December 2013, and why she would return to Pakistan for a second time if she had on her previous visit been forced to flee to Islamabad as a result of threats from the Taliban, the applicant stated that she returned because she was on a Visitor visa in Australia and she needed to reapply for another visa. When asked why she would not have applied for protection when she first arrived, the applicant stated that she thought the situation would get better but when she went back the second time she realised that the situation had not improved. When the Tribunal expressed its doubts that she would return to Pakistan rather than applying for protection in Australia, the applicant stated that she applied for a visa for [another country] but she was unsuccessful so she returned to Pakistan and realised that the situation was worse than before and she stayed in hotel for the whole time.

22. The Tribunal does not accept that it is credible that the applicant would have returned to Pakistan at any time had she been threatened by the Taliban. The Tribunal does not accept she was required to return due to her visa. As discussed during the hearing, the applicant could instead have sought protection in Australia had she genuinely feared harm from the Taliban. The Tribunal considers her actions in returning are highly inconsistent with her claims to have been threatened and she and her father and [relative] harmed by the Taliban. The Tribunal does not accept, having considered all of the evidence, that the applicant had any direct contact with the Taliban or that she or her family were ever specifically threatened or harmed or that she was in hiding in a hotel in Islamabad when she returned to Pakistan. The Tribunal considers that the applicant has lodged an application, for which she is largely unaware of the content and statement of claims, because she and her husband have concerns regarding the outcome of a Skilled visa application which he lodged some two years ago. Although the applicant indicated that she was unaware of the type of visa her husband had applied for and denied that this application has been made as a “back up” the delegate’s decision record indicates that the applicant her husband has made is for a Skilled (Subclass 886) visa. The Tribunal is drawn to the conclusion that the Protection visa application has been made and claims manufactured by the applicant and her husband in an attempt to secure their future and their daughter’s future in Australia.  

1. The Tribunal has not accepted the applicant’s claims regarding past harm. However, the Tribunal must nevertheless consider the situation for the applicant upon her return to Pakistan. When asked why she is unable to return to Pakistan, the applicant focused on her concern for her young daughter and her wish to continue her studies in Pakistan. When the Tribunal commented during the hearing that she completed her studies in [year] and did not pursue any studies before she departed Pakistan which was in 2013 and this may indicate she did not intend to undertake further studies. The applicant stated that she wished to continue her studies but could not do so due to the danger. She also stated that she married in 2012 and although she wanted to continue her studies in Australia she had a visa which did not allow her to study and she has since had a baby. The applicant plans to undertake studies in the future and will do so after her child is old enough to be placed in child care. The applicant stated that she obtained the enrolment forms for a College but due to the security situation in Pakistan she did not commence her studies and she instead worked with her father.

2. Although the Tribunal does not accept that the applicant has suffered serious harm in the past or that she is of any interest to the Taliban, the Tribunal has considered the situation for the applicant upon her return to Pakistan. The Tribunal firstly accepts that although conditions have improved significantly in Swat following the military offensive in 2009, the “most potent security threat” remains the mostly Pashtun Taliban in parts of Khyber Pakhtunkhwa which operates under the banner of the Tehreek-e Taliban Pakistan (TTP). There also continue to be incidents of religious, sectarian and communal violence throughout Pakistan.[1] However, the Department of Foreign Affairs and Trade (DFAT) has reported that the primary target of terrorist groups in areas such as Khyber Pakhtunkhwa and some other regions of Pakistan are Shia Muslims; politicians, police and security forces.[2] The independent evidence also indicates that the Pakistan government continues to undertake military offensives against the Taliban which remains a banned group in Pakistan.[3] The Tribunal accepts, therefore, that there remains some Taliban presence in the Khyber Pakhtunkwha region and incidents of violence, although these are generally directed at minority groups, government targets and the police.[4] However, the Tribunal is satisfied that there is only a remote chance  of the applicant, a married Sunni woman who has the support of her family in her home region and whom the Tribunal has not accepted has suffered harm in the past, suffering serious harm upon her return to Pakistan.

   [1] Department of Foreign Affairs and Trade 2015, Country Report: Pakistan, 14 April, p. 8 states that minority groups are disproportionately the victims of sectarian violence. See also for example, Zahir Shah Sherazi, Pakistan: Suicide Blast near Imambargah kills nine, injures 50 in Peshawar, Dawn, 4 February 2014, CX317826; Pakistan, Violent Militant Sunni group, Jundullah, sets its sight on Pakistan’s minority religions, AP, 25 September 2013, CX317821.

   [2] Department of Foreign Affairs and Trade 2015, Country Report: Pakistan, 14 April, p.8.

   [3] Department of Foreign Affairs and Trade 2015, Country Report: Pakistan, 14 April, p.8.

   [4] See for example, ‘Pakistan: No respite: even in the month of fasting, no respite from drive by shootings and bomb attacks’, The Express Tribune (Pakistan), 28 July 2014 (CS323772); Pakistan Suicide blast in Peshawar: Death toll rises to 11’, Dawn News Group, 14 March 2014, CX318941.

3. The Tribunal has considered the applicant’s claims in relation to her desire to continue her higher education, and her claims regarding the restriction of her rights and the requirement to wear the niqab. The Tribunal accepts that women’s rights are severely curtailed in Pakistan and the Taliban has been responsible for a range of human rights abuses against various groups in Pakistan and elsewhere, and the Pakistan authorities have generally been ineffective in providing protection to persons targeted by the Taliban. The Tribunal also accepts that there are reports of women who are activists or teachers being abducted and that there is a generalised lack of respect for the rights of females in Pakistan by the Taliban and some other sectors of society.[5] The Tribunal accepts that the Taliban considers the education of girls and women to be “un Islamic” and after taking control of the Swat valley in 2009, the Taliban commander Mullah Fazlullah shut down all girls’ schools and threatened families with death if they sent their daughters to schools. The men later shot Malala Yousufzai, a young education in the activist in the head.[6] The Tribunal also accepts that a vicious attack by the Taliban on a bus carrying women travelling to the Sardar Bahadur Khan University in Quetta, and later on the hospital where the women were being treated, resulted in the deaths and injuries of numerous young women.[7]  The Tribunal also accepts that there have been a series of attacks on schools in Khyber Pakhtunkhwa, including the brutal attack on the Army Public School in Peshawar in January 2015 which resulted in schools, colleges and universities closing and delaying their re-opening.[8]

   [5] DFAT, Department of Foreign Affairs and Trade Country Information Report: Pakistan, 29 November 2013, p.16.

   [6] ‘TTP and BLA Killing children and bombing schools for two very different reasons’, Nation, The Pakistan, 13 July 2015, nation.com.pk. See also Goodson, L.P.2001, ‘Perverting Islam: Taliban Social Policy Toward Women’, Asian Survey.

   [7] BBC News 2013, ‘Pakistan’s Quetta city reels from attack on women’, 21 June.

   [8] Ebrahim, T. Zofeen 2015, ‘Peshawar attack spreads fear in higher education’,University World News, 13 August.

4. The Tribunal has some doubts that the applicant, who has completed [grade], married at [age] years of age and has since had a child, genuinely intends to resume her studies, but even accepting that she wishes to do so, the Tribunal does not accept that the evidence establishes that she will be unable to attend a college or a university in Pakistan where she will be able to continue her studies. The applicant’s own evidence indicates that she will have the support of her husband and family if she wishes to continue her education. The Tribunal is also not satisfied that there are reports of attacks by the Taliban or extremist groups on higher education facilities in the Swat region or elsewhere in Pakistan and, indeed, the only report located by the Tribunal on a higher education facility relates to the attack on the Sardar Bahadur Khan University in 2013. The Tribunal is not satisfied that the evidence regarding attacks on universities and colleges in Pakistan establishes that there is a real chance that the applicant will be unable to resume university or college studies upon her return to Pakistan or that she will be harmed whilst doing so.  Additionally, although the Tribunal accepts that the applicant is worried about her daughter’s future in Pakistan, given that she is only some [months] old and is not an applicant for this visa, the Tribunal considers it unnecessary to speculate on what the security and school situation for her daughter may be by the time she reaches school age.

5. Furthermore, although the Tribunal has accepted that the situation for women in Pakistan is restrictive, and the applicant disliked being required to wear the niqab when the Taliban had control of the Swat region prior to 2009, the Tribunal has not accepted that she has suffered serious harm in the past. As discussed at the hearing, although the applicant indicated that she is from a liberal minded family, she also agreed at the hearing that her family is relatively conservative and she is from the Sunni majority. The applicant will have the support of her family in Pakistan and the Tribunal is satisfied that she will be able to continue her education and dress in a less conservative and restrictive fashion and obtain employment in the future if she chooses to do so. The Tribunal finds, therefore, that the applicant does not have a well founded fear of persecution if she returns to Pakistan now or in the reasonably foreseeable future.

   Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, that there is a real risk that she will suffer significant harm?

6. The Tribunal has also considered the applicant’s claims having regard to the Complementary Protection provisions. The Tribunal has not accepted that the applicant or he family has been specifically sought by the Taliban or that the applicant or her family has been harmed by the Taliban. Although the Tribunal has accepted that women’s rights are restricted in Pakistan and there has been attacks on several attacks on schools, but the evidence relating to attacks on higher education facilities is limited. The Tribunal has not accepted that the applicant will be unable to continue her education if she wishes to do so upon her return to Pakistan or that there is a real chance that she will suffer serious harm whilst pursuing further studies or employment.  The Tribunal has also not accepted that there is a real chance that the applicant will suffer serious harm if she chooses to dress in a less restrictive fashion. Accordingly, for the same reasons as those discussed above, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm if she returns to Pakistan.  

7. Therefore, having regard to the Complementary Protection provisions, the Tribunal is not satisfied that there are substantial grounds for believing as a necessary and foreseeable consequence of the applicants being removed from Australia to Pakistan, there is a real risk that they will suffer significant harm in Pakistan. Accordingly, the Tribunal is 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 the applicant will suffer ‘significant harm’ such that she will be arbitrarily deprived of her life, suffer the death penalty or will be subjected to ‘torture’ or to ‘cruel or inhuman treatment or punishment’ or to ‘degrading treatment or punishment’. 

   CONCLUSIONS

8. 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 the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

9. 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).

10. 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

11. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Susan Pinto
    Member

    
    

    ATTACHMENT - RELEVANT LAW

12. In accordance with section 65 of the Migration Act 1958 (the Act), the Minister may only grant a visa if the Minister is satisfied that the criteria prescribed for that visa by the Act and the Migration Regulations 1994 (the Regulations) have been satisfied. The criteria for the grant of a Protection visa are set out in section 36 of the Act and Part 866 of Schedule 2 to the Regulations. Subsection 36(2) of the Act provides that:

    ‘(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 under the Refugees Convention as amended by the Refugees Protocol; 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.’

    Refugee criterion

13. Subsection 5(1) of the Act defines the ‘Refugees Convention’ for the purposes of the Act as ‘the Convention relating to the Status of Refugees done at Geneva on 28 July 1951’ and the ‘Refugees Protocol’ as ‘the Protocol relating to the Status of Refugees done at New York on 31 January 1967’.  Australia is a party to the Convention and the Protocol and therefore generally speaking has protection obligations to persons defined as refugees for the purposes of those international instruments.

14. Article 1A(2) of the Convention as amended by the Protocol relevantly defines a ‘refugee’ as a person who:

    ‘owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.’

15. The definition contains four key elements.  First, the applicant must be outside his or her country of nationality.  Secondly, the applicant must fear ‘persecution’.  Subsection 91R(1) of the Act states that, in order to come within the definition in Article 1A(2), the persecution which a person fears must involve ‘serious harm’ to the person and ‘systematic and discriminatory conduct’.  Subsection 91R(2) states that ‘serious harm’ includes a reference to any of the following:

    (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.

    Complementary protection criterion

16. An applicant for a protection visa who does not meet the refugee criterion in paragraph 36(2)(a) of the Act may nevertheless meet the complementary protection criterion in paragraph 36(2)(aa) of the Act, set out above.  A person will suffer ‘significant harm’ if they will be arbitrarily deprived of their life, if the death penalty will be carried out on them or if they will be subjected to ‘torture’ or to ‘cruel or inhuman treatment or punishment’ or to ‘degrading treatment or punishment’.  The expressions ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are further defined in subsection 5(1) of the Act.

    Ministerial direction

17. In accordance with Ministerial Direction No. 56, made under section 499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration and Citizenship - ‘PAM3: Refugee and humanitarian - Complementary Protection Guidelines’ and ‘PAM3: Refugee and humanitarian - Refugee Law Guidelines’ - and any country information assessment 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.