1513929 (Refugee)

1513929 (Refugee) [2016] AATA 4560 (18 October 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1513929
COUNTRY OF REFERENCE:                  Pakistan
MEMBER:Glen Cranwell
DATE:18 October 2016
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first and second named applicants satisfy s.36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first and second named applicants.

Statement made on 18 October 2016 at 12:12pm

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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 28 September 2015 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants who claim to be citizens of Pakistan, applied for the visas [in] June 2015. The delegate refused to grant the visas [in] September 2015.
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 (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 themself 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.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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
Independent information
According to the Department of Foreign Affairs and Trade's Pakistan Country Information Report 15 January 2016:
There are approximately 500,000 Ahmadis in Pakistan. Ahmadis mostly live in Punjab, including Rabwah, the location of the movement's headquarters.
A larger population of Ahmadis lives outside Pakistan, including Africa, Indonesia, the United Kingdom (UK) and the United States. This includes the Supreme Head of the movement, who has lived in the UK since 1984.
3.14 Pakistan's Ahmadi community is comparatively well-educated and relatively prosperous. Although there are no formal restrictions on entry into Pakistan's civil service or security forces, Ahmadis reportedly experience difficulties regarding promotion into the senior levels of these organisations. Unlike some Shia names, it is generally not possible to identify Ahmadis by name alone.
3.15 A number of discriminatory laws inhibit Ahmadi’s rights to practise their religion openly. Although Ahmadis identify as Muslim, the Constitution describes them as non-Muslim. Under Ordinance XX – upheld by the Supreme Court –Ahmadis may not identify, or 'pose,' as Muslims. They are also barred from worshipping in non-Ahmadi mosques or public prayer rooms; performing the Muslim call to prayer; using the traditional Islamic greeting in public; publicly quoting from the Quran; preaching in public; seeking converts; or producing, publishing and disseminating religious materials. These acts are punishable by imprisonment for up to three years.
Ahmadis also have no representation in Pakistan's Council of Islamic Ideology. Ahmadis are exempt from the otherwise mandatory 2.5 per cent zakat deductions on personal income.
3.16 Ahmadis continue to experience political discrimination. Changes to the electoral system in 1985 established a separate registration list for non-Muslims. While electoral reforms in 2002 removed the distinction between Muslims and non-Muslims, Ahmadis must still register on a separate, Ahmadi-specific list. In the 2013 general elections, many Ahmadis refused to register on this list and were therefore unable to vote.
3.17 The Ahmadi community has told DFAT that Pakistani authorities have demolished, restricted access to, or forcibly occupied Ahmadi places of worship. Mobs have also reportedly set fire to some Ahmadi places of worship, and Ahmadi graves have been desecrated and their dead disinterred.
The Ahmadi community has also reported the closure of Ahmadi publications, removal of Ahmadi students from schools and universities, and reporting of Ahmadi communities en masse to local police forces for unspecified crimes.
3.18 Since the promulgation of Ordinance XX, there has been an increase in the number of physical attacks against the Ahmadi community in Pakistan.
According to the Human Rights Commission Pakistan (HRCP), 11 Ahmadis died in sectarian violence in 2014. On 17 July 2014, for example, an Ahmadi grandmother and her two granddaughters died when a mob set fire to their house in Gujranwala, Punjab.
3.19 According to the Ahmadi community, authorities have colluded and participated in some of these attacks. The leaked Abbottabad Commission report also suggests that police in Lahore protected perpetrators of violence against Ahmadis in 2010. DFAT is unable to verify these claims.
3.20 DFAT assesses that Pakistan's Ahmadi community is subject to a high level of official discrimination, which impacts their ability to freely practice religion and limits the extent of their political engagement.
Ahmadis are also subject to a moderate level of societal discrimination and a low level of violence, although this violence is generally mitigated by Ahamadis' relatively high socio-economic status.
Extracts relevant to Ahmadi from the US Department of State International Religious Freedom Report for 2014 Pakistan are as follows:
The constitution establishes Islam as the state religion, and it requires that laws be consistent with Islam. The constitution states, “subject to law, public order, and morality, every citizen shall have the right to profess, practice, and propagate his religion.” The government's general failure to investigate, arrest, or prosecute those responsible for religious freedom abuses promoted an environment of impunity that fostered intolerance and acts of violence, according to domestic and international human rights organizations. Government policies did not afford equal protection to members of minority religious groups, and due to discriminatory legislation such as blasphemy laws and laws designed to marginalize the Ahmadiyya Muslim community, minorities often were afraid to profess freely their religious beliefs. According to the Human Rights Commission of Pakistan (HRCP), police registered 12 new cases under blasphemy laws during the year and the courts sentenced three individuals to death, six individuals to life imprisonment, and three individuals to two-years of imprisonment for blasphemy. The government did not carry out any executions for blasphemy during the year. The government announced it would create a national council for minorities with Christian, Hindu, Muslim, and Sikh representatives…
The U.S. embassy and consulates general maintained a regular dialogue with the government, including ministers, other high-ranking officials, members of parliament, and civil society, including leaders of all religious groups and minority community representatives, to encourage religious freedom, tolerance, and harmony and to discuss specific issues of concern.
These issues included: blasphemy laws; curriculum reform in the public and madrassah education systems; treatment of the Ahmadiyya, Christian, Hindu, Sikh, and other minority communities; sectarian violence; and ways to improve the protection of and outreach to minority religious groups.
Section I. Religious Demography
The U.S. government estimates the total population at 196.2 million (July 2014 estimate). According to the most recent census conducted in 1998, 95 percent of the population is Muslim (75 percent of the Muslim population is listed officially as Sunni and 25 percent as Shia). There are also an estimated two to four million Ahmadi and 500,000 to 800,000 Zikri Muslims.
Groups officially constituting the remaining 5 percent of the population include Hindus, Christians, Parsis/Zoroastrians, Bahais, Sikhs, Buddhists, and others. Other religious groups include Kalasha, Kihals, and Jains.
There is one known Jew. Less than 0.5 percent of the population is silent on religious affiliation or claims not to adhere to a particular religious group.
Section II. Status of Government Respect for Religious Freedom
Legal Framework
The constitution declares that adequate provisions shall be made for all citizens to profess and practice their religious beliefs freely. It states “Every citizen shall have the right to profess, practice and propagate his religion.” Other constitutional provisions and laws, however, impose limits on this right, which is “subject to law, public order and morality.”
According to the constitution and penal code, Ahmadis are not Muslims and are prohibited from calling themselves Muslims or their belief Islam, as well as from preaching or propagating their religious beliefs, proselytizing, or insulting the religious feelings of Muslims. The punishment for violation of these provisions is imprisonment for up to three years and a fine….
Non-Muslim missionary activity is permitted and missionaries can proselytize as long as there is no preaching against Islam and the missionaries acknowledge they are not Muslim (thereby excluding Ahmadis).
Foreign missionaries are required to have visas valid from two to five years and are allowed one entry into the country per year. Only “replacement” visas for those taking the place of departing missionaries are available.
The government does not restrict religious publishing in general; however, the sale of Ahmadiyya religious literature is banned. The law prohibits publishing any criticism of Islam or its prophets and insults to others' religious beliefs.
The government designates religious affiliation on passports and requests religious information in national identity card applications. Those wishing to be listed as Muslims must swear they believe the Prophet Muhammad is the final prophet, and must denounce the Ahmadiyya movement's founder as a false prophet and his followers as non-Muslim. This provision inhibits Ahmadis from obtaining legal documents and pressures community members to deny their beliefs in order to enjoy citizenship rights, including voting, which requires an identity card.
The constitution provides for “freedom to manage religious institutions.” In principle, the government does not restrict organized religious groups from establishing places of worship and training members of the clergy.
There is no official restriction on the construction of Ahmadiyya places of worship; however, Ahmadis are forbidden to call them mosques….
Ahmadiyya community leaders expressed continued concern over authorities' targeting and harassment of Ahmadis for blasphemy, violations of “anti-Ahmadi laws,” or other crimes. The vague wording of the legal provision forbidding Ahmadis from directly or indirectly identifying themselves as Muslims enabled officials to bring charges against members of the community for using the standard Muslim greeting or for naming their children Muhammad. According to Ahmadiyya leaders, authorities charged 24 Ahmadis in eight separate cases, largely in connection with “anti-Ahmadi laws.” Police charged 13 Ahmadis for allegedly defiling the Quran in separate instances….
According to Ahmadiyya community members, between 1984 (when the “anti-Ahmadi laws” were promulgated) and 2014, authorities sealed 33 Ahmadiyya mosques and barred construction of 52 mosques, while assailants demolished or damaged 31 Ahmadiyya mosques, set 14 mosques on fire, and forcibly occupied 19 mosques….
Discrimination against Christians, Hindus, Sikhs, and Ahmadis in admission to higher education institutions persisted. Minority leaders reported their communities faced restrictions in securing admissions into colleges and universities. Sikh leaders said that in some instances, Sikh students were required to obtain a certificate of permission from the Evacuee Trust Property Board, which they said was a lengthy process that discouraged Sikhs from pursuing higher education.
Most religious minority groups complained of discrimination in government hiring. While there was a 5 percent quota for hiring religious minorities at the federal and provincial levels, employers did not consistently enforce this requirement…
Generally, sacred books for religious minorities, except Ahmadis, were imported freely.
The government funded and facilitated Hajj travel for Muslims, but had no similar program for pilgrimages by religious minorities. Due to the passport requirements to list religious affiliation and denounce the Ahmadiyya prophet, Ahmadis were unable to participate in the Hajj.
Extracts relevant to Ahmadi from the US Department of State Report Pakistan 2015 Human Rights Report are as follows:
Prisoners who were members of religious minorities generally received poorer facilities than Muslims and often suffered violence at the hands of fellow inmates. Representatives of Christian and Ahmadiyya Muslim communities claimed their members were often subjected to abuse in prison….
Police often failed to protect members of religious minorities--including Christians, Ahmadiyya Muslims, Shi'a Muslims, and Hindus--from attacks.
There were improvements, however, in police professionalism and instances of local authorities protecting minorities from discrimination and communal violence….
Courts routinely failed to protect the rights of religious minorities.
Courts used laws prohibiting blasphemy discriminatorily against Shi'a, Christians, Ahmadis, and members of other religious minority groups. Lower courts often did not require adequate evidence in blasphemy cases, and some accused and convicted persons spent years in jail before higher courts eventually overturned their convictions or ordered them freed…
Blasphemy and anti-Ahmadi laws restricted publication on certain topics…
Authorities generally prohibited Ahmadis, a religious minority, from holding conferences or gatherings….
The government requires voters to indicate their religion when registering to vote and requires Ahmadis to declare themselves as non-Muslims. Since Ahmadis consider themselves Muslims, many were unable to vote if they did not comply…
Societal violence due to religious intolerance remained a serious problem.
Occasionally, there were reports of mob violence against religious minorities, including Christians, Ahmadiyya Muslims, Hindus, and Shi'a Muslims…
Claims
The applicants’ claims were summarised by the delegate as follows:
SUMMARY OF PROTECTION CLAIMS
[The first applicant’s] written claims are on Department of Immigration and Border Protection (department) file [number] at 70 - 79.
[The second applicant’s] written claims are on Department of Immigration and Border Protection (department) file [number] at 21 - 23.
The applicants claimed that they and their family are Ahmadis. They have suffered discrimination and violence from members of society and have not received any State protection. More generally, Ahmadis are not welcome anywhere in Pakistan and liable to persecution.
The applicants attended an interview [in] September 2015 accompanied by their agent:
The [first applicant] was asked to provide details of what being Ahmadi in his everyday life meant to him; he was prompted several times to be specific: he reported bullying at school. In his neighbourhood there were four or five Ahmadi families. They used to go to [a location] to worship along with a hundred and fifty others. There was also an Ahmadi mosque in [city]. He said he was a dependent of his wife who had a [temporary] visa; he is working at [company name] as a [occupation].
The [second applicant] said she was granted a [temporary] [visa]; however she claimed she then wanted to study [something] first. She agreed that she has not worked at the job for which she was given a [temporary] visa and had not advised the department. She understood that she was in breach of her visa conditions.
The applicants were advised that contrary to statements made by their agent, the Ahmadiyya Association in Australia, in contact with the department in the last few days, stated that it is willing to provide a letter if a person is found to be an Ahmadi following its enquires and that the letter is not dependent on the type of visa an applicant holds or its expiry date. The Association stated it would not provide such a letter if a person was found not to be an Ahmadi. The agent disputed this response and said he would contact the Association again.
The applicants were then formally advised that their protection visa application would not be granted unless a letter from the Ahmadiyya Association in Australia, which identifies them by name as Ahmadis, is forwarded to the department within two weeks. They were advised that other Ahmandis have obtained such a letter in a reasonable period of time. It was noted that the present applicants applied for a protection visa in early June 2015: three months before this interview.

The Tribunal was provided with a letter from the Ahmadiyya Muslim Association Australia dated [in] October 2015, which identifies each of the applicants by name as Ahmadis.
Assessment
The Tribunal accepts that the applicants are Ahmadi Muslims as claimed. The applicants’ passports state that they are Ahmadi. In addition, the applicants have produced to the Tribunal a letter from the Ahmadiyya Muslim Association Australia verifying that they are members of the Ahmadiyya Muslim community and the association has indicated that it will only issue such letters to genuine Ahmadis (Letter from [name], [Official], Ahmadiyya Muslim Association of Australia, dated [in] June 1993, [deleted]). The Tribunal gives great weight to this letter and considers that the applicants are Ahmadi Muslims as claimed.
As referred to above, Ahmadis in Pakistan suffer from official discrimination as a result of what are referred to as the anti-Ahmadi laws. They are prevented from calling themselves Muslim, they are prevented from holding conferences or gatherings and their right to worship is restricted. The laws prohibiting blasphemy continue to be used disproportionately against Ahmadis and, even if those accused under such laws are ultimately acquitted, they may spend long periods in gaol where they face discriminatory treatment for reasons of their religion. Ahmadis also continue to be victims of sectarian violence instigated by religious extremist groups. According to the US Department of State, police often failed to protect members of religious minorities including Ahmadis. (US Department of State Report Pakistan 2015 Human Rights Report).
The Tribunal concludes that there is a real chance that, if the applicants return to Pakistan now or in the reasonably foreseeable future, they will be persecuted for reasons of their religion as Ahmadis.
The Tribunal considers that the persecution which the applicants fear involves 'serious harm' as required by s.5J(4)(b) of the Act in that it involves a threat to their life or liberty or significant physical harassment or ill-treatment. The Tribunal considers that the applicants' religion as an Ahmadi is the essential and significant reason for the persecution which the applicants fear, as required by s.5J(4)(a), and that the persecution which they fear involves systematic and discriminatory conduct, as required by s.5J(4)(c), in that it is deliberate or intentional and involves their selective harassment for reason of their religion. Since the Tribunal considers on the evidence before it that the Government of Pakistan condones the persecution of Ahmadis for reasons of their religion, the Tribunal considers that the applicant cannot obtain protection from the State. In addition, there is nowhere in Pakistan to which the applicants could reasonably be expected to relocate where they would be safe from the persecution which they fear.
CONCLUSIONS
For the reasons given above, the Tribunal finds that the applicants have a well-founded fear of being persecuted for reason of their religion if they return to Pakistan now or in the reasonably foreseeable future. The Tribunal finds that they are unwilling, owing to their fear of persecution, to avail themselves of the protection of the Government of Pakistan. There is nothing in the evidence before the Tribunal to suggest that the applicants have a legally enforceable right to enter and reside in any country other than their country of nationality, Pakistan. The Tribunal therefore finds that the applicants are not excluded from Australia's protection by subsection 36(3) of the Act.
It follows that the Tribunal is satisfied that first and second named applicants are persons to whom Australia has protection obligations. Consequently the first and second named applicants satisfy the criterion set out in paragraph 36(2)(a) of the Migration Act for the grant of protection visas. The other applicants have not made any protection claims in their own right. However, the Tribunal is satisfied that the other applicants are the children of the first and second named applicants, and are therefore members of the same family unit as the first and second named applicants for the purposes of s.36(2)(b)(i).
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
(i) that the first and second nameds applicant satisfy s.36(2)(a) of the Migration Act; and
(ii) that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first and second named applicants.
Glen Cranwell
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.
…
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 them 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.
..
36Protection visas – criteria provided for by this Act
…
(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.
…

[2016] AATA 4560

18 October 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction