1514165 (Refugee)

[2018] AATA 5008

1514165 (Refugee) [2018] AATA 5008 (16 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1514165

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Luke Hardy

DATE:16 October 2018

PLACE OF DECISION:  Sydney

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

Statement made on 16 October 2018 at 2:05pm

CATCHWORDS
REFUGEE – Protection visa – Pakistan – particular social group – employee of NGO – family involved in the village defence committee – religion – liberal sunni muslim – political opinion – family opposed fundamentalist insurgent Taliban movement – threatened by Talibans – ethnicity – Pashtun – possible relocation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65

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. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant [is] a Sunni Muslim citizen of Pakistan. He arrived in Australia [in] February 2014 bearing a student visa valid to 22 September 2016. He lodged a protection visa application on 13 May 2014 and the Minister’s delegate refused to grant the visa on 16 October 2015. He subsequently sought review by this Tribunal. He departed Australia for [three countries] [in] February 2018 and re-entered this country [in] March 2018.

3. [The applicant] appeared before the Tribunal on 9 August 2018 to give evidence and present arguments. He was accompanied by his adviser, a registered migration agent. The hearing was conducted with the assistance of an interpreter in the Pashto and English languages.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   The issues

4. The issue in this case is whether [the applicant] is entitled to protection in Australia as a refugee or, in the event he is not, on complementary protection grounds.

5. For the following reasons, I have concluded that the decision under review should be affirmed.

   Claims to the then-Immigration Department

6. [The applicant] claimed to the Department that he was a resident of [Village 1], Swat Valley, in Pakistan’s in the Khyber Pakhtunkhwa province. He claimed he resided there until 2006 when he moved to Peshawar, the provincial capital, over [a number of] kilometres away, to attend university and reside in university hostels. He claimed he attended university from [year] to [year] but resided back in Swat from November 2010, after receiving threats at university, until July and August 2011 when he returned for those two months and resided at another hostel so that he could attend examinations there.

7. [The applicant] claimed that from 2008 to 2010 he earned money as [Occupation 1] in Peshawar. He claimed he worked for [Organisation 1] in his home province from November 2010 to February 2011, seeming to provide an additional reason for moving back to Swat. He claimed to have worked on his family’s farm in Swat from February 2011 to January 2014. He also claimed to have worked as [Occupation 2] for a local [workplace] in Swat from September 2012 until January 2014 just prior to arriving in Australia in early February 2014.

8. [The applicant] provided evidence of his parents and [brothers] all living at the time of his protection visa application in his home province. He said the same of his wife and daughter.

9. [The applicant] provided a notarised copy of his passport, showing that he left Pakistan legally in 2014.

10. In a statutory declaration attached to his protection visa application form, [the applicant] described himself as an ethnic Pashtun and moderate Muslim. He claimed his family in Swat openly opposed the fundamentalist insurgent Taliban movement. He claimed he feared persecution from the Taliban in Pakistan because he had been [Occupation 2] for an NGO. He said, “Such persons are targeted by the Taliban.” 

11. [The applicant] clarified details about his studies in Peshawar: he graduated in [year] and undertook [degree] studies from [year] to [year]. He said that some details of past employment that appeared in his student visa application had been falsified by his migration agent to help get him out of danger in Pakistan.

12. [The applicant] described his family in Swat Valley, with his grandfather and father having formerly had roles in local socio-political structures such as the local Lashkar (Peace Committee) set up to protect the community from extremists. He said his brother [Mr A] was involved in [politics]. He said his second brother [Mr B] had received threats and was trying to leave Pakistan. He added that [Mr A] was also seeking to flee Pakistan but wanted [Mr B] to be able to leave fist. He said his third brother [Mr C] is married and was granted refugee status in the [Country 1] in 1998. He said that [Mr C] is a [Country 1] citizen who has briefly visited Pakistan since 2004. He said he has one sister who is a housewife. He said his [uncle] is a member of the Village Defence Committee (VDC). He was to add later that some of his relatives were involved locally with the Awami National Party (ANP), a secular and leftist Pashtun nationalist political party in Pakistan.

13. [The applicant] claimed that the Taliban was trying to gain influence in Swat in 2007. He claimed that he carried a gun during university holidays at his home. He claimed that the Pakistani army launched a campaign against the Taliban in 2007 and the Taliban, in retaliation, announced it would kill Lashkar vigilantes.  He said that friends of his father’s were killed in a suicide attack. He claimed his brother [Mr A] received a threatening letter. He claimed his brother [Mr B] was kidnapped and tortured by the Taliban in mid-July 2008 but released on payment of [amount] rupee ransom. He claimed that in August 2008 he was caught in an armed battle with Taliban agents on the street outside his local mosque. He claimed his grandfather was shot in that ambush and died in hospital a little later. He claimed this was when the Pakistani authorities asked his [uncle] to form the local VDC.

14. [The applicant] claimed the local VDC showed the authorities where Taliban insurgents were living at the time. He claimed some Taliban members were arrested. He claimed that he, meanwhile, was most of the time in Peshawar at university.

15. [The applicant] claimed that it was his university that received threats in late 2010. He said the Taliban sent letters to the university threatening to bomb it because it enrolled female students. He said these threats to the university administrators were the threats that caused him to return to his home in Swat at his mother’s imploring. He also said there was a clash between rival student groups that left one student dead. 

16. [The applicant] said that while he was working as [Occupation 2] for [Organisation 1], a letter was thrown to him under a gate threatening to kill him and his colleagues if they did not cease their services. He said the [organisation] ceased its operations in February 2011. He claimed his family then invited him to work on the farm instead of taking risks working for local NGOs. He said he nevertheless accompanied his uncle in the VDC on patrols and the like. He said some other members of the VDC were killed in 2011.

17. [The applicant] claimed he started working for a [workplace] in Swat in September 2012. He said he was [an Occupation 2] and that he worked about three days a month during [special] sessions. He said he did this all the way through to January 2014. He claimed, however, that on one night in May 2013 while he was performing night watch in [Village 1], he noticed some intruders and called the army, which sent soldiers to arrest what turned out to be a Taliban trio. He claimed he received a threatening letter from the Taliban [in] June 2013. He claimed the letter said the Taliban had decided to kill him because of his activities with the army. He claimed he complained to the police “but nothing happened after that”.

18. [The applicant] claimed he limited his activities and stayed home but, I note, he also claimed he continued to work in the same [job] until he was just about to leave Pakistan. His home was not evidently attacked, even though, as he suggested, the Taliban knew who he was and where he lived.

19. [The applicant] said he could not relocate to various named districts because there were also Taliban pockets in those places. He said that Islamabad is too expensive a place in which to try and reside. He said there is ethnic violence in that city as well. He said there is discrimination against Pashtuns like himself in Punjab.

20. [The applicant] said he cannot return to Pakistan because of his and his family’s anti-Taliban opinions, his role as [Occupation 2] assisting [campaigns]. He said, at least in this statement, that the Pakistani government is unable to provide state protection.

21. [The applicant] provided a number of copies of photographs illustration his, and his family’s socio-political activities. His adviser submitted a statement comprising links to several independent sources referring to conditions in Swat and Peshawar before and since [the applicant’s] travel to Australia.

    Evidence submitted to the Tribunal

22. [The applicant] submitted photographs of his family’s political activities and involvement in the VDC, and another submission from his adviser, as well as evidence from a forensic Psychiatrist attesting, after a 60-minute session, to “a slowness to recall chronology … consistent with … PTSD”.

23. Amongst other things, the adviser’s submission cites a number of Tribunal decisions in cases of other applicants from Pakistan. I have considered this material and note here that although the material submitted is at least generally relevant, I am required to make a merits-based decision on the facts in this specific case, having regard to the present applicant’s individual evidence.

24. [The applicant] lodged another statutory declaration in which he drew attention to information he had previously omitted. He claimed that in 2007 he was assaulted by two Taliban militants for having a musical ringtone on his mobile telephone. He said he had previously omitted reference to this incident because a friend had advised he should not make claims about such an episode without supporting evidence.

25. [The applicant] advised that his brother [Mr B] and a nephew had arrived in Australia and were seeking asylum. He also advised that he had travelled to [another capital city] earlier in 2018 to meet there with his wife and daughter.

26. [The applicant] mentioned a recent episode in which a member of his tribe who was also a VDC member was killed outside a mosque. He said the man was killed by militants who mistook him for his brother, a more active VDC member. He said that his brother [Mr A] continues to be a leader of the VDC. He claimed his family continues to receive threats from the Taliban because of associations with the army and VDC. He said there was a threatening letter in 2016 that his family handed over to the police. He said his brother [Mr A] and his uncle in the VDC received letters from the police and army in 2016 and 2017. He said a neighbour had been killed while in Peshawar for reasons of his political activities. He said these letters show that terrorists are still active in his area and that his family is still under threat. He responded to the delegate having relied on a lack evidence of relevant harm in Islamabad to find that relocation there was a viable option: he referred to independent evidence of a former VDC member from Kabal having been killed on a motorway en route to Islamabad. he mentioned other VDC members from other places who had been killed in Pakistani cities. He also said it is not safe for NGOs to operate in Islamabad and that registering to live there would be difficult for him as he has lost, and reported lost, a number of essential identity documents. He went on to make other submissions about the unreasonableness of relocating, as he saw it, focusing for the most part on his mental health.

27. The letters, copies of which [the applicant] attached to his statutory declaration, appear to be “Threat Alert” notices signed and stamped.

28. [The applicant’s] adviser attached a 52-page submission containing independent country information about the security situation, the state campaign against the Taliban and treatment of Pashtuns in Pakistan, amongst other things.

29. [The applicant’s] submission includes a number of testimonials from people claiming to be aware that his family has received threatening letters and telephone calls over the years.

    The Tribunal hearing

30. [The applicant] described his family’s circumstances in Swat. He said his father is retired there [and] his mother works as a housewife. He said his brother [Mr A] is [an official] in Swat as well as a member of the local VDC. He said that [Mr A] has a son attending college in Swat. He said his [uncles] continue to be involved in politics at the village and district level. He said his uncles send their children to school in Swat. He confirmed that his brother [Mr B] has come to Australia

31. [The applicant] acknowledged in his oral evidence that the Pakistan government took control of Swat and Peshawar around 2009 with the effect that there were only occasional disturbances in those two areas. He suggested that the Taliban perpetrates less disturbances on these regions because it has become splintered with various of its factions having fled into hiding. He said that although the Taliban had communicated threats to his family, “the army protects my family and others”.

32. I put to [the applicant] that he appeared to be saying that his family enjoys effective state protection from the Taliban and other militant factions, and he said the situation had changed after the authorities regained control of the two regions over a decade ago. He said that the Taliban could nevertheless “do harm” if it had the chance, but appeared to say this in the context of the state protecting his family to a degree that the Taliban had not had any such luck.

33. [The applicant] acknowledged that he spent several years at university in Peshawar before the Taliban was contained and scattered there. I asked [the applicant] if he had ever suffered any direct threats or harm in Peshawar and he said he had not. He said, rather, that his university had been put under pressure in 2010 and had had to close for two weeks. He said that Taliban members did assault him in his village in 2007 but acknowledged that this was back when the Taliban was still in power locally. He said the Taliban was more aggressive against the government in those days but dispersed when the government acted to secure the region in or after 2007.

34. I asked [the applicant] to tell me about the incident of the night in May 2013 while he was performing night watch in [Village 1]. In response, he said he saw some people walking near his house while he was awake and guarding his family. He said they came out of a field and walked towards the hills. He said it was unusual for people to be out at night unless they were military or insurgents. He said he telephoned the local army checkpoint which sent some soldiers to investigate. He said he accompanied the soldiers to some houses where he was able to identify three people who the army arrested as known Taliban members. He said that two weeks later he received a letter at his home saying, “Your action means reaction. We have suffered. We will have revenge. We will kill you if we have the chance.”

35. I put to [the applicant] that it seemed odd that the Taliban, knowing where he lived, merely sent him a letter that was capable of hinting he should move away out of their reach, rather than killing him. In reply, he said he thought it might have been a psychological tactic, to scare him and force him to protect himself. I asked him when the letter arrived, and he said it came in July 2013. He then confirmed that he stayed in [Village 1] and continued his part-time security job until he came to Australia, although working only three days in January 2014 before quitting.  I questioned the seriousness of the threat given that he remained living and working in [Village 1] for around seven more months before leaving for Australia. In reply, he said he limited his activities by staying at home (where the Taliban knew he lived) and working three days a month for [a workplace] during [a particular period]. I put to him that it seemed potentially significant that the Taliban did not carry out its revenge threat and, in reply, he said again that he and his family received protection from the authorities. He also said the army used to track or trace the Taliban and keep his family informed. When I put to [the applicant] that he appeared to be saying he and his family received effective state protection in Pakistan, he said, “Yes. To some extent. But I don’t believe that in time of urgent need they would be able to protect me.” This seemed an odd thing to say, since he had just demonstrated how effectively the army had performed in a time of arguably urgent need. He went on to say that the Taliban still kills people who are on its lists from time to time.

36. I invited [the applicant] to comment further on the delegate’s apparent reliance on his being able to relocate to Islamabad to avoid persecution. In reply, he said that VDC members in places like Islamabad and Lahore have been attacked. He said that all NGOs are monitored by the Taliban which can attack at any time. He said he would be too stressed to be able to work in Islamabad where it is too expensive for him to subsist. He said there are tensions between Punjabis and Pashtuns there. He said the police in Islamabad side with the Punjabis who call Pashtuns terrorists  

37. I allowed seven days for further submissions. [The applicant] submitted some independent material including reports arguing that Pubjabis discriminate against Pashtuns in Islamabad. He submitted some newspaper articles and a copy of an earlier submission from his adviser. He submitted letters to the police from [Mr A] and others reporting to the police that suspicious people had been seen around the family’s residences.

    Independent country information

38. I have had regard to independent country information[1] to the effect that it is generally safer for ANP members in Khyber Pakhtunkhwa province than it is in other parts of Pakistan, like Karachi, where Pashtun are in the minority and attacks on them have commonly occurred. 

    [1] “Lie low,” The Friday Times, 27 June 2014

39. I note  noted that the Taliban was forced to move out of Khyber Pakhtunkhwa province and into Karachi by 2015.[2] I also note that, according to independent reports, some “targeted killings” have nevertheless continued to be reported even in [Village 1], suggesting that the Taliban still had ways to punish targeted foes there. According to the independent evidence, these attacks were on members of VDCs.[3] [The applicant] does not claim ever to have been a member of a VDC. I note his claim to the effect that his brother [Mr A] is a VDC [member], but I also note that, in spite of reporting sightings of suspicious people and in spite of purportedly having received written threats from the Taliban, [Mr A] remains unharmed after many years.

    [2] “Back from the brink,” The World Weekly, 22 October 2015

    [3] “Killings target anti-Taliban leaders in Swat: Pakistani military has claimed 'complete control' over the region, but the bloodshed continues,” AlJazeera, 21 November 2014,

1. The Pakistan government and armed forces evidently regained control of Khyber Pakhtunkhwa province after 2009, and particularly from 2012 onwards (in the wake of outrage at the Taliban’s shooting of the school girl Malala Yousefzai).[4]

   [4] “The Taliban once ruled Pakistan’s Swat Valley. Now peace has returned,” The Washington Post, 9 May 2015,

2. I have had regard to an independent news report[5] of an ANP leader, who was also a July 2018 election candidate, and his nephew having been shot dead by suspected Taliban members on 6 September 2018. I have considered this incident in the course of assessing [the applicant’s] claims, along with a reference in the same report to the effect that hundreds of ANP workers and leaders have been killed over recent years, as he claims his family supports the ANP and claims his uncle, brother and grandfather, amongst others, have been involved with that party.

   [5] “ANP leader, nephew shot dead in Peshawar,” Dawn, 6 September 2018,

   Findings in relation to s.36(2)(a) of the Act

3. I accept that [the applicant] is a Pashtun from [Village 1], Swat Valley in Pakistan’s Khyber Pakhtunkhwa province. His evidence does not suggest that ethnic Pashtuns suffer discrimination in his home province. On the evidence before me I am not satisfied that he faces a real chance of being persecuted in Pakistan in the reasonably foreseeable future for the separate or cumulative reason of his Pashtun ethnicity or “race”.

4. I accept that [the applicant] favours the ANP, the party with which a number of people related to him have close involvement. I am not satisfied on the evidence before me that [the applicant’s] support of the ANP gives rise separately or cumulatively to a real chance of being persecuted in Pakistan in the reasonably foreseeable future.

5. I accept that [the applicant] is a liberal Sunni Muslim. His claims about the Taliban are to a degree claims about being targeted for persecution because of his and his family’s liberal stance in relation to their religion. He claims his small roles in an NGO and a [campaign] have also characterised him as a political foe in the eyes of the Taliban. He claims that his family’s involvement in local village council politics, and local Lashkar and VDC activities are other cumulative factors giving him a negative political profile with the Taliban.

6. I accept that the Taliban has been responsible for the deaths of some VDC and ANP members and other Pashtun individuals in recent years. However, the victims in these cases had their own political profiles and I do not accept that their deaths add weight to [the applicant’s] claims about himself, notwithstanding the political affiliations of members of his extended family including his uncle and his brother [Mr A].  

7. I accept that [the applicant] suffered assault and other intimidation from Taliban members up to around 2007 in Swat. I give more weight, however, to the Pakistani government having secured control of Khyber Pakhtunkhwa province in the years since then. I accept as fact the claims about warnings and threats directed at members of [the applicant’s] extended family, and I accept that they feel genuine insecurity from time to time, but I give more weight to the fact that those individuals were at the time more active in anti-Taliban politics and remain much more involved that [the applicant] himself has ever been, and I also give weight to [the applicant’s] oral evidence to the effect that his family continues to enjoy close contact with, and effective protection from, Pakistan’s authorities. 

8. I am prepared to accept that [the applicant] became involved in the arrest of some Taliban members in May 2013 and received a threatening letter from their fellow militants in July of that year. On the evidence before me, however, the threat in the letter was ultimately an empty or ineffectual one. I find that [the applicant] essentially treated it as much by continuing to live and work where he lived and worked, which is to say that I do not accept, on his description, that he confined himself or his activities to avoid persecution between July 2013 and February 2014 when he left for Australia. I consider that period of seven months to be a significant one considering that no attempts were made to harm [the applicant] in the interim. In any event, [the applicant] repeatedly told me at the hearing that his family has enjoyed effective protection from the army, police and authorities generally in his home province, and I give weight to that in finding that he does not face a real chance of being persecuted in Pakistan in the reasonably foreseeable future for reasons of his political opinions real or imputed, in spite of other Pashtuns including VDC members and ANP figures having occasionally been killed over the years.

9. I give weight in this case to [the applicant’s] family continuing to reside in [Village 1], including his parents, wife, daughter, uncle, cousins, nephews and brother [Mr A], who has not left Pakistan, notwithstanding that he was waiting for [Mr B] to do so first, and who continues to be involved in local politics and civil administration in Swat.

10. [The applicant] lived, studied and worked for several years in the provincial capital Peshawar. He told me he was never directly harassed, threatened or harmed there and witnessed nothing more than the closure of his university back at a time when the Taliban had not yet been routed, splintered and effectively thrown out of the province. I am not satisfied on the evidence before me that [the applicant] faces a real chance of being persecuted for a Convention-related reason in the reasonably foreseeable future in Swat Valley or, for that matter, in Peshawar where he lived, studied and worked for such a significant period in his life.

11. I have taken into account that [the applicant’s] brother [Mr C] has been granted refugee status in [Country 1], but I note that that happened in 1998 when the socio-political landscape in Pakistan, and in Khyber Pakhtunkhwa province in particular, was evidently very different. I doubt that [Mr C’s] change of nationality would have protected him from the Taliban during his return visit to his family in more recent years since 2004 had the Taliban been interested in harming him, say, for reasons of having similar socio-political affiliations to [the applicant’s] own; however, he was not evidently harmed during his reportedly brief visit home. Overall, I give very little weight to the evidence regarding [the applicant’s] brother [Mr C] in this matter.

12. Mainly due to the Pakistani authorities’ routing of the Taliban in Khyber Pakhtunkhwa province and to the availability of state protection for him and his family, I am not satisfied that  [the applicant] faces a real chance of being persecuted for a Convention-related reason in Pakistan in the reasonably foreseeable future. His clamed fear of Convention-related persecution is not well founded. He is not a refugee.

13. 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 he does not satisfy the criterion set out in s.36(2)(a).

    Findings in relation to s.36(2)(aa) of the Act

14. 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), whereby a person who is found not to meet the refugee criterion in s.36(2)(a) may nevertheless meet the criteria for the grant of a protection 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 the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.

15. Relevant to this, s.36(2)(aa) refers to a “real risk” of an applicant suffering significant harm. The “real risk” test imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear” in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).

16. “Significant harm” for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. “Cruel or inhuman treatment or punishment”, “degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act.

17. Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment. Essentially, according to s.5(1) of the Act, all three of these forms of “significant harm” require that there be an intention to inflict harm by some act or omission. Torture 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 ICCPR. “Cruel or inhuman treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. “Degrading treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one 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 ICCPR.

18. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

19. Essentially, [the applicant’s] complementary protection claims rely on the same facts as his refugee claims which have ultimately failed for not meeting the “real chance” test. In view of my findings of fact, above, and in view of the “real risk” test being the same as the “real chance” test, those claims must also fail here.

20. Having considered all of the evidence before me, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Pakistan, there is a real risk that [the applicant] will suffer significant harm.

21. Accordingly, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

    Other findings

22. 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, he does not satisfy the criterion in s.36(2).

    DECISION

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

    Luke Hardy
    Member

    
    

    ATTACHMENT A

    RELEVANT LAW

24. 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, the applicant 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.

25. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

26. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any 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.

27. 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 a protection 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 the applicant 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’).

28. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of 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.