1614140 (Refugee)

[2019] AATA 6557

1614140 (Refugee) [2019] AATA 6557 (22 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1614140

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Luke Hardy

DATE:22 August 2019

PLACE OF DECISION:  Sydney

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

Statement made on 22 August 2019 at 3:25pm

CATCHWORDS
REFUGEE – protection visa – Pakistan – political opinion – member of Awami National Party – feared harm by Taliban – brother of soldier – anti-Taliban speech led to threats – inconsistent evidence – far-fetched evidence – credibility issues – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5, 5AAA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES

Kopalapillai v MIMA (1998) 86 FCR 547

MIAC v SZQRB [2013] FCAFC 33

MIEA v Guo (1997) 191 CLR 559

MIMA v Prathapan (1998) 86 FCR 95

MIMA v Rajalingam (1999) 93 FCR 220

MIMA v Respondents S152/2003

MIMA v Thiyagarajah (1998) 80 FCR 543

Nagalingam v MILGEA (1992) 38 FCR 191

Prasad v MIEA (1985) 6 FCR 155

Randhawa v MILGEA (1994) 52 FCR 437

Selvadurai v MIEA (1994) 34 ALD 347

Sun v MIBP [2016] FCAFC 52

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 on 23 August 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, Mr [A], is an Sunni Muslim, ethnic Pashtun citizen of Pakistan, from the city of [City 1] and, before that, a village in its environs, in Pakistan’s Khyber Pakhtunkhwa (KPK) province.  He entered Australia on a student visa [in] December 2014. He claims he never attended any of the classes in which he enrolled. He lodged a permanent protection visa application on 6 May 2015. The Minister’s delegate refused to grant the visa on 23 August 2016. Mr [A] subsequently sought review by this Tribunal.

3. Mr [A] appeared before the Tribunal on 15 August 2019 to give oral evidence and provide arguments. He was accompanied by his advisor, a registered migration agent. The hearing was facilitated by an interpreter in the Pashto-English medium.

CRITERIA FOR A PROTECTION VISA

1. 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.

2. 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.

3. A person is a refugee if, in the case of a person who has a nationality, he or she is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she is outside the country of his or her 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).

4. Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she 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.  

5. 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

1. 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

The issues

1. The main in this case is whether, on accepted facts, Mr [A] is entitled to protection in Australia as a refugee of, if not, on complementary protection grounds.

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

Claims to the former Immigration Department

1. In his original protection visa application, Mr [A] claimed to the Department that his family, which lived in a village called [Village 1] in [City 1] district, was loyal to the Awami National Party (ANP). He claimed his family sent him to [City 1] to complete his senior secondary school at the [named college]. He claimed he lived in the school’s student hostel while he was in [City 1]. He claimed he joined the ANP while he was living in the student hostel because it was the party his family followed. He claimed he and other students used to meet, usually in the room of a fellow [student], and discuss how to support the ANP and how to invite others to join them. He said that during summer holidays, back home in the village, he would try to persuade more villagers to support the ANP. He claimed he had to repeat a few subjects due to having spent too much time involved in politics. He claimed he completed his senior high school in [year]. He claimed that he did ‘self-study” at home before and after achieving this result, in order to pursue the highest possible academic options.

2. Mr [A] claimed he completed a Bachelor [degree] (a two-year graduate degree, evidently), all the while residing at the same hostel. He said he was simultaneously re-doing the high school courses [through] home study with a view to advancing to a higher academic division in his degree course. Evidently still residing at the same hostel, Mr [A] completed an IELTS test in February 2014 which he described as a requirement for an Australian student visa. In June 2014, he completed a Certificate of [specified subject]. All the way up to this time, he later told me, he resided at the same student hostel in [City 1]. He travelled to Australia, as noted, in December 2014. Throughout the second half of 2014 he evidently lived back in the village.

3. Mr [A] claimed that he obtained the student visa for Australia so that he could escape the Tehrik-i-Taliban (TTP)  or Taliban in Pakistan. I note that the TTP was formed in Pakistan in 2007 aiming to take control of Pakistan’s former Federally Administered Tribal Areas (FATA).[1] The FATA were eventually incorporated into KPK province in 2018, after an intense state-led military and paramilitary campaign, and came under the control of state authorities including the army, as well as the national and provincial police and courts, giving the region’s tribal communities representation in provincial and national parliaments.[2]

   [1] Shane, Scott, "Insurgents Share a Name, but Pursue Different Goals" The New York Times, 22 October 2009.

   [2] “Pakistan's National Assembly passes bill to merge FATA with KPK,” Arab News, 24 May 2018, “President signs KP-FATA merger bill ,” The Nation, 28 May 2018,  

4. To provide further background, I note from independent country reporting that Pakistan’s security forces moved into the FATA in 2002 in an effort to drive out foreign fighters, particularly those working for al-Qaeda. In response to the government’s counter-insurgency programme, which resulted in civilian casualties and large scale destruction of local infrastructure, militancy increased, and local Taliban militias turned their attention towards fighting the Pakistani State in addition to US/NATO forces in Afghanistan.[3] It was during this period that militant groups within FATA began to co-ordinate and build networks, and in December 2007 militant groups agreed to work together under the guidance of an executive council. This new organisational structure was the TTP.[4] The formation of the TTP, and the associated escalation in violence, was also associated with the government’s decision, in July 2007, to raid a radicalised Deobandi mosque in Islamabad, known as Lal Masjid (Red Mosque) with 2,000 security personnel.[5] Although the mosque may not have had operational links with the Taliban in FATA and KPK, it did advocate their cause.[6] In response, Taliban groups and al-Qaeda announced a policy of revenge against the Pakistani State.[7] The TTP violently disrupted the 2008 general elections the 2008, targeting ANP candidates and staff in particular.[8] They maintained virtual control of large areas of KPK including Peshawar and Swat for several years.

   [3] Qazi, S H, ‘Rebels of the frontier: origins, organisation, and recruitment of the Pakistani Taliban’, Small Wars and Insurgencies, Vol. 22 no.4, 2011, p.579; Iqbal, K & De Silva, S, ‘Terrorist Lifecycles: a case study of Tehrik-e-Taliban Pakistan’, Journal of Policing, Intelligence, and Counter Terrorism, Vol. 8, no.1, 2013, pp.75-77  

   [4] Qazi, S H, ‘Rebels of the frontier: origins, organisation, and recruitment of the Pakistani Taliban’, Small Wars and Insurgencies, Vol. 22 no.4, 2011, p.579-580; ‘Tehrik-e-Taliban Pakistan’ n.d., Institute for the Study of Violent Groups, Siddique, Q, The Red Mosque Operation and its Impact on the Growth of the Pakistani Taliban, Norwegian Defence Research Establishment, 8 October 2008, p.7, Ibid.

   [7] Ibid.

   [8] “An overview of 2008 general elections,” Dawn, 16 April 2016,

However, being a coalition of various Taliban groups, the TTP evidently experienced factionalism and in-fighting.[9] In December 2011, in an effort to unite the often competing agendas of these groups, Mullah Muhammad Omar (the leader of the Afghan Taliban) formed a governing council, which was known as the Shura-e-Murakeba. The Shura guided the activities of the TTP, MTT, al-Qaeda, Afghan Taliban, and Haqqani network, led by Sirajuddin Haqqani.[10] Despite the existence of the Shura (a deliberative council), infighting continued along with differing strategic goals.[11] In 2009 the Pakistani government undertook two major counter-offensives against Taliban militants in the FATA and KPK, known as Operations Rah-e-Nijat (Path to Salvation) and Rah-e-Rast (Right Path) respectively.[12] In response, many militants fled these areas, with a large number moving to Karachi, in Sindh Province.[13]

[9] Qazi, S H, ‘Rebels of the frontier: origins, organisation, and recruitment of the Pakistani Taliban’, Small Wars and Insurgencies, Vol. 22 no.4, 2011, p.583

[10] Ahmad, T, ‘The Realignment of Jihadist Groups in the Pakistan-Afghanistan Region – The Formation of Shura Muraqba In Parallel to the U.S.-Taliban Talks’, The Middle East Media Research Institute, 6 March 2012, Roggio, B, ‘Al Qaeda brokers new anti-US Taliban alliance in Pakistan and Afghanistan’, The Long War Journal, 3 January 2012,

[11] Gopal, A, Mahsud, K & Fishman, B, ‘The Taliban in North Waziristan’, in P Bergen & K Tiedemann (eds), Talibanistan: Negotiating the Borders Between Terror, Politics and Religion, Oxford University Press, 2013 New York, pp. 151-152

[12] Lalwani, S, ‘Pakistan’s Counterinsurgency Strategy’, in P Bergen & K Tiedemann (eds), Talibanistan: Negotiating the Borders Between Terror, Politics and Religion, Oxford University Press, 2013 New York, pp.202-228

[13] Rehman,  Z U, ‘The Pakistani Taliban’s Karachi Network’, CTC Sentinel, Vol. 6, No. 5, Combating Terrorism Center, 23 May 2013,

While all these attacks and counter-attacks were going on, Mr [A] evidently proceeded through secondary school, first [near] his village and later, as discussed, in [City 1], which was not immune to sporadic manifestations of TTP violence.[14] In 2008, several NGOs had to close as a security precaution in the face of militant pressure from the TTP.[15] amidst

[14] IRIN, “Pakistan: NGOs close down operations after four die in Mansehra attack,” 28 February 2008,

[15] Ibid.

Mr [A] claimed to the Department that he was the fifth of his parents’ [number]  children, all sons, to flee or escape Pakistan. He listed and described all of his [number] brothers in his protection visa application form, all by name, birthdate and location. He claimed that the first to do so was his [Sibling 1], in 2003, a member of the ANP who purportedly had to leave because he feared for his life. He claimed that [Sibling 1] was employed as a [Occupation 1] in [Country 1]. The second to leave, in 2007, was [Sibling 2], purportedly also an ANP member who also took up work as a [Occupation 1] in [Country 1]. The third to leave was Mr [A]’s [Sibling 3], who purportedly escaped in 2009 to [Country 1], where he too works as a [Occupation 1], for fear of his life due to being an ANP member and also due to [Sibling 4] having joined the army and the government’s campaign against the Taliban. Mr [A] claimed to me that [Sibling 4], born in [1989],  became a soldier in (or as he said to me, possibly even before) 2007. I note that [Sibling 4] would have been 18 in 2007 and would thus have unlikely been recruited and deployed before then. Mr [A] said the fourth brother to flee Pakistan for [Country 1] for fear of being persecuted was [Sibling 5] (not to be confused with [Sibling 4] the soldier) who left in 2011 and who also found work in [Country 1] as a [Occupation 1]. Mr [A] claimed that this brother [Sibling 5] told him he had been threatened by the TTP due to [Sibling 4]’s being a soldier.

Although he said that his four expatriate brothers all feared being persecuted, and although he said that brother [Sibling 5] claimed to have been threatened by the TTP, Mr [A] did not suggest that any of these brothers, ever met with any harm apprehended or threatened. The only other sibling remaining in Pakistan besides soldier [Sibling 4], after Mr [A] came to Australia was [Sibling 6] who, Mr [A] claimed, was kidnapped by the TTP in 2015.

Mr [A] claimed he had to flee Pakistan not only because he was the brother of a soldier who had been fighting the Taliban, and not only because he used to engage in the above-described activities to promote the ANP,  but also because of an activity in which he engaged in the campus mosque in 2013. He told the Department that he did this [in] October 2013 around the time he completed his Bachelor [degree]. He later told me at the Tribunal hearing that he gave the speech in the mosque [in] April 2013. He was clear about it being a Friday, although I note that [the specified date in] April 2013 was a Thursday. I note that [the October 2013 date] was a Friday.

Mr [A] told the Department that [in] October 2013 he and some other students asked the imam at the mosque to condemn the Taliban publicly during the traditional Friday khubta (sermon). He claimed they were told by the Imam, who was essentially the college’s Imam, that he would not publicly condemn the Taliban as to do so might cost him his life, as well as those of his own family. Notwithstanding the imam’s, and logically, the college mosque’s position on avoiding the risks concomitant with condemning the Taliban, Mr [A] claimed that he persuaded the imam to allow him to give the Friday khubta sermon. He said the imam allowed this. He claimed he led the khubta prayers and gave a speech and in the associated sermon condemned the Taliban’s politically-motivated interpretation of Islam.

Mr [A] claimed to the Department that two days later he received some telephone calls from  a man identifying himself as Mullah Kabir, accusing him of attacking the Taliban during Friday khubta and informing him that he was going to kill him. He claimed he feared for his life. He claimed he was so afraid he dared not sleep in his “own house”, the hostel, and slept in friend’s houses instead. He contradicted this and other specific claims in evidence before me. As noted, he said he continuously resided in the hostel until mid-2014. Meanwhile, he also claimed to the department that he was accepted into Master’s degree [studies] but could not take up the offer due to fear of being located and killed by the TTP.

Mr [A] claimed that a maternal uncle, an ANP member, was killed by the Taliban on his way home from prayers in a town neighbouring [Village 1] in December 2013. He provided details about gathering for the funeral.

Mr [A] claimed the after he came to Australia, the TTP kept threatening his soldier brother [Sibling 4]. He claimed that [Sibling 6] was kidnapped [in] January 2015 on his way home from a bazaar, after receiving threatening telephone calls for a time before that. Mr [A] claimed that [Sibling 6] was killed because of [Sibling 4]’s involvement in the army fighting against the TTP.

Mr [A] later submitted to the Department a report from a social worker (BSW) describing what he had said to her about events in Pakistan. The report is not corroborative, as Mr [A] is obviously the source of the information therein. The purpose of the report appears to be to address Mr [A]’s claimed stress and anxiety.

Mr [A] also submitted an uncertified photocopy of a purported ANP membership card issued in his name with his photograph stapled to it along with a photocopy of a letter written on purported ANP [City 1] letterhead, saying that he registered as a member in [year] and adding that he is a compassionate and valued member. He also submitted a photocopy of [Sibling 4]’s Pakistan Army ID card. In addition, the Department received a 12 October 2015 submission from his adviser, generally summarising the claims previously made and referring to independent country information about the conflict with the TTP and the general security situation in Pakistan up to that date.

For the purposes of this review, Mr [A] submitted a copy of the primary decision record in this matter in which the delegate summarised his written and oral claims, the latter given at an interview on 15 October 2015, and identified her concerns regarding the evidence. At the interview, Mr [A] again claimed that he received the calls from the Taliban member [in] October 2013. He also claimed that after he received the telephone calls [in] October 2013 he left [City 1] and returned home to his village where he moved about from place to place, including the cities of Islamabad and Abbottabad, until leaving Pakistan. Again, he contradicted this in later evidence to me.  He also claimed he commenced his Master’s degree studies [somewhat] at odds with the previous claim about not being able to attend it due to fear of being located and killed by the TTP. He told the delegate that his brother [Sibling 4] received a telephone call from the TTP, two months after [Sibling 6] had disappeared after being left behind in the bazaar by his cousin, telling him that the Taliban had kidnapped [Sibling 6] and that he would not be released unless he, [Sibling 4], divulged the name of the brother who had given the anti-Taliban speech in the campus mosque in [City 1] back in 2013. He claimed that [Sibling 4] had told the TTP member that the person who had given the speech had left Pakistan and that the TTP member said he did not believe this.

1. The delegate ultimately accepted that Mr [A] had been a member of the ANP, that his brother [Sibling 4] had taken part in anti-Taliban operations in 2009-10, that Mr [A] had spoken out publicly against the TTP in the campus mosque [in] October 2013, and that he had been threatened with harm in telephone calls made [later in] October 2013. The delegate did not accept that the TTP was still interested in pursuing him with regard either to his speech at the mosque or his being the brother of soldier [Sibling 4]. The delegate did not accept, on the evidence before her at the time of the primary decision, being no more than Mr [A]’s words, that his [Sibling 6] had been kidnapped by the Taliban. The delegate ultimately did not accept that Mr [A] had any potentially significant socio-political profile in Pakistan.

Evidence to the Tribunal

1. Prior to the Tribunal hearing, Mr [A]’s advisor submitted verbatim the same statement he had submitted to the department in October 2015, with the exception that it was now re-dated 12 August 2019; hence where the statement referred to “recent” information, the latter was no more recent than up to 2015. The submission did not take account of reported national consolidation in KPK province following the government’s extensive and reportedly effective “Zarb-e-Asb” campaign commenced in 2014.

2. At the Tribunal hearing, Mr [A] gave evidence about the event at the college mosque that was inconsistent with what he had previously claimed. The evidence also struck me as being inherently somewhat far-fetched. Firstly, he said that there was a ban on student politics at the college under its new principal. This was something he did not mention in his evidence to the Department and, while it does not directly contradict an earlier statement, it makes it hard to conceive how Mr [A] was given permission to attack the Taliban during Friday prayer at the college mosque. Secondly, he said that when he and his fellow ANP-aligned students went to see the college mosque’s imam, to ask him to make a speech in the college mosque condemning the TTP, the imam refused the request for fear of violent reprisals by the TTP against his family and himself. Going by what Mr [A] had just told me, to condemn the TTP publicly in the college mosque would also have involved the imam acting in breach of the college’s rules, presumably also introduced to protect the college and its students from violent Taliban reaction.

3. Mr [A] then told me that at a further meeting, the imam eventually agreed to let him speak “for fifteen minutes before the [khubta] sermon.” He told me the imam permitted him to speak before the sermon but not after it. By contrast, Mr [A] told the Department that the imam had allowed him to speak during the sermon. Mr [A] also speculated that the imam did this so that he would be able to distance himself from the whole exercise and say he was forced by the students to allow the speech, if necessary. I questioned Mr [A] about this seeming assumption that the imam felt more secure condoning the speech during his Friday prayer that delivering it himself, as either way, according to the evidence, the speech would have had his imprimatur for as long as he, the imam, did not publicly repudiate it.

4. I asked Mr [A] how long the imam remained at the college mosque; he said the imam was still there two years ago. He did not suggest that any harm had ever come to him over the speech.

5. In another instance of inconsistency, Mr [A] told me that there were three political parties “in the college”, consistent with his earlier evidence about ANP-affiliated students meeting in one of their colleagues dormitory rooms; however he then went on to say that none of the students at the college or the hostel were allowed to talk about politics and that, for this reason, they conducted all of their political discussions away from the campus. This makes it harder to conceive that he would have been allowed to speak in the college mosque; also, it is hard to conceive, in the claimed circumstances, that he would not have attracted censure from the college principal, although he claims only that he continued to complete his degree, residing at the college hostel until the middle of the following year by which time he had finished his [degree] and his [certificate] and was on a trajectory for Australia.

6. Mr [A] gave me very different evidence about the telephone calls he claims to have received from the Taliban member after the speech in the mosque. Whereas he told the Department the first call came two days after the Friday speech, he told me it came “ few weeks” after the alleged event. Whereas he told the Department that he received all the calls on one day, he told me the calls continued for around two weeks. Whereas he told the Department that he feared for his life on that first and only day when he received the calls, from a person (who, he said, introduced himself as Mullah Kabir) he told me that the calls went into a second day and two more calls before he realised he was not being pranked by his friends and that the caller was genuinely threatening him. He told me he still received threatening calls from the mullah even after he changed his own personal mobile telephone number. He said he later closed his telephone account after the two weeks of harassing telephone calls. He said the calls were usually around six or seven minutes long, but he did not give a plausible explanation as to why he let them go on so long, except to say in the case of the first two calls that he entertained what he perceived to be his friends’ prank.

7. Mr [A] does not claim that the Taliban ever manifested an attempt to harm him. I also note that he finished his degree and certificate course without delay or interruption, as well as, he claims, the catch-up secondary studies he described as having undertaken in order to improve his academic profile for future study opportunities.

8. Mr [A] confirmed that he remained domiciled at the hostel until well into the following year. He said that he avoided harm from the Taliban by avoiding travel outside of the hostel. He said he completed all of the courses he completed without attending classes. He said that in the last year of his degree studies he did not have any assignments and that all he was required to do was to read some books. He said he explained to “the teacher” that he feared the Taliban wanted to harm him over his speech in the mosque. He said his teacher understood his difficulty and refrained from penalising him for non-attendance. Looking at the evidence as a whole, all this strikes me as being somewhat far-fetched.

9. I invited Mr [A] to talk about his claims regarding fear of being persecuted due to having a brother in the Pakistan army. Mr [A] said his brother [Sibling 4] might have joined the army even before 2007. I note that the earliest age of enlistment in Pakistan is 16, although active combat is not permitted until the age of 18[16], so [Sibling 4] could conceivably have joined the army as early as 2005. Since [Sibling 4] evidently could not have been in the army as early as 2003 and since the TTP did not exist before 2007, it is hard to link the brother [Sibling 1]’s move to [Country 1] in 2003 with any of the risk and fear factors Mr [A] has identified in this case. More to the present point however, I invited Mr [A] to comment on the apparent lack of evidence of harm or threats of harm that he might have suffered or come close to suffering in the years following [Sibling 4]’s enlistment, in 2007 or earlier, and prior to his purported 2013 speech in the [City 1] college mosque. In response, he appeared to confirm that nothing potentially significant happened to him prior to the alleged 2013 speech. Then he said that the threats he received after his speech in the mosque might have been a response to his brother being a soldier in the Pakistan army. I put to him that this seemed to be a recent invention as, up to this point, he had claimed that the calls were direct and explicit responses to the content of the speech. In any event, Mr [A] was not able to suggest that he was ever harmed between 2007 and (April or October) 2013, all of them years during which his brother [Sibling 4] had been a soldier.

   [16]

10. Given, purportedly, that the first resort of Mr [A]’s brothers was to “escape” to [Country 1], I asked Mr [A] why [Sibling 4] did not also flee, instead committing to the military. In reply, he said he did not know because he had never asked [Sibling 4].

11. I asked Mr [A] about the alleged kidnapping of his [Sibling 6] in 2015. He said that [Sibling 6] was out with his cousin, got separated from him and failed to come home to the village with him. He said that a few days later, the Taliban rang his brother [Sibling 4], who was  working at the time in barracks in Sindh, and told him, “We kidnapped your brother.” He said that the Taliban caller said that the reason for the kidnap was the speech that he, Mr [A], had given in the mosque back in 2013. He said that his brother travelled back to the family’s village KPK province and that the police mobilised. He told me that [Sibling 4] spoke to a brother in [Country 1] about having lodged a First Information Report (FIR) to police after receiving the news about the kidnapping. When I asked Mr [A] if he could support his claims about the alleged kidnapping with any documents such as might show contemporaneous correspondence on the subject, he digressed. When I asked him again, suggesting that four years of what he acknowledged as a frantic effort to save [Sibling 6] would have produced some potentially supporting material, Mr [A] said he had asked [Sibling 4] for a copy of his original report to the police, only to be told by [Sibling 4] that his, [Sibling 4]’s, specific unit was involved with a lot of missing person cases and that if he, [Sibling 4], were to disclose information about his own brother’s kidnapping, people in Pakistan might think he was abusing his position out of personal interest. He said [Sibling 4]’s fear of being accused of exploiting his position was also the reason why nobody, including his mother, the local police, local journalists, his uncle and cousin, had published any notices about [Sibling 6]’s disappearance in any newspapers. I put to Mr [A] that his responses to my question struck me as being odd, given the purportedly frantic family circumstances. I put to him that his brother’s concerns about appearing not to display favouritism would not have stopped the police in KPK generating some material about [Sibling 6]’s disappearance and, in reply, he said that no-one ever publishes such material “there”. Independent country information, however, disputes this claim: Punjab police, for example, publish and maintain an easily-accessible data base listing missing person dating back to 2015[17]; there is a dedicated commission in Pakistan to which missing person cases are reported and pursued[18]; the same commission reportedly disposed of 3,492 out of 5,608 cases up to 30 November 2018[19];  I am able to report these examples due to abundant evidence of domestic media interest in Pakistan in missing persons individually and generally.

    [17]

    [18] “A review of Pakistan’s commission on missing persons,” GeoTV, 27 May 2019,

    [19] “Missing Persons Commission disposed of 3492 cases: Justice (R) Javed Iqbal,” The News, 4 December 2018,

12. I put to Mr [A] that I was, at least so far, much troubled by the suggestion that his brother [Sibling 4], who worked in a military unit designated to deal with missing persons, was, or considered himself, not allowed to pass information regarding missing persons. In reply, Mr [A] said the army had told his brother not to discuss [Sibling 6]’s disappearance on the off-chance, as it were, that [Sibling 6] might have, say, joined the TTP.

13. I put to Mr [A] that his brother [Sibling 4] need not be the only conduit of potentially supporting evidence of [Sibling 6]’s alleged kidnapping and yet there was no material before me to support the claim about [Sibling 6] having been abducted by the TTP, or by anyone else for that matter. In reply, he said he could ask his brother [Sibling 4] again if there is any material he could share. I considered this suggestion in light of Mr [A]’s repeated explanations as to why [Sibling 4] had never been able to share any documents supporting his claims about the kidnapping. I also reminded Mr [A] that three years had elapsed since the delegate, finding that the kidnapping claim lacked credibility: Mr [A] had thus been placed on notice three years ago about the potentially problem with this claim and he had not apparently attempted to locate any independent material regarding the alleged crime. In response, Mr [A] said his cousin was killed in [Village 1] in 2019 by a local youth who later confessed to having been paid by the Taliban. This did not seem to help explain why there was still, after so many years, a lack of any material supporting the claim about [Sibling 6]’s alleged disappearance. After consideration, I indicated that I would not provide additional time, say, for Mr [A] to find out if his brother wanted to change his mind, or for him to seek evidence from other sources.

14. I asked Mr [A] why he thought his [Sibling 6] had been kidnapped rather than simply killed; evidently there was no ransom demand involved. In reply, Mr [A] said that his brother was not killed because the TTP might have been using him as barter when its member rang [Sibling 4] to demand details of his, Mr [A]’s, whereabouts, at the time. He told me [Sibling 4] merely said he was overseas. He implied that after getting so little information out of [Sibling 4], the Taliban might then have killed [Sibling 6]. In this way, Mr [A]’s claim about his brother’s kidnapping is factually reliant, exclusively, on the Taliban having become incensed over his speech in the mosque in 2013. He did not suggest that the Taliban, when talking to [Sibling 4] on this occasion, explicitly linked the kidnapping to his, [Sibling 4]’s, military affiliation.

15. Since Mr [A]’s cousin was allegedly shot to death in Mr [A]’s home village, I asked for more detail. He said his cousin was shot in a public place in front of other people. He said his uncle lodged an FIR with the police, the killer was then arrested and later confessed to have been paid by the Taliban. He acknowledged that the confession would not logically be mentioned in the FIR. In the end, there is no evidence supporting Mr [A]’s suggestion that the alleged killing of his cousin had anything to do with him, soldier [Sibling 4], the TTP or any other potentially relevant factor in this case. Seeming to contradict some of the information above at another point in the hearing, Mr [A] said that the killer, when he confessed said he did not know who the people were who paid him to kill the cousin. When I asked him to say, then, how anyone could know that the Taliban had been responsible he said that the Taliban had been the only people ever to make trouble in the village. I asked Mr [A] how he had found out about what had happened to his cousin in the village, as he had suggested that he did not keep in touch with people there. In response, he said that the late cousin used to work with one of his brothers in [Country 1]; he said his brother in [Country 1] told him. When I asked how his brother in [Country 1] knew, he said he might have received the news from someone in the village.

16. I asked Mr [A] for more details about his brothers’ relationship with the ANP and he said they used to be “local representatives”. When I questioned whether this was akin to being an office bearer or not, Mr [A] said his brothers just used to support the ANP during election campaigns.

17. I put to Mr [A] that men from poorer backgrounds in Pakistan are known quite commonly to travel to Pakistan through employment agencies just out of a motivation to work for better money than they would get in Pakistan. In response, Mr [A] said that his brothers were [Occupation 2] who had had good jobs in Pakistan. I asked him why one brother waited until 2014, given that a pattern of brothers fleeing persecution many years earlier had been established. In reply, Mr [A] said that the wife of the last brother to go to Pakistan had a disability that she overcame in 2014. He said that around the same time the ANP started being targeted. This did not seem to make sense, as Mr [A] had previously suggested the ANP was being targeted in all the preceding years when the other brothers became minded to flee.

18. I put to Mr [A] that in the years since he left Pakistan, there appeared to have been significant socio-political change there, and in KPK province in particular. I put to him that, according to independent sources, Pakistan’s military secured KPK province in 2013-2014, defeating the TTP, pushing most of its remnants back into Afghanistan, and entrenching national control and national institutions including the armed forces, police and courts. I put to him that the state’s control of KPK province was reportedly further consolidated, in 2018, with the incorporation of the former Federally Administrated Tribal Areas (FATA) into KPK province.[20]  In a little more detail, the TTP reportedly fragmented into at least four groups in 2014, and more since, with the defections reported to have left it lately described as “beleaguered” and in disarray.[21] A rump of the splintered TTP was reportedly forced to move out of KPK province and into Karachi by 2015.[22] Pakistan Today, reporting on 30 May 2018, gave a positive view of the merger of FATA into KPK province, with particular reference to the benefits that the rule of law would bring over time based on observations about the success of the process since taking back the province from the grip of Taliban influence in 2013-2014.[23] DFAT reports: “Local observers, including officials, in [KPK province] also reported a trend of increased security, a reduction in reported killings, and reduced fear within the community in 2018. Residents of Peshawar reported an increased sense of security in the evenings due to the enhanced military presence.” Whereas it assesses that, “sporadic large-scale terrorist attacks are likely to continue to occur, against a background of ongoing smaller-scale attacks (albeit at a reduced tempo)” DFAT nevertheless reports: “Government and military operations have disrupted the activities of militant groups and limited their access to former safe havens, and Military courts have tried and convicted individuals with links to terrorist organisations.”

    [20] “Pakistan's National Assembly passes bill to merge FATA with KPK,” Arab News, 24 May 2018, “President signs KP-FATA merger bill ,” The Nation, 28 May 2018,  

    [21] "Isis ascent in Syria and Iraq weakening Pakistani Taliban," The Guardian, 23 October 2014,

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

    [23] “Greater KPK,” Pakistan Today, 30 May 2018,

19. Since 2014, with the Pakistani government having reclaimed much more control over KPK province, the splintered Pakistani Taliban has reportedly had to seek refuge in Afghanistan, although not without sporadic attacks on political and policing figures:[24]

    “The operational capacity of the TTP [Tehreek-e-Taliban] is, today, a lot more limited than what it was before the military operation was launched," says Simbal Khan, an Islamabad-based security analyst.

    "Zarb-e-Azb has succeeded in eradicating bases within Pakistani territory, where they had networks, support and logistics."

    The Pakistani military says it has now reclaimed the tribal districts from the Pakistan Taliban's grip, reestablishing the writ of the state and pushing the Tehreek-e-Taliban's fighters across the border into eastern Afghanistan, where they are suspected to be based out of Nangarhar and Kunar provinces.

    Hakeemullah Mehsud's successor as Pakistan Taliban chief, Mullah Fazlullah, was killed in a United States' drone attack in Afghanistan's Kunar province in June. The group has since installed Noor Wali Mehsud as its new leader.

    "Pakistan has repeatedly shared both information and intelligence with Afghanistan as well as [NATO] authorities regarding [the Tehreek-e-Taliban's] presence/safe havens inside Afghanistan," the military said in a statement emailed to Al Jazeera. "They are living there due to small presence of force on ground owing to lack [of] capacity."

    The shift across the border, analyst Khan says, has limited the group's ability to attack government and civilian targets as frequently as it used to, forcing it to change its tactics.”

    [24] “Pakistan’s Anti-Taliban Party on the Hit List Again,” The Diplomat, 12 July 2018,

1. I put to Mr [A] that, specific to the situation in [City 1], where he claims to have resided from 2011 to 2014, authorities have reportedly been pre-emptive in arresting alleged Islamist plotters in that city in [2019]:

   [Information deleted].[25] 

   [25] [Source deleted]

2. I put to Mr [A] that, even if he did give that speech in the mosque in 2013 and even if his brother [Sibling 6] was kidnapped in early 2015, the TTP members involved in such events might now be dead or dispersed across the border with other more pressing things on their minds. I put to him that there have been sporadic violent incidents attributed to the TTP in and since 2014 but, according to independent reporting, schools have re-opened, for girls as well as boys, NGOs are operating in the province, public health programs are being undertaken such as in delivering polio vaccine to areas of risk, and instances of terror-related violence have reduced year after year. In response, Mr [A] said around sixty-five ANP members were killed in two separate bombings in 2018.

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

1. In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[26] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[27]

   [26] MIMA v Rajalingam (1999) 93 FCR 220.

   [27] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.

2. The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[28] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[29]

   [28] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70

   [29] Sun v MIBP [2016] FCAFC 52 at [69].

3. Whereas I accept that Mr [A] and his family supports and votes for the ANP, and whereas I accept that he joined the ANP, at least at the student wing level, whilst studying at the college in [City 1], I do not accept on the evidence before me that he or anyone else in his family ever faced a genuine threat to their safety and security for reasons of supporting that party.

4. I do not accept on the contradictory and sometimes illogical claims Mr [A] has made that he was ever invited, even with the imam’s reservations, to give an anti-Taliban speech in the college mosque. Whereas Mr [A] gave disparate accounts as to when he gave the speech, and whereas this kind of lapse can sometimes be due to an understandable lapse in memory, there were many other inconsistencies and implausible elements in his story as discussed above. Overall I give more weight to the claim about the imam of the mosque in question having evidently been unaffected to any relevant degree, and to Mr [A] suffering no censure from the college, as if the event never took place. I also give weight to the inconsistencies in the evidence about the harassing telephone calls. It follows that I do not accept that the TTP or Taliban followers or anyone else kidnapped Mr [A]’s brother in 2015 in retaliation for the alleged speech. In addition, I am not satisfied on the evidence before me that the TTP or any other extremist group ever threatened or targeted Mr [A] or his family over his brother [Sibling 4]’s army activities and affiliations. I am also not satisfied on the evidence before me that Mr [A]’s brothers left Pakistan for [Country 1] out of fear of being persecuted; according to him, their activities in what he described as a predominantly ANP-supporting village were low-level and more or less isolated to getting involved during election campaigns. Even though the Taliban has been known to attack ANP activists, I do not accept that anyone in Mr [A]’s family would have been regarded by the Taliban as a target. In light of the many problems I have found in Mr [A]’s evidence overall, I give no weight to the claim about the cousin who was allegedly shot earlier this year; Mr [A]’s suggestion about the Taliban having commissioned the murder, on closer examination, turned out to be speculative at best.

5. On the evidence before me, I am satisfied that Mr [A] would be reasonably able to reintegrate back into society in his village or in [City 1] where he pursued several years of education including tertiary studies. In view of my overall findings in this matter I consider it unnecessary to make findings with regard to relocation to some other part of Pakistan. Mr [A] evidently established social links in [City 1] at a peer level and it is therefore reasonable to conclude that he would re-establish some of these or establish new social, professional and even political links on return. He obtained a degree in [City 1] that would conceivably help his employment prospects in that city. I find that he would not need to return to live in his home village, from which most of his family has moved, where I acknowledge that his degree might possibly be wasted and where his family evidently did not wish to tether him in any event.

6. Regarding effective state protection, I have heard evidence in this matter to the effect that the authorities in Pakistan are under-resourced and about how, in any event, they and members of their families can be targets of Taliban and other extremist violence whether on or off-duty. As far as this matter is concerned, I give more weight to the fact that during the years between around 2007, or before, when Mr [A]’s brother [Sibling 4] became a soldier, and late 2014, when Mr [A] came to Australia, there is no credible or plausible evidence of his having suffered or faced serious harm or threats of such due to having a brother who was a soldier. His late suggestion that this was a possible factor in the Taliban deciding to respond negatively to the alleged speech in the mosque was, at the very highest, bald speculation, which in fact he himself acknowledged at the hearing; it also struck me as somewhat improvisatory, and, all things considered, I give the suggestion no weight. Further to the issue of effective state protection, I give weight to the independent evidence, cited above, regarding the recent pre-emptive arrests of terror suspects in [City 1]: this shows both willingness and capacity on the part of authorities in [City 1], at least, to protect the population from Taliban and other extremist violence. Meanwhile, I acknowledge Australian courts having ruled that states (presumably including Pakistan) are not required to guarantee the safety of their citizens from harm caused by non-state persons.[30] In MIMA v Respondents S152/2003 Gleeson CJ, Hayne and Heydon JJ observed that “no country can guarantee that its citizens will at all times and in all circumstances, be safe from violence”.[31]  Justice Kirby similarly stated that the Convention does not require or imply the elimination by the state of all risks of harm; rather it “posits a reasonable level of protection, not a perfect one”.[32]

   [30] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [26]. See also MIMA v Thiyagarajah (1998) 80 FCR 543 at 566-7,

   [31] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [26].

   [32] MIMA v Respondents S152/2003 (2004) 222 CLR 1 at [117].

7. To recap, I am not satisfied on the evidence before me that Mr [A] faces a real chance of being persecuted in Pakistan for reasons of ANP support, even active support, notwithstanding evidence of attacks on some ANP political figures and their associates from time to time in recent years. I am not satisfied that he faces a real chance of being persecuted in Pakistan owing to his brother [Sibling 4]’s profession or profile. I am not satisfied that he is a target for harm in the eyes of the TTP or any other entity. I am not satisfied that his brother [Sibling 6] was kidnapped. I find Mr [A] a generally unreliable witness in this matter.

8. Having considered all of the evidence in this matter in its entirety, I am not satisfied that Mr [A] faces a real chance of being persecuted in Pakistan in the reasonably foreseeable future for any reason cited in s.5J(1)(a) of the Act. His claimed fear is not well founded. He is not a refugee.

9. For the reasons given above, I am not satisfied that Mr [A] is a person in respect of whom Australia has protection obligations under s.36(2)(a).

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

1. Having concluded that Mr [A] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).

2. A person is entitled to protection under s.36(2)(aa) if there are 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.

3. Relevantly, 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).

4. "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.

5. Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.

6. Essentially, all three of these definitions 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.

7. 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.

8. As Mr [A] is a citizen of Pakistan, I find that Pakistan is the “receiving country” in this case.

9. I find that the harm Mr [A] identifies in his complementary protection claims includes  “arbitrary deprivation of life”, “cruel or inhuman treatment or punishment”, “torture” and “degrading treatment or punishment”.

10. Mr [A]’s claims to complementary protection are essentially the same as his refugee status claims. Since his refugee claims have failed on the basis of inconsistency and lack of credibility, and/or on the failure to meet the “real chance” test, they can no more succeed as complementary protection claims.

11. Having considered all of the evidence in this case, 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 Mr [A] will suffer significant harm.

Other findings

1. There is no suggestion that Mr [A] 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

1. The Tribunal affirms the decision not to grant the applicants Protection visas.

Luke Hardy

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.

…

MIMA v Prathapan (1998) 86 FCR 95 at 104-5 per Lindgren J, Burchett & Whitlam JJ agreeing. This aspect of Thiyagarajah

was not disturbed by the High Court decision in NAGV & NAGW v MIMIA (2005) 222 CLR 161.