1622593 (Refugee) - [2020] AATA 6171

1622593 (Refugee) [2020] AATA 6171 (9 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1622593
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Lilly Mojsin
DATE:9 September 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 9 September 2020 at 11:55 am

LEGISLATION
Migration Act 1958, ss 5J, 36, 65,499
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MZAAJ v Minister for Immigration and Anor [2015] FCCA 141
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
SZDSD v Minister for Immigration and Anor [2018] FCCA 1029
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 16 December 2016 to refuse to grant the applicant a protection visa [PV] under s.65 of the Migration Act 1958 (the Act).
The applicant arrived in Australia on [date] August 2013 as the holder of a [student] visa.
On 1 March 2015 his [student] visa ceased.
The applicant who claims to be a citizen of Pakistan, applied for the visa on 25 May 2016. The delegate refused to grant the visa finding that the applicant’s claims were not credible.
The applied to this Tribunal for review of that decision, attaching a copy of the delegate’s decision to his application for review.
The applicant attended a Tribunal hearing, by video, from Perth.
The applicant was assisted by an Urdu interpreter. The applicant was asked at the hearing if he wished any witnesses to be called by the Tribunal and he stated that he did not.
CRITERIA FOR A PROTECTION VISA
See annexure A
CONSIDERATION OF CLAIMS AND EVIDENCE
In a statutory declaration and information in his PV the applicant stated that he was born on [date] and grew up in the [Village 1] District Mansehra, where his family continues to reside. They are Hazara Sunni Muslim. The applicant has [number of] [siblings]. His father was running a business until 2015, however because of a range of financial issues he had to close the business. His mother has been a homemaker since he was a child.
After the applicant matriculated, he studied at [a] College. He arrived in Australia on [date] August 2013 as the holder of a 17 month student visa. His father assisted in paying for his airfares and he came with approximately $2 000 from Pakistan. He studied English for a year and completed certificates 2, 3 and 4. He began studying [at] [an institute] for approximately 7-8 months and completed a certificate 2 and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] AATA 6171
Decision Date

CaseChat Overview and Summary

The applicant sought a protection visa, claiming he feared persecution if returned to Pakistan. His claims stemmed from an arranged marriage that he called off, leading to threats from the prospective bride's family who considered the matter one of honour. He also raised concerns about his ability to access adequate medical treatment for a pre-existing condition in Pakistan.

The court was required to determine whether the applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958, as a refugee with a well-founded fear of persecution, or under section 36(2)(aa), on complementary protection grounds due to a real risk of significant harm if returned to Pakistan. Specifically, the court had to assess if the threats from the family constituted persecution for a Convention reason, and if the inadequacy of Pakistan's healthcare system for his specific medical condition amounted to significant harm.

The court found that the applicant had not established a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. While acknowledging the independent evidence regarding the general security situation in Pakistan, the court was not satisfied that the applicant could not obtain protection from the government of Khyber Pakhtunkhwa against non-state actors. Furthermore, regarding the applicant's medical condition, the court determined that the inadequacies of the Pakistani healthcare system, or the inability to access equivalent treatment, did not constitute significant harm as defined by the Act. The court reasoned that such inadequacies were due to the country's economy and were faced by the population generally, rather than being an intentional act or omission directed at the applicant personally, and therefore did not amount to an arbitrary deprivation of life, torture, or cruel, inhuman, or degrading treatment.

Consequently, the Tribunal affirmed the decision not to grant the applicant a protection visa, finding that he did not satisfy the criteria under either section 36(2)(a) or section 36(2)(aa) of the Migration Act 1958.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

See annexure ACONSIDERATION OF CLAIMS AND EVIDENCE In a statutory declaration and information in his PV the applicant stated that he was born on [date] and grew up in the [Village 1] District Mansehra, where his family continues to reside. They are Hazara Sunni Muslim. The applicant has [number of] [siblings]. His father was running a business until 2015, however because of a range of financial issues he had to close the business. His mother has been a homemaker since he was a child. After the applicant matriculated, he studied at [a] College. He arrived in Australia on [date] August 2013 as the holder of a 17 month student visa. His father assisted in paying for his airfares and he came with approximately $2 000 from Pakistan. He studied English for a year and completed certificates 2, 3 and 4. He began studying [at] [an institute] for approximately 7-8 months and completed a certificate 2 and attempted a certificate 3 but he was unable to complete it. He applied for an extension of his student visa, but was refused. In his PV, in support of claims for protection, the applicant stated that a “few months before I left Pakistan for Australia and arrangement was made by my family that I marry a girl by the name of [Ms A]”. An arrangement was made by the families that I would marry [Ms A] and my sister [Ms B] was to marry [Ms A]’s brother [Mr C]. An engagement ceremony was held for [Ms A] and I, however [Ms A] and I did not want to get married to each other. [Ms A]’s brothers are now angry with me because of this. They have made threats against me and said they would kill me if I was to return to Pakistan. They believe I have brought shame to their family. In the applicant’s statutory declaration of 18 October 2016 to the Department and to the Tribunal, he claimed that: ·Approximately 5 months into my arrival in Australia I was informed by my cousin about a potential engagement with [Ms A], who was my mothers, uncles, daughters, daughter. Although I had never met her or her family, I began corresponding with [Ms A] through [social media]. [Ms A]'s along with her [siblings] and her parents live in Karachi and are fairly well off. She has an additional two brothers who currently work [overseas]. Unbeknown to me, my sister [Ms B] (my second eldest sister) got married to [Ms A]'s brother, [Mr C] in May 2015.·When my parents and [Ms A]'s parents were discussing our potential marriage, there was no discussion about my sister marrying [Ms A]'s brother. However, when I found out about my sister marriage to [Ms A]'s brother, I was upset. My sister married [Ms A]'s brother legally in May 2015, however she still lives with my parents because [Mr C] is currently working [overseas].·The arrangement that my sister and I would marry [Ms A] and her brother is considered a watta-satta. The practice of watta-satta is where one brother and sister are married to another pair from another family, often close relatives. Watta-satta is sometimes used as a form of blackmail, a 'give and take' or 'throwing a stone and receiving something back'. It can also be used as a form of control over the money a girl takes out of her own family on marriage and the amount that comes in with her brother's bride. Additionally, it means that if l was to mistreat my wife then my sister would be mistreated by her husband (my wife's brother). Therefore, I decide that I did not want to be a part of this; I want to be able to marry the person that I choose.·As a consequence, my family and I have received threats from [Ms A]'s family via the telephone. Additionally, my sister told me that [Ms A] has been beaten by her family because l called off the engagement. My family told me about these threats commencing was over the phone at the end of 2015 and the last time l was informed of a threat was September 2016. [Ms A]'s family have made this issue a matter of their honour and ego, they have expressly stated in their threats that I must marry [Ms A], otherwise I will be killed. The rationale behind these threats is that in Pakistan when a woman has been betrothed and that potential arrangement has been called off, no one else will marry that women. That is why I have commenced an application for protection because I know that if I was to return to Pakistan I will be killed.·Furthermore, I am unable to relocate to other areas of Pakistan because [Ms A]'s family have the financial power to locate me and end my life. They are also relatives of mine, meaning that they have endless connections to my family making it difficult to withhold information about my whereabouts. When I broke off the engagement l knew that my life would be at great risk.

Decision

Reasons for decision

As well as law enforcement agencies[2], the criminal justice system comprised of ‘criminal courts set up under the 1898 Criminal Procedure Code (CrPC); special (civilian) courts such as the antiterrorism courts established under the 1997 Anti-Terrorism Act; military courts; and corrections departments organized at the provincial level. Under the Constitution[3], law and order is the responsibility of the provinces that discharge it through their provincial governments. In the provinces, the criminal justice system is managed through the Home and Prosecution Department. [2] UK Home Office Report ‘Country Policy and Information Note Pakistan: Actors of protection’ dated June 2020[3] >In relation to the judiciary the UNHRC[4] expressed concern at, ‘the challenges facing the judiciary in strengthening its independence and effectiveness, including the lack of transparency of judicial appointment procedures; the shortage of judges and long-term judicial vacancies; insufficient budget allocation; the considerable backlog of cases; the lack of high-quality legal education and continuing professional training for legal professionals; and corruption in the judiciary. According to UK Home Office[5], which captured data on the experiences and perceptions of over 4,000 people in Pakistan regarding the rule of law in their country, noted ‘When it comes to criminal courts, inadequate resources were cited as their most serious problem. Views on how often courts guarantee everyone a fair trial and perceptions of corruption have both fluctuated since 2013.[4] UNHRC, ‘Concluding observations on the initial report of Pakistan’ (para 31), 23 August 2017[5] UK Home Office Report ‘Country Policy and Information Note Pakistan: Actors of protection’ dated June 2020The US State Department Report Human Rights Practices 2019 stated: ‘Extensive case backlogs in the lower and superior courts undermined the right to effective remedy and to a fair and public hearing. Antiquated procedural rules, unfilled judgeships, poor case management, and weak legal education caused delays in civil and criminal cases. In regard to the applicant’s province of Khyber Pakhtunkhwa, a criminal justice reform roadmap and a costed implementation plan for the government of Khyber Pakhtunkhwa was accepted by the judicial and executive provincial leadership in 2018[6]. Further the UNDP[7] Strengthening Rule of Law Programme (SRLP) in 2019 stated that it supports both supply and demand sides of the rule of law by strengthening justice institutions and citizen rights, and by deepening the ongoing efforts to secure peace and stability in the province of Khyber Pakhtunkhwa (KP). The programme supports sustainable peace by improving access to justice in Khyber Pakhtunkhwa through effective and accountable justice service delivery.[6] >I have found no evidence to suggest that state of Pakistan is not willing and able to offer protection to the applicant, an ethnic Hazara Sunni Muslims, from Mansehara in province of Khyber Pakhtunkhwa, from non-state actors. I have no independent evidence before me to suggest that ethnic Sunni Muslim Hazaras from Mansehara Khyber Pakhtunkhwa, who suffer [Medical condition 1], are not able to access protection, or that the protection is not durable. I have found no independent evidence to suggest that the protection available to the applicant in Pakistan does not consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.I am satisfied that protection against persecution could be provided to the applicant by Pakistan. I have considered the applicants’ claims and evidence individually and cumulatively. Whilst I note the independent evidence, cited above, regarding the security situation in Pakistan, I find that the applicant, a Hazara Sunni Muslim does not have a real chance that, if returned to Pakistan, he would suffer persecution for one or more of the reasons mentioned in paragraph 5J(1)(a). I find that the applicant does not have a well-founded fear of persecution for these reasons.I have considered whether the applicant meets the complementary protection criterion under s.36(2)(aa).The applicant, is an ethnic Sunni Hazara, from Mansehara Khyber Pakhtunkhwa, suffering from [Medical condition 1]. I have considered whether the applicant, a person with [Medical condition 1], would suffer significant harm on his return to Pakistan.Pakistan has a mixed health system that includes public, parastatal, private, civil society, philanthropic contributors, and donor agencies. In Pakistan, health care delivery to the consumers is systematized through four modes of preventive, promotive, curative, and rehabilitative services. The private sector attends 70% of the population through a diverse group of trained health team members to traditional faith healers. [8] In Pakistan since 2000, there has been the notable improvement in some health indicators mainly as a result of public, private programs and NGOs contributions. Despite, health profile of Pakistan is illustrated by high population growth rate, infant and maternal mortality rates, and dual burden of communicable and non-communicable diseases. Regardless, the country is undergoing considerable social, environmental, and economic changes.[8] >[Information related to Medical condition 1 deleted][9] Treatment may require the coordinated efforts of a team of specialists. General internists, metabolic geneticists, neurologists, psychiatrists, and other healthcare professionals may need to systematically and comprehensively plan treatment. Psychosocial support for the entire family is essential. Genetic counselling is recommended for affected individuals and their families.[9] [source information deleted][Details deleted].In the applicant’s province of Khyber Pakhtunkhwa[10], many weaknesses and challenges have been identified in the current Health Sector Strategy (HSS), including poor access to and utilization of health services, low quality and effectiveness of care, limited managerial capacity and weak accountability at all levels, systematic underfunding of the public health system, inefficient and inequitable resource allocation, low financial protection, and fragmented and discontinued reform initiatives. Public sector facilities are composed of hospitals ranging from Medical Teaching Institutions to secondary and district-level hospitals (also known as district headquarters [DHQ] hospitals and public hospitals) and supported by Rural Health Centres. These facility types have inpatient bed capacities and are further supported by a range of un-bedded facilities: Basic Health Units, government rural dispensaries, mother and child health centers, and tuberculosis clinics. In light of the applicant’s rare condition, I accept that there is a real risk that the applicant will not be able to source the same type of treatment for his condition in Mansehra as he has obtained in Australia. I accept that his brother has been unable to obtain treatment for the same condition. [10] >In MZAAJ v Minister for Immigration and Anor [2015] FCCA 141, the Federal Circuit Court found the Tribunal was not in error when it failed to consider that the prospect of the applicant dying as a result of being unable to obtain dialysis in Sri Lanka would fall within the concept of arbitrary deprivation of life. In particular, the Court noted at [42] that the concept of arbitrary deprivation of life 'does not concern the consequences of scarce medical resources in developing countries'. Having regard to SZDSD v Minister for Immigration and Anor [2018] FCCA 1029 where Judge Baird in regard to the question of whether the applicant would be denied medical treatment 'on an arbitrary basis' (at [60]), Judge Baird rejected the submission that the fact there was a prospect of the applicant dying of a health condition would enliven the application of the criterion for complementary protection 'without more' (at [59]-[63]).I have had regard to the Department’s Guidelines[11] that state “if a non-citizen’s life expectancy would be threatened by being removed due to a pre-existing medical condition (both terminal and non-terminal in nature), this would not amount to an arbitrary deprivation of life. Deprivation of life due to natural causes is not arbitrary.” The Department’s Guidelines[12] also state as follows:The absence or inadequacy of medical treatment in the country of return does not generally amount to a violation of Article 7 and will therefore not generally meet the definitions of cruel or inhuman treatment or punishment or degrading treatment or punishment. The right to health is protected under Article 12 of the International Covenant on Economic, Social and Cultural Rights and is not considered to be a basis for a non-refoulement obligation in its own right. There are two types of arguments that an exacerbation of a medical condition could amount to torture, cruel, inhuman or degrading treatment. The first relates to an exacerbation that flows from the return of a person, specifically that the act of returning a person would be stressful or would increase the severity of a medical condition. The second is an exacerbation flowing from an inability to access medical treatment in the country of return, which would consequently increase the severity of the person’s condition. In general, neither of these two scenarios will amount to a breach of Article 7 of the ICCPR.[11] PAM3: Refugee and Humanitarian - Protection visas - Complementary Protection Guidelines, paragraph 12.[12] PAM3: Refugee and Humanitarian - Protection visas - Complementary Protection Guidelines, paragraph 27.Based on the evidence before me, I find that the inadequacies of the Pakistani health care system or the inability to access medical treatment in Pakistan equivalent to the treatment obtained in Australia that the applicant may face on his return to Pakistan does not amount to significant harm as defined. It does not constitute the carrying out of the death penalty, the arbitrary deprivation of life, cruel or inhuman treatment or punishment or degrading treatment or punishment. The country information indicates that any failure to provide the applicant with relevant and appropriate health care treatment or support will be due to the Pakistan economy rather than any intentional act or omission. I also find that the risk of harm due to inadequate heath care services in Pakistan is one faced by the population of Pakistan generally and not faced just by the applicant personally.On the evidence before me I am not satisfied that the applicant suffered harm or will suffer significant harm on his return to Pakistan as a ‘person with [Medical condition 1]’. Rather it is because relevant medical services for [Medical condition 1] is unavailable in Mansehra or in Pakistan for the whole population. I have considered whether the applicant will suffer significant harm from non-state actors for refusing to marry [Ms A]. The independent information cited above indicates that the government of Khyber Pakhtunkhwa is strengthening it justice institutions and citizen rights and improving access to justice through effective and accountable justice service delivery. I am not satisfied that the applicant could not obtain, from the government of Khyber Pakhtunkhwa, protection such that there would be a real risk that the applicant will suffer significant harm from non-state actors for refusing to marry. The applicant indicated he would not be able to work in Pakistan. I accept the applicant, a sufferer of [Medical condition 1] would not be able to work. I note that in 2019, the unemployment rate in Pakistan was at approximately 4.45 percent, a slight increase from 4.08 percent the previous years[13]. DFAT states that in 2017, the total labour force of Pakistan comprised approximately 64 million people, of whom 42 per cent worked in agriculture, 23 per cent in industry, and 35 per cent in services. [13] >The country information[14] indicates that any failure to provide the applicant with employment will be due to the Pakistani economy rather than any intentional act or omission. I also find that the risk of harm in Pakistan is one faced by the population of Pakistan generally and not faced just by the applicant personally. I am not satisfied there is a real risk the applicant would suffer significant harm for this reason. [14] DFAT Report Pakistan 2019On the evidence before me I am not satisfied that the applicant suffered harm or will suffer significant harm on his return to Pakistan as a ‘person with [Medical condition 1]’. Rather it is because relevant medical services for [Medical condition 1] is unavailable, in Mansehra or in Pakistan, for the whole population. Therefore, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that the applicant will suffer significant harm ie that there is a real risk that he will be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment. Accordingly, I find that the applicant does not satisfy the requirements of s.36(2)(aa) of the Act.CONCLUSIONSFor the reasons given above, the Tribunal finds that there not a real chance that the applicant will face persecution for one or more of the reasons mentioned in paragraph 5J(1)(a) if he was to return to Pakistan, now or in the reasonably foreseeable future. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under S.36(2)(a).Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).DECISIONThe Tribunal affirms the decision not to grant the applicant a protection visa.Lilly MojsinMemberCRITERIA FOR A PROTECTION VISAThe criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.Mandatory considerationsIn accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.ATTACHMENT - Extract from Migration Act 19585 (1) Interpretation…cruel or inhuman treatment or punishment means an act or omission by which:(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;but does not include an act or omission:(c) that is not inconsistent with Article 7 of the Covenant; or(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:(a) that is not inconsistent with Article 7 of the Covenant; or(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:(a) for the purpose of obtaining from the person or from a third person information or a confession; or(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or(c) for the purpose of intimidating or coercing the person or a third person; or(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.…receiving country, in relation to a non-citizen, means:(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.…5H Meaning of refugee(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.Note: For the meaning of well-founded fear of persecution, see section 5J.…5J Meaning of well-founded fear of persecution(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and(c) the real chance of persecution relates to all areas of a receiving country.Note: For membership of a particular social group, see sections 5K and 5L.(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.Note: For effective protection measures, see section 5LA.(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or(b) conceal an innate or immutable characteristic of the person; or(c) without limiting paragraph (a) or (b), require the person to do any of the following:(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;(ii)conceal his or her true race, ethnicity, nationality or country of origin;(iii)alter his or her political beliefs or conceal his or her true political beliefs;(iv)conceal a physical, psychological or intellectual disability;(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and(b) the persecution must involve serious harm to the person; and(c) the persecution must involve systematic and discriminatory conduct.(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:(a) a threat to the person’s life or liberty;(b) significant physical harassment of the person;(c) significant physical ill‑treatment of the person;(d) significant economic hardship that threatens the person’s capacity to subsist;(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.5K Membership of a particular social group consisting of familyFor 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 familyFor the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:(a) a characteristic is shared by each member of the group; and(b) the person shares, or is perceived as sharing, the characteristic; and(c) any of the following apply:(i)the characteristic is an innate or immutable characteristic;(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;(iii)the characteristic distinguishes the group from society; and(d) the characteristic is not a fear of persecution.5LA Effective protection measures(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:(a) protection against persecution could be provided to the person by:(i)the relevant State; or(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:(a) the person can access the protection; and(b) the protection is durable; and(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.…36 Protection visas – criteria provided for by this Act…(2)A criterion for a protection visa is that the applicant for the visa is:(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (a); and(ii)holds a protection visa of the same class as that applied for by the applicant; or(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:(i)is mentioned in paragraph (aa); and(ii)holds a protection visa of the same class as that applied for by the applicant.(2A)A non‑citizen will suffer significant harm if:(a) the non‑citizen will be arbitrarily deprived of his or her life; or(b) the death penalty will be carried out on the non‑citizen; or(c) the non‑citizen will be subjected to torture; or(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or(e) the non‑citizen will be subjected to degrading treatment or punishment.(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.…

Ratio Decidendi

Legal Principle Established

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