1700341 (Refugee)

1700341 (Refugee) [2021] AATA 514 (10 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1700341
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Deputy President J.L Redfern PSM
DATE:10 March 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 10 March 2021 at 4:30 PM
CATCHWORDS:
REFUGEE – Protection (Class XA) (Subclass 866) visa – Pakistan – application for protection on the basis of refugee and complementary protection criterion – involvement with Shi’a-Sunni Ittehad in 2013 – applicant claims he received threats from Tehrik-e-Taliban Pakistan – whether the applicant faces a real chance or real risk of serious or significant harm – consideration of genuineness of documents provided by the applicant – claims of applicant not accepted – decision under review affirmed.
CASES:
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
LEGISLATION:
Migration Act 1958 (Cth), ss 5(1), 5H, 5J, 5K, 5LA, 36, 36(2)(a), 36(2)(aa), 36(2A), 36(2B) 65, 499
Migration Regulations 1994 (Cth), Sch 2
SECONDARY MATERIALS:
Department of Foreign Affairs and Trade, Country Information Report on Pakistan, 20 February 2019
Department of Home Affairs, Procedural Advice Manual 3 Refugee and Humanitarian - Complementary Protection Guidelines
Department of Home Affairs, Procedural Advice Manual 3 Refugee and Humanitarian - Refugee Law Guidelines
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Ministerial Direction No.84 - Consideration of Protection Visa applications, 24 June 2019
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 dependants.
STATEMENT OF DECISION AND REASONS

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant was born in [year] in Khyber Pakhtunkhwa, Pakistan. He claims to be a citizen of Pakistan, which is not in dispute. The applicant first arrived in Australia on 6 July 2013 as the holder of a student visa. His student visa was subsequently cancelled, and he applied for a protection visa on 26 April 2016.
The applicant claims to fear harm from the Tehrik-e-Taliban Pakistan (TTP) if he returns to Pakistan.[1] The TTP is also called the Pakistani Taliban and in his evidence the applicant often referred to the TTP as ‘the Taliban’. The applicant set out his claims in his visa application. Those claims were amended prior to the applicant’s interview with the delegate. The delegate refused to grant the protection visa because she did not accept the truth of a number of the applicant’s claims and was therefore not satisfied that Australia’s obligations to provide protection were engaged under the refugee or complementary protection criteria set out in the Act.
[1] Tehreek-i-Taliban Pakistan is an alternative spelling.
The applicant appeared before the Tribunal on 30 November 2020. He was assisted by an interpreter in the Urdu and English languages and attended the hearing in-person. He was not represented by a migration agent or lawyer. The applicant provided further documentary evidence after the hearing, as a result of which a further hearing was scheduled for 18 February 2021 to give the applicant the opportunity to explain the provenance of these documents.
For the reasons that follow, I am not satisfied about the applicant’s claims for protection and I affirm the decision under review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in ss.36(2)(a), (aa), (b), or (c) of the Act. Namely, the decision-maker must be satisfied that the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Subsection 36(2)(a) of the Act 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) of the Act). 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) of the Act).
Under s.5J(1) of the Act, 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. The 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 of the Act, 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) of the Act, 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) of the Act (‘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) of the Act, which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84,[2] made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department - Procedural Advice Manual 3 ‘Refugee and Humanitarian - Complementary Protection Guidelines’ and Procedural Advice Manual 3 ‘Refugee and Humanitarian - Refugee Law Guidelines’. The Tribunal must also take into account any country information assessment prepared by the Department of Foreign Affairs and Trade (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
[2] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Ministerial Direction No.84 - Consideration of Protection Visa applications, 24 June 2019.
The most recent report from DFAT is the Country Information Report for Pakistan dated 20 February 2019. I have considered this report, together with other relevant country information. I have also considered the Department guidelines to the extent that these are relevant to the consideration of the decision under review. Generally, these guidelines contain an analysis of the law, examples of how the law has been applied in various jurisdictions and guidelines to decision-makers on how the law is to be applied. There is little by way of policy and the guidelines were of limited assistance in the circumstances of this case. My analysis of the country information and any relevant guidelines are set out later in these reasons.
BACKGROUND
The applicant was born in [city], Khyber Pakhtunkhwa, Pakistan in [year] and is a national of Pakistan. He resided and worked in [city] for most of his life until he travelled to Australia in 2013. The applicant claims to be a Sunni Muslim. I accept this claim. The applicant arrived in Australia in July 2013 as the holder of a Subclass TU 573 Student visa. According to the decision record of the delegate, the applicant intended to complete a diploma then bachelor’s degree in information technology by early 2016. However, he was involved in a car accident in September 2014 and was unable to complete his studies. The applicant’s student visa was cancelled on 11 September 2015. The applicant confirmed this history in his evidence at the hearing.
The applicant applied for a protection visa on 26 April 2016 and was granted a bridging visa pending the consideration of his application. The protection visa application was refused on 16 December 2016 by a delegate of the Minister and the applicant applied for review of this decision to the Tribunal on 7 January 2017.
It is recorded in the application for the protection visa that the applicant feared returning to Pakistan for the reasons set out in the statement which accompanied the application. The statement was undated but signed. The decision record notes that the applicant’s agent submitted an amended statement of claims to the Department by email advising that the applicant had advised his original claims were incorrect and that the updated version was to replace them. An updated statement was provided to the Department in the week before the scheduled interview with the delegate. It is this statement to which I have had regard in considering the applicant’s evidence and claims.
In brief, the applicant claims that he fears he will face harm as he is a Sunni Muslim who had joined the Shi’a-Sunni Ittehad (SSI) in about March 2013 and was recruiting Sunni Muslims to join the organisation. The applicant claims that he was contacted by the TTP in April 2013 because of these activities. He claims that he was asked to join them and when he refused, they threatened to kill him. The applicant further claims that he went into hiding and left for Australia on his student visa. He claims that the TTP will target him on his return.
By letter dated 27 October 2020, the applicant was invited to provide any additional evidence and country information in relation to his claims. Relevant to the issue that led to the further hearing, the applicant was specifically requested to provide any information about threats made to him and any reports made to authorities about the threats, including copies of any such threats or reports. The applicant did not respond to this letter but in the hearing response form provided by email on 24 November 2020, the applicant ticked the box indicating that he did not wish to rely on any documents at the hearing. The applicant did not provide any documents or further information or submissions prior to the hearing.
On 30 November 2020, the applicant attended a hearing in Canberra scheduled before me and provided evidence with the assistance of an interpreter. The hearing was in-person. The applicant also relied on his amended statement that was provided to the delegate. He provided evidence after the hearing, being letters translated into English that were said to have been received by him from the TTP when he was living in Pakistan. This evidence was provided on 13 December 2020. On 29 January 2021 the applicant was invited to attend a further hearing which he participated in by video through the Microsoft Teams platform. At this hearing, the applicant clarified some aspects of his previous evidence and explained how the copies of the threatening letters alleged to have been sent by the TTP in 2013 were located and why they were not previously produced to the Department or to the Tribunal.
OUTLINE OF EVIDENCE AND CLAIMS
The applicant provided a statement of his claims to the delegate prior to his interview. As already noted, this statement was revised from the statement that was provided with his application for protection. The claims made in the revised statement can be summarised as follows:
(1)The applicant is a Sunni Muslim by religion.
(2)He met some men at the gym in March 2013 and they became best friends. They were Shi’a Muslims and members of SSI. They asked the applicant to join SSI. He was impressed by their work and commitment and he decided to join. The motive behind SSI was to combine the Shi’a and Sunni religions. He decided to join and his role was to recruit Sunni’s to join the organisation. The applicant was invited to the head office in Multan, where the head of the organisation, Mr Hassan Saddiqui, asked the applicant to head the organisation in [city]. After this he started to work for the SSI full-time.
(3)He attended a meeting of SSI in Lahore which was very successful and when he came home to [city], his brothers were waiting for him. They told him they had received a letter on 1 April 2013 from the TTP stating that Shi’a and Sunni are “separate” and that working with the SSI was working against Islam. The letter threatened to kill the applicant and his friends. According to the applicant, the letter stated that he should work for the TTP to kill the Shi’a or to continue to work in SSI to obtain secrets to pass them over to the TTP. If he did not agree to their demands he would be killed for betraying Islam.
(4)His brothers were anxious and angry that he had put their lives at risk, and they asked him to leave the house. They also suggested that he should report the matter to the police. The applicant stated that he reported the threats to the police but did not detail what advice he received or whether investigations were undertaken by the police in his statement.
(5)The applicant moved to Islamabad “to hide” but his family received another letter stating they knew the applicant was in Islamabad and that the applicant “had not worked according to their instructions” and that they would kill him.
(6)He claims the TTP killed his best friend on 14 December 2014 and kidnapped and killed his other friend on 18 August 2016 whose body was found on 30 August 2016. The applicant fears his friend was tortured by the TTP so they could obtain information about him.
(7)If he returns to Pakistan, he will be killed by the TTP for opposing them and the State authorities in Pakistan does not have the resources to protect him.
At the interview by the delegate, the applicant repeated and expanded on these claims and the evidence that he gave to the delegate is set out in the decision record. The evidence that the applicant gave at interview is broadly consistent with the outline of the applicant’s claims set out above. When questioned about the alleged threatening letters, it is reported in the decision record that the applicant stated he reported the issue to the police but they suggested he leave the city as they would be unable to assist him. It is noted that the delegate requested that the applicant provide her with copies of any report to the police and copies of the letters that were sent by the TTP. The applicant was given 14 days from the date of the interview to provide any further documents but according to the decision record, the applicant did not do so. This was a matter that was discussed with the applicant at the hearing.
At the hearing, the applicant gave evidence to the following effect.
The applicant was born in [city] and resided there until departing for Australia. He finished school in [year] when he was 16 years old. After school he completed a short six months course in information technology. He worked in this field as a computer operator for a period.
His father passed away in 2011. He has a mother, two brothers and two sisters. They all live in [city]. One of his brothers and his unmarried sister live with his mother. The applicant is the youngest child. His father was businessman and his mother owns property in Pakistan. The applicant said that he applied for a student visa in about March or April 2013. He had assistance and used a migration agent or consultant located in Pakistan. He applied for the visa and enrolled in an information technology course because this is what he wanted to study.
The applicant originally applied to study in Canberra but he was not accepted and instead studied in Sydney. He completed two courses in Sydney but was unable to continue with his studies because of his accident in 2014. He was not enrolled at the time that his student visa was cancelled in about September 2015. He eventually moved to Canberra where some of his cousins were living. The applicant was asked whether he understood that a student visa was a temporary visa. He said that he understood this and it was his intention to return to Australia again after he had completed his studies. The applicant was also asked why he did not apply for a protection visa until April 2016. He responded to the effect that he wanted to stay in Australia and “had no other option”. The applicant expanded on this evidence to say that he had wanted to finish his studies, obtain a work visa and then a permanent visa but was unable to do this because he could not complete his studies following the accident. He said that this is why his student visa had been cancelled. He did not return to Pakistan after his visa was cancelled because he feared for his life and this is the reason why the applicant said he made his claim for protection.
The applicant said that he joined a gym in [city] in early 2013 and this is where he met three men who became his friends. Their names were [friend A], [friend B] and [friend C]. These friends were Shi’a Muslims and they were members of the SSI. They asked him to join the SSI, which the applicant said he decided to do within a few weeks after meeting them. At this time, the applicant was working in a college near [city].
The applicant said that he joined the SSI by attending an office in [city] and filling in some forms. The person in charge was called Hussein Khan. The applicant said that part of his role was to convince Sunni Muslims to join the SSI. He said that he approached many people he knew, including friends from his previous college. At the time that he was undertaking this role he was working part-time, from Monday through to about Thursday for about 20 hours per week. He said it was difficult to recruit people to join the SSI. While he was undertaking this role, he and his friends would travel to other branches of the SSI in Lahore, Islamabad and Gilgit. He said that he visited these other sites with his friends between April and July 2013. On one occasion he travelled to Multan and met with the head of the organisation who said that he was very happy with the work that the applicant had done and asked him to become a supervisor in [city]. The applicant said that he believed this was about the end of April 2013. When asked about his responsibilities as supervisor, the applicant said that he did not have that many responsibilities in [city] because there was only about 10 or 15 members at this time. Even though the applicant set out in his statement that he worked for the SSI “full-time”, his evidence was to the effect that he was working from Monday to Thursday in paid work and was working with the SSI at the same time. On its face, the evidence is contradictory but I do not draw any negative inference from this and accept the evidence that the applicant gave at the hearing that he worked in both roles for a period of time from March to at least late April 2013.

The applicant said that on his return from a trip to Lahore, his brothers confronted him and told him the family had received a letter from the TTP saying that the applicant should stop this role otherwise they would kill him. He was shown the letter and believed it was received on 1 April 2013. He said that he went to the police about the letter, but they did not help him. He talked to his brothers and they said that he was putting their lives in danger. They asked him to stop. They also asked him to move out of the family home. He did so and moved in with his friend [friend C]. He then left [city], lived in Islamabad for a few weeks and stopped doing any work for the SSI. While he was living in Islamabad, the applicant said he went home to see his mother on a few occasions. He had regular contact with her and one of his sisters but not with his brothers. By this stage he had already applied for his student visa. His mother paid for the visa and supported his application.
The applicant was asked whether anyone from the TTP threatened him while he was in Islamabad. The applicant responded that his mother told him the family had received a further letter from the TTP saying, “we know where your son is” and “we know where he is hiding”. However, the applicant said that he was not visited by anyone from the TTP while he was living in Islamabad. He said he was not sure why this was so.
The applicant was asked whether he followed or kept in contact with anyone from the SSI while he was in Australia and whether he knew what had happened to the SSI. The applicant said that he was not in touch with anyone from the SSI but believes it was still in existence because a friend had told him this was the case. When asked whether the TTP had been in contact with his family since he came to Australia, the applicant said that they had come to his house two or three times and spoke to his mother about him. This evidence was confusing as the applicant then said that the men did not come inside the house but remained outside and talked to his cousins about him. At the resumed hearing, when he was asked to provide more details about this, the applicant said that the TTP did not come to his home but spoke to his cousins who lived in the same suburb as his mother and they then told his mother that some people were looking for the applicant. When asked why the applicant believes this was the TTP, the applicant said that he assumed it was the TTP because of the previous threatening letters. The applicant said that he did not telephone his cousins to obtain any more details about this and his only contact was with his mother.
When asked why the TTP would still be interested in pursuing him after he had left the country in 2013, the applicant said that he knew that some social activists were killed by the TTP last year and that two of his friends had been killed. The applicant said that he had been in contact with his friend, [friend C], a few years ago and he had told him [friend A] had been shot while he was riding his motorbike. This was said to have happened in 2014. The applicant said that he believed [friend A] was shot because of his involvement with the SSI. The applicant also said that [friend B] had been kidnapped in 2016 and that his body had been found. He said that he was also told this by [friend C]. The applicant was asked whether there was any record or reporting of these murders, but he said that he had tried to search online for details about this but had found no reporting of these murders. The applicant said that he had not had any contact with [friend C] for a few years and that the only person he speaks to in Pakistan is his mother. The applicant was questioned about whether he had kept any documents, including the threatening letters, in support of his claims. He said that he did not have the letters and that it would be difficult to obtain them because he would not be able to get any assistance from his brothers, as they no longer talk to him. He also said that he did not know that these letters would be important.
When the applicant was questioned about whether he could relocate from [city] to somewhere else within Pakistan, the applicant said that he did not believe that he could do so and that he would be unsafe living anywhere in Pakistan. He said that he applied for the protection visa not just because he wanted to stay in Australia but because he genuinely feared for his life.
At the end of the hearing, the applicant was given 14 days to provide any documents in support of his claim, including the threatening letters.
On 13 December 2020, the applicant provided a statutory declaration to the effect that he was part of the SSI, he had received threats of death, he had close friends that have been killed and that he felt unsafe to go back to Pakistan. He also provided photographs of handwritten letters that were said to have been received by him and translated into English. One letter was said to be in the following terms:
I warned you to give up what you are doing otherwise, it will not end well. One thing to keep in mind is that infidels and Muslims can never be friends. Shias are infidels and will remain infidels. And whoever supports the disbelievers is an enemy of Islam and of us. Don’t just consider it a threat, your friends have also been warned to stop the slogan of Shia– Sunni unity, otherwise you will all die. So join us and fight against them, otherwise we will kill you all. If you take legal action, we will harm your family as well. So it would be better for you to keep us informed of the intentions of the rest of the members of the organisation as this organisation has to be ended and you will help us in this.
The letter was said to be signed by the ‘Tehrik-e-Taliban Pakistan’. At the resumed hearing, the applicant claimed that this was the first letter received by his family.
A further handwritten letter was provided which said to be in the following terms:
[applicant’s name]
We asked you all to help us, but you did not. Now you will see that the end of you, your friends and family will be very painful. According to information you are fled from [city A] but how long will you hide from us? We know you are in Islamabad at the moment.
We will find you and your end will be very bad because you are the enemy of us and the Islam and you have sided with the disbelievers and we swear that the day we will see you will be your last day.
The letter was also said to be signed by the ‘Tehrik-e-Taliban Pakistan’. Neither letter was dated. The translations provided by the applicant were translated by a notary public in Pakistan, I caused the letters to be translated by an accredited translator. The translations were materially the same.
At the resumed hearing, the applicant was asked why these documents were not produced earlier. He said that when the delegate asked him to produce the documents, he contacted his mother in Pakistan, but she could not locate them. He said that when he received the letter from the Tribunal dated 27 October 2020, he read the letter and noted that the Tribunal had requested copies of the letters but he did not do anything at that time to locate the letters because he assumed they could not be located. The applicant was asked how it came to be that the letters were able to be located after the hearing in November 2020 but could not be located earlier. The applicant said that after the hearing he contacted his mother and pressed her to find the letters. He told her that the letters were very important. He said that his mother again looked for the letters and found them in a kitchen cabinet. She found two letters and then sent them to him. The applicant said that before receiving the letters he had received threatening telephone calls from the TTP along similar lines. This was not referred to in his previous statement nor in the interview with the delegate or in his evidence at the first hearing. The applicant said that he did not know why but perhaps this was missing from the statement or had been overlooked. The applicant said that after receiving the first letter he was afraid, and this is why he travelled to Islamabad. He did not agree to join the TTP. The second letter was received when he was in Islamabad in either late April or early May 2013. He was in Islamabad for about two months. He returned to [city] a few days before he left to travel to Australia on his student visa and saw the second letter in about June 2013. The applicant confirmed that he was not visited by the TTP when he was living in Islamabad. He also confirmed that there was no harm or threats made to his family during this period.
Given the request by the delegate and correspondence from the Tribunal prior to the hearing requesting copies of the threatening letters, I raised concerns with the applicant about whether these documents were genuine or whether they had been created by him for the purposes of the Tribunal hearings. The applicant denied that this was the case and said that the documents had not been located previously because his mother did not understand the importance of the documents. It was not until he pressed his mother to locate the documents that they could be found.
The applicant confirmed that he feared for his life if he returned to Pakistan because of his previous involvement with the SSI. The applicant was asked why he would be targeted after eight years given his limited involvement in the SSI and the applicant responded to the effect that the TTP would continue to target people for many years. The applicant was unable to provide any detail about the current activities of the SSI but noted that, as far as he was aware, it had a presence on Facebook. The applicant accepted that if the SSI had approximately 6000 followers, it only had small following in Pakistan. The applicant could not point to any further information about the activities of the SSI but said that he remained of the view that the TTP would continue to pursue him. The applicant said that he wanted to remain in Australia to continue to study.
COUNTRY INFORMATION
DFAT has published a report dated 20 February 2019 (DFAT Report). Set out below is an outline of the findings in that report that are generally relevant or provide background to the applicant’s claims.
Pakistan emerged as a Muslim majority state as a result of partition of the Indian subcontinent in August 1947. Since partition, there have been continuing disputes between Pakistan and India in relation to disputed territory and they have fought three wars, including the Indo-Pakistani war of 1971, which resulted in the separation of Bangladesh.[3]
[3] Department of Foreign Affairs and Trade, Country Information Report Pakistan, 20 February 2019 [2.1].
Pakistan is bordered by Iran to the west, Afghanistan to the north-west, China to the north-east, India to the south-west and the Arabian Sea to the south. It has four provinces. [city] is in the province of Khyber Pakhtunkhwa, about 120km north of Islamabad, which is the capital of the province of Punjab.
According to DFAT:
Protracted terrorism, vulnerability to natural and human disasters, ethnic and religious tensions, periodic and military interruptions of civilian life undermine stability serve as significant push factors for both internal and relocation and external migration.[4]
[4] Ibid [2.3].
Pakistan is a democracy and it is currently governed by the Pakistan Tehreek-e-Insaf (PTI) led by former cricketer, Imran Khan, who is the Prime Minister. The President is, Dr Arif Alvi, and this is primarily a ceremonial position.
DFAT assesses that the lack of economic opportunity is a significant push factor for internal migration to urban centres and for external migration.[5]
[5] Ibid [2.17].
Corruption is said to be widespread and systemic in Pakistan and while basic healthcare in Pakistan is free, there is limited capacity, including a lack of funding and “overarching governance challenges”, which reduce quality and accessibility of health care.[6]
[6] Ibid [2.18] and [2.22].
Pakistan was elected to the UN Human Rights Council in October 2017 for a three-year term and has ratified most international human rights instruments. In May 2015 the government established National Commission for Human Rights (NCHR) which works independently of government and is directly accountable to the Parliament.[7]
[7] Ibid [2.56] and [2.58]
According to DFAT, the security situation in Pakistan is “complex, volatile and affected by domestic politics, politically motivated violence, ethnic conflicts, sectarian violence and international disputes with India and Pakistan”.[8]
[8] Ibid [2.66].
DFAT notes that there was a 29% decline in the number of reported terrorist attacks in 2018, compared with the previous year, marking a nine-year downward trend. However, DFAT also notes that Pakistan nevertheless “continues to face security threats from insurgent, separatists and sectarian militant groups”.[9]
[9] Ibid [2.67].
In its report, DFAT reports as follows:
2.69. The security situation varies across the country, however, and militant attacks can occur anywhere. Balochistan faced the most significant security challenges in 2018, due to activity by both religious and nationalist non-state actors. While Khyber Pakhtunkhwa, including the former FATA, reported the highest number of terrorist attacks (125 attacks, killing 196), Balochistan reported the second highest number of attacks (115), but claimed the highest death toll (354). Sindh ranked third (12 attacks, killing 19), Gilgit-Baltistan fourth (5 attacks, killing 5), Punjab ranked fifth (4 attacks, killing 20), and Azad Jammu and Kashmir ranked last (1 attack, killing 2). The highest decrease in attacks (compared to 2017) was reported in Punjab (71 per cent decrease), followed by AJK (67 percent), Karachi (62 percent), Sindh excluding Karachi (57 percent), Balochistan (30 per cent), and Khyber Pakhtunkhwa (by 19 percent).
2.70. Security and law enforcement personnel were the target of the largest number of attacks during 2018 (136 attacks, or 52 per cent, killing 217), however the most lethal attacks were against political leaders and workers (24 attacks, killing 218).
According to DFAT, despite disruption efforts by the government, the Taliban and its affiliated networks remain the greatest security threat to Pakistan with the highest overall number of attacks in 2018. The Taliban is the largest banned group in Pakistan and is an umbrella organisation for predominantly Pashtun Sunni militant groups.[10]
[10] Ibid [2.84].
According to the Center for Research & Security Studies, CRSS Annual Security Report 2020 (CRSS Annual Security Report 2020),[11] there were 122 fatalities from terror attacks and counter terror operations in Khyber Pakhtunkhwa in 2020 but this represented a decline of 17.57% over the previous year.[12] The report also notes that a large number of militants, insurgents and criminals were arrested in 2020, with most of the militants arrested belonging to the TTP.[13] It is noted that “target killings” were a major cause of fatalities from violence in 2020. Civilians and security personnel accounted for 67% of the total fatalities during 2020, with civilians targeted in “various different settings”, including tribal elders and football players.[14]
[11] Center for Research & Security Studies, CRSS Annual Security Report 2020.
[12] Ibid, p.4-5.
[13] Ibid, p.11, 26 TTP militants of 49 militants arrested.
[14] Ibid, p.14-15.
It is reported by DFAT that the provisional results of the 2017 national consensus recorded that Muslims comprise 96.28% of the population, of whom approximately 85 to 90% are Sunnis and 10 to 15% are Shi’a. DFAT reports that “sectarian violence in Pakistan has historically targeted individuals, places of worship, shrines and religious schools” and that Shi’a continue to face threat from anti-Shi’a militant and groups, including certain factions of the Taliban.[15] DFAT assesses that most Shi’a in Pakistan face a “low level of sectarian violence”, although “high-profile Shi’a face a moderate risk of violence as they are more likely to be targeted”. The DFAT Report does not make any reference to the SSI or to violence against organisations that promote unity between the Shi’a and Sunni religions.
[15] DFAT Report [3.99] and [3.104].
In relation to the conditions in Pakistan for returnees, DFAT reports the following:
(1)The government issues genuine returnees with temporary documents when they arrive. A “genuine returnee” is defined as someone who exited Pakistan legally irrespective of how they entered the destination countries. Pakistan nationals who are returned involuntarily or travel on emergency travel documents are likely to attract attention from authorities on arrival and returnees suspected of or charged with criminal offences in Pakistan are likely to face questioning on return.[16]
(2)Those who return to Pakistan involuntarily are typically questioned upon arrival to “ascertain whether they left the country illegally, are wanted for crimes in Pakistan, or have committed any offences while abroad”. Those who left Pakistan on valid travel documentation and have not committed any other crimes are “typically released within a couple of hours”.[17]
(3)Returnees are responsible for arranging their own onward transport from the point of entry into Pakistan.[18]
(4)In summary, DFAT reports as follows:
DFAT assesses that returnees to Pakistan do not face a significant risk of societal violence or discrimination as a result of their attempt to migrate, or because of having lived in a western country. Nevertheless, DFAT notes societal or official discrimination or violence can still occur due to the reason they attempted to migrate.[19]
[16] DFAT Report [5.38].
[17] Ibid [5.39].
[18] Ibid [5.41].
[19] Ibid [5.45].
There is little information that could be accessed by me regarding the SSI. As already noted, the SSI is not referred to in the DFAT Report, nor did the applicant provide any recent country information about the SSI.
The SSI is listed as a Shi’a organisation based in Multan, Punjab[20] and has a Facebook page which, as at 12 February 2021, had 6099 followers. According to the Facebook page, SSI is a political organisation based in Karachi and is said to be a “platform to unite all Muslims”. Most of the videos posted on the Facebook page are over six years old.
[20] >
According to a report on 11 May 2014 in The Nation, which is a daily newspaper in the English language and online media company based in Lahore, supporters of SSI burnt an Indian flag as they were protesting during a demonstration at the Karachi Press Club.[21] There was a photo in the media report. This was also the subject of posts on the SSI Facebook page in 2014.
[21] >
The most recent online report that could be accessed that appears to be about the SSI was in the Business Standard (an online Indian based media outlet) dated 23 November 2017, which notes that the SSI Forum and the Awami Vikas Party (AVP) held a joint press conference opposing the draft proposal submitted to the Indian Supreme Court about a temple in Ayodhya.[22] This related to a dispute in India about the construction of a temple on a site. It is not clear whether this is the SSI organisation in Pakistan and it is apparent that the use of the name “Shi’a-Sunni Ittehad” could be used in a broader more universal way to mean “unity” between Muslims, whether they be Shi’a or Sunni, given that “ittehad” means unity in Urdu. It is more likely that this is an organisation based in India with similar ideals although it is unclear whether these organisations are related.
[22] >
In summary, there is very little authoritative information that could be located about the SSI, its previous operations and whether it is currently active. Based on the available information it appears that the SSI is a small organisation with few followers. It does not appear to have a meaningful profile as an activist group or at all. The applicant was unable to point to any country information that shed light on the organisation and whether the SSI, or any previous followers, would be targeted by the TTP at this time.
FINDINGS OF FACT

I accept that the applicant is a Sunni Muslim and that his views are sympathetic to the principle of unity between the Sunni and Shi’a religions. I accept that the applicant joined a gym in March 2013 and that he may have joined the SSI soon thereafter through friends at the gym. I also accept that he may have been active in promoting membership in the SSI in March and April 2013. On the applicant’s own evidence, he stopped these activities when he travelled to Islamabad in about April 2013.
The applicant applied for a student visa in about March or April 2013 and this visa was granted in about June 2013, when the applicant said that he returned to [city] to leave for Australia in early July 2013.
I am not satisfied on the available evidence that the applicant was threatened by the TTP in April 2013. I am not satisfied that the letters provided by the applicant to the Tribunal are genuine. This is not a case where the applicant has said “I cannot locate the letters and therefore they cannot be provided”. He has made an assertion that the letters are in existence, that he was previously unable to locate them but has now located them and produced documents that are said to evidence the threats made to him by the TTP. If these letters are not genuine and have been fabricated by the applicant, this undermines his credibility about the truthfulness of his claims to have been threatened by the TTP.
There are several reasons why I am not satisfied these letters are genuine.
The applicant was given ample opportunity to provide copies of these letters to both the Department and the Tribunal. At the interview before the delegate, this issue was discussed. It is recorded in the decision record that the applicant was given 14 days to produce any documents to the delegate, including the letters, but he did not do so. The applicant says he did not produce the letters to the delegate because he was unable to locate them. He says that he telephoned his mother and asked her to look for them, but he said his mother was unable to find them. Even if I accept this, what is difficult to understand is why the applicant did nothing to locate the letters once he received the Tribunal letter dated 27 October 2020. At this stage, the applicant was aware that the delegate had not accepted his claims, including his claims about threats from the TTP. He was aware that the Tribunal was seeking copies of any relevant documents, including the threatening letters, because this was specifically referred to in the letter of 27 October 2020. At the hearing, the applicant acknowledged that he had read the letter and knew that the Tribunal was seeking copies of these documents. The applicant said that he did not take any action when he received the letter from the Tribunal to obtain those documents or to ask his mother about them again. He says that it was not until the first hearing that he realised the importance of producing copies of these letters to the Tribunal. He also says that it was not until his mother looked in the cabinet in the kitchen that she located the letters. This explanation is implausible because one would have thought that such search could have been undertaken previously. The delegate had asked about the letters and the Tribunal has specifically requested a copy of the letters in its correspondence of 27 October 2020.
The circumstances that gave rise to the production of the letters to the Tribunal raises concerns about the authenticity of the letters. This, together with other concerns about the applicant’s evidence, raises serious doubts about the credibility of his claims.
Firstly, the applicant was only involved in the SSI for a few months. He says that his family received the first threatening letter on 1 April 2013 when he was away in Lahore. This letter refers to previous threats. Relevantly, these threats were not referred to by the applicant in his amended statement, his interview with the delegate or in his previous evidence to the Tribunal. The assertion made by the applicant in his evidence in the resumed hearing that the he received threatening telephone calls from someone from the TTP on his mobile prior to the family receiving the threatening letter on 1 April 2013 was the first time the applicant made such an assertion. This is a significant matter as it would be expected that if this had occurred the applicant would have included it in his statement and in his previous evidence. The fact the applicant referred to an earlier telephone threat during his evidence in the resumed hearing for the first time suggests this evidence was fabricated to explain the content of the first letter, which would otherwise have made no sense.
Secondly, while it appears that the SSI existed in 2013 there is no country information that could be located or that was provided by the applicant to suggest that the SSI had the type of profile that would attract the attention of the TTP to such an extent that they would threaten supporters of the SSI in the manner described . The applicant says he refused to join the TTP and fled to Islamabad but he also says his family were not threatened or contacted during his absence. He says that he was not contacted by the TTP while he was in Islamabad, even though the letter says that the TTP knew where he was. These matters are inconsistent with the applicant’s claims about the determination of the TTP to harm him and his friends.
Thirdly, the applicant’s evidence about the alleged enquiries made by the TTP in November 2019 was inconsistent between the evidence given at the first and resumed hearings. When the applicant was questioned about this incident at the resumed hearing it was apparent that his evidence was based on thirdhand information provided by his mother said to have been told to her in discussions with his cousins. There is no mention of the TTP in these reported discussions but even if there had been it is difficult to understand why the applicant would not telephone his cousins directly to discuss this issue with them or to clarify the information he had received from his mother. I find this evidence to be vague and unconvincing.
Finally, the applicant’s evidence about the death of two of his friends and his contact with his third friend is also vague and unconvincing. The applicant referred to the murder of his friends in 2014 and 2016 and said that his third friend, [friend C], told him about these incidents at the time. The alleged targeted murder of his two friends by the Taliban in 2014 and 2016 would have been matters that would have been deeply concerning to the applicant yet his evidence about enquiries he made about this are unclear, other than to say that he was unable to find any details about these murders online or in news reports. I was also unable to find any such reports. The applicant said that he had no contact with [friend C] for two or three years but could not explain why this was so.
All of these matters, when taken into consideration together, undermine the applicant’s claims about being threatened by the TTP in 2013 and his claims that there is a real chance he will face serious or significant harm on his return to Pakistan.
Even though the applicant does not make a claim about this, I find that on his return to Pakistan the applicant may be detained for a short period of time while officials identify whether there are any outstanding warrants or investigations against him. There is no evidence that the applicant is or has been the subject of criminal investigations and, given that he left Pakistan legally, it is likely he will be able to return to his hometown without incident or discrimination. This is consistent with the country information in the DFAT Report. Relevantly, the applicant does not allege otherwise, nor does he claim that he will face a real chance of serious or significant harm as a returning asylum seeker from a Western country.
CONSIDERATION
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the refugee criterion or, in the alternative, under the complementary protection provisions.
In this case, the critical issue is whether I am satisfied that the applicant faces a real chance of serious harm from the TTP if he returns to Pakistan. If he does not the applicant will not have a “well-founded fear of persecution” for the purposes of the refugee criterion under s.36(2)(a) of the Act. If I am not satisfied about this, I must nonetheless consider whether 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 he will suffer significant harm. As observed by the Full Court in Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33, the ‘real risk’ test for the purposes of complementary protection imposes the same test as the ‘real chance’ test which is used when deciding whether a person has a well-founded fear of persecution. As such, the nature of any risk faced by the applicant if he returns to Pakistan is a determinative.
Section 5AAA of the Act provides that it is the responsibility of the non-citizen who claims protection obligations arise to specify all particulars of his or her claim and to provide sufficient evidence to establish the claims.
The applicant claims that he meets the refugee criterion because he has a fear of persecution by the TTP as reprisal for activities he undertook in 2013 as a member of the SSI. While the applicant does not expressly particularise his claim this way, his fear can be characterised as a fear based on being a member of a particular social group, being persons who promote unity between the Shi’a and Sunni religions, or his political opinion or imputed political opinion advocating such a cause. There is no claim that he will be persecuted by the government or authorities but rather that he will be targeted by the TTP, the inference being that the State will be unable to protect him from such harm or threatened harm.
There is country information to the effect that, while the government has made efforts to control insurgents and military groups and has banned the TTP, sectarian violence has continued, particularly against specific groups. The groups mentioned in the DFAT Report are high profile Shi’a and, in particular, Hazaras and Turis. The applicant is not Shi’a, nor is he one of the specific groups reportedly targeted. He is a Sunni Muslim and part of the religious majority. The applicant claims to be sympathetic to the cause of Shi’a and Sunni unity, which I am prepared to accept is a genuine and longstanding opinion. This may have brought him to the attention of local TTP activists in 2013 and it is plausible that he may have been warned about those activities at the time. Unlike the delegate, I accept the SSI existed at the relevant time and that the applicant may have been a member of the SSI from March 2013. However, I find, based on the applicant’s own evidence at the hearing, that his activities were confined to attempting to promote SSI membership over a two-month period in [city] and, on occasion, other regions nearby as far as Islamabad and Lahore. He did this on a part-time basis because he was also working at the time. On the country information accessed I am satisfied that the SSI was in existence as a “Shi’a organisation” at the relevant time but its membership and profile in 2013 appears to have been modest. Relevantly, there is little country information referring to this organisation other than the information referred to earlier in this decision. The applicant has not referred me to any other country information about the SSI that suggests otherwise. Nor has he referred me to country information to the effect that the SSI was, and currently is, a high-profile activist organisation that may attract attention from militant extremists such as the TTP.
As already noted, I do not accept that the applicant was threatened by the TTP on multiple occasions in 2013. I am not satisfied about the credibility of this evidence of the applicant, not because he initially was unable to provide copies of those threatening letters but rather because I am not satisfied about the authenticity of the copies of the letters provided. If the applicant has fabricated these letters to support his claims this undermines his overall credibility. Furthermore, as previously set out in my reasons, I have found a number of the applicant’s claims about threats made by the TTP, the harm to his friends and more recently the enquiries about him in his hometown to be vague and unconvincing.
Having regard to these findings, I am not satisfied that the applicant faces a real chance of harm from the TTP on his return to Pakistan. As observed by the High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, a ‘real chance’ is one that is not remote, insubstantial or a far-fetched possibility.
This was further explained by the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 as follows:
….Conjecture or surmise has no part to play in determining whether a fear is well-founded. A fear is "well-founded" when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation. [23]
[Emphasis added]
[23] [48].
In this case, I do not accept the applicant’s claims about the previous threats of harm from the TTP and therefore do not accept that he faces a real chance of serious harm from the TTP if he returns to Pakistan. Even if I am wrong about this and the applicant was threatened by the TTP in 2013 for his activities with the SSI, I am still not satisfied that the applicant faces a real chance of serious harm on his return. The applicant has only ever played a minor and transitional role in the SSI, the SSI does not appear to have been active for many years, the applicant has been away from Pakistan for eight years and, while the security situation in Pakistan is “complex”, there is country information that there has been a decline in reported terrorist attacks since 2018. According to the DFAT Report and the CRSS Annual Security Report for 2020, there has been a steady decline in terrorist attacks by militant extremists, including in the Khyber Pakhtunkhwa where the applicant resided, there have been increased arrests of the TTP and the majority of the terrorist attacks have related to security personnel or have been targeted against particular civilians.
I do not accept that the applicant’s friends have been murdered by the TTP for their role in the SSI and there is no evidence to support this other than the applicant’s uncorroborated evidence, which is thirdhand and allegedly based on information provided by another friend who he has not spoken to for about two or three years. The applicant’s evidence about the recent enquiries allegedly made about him in November 2019 are similarly vague and unconvincing. The source is hearsay and the particulars provided are vague. It is implausible that an organisation such as the TTP would continue to pursue the applicant six years after his alleged limited activities with the SSI, particularly given this organisation appears to have little real profile or prominence in Pakistan.
For the reasons given above, I am not satisfied that the applicant has a well-founded fear of persecution and I am therefore not satisfied that he is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, I have considered the alternative criterion in s.36(2)(aa) of the Act for complementary protection.
Protection obligations will arise under s. 36(2)(aa) of the Act if there 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 he will suffer significant harm.
Having regard to my findings about whether the applicant will face a real chance of serious harm from the TTP if he returns to Pakistan, it follows that I am not satisfied he will face a real risk of significant harm from the TTP on his return to Pakistan. As such, I am not satisfied that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of his return to Pakistan.
While I note that the applicant has not made such a claim, for completeness I find that I am not satisfied that the applicant faces a real chance of serious harm or a real risk significant harm by reason of the fact that he is a returning asylum seeker who has lived in a Western country for a number of years. This finding is based on the country information referred to earlier in this decision.
I am therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies ss.36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Jan Redfern PSM
Deputy President

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.
…
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 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.
…
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.
…

[2021] AATA 514

10 March 2021

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction