1703581 (Refugee)

1703581 (Refugee) [2017] AATA 2664 (1 November 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1703581
COUNTRY OF REFERENCE:                  Pakistan
MEMBER:Alison Murphy
DATE:1 November 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.

Statement made on 01 November 2017 at 12:11pm

CATCHWORDS
Refugee – Protection visa – Pakistan – Religion – Shia – Shia religious reciter – Member of family unit – Effective protection – Reasonableness of internal relocation

LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J, 5K, 5L, 5LA, 36, 65
Migration Regulations 1994, Schedule 2
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 [in] February 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant is [an age] year old male child, born in Australia to parents who are both citizens of Pakistan. He seeks to invoke Australia’s protection obligations so that he does not have to return to Pakistan where he claims to fear harm on the basis of his Shia religion and as a member of his mother’s family.
The issue in this case is whether the applicant meets any of the alternative criteria in s.36(2)(a), (aa), (b) or (c), that is whether he is a person in respect to whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit of such a person. A summary of the relevant law is contained in Attachment A.
In assessing the applicant’s claims, I have had regard to policy guidelines prepared by the Department of Immigration and Border Protection – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – as well as relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
For the following reasons, I have concluded that the matter should be remitted for reconsideration.
History of proceedings
The applicant’s father first arrived in Australia in [year] as the holder of the [specified temporary] visa. He was joined in [year] by the applicant’s mother. The applicant’s [siblings] were both born in Australia and are now aged [ages]. The applicant was born in [year].
The applicant’s mother lodged an application for a protection visa in June 2014, including the applicant’s father and siblings in that visa application. It was refused by a delegate [in] January 2016 and on 9 March 2017 this Tribunal (differently constituted) affirmed the delegate’s decision. That matter is currently before the Federal Circuit Court of Australia.
As the applicant was not born until after his mother’s protection visa application was refused, he could not be joined to that application. He applied for a protection visa [in] December 2016.
[In] February 2017 the delegate refused to grant the visa on the basis that she was not satisfied the applicant was a person to whom Australia owed protection. In her reasons she noted that as the applicant was a minor, he had not been interviewed about his claims rather she relied on the earlier delegate’s decision dated [in] January 2016 in respect of the applicant’s mother’s claims.
The applicant sought a review of the delegate’s decision dated [in] February 2017 from this Tribunal.
The applicant’s father appeared before the tribunal on 11 September 2017 to give evidence and present arguments on the applicant’s behalf. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu language.
The applicant was not represented by a migration agent in relation to the review.
FINDINGS AND REASONS
Country of nationality
It is not in dispute that the applicant is a citizen of Pakistan, despite being born in Australia. The delegate noted a certified copy of the applicant’s Australian birth certificate had been provided to the Department. The applicant’s parents have each submitted of their Pakistani passports and national identity cards. Pakistan recognises parentage or descent as a conclusive criterion of nationality, as well as birth on its territory[1]. The Tribunal finds the applicant is a national of Pakistan and has assessed his claims on that basis.
Credibility
[1] UN High Commissioner for Refugees (UNHCR), Submission by the United Nations High Commissioner for Refugees for the Office of the High Commissioner for Human Rights' Compilation Report - Universal Periodic Review: Pakistan, April 2012, available at: >
Claims made on behalf of the applicant by his parents primarily relate to his family’s past experiences in Pakistan which they attribute to their Shia religion and his mother’s occupation as Shia religious reciter. The delegate noted in her decision that she had given significant weight to the assessment of the applicant’s mother’s claims by an earlier delegate [in] January 2016. She noted the delegate assessing the applicant’s mother’s claims considered her to be a generally reliable witness who had been subjectively truthful about her claims, although not all of her claims were objectively accepted. Some of the relevant documentation is contained on the departmental and Tribunal files relating to applicant’s mother’s application for a protection visa.
The applicant’s father appeared before me at the Tribunal hearing on 11 September 2017. He told me the applicant’s mother was very mentally unwell and unable to attend the hearing. Medical documents before me support his statements.
A psychological report dated [in] October 2017 confirms the applicant’s mother has experienced [specified conditions] and has been in therapy for [number] sessions. An earlier psychological report dated [in] March 2017 describes an assault on the applicant’s mother in Pakistan in [year] and her subsequent miscarriage.
A report from a social worker at [a health service] dated [in] September 2017 states the applicant’s mother has experienced [specified conditions] since the family returned from Pakistan in [year] and is being treated with medication and psychological counselling. The social worker reports that the applicant’s mother continues to struggle with anxiety about her safety and the safety of her family and is clearly overwhelmed and highly anxious. She states the applicant’s mother continues to re-experience [symptoms from] events in Pakistan.
A report by the family’s [health professional] dated [in] September 2017 states the service has been involved with the family since the birth of their eldest child and she believes the applicant’s mother suffered [a condition] in Pakistan before coming to Australia. Correspondence from the Department to the Tribunal indicates the applicant and his family have been referred for intensive community caseworker support and community health care services due to the identified mental health vulnerabilities of the family and the risk of destitution.
A medical report dated [in] July 2015 reports the applicant’s mother suffers from [specified conditions] and notes she miscarried following an assault in Pakistan in [year]. An earlier medical report referred to in the delegate’s decision reports she was the subject of a Crisis and Assessment Team management plan in 2015 after [displaying specific symptoms].
A report from [a welfare agency] dated [in] April 2015 recounts her traumatic experiences in Pakistan in a manner consistent with her evidence in her protection visa application. It describes her as [suffering from several conditions]and a number of physical ailments. She is stated to be experiencing [specified symptoms] with ongoing physical and mental health concerns.
I accept the contents of the above medical reports to be true and correct.
At hearing before me the applicant’s father discussed his family’s experiences in Pakistan spontaneously and in detail. His evidence was consistent with the detailed evidence of the applicant mother given in respect of her own protection application and the documentary evidence before the tribunal. I accept the applicant’s father to be a generally credible witness about the family’s experiences in Pakistan.
The applicant’s parents’ background
The applicant’s mother was born and grew up in [City 1]. The applicant’s father’s family were originally from [City 2] but moved to [City 3] for work as a result of which he was educated in [City 3] and remained living in that city before coming to Australia in [year]. In [year] his family returned to [City 2] to re-join their extended family and they remain living in that city.
The applicants’ parents married in [year] in [City 2] and his mother joined his father in Australia in [year]. The marriage was an arranged marriage but the applicant’s parents knew each other prior to that marriage as family friends. After the wedding the applicant’s mother lived with his father’s parents in [City 2] until granted a visa to come to Australia to join her husband in [year]. The applicant’s paternal grandfather is a businessman and has a [business] in [City 2].
The applicant’s Shia Muslim religion
The applicant’s family have at all times been consistent in their evidence that they are of Shia religion and I find accordingly. Both the applicant’s parents have given evidence they each grew up in prominent and devout Shia families in [City 2]/ [City 1] and [City 3] and I accept that to be true.
The activities of the applicant’s mother
The applicant’s mother claims to be a Shia religious reciter who recites reciting nohas, mursias and majlis (lectures) at religious events that at imambargahs and private residences in Pakistan and Australia.
The applicant’s mother produced evidence she completed a six-month course on Islamic teachings at [an institute] in [City 1] in [year], after which she started to recite nohas, mursias and majlis, primarily in [City 2] and [City 1] but also on occasion in [City 4] and [City 3]. Nohas are poems, usually relating to the martyrdom of Muhammad’s grandson Hussain and his followers at the battle of Karbala in AD 680, recited during the month of Muharram[2].
[2][2] Reza S 2013 ‘Seeling songs of sorrow’, Dawn, 10 November
A letter from [Leader A] of [an Islamic organisation] in [Australia] confirms the applicant’s mother continues to recite prayers and religious poetry at a mosque in [City 5, Australia]. In the decision dated [in] January 2016 the delegate states he contacted [Leader A] who verified that he was the author of that letter and the applicant’s mother continued to recite prayers and religious poetry at the imanbarghah in [City 5]. Her role as a religious reciter (noha khawan) was accepted by the delegate and the Tribunal member assessing the applicant’s mother’s case. The program on the website of the [named Islamic organisation] confirms such events regularly take place[3].
[3] [Deleted.]
At hearing the applicant’s father told me that his wife continued to recite prayers and poetry in her role as a religious reciter but her activities were currently limited by her [health conditions].
I accept the applicant’s mother is a Shia religious reciter (noha khawan), reciting nohas, mursias and majlis (lectures) at religious events that at imambargahs and private residences in Pakistan and Australia.
The applicant’s family’s experiences in Pakistan
I accept the applicant’s mother started reciting religious prayers and poetry after completing an Islamic course at [the institute] in [City 1] in [year], noting the documentary evidence she provided in her own protection visa application. It is claimed since that time she was the subject of escalating threats in Pakistan until her husband brought her to Australia in [year].
The delegate did not accept the applicant’s mother had continuously received threats in Pakistan, relying on the earlier delegate’s assessment that found her evidence to be vague and unsubstantiated. As the applicant’s mother did not give evidence in these proceedings, the only evidence before me is from the applicant’s father who was primarily resident in Australia during the time these threats are stated to have been made.
At hearing he told me that when his wife recited at the ladies’ imambarghah on the back street of his in-laws home as well as private residences belonging to their family members and other families. He stated about [number] families would come to listen and the applicant’s mother was one of [number] women who would recite on each occasion. He stated that the women gave majlis, talked about the family of the Prophet and other issues and recited nohas and mursias. I accept the applicant’s mother would have been well known as a noha khawan in the Shia community in [City 2].
The applicant’s father gave evidence that his wife first received a threatening letter during Muharram in [year], although prior to this she had received threatening phone calls and messages. He gave evidence his [relative] [had a specific role] at the imambarghah and he was also attacked during Muharram in [year]. He stated his [other family members] had also received threats because of his wife’s activities. He has provided the Tribunal with two letters and their English translations which he states are threatening letters received by his wife in Pakistan.
Media reports confirm there have been attacks on noha khawans in Pakistan. Noha khawan Farhan Ali Waris reportedly escaped an assassination attempt in Karachi in June 2016, only hours after another noha khawan Amjad Sabri was shot dead[4]. Other attacks on noha khawan in Karachi were reported in November 2014, March 2013, January 2012 and December 2011[5]. Attacks on noha khawan are also reported to have occurred in Chassada and Peshawar, Khyberpakhtunkhwa[6].
[4] Baloch, S 2014, ‘Pluralism takes a back seat in Lyari’, Dawn, 04 November < ; ‘Educationist Sibte Jafar shot dead’ 2013, The News International, 19 March < ; Shia Muslims mourn death of university teacher’ 2013, Press TV, 20 March < ; ‘Six, including policeman and MQM worker, killed in violence’ 2012,The Daily Times, 10 January < ; ‘4 killed in separate acts of violence’ 2011, The Daily Times, 24 December < ;
[6] ‘Charsadda Sipah-e-Sahaba open fire on Shia Mir Azam’s car’ 2015, SK Media Group, 19 March < ; Natiq, A 2015, ‘Jummah mubarak, you ‘kafir’!’, The Nation, 24 March < ; ‘Shia Noha reciter martyred in takfiri terrorist attack in Peshawar’ 2014, Shia Post, 18 July at >
DFAT reports that Pakistan continues to face security threats from terrorist, militant and sectarian groups and sectarian attacks have targeted individuals, places of worship, shrines and religious schools. Although this violence has affected all religious and sectarian groups, Shias represent a higher proportion of those attacked and killed. DFAT assesses there is a moderate risk of sectarian violence for prominent Shias[7].
[7] DFAT 2017 DFAT Thematic Report: Shias in Pakistan 15 January at p.9
In such circumstances I do not consider it implausible that the applicant’s mother received threats in [City 2], although I consider she may have exaggerated the frequency and intensity of those threats. I accept she received threatening phone calls and messages in [City 2] after her marriage in [year] before joining her husband in Australia in [year].
The applicant’s mother and siblings returned to live in [City 2]/ [City 1] in Pakistan in [year] and were joined one month later by the applicant’s father. The delegate was concerned that the voluntary return of the family at this time was inconsistent with the applicant’s mother’s claims to have faced escalating threats of harm in that country.
However it is apparent that by that time the applicant’s father’s application for a [temporary] visa had been refused and the family held only bridging visas. While the applicant’s father had lodged a review application with the former Migration Review Tribunal, he had received legal advice to the effect that it had little chance of success (and the decision under review was later affirmed by the MRT). The applicant’s mother was pregnant and extremely homesick and her father was very ill. While the family were able to obtain a bridging visa allowing them to remain in Australia while the Migration Review Tribunal decided their [temporary] visa review, I accept they decided not to do so because they believed their review application would not succeed.
I accept the applicant’s family returned to [City 2], but then relocated to [City 3] where the applicant’s father believed he had better work opportunities as he had been educated in that city. They initially lived in West [City 3] where the applicant’s father already owned a property (although that property was tenanted and they rented another) but moved to South [City 3] where they thought it would be safer. I accept the applicant’s mother continued her reciting activities in [City 3].
I accept that in [year] the applicant’s parents were assaulted in a [location] in [City 3] when they were returning to their car. In making that assessment I record that I considered the oral evidence of the applicant’s father at hearing of those events to be persuasive. While I accept the applicant’s parents believe they were targeted in that assault because of the applicant’s mother’s religious activities, I am not satisfied that is the case noting the applicants had only been in [City 3] for a relatively short time and the applicant’s mother was not well known in that city, having lived all her life in [City 2]/ [City 1]. [An independent source] reports that [City 3] has historically experienced high levels of generalised violence, which has been significantly reduced since the commencement of [specified] operations in [2013][8].
[8] [source deleted]
However I accept the assault caused the applicant’s parents to leave [City 3] and return to the applicant’s father’s family home in [City 2]. On [a specific date] the applicant’s mother claims to have been attacked in the street in [City 2] after leaving her [relative’s] house. She was kicked in the stomach and lost the baby she was carrying. Medical reports from a clinic in [City 2] support her claims to have been pregnant at that time and to have lost the baby on [that date] after being physically assaulted. The Australian medical records referred to earlier in these reasons also refer to her miscarriage after an assault on her in Pakistan in [that year]. Both delegates and the first Tribunal accepted the applicant’s mother miscarried following a physical assault [at that time] and I concur with that assessment.

In the decision record dated [in] February 2016, the delegate noted the applicant’s mother became highly distressed when recounting this incident at interview and as a result it was not possible to discuss the incident with her in detail. While the delegate expressed some concerns about her claim the attack was motivated by her profile as a noha khuwan and her religious activities, he afforded her the benefit of the doubt and accepted this to be the motivation for the attack.
At hearing before me the applicant’s father gave evidence that on [a specified date] he and his family held a religious gathering at the house to coincide with the anniversary of his grandmother. Posters were printed and posted around the neighbourhood advertising the ceremony honouring Fatimah, daughter of the Prophet. The applicant’s mother recited at the gathering.
Shortly afterwards there was a gathering at the home of the applicant’s mother’s [relative]. As the family were returning home by car around sunset, a car stopped in front of their car and armed men got out. The applicant’s mother was holding his [sibling] in her lap. The attacked the applicant’s father and pointed a gun at the applicant’s mother and [sibling] who was [age] at the time. They tried to snatch the applicant’s [sibling] from his mother’s lap and pushed and hit the applicant’s mother, who fell on the road unconscious. Other cars stopped and the men disappeared. His wife was taken to the emergency department of the nearest hospital where she lost the baby she was carrying. She remained in hospital for [number] days. The family left for Australia a few days later, their bridging visas still being valid. The applicant’s father told me that had that not been the case, they would have travelled immediately to any other country they could enter.
As set out above, I consider the applicant’s father to be a credible witness. His evidence of the assault is corroborated by medical evidence and is consistent with the evidence of his wife in her own visa application. While the motivation of the attackers cannot be known, I accept it may well have been motivated by the applicant’s mother’s profile as a religious reciter given I have accepted she was well-known in that capacity in [City 2] and [City 1].
For these reasons, I accept the applicant’s family members have in the past been targeted for serious harm because of their Shia religion and his mother’s profile as a religious reciter of Shia poetry and prayers.
It is widely accepted that in the absence of a major change of circumstances that makes prospective persecution unlikely, past persecution is an excellent indicator of whether there is a well-founded fear in the future[9]. The evidence before me indicates the applicant’s mother has continued her religious reciting activities in Australia and I accept she will continue to perform in that capacity if she returns to the homes of her husband or her own family in [City 2] and [City 1].
[9] Hathaway, J Law of Refugee Status Butterworths, Toronto, 1991 p 88
[The independent source] reports that levels of sectarian and generalised violence are lower in [that region] than other parts of Pakistan and [City 2] remain relatively safe for migrant Shia communities, however sectarian attacks continue. There were [number] sectarian attacks reported in [the region] and [City 2] in 2014, resulting in [number] deaths. In 2015 [a third less] Shias were killed in [number] attacks, including [number] separate IED attacks on Shia imambarghahs in [City 1][10].
[10] [source deleted]
Given I have accepted the applicant’s mother is a well-known religious reciter in [City 2] and [City 1] who has been targeted for serious in the past in those cities, I do not discount the possibility that she may again be targeted for serious harm as remote. I note the violent attack on the applicant’s mother [at the specified time] was committed in the presence of her family members, her husband was assaulted and attempts were made to abduct her young [child] (the applicant’s [sibling]).
In these circumstances I find there is a real chance the applicant will face serious harm if he returns to [City 2] or [City 1] where his mother is a religious reciter for the combined reasons of his Shia religion and his relationship with his mother.
For the same reasons I find there are substantial grounds for believing that there is a real risk the applicant will suffer significant harm if he returns to [City 2] or [City 1], as a necessary and foreseeable consequence of being removed from Australia to Pakistan.
State protection
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s.5J(2) of the Migration Act. Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection. This is taken to occur if the person can access the protection, the protection is durable and in the case of protection by the relevant state, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s.5LA(2).
Similarly for the purposes of the complementary protection criterion contained in s.36(2)(aa), there is not taken to be a real risk that a non-citizen will suffer significant harm in a country if he or she can 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.
DFAT reports that Pakistani authorities are broadly willing to protect Shia communities, providing security for to Shia communities and mosques during religious processions on a case by case basis, depending on the threat level and availability of resources. However capacity constraints limit the state’s ability to protect the Shia community and although the Pakistani authorities continue to capture and prosecute members of sectarian groups, conviction rates remain low. Shia communities frequently make provisions for their own security including the physical security of Shia mosques, self-protection ‘scout’ units and lines of security to search those attending religious processions[11].
[11] DFAT 2017 DFAT Thematic Report: Shias in Pakistan 15 January
In view of this information, and given the past harm suffered by the applicant’s parents and the fact his mother is a well-known religious reciter in that area, I find that the Pakistani authorities are unable to provide the applicant effective protection in [City 2] and [City 1] and there remains a real chance of serious harm if he returns to [City 2] and [City 1]. For the same reasons I find that the applicant cannot obtain protection from the Pakistani authorities such that there would not be a real risk he would suffer significant harm.
Well-founded fear of persecution
I have accepted the applicant has a well-founded fear of persecution for reason of his Shia religion and his mother’s religious activities in their home area of [City 2] and [City 1] where his mother is well known as a religious reciter. However s.5J(1)(c) has the effect that a person has a well-founded fear of persecution only where the real chance of persecution relates to all areas of the receiving country. Relevantly the delegate has identified Lahore as a potential relocation option for the applicants.
DFAT reports that Pakistan’s size and diversity offers a degree of anonymity and the opportunity for victims to seek refuge from discrimination or violence. It assesses there are options for members of most ethnic and religious minorities, including Shias, to relocate to areas of relative safety within Pakistan. Many large urban centres such as Lahore are home to mixed ethnic and religious communities and Shias relocate with relative ease and frequency because of family and communal networks throughout Pakistan. In Lahore, for example, there are large Shia communities in Islampura and in old areas of the Walled City. Lahore has reportedly experienced a 20-25 per cent reduction in the rates of ‘crime against persons,’ including kidnapping, since the commencement of Operation Zarb-e-Azb and implementation of the National Action Plan. There were no Shia deaths from sectarian violence in Lahore in 2015[12].
[12] Ibid
The applicant’s parents have not lived or worked in Lahore and I do not accept they would be well known there. While I accept that militant, terrorist and sectarian attacks continue to occur throughout Pakistan, I am not satisfied on the material before me that there is a real chance the applicant would face serious harm in Lahore for the separate or combined reasons of his Shia religion or relationship with his mother.
Real Risk of Significant Harm
For the same reasons as those set out in the paragraphs above, I do not accept on the material before me that there are substantial grounds for believing there is a real risk the applicants would suffer significant harm in Lahore.
However for the assessment of the complementary protection criteria in s36(2), the relocation principle remains a relevant consideration and I am required to consider whether it would be reasonable, in the sense of practicable, for the applicant to relocate to another part of Pakistan such as Lahore, where I have found there is not a real risk he would suffer significant harm.
I am mindful of the medical evidence referred to earlier in these reasons. In particular I have accepted the applicant’s mother is suffering from [specified conditions] following an assault in Pakistan in [year] and her subsequent miscarriage. She is being treated in Australia with medical and psychological counselling but continues to suffer from a range of mental health and physical ailments and has in the past required the intervention of the Crisis and Assessment Team.
The family are being supported in Australia by [specified health] services and have been referred by DIBP for intensive community caseworker support and community health care services due to the identified mental health vulnerabilities of the family and the risk of destitution.
The applicant’s parents have [number] children under the age of [age] and the applicant’s mother has serious mental health issues. Both of their families reside in [City 2] and [City 1], where I have found the applicant faces a real risk of significant harm. I accept they will have limited family support available to them if they relocate to Lahore.
In these circumstances I conclude that it would not be reasonable, in the sense of practicable, for the applicant, in all his personal circumstances, to relocate to Lahore or elsewhere in Pakistan.
Conclusion
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.
Alison Murphy
Member

ATTACHMENT A - CRITERIA FOR A PROTECTION VISA
68.The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
69.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.
70.A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
71.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 below.
72.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 below.
Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)   the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)   without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)   the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)   a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)   significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)   disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)   a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)   any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)   the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)   protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)   the person can access the protection; and
(b)   the protection is durable; and
(c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2017] AATA 2664

1 November 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction