1707038 (Refugee)

1707038 (Refugee) [2020] AATA 3120 (12 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1707038
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Rodger Shanahan
DATE:12 June 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 June 2020 at 9:22am
CATCHWORDS
REFUGEE – protection visa – Pakistan – religion – Shia Muslim – particular social group – human rights activists – family attacked – fear of extremists – Lashkar e-Jhangvi – delay in applying for protection – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 13 March 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Pakistan, applied for the visa on 27 May 2016.
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 s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
PV Application
In a statutory declaration filled out as part of the application, the applicant claimed that he was born in the Punjab region and was a Shi’a Pakistani. He obtained a [degree] in Pakistan.
His mother was politically active and volunteers with [Organisation 1], as did the applicant when he was in Pakistan. He fears the attitude of the Sunnis towards the Shi’a in Pakistan and that he wouldn’t be able to practice his religion if he were to return.
Slogans calling Shi’a infidels are painted on walls, and some call for the killing of Shi’a. He is afraid of attending the muharram commemorations as Sunni people often fire into the crowds and throw grenades. In Pakistan, he often prays at a Mosque called [Imambargah 1]. [In] February 2015, he and his family were attacked and fired upon just because they were noticed coming out of a Shiite Mosque. The same thing happened to them [in] May 2015.
He reported the incident to the police but nothing happened, threats kept coming and he was warned that it would not stop until he was killed. The authorities are unable to protect their own people as they travel between towns in convoy under heavy armed protection. Roads are often blocked by the Taliban and other groups.
He claimed that if he had to abandon his home to relocate elsewhere in his own country in the pursuit of some safety because he was Shi’a and cannot obtain protection from the authorities then he was a refugee.
AAT hearing
He was advised that if there were any problems with the telephone reception he should advise the Tribunal and it would be sorted out. He was asked whether everything he had put in his previous claim was known to him and was true and correct and he agreed that it was. He claimed that if he returned to Pakistan he would be seriously harmed or killed by an extremist group such as Lashkar e-Jhangvi because he was Shi’a and he was active as a human rights activist. He and all his family would be targeted.
The applicant claimed that he had been a human rights (HR) activist for about three and a half years. Asked to expand on his HR work, he claimed that he worked for [Organisation 1] in Karachi that operates largely in the rural areas that looks at medical and hygiene needs of rural groups. He also participated in flood relief with his family. He began part-time with [Organisation 1] from 2012 then full-time as a program coordinator in 2013. Asked if he had any evidence such as photos, and his presence on the organisation’s social media and the like as well as letters and he said that he had letters.
It was put to him that letters wouldn’t normally count for much and was asked if he had social media entries from his site that showed him with [Organisation 1]. He said that [named] newspaper may show him in the flood relief. Asked if this showed and referred to him in his role, he claimed that it may not do this. He was asked if there was any evidence that would tie him as an individual to this organisation as a program coordinator. He said that he had photos. He was asked if he had emails or social media, and he claimed he had emails from his company and his flood relief photos. When he applied for his student visa he said he was a full-time program coordinator with [Organisation 1].
He claimed his family had been attacked [in] February 2015 and [May] 2015 when he was in Australia. Their lives had also been threatened and he believed they had a profile as a result of their HR activities, particularly because they were Shi‘a. He was [one of the older children] and he would be killed with his father. It was put to him that this was five years ago, and was asked what had happened since.
He claimed they lived in an army housing compound and were protected 24/7. Asked if they left at all, he claimed not much as there were shops in the compound and they had a servant who could do the outside shopping. They had left very few times in the past five years. Asked for an approximation on how regularly they would leave, he said only if a close person had died. He estimated in a year perhaps 12-15 times a year maximum.
His brother lived with his parents and another brother lived in [Country 1]. The brother that lived with his parents was [age] and didn’t work – he did online education at home from seven months previously but prior to that he was at home not working. As he was the youngest his parents wanted to keep him at home. Asked why he only began seven months ago if he had been at home for five years, he claimed he finished a bachelor’s degree online – he only had to go out to do an exam at [a venue] which was heavily guarded. He would go outside the house very rarely – perhaps 30 or 40 times. He didn’t work at all.
His father was a retired, pensioned army officer and his mother was a housewife. She was a political activist long before – she worked for Nawaz Sharif’s party in 1995/96. She did some volunteer work for [Organisation 1] but was mainly a housewife.
He was asked to confirm his brother’s age at home ([named]) and he again said he was [age]. It was put to him that he was actually [eight years older] and he was asked why he claimed he was [age] when he was actually [age]. He said he had to check the biodata and was asked why he had to do this given it was his brother – he said he didn’t know.
Asked what he had been doing all his life if he just finished his bachelor’s degree and he was [age], and that this didn’t make sense, the applicant said he didn’t start his bachelor’s at 18 and went to [Country 2] to stay with them for a while then returned to Pakistan around 2007 or 2008. Asked what he had done since 2008, he claimed that he had been around the house and didn’t study. He was asked whether he stayed around the house not doing anything, and the applicant claimed this was correct.
Asked what happened to the applicant personally in Pakistan, he claimed that around November 2013 he had received threats via phone at the imambargah (quoting his father’s name) and via his house (the police traced it from an unregistered number in Waziristan). He was trying to come to Australia and continued to work but more slowly (in the field). The threat was to stop doing his [work] and charity work and for the organisation to stop doing their work for the community.
He was asked whether he had mentioned the telephone threats in the claim but told them verbally at his interview. They weren’t in his claim because he wanted to focus on the attack. It was put to him that it was strange and he claimed that his lawyer told him to mention issues that would be given weight and he didn’t think the threats would.
Asked if he came to Australia as soon as he got his visa, he claimed there were 3 weeks’ delay as he had to get tickets and stay with his family. He was asked why he had to do this as he would have been prepared already. In Australia he did [a course] but only did two semesters – he passed the first semester and he left during the second semester after having paid his fees but didn’t finish any subject from this semester. He left end of May or June 2015. It was put to him that he had left 10 May on his application and he agreed.
He stopped then because he wasn’t psychologically right because of what had happened to his family. Asked if he told the university this, he claimed that he didn’t as he thought he would need to contact Immigration and consulted people for a month about what to do. Asked why he couldn’t contact the university, he claimed he thought Immigration would be better – asked why he didn’t ask the university for help, he thought they wouldn’t be able to help. It was put to him that his unwillingness to approach the university raised questions as to his true intent of coming to Australia. He said he wasn’t up to it mentally. Asked if he approached any medical practitioner for his alleged mental health issues, he claimed that he didn’t.
He never saw anybody about the attack on his family [in] February other than his family. They told him to stay in Australia for his safety, and he was confused about staying, studying or leaving and he left university on 10 May. He had too much on his mind, although he didn’t see any medical person about his issues. He checked up on the internet and youtube about these health issues but never saw a doctor.
It was put to him that in his 2016 application he claimed that his mother is politically active and she volunteered her services with [Organisation 1] the same as him in Pakistan, yet he had said today her activity was in the 1990s and that she wasn’t doing any work after the incidents which was different. He said that he had said she was politically active in the past. There was an inconsistency between him saying they didn’t leave their house and yet his mother being so active. He claimed she didn’t do any field work and just consulted by phone from home. He acknowledged that he had not mentioned in his claim that this work was done by phone from home.
Asked when he applied for protection, he claimed it was May 2016 and he was asked why there was such a delay. He claimed he had to make lots of arrangements such as the evidence for his claim and had to think about not returning to home and speaking to his parents. He also consulted two or three lawyers and he was also safe in Australia. He was told that the High Court said a delay in applying may be adverse to a claim and he waited for a year.
It was put to him that country information indicated fraudulent documents were prevalent in Pakistan and that the Shi’a community was not at high risk of harm. This was different to what he claimed. He said there was consistent targeting of Shi’a throughout Pakistan that hadn’t been slowed too much. At any time of religious gathering there was a large degree of risk as the government couldn’t guarantee them security. The Shi’a community was living in fear in Pakistan and were refugees in their own country.
Asked if he was active in the Shi’a community in [Australia] he said he wasn’t and didn’t attend events except for prayers on Friday as he wanted to keep a low profile. It was put to him that it was strange that he was active in the community in Pakistan and yet he had freedom here in Australia and wasn’t active. This raised questions about how active he would be in the community on return to Pakistan. He said he was born in Pakistan and would be active there and was still in shock in Australia and was still finding his way.
It was put to him that he had been in Australia for five and a half years. He said he didn’t want to be highlighted in the Shi’a community here as he was still struggling to cope with the last events. It was put to him that the alleged events occurred more than five years ago and he hadn’t seen any health professional so he didn’t appear affected by them. He repeated that he just wanted to stay quiet and was still weighing up about whether he should be a volunteer.
Asked what imambargah he went to, he said it was in [Suburb 1] called [Imambargah 2]. He also visited one at [Suburb 2] and then said [Suburb 1] was [named Mosque 1]. Asked who called it [Imambargah 2] he said it was slang used by them. Asked the name of the imams were, he claimed there were two at [Suburb 2] but couldn’t recall the names of any imam at [Suburb 2] or [Suburb 1].
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia on a student visa [in] August 2014 and applied for protection on 27 May 2016. The Tribunal sighted a copy of his Pakistani passport as proof of his identity and his claim will be assessed accordingly.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.
The applicant is a [age] year old single male from Karachi in Pakistan. He claimed that if he returned to Pakistan he would be physically harmed or killed by the radical Islamist group Lashkar e-Jhangvi because he was Shi’a and a human rights activist.
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not required to accept uncritically any and all claims made by an applicant.
I found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be an entirely reliable, credible or truthful witness, and find that he fabricated much of his claim in order to be granted a protection visa.
Religious Identity
I accept that the applicant is of the Shi’a faith but I do not accept that he would be targeted because of his faith or of any real or perceived faith-based activism on his part, or that he would be unable to practice his religion if he were to return. Whilst I accept that there has on occasion been violence directed at Shi’a in Pakistan, it is not systematic and the authorities are able to provide security to communal groups – the Pakistani population is more than 210 million so the likelihood of being the victim of sectarian violence is remote. Country information indicates that most Shi’a in Pakistan face a low risk of sectarian violence.[1]
[1] DFAT Country Information Report – Pakistan, 20 February 2019, p 37.
I do not accept that the applicant’s family was targeted and shot at outside an imambargah in February and May 2015. This relies entirely on his oral claim, but his account of aspects surrounding this claim lead me to find that it was fabricated. Despite allegedly being targeted twice in the space of three months in 2015, there have been no further attempts since then.
I do not accept that this was because they lived in a secure army housing compound with shops inside and a servant who could do shopping outside, and rarely left this protected environment. When asked, he said they would only leave 12-15 times a month maximum, for occasions such as if a close friend had died. Even if I were to accept the lower figure, this still means there were 60 occasions when they did leave when they could have been targeted yet they weren’t.
In his protection visa application statutory declaration that he signed in 2016 (folio 88) he also stated that his mother ‘is politically active and volunteers her services with [Organisation 1] as I did when in Pakistan.’ This would appear to be inconsistent with his claim that his parents were effectively holed up in their compound for the last five years except for very specific and occasional trips outside, and that his mother had been politically active in the 1990s.
I do not accept his explanation for the inconsistency as being plausible. He claimed that he had said his mother was active in the past, yet his statutory declaration speaks of her political activity in the present tense. He also claimed that her work with [Organisation 1] was consulting by the phone from her home rather than in the field – this was never mentioned in his statutory declaration and was only claimed after the inconsistency between his claims was pointed out.

I do not accept that his younger brother was also at home and doing study online after having finished a bachelor’s degree online, and that his parents wanted to keep him at home because he was the youngest. When asked how old his brother was, he claimed that he was [age]. When it was put to him that his application indicated that his brother would be [eight years older] not [age] he first said he would need to check the biodata and then agreed he was [older]. I am not satisfied that his brother’s circumstances are as described by the applicant, and the fact that he got the age of the youngest child in the family wrong by eight years does nothing to give me confidence the applicant is telling the truth.
My finding that the claimed attack has been fabricated is also supported by the delay between the alleged attack and the date on which he applied for protection. The attacks were allegedly in February and May 2015 and yet he didn’t apply for protection until May 2016, a year after the second attack. I do not accept that he wasn’t psychologically ready, had to gather evidence to support his claim, that he consulted two or three lawyers and that he felt safe in Australia.
He has not consulted any doctor regarding any mental health issues, nor did he raise the shootings with the university before he stopped attending and ceased his course, nor has he provided any evidence that he consulted other lawyers. Regardless of this and whether or not he felt safe in Australia, the year-long gap is of such length that I do not accept any of his reasons for the delay as being acceptable.
I have taken into account the photocopy of what he claims was a police report into the incident that has been provided as part of his application, but I am unable to lend it much weight. Country information indicates that document fraud in Pakistan is widespread for those documents not issued by a competent central authority.[2]
[2] Ibid, p 71.
I also do not accept that he received threats via phone at his house or via the imambargah in Pakistan around November 2013. He never mentioned this in his protection visa application’s statutory declaration and I do not accept that he acted on his lawyer’s advice to only include claims that would be given weight, given it lacks credibility that he would not think telephoned threats should be mentioned in his claim if he believed they had occurred. In addition, his statutory declaration mentioned that he received threats after the shooting of his parents which is inconsistent with the fact that he had already arrived in Australia well before that. Because his claims of verbal threats rely entirely on his oral testimony which I have found lacks credibility, I do not accept that any such threats were ever made.
Human Rights Activism
I do not accept that the applicant is or was a human rights activist. He claimed to have been a full-time project manager for [Organisation 1] from 2013 after having worked part-time from 2012. He has provided a copy of what he claims is a letter from [Organisation 1] (folio10) and photocopies of [Organisation 1] pamphlets, although for the reasons already outlined I am unable to lend them much weight because of the prevalence of fraudulent documents in Pakistan.
He was asked to provide some other forms of evidence such as social media, email correspondence or the like that would show him working for [Organisation 1] but none was forthcoming. Post-hearing he provided some photographs but they were not given any context, nor were there any dates attached. It looked like some people visiting a rural area although in what capacity that was or whether the applicant was there is not apparent. Regardless, it does nothing to support his claim that he was a full-time program coordinator for the organisation. No evidence was provided that [Organisation 1] personnel have been, or are targeted by any radical group.
I also note that the applicant has no profile as a community worker or volunteer within the Shi’a or broader community in Australia. He claims that this is because he wants to keep a low profile in Australia, was still new and finding his way in the country. It does little to support his claim that he was, or would be active in human rights in Pakistan if he has done nothing in this field in Australia where he has the freedom to do so. He has been here for five years so is not new to the country; his inability to know the names of any imam at either of the two mosques he claims to attend also does not indicate a deep engagement in his faith in Australia.
As the applicant hasn’t raised any other claims to fear persecution and, having had regard to all the evidence, and the applicant’s claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason either now or in the reasonably foreseeable future.
Complementary Protection
Because I do not accept that the applicant’s parents were targeted by Islamic radicals or that the applicant has or will be targeted because of his Shi’a faith, or that he has been a human rights activist, I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.
As a consequence I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rodger Shanahan
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
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.
…

[2020] AATA 3120

12 June 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies

Natural Justice