1709917 (Refugee)

[2020] AATA 5045

1709917 (Refugee) [2020] AATA 5045 (4 November 2020)

Corrigendum

DIVISION:Migration & Refugee Division

CASE NUMBER:  1709917

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Luke Hardy

DATE OF DECISION:  4 November 2020

DATE CORRIGENDUM

SIGNED:10 November 2020

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

1.In page 1, the date of decision, delete “4 October 2020” and replace with “4 November 2020”.

Luke Hardy
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1709917

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Luke Hardy

DATE:4 October 2020

PLACE OF DECISION:  Sydney

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

Statement made on 4 November 2020 at 5:01 p.m.

CATCHWORDS
REFUGEE – protection visa – Pakistan – a Taliban target for recruitment – injured in a Taliban attack – suffered no harm after the attack – delay in applying for protection – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2

CASES
MIAC v SZQRB [2013] FCAFC 33

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 20 April 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. [The applicant] is a citizen of Pakistan. He entered Australia on a student visa [in] March 2014, intending to undertake [a specified course]. The visa was valid to 30 September 2016. On 29 September 2016, the day before the visa expired, [the applicant] lodged a protection visa application. He failed to attend the interview to which he was invited and the delegate refused to grant the visa on 20 April 2017. [The applicant] the sought review by this Tribunal.

3. The hearing before the Tribunal, constituted by me, was held during the COVID-19 pandemic. [The applicant] appeared before me by telephone on 4 November 2020. The Tribunal exercised its discretion to hold the hearing by telephone, determining that it was reasonable to do so, having regard to the nature of this matter and the individual circumstances of [the applicant], who also agreed for his own part to be heard by telephone. I also had regard, in considering this option, 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.

4. The hearing was conducted, at [the applicant’s] request, without need of an interpreter. There were no audio or other issues interfering with clear communication. I am satisfied that [the applicant] was given a fair opportunity to give evidence and present arguments, and was not prevented from providing cogent and detailed information due to any circumstances beyond his control.

   Criteria for a protection visa

5. 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.

6. 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.

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

8. Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.  

9. 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

10. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian -- Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF Claims and evidence

    The issues

11. The main issue in this case is whether, on accepted facts, [the applicant] is entitled to protection in Australia as a refugee or, if not, on complementary protection grounds.

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

    Claims

13. In his original protection visa application, [the applicant] claimed that he was born and raised in Nowshera in what is now Pakistan’s KPK province, which used to suffer under the influence of the fundamentalist Taliban insurgency. When he was [age] years old he was struck by two bullets during an attack on his neighbourhood. As he was born in [year], this would have been in or around 2001. He claimed that he was a Taliban target because of the group’s interest in recruiting youngsters. In his evidence to the former Immigration Department he said he continued to live at the same address for another thirteen years until he came to Australia, except for four years when he did tertiary studies in another location in Pakistan. He did not suggest that he had any significant problems with the Taliban after the local shooting incident in or around 2011. As for the Taliban having a reputation for recruiting youngsters, I note that [the applicant] is now [age].

14. [The applicant] claimed that his family moved him away from Nowshera for his safety and that after his family sent him here the Taliban started threatening them. He said that for this reason, he was unable to concentrate on his studies and dropped out. He claimed that in the event of return to Pakistan he will be kidnapped by the Taliban.

15. Several of the key claims summarised in the preceding paragraphs were contradicted or otherwise undermined by information [the applicant] gave me at the Tribunal hearing. 

16. For a start, [the applicant’s] description of his parents’ current circumstances in Nowshera was of a fairly unremarkable day-to-day life in retirement together. He also provided quite different reasons for coming here in that he said his purpose in coming to Australia had been to study and advance to a [higher] degree. He did not suggest at all that he dropped out of study due to his family being harassed by the Taliban. He said, rather, that to pay for his tuition and upkeep, his father had sold one of the family’s properties and invested it through a partner who defrauded him. This caused [the applicant] to fail in the payment of requisite tuition fees here, all within about four months of arrival in 2014. He said this was all to do with his father’s investment problems in Pakistan.

17. [The applicant] gave generally unsatisfactory evidence as to why he did not apply sooner for protection in Australia. He said he might have applied sooner had he been pushed to the brink, say, by a letter from the Immigration Department advising him that his student visa might be cancelled. He said that that did not happen, but that he paid attention to when his visa was about to expire and then applied for protection. I put to him that the delay in applying, given his potentially vulnerable circumstances raised some questions about the genuineness of his fear of being persecuted in Pakistan. He said he did not really know the rules.

18. I put to [the applicant], on the basis of independent country information, cited below, that his claims about the Taliban might be long out of date. In response, he said that there were two bombings in Peshawar, about 30 kilometres from Nowshera, in recent weeks, one attacking a government building of some kind and the other a mosque. I asked [the applicant] how these possibly targeted bombings supported his claims about being a recruitment target and he was unable to explain satisfactorily.

19. I put to [the applicant] that if he did not wish to live in territory formerly dominated by the Taliban there were other places to which he might relocate, such as Karachi, Rawalpindi and Islamabad. In reply, he said the situation is unstable in Karachi, but was unable to say how that would affect him personally in the reasonably foreseeable future. He speculated, apparently, that the Taliban can be anywhere.

    Independent country information

20. I have had regard to independent evidence of socio-political change throughout KPK province since around 2012 and 2013.[1] Whereas there are reportedly sporadic killings of some individual political figures, usually during election campaigns, the Pakistani authorities had reclaimed control of the region since around 2013, after much negative international attention was drawn to the Taliban’s 2012 shooting of then-schoolgirl Malala Yousefzai.[2]

    [1] “The Taliban once ruled Pakistan’s Swat Valley. Now peace has returned,” The Washington Post, 9 May 2015,

    [2] “Killings target anti-Taliban leaders in Swat: Pakistani military has claimed 'complete control' over the region, but the bloodshed continues,” AlJazeera, 21 November 2014,

21. I have had regard to independent evidence of NGOs having returned to KPK, such as in areas like Swat Valley, to deliver health and other programs to the population there. The EPS, for example, continues to administer and deliver projects in the area.[i]

22. National institutions including the armed forces, police and courts evidently secured KPK province in 2013-2014, entrenching national control in the province even further, in 2018, with the incorporation of the former Federally Administrated Tribal Areas (FATA) into KPK province.[3]  The Taliban or TTP reportedly fragmented into at least four groups in 2014, and more since, with the defections reported to have left it lately described as “beleaguered” and in disarray.[4] A rump of the splintered TTP was reportedly forced to move out of KPK province and into Karachi by 2015.[5] Pakistan Today, reporting on 30 May 2018, gave a positive view of the merger of FATA into KPK province, with particular reference to the benefits that the rule of law would bring over time based on observations about the success of the process since taking back the province from the grip of Taliban influence in 2013-2014.[6] DFAT reports: “Local observers, including officials, in [KPK province] also reported a trend of increased security, a reduction in reported killings, and reduced fear within the community in 2018. Residents of Peshawar reported an increased sense of security in the evenings due to the enhanced military presence.” Whereas it assesses that, “sporadic large-scale terrorist attacks are likely to continue to occur, against a background of ongoing smaller-scale attacks (albeit at a reduced tempo)” DFAT nevertheless reports: “Government and military operations have disrupted the activities of militant groups and limited their access to former safe havens, and Military courts have tried and convicted individuals with links to terrorist organisations.”

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

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

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

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

23. Since 2014, with the Pakistani government having reclaimed much more control over KPK province, the splintered Pakistani Taliban has reportedly had to seek refuge in Afghanistan, although not without sporadic attacks on political and policing figures:[7]

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

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

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

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

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

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

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

24. Evidence of a capacity for effective pre-emptive action by the Pakistani authorities in combatting the Taliban in KPK province is provided in the following news report of the arrest of alleged Islamist bomb-plotters in the city of Mansehra in March 2019:

    The joint operation was carried out under Operation Radd-ul- Fasad on an intelligence sharing between security agencies, and the arrested terrorists, who were blindfolded, were shifted to an undisclosed location. The apprehended terrorists were involved in sabotage activities in Hazara [division] including targeting police and military convoys, target killing of LEAs [Law Enforcement Agencies] and attack[s] on [Shi’a Muslim mosques, or] Imambarghas.[8]

    [8] “Five terrorists arrested in Mansehra,” Dawn, 13 March 2019, >

    There is evident willingness and capacity on the part of authorities to detect and forestall acts of Taliban violence in KPK and other parts of Pakistan.

    Findings with regard to s.36(2)(a) of the Act

25. In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[9] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[10]

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

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

26. The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[11] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[12]

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

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

27. In this case, I accept that [the applicant] is a Sunni Muslim Pakistani national from Nowshera in KPK province, Pakistan. I accept he was injured in a Taliban attack in 2001. I give more weight, however, to his having lived several years in Nowshera after that attack without suffering even a little of the harm and persecution he claims to fear. In addition, I give much weight to the substantial change on socio-political circumstances in KPK province and elsewhere in Pakistan in removing the Taliban from the power it used to hold. Given that [the applicant’s] claims rely on the power the Taliban had in his home area, this is a significant finding. None of [the applicant’s] claims about Taliban bomb attacks satisfies me that they will target him or try to recruit him in the reasonably foreseeable future, or that they will punish him for having travelled abroad, say, to a Westernised country like Australia. In making this finding I give weight to the evidence of his family not having been harmed by the Taliban for sending him here.

1. I am concerned that [the applicant] was not being truthful when he said he dropped out of school due to fears about his parents being harassed by the Taliban. I find on the evidence before me that these claims were not ruthful. I give some weight to [the applicant’s] delay in bringing his protection claims to light as, on the evidence before me, it undermines his claims as to a genuine fear of being persecuted in Pakistan.

   On the evidence before me, I am not satisfied that [the applicant] faces a real chance of being persecuted in Pakistan in the reasonably foreseeable future for any reason cited in s.5J(1)(a) of the Act. His claimed fear s not well founded. He is not a refugee.

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

   Findings with regard to s.36(2)(aa) of the Act

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

4. A person is entitled to protection under s.36(2)(aa) if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.

5. Relevantly, s.36(2)(aa) refers to a "real risk" of an applicant suffering significant harm. The "real risk" test imposes the same standard as the "real chance" test applicable to the assessment of "well-founded fear" in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).

6. "Significant harm" for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. "Cruel or inhuman treatment or punishment", "degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act.

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

8. Essentially, all three of these definitions require that there be an intention to inflict harm by some act or omission. Torture does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Cruel or inhuman treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Degrading treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR.

9. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

10. Accepting that [the applicant] is a citizen of Pakistan, I find that Pakistan is the “receiving country” in this case.

11. [The applicant’s] claims to complementary protection are essentially the same as his refugee status claims. Those claims have failed as refugee status claims due to their lack of credibility and/or not having met the “real chance” test. In the circumstances, those claims can no more succeed as complementary protection claims.

12. On the evidence before me I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Pakistan, there is a real risk that [the applicant] will suffer significant harm. 

13. Accordingly, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

    Other findings

14. 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, he does not satisfy the criterion in s.36(2).

    decision

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

    Luke Hardy
    Member

    
    

    Attachment  -  Extract from Migration Act 1958

    5 (1) Interpretation

    …

    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)     that is not inconsistent with Article 7 of the Covenant; or

    (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)     that is not inconsistent with Article 7 of the Covenant; or

    (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)     for the purpose of intimidating or coercing the person or a third person; or

    (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    receiving country,  in relation to a non-citizen, means:

    (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    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.

    …

    
    

[i] “Projects completed,” EPS website, displays Swat public health projects completed in 2015, 2016 and 2018; displays details of a Swat main office and four district sub-offices.