1711347 (Refugee)

1711347 (Refugee) [2021] AATA 173 (14 January 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1711347
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Rodger Shanahan
DATE:14 January 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 14 January 2021 at 3:31pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – religion – Sunni Muslim with typically Shia surname and known links to Shias – general violence, personal threats and fear of harm – claim that brother was killed – credibility concerns – delay in applying for protection – applied after student visa cancelled and claimed Islamic marriage – discrepancies with media sources – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 424AA
Migration Regulations 1994 (Cth), 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 and Border Protection on 28 April 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 30 November 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
Protection Visa Application
The applicant’s statement claimed the following;
I was a student and worked from as a tutor from home in Pakistan. I arrived in Australia on a student visa using my valid passport. I come from a family of [number] and is the only child of my parents as my father had remarried and I have [number] step-sisters and brothers.
I enjoy studying and educating others, back home in Pakistan, I opened a tuition from home and helped students complete their studies as I genuinely enjoyed teaching others. Due to my home tuition, I was well known the community as parents knew of my tuition due to the reason that there were not many services that were offered in my area for the service I had to offer.
I had students from various religious backgrounds, particularly from the Shia sect of Islam. I however, was from the Sunni sect of Islam. There were no problems when I first opened the business and I accepted all students from all backgrounds. Unfortunately, tensions did rise on the basis of religious background during the year 2013 and is ongoing till today.
Why and how I left the country. I applied for a Student Visa to study in Australia and arrived in Australia [in] July 2014. The basis of applying to study in Australia was that I wanted to complete my education as I no longer could back home in Pakistan. My life was under threat due to being affiliated with the violence that broke out in the year 2013 and the violence that is still ongoing.
My name previously was [Alias 1] and I changed my name to [the applicant]. I decided to change my name due to my previous last name being associated with Shia sect of my community and due to this it caused me a lot of distress. The violent uproar occurred during the Ashura period, which is when Shia followers gather together to pay their respects. Certain groups of people intentionally caused problems during this period as they do not agree to the reasoning behind it. News had spread rapidly in relation to the violence and who is to blame the individuals that were involved in the violence.
I did not involve myself in it in any kind of way, rather I stayed indoors and kept to myself. One day my mother went to the shops to get some groceries and some distressing news reached her in regards to me. There were rumours in regards to my involvement in the outburst of the violence due to my surname and also the relationship I had established with my Shia students parents. The rumours stated that I was a part of the violent outburst and of course I was with the Shia side, and due to this some people had died and they were seeking in revenge.
As a result of the rumours I began receiving threats and I was scared to leave my home and feared for my life. My mother was also extremely worried, she went to the local police station and asked for advice in regards to my protection, and the officer there admitted that the only way to be safe is to leave the country. Therefore I decided to come to Australia on a student visa as I could maintain and continue my studies and also be safe. I applied for the visa and received the approval on the 81h of July, I packed my bags and took the next available flight that I could find and arrived in Australia [later in] July 2014.
Why I can't go back home. If I go back home to Pakistan I know for sure that my life will be in danger. I have maintained my contact back home and my family and friends have informed me that people are still asking about my location and when I will be home. My family and friends have told me that I should not return home on the basis that I will certainly be kidnapped as an alias to the violent outrage. The violence is still on going to this very day, as there are on-going suicide bombings that are specially targeted.
AAT Hearing
The applicant was asked whether he knew everything in protection visa application and knew it to be true and he said that he did. He claimed that his brother had been killed by certain people and if he returned to Pakistan he may be murdered. Asked who would murder him, he claimed that it would be certain people targeting the Shi’a community but he didn’t know who. His brother’s murderer hadn’t been caught.
He was asked why they would kill him and he said that he didn’t know but they may be seeking revenge. Their family name was Shi’a but they weren’t Shi’a. Asked what would happen to him as an individual, he claimed he had already told the Tribunal. This was the only claim he had.
He had an elder brother [Mr A] who was killed – he was in his 30s. Asked how old he was when he was killed, he claimed that he was older but didn’t know his age. He had another brother [Mr B] born in [year]. His brother [Mr A] was born in [year]. They were from his father’s side (his parents were divorced) and from his mother’s side he had a younger brother and younger sister. [Mr C] was his maternal step-brother’s name. His real father had been married previously – it was both their second marriages.
Before his brother was killed, his mother always told him that there were certain people who came to their house and asked for him. The applicant had never done anything so didn’t know why they would come to his mother’s house. Asked again, he said he had no idea why they were after him. He was asked what he had said in his original claim when he applied for protection, he said that he had been giving home tuition to a family from the Shi’a sect and their parents were the head of the Shi’a community in Rawalpindi.
He was teaching during ‘ashura in 2013 and there was a big Sunni-Shi’a dispute and there was a big fight as a result in which many people were killed. People started looking for people who killed the other side. The Sunnis were seeking revenge from the Shi’a as they claimed the Shi’a burnt Sunni shops and killed Sunnis. The applicant was Sunni.
Asked if he was observant, he claimed that he did go to mosque. Asked what mosque he went to, he said that he was in [Suburb 1] and went to [a specified] mosque but now was in [Suburb 2] and because of Corona he didn’t leave the house. In [Suburb 1] he used to go to Friday prayers.
Asked why he was being targeted, he claimed that people thought he was Shi’a because the name [Surname 1] was mainly Shi’a and because he tutored a Shi’a family. He had tutored them for around a year. It was put to him that he would have been asked by the family regarding some Shi’a issues, and he claimed they never asked him anything as he didn’t want to talk about religion with anyone.
It was put to him that as observant Shi’a they would have engaged with him and asked him to pray with them for instance. He said that Shi’a don’t pray at home and instead use an imambargeh – it was put to him that Shi’a also pray at home and he said they never asked him to pray at home. Asked why they thought he would be considered Shi’a given his name wasn’t [Surname 1], he claimed that his name was changed. Asked when it was changed, he claimed that it was around 2006. He claimed that he was still known as [Alias 1] by his childhood friends.
It was put to him that the family he had tutored would only have known him as [Alias 1] and he claimed they considered him from the [Surname 1] family but never asked him his name or for his documents. He said they never asked him if he was Shi’a. Asked why he would be targeted, he claimed that he had to go to the Shi’a area to tutor the children every day and when the fighting occurred he had to pass where the ‘ashura commemoration occurred. The Shi’a family allowed him into their house.
When he finished he saw smoke coming from a certain place and quickly returned home without stopping. People were making noises and he was scared so he went home. He was asked why he was in trouble if he had nothing to do with the demonstration, and he claimed that people thought he was involved with the Shi’a. Asked who thought this he claimed that Sunnis after the fighting may have seen him somewhere around the activities/fighting.
Asked how big Rawalpindi was in terms of population, he didn’t answer. It was put to him that there were about 2 million people. Asked why he would be singled out from this population in 2013, and he claimed that the people knew who were Shi’a and not Shi’a. He was asked if anything happened to him to make him think he would be targeted, and he said that someone told his mother that they knew the applicant was teaching Shi’a children and was being targeted by Sunnis.
Asked if it was a group of Sunnis, he claimed it was a group of extreme people who didn’t like Shi’a. Asked if he was ever detained or assaulted by any group, he stated that he hadn’t. Asked why he left Pakistan if he was never harmed, he claimed that others were being targeted and he was tutoring Shi’a students. He left Pakistan to seek protection in Australia.
Asked if he applied for protection when he arrived in Australia, he claimed that he was here to study [course] in TAFE. He studied for six months but didn’t go well. He passed three subjects and failed two. Asked if he applied for protection after he finished studying, he claimed he hadn’t finished studying. He was studying and there was a financial crisis for him as he had no job. Asked if he then applied for protection, he claimed he did it when his visa finished.
He arrived in Australia in July 2014 and began studying. He finished studying in December 2014 and said he applied for protection in 2015. Asked if he was sure, he said it was 2015 or 2016 but he wasn’t sure. It was put to him that he applied two years after he finished studying, in November 2016. Asked what he did in that time, he claimed he married a woman who was an Australian citizen from Pakistan but they argued and divorced.
Asked if he applied for a spouse visa, he claimed that the woman never did it. Asked if he was ever formally married, he claimed that they were Islamically married. They did not register the marriage. He never worked between December 2014 and November 2016. There were some people at home to support him, and the woman supported him when he lived with her. It was put to him that he hadn’t applied for protection for two and a half years so it was difficult to believe that he was seriously in fear of serious harm in Pakistan.
He claimed that when he married the woman she told him not to worry about anything as she would apply for the visa. They lived with each other and he looked after her daughter – she never applied for a visa for him. Asked if he told the DIBP they were married, he claimed he didn’t as they never registered the marriage and she asked the sheikh not to register the marriage.
Asked if he had the marriage contract, he said he did and he had the divorce certificate from the sheikh. Asked what visa she was getting for him he said it was a marriage visa. He was asked how she could get that if she never registered the marriage. He claimed that she wanted to wait to see how their relationship went. He had some photos of their marriage and had lots of witnesses as it was conducted in a restaurant and he invited his friends.
Asked if he was close to his brother who was killed, he claimed that he was and also sent photos about his marriage. He would speak to him irregularly – asked how regularly, he claimed he spoke with him on a monthly basis. His brother was married with [number] children. He got married when the applicant was in Pakistan – he couldn’t remember what year but around 2013. He was happily married.
Asked if his brother had any other name he said that he didn’t. His name was only [Mr A]. He had no idea who murdered him and had provided a video of the event and of his father giving an interview on the media saying they weren’t Shi’a.
He was then told about s 424AA of the Act (its requirements were complied with by the Tribunal) and it was put to him that in the Pakistani media it was reported that the name of the person killed was [Mr D, which was very similar to Mr A but slightly different] and that after he was shot he was helped into a taxi by his brother [Mr E, which was similar to Mr B but again different], that suspects had been arrested and that his wife whom he had divorced several months previously who had hired some hitmen. The name [Mr A] didn’t appear to be uncommon in Pakistan and social media searches revealed several people using this name.
The Tribunal was concerned that he was not being truthful and that this person killed was either not his brother or, if he was, the murder was due to a marital dispute after he had been divorced. This could go to issues of his credibility. He claimed that he spoke to his father and he never mentioned this to him. He was asked why he didn’t check out social media about his brother’s murder or that his other brother hadn’t or family or friends hadn’t told him that someone had been arrested for his murder. He continued to claim that he spoke to his father and they said they had no idea who killed him. It was put to him that iot was extraordinary he wasn’t aware given it was covered on Pakistani media.
It was put to him that, even if he didn’t know anything about the murder, he was still concerned about being targeted given it was the result of a marital dispute, he claimed that his father was on the media saying they weren’t Shi’a. He was asked how the Tribunal could be certain it was his father and he said that he had provided his ID card. It was put to him that it could be anyone of that name.
He was asked why he thought that he would be targeted in 2020 given the ‘ashura incident happened in 2013 and he had nothing to do with it. He claimed that he was scared and people were still seeking revenge. He was asked why he couldn’t relocate given it was a huge population and he said that if they knew he was back they would find him. Asked who ‘they’ were, he said that he had already said he didn’t know who ‘they’ were. He believed there was nowhere in Pakistan that he could move to without being found.
Country population was put to him that the big cities were diverse and offered some anonymity so he could move, and he claimed that once they knew he was in Pakistan he would be in danger. He was told that he would be given a day or two to provide further information regarding his alleged brother’s death.
It was put to him that his delay in applying for protection was significant and done after he had failed TAFE and his student visa cancelled. This could call into question the truthfulness of his claim. He repeated his claim about his marriage and had all the proofs of the marriage. Asked whether he mentioned this in his DIBP interview he claimed that he didn’t as she was a single mum on Centrelink payments and told him not to mention this or she would have her funding cut. He was asked for a statutory declaration from her that this was the case. He claimed that he had the sheikh’s number and a divorce certificate. He was told that he would need to provide a marriage contract and divorce certificate and a statutory declaration from the sheikh and his partner. He said that he could provide that.
It was put to him that he could have applied for protection at any time even if he was in an Islamic marriage. He said he was young when he arrived and didn’t know anything – it was put to him that he was an adult and could have sought advice from any number of avenues such as the internet, DIBP, a lawyer. Simply saying that he didn’t know anything without then seeking to inform himself about seeking protection would not carry much weight.

He claimed that perhaps the Pakistani media would sometimes distort news to get more views but it was not possible that he was murdered by his own wife.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia on a student visa [in] July 2014, his student visa was cancelled for non-attendance in September 2016 and he applied for protection on 30 November 2016. The Tribunal sighted a copy of his Pakistani passport as proof of his identity and his claim will be assessed accordingly.
The applicant is a [age] year-old single male from Rawalpindi in Pakistan. He claimed that if he returned to Pakistan he would be murdered by people targeting the Shi’a community and that his brother had been murdered because of this.
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 a reliable, credible or truthful witness, and find that he fabricated most of his claim in order to be granted a protection visa.
Targeting claim
I do not accept that the applicant has been or will be targeted by Sunnis because he is assumed to be Shi’a and somehow connected to fighting that occurred during ‘ashura commemorations in Rawalpindi in 2013. The claim relies nearly entirely on the applicant’s oral testimony which I have found to lack credibility.
A significant measure of his lack of credibility is his falsified claim that his brother was killed in 2020 because of his identity as a Shi’a from their family. Prior to the hearing he provided a submission that included a claim that his brother had been targeted for killing because of his Shi’a identity. It included links to media stories and CCTV vision of the killing, as well as a copy of the deceased’s ID card and a clip from someone who he claimed was his father stating that the family weren’t Shi’a.
I do not accept that the applicant’s step-brother was killed as the applicant described, nor do I accept that the person who was killed was targeted because of their religion. I do note that the father of the person killed [had the same name as the applicant’s father] and had the same date of birth as that of the person whose ID card was displayed on TV. Yet there are more than 210 million people in Pakistan and a cursory glance at social media indicated that there were at least several people by the name [Mr A] was not uncommon.
I place more weight on the fact that the person killed was reported as [Mr D] whereas the applicant said that his brother did not have another name other than [Mr A], while the media reported that the person shot was carried into a taxi by his brother [Mr E], whereas the applicant did not have a step-brother of this name (the closest was [Mr B]).
During the hearing the applicant also stated that his brother was happily married with two children, that he spoke to him monthly and that his brother’s murderers hadn’t been caught. There are newspaper reports concerning the murder that contradict the applicant’s evidence. In October 2020 it was reported that police had arrested three people for the murder; the two gunmen and the deceased’s second wife who he had divorced a few months previously.[1] Other media reports noted that the motive for the murder was a marital dispute and not sectarian. While there are several people in Pakistan with this name based on a simple internet search,
[1] [Source deleted].
Given the applicant’s allegedly close relationship with his brother I do not accept that the applicant was unaware that he had taken another wife or that he had subsequently divorced her, and she had him killed as a result. Nor do I accept that the applicant would have been unaware that his brother’s ex-wife was arrested for the crime given that it was widely reported in the Pakistani media and it is impossible to believe that he would not have found this out from the media or from his family with whom he is in contact. He has therefore attempted to pass off a murder resulting from a marital dispute as a sectarian killing and evidence that he would also be targeted. This informs the Tribunal’s view of his credibility as a witness of truth.
The timing of his protection visa application is also not supportive of his claim that he came to Australia fearing serious harm in Pakistan. He arrived on a student visa in July 2014 and by his own admission was no longer studying after December 2014. The fact that he waited for so long after arriving in Australia does not support his claim that he feared serious harm at the time that he left Pakistan. I do not accept that he was young and didn’t know what to do. He was an adult who allegedly came to Australia with the purpose of seeking asylum yet did nothing to seek any knowledge as to what to do and, given he stopped studying after December 2014 he had plenty of time to do so. Yet he didn’t apply for protection until November 2016, two months after his student visa was cancelled.
I also do not accept that because he married an Australian citizen he was working on the mistaken belief that she would arrange his spouse visa for him as a result. He claimed that he was married Islamically and it was never registered as his ‘wife’ did not want to lose her Centrelink benefits. Although post-hearing he produced a letter from an Islamic marriage celebrant saying that the applicant had pronounced his divorce from his Islamic wife, he never produced a copy of his marriage contract though, nor did he mention the marriage at his DIBP interview (allegedly so he wouldn’t impact on his Islamic wife’s Centrelink payments).
His inability to produce a copy of his Islamic marriage contract when asked raises questions in the Tribunal’s mind as to what the arrangements regarding the relationship were, but regardless of this I do not accept that this is an acceptable reason for delaying his application for protection. Once again, it does nothing to explain his delay in applying for protection, given that he claimed in a post-hearing statutory declaration that his Islamic marriage took place [in] September 2016, more than 18 months after he had stopped studying at TAFE. This delay raises further questions regarding the truthfulness of his claim to fear serious harm in Pakistan.
Given I have not accepted his claim that that he was a tutor to a Shi’a family or implicated in a series of violent events following ‘ashura, it follows that I do not accept that he would be targeted as a consequence. This finding is supported by the fact that he had never been detained, threatened in person or assaulted. I also do not accept that anyone came looking for him at his mother’s house or that they had been told of threats against him. This relies entirely on his oral evidence and, as I have pointed out, he has not proven to be a witness of truth.
I also do not accept that the applicant would be considered as a Shi’a because his name ([Surname 1]) was demonstrably Shi’a, or because he was known to tutor children who belonged to a high profile Shi’a family. To begin with I do not accept that the applicant tutored children of high profile Shi’a. To begin with it relies on his oral evidence which I have found to lack credibility, his marks from school that he provided do not indicate someone of high academic achievement that a high-profile Shi’a family would employ as a tutor for their children – his poor result in his six months at TAFE further calls into question his academic ability.
I also do not accept that he would be considered Shi’a because of his family name. Although I accept that his father’s name is [Surname 1] (although he too is Sunni), every document the applicant provided, from his birth certificate through his academic reports and to his passport, say his name is [the applicant]. I do not therefore accept that he is known as a [Surname 1] but rather find that he is and always was known as [the applicant].
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 was or would ever be mistaken for a Shi’a, or threatened in the mistaken belief he was one, or that his brother was killed because of sectarian issues, 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.
…

[2021] AATA 173

14 January 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction