1711654 (Refugee)

1711654 (Refugee) [2021] AATA 1831 (14 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1711654
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Rodger Shanahan
DATE:14 April 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 14 April 2021 at 9:33am
CATCHWORDS
REFUGEE – protection visa – Pakistan – religion – Quranic studies led to extremist indoctrination and weapons training – detained, beaten, sexually assaulted and held for ransom – mental health – fear of harm from religious scholar and police – credibility – inconsistent claims and evidence – applied for protection after ceasing study for a year and voluntary travel to home country – no approach to counsellors or mental health practitioners – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), 36(2), 65
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 dependants.

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 5 May 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 6 December 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
The applicant made the following written statement in support of his claim:
As a citizen of Pakistan and a Muslim, who fled the country Pakistan in fear of persecution, I fall under the category of a refugee defined by the 1951 United Nations Convention relating to the status of refugees as amended by the 1967 Protocol. The following facts stated herein would explain in detail the reasons why I fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. As I am presently outside Pakistan. I am unwilling to avail myself of the protection of that country owing to the above well-founded fear. I wish to emphasize that as far as the submissions in respect of race, religion, and nationality, membership of a particular social group or political opinion are concerned I submit that for the most part they are indistinguishable from each other.
I am a Pakistani Sunni Muslim horn in Karachi and lived with my parents at [Address] in Karachi Pakistan. My father was working in [Country 1] and my eldest brother is living in [Country 2]. We had no financial problems and I being the last son, my father wanted me to study hard so that I could look after my two younger sisters after my elder brothers move out. I was always interested in studying Quraan as I found myself spiritually inclined. My parents noted my interest and when I completed grade [Number] in 2001, my father sent me to the Islamia Madrassa school known as [School] to learn the Quraan.
The local Mullah [Mr A] who is a well known scholar in the area was known to my father. He is a Pathan from Federally Administered Area (FATA) and all the Muslims listened to his speech during festival seasons. I felt very fortunate to study under him and as my father was overseas, he instructed my mother to permit me to stay with the Mullah whenever he needed my assistance. The Mullah came forward to teach me Quraan free of any fees but my father was giving money to the Mosque on a regular basis. I became very much interested after joining the Madrassa and spent most of the time at the Mosque assisting the Mullah with his day to day work at his private residence, at Madrassa and at the Mosque. I came late home whenever I had to help the Mullah after school. My brothers and mother never worried about me as I was in good hands.
During the meetings at college the Mullah taught all the students that we all have to serve our country by studying scripture and history of Pakistan. He started to teach us basic history of Pakistan and wanted us to read more information from the school library if we had time. As I was interested in Pakistani history, I spoke to the Mullah personally whenever I was with him after school hours. The other students were not interested in scripture as I was and the Mullah found me to be a studious student. He always encouraged me to learn the political news that was available for anyone to read at the Madrassa. The Mullah was always reading newspapers and urged me to read it for him.
I became interested to attend to the college and study further. The Mullah told me that as he had been teaching me Quraan and scripture free of any tuition fee, I should not leave him or the Madrassa in the future. He told me that I should continue to attend the Madrassa and Mosque on a regular basis after college. My parents and siblings were very happy that I started to follow my usual school along with them. Whenever I met the Mullah he tested whether I had forgotten the Quranic verses and would order me to repeat it. As I loved the Mosque and Madrassa atmosphere I never missed visiting the Mosque after school.
The Mullah liked me so much and as I was getting more matured and knowledgeable, that he insisted that I should become a Mullah like him, once I completed my studies. My father retired from Services in 2008 and he returned home permanently. My father insisted that I should attend to the Mosque regularly if I wished to serve the Mullah and work in the Mosque. My father wanted at least one of his sons to serve the Mosque and Mullah and he wanted me to become a spiritual person if I wished with the help of the Mullah. My father insisted that I should complete my degree before I joined the Mullah on a permanent basis to study religious scripture from the Mullah.
I was becoming much interested in studying scripture further at the same time I was also interested to visit other famous Mosques. The Mullah promised to take me along with him to FATA and Quetta to meet learned Muslim scholars who would give me more insight into the Islamic scripture and religious culture so that I could become a Mullah under their guidance. He said he would speak to my parents about it after I completed my degree as my father wished. I told my parents about the Mullah's proposal and my parents never showed any objection. I continued to work for the Mullah after the lectures at the University and I found that the Mullah needed me to assist him during his absence at the Madrassa.
I had to take classes for the younger children. The Mullah trusted me and even asked me to do his personal house work at his residence. During these days I found that many Muslim men from other parts of Pakistan visiting the Mullah regularly. When I questioned him who they were. he said that I should stay away from them as they came to him to get advice as to their business in Pakistan. Most of the men who came to him were Pathans and I did not question him as the Mullah himself is a Pathan. Whenever I became very busy with my studies and exams. I had to stay away from the Mullah. During the days at the University many local University students knowing that I was close to the Mullah asked to get favours from the Mullah. They would ask me to get recommendation letter for jobs etc. The Mullah never refused to my requests.
When I completed my degree, I did not want to join a firm or a private company to work to earn money. I spoke to my elder brother and he asked me to study Islamic scripture if I wished and never to worry about the money. I started to meet the Mullah regularly as I was free after I completed the University degree. He insisted that I should travel with him to FATA to meet the Islamic scholars. I went along with the Mullah to FATA and stayed with him at this residence. I was introduced to the scholars and they insisted that I stayed with them to learn the religious scripture to become a Mullah. I stayed over there at the Mullah's home in Bannu in FATA. I had to attend to the Madrassa near his home where I found many Muslim youths learning scriptures to become Mullahs.
Mullah asked me to join them to follow the training. Mullah was travelling between FATA and Karachi very often and sometimes I couldn't meet him. While I was studying with them, I found that these youths had ideas of leaving the country to travel to other Arab nations for further their studies. They told me that after they taught us we would be sent to [Country 1] for further studies. In the evenings the students including me were taken to a regional training centre and to an Indoctrination centre where we were asked to take up training lessons in handling arms and exercise.
I was not interested in taking up arms as I wished to be a Mullah. I refused to take up arms and at the indoctrination centre I found that I had to take an oath that I would he very discreet and would not tell anyone as to their ideas and not to identify one another to the authorities when we return back to our posts in Pakistan. I was not at all interested in following their method and that evening I asked the Mullah when he returned back home, why I should take up arms and he said that for self defence I had to learn. The Mullah said that he would speak to the head and would stop them giving any arms training to me.
I was asked to take oaths that I would never let them down and would be discreet as they wished. I continued to follow the lectures and I came to know that many students who were taken away were taken to terrorist training camps and they never came back. The Mullah told me that whoever gave up the idea of becoming a Mullah had to attend the training camp for military style training. I was becoming nervous when the Mullah refused to allow me to speak to my family members. He said that for safety reasons I am not allowed. After few months, when I became agitated as to the behaviour of the Mullahs around the training centres and in Madrassa. I came to know from the boys that many youths were sexually molested by the Mullahs. I was waiting till the Mullah came back to FATA to question him as to the other Mullah's above acts and behaviour.
When I asked him he said that they were Pathans and they had no objection for the Mullahs to have men if they wished. I was devastated to hear that. The Mullah said that I had taken oaths not to mention these matters to any one ill wished to become a Mullah. I couldn’t accept it and told the Mullah that I wanted to get back home and would consider becoming a Mullah when I grow old. The Mullah became very aggressive and beat me. That night I fled from the area and with the help of a car driver reached home in April 2014. I called my brother and spoke to him as to what I experienced in FATA and he came forward to give me money to study overseas. He said not to mention anything to parents as they would start worrying. He said that he would talk to them later.
He made arrangements through his friends to get me a visa to Australia to study further. My brother's friend who owned a company and he wanted me to work from home and I did an Internship programme under his guidance till I got the visa. I feared that the Mullah and his men could find me anytime while I was hiding at my brother's friend's house. The police officers came home to question my parents whether I had returned back from FATA. My parents in fear told the officers that I hadn’t. The officers ordered that I was involved in the Therik-e-Taliban Pakistan (TTP) and was responsible for shooting many members of the community and that they had to arrest me.
My parents were ordered to hand me over on my return. When my father asked me for the police visit. I told him that I refused to take up arms and the FATA Mullahs want to arrest me and take me away from the family. I was hiding at my brother's friend's home till I got my visa to Australia as a student. I couldn't concentrate with my studies for a while but was happy that I escaped from FATA. In Australia, as I had no one in Australia, I was talking to my brother frequently and he said that if I wished I could come to [Country 2] and apply for permanent residence status.
To obtain the visa to [Country 2], I had to apply from Pakistan. My brother wanted me to travel to Pakistan after some time when the Mullah or the other militants or the police forgot about me. In June 2016, my brother told me that I should get back to Pakistan and meet the agent to get the visa to [Country 2]. When I landed in Pakistan I stayed with my brother's friend. My parents came to meet me. I met the agent and he took me to get photographs for the visa. While I was waiting at the shopping centre to collect the photos, four men saw me and chased me around the shopping centre. I tried to escape from them but the people caught me and handed me over to them.
These men brought me to the Mullah. He ordered his men who were militants to look after me and told them that I should not be permitted to leave his home till he returned. The Mullah came back and along with the men beat me. He said that he would hand me over to the police for shooting people in Karachi and I would be sentenced to prison by the authorities. I said that police officers would act according to his orders. I begged with him to assist me and that my brother would give him good money if he allowed me to go without handing me over to the police. He said that the police officers had been notified by the other Mullahs to arrest me and I would not be able to escape from them. The Mullah told me that I had to stay with him till my brother paid the money that he demanded.
During this time he sexually assaulted me. Knowing what would happen to me if I tried to flee I asked the Mullah to permit me to speak to my brother. My brother paid the Mullah immediately and before my friend's brother and my parents came to fetch me, he ordered that I should not mention anything to anyone about the money paid to him, about his ill-treatment or to identify his men or other Mullahs to anyone when he released me. He ordered that I should flee from the country and never to return back. My brother's friend came to fetch me and he brought me to his house and sent me to Australia. My brother told me never to get back to Pakistan in the future. He wanted me to apply for protection. As my brother had paid the Mullah good money I had to wait till my brother sent me money to lodge the protection visa application.
Please do not send me back. Please take the above facts into consideration and grant me the protection of this country Australia.
AAT Hearing
The applicant was asked if he understood the interpreter. It was put to him that he had previously claimed the DIBP interpreter was a Pashtun. Asked if he pointed out this to the DIBP interviewee, he said he found it out later in the interview. Asked if he stopped the interview to point this out, he said that he didn’t. Asked if the current interpreter was a Pashtun, the applicant said that he didn’t know. The interpreter was asked and then said that he wasn’t Pashtun. The applicant then said that he didn’t sound like one.
The applicant was asked if he knew everything that was in his protection visa application and he knew everything in it to be true and correct. His file was gone through and he was asked if there was anything missing or that he wished to add, and he said there wasn’t.
The applicant claimed that Mullah [Mr A], the police and Taliban (TTP) were together and bother were after him. They would capture and kill him because he had seen their training centre in the FATA. Asked whose training system it was, he claimed it belonged to TTP. Asked what he saw, he claimed that he saw weapons training of people and they then sent them to places – he didn’t know where they sent them. He first had this fear from January 2014 when he went to study in the FATA. He had no other claims.
He used to go a religious school where he met [Mr A] who was a scholar teaching there. He was very popular. He used to go there after his main school as his father wanted him to be more religious and he had an interest. He went to the religious school in the evening but went full-time from 2001-2005. The madrassa was in their town. His father knew [Mr A] and used to donate to the mosque. He spent more time there once he started university – he wanted to become a mullah as did his father. He was the youngest one and his father wanted someone to go down this path.
[Mr A] said he would take the applicant to the FATA and socialise with other big scholars but his father wanted him to finish his studies. After he finished his degree he went to FATA to meet the scholars. He finished his degree in 2013 and he was [Age 1] years old. He then said he wasn’t [Age 1] but he must have been [Age 2]. He was asked when he was born and said it was [Year 1] and started university in [Year 2], then said [Year 3]. Asked what he did before [Year 3] he said he was in a college (high school). It was put to him that he would have been [Age 2] when still at high school. Asked why he was so old as people normally finished at 17 or 18 he said that he spent a number of years in the madrassa.

After he finished his degree he spent a lot of time in the mosque with [Mr A]. His father allowed [Mr A] to take the applicant to FATA. His purpose of going to the FATA was to meet scholars and study as he wanted to become a mullah. Asked if he went there to study or to meet scholars, he said that he wanted to meet the scholars and they would tell him about the study. It was put to him that he had been at a madrassa for four years so he must have known about them. He said that he had just studied the Qur’an at his madrassa.
He said that he wanted to meet the scholars who could then guide him in his study. Asked why he had to go to the FATA as there were plenty in Karachi and elsewhere. He said [Mr A] wanted to take him to meet these very famous scholars. Asked who they were and whether they were famous in Pakistan, he claimed that they weren’t as popular, but [Mr A] recommended them. It was put to him that [Mr A] had a mosque in Karachi and there would have been famous scholars there so the Tribunal wondered why he had to go to the FATA.
He said that [Mr A] was from FATA and just used to teach in the madrassa in Karachi. He had homes in Karachi and FATA. It was put to him that the FATA would have been heavily influenced by Salafist thought but he claimed his father trusted [Mr A]. [Mr A] was a Deobandi – it was put to him that this was a very conservative strain. He said he was normal in Karachi. Asked what he meant as he would have been conservative or liberal – one didn’t change. He claimed that at that stage he didn’t think that way. It was put to him that his father would. He said that his father was Wahhabist but no so conservative in his thinking. It was put to him that this was inconsistent. He said they were Deobands but not so conservative.
It was put to him that Deobands were conservative Islamic revivalists influenced by Wahhabism. He then said that wasn’t how it worked with their family – he said that his family wasn’t conservative. Asked if [Mr A] was conservative, he claimed he wasn’t conservative to begin with as his father used to donate money to him. Asked how [Mr A] was at the start, he said he would speak and stay in his home. Asked what he taught about Islam – was he inclusive and liked Christians and Jews, did he believe in democracy and parliament making laws. He claimed that he only really taught Islamic books. Asked if he believed in democracy, he said he didn’t know. Asked whether they ever spoke about things such as elections in Pakistan, he said that he never used to discuss this with him and he said he should just focus on his studies.
Asked about [Mr A]’s views on the Shi’a in Pakistan, he claimed they never spoke about this. Asked about Christians, he said that they normally wouldn’t discuss these things. It was put to him that studies of Islam and the Qur’an involved numerous references to unbelievers – he was asked what [Mr A] thought of non-Muslims and he said that he never spoke about this, he should just focus on memorising Qur’an. It was put to him that he was now at the stage where he was past memorising the Qur’an and he said that [Mr A] never really spoke about the Shi’a.
Asked to confirm that he went to the FATA to speak to scholars not to study, he said this was correct and he could sit in on some elections. He went there in January 2014 and stayed till April 2014. It was put to him that this was a long time just to meet some scholars – three months was a long time just to meet scholars. He claimed that he had to meet them and attend their lectures. He stayed with [Mr A]’s home. He stayed there the whole time – he would attend the lectures and then come back to his home. The lectures were near his home at the madrassa. His parents used to live in that home.
The madrassa in Banu in FATA. He and other boys were then taken for training in a camp in the evenings or at night. Asked where they were told they were being taken, he said there was a training centre just near the madrassa and they were told they would be taken to show how to use weapons for self-defence. There were some Pashtun and Pathan mullahs. Asked how the subject was broached, he claimed that the lecture finished in the evening and they were told they were to be taken to see something and they were told about the training. The first time they went they weren’t told whether they were going. It began about 14 days after he arrived (around 30 January 2014).
At the training camp he initially refused to partake as he was afraid of guns and wanted to see the mullah. The staff said he couldn’t leave as he had already seen the inside of the camp – they wanted him to take an oath and he asked to see [Mr A]. He told [Mr A] that he didn’t want to attend the training camp. [Mr A] said that he should ask senior mullahs not to take part in the training but he would still have to take an oath not to tell anyone.
Asked why he didn’t just take a taxi and leave to Karachi, he claimed he had no mobile phone and no money. Asked why he didn’t just walk into town, he claimed there were Pathans all around who were told to watch out for them. There were guards who were told to keep people inside. It was put to him that he was in [Mr A]’s house outside the madrassa and training camp so he could have walked out. He claimed they were all close to each other. Asked if they were part of the same compound and all guarded, he claimed the men were all [Mr A]’s and they were on watch. Asked if [Mr A]’s house was guarded, he claimed that in the street and nearby there were guards and everyone knew he was from Karachi. It was put to him that there were people from everywhere at the madrassa.
Asked what he did between the start of February between 30 January and when he left given he said he didn’t want to do any of the military training, he claimed that he took in the lectures but told them he wouldn’t do the training camp. It was put to him that it sounded like he was attending lectures every day, and he said they weren’t classes but they were sermons. It was put to him that he had described them as lectures, and students. He said there were also lectures. He was asked if he attended lectures for these three months, he said he attended lectures from February when he refused to attend training. He refused to take an oath but they kept asking him not to tell the outside world about the camp.
He told [Mr A] he wanted to return home and he claimed that [Mr A] told him he had to continue taking these lectures whether he liked it or not. Asked whether the lectures talked about US foreign policy, other faiths such as the Shi’a he claimed that there were some things about this but normally religious. Asked if he thought it strange that he went to a religious school and they were doing weapons training and speaking about US foreign policy. He said this was why he wanted to leave but he was forced to stay.
Asked how he was forced, he claimed that he wouldn’t let him return. Asked why he didn’t just leave and flag down a car, he said the guards were told not to let him leave. He left at the start of April – asked why he didn’t leave earlier, he claimed that things were getting crazier and they were harassing other boys there. Asked what he meant, he claimed that they brought boys there to rape and have sex with them. He claimed he was told they take boys away one by one and do bad things to them and he asked to speak to [Mr A] but they wouldn’t let him. The men in the madrassa told him about having sex with boys, and he was asked why they would tell him giving he had refused the weapons training. He said fellow classmates told him.
He escaped one night out the back of the house where it was undeveloped and rural. He found a road and then hailed a taxi who took him to town. The guards weren’t there so he ran. Asked why they weren’t there, he claimed that late at night they weren’t there so he escaped. Asked if they went home at night, he claimed that he doesn’t know why they weren’t there but he saw his chance and escaped. The house was small and was open plan without specific rooms. [Mr A] lived there. He told the taxi driver he had been kidnapped and he dropped him at Quetta and he got a bus home.
He returned to Karachi and he got home and told his brothers what happened as he was closer to them. He didn’t think his father would take the information well. Asked what he meant, he claimed that he was a bit ill and he thought it would take a toll on him and his brother told it to keep it to himself and they would tell the father when the time was right. Asked if [Mr A] did anything else to him in the FATA he said he was rude to him. Asked if he ever physically threatened him, he claimed that [Mr A] said if he disclosed the camp then people would kill him. He never harmed the applicant, he just threatened him.
It was put to him that his father was a liberal Muslim, [Mr A] had threatened to kill him and had tried to train him in weapons and he didn’t think he should tell his father about it, and he claimed his brother said he would tell the father but he doesn’t know whether his brother ever did. His brother then said that he should go away to study – the police also came around a few times looking for him. The police claimed that he had killed some people in the FATA and had run away. The applicant at this time was at his brother’s friend’s house. He went there after he came home in April 2014 – he stayed there until he got his visa in March 2015. He was at the brother’s friends house for 10-11 months.
Asked if this was in his protection visa application, he said he had told this. Asked to confirm that his application had him living at this address from April 2014 – March 2015. Asked if he put this address on his student visa application, he claimed that he didn’t, Asked why not, he said it wasn’t his permanent place of residence. It was put to him that it asks for everywhere he has stayed including temporary accommodation – he again said he didn’t consider it permanent.
The house was four streets away. Asked if his mother and father thought it strange that the police were coming around saying he had killed people and him living for ten months just four streets away. He said that initially when the police came his brother said he would talk to his father about all this and explained it. It was put to him that he had just been asked and said he didn’t know if his brother had told his father. He said that the police came about a week after he came back from FATA and his brother told his father then. It was put to him that being four streets away didn’t provide much security, and he said that he didn’t go out for 10 months. He said he would just go out for essential things like the visa. It was put to him that he must have been very scared to live like this. He said it was very scary.
Asked if there was ever an arrest warrant put out for him by the police he said there wasn’t. Asked why there wasn’t, he claimed they were there only because [Mr A] had sent them. Asked what airport he left from, he said he left from Karachi using a passport in his own name. he had no problems in leaving as there was no alert for him. It was put to him that if [Mr A] was powerful enough to have the police working for him then surely he would have people in immigration and the airport looking for him, and he said he knew nothing about this. Asked how he knew [Mr A] controlled the police but knew nothing about anything else, he claimed that he knew he paid the police but nobody else.
He came to Australia to study a [Qualification] at [Institution]. He arrived in March 2015 and was asked if he applied for protection in March 2015 given he had been in hiding for 10 months, and he said he didn’t as he came here to study. It was put to him that given what he claimed had happened he may have been expected to apply for protection. He repeated that he came here to study. It was put to him that his failure to apply for protection when he arrived may call into question his claim about what had occurred to him. He said his brother got him here and he was here to study.
He was asked if he saw a psychologist or psychiatrist in Australia, he said that he wasn’t mentally working properly and didn’t think about this. He never went to see a doctor. Asked if he had any evidence of any mental health treatment, he said he had no evidence. Asked how his studies went, he claimed that he had to study an English course but it was hard because he was afraid to leave his house but his brother told him he had to continue. Asked how long he studied for, he claimed that he started in May and his last class was in June 2015. He attended for around four weeks. He completed ELICOS which was ten weeks. He stopped attending classes around July 2015 and his offer was then cancelled.
Asked if he then applied for protection, he claimed that he was homesick and wanted to return but his brother urged him to study and introduced him to a consultant to help him apply for a visa. He agreed he was here for a year without doing study. He agreed that his brother knew he had been threatened with death by Mullah [Mr A] in Pakistan and was sending him money to stay in Australia, and he was asked why his brother didn’t tell him to apply for protection, or why he didn’t do it himself.
He claimed that he was very disturbed mentally and wanted to return but his brother told him to stay. He was asked if he was afraid of being killed by Mullah [Mr A] and the police when he returned there in June 2016. He said that his brother’s friend picked him up. He was asked why he would return to a country that he feared being killed in, and he claimed that his brother told him that things should be okay with the passage of time.
He claimed that on his return he was actually kidnapped. He and his brother went to a shopping mall and he saw some men similar to the Taliban he had seen in FATA. His brother told him to wait near the cars while he went inside the mall. He saw the Taliban men talking on their phone. He began running and the people around him thought he was a thief and they held him down and then handed him over to the Taliban when they came and this was how he was kidnapped.
He had been waiting in the parking lot and there were four to five people, including one driver. Two came from the front and two from the back and they took him away. He was asked what he meant previously when he said he had been running like a thief and was held down. He said that he ran away and people knocked him down. It was put to him that he had said previously that people knocked him over and held him down. He said that he was actually knocked down. The interpreter was asked to confirm that the applicant said he had been knocked over and held down and handed over and he agreed that the applicant had said this.
The applicant was asked who he was handed over to, and he said that they were the men running after him - the two from the front and from behind. Asked where they started running after him, he said he began running in the parking lot from one side to the other. These Taliban were chasing after him. Asked who he was out at the mall with, he claimed that he was with his brother’s friend ([Mr B]) whose house he was staying at.
He was put into the van and taken to the mullah’s house in his neighbourhood. It was a two-storey house with two big bedrooms on the ground floor and three smaller rooms on the second storey. The mullah said he would hand the applicant to the police because he had killed people in the FATA. The applicant claimed he had doen nothing – the mullah hit the applicant. He was very scared and asked to be let go or if he could pay the mullah money. He kept on beating the applicant and threatening to hand him to the police and kill him.
He was kept there for around 5 to 6 days. He was released because his brother paid him money. He was released at the end of July. It was put to him that he had claimed his brother said that is was safe to return to Pakistan yet when he came back he was kidnapped. He claimed his brother thought things would be okay.
He returned to Australia [in] August 2016. Asked if he applied for protection when he returned to Australia, he claimed that he didn’t because his mind wasn’t working and he had been raped by the mullah several times while he was detained. Asked if he had sought any mental health treatment for this or a counsellor because of this, he claimed that he was at home and didn’t get any. It was put to him that he had been in Australia for five years – he was asked if he had been working and he claimed that sometimes he didn’t and sometimes he didn’t. People here created problems. Asked what he meant, he claimed that there were bullying tactics and peole ganged up on him. Asked iof this had anything to do with Mullah [Mr A] or he was just talking about in general, he claimed that he was talking generally.
Asked if he had been offered or told about his ability to obtain contact details for a crisis centre while he was in Australia, and he said that the DIBP officer mentioned something during the interview. Asked if he took the officer up on her offer, he claimed that he was offered but he didn’t take up the offer because of his mind not being in the roght space and because of the shame. He was told about the ability for him to access medical assistance here in Australia if he needed it and he said that he didn’t know much about it here and stayed at home a lot. Asked if he knew he could go to a doctor, he said that he knew he could but couldn’t afford it. It was put to him that he had a brother who appeared to be generous and he could get him to pay the doctor.
Asked if he approached any Australian authorities to tell them about the possible terrorist training camp run by Mullah [Mr A], he claimed that he hadn’t because he was afraid of what could happen. He was also applying for protection and he didn’t know what could happen. Asked how anyone could know that he was passing this information on, he said he didn’t want to die.
It was put to him that he had said in his statement that he knew of many students had been taken away to terrorist training camps. It was put to him that dozens of Australian citizens had been killed overseas in Islamist terrorist attacks and he was asked whether he thought it was his duty to report this type of information to Australian authorities, he said he hadn’t thought about this and hadn’t spoken to anyone about it. He said he didn’t know who he could speak to and it was put to him that he could start with the Australian police and he said he didn’t know what to say as he hadn’t opened up to anyone about it.
It was put to him that it was a big concern for the Tribunal regarding his delays in applying for protection, his willingness to return to Pakistan, his liberal father being happy for a Deobandi cleric to take the applicant to the FATA and his being introduced to weapons training so early in his time in the FATA.
He was told about s 424AA and it was put to him that in his DIBP interview he said that he was waiting in the car park at the front of the mall and two Taliban walked up to and two behind him and they put him in a van, yet today he had claimed that he had been chased by people, held down and then handed over to the Taliban which was inconsistent with his earlier claim. He claimed he was waiting in the mall and repeated that he began running after he saw the phones being used and then ran and was knock down by two people running behind him. He was asked why he said different stories (as in the running and people knocking down and handing him over to the Taliban). He said he had told DIBP he had run away and there were two people at the front and back.
It was put to him that he had said that Mullah [Mr A] hadn’t done anything physically to him while he was in the FATA, yet in his written statement he said that the mullah beat him before he left the FATA. He claimed that he didn’t mean that he was beaten, it was just that the mullah threw a shoe at him. He claimed that it may have been a mistake in the writing as he wrote it but someone else helped him out. It was put to him that he had been asked at the start and said that he knew everything and that it was true and correct.

It was put to him that he had claimed his brother had been kidnapped as well and he said that he had but they didn’t know where he was. Asked if he or his brother in [Country 2] had made any inquiries, he claimed that they thought he was in the FATA and they had someone they knew making inquiries. It was put to him that it was strange that his father had been detained and a brother kidnapped after his protection visa was not approved but before his hearing with the AAT so the timing of these claims may also be taken into account in determining their truthfulness.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia on a student visa [in] March 2015 and applied for protection on 6 December 2016. The Tribunal sighted a copy of his Pakistani passport as proof of his identity and his claim will be assessed accordingly.
The applicant was originally invited to appear at a hearing on 4 March 2021 however there was a disagreement regarding the form of notification and changes of address. He asked for a postponement of the hearing and was granted one to 10 March 2021. He agreed to a reduced notification period for the new hearing date.
The applicant is a [Age 3] year old single male from Karachi in Pakistan. He claimed that if he returned to Pakistan he would be captured and killed by Mullah [Mr A], the police and the TTP because he had seen a TTP training camp in the FATA.
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.
Mullah [Mr A] and the TTP training camp
I do not accept that the applicant was ever taken to the FATA by Mullah [Mr A] to meet scholars and was subsequently exposed to a TTP weapons training facility, detained, beaten, or sexually assaulted. To begin with his description of his family’s religious orientation, and that of [Mr A] was inconsistent.
He initially stated that his father was Wahhabi but not so conservative in his thinking. The member has a PhD in Arab and Islamic Studies and well understands that there are variations in the rigidity of practice of Islam between and within countries and ethnicities. Being a Wahhabist[1] though, requires a very conservative view of Islam and its place within modern society. Hence being a non-conservative Wahhabist seems anomalous to say the least.
[1] David Commins, ‘Wahhabi Doctrine and its Development’, Oasis, 19 September 2019
He then claimed that they were non-conservative Deobandis. This is also anomalous, given the position of the Pakistani Deobandis towards issues such as terrorism.[2] Given the applicant’s father was a non-conservative man, it also does not strike the Tribunal as likely that he would donate money to the Karachi mosque that [Mr A] was associated with or allow the applicant to go to the FATA with [Mr A] to observe other scholars.
[2] Tayyab Ali Shah, ‘The Deobandi Debate Terrorist Tactics in Pakistan and Afghanistan’, Terrorism Monitor vol 8, iss 21, Jamestown Foundation, 28 May 2010.
I do not accept that Mullah [Mr A] was not conservative to begin with, would just speak and stay in his home or that he did not talk about democracy, parliament, elections or other religions and just focused on Qur’anic memorisation. To begin with it lacks credibility that a mullah who had a house in the FATA in a compound allegedly hosting a Deobandi madrassa and weapons training facility and range, would just appear as a simple religious scholar not talking about political affairs while in Karachi. It is also inconsistent with what he claimed in his written statement where he said that:
During the meetings at college the Mullah taught all the students that we all have to serve our country by studying scripture and history of Pakistan. He started to teach us basic history of Pakistan and wanted us to read more information from the school library if we had time. As I was interested in Pakistani history, I spoke to the Mullah personally whenever I was with him after school hours. The other students were not interested in scripture as I was and the Mullah found me to be a studious student. He always encouraged me to learn the political news that was available for anyone to read at the Madrassa. The Mullah was always reading newspapers and urged me to read it for him.
The mullah’s actions in inviting the applicant to the FATA and detaining him there equally lack credibility. The willingness of the non-conservative father to allow his son to go to the FATA in the presence of a very conservative cleric for several months lacks credibility. I do not accept that [Mr A] had built up the applicant’s family’s confidence in him that allowed them to give their permission given I have already pointed out the difference in their ideological orientation and the inconsistencies in the applicant’s claims regarding what the mullah was exposing him to in Karachi.
Given the applicant’s family background it also lacks credibility that the mullah would take the extraordinarily risky approach of having the applicant undergo weapons training shortly after arriving at the mullah’s house. If he was trying to hide his activities it also lacks credibility that he would ban the applicant from speaking to family members and that this would not arouse suspicion from those same family members.
There are also inconsistencies and implausibilities in his account. For example he claimed in his written statement that when he told [Mr A] that he wanted to go home the mullah became aggressive and beat him. Yet at his hearing he claimed that the mullah just threatened him but never harmed him. I do not accept that when he said ‘beat’ he meant the mullah threw a shoe at him. Given the reference to being beaten occurred in a written statement I am not satisfied that having a shoe thrown at him would have been mistaken for being beaten, or vice-versa. I also do not accept that the statement may have been written incorrectly as he had written it with the help of a friend, given he was asked at the start of the hearing whether he knew everything in his statement and that it was correct and he replied that he did and it was.
It also lacks credibility that he never told his father about what happened to him after his alleged escape from the FATA. Not only had he allegedly been incommunicado but he had effectively been held at a terrorist training camp and had to escape, and then moved to a friend’s house four streets away where he lived for the net 10-11 months.
It lacks credibility that he never told his father what happened to him or that his father never asked why he had been out of contact while in the FATA or why he moved out to live elsewhere on his return. I do not accept that because his father was a bit ill his brother said he would tell the father later. Not only does this rely on his oral testimony which I have found lacks credibility, but he also variously said that he was not aware whether the applicant’s brother told his father, and later that his brother told their father a week later, after the police raided the house.
Because I do not accept that there was any dispute with Mullah [Mr A] it also follows that the applicant was never forced to live at a friend’s house four streets away from their residence for 10-11 months until he got his Australian visa or that the police came looking for him and claimed that he had killed some people in the FATA. He never noted this friend’s address when he applied for an Australian student visa even though he allegedly lived there for nearly a year, so there is no corroborative evidence that could have supported such a claim.
Having ‘escaped’ from Pakistan, his subsequent actions do nothing to support his claim to fear serious harm in Pakistan. After allegedly having to hide in a nearby house for 10-11 months to avoid [Mr A] and the police that [Mr A] had allegedly paid off before he could come to Australia in March 2015, the applicant failed to apply for protection for the more than 14 months he was in Australia. I do not accept that this was because he came here to study given that he spent a least a year in Australia during this time doing no study. He then voluntarily returned to Pakistan in June 2016.
I do not accept that his failure to apply for a protection visa in Australia before he returned to Pakistan in June 2016 was because he wasn’t mentally working properly and was disturbed mentally. He has no evidence of any mental health treatment nor of even seeing a doctor. He appears to have been in close contact with his brother who introduced him to a (migration) consultant and, given his brother allegedly knew of the problems with Mullah [Mr A], not only didn’t the brother or the consultant initiate actions to apply for protection, the brother allegedly told the applicant that things in Pakistan should be okay given the passage of time.
There was no indication as to why this would be the case, or why the brother thought it would be. I do not accept that the applicant returned to Pakistan in order to apply for a permanent residency visa to [Country 2]. Given the alleged threat to the applicant’s life in Pakistan and the ability for the applicant to apply for protection in Australia, it makes no sense that he would willingly expose himself to such alleged harm in Pakistan to attempt to apply for an Irish residency visa.
Because I have found that the problem with [Mr A] in the FATA was fabricated, it follows that he was not kidnapped in Karachi on his return. His account was also inconsistent. He claimed that he was at the mall with his brother’s friend at whose house he was staying, yet in his written claim he said that he met a migration agent at the shopping mall to get photos for his visa and then was waiting for them when he was kidnapped. He also claimed at the start of the hearing that he began running from the Taliban when they saw him and that people, thinking he was a thief running away, knocked him over and held him and then handed him over to the Taliban. He also claimed that he was being chased from one side of the parking lot to the other. In his written statement he claimed that four men chased him around the shopping centre. In his DIBP hearing he claimed that two men came in front and two men behind and they put him in a van – there was no mention of a chase.
Because I have found this account to have been fabricated, it follows that he was never kidnapped, beaten, held for ransom or sexually assaulted. Allegations of sexual assault are obviously a delicate issue to address. The applicant however, has fabricated virtually his entire story regarding persecution in Pakistan and this claim must also be viewed in that light. He has never sought counselling for it or seen a doctor regarding it – I do not accept that this is because he could not afford it.
His brother has allegedly been paying his living expenses and there is every reason to believe that he could pay for a doctor’s visit. The DIBP interviewer offered him the contact details for a counselling service but he never took up the offer. Whilst I acknowledge there may be issues such as shame associated with a reluctance to come forward about instances of sexual assault, such is the degree of fabrication the applicant has taken part in, I am satisfied that his claim to have been sexually assaulted, like his other claims, has been fabricated.
His delay in applying for protection for four months after arriving back in Australia in 2016 raises further concerns regarding his fear of serious harm in Pakistan. I do not accept this was because he had to wait for his brother to send him money to lodge the application or because his mind wasn’t working and he had been raped. I have already found his claim to have been sexually assaulted to have been fabricated, and as I noted before when he claimed that he had mental health issues, there is no medical evidence to support this claim. Also, given the minimal lodgement fee for a protection visa (AUD 40 in 2021) I do not accept that he would have had to wait for four months to access such a small amount from his own savings or from his brother or other family members.
Other Issues
In advance of the hearing the applicant sent a submission in which he claimed that his father was taken by [Mr A] and the police and tortured in the police cell for two weeks before being returned home – he suffered head injuries. His brother was then kidnapped after complaining about [Mr A] to some parliamentarians.
I do not accept that either event has occurred. To begin with they rely on accepting that there is a dispute between the applicant and [Mr A] and that the applicant was sexually assaulted while detained by [Mr A], both claims that I have found to have been fabricated. It follows that these claims regarding his father and brother have also been fabricated. I also note that there is no photographic evidence of the father’s alleged injuries to support the claim, and the suspicious timing of these claims, coming as they did after the applicant’s visa refusal is also cause for further concern.
I also do not accept that the interpreter at the DIBP interview was a Pathan and would pass on the information he had gleaned from the interview, causing trouble for the applicant. This was only raised in his pre-hearing submission. He never raised concerns at the time of the interview that the applicant was a Pathan, nor has he provided any evidence subsequent to it. He has also not stated on what basis he thinks an Australian-based interpreter would pass on such information and to whom, given I have found the actual claims to have been fabricated in the first place.
I have also taken into account some country information provided by the applicant relating to the sexual abuse of boys by Afghans, a Human Rights Watch report on Pakistan and a report of a social media activist being killed in Pakistan. I lend them little weight given the applicant is not nor did he make a claim to be a social media activist, I have found his claim of sexual assault to have been fabricated and he has failed to explain the relevance of the report to his particular case.
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 ever detained in a madrassa/terrorist training camp by Mullah [Mr A] and had the police targeting him at the behest of [Mr A], was ever kidnapped, beaten or sexually assaulted by [Mr A] or his allies, or that his father was detained and beaten by police or his brother kidnapped, 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 1831

14 April 2021

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Appeal