1711727 (Refugee)

[2022] AATA 1769

1711727 (Refugee) [2022] AATA 1769 (21 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1711727

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Scott Clarey

DATE:21 April 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 21 April 2022 at 1:41pm

CATCHWORDS
REFUGEE – protection visa – Pakistan – imputed political opinion – extortion and threats to locally prominent father by extremist group – written threats provided late but accepted as authentic – family property dispute – country information – political and security instability and surge in militant activity especially in applicant’s home province – relocation unreasonable and state protection unobtainable – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5H(1), 5J(1), (4), (6), 36(2)(a), 65

Migration Regulations 1994 (Cth), Schedule 2

CASES

MIMA v Respondents S152/2003 (2004) 222 CLR 1

Randhawa v MILGEA (1994) 52 FCR 437

SZATV v MIAC (2007) 233 CLR 18

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 8 May 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (the Act).

2. [The applicant], who claims to be a citizen of Pakistan, applied for the visa on 20 February 2017. On 8 May 2017, a delegate of the Department of Immigration and Border Protection, now the Department of Home Affairs (the Department), refused to grant the visa. On 2 June 2017, [the applicant] applied to the Tribunal for the review of this decision.  

3. I note that the process for hearing this case suffered from significant delays, including due to the multiple (and prolonged) lockdowns and restrictions imposed in Victoria by the State government related to the COVID-19 pandemic over the last two years. Due to the complexity and sensitivity of the matters raised by this case, and the particular circumstances of the applicant, this case was not deemed appropriate to be progressed through remote hearings, and that in-person hearings were required. I note that for extended periods over the last two years (and often at very short notice) the Tribunal was unable to hold in-person hearings due to COVID-19 restrictions that were imposed by the State government of Victoria.

4. [The applicant] first appeared before the Tribunal on 25 March 2021 to give evidence and present arguments. I also note that various sources of country information subsequent to the first hearing indicated that the political and security situation in Pakistan had markedly deteriorated since mid-2021, and that there had been a surge in militant activity and associated violence in [the applicant]’s home area (discussed further below). I note also that on 25 January 2022, a new Department of Foreign Affairs and Trade (DFAT) country information report on Pakistan was published. Given that significant new information was contained in various country information, including relating to the issue of increased militancy politically motivated violence in Pakistan (discussed further below) and the highly fluid political climate in Pakistan that was potentially relevant to [the applicant]’s case and claims, a second hearing was held on 20 April 2022 to discuss these issues and events with [the applicant].

5. After reviewing all of the information before the Tribunal relating to [the applicant]’s case, including the fluid and rapidly evolving current political and security situation in Pakistan (that has included the collapse of the Pakistan central government in recent weeks) and the significant uptick in militant violence in his home area, I have concluded that a favourable decision can now be made in this case.

6. The applicant was represented in relation to the review by his registered migration agent. The Tribunal hearings were conducted with the assistance of an interpreter in the Pashto and English languages.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issues in this review are whether [the applicant] has a well-founded fear of being persecuted for one or more of the five reasons set out in s 5J(1) of the Act and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Malaysia, there is a real risk he will suffer significant harm.

   Identity

9. On the basis of the copy of [the applicant]’s Pakistani passport provided to the Department, I accept that the applicant is a citizen of Pakistan and that his identity is as he claims it to be.  I accept that Pakistan is [the applicant]’s country of nationality for the purposes of the refugee assessment and the receiving country for the purposes of the complementary protection assessment.

   Relevant background

10. [The applicant] stated that he was born in [Town] in the Khyber Pakhtunkhwa province of Pakistan in [Year] and lived there until 2004. He lived for periods in Peshawar, a major city about [Travel time] from his hometown. He completed school up to grade [Number] in [Town], but moved to Peshawar in 2004 because of the generally deteriorating security situation in his hometown. He stated that he had one brother and [sisters], [some] of whom were married. He said his brother had epilepsy and mental health issues and was supported by his father. His parents still live in Peshawar. [The applicant] said he finished high school in 2010 and went on to do postgraduate studies in [Subject], in addition to working in several of his family businesses.

11. [The applicant] first arrived in Australia [in] October 2014 on a student visa, which was granted on 24 September 2014, valid until 15 March 2018. However, his student visa was cancelled on 19 January 2017 for breaching course requirements. He lodged his protection visa application on 20 February 2017.

    Claims from the protection visa application

12. [The applicant] set out his claims for protection in his application form as follows:

    Q42:     I am seeking protection in Australia so that I do not have to return to:

    A:    Pakistan

    Q43:     Why did you leave that country?

    A:Family hostilities: My father has a dispute of land with his uncles and cousins, from the age of [age] I mostly represent my father in the meetings and jirgas etc in regard to these disputed lands and properties.My father has no interest in these disputes due to which I get involved in these matters and raised my voice for my family rights in front of elders and other opposite parties. The reason I get involved in these matters is that my family will be dependent on me in future.Being younger and fearless talking in front of elders started hates among the opposite parties and hence they started harming me and treating me.

    After these incidents my family mutually decided to send me to Australia for sake of my safety and better future.

    Q44:     Have you experienced harm in that country?

    A:Yes. I have experienced harm in my country. I was beaten by them in meeting regarding the dispute of lands and properties, I was been warned and threat that do not interfere in these matters,this time we have just beaten you up for next time you will be responsible of whatever we do to you.

    Q45:     What do you fear may happen to you if you return to that country?

    A:I fear that I will be killed by either my father’s family cousins or by the extremist group. The matters of disputes of properties are in court and if I am being forced to send back to Pakistan I will definitely take part in these matters .Due to which I am hundred percent sure that the opposite party will target me again and harm me.

    Moreover after coming to Australia extremist group (Lashkar-E-Islam) start extortioning my father for money.He was warn of severe  consequences if in case their demand is not fulfil.

    Initially they sent a threat letter to my house in which they said “That we are in the war with the anti Islamic forces in which we need men power as well as financial support and we know that you are capable of financial support”. But my father did not take the letter seriously but later on the extremist came into our home by climbing over home walls and threaten my family to fulfil their demand so in the result my father gave them 60 lack rupees (AU $77K).However their demand were hundred lack rupees (10,000,000).Due to which they start threatening again my father to give the rest of money.In response my father told them “I have already given you whatever I had and I do not have anything else to give you”.In return they told my father that “your son is abroad and earning in dollars, now it is his turn to support us.

    My father called me and shared everything with me, in response I told my father that neither I have money nor I am willing to give single penny to those extremist.

    Then my father told to those extremist that my son is not listening to me and not under my influence.After that extremist threat my father that aware your son that one day you will be back to Pakistan and you will see the consequences of not fulfilling our demand.

    Q46:     Who do you think may harm/mistreat you if you go back?

    A:The extremist group of whom I did not fulfil their demand will kill me on my arrival back to Pakistan.

    My father’s family cousins will harm me for raising my voice for my family rights.

    Q47:     Why do you think this will happen if you go back?

    A:As mentioned in Question 46 that I did not fulfil the demand of extremist group due to which they will harm me.

    By fighting for my family rights due to which my father’s family cousins will harm.

    Q48:     Do you think the authorities of that country can and will protect you?

    A:No. The police force in Peshawar is limited and not capable of protecting individuals. They themselves are helpless to protect themselves from these extremist group.

13. I note that [the applicant]’s representative forwarded various submissions to the Tribunal, including a legal submission dated 8 March 2021. Various other documents were received by the Tribunal including numerous country reports and news articles relating to violence perpetrated by militant groups and other relevant country information in Pakistan. I note that these submissions included two letters (and associated English translations) from the group Lashkar-e-Islam (the first dated 20 December 2014 and the second dated 10 February 2015) that included threats made to [the applicant] (discussed further below). The Tribunal has had regard to these submissions.

14. I note the following issues were raised in the representative’s submission of 8 March 2021:

    The review applicant advises that he has a well-found fear that he would be seriously harmed should he return to Pakistan.

    The Lashkar-e-Islam militant group has seriously warned the review applicant’s father that they would not spare the review applicant’s life, should he return to Pakistan, as the review applicant has not fulfilled their demand of paying them the balance of what they had initially demanded.

    The Lashkar-e-Islam militant group, which is generally referred to as the Taliban in Pakistan, is a stubborn group made up of stubborn Pashtuns, who would not leave the review applicant in peace no matter when and how long after he returns to Pakistan.

    Member of Lashkar-e-Islam warned and threatened the review applicant’s father that they knew that his son, the review applicant, was in Australia, and that the review applicant should fulfil their demands or else he would not be able to live in Pakistan at all.

    In October 2017, at the wedding reception of review applicant’s only brother, members of Lashkar-e-Islam attended the ceremony covertly, thinking that the review applicant was in Pakistan. Incidentally, the review applicant’s name was printed in the wedding card for RSVP purpose, giving an impression to everyone that he was in Pakistan.

    The militants from the said group, told the review applicant’s father that the review applicant is extremely lucky that he had not returned to Pakistan, or that would have been the last time for him to be seen by the family.

    After the horrifying message of the militants, the review applicant and his entire family are substantially concerned for the safety and security of the review applicant, should he return to Pakistan.

    The review applicant’s father advised the applicant he has noticed that he had been followed and stalked by unknown people from time to time. The review applicant father strongly believes that these people who follow and stalked him belong to the Taliban, on a mission to check whether the review applicant is back from overseas or that any other family member would meet with the review applicant somewhere.

    The review applicant strongly believes that he would definitely be killed by the militants should he return to Pakistan.

    Evidence from the hearing on 25 March 2021

15. [The applicant] stated that he was born in [Town] in the Khyber Pakhtunkhwa province of Pakistan in [Year] and lived there until 2004. [Town] is [detail deleted]. He lived for periods in Peshawar, a major city about [Travel time] from his hometown. He stated that he had one brother and [sisters], [some] of whom were married. He said his brother had epilepsy and mental health issues and was supported by his father. His parents still live in Peshawar.

16. [The applicant] said that he was born into a prominent family that was well-known in his local area. He said his father was a significant landowner and had assets which were shared amongst his large extended family. He said that he was a Sunni Muslim. He said his father operated various [businesses].

17. He said that he completed school up to grade [Number] in [Town], but moved to Peshawar in 2004 because of the generally deteriorating security situation in his [hometown]. He said he finished high school in 2010 and went on to do postgraduate studies in [Subject], in addition to working in several of his family businesses.

18. When asked why he decided to come to Australia in October 2014, [the applicant] said the trip had been long planned and that it was his father’s dream for him to go and study overseas. He said at the same time there was an ongoing family dispute that had escalated into enmity between his father’s siblings. He said it was this dispute that hastened his plans to depart for Australia. When asked further about the family dispute, [the applicant] said that his father had a large family that owned multiple businesses and properties, and the dispute revolved around ownership of these properties. He said that members of his father’s family disputed his father’s share of ownership in these assets. He said that he was representing his father in relation to these disputes with his uncles. [The applicant] said that he was on his way home from an uncle’s house in February 2014, when four people got out of a car and physically assaulted him, making reference to the land dispute he was involved with mediating. When he told his father about this they decided not to involve the police because it was a family matter that should be resolved internally.

19. [The applicant] said after this he stopped representing his father in relation to the family dispute. He said that his Australian visa was already in train by this point and he received the visa on 25 August 2014 and travelled to Australia shortly thereafter [in] October 2014. [The applicant] said that after he had arrived in Australia, on 20 December 2014, his father received a letter from the militant group Lashkar-e-Islam (a splinter group of the Pakistan Taliban (TPP), who has since rejoined forces with the TPP[1]) that was clearly identified as such on the letterhead. He said that the letter requested 10 million rupee from his father to contribute to the armed struggle against ‘non-Islamic forces’. He said that his father had been approached because of his prominence in the local business community, and the family name was well-known in the area. He said the letter contained a threat that if he replied he would be killed. He said that initially his father did not like take the letter seriously, but took precautions like not answering calls from unknown numbers.

    [1] Katharine Houreld and Saud Mehsud, ‘Pakistani splinter group rejoins Taliban amid fears of isolation’, Reuters, 13 March 2015. Accessed at:

20. [The applicant] said that his father was subsequently threatened at gunpoint, where the letter was referenced and his father was questioned about why a response had not been received. He said his father told the gunmen that he be happy to assist. He said his father subsequently arranged a meeting and a series of elaborate car swaps took him to meet with a TPP official. His father had only been able to arrange six million rupee and was questioned why he had not been able to contribute the full 10 million rupee that had been requested in the letter. His father explained that that was the maximum he had access to at this time, to which the official responded he would relay this to the TPP leadership.

21. In February 2015, [the applicant] said his father received another letter from the TPP that said that they were aware that he had a son overseas, referring to [the applicant], that he was earning money there, and that they wanted him ([the applicant]) to return to Pakistan to support them financially. He said the letter contained a death threat if the family were not to comply with this request. When I questioned [the applicant] about the request for money from him, he stated that it was widely believed within his community in Pakistan that when people go overseas, particularly to a Western country they, are perceived to have access to considerable funds. He said the TPP had assumed that he ([the applicant]) had access to funds that his father did not. When I questioned [the applicant] if it was odd for the TPP to communicate these threats via written correspondence on official letterhead, he said it was not. I note that particular country information supports the use by the TPP of this formal method of communication. I note that [the applicant] has provided a copy of this letter from the TPP to the Tribunal.

22. I asked [the applicant] why a copy of the purported TPP letter had only now been produced, and had not been previously submitted to the Department. [The applicant] said that all of these documents were in Pakistan, that his father had been very unwell due to a [medical condition] and that he had not been able to send the documents in time for the original application. I also asked [the applicant] why he had not mentioned these claimed threats in his departmental interview. He said he had not been asked directly about them, and believes the questions related to direct threats that he had received, not in direct ones that had been made to his father.

23. When I discussed the wording of this letter with [the applicant], I noted to him that an explicit threat did not appear to be made in it. [The applicant] stated that he had read the letter, particularly in the original Urdu, to clearly contain threat. He said his father subsequently spoke to the TPP via telephone about one week after the second letter had arrived and told them that because his son was overseas he was not under his influence and in any case he didn’t have access to the kind of resources they believed him to. [The applicant] said that his father was told that [the applicant] would never be able to return to Pakistan because they would kill him. [The applicant] said that his father strongly believes he is under periodic surveillance by the TPP, to check on his son’s whereabouts. He said in October 2017 his father was confronted by men who he thought were ‘probably’ TPP members and his father was told that if he ([the applicant]) were here they would kill him.

1. When I asked [the applicant] what harm he feared if he were to return to Pakistan in the foreseeable future, he said that he was terrified that members of the TPP would kill him and/or subject him to torture, because of his refusal to accede to their demands that were outlined in the letters to his father. He said that the TPP were stubborn and they held grudges that they didn’t easily let go of. When I asked [the applicant] why they had not sought to harm his father, he said that they had accepted that he had given all he could and that their attention had now shifted to him ([the applicant]). When I asked if any other member of his family had been threatened or harmed by the TPP, [the applicant] said that his father’s cousin and a step uncle had been kidnapped by them several years ago.

2. When asked if he could seek protection from the relevant authorities in Pakistan, such as the police, [the applicant] said he had discussed this option with his father but they agreed that the police would not be able to protect them indefinitely because the TPP are such a formidable force in his home area. I also discussed with [the applicant] the option of relocating within Pakistan. He said that he had considered going back to Pakistan to visit his father because his father had recently had a [medical condition] but that the Taliban had had recent resurgence and joined forces with other groups to augment their power, control and authority. He said word would spread quickly that he was back in Pakistan and the TPP intelligence network would soon get word of it.

   Evidence from the hearing on 20 April 2022

3. At the second hearing on 20 April 2022 I discussed with [the applicant] various developments, reflected in multiple pieces of country information including the updated DFAT country information report published on 25 January 2022, regarding the deteriorating political and security situation in Pakistan with specific reference to his home area of the Khyber Pakhtunkhwa province. I noted to [the applicant] various elements of the defect country information report, including its assessment that ‘the security situation in Pakistan has deteriorated since mid-2021. Causes of insecurity include domestic politics, religious extremism, ethnic conflicts, gender-based issues, sectarian hatred, economic hardship, petty and organised crime, tensions with India and the situation in Afghanistan’. I also noted that incidents of terror attacks had markedly increased, including in and around his home area. [The applicant] stated that he was well aware that the TPP were regaining power and control of various areas around the province, as a result of various factors including safe haven offered over the border in now Taliban controlled Afghanistan, and the decreased resistance they were facing from Pakistan’s central government. He said that they were acting and moving freely in the area which was one reason why their attacks were now much more frequent.

4. When I asked [the applicant] about the threats he claimed to face if he were to return to Pakistan in the near future, and how these developments have impacted this issue, he stated that he was told by his father about two months ago that he had noticed men in the street who he believed were linked to the TPP who were monitoring the family’s movements and, he believed, checking to see if [the applicant] was present at the family home. He said if anything he was more fearful now than he had ever been given the increased power and autonomy that the TPP and related groups had in his area, and the lack of resistance they faced from state authorities. When I asked [the applicant] why he thought he would still be a target of these groups, he reiterated points he had previously made at the first hearing, stating that because he had defied their request to provide assistance to the group when formerly asked, that they would not forget this insult and they would seek to make an example of him to frighten and deter others from acting similarly. He said that they now acted with almost complete impunity and had been significantly emboldened by recent political events, which made his fears all the more apparent. He said his fear of harm if he were to return to Pakistan in the foreseeable future was greater now than it had ever been.

   RELEVANT LAW

5. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994. 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.

   Refugee criterion

6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

7. A person is a refugee if, in the case of a person who has a nationality, 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).

8. 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.

   Complementary protection criterion

9. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

10. In accordance with Ministerial Direction No.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 DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Country information

    Background on the Taliban/TPP in Khyber Pakhtunkhwa province

11. Country information indicates that the Taliban in the Khyber Pakhtunkhwa province emerged from the Tehrik Nifaz-e-Shariat-e-Muhammadi (TNSM) movement (the Movement for the Implementation of Sharia of Mohammad) which formed in 1989.[2]  Maulana Fazlullah assumed control of the TNSM in 2001[3] and was widely known for his use of illegal FM radio stations in Swat to broadcast TNSM demands.[4]  When Tehreek-e-Taliban (TTP – Pakistani Taliban) was formed in Waziristan in the Federally Administered Tribal Areas (FATA) in 2007, Fazlullah was named emir (leader) of the Swat Taliban.  Although the TTP and TNSM were not operationally linked, they were allied and TNSM militants in Swat were also referred to as the Swat Taliban.  Maulana Fazlullah subsequently became leader of the TTP in 2013 until he was killed in a US drone strike in eastern Afghanistan in June 2018.[5]

    [2] Khattak D K 2013, ‘The Taliban in Swat’, in P Bergen & K Tiedemann (eds), Talibanistan: Negotiating the Borders between Terror, Politics, and Religion, Oxford University Press, New York, pp.289–313. See especially pages 291–294

    [3] Ibid

    [4] Ibid; Siddique, Q, 2010, Tehrik-e-Taliban Pakistan: An attempt to deconstruct the umbrella organization and the reasons for its growth in Pakistan’s North-west, Danish Institute for International Studies, November

    [5] ‘Pakistan Taliban leader Mullah Fazlullah killed in U.S. airstrike in Afghanistan’, The Washington Post, 15 June 2018, <>

    TNSM attacked targets in the Khyber Pakhtunkhwa province which it deemed to be un-Islamic, such as health workers, NGO workers, musicians, music stores, barber shops, schools, and artists[6] and used beheadings to advertise its strength.[7]  The Khyber Pakhtunkhwa provincial government entered into a number of ceasefire agreements with the TSNM from 1994,[8] however, these did not lead to a lasting peace and the TNSM gained de facto control of Swat from 2007 to April 2009 which led to an increase in violence[9] and displacement of the local population.[10]  Fazlullah effectively set up a parallel government in Swat in 2007, controlling the area until 2009 when he and his group were defeated by an army offensive.[11] The army offensive against the Taliban in Swat commenced in May 2009.  During that time the military is reported to have sent 15,000 troops into Swat to confront about 4000 Taliban militants. Residents were asked to evacuate the area during the army offensive and more than 1.5 million people registered as internally displaced people in the month after the offensive commenced.[12]

    [6] Khattak, D K 2013, ‘The Taliban in Swat’, in P Bergen & K Tiedemann (eds), Talibanistan: Negotiating the Borders between Terror, Politics, and Religion, Oxford University Press, New York; Mustafa, D & Brown, K E 2010, ‘Space of Performative Politics and Terror in Pakistan’, Environment, Politics, and Development Working Paper 33, Kings College London; United Nations Educational, Scientific and Cultural Organisation 2010, Education Under Attack; Din, I, Mumtaz, Z & Ataullahjan, A 2012, ‘How the Taliban undermined community healthcare in Swat, Pakistan’, British Medical Journal, 21 March; Buneri, S 2011, ‘Dancing Girls of the Swat Valley’, World Policy Journal , Vol. 28

    [7] Mustafa D and Brown K E 2010, ‘Space of Performative Politics and Terror in Pakistan’, Environment, Politics, and Development Working Paper 33, Kings College London; ‘Taliban behead two government officials in Swat’ 2009, Dawn, 3 May

    [8] Khattak, D K 2013, ‘The Taliban in Swat’, in P Bergen & K Tiedemann (eds), Talibanistan: Negotiating the Borders between Terror, Politics, and Religion, Oxford University Press, New York

    [9] Ibid

    [10] Ibid, pp.289–313, especially page 302 for reference to a, so-called, ‘Taliban Police Station’

    [11] Siddique, Q. 2010, Tehrik-e-Taliban Pakistan: An attempt to deconstruct the umbrella organization and the reasons for its growth in Pakistan’s North-west, Danish Institute for International Studies, November, pp. 39–43 < Kronstadt, K.A. 2010, ‘Pakistan: Key Current Issues and Developments’, Congressional Research Service Report for Congress, 1 June, p.19 

    [12] Macey, J. 2009, ‘‘Desperate’ Swat Valley situation revealed’, ABC News, 1 June

12. Independent information before the Tribunal indicates that, following the defeat of Taliban militants in Swat by the Pakistan armed forces in 2009, sporadic attacks by the Taliban against the military and civilians suspected of cooperating with the military in Swat continued.[13] A May 2014 report by the Voice of America on Pakistan military operations targeting Taliban strongholds in neighbouring Buner District, noted that many Swatis and Buneris were ‘doubtful of official claims that the areas had been cleared of militants’ and that Pakistan military operations against militants in the Malam Jabba mountains of Swat in May 2014, were a ‘clear indication of militant presence in the region’.[14] Similar reservations were expressed by Brian Cloughley, a South Asia analyst for IHS/Jane’s Sentinel,[15] who stated that the Taliban in the Khyber Pakhtunkhwa province were defeated but ‘still have presence there’, citing a recent attack on security personnel in the region. Cloughley characterised the Taliban in Swat as being ‘down but…not out’.[16] The Taliban’s presence in Swat was referred to by Haji Adeel, Chair of Pakistan’s Senate Standing Committee for Foreign Affairs, when he noted in a speech at Parliament House (in 2013) that the Taliban have become active in Khyber Pakhtunkhwa province again.[17]

    [13] See The Pakistani Taliban issues paper, DIBP, January 2015, p.52; Khaliq, F, ‘Return of militancy: Army launches operation in Swat – again’, Express Tribune, 6 September 2011, available at and ‘With Taliban’s revival, dread returns to Swat, New York Times, 26 July 2014, available at Jan, S, ‘In Buner Another Reminder of the Taliban’, Voice of America, 14 May 2014, < >

    [15] ‘Brian Cloughley Bio’ n.d., Brian Cloughley < Cloughley, B, ‘It’s Time to Strike’, The News International, 19 May 2014, <

    [17] ‘Senate body terms Taliban conditions for talks impractical; says Taliban active again Swat’, Pakistan Today, 17 September 2013, <

13. The Pakistan Institute for Conflict and Security Studies Annual Security Assessment Report for 2015 comments that the security situation in Khyber Pakhtunkhwa improved substantially during 2015 with an almost 70 per cent reduction in militant attacks compared with 2014, returning to the status of 2007/08 when this wave of militancy picked up momentum. The report comments that the substantial improvement is directly linked to military operations in FATA as well as measures adopted under the National Action Plan (to counter terrorism) (NAP). The report notes, however, that incidents of target killings continued to occur in Khyber Pakhtunkhwa province with 42 incidents resulting in 42 deaths and 13 injuries reported in 2015.[18]

    [18] Annual Security Assessment Report 2015, Pakistan Institute for Conflict and Security Studies pages 26-29

14. A July 2016 article in the Friday Times reported that at least 120 target killings and other attacks of violence had been reported in Swat since the completion of the military operation in 2009 and that the prime targets include members of the Village Peace Committees (VPCs). The article refers to a Peshawar-based journalist, originally from Swat, stating that the law and order situation has worsened; that every week an incident of targeted killing is reported from the region; and that ‘the Taliban have returned to the valley as target killers and are taking revenge from all those who sided with security forces’.[19]

    [19] ‘Restoring Swat’s lights’, The Friday Times, 29 July 2016, <

15. A Center for Research and Security Studies report for the period April to June 2016 stated that police officials appear to be the main target of violence in KP, followed by political activists belonging to the Awami National Party and pro-government VPC members.  It is stated that Swat and Lakki Marwat have suddenly emerged as the main targets of violence.[20] 

    [20] Security Report: April - June 2016, Center for Research and Security Studies, 28 July 2016, CIS38A80121410, p.18

16. In its 2019 Country Information Report DFAT states that Pakistan continues to face security threats from insurgent, separatist and sectarian militant groups, including the TTP. The report comments that while militant attacks can occur anywhere, Punjab province tends to experience fewer incidents than other areas.  Khyber Pakhtunkhwa is mentioned as having recorded the highest number of terrorist attacks (125 attacks killing 196 people).[21]

    [21] DFAT Country Information Report, Pakistan, 20 February 2019, section 2.69

17. The 2019 DFAT country information report on Pakistan indicates that:

    ·The security situation in Pakistan is complex, volatile, and affected by domestic politics, politically motivated violence, ethnic conflicts, sectarian violence, and international disputes with India and Afghanistan. According to the South Asian Terrorism Portal (SATP), 3684 civilians have died in terrorism-related violence between 2014 and mid-January 2019. SATP bases its statistics from media reports, so this number may understate the actual number of casualties.[22]

    ·Islamic State in Iraq and the Levant (ISIL, also known as ISIS or Daesh) increased its activity in Pakistan in 2017 and 2018, especially in Balochistan and northern Sindh (see ISIL, Anti-Pakistan Sunni groups and anti-Shia sectarian groups). While ISIL was responsible for attacks with the largest death tolls, the TTP and associated groups conducted the largest number of attacks in both 2017 and 2018 (see Anti-Pakistan Sunni groups and Anti-Shia sectarian groups).[23]

    ·The underlying conditions for militancy, including weak executive, judiciary and law enforcement institutions, poor infrastructure and services, extreme religious ideologies and stark sectarian divisions, and lack of economic opportunity continued in 2018, and continue to do so in 2019. DFAT assesses cycles of violence are likely to continue until these conditions change.

    ·Although counter-terrorism operations have succeeded in suppressing terrorism-related violence, societal intolerance and religious extremism appear to have increased, suggesting the underlying causes of violence remain. DFAT assesses, despite a reduction in levels of violence, sporadic large-scale terrorist attacks are likely to continue to occur, against a background of ongoing smaller-scale attacks (albeit at a reduced tempo).

    [22] DFAT Country Information Report, Pakistan, 20 February 2019, section 2.68

    [23] DFAT Country Information Report, Pakistan, 20 February 2019, section 2.71

18. I note the following relevant information regarding the increased militant activity and rise in violent attacks, including in the Khyber Pakhtunkhwa province, drawn from the updated DFAT country information report published on 26 January 2022:[24]

    Following improvement over recent years, the security situation in Pakistan has deteriorated since mid-2021. Causes of insecurity include domestic politics, religious extremism, ethnic conflicts, genderbased issues, sectarian hatred, economic hardship, petty and organised crime, tensions with India and the situation in Afghanistan.

    Terrorist attacks increased in 2021, following a six-year downward trend noted by the Pak Institute for Peace Studies (PIPS). There were 146 terrorist attacks in 2020, killing 220 people and injuring another 547. PIPS recorded 97 terrorist attacks from January-July 2021, which killed 300 people and injured another 765. Tehreek-e-Taliban Pakistan (TTP) and other domestic jihadist groups carried out most of these attacks. International jihadist groups and domestic ethnonationalist groups also carried out attacks. See also Armed groups.

    Most terrorist attacks target civilians or security forces, vehicles and outposts. Places of worship, schools, and other buildings have also been targeted. Attacks usually involve improvised explosive devices (IEDs) or gun attacks, although rocket, grenade and suicide bomb attacks also occur. Most attacks happen in Khyber Pakhtunkhwa (especially North Waziristan) and Balochistan, although Punjab and Sindh (especially Karachi) are also targeted. There were no attacks in Islamabad, Gilgit-Baltistan or Azad Kashmir in 2020.

    While the large-scale security operations carried out in 2014-17 have mostly wound down, Pakistan Armed Forces continue to conduct operations against terrorist groups who attack its interests and in response to specific threats and incidents. There has been an uptick in these operations commensurate with the recent increase in terrorist attacks. According to PIPS, security forces carried out 47 operations or raids in 2020 compared to 28 in 2019. Since 2018, Pakistan has taken concerted action to address terrorist financing and money laundering on the recommendations of the Financial Action Task Force (FATF).

    Armed groups fit broadly within four main categories: domestic jihadist groups, global jihadist groups, India-focused extremist groups, and other groups including secular and ethnonationalist groups. These categories may overlap. In-country contacts told DFAT that militants in Pakistan were regrouping (especially under the umbrella of the TTP) and expressed concern that the deteriorating security situation in Afghanistan throughout 2021 would increase violence in Pakistan. Many worried the Pakistani government’s practice of ‘mainstreaming’ extremists – allowing former terrorists to return to communities or engage in politics – placed minorities and others at risk.

    A number of domestic jihadist groups and networks operate in Pakistan. Some are sectarian while others mainly oppose the Pakistani state. The most prominent is the TTP, an umbrella group established in 2007 that is responsible for some of Pakistan’s most notorious terrorist attacks, including the attack on the Army School in Peshawar in 2014 and the attempted assassination of prominent female education advocate Malala Yousafzai in 2012. The TTP’s short-term goal is to undermine the influence of the Pakistani state, especially in Pashtun areas. Its long-term goal is to overthrow the state and establish Sharia (Islamic law) and an Islamic caliphate. The TTP is independent from the Afghan Taliban, although they are ideologically aligned. Pakistan wants the Taliban to deny hostile militants a presence in Afghanistan. In October 2021, the government announced it was conducting negotiations with TTP elements. In November 2021, it announced it had agreed to a one-month ceasefire with the TTP.

    TTP attacks within Pakistan have increased since the Taliban seized power in Afghanistan in August 2021. These attacks have occurred mostly in Khyber Pakhtunkhwa and Balochistan, but also Punjab and Sindh. After several years of declining influence under former leader Maulana Fazlullah, the TTP began regrouping in 2020 under the leadership of Noor Wali Mehsud. Since then, several splinter groups have repledged allegiance. Under the leadership of Mehsud, the TTP has moved away from targeting civilians – which was undermining its popular support – to focus on attacks against the Pakistani military and other government representatives. It has also continued to assassinate political and religious leaders and to target religious minorities, including Shi’a, Ahmadis and Christians. Besides conducting terrorist attacks, the TTP acts as an ‘alternative state’ in some parts of Pakistan, collecting taxes and customs duties, and acting as police and courts. Areas of particular TTP influence include (but may not be limited to) Waziristan and surrounding districts, Tank, Quetta, Kuchlak Bypass, Pashtun Abad, Ishaq Abad, Farooqia Town and parts of Karachi.

    Various anti-Shi’a sectarian groups operate in Pakistan, among them Lashkar-e-Jhangvi (LeJ), a radical Sunni militant group that follows the Deobandi school of Islam. LeJ seeks to eradicate Shi’a influence from Pakistan. The group has carried out numerous deadly attacks on Shi’a communities (including targeted attacks against Hazaras), places of worship and leaders, as well as against other religious minorities including Christians, Hindus and Ahmadis. The LeJ is closely aligned with Al Qaeda and shares Al Qaeda’s goal of driving Western influence from the region. It is primarily active in Punjab province, the former FATA, Karachi and Balochistan. It also trains fighters in Afghanistan. See also Race/Nationality and Religion.

    [24] DFAT Country Information Report, Pakistan, 25 January 2022, sections 2.34–2.41

1. I note the following relevant information from a Brookings Institute report[25] regarding the resurgence of the TPP and related instances of politically motivated violence in Pakistan:

   Alongside the Taliban’s takeover of neighboring Afghanistan, 2021 in Pakistan was marked by a clear resurgence of Tehrik-e-Taliban Pakistan (TTP), a terrorist group closely affiliated with the Afghan Taliban and responsible for killing tens of thousands of Pakistanis between 2007 and 2015. The Afghan Taliban’s rise to power — considered a “strategic win” for Pakistan and publicly welcomed by several politicians and officials — provided an unmistakable boost to the TTP. As the TTP has resurged, the Pakistani state has shifted its narratives and policies toward the group, while details on the TTP’s attacks have remained frustratingly opaque.

   According to the Pakistan Institute for Peace Studies (PIPS), 207 terrorist attacks took place in Pakistan in 2021 — an increase of 42% relative to 2020. 335 lives were lost in these attacks. PIPS notes that the TTP alone was responsible for 87 attacks, an increase of 84% relative to 2020. The TTP itself claimed 282 attacks in 2021 and said that it had killed more than 500 law enforcement personnel; it claimed an additional 42 attacks in January 2022.

   Both sets of numbers are low relative to the number of terrorist attacks during the height of the TTP insurgency (2,586 terrorist attacks and 3,021 fatalities in 2009, according to PIPS data). After the Pakistani military began its Zarb-e-Azb operation against the group in 2014, attacks declined sharply. Yet the increasing violence in 2021 compared to 2020, when the TTP began to regroup, is clear.

   [25] Madiha Afzal, ‘Pakistan’s ambivalent approach toward a resurgent Tehrik-e-Taliban Pakistan’, Brookings Institute, 11 February 2022. Accessed at:

2. I also note very recent developments in Pakistan, including the highly volatile and fluid political situation that resulted in the ousting of Pakistan’s Prime Minister on 10 April 2022.[26] I note also that human rights groups, including Human Rights Watch, have voiced concerns that the political instability currently being experienced in Pakistan could result in increased violence and unrest throughout the country, and noted several explicit threats of violence voiced by politicians.[27] I note also country information that highlights a surge in political violence including religiously motivated terrorism in recent weeks. For example a suicide attack took place on 7 March 2022 at a cultural festival in Sibi, Balochistan killing several members of a local police force, and a bomb was detonated at a Shia mosque in Peshawar on 4 March 2022. Country information suggests that this violence is evidence of a resurgence of militancy across the country that is seeking to take advantage of the political instability and leadership vacuum related to the recent political crisis.[28]

   [26] BBC NEWS, ‘Imran Khan ousted as Pakistan’s PM after vote’, 11 April 2022. Available at:

   [27] Patricia Gossman, ‘Pakistan’s No-Confidence Vote Should Respect Democratic Process’, Human rights Watch, 16 March 2022. Accessed at:

   [28] The Associated Press, ‘Pakistan says 4 troops killed in attack claimed by Taliban’, 25 March 2022. Accessed at:

   Findings and reasons

3. I accept that [the applicant] is a Sunni Muslim man of Pashtun ethnicity who was born and raised in Khyber Pakhtunkhwa province in Pakistan, and who has lived for periods in its capital Peshawar. Considering the totality of the evidence provided, including information and documents on the Department’s file, and new information provided to the Tribunal that includes threatening letters from a known militant group to [the applicant]’s father, I accept that [the applicant] is from a prominent family in the area and that his father was targeted by members of a militant group and that [the applicant] himself became a target because of his refusal to provide assistance to these groups. I accept that [the applicant] has been directly and indirectly threatened by members of the TPP/Lashkar-e-Islam militant groups operating in the Khyber Pakhtunkhwa province.

4. I held some concerns regarding some of the evidence presented by [the applicant] in relation to his case and claims, including why evidence such as the threatening letters from Lashkar-e-Islam were not presented earlier in the process. However I accept that these letters are authentic. I also accept that that many threats and atrocities occurred during the period when the TPP and affiliated groups effectively acted with impunity in the area. I discussed these and other concerns with [the applicant] at both hearings and I’m satisfied with the responses provided. 

5. Having considered the available country information and [the applicant]’s specific circumstances, particularly (as detailed above) the information relating to the activities of militant groups in his home area and the increasing prevalence of violence, I am satisfied that in these circumstances [the applicant] would face a real chance of serious harm from militants – groups and/or individuals that include the TPP – if he were to return to his home area for reasons relating to his (actual or imputed) political opinions, namely that of people who hold anti-Taliban political beliefs due to his past run-ins with these groups, as required by s 5J(4)(b) of the Act in that it would involve a threat to his life or liberty or significant physical harassment or ill-treatment. I also consider that [the applicant]’s (actual or imputed) political opinions are the essential and significant reason for the persecution he fears, as required by s 5J(4)(a), and that the persecution which he fears involves systematic and discriminatory conduct, as required by s 5J(4)(c), in that it would be deliberate or intentional and involve his selective harassment for reasons of his (actual or imputed) political opinions.

6. Pursuant to s 5J(6), I am satisfied that the reasons [the applicant] faces a well-founded fear of persecution relate to behaviours and/or conduct that was not engaged in by [the applicant] in Australia for the purpose of strengthening his claim to be a refugee.

   Relocation

7. In SZATV v MIAC (2007) 233 CLR 18 the High Court endorsed the proposition that a person will not be excluded from refugee status merely because he or she could have sought refuge in another part of the same country, if under all the circumstances it would not be reasonable to expect him or her to do so. The Court further held at [24] that what is reasonable, in the sense of practicable, must depend on the particular circumstances of the applicant and the impact upon that person of relocating within their country. As Kirby J stated at [97], the supposed possibility of relocation will not detract from a ‘well-founded fear of persecution’ where any such relocation would, in all the circumstances, be unreasonable.

8. I am satisfied that [the applicant], as a citizen of Pakistan, has the right to relocate within Pakistan.  I note that the range of factors which may be relevant in any particular case to the question of whether relocation is reasonably available will be largely determined by the case sought to be made out by an applicant.[29]  

   [29] Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at [443]; per Whitlam J at [453]

9. In considering [the applicant]’s circumstances and the ‘reasonableness’ of him relocating within Pakistan, I have considered advice in the DFAT Country Information Report that while many Pashtuns have migrated to urban areas including Islamabad and Lahore, and community leaders had told DFAT that Lahore in particular is a safer place for Pashtuns than other parts of the country, DFAT is also aware that members of the Pashtun community, particularly in Lahore, have claimed to have been harassed by police and security forces and to have had difficulty in obtaining identification, and that since the commencement of Operation Zarb-e-Azb and the NAP, large numbers of Pashtuns have been arrested across the country on suspicion of terrorism activities – due largely to the fact that the TTP’s support base is primarily Pashtun.[30]

   [30] DFAT Country Information Report, Pakistan, 25 January 2022, sections 3.3–3.6

10. For these reasons, I do not consider it would be reasonable to expect [the applicant] to relocate himself to another part of Pakistan where he has no family or social supports, to escape the real risk of significant harm he faces in Khyber Pakhtunkhwa province.

    State protection

11. Harm from non-state agents may amount to persecution for a Convention reason if the motivation of the non-state actors is Convention-related, and the State is unable to provide adequate protection against the harm. Where the State is complicit in the sense that it encourages, condones or tolerates the harm, the attitude of the State is consistent with the possibility that there is persecution: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [23]. Where the State is willing but not able to provide protection, the fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify an unwillingness to seek their protection: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [28]. In such cases, a person will not be a victim of persecution, unless it is concluded that the government would not or could not provide citizens in the position of the person with the level of protection which they were entitled to expect according to international standards: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [29]. Harm from non-state actors which is not motivated by a Convention reason may also amount to persecution for a Convention reason if the protection of the State is withheld or denied for a Convention reason.

12. In its country information report (as outlined above) DFAT indicates that Pakistan continues to face security threats from militant groups and that Khyber Pakhtunkhwa is among the regions experiencing relatively higher rates of militant and sectarian violence, a situation that has significantly deteriorated in recent months. DFAT also comments that the underlying conditions for militancy – particularly weak judicial and law enforcement institutions and economic under-development – have not been addressed, and speculated that violence would likely increase again after a period of relative calm, and noted that there had been an increase in the frequency and severity of terrorist attacks across the country since late 2016, including in Peshawar in Khyber Pakhtunkhwa province. DFAT comments that despite the measures introduced under the NAP to curb violence across the country, successful prosecutions of those responsible for politically motivated or sectarian violence are rare, due in part to the ineffectiveness of police investigations and the effect of threats against judges, lawyers and witnesses. DFAT also assesses that state protection in Pakistan is limited by resource shortages, personal socio-economic status and in some cases, political will.[31] 

    [31] DFAT Country Information Report, Pakistan, 25 January 2022

13. The information before me indicates that the situation in the Khyber Pakhtunkhwa province remains dangerous and volatile, with continuing terrorist attacks being undertaken by the Taliban and related militant/extremist groups. There are clear indications that militants are increasingly active in the area and have been emboldened by recent events such as the fall of Afghanistan to the Taliban and political turmoil in Islamabad. Country information also suggests that little is done in response to attacks on residents by militants. Given the long-standing nature and seriousness of the violence in the Khyber Pakhtunkhwa province, together with information indicating that the authorities in Pakistan are struggling to contain that violence, I find that [the applicant] could not obtain, from an authority of the country, effective state protection against the harm he faces.

    Conclusion on issues related to harm in the future from the Taliban and/or related groups and/or their allies and supporters

14. I find the country information indicates that the Taliban and other militant groups continue to launch attacks against military targets and those they consider to support the Pakistani authorities. They are attacking with increasing frequency and impunity.

15. Considering [the applicant]’s particular circumstances cumulatively, and in the context of the relevant country information, I find that there is a real chance that he will suffer persecution involving serious harm, from the Taliban/TPP and/or their agents and/or affiliated groups, if he returned to his home in the Khyber Pakhtunkhwa, Pakistan. I am satisfied that the real chance of serious harm [the applicant] will face if he returned to his home area will be a result of systematic and discriminatory conduct in that it will be done to him selectively and intentionally. I find that the essential and significant reason for the serious harm [the applicant] faces is his profile as the son of a prominent figure in his home area who may be imputed to hold anti-Taliban political opinion due to his past history with the group and his lack of cooperation with them.

16. For the reasons given above, I am satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore he satisfies the criterion set out in s 36(2)(a).

    DECISION

17. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

    Scott Clarey
    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.

    …