1711935 (Refugee)

[2021] AATA 3082

1711935 (Refugee) [2021] AATA 3082 (30 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1711935

CASE NUMBER:  1917009

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Lilly Mojsin

DATE:30 June 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the first named and second named applicants protection visas.

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

Statement made on 30 June 2021 at 9.50 am

CATCHWORDS

REFUGEE – Protection visa – Pakistan – inter-sect marriage – in a Sunni Shia mixed relationship – parents were against their marriage – both applicants are first cousins –  the families are of the same sect of Islam – no adverse profile in Pakistan –credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5J, 36, 65, 424AA, 499

Migration Regulations 1994, Schedule 2

CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 26 May 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. This is also an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 June 2019 to refuse to grant the applicant child, born in Australia on a protection visa under s.65 of the Migration Act 1958 (the Act).

3. The first named applicant father [applicant] who claims to be a citizen of Pakistan, applied for the visa on 9 February 2016, on behalf of himself and his wife, the second named applicant. The delegate refused to grant the visa on the basis that that the delegate was not satisfied that the applicants would suffer serious or significant harm on their return to Pakistan.

4. The applicants appealed that decision to this Tribunal, attaching a copy of the Department decision to the application for review.

5. The applicant child [child], born in Australia on [date], represented by his mother the 2^nd named applicant, who claims to be a citizen of Pakistan, applied for the visa on 8 May 2018.

6. The delegate refused to grant the visa to the child on the basis that the delegate was not satisfied that the child would suffer serious or significant harm on his return to Pakistan.

7. The applicant’s mother, on his behalf, appealed that decision to this Tribunal, attaching a copy of the Department decision to the application for review.

8. The Tribunal held a joint hearing with of applications 1711935 and 1917009 on 4 March 2021 and 23 June 2021, by Teams video, to give evidence and present arguments. This was because the applicant parents claims identical harm in 1711935 and 1917009, with additional claim of harm on behalf of the applicant child. The applicants were assisted by an Urdu interpreter. The hearing was held via Teams video during COVID 19. The Tribunal determined it was reasonable to hold a hearing by Teams video during the COVID-19 pandemic.

9. I had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearings were not to be conducted jointly and by video. I am satisfied that the applicants were given a fair opportunity to give evidence and present arguments on behalf of themselves and their child. The applicants and I could see and hear each other. Both applicants are able to speak English and used the services of the  interpreter when needed. I was able to interact with the applicants and the interpreter. All parties were able to maintain appropriate communication throughout the proceedings.

10. At the hearing on 4 March 2021 the applicants did not appear to have childcare for their 3 children, the 2^nd applicant went out of the room for some time and she returned.  She was asked to give evidence and spoke to the Tribunal at the conclusion of the applicant’s evidence. At the hearing on 23 June 2021 the applicants were both able to appear together and both gave evidence.

11. I am satisfied that the hearings provided a real opportunity to be heard.

    Criteria for a protection visa

12. See annexure A.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. In his PV the first named applicant [applicant] claimed that he

    • Has [number of siblings]. He is the youngest. The applicant is a Shi’a  Muslim. His father and his family are religiously orthodox people.
    • The applicant last arrived in Australia on [date] December 2015, as the holder of a Visitor visa. He was accompanied by his wife.
    • The applicant did not finish schooling due to the family circumstances. He only finished [number]

    years of schooling in Pakistan and then he travelled to [Country 1] in 2002. From 2005 until 2010 the applicant travelled to [Country 1] on various occasions.
    time together every day as their mothers used to meet daily.
    refused to let the applicant marry a Sunni girl. He told him that if he ever met [Ms A] again, he would kill him and would not give him any of his inheritance. His father and older brother beat him up few times when they found out that the applicant met with [Ms A].
    will not allow both of them to live in the house unless his wife converted. The applicant spoke to [Ms A] to convey his father's condition. She was very upset and did not want to be Shi’a .

    • From 2008, the applicant worked as a director of [a] company.
    • His wife [Ms A]  and the applicant are childhood friends. They used to spend a lot of
    • They began their relationship in or around the year 2012. Soon after the applicant asked his mother to marry him to [Ms A].
    • The applicant's mother spoke to his father about the applicant's intentions, but he strictly
    • His mother always supported him and stood by him. She attempted to convince the applicant's father to let the marriage happen, saying that [Ms A] will convert to the Shi’a  branch of Muslim after marriage.
    • After months of pleas, his father still refused to let the applicant marry [Ms A]. He said that he
    • His father did not sign his marriage certificate in protest. His wife's father did not sign as a witness on the marriage certificate because they both were against this marriage. After their marriage, his father threw him out of the house. He humiliated him by saying his wife is low life person.
    • The applicant rented a small accommodation near his family house to live with his wife.
    • His father banned him from entering family home. The applicant was isolated from the family and was not allowed to attend family gatherings. His father sacked him from the job. His mother use to assist him financially and they use to get some financial support from her mother.
    • His family stopped supporting them financially as the father of his wife and his own father came to know that both mothers were supporting them. The applicant was just given a small sum of money and told to support himself.
    • Since they got married, the priests for both Shi’a s and Sunnis prohibited them from going to the mosque to pray. They issued 'Fatwah' against both of them they are not part of Islam anymore. They were declared traitors and insulted by their own religious leaders and abused by the people of both sides.
    • As these priests are very influential, they instigated people against them. The applicant was insulted by his friends and relatives. Their house was attacked several times by people.
    • The applicant was also attacked by a group of men on two separate occasions. They came on bikes and stopped his car. They drag him out of the car and beat him. They broke his car and warned him that if he did not leave his wife, they will kill him.
    • The applicant does not have the right to practice his religion freely and to live with his wife.
    • A church was blown up by the Taliban a few metres from his house and his cousin was killed by a mob on the same day

14. In his PV the applicant child [child] said that he has many medical issues. He is disabled and is very ill. He has a back condition and will not be able to live and survive in Pakistan because he cannot undergo treatment over there. His parents cannot afford it nor does Pakistan have facilities to help with his treatment. Doctors and the government do not support public patients and as he has a kidney problem, he might need treatment and transplants that are not possible.

15. Also enclosed in the child’s PV was a statement of the same claims made by the applicant in his PV.

16. A Report dated 17 April 2018 by a Social [Worker] opined that as the child’s parents are a Shia-Sunni love match, they face serious persecution in their home country, and have been shunned by their families and their community. They currently have no contact with their families and as result, receive no support regarding theirs or [Master B]'s intensive medical needs.

    [Master B] was born with a number of significant health [complications]. Following his birth, [Master B] was required to remain in the ICU for one month, given his vulnerable condition and significant health needs. [Master B] required treatment for his [condition] and underwent surgery at [age]. Treating doctors have advised that he will require a minimum of 3 future surgeries to treat his [condition]. It is highly likely that [Master B] will require future medical treatment and possible surgery to treat his other health complication s.

    The applicants have reported concerns for [Master B]'s future if he is no longer able to access this medical care. His parents face persecution in Pakistan and receive no support from their community and immediate family. If they return to Pakistan, they will not be afforded any safety or protection from their families and they will be at significant risk of physical harm and possibly death.

17. [A named doctor], Paediatric Cardiologist’s report dated 24 April 2018 stated that the child has been diagnosed with patent ductus arteriosus (PDA). This will require closure either as a catheter intervention procedure or surgically, the nature and timing as yet not determined but in the foreseeable future. This would be a single curative procedure with low risk. The child  consults several of his [colleagues].

18. Also enclosed was Medical records for the child from [a] Hospital dated 24 April 2018 indicating there was a plan for closure of patent ductus arteriosus. Other reports include record of Discharge from [a] Hospital and Newborn Examination. In the Discharge summary it was noted that the parents were seen by Dr [C] on 19/9/17 and they were counselled appropriately [details deleted].

19. At the first Tribunal hearing the applicant father said that he was born in [year]. He has completed matriculation. He was working in Australia but is not working now. Currently he receives benefits because when he was working in a [workplace], he developed a back problem. His wife is not working. When he came to Australia previously, he came to meet his older brother. He also visited [Country 1] where they had a family business and he has been visiting [Country 1] since childhood. His family were involved in [specified] material, which is prepared in Pakistan and sold to other countries. They would organise [events]. When he was living in Pakistan he was working in his father’s company as a director. After marriage his father sacked him as director. Asked if father still has his business, he said his partner died. Business stopped in 2014 to 2015.

20. He married on [date] September 2014. He married in Lahore, in a banquet hall. He did not marry in a mosque. The ceremony was conducted by a local marriage celebrant, an Imam. The Imam conducted the Nikah. He was neither Shi’a nor Sunni he was not very religious and was not associated with either branch. They registered the marriage under Pakistani law and he provided that certificate to the Department. The witnesses to the marriage were some relatives, some friend of his. Attending the wedding were some selected relatives who were forced by them to attend. Asked why he would pressure people to attend the wedding he said he is Shi’a and his wife and in Pakistani people do not like to attend these marriages so he forced them to come.

21. I put to the applicant that it is not prohibited by Islamic law for them to marry.  He said yes but in Pakistan the Shi’a do not like to marry Sunni and vice versa. I put that independent evidence indicates that there are no formal legal barriers to inter-sectarian marriage between Shi'a and Sunnis in Pakistan" and "such marriages do occur across the country (most commonly in large cities such as Lahore)”. He said that there are some people as well, who are extremist.

22. Asked if he was aware of an intersect mosque outside Islamabad. He said that there are, some people like that in Islamabad but there are extremists and hardliners in Pakistan, there are some who do not like each other.

23. Asked why he does not want to go back to Pakistan, he said that he received threats and there was the firing incident on his car and he was threatened. An incident occurred when 2 guys with covered faces came on a motorbike and broke his windscreen and threatened him to leave his wife otherwise “we will not spare you”. He does not know who they were, their faces were covered. He believes they were sent by his wife’s father. Asked if he went to the police, he said that he went to the police station and met a constable outside the police station. He said “did you know them, did you note the number of bikes”, he said “no”. The police said they cannot take action without any detailed information. He said he was frightened if he took any action, he might face the consequences and it was better to keep quiet. If you report a suspicion to the police, then the police will raid his house and chase him and there could be retaliation. Police can be bribed or pressurised in Pakistan. He made the decision not to make a formal report.  

24. Asked if anything else happened to him, he said that when they were in the house an incident occurred. A mob came and they threw stones and said he has become an infidel for what he has done. He did nothing about that but he was frightened.  This happened in August or little bit after 2013, in August 2014. He came to Australia in 2014.

25. After he married in September 2013, he came to Australia 2014 and he came again in December 2015. The threats started just after his marriage, about January 2014, when a mob came and threw stones at his home and humiliated his friends and relatives. He did nothing, this happened after a few months of marriage. It could be August or a little bit after. It was in 2014.

26. I put that he had departed and arrived in Australia a number of times from 2012 until 2015. I put that he did not come in 2013 he came in July 2014 and again in 2015. He said before marriage he came more that once as he had a multiple visa. He said that he married in September 2013 and came to Australia in December 2015. 

27. The applicant spoke English to the Tribunal at that point. He was able to speak clearly without hesitation.

28. The applicant said that the threats started just after his marriage, it was 4 months later, in January 2014. Asked about the attack in January 2014 he said people came and threw stones at his home and they humiliated his friends and relatives. Asked what he did about it, he said nothing. Nothing happened between January 2014 and August 2014. In August 2014 his [car] was parked on the road. He lived in a small house owned by a lady where he paid rent. Asked how he supported himself, he said his father gave him some money to survive and he had some money saved. Asked if anyone else helped him, he said he asked help from his friends but they did not have money. I put to the applicant that he told the Department his mother and mother-in-law assisted them. He said that both mothers “kind of assisted” them but they were afraid of their husbands. His wife’s mother is scared to call him.

29. Asked if anything else happened before he came to Australia. He said there were 2 incidents and after that they humiliated his friends and relatives. Asked how, he said they verbally called him kafir, a person against his religion. He said it was the Imam who gave a verbal fatwa where he practised his religion.

30. When asked to explain what a fatwa was, he asked the interpreter to explain a fatwa for the Tribunal. I explained that it was not the interpreter’s role to explain anything to the Tribunal, his role was to interpret conversations between the applicant and the Tribunal and he was asked to answer the questions I asked and the interpreter would interpret.

31. I put to the applicant that a fatwa is a ruling on a appoint of Islamic law given by a qualified jurist in response to a question posed by a judge or government.

32. He said it was a verbal fatwa, not written. I asked why a fatwa would be issued when he is not breaching Islamic law. He said it is prohibited to marry Shi’a. I asked him how can an Imam issue a fatwa when marriage by Shi’a and Sunni is not prohibited by law. I asked if he was a rebel Imam, ie someone doing something contrary to the norm. He said he was.

33. Asked if anything else occurred to humiliate him or his relatives. He said his friends and relatives stopped meeting him and they said “don’t come to our place you have committed a crime”. It happened whenever he met his friends and after that he stopped meeting his friends and relatives. This humiliation started when he discussed marriage with his mother and he introduced his wife to his mother, a few months before the marriage.

34. He said he introduced [Ms A] to this mother a couple of months before the marriage in 2012. He met [Ms A] in a park and they played together in a park since childhood. The mothers would come to the park and they started walking together. They did not go to school together. His wife went to a Christian [school]. He went to another school. He said he met his wife when he was [age] but he has a bad memory and anxiety issues so he cannot remember, it was a long time ago.

35. It was put that he has claimed that there were 2 incidents that occurred, January and August 2014 and he was also humiliated by friends and relatives who did not want to speak with him. Asked why he left Pakistan at end of December 2015, he said that he was pretty scared, upset and the incidents happened. They decided they could not live freely in Pakistan and there was a verbal fatwa.

36. Asked why he did not move elsewhere, he said he came to Australia and he knew how to survive in Australia as it was where he wanted to be and he would not feel safe elsewhere. I put that he came to Australia because his brother was here. He said he did, but his brother did not help him much and after a while he moved to a rented apartment.

37. I put that it was Australia where he wanted to be. He said he did not feel safe in Pakistan.  It was also put that if he was in fear of his life he could have, instead of waiting for an Australian visa travel to[1] Niue, Micronesia, Cook Islands, Vanuatu, Dominica, Haiti, Montserrat, St. Vincent and the Grenadines, and Trinidad and Tobago without waiting for a visa and could obtain a visa on arrival in Cambodia, Maldives, Nepal, Timor-Leste, Cape Verde Island, Comores Island, Guinea-Bissau, Kenya, Madagascar, Mauritania, Mozambique, Rwanda, Senegal, Seychelles, Sierra Leone, Somalia, Tanzania, Togo, Uganda, Palau Islands, Samoa, Tuvalu, and Qatar.  He said he was not aware of that, it was not in his mind to travel there.

    [1]

1. I put that he could have moved somewhere else, he did not need to stay in the same house, he said it is not big. He said they can find out, his family have contacts. Both their fathers have friends and they can find them anywhere. I put Pakistan has a population 219.6 million therefore it was implausible the fathers could find them anywhere. He said if you do not have money how can you live in Pakistan. I put that he managed very well for 1.5 years.

2. He said he could not move in Pakistan as he does not have money. He was given a lump sum by the parents. I put he could find a job. He said he was working in a [workplace] but it did not pay him enough and the wages in Pakistan are not enough unless you have a degree. Australia has good opportunities and he can earn money without an education. Pakistan does not have these opportunities. I put that he chose to come to Australia where there are better opportunities.   He said that he also feels safe in Australia and feels Australia is a good country, it has beaches and he lives happily in Australia.

3. He said that he has 3 children, all born in Australia. His children are neither Sunni nor Shi’a . They are normal and they do not practice their religion. They are just Muslim. They do not go to a mosque. He goes to a Shi’a [mosque]. His wife is neither. She does not go to a mosque as women usually pray in the home. 

4. I discussed DFAT information that Pakistani Shi’a live throughout the country in urban centres, including Karachi, Lahore, Rawalpindi, Islamabad, Peshawar, Multan, Jhang and Sargodha. Most Pakistani Shi’a are not physically or linguistically distinguishable from Pakistani  Sunnis, however some Shi’a may be identifiable by common names; Shi’a  mosques are clearly distinguishable and Shi’a  dress in different garb during certain religious events. DFAT reports that Shi’a are most prominent during Shi’a  religious events and gatherings such as Ashura processions. Overall, DFAT assesses that most Shi’a  face a low risk of sectarian violence but this can vary depending on geographical location and for members of specific groups. DFAT reports that high profile Shi’a  face a moderate risk of violence, as they are more likely to be targeted. He agreed but said you cannot marry in Islam in an intersect marriage.

5. Asked if he had provided a letter of support from his father, as was outlined in the Department decision, in order for him and his wife to travel to Australia. He said it was on his dad’s company paper and he was receiving money from his father’ s company.  He said he did not tell his father about the letter and it was not help from his father.

6. I put to the applicant that he did not suffer any serious harm in Pakistan other than 2 incidents that occurred. He said that he suffered mental harm and had anxiety and was not happy and freely comfortable. His mother and father were not with him. I put that his father gave them money to live on, indicating he was not against him. He said he was and the mother has loyalty in the heart. Put that after they lived together nothing happened to them from their families, despite the threats and the fatwa. Further his father gave them money to live.  He said that the relationship of a mother with a son is different.

7. In regard to being attacked by persons, it was put that people in mixed marriages can always contact the police or other law enforcement agencies and Pakistani authorities do not hold back assistance to intersect marriages.  He said in Pakistan it is complicated and people have to pay money. I put that the authorities do not discriminate against intersect marriages. He said that the system is complicated, the problem is fear from families and relatives. It is not the Pakistani system, it is fear from relatives.

8. I put that according to the Shi’a  community in Lahore, for example, up to five per cent of the city's Shi’a  population might marry Sunnis[2]. He agreed. He said there are extremists and normal people and normal people just practise Islam.

   [2] DFAT Thematic Report Shi’a s in Pakistan January 2016

9. It was put that Pakistan's first sect-free mosque is outside Islamabad[3].

   [3]

10. I asked what he feared about returning, he said his wife’s family will do all that happened in past, as will his family and relatives. They will not accept him.

11. He is not safe in Pakistan, he will face the same things. He likes living in Australia.

12. His wife said that they now have 3 children who will be danger, they are innocent.

13. At the 2^nd Tribunal hearing, held on 23 June 2021, I put to the applicant that he and his wife had indicated that they had 3 children born in Australia but he did not appear to have joined those children to their applications other than his eldest child’s application. The 2^nd applicant explained that they had lodged applications with the Department and the Department had not made a decision regarding those children.

14. The applicant confirmed that he and his wife were friends from when they were teenagers. I noted that in Department decision in relation to his child it was recorded that he and his wife attended an interview with the Department on Tuesday 26 February 2019 with an Urdu interpreter. At interview, the child’s father stated that he and his wife are different religions, also that faith is usually inherited through the father’s side of the family, or it is agreed between the parents which religion a child should follow. They have decided that the child will follow Shi’a Islam. The 2^nd named applicant said they will never force their children to follow any religion.  

15. I asked the applicant if all of his family, his parents, siblings and cousins were Shi’a. I asked him to confirm that all of his father’s family and his mother’s family were Shi’a. He responded his family are all Shi’a and all his wife’s family are Sunni.  

16. I asked if his son still has a back condition. I asked about his son’s kidney problem. The 2^nd applicant said that their son does not have those conditions now. He is fine now. He had PDA but he is now fixed. Asked why her son cannot return to Pakistan, she said he is fine the risk and the threats are related to her and her husband and therefore their son is affected by that as well. She is not concerned about any medical treatment for her child in Pakistan. He does not need anything now but it is not a good medical system.

17. I put he could be treated for PDA there and any other medical conditions that might arise. I put that in the future if the problem occurs, he will be treated, irrespective of his religion. She responded “whatever threats we face, he will face the same threat”. She said as the tradition of marriages between Shi’a and Sunni is not very common, her parents were very much against their marriage and when her mother got sick there was a bit of leniency. On her husband’s side there was the same issue, the parents did not agree to their marriage and her husband was evicted from the family.

18. I discussed country information with the applicants regarding medical treatment for the child were to he need treatment again.

19. I asked if their families had met and she said their families did not meet before or after their marriage and her husband was evicted.

20. I put to the applicant that he had claimed at the first Tribunal hearing that there were 2 incidents of harm to him in Pakistan. In January 2014 a mob came and they threw stones at him and said he has become an infidel for what he has done. I put that he had stated the 2^nd  incident of harm occurred in  August 2014 when his [car] was attacked when 2 guys broke his windscreen and threatened him to leave his wife otherwise “we will not spare you”. I put to the applicant that he stated in his PV that their house was attacked several times by people and he was attacked by a group of men on two separate occasions. They came on bikes and stopped his car, dragged him out of the car and beat him. They broke his car and warned him that if he did not leave his wife, they will kill him. I explained that this evidence was inconsistent.

21. He responded that there were 2 occasions when 2 people came on a bike and broke his windscreen because he was a person married out of caste and they threw stones as well, this was to scare him.

22. I put to the applicant that he had claimed that a fatwa was issued by an Imam. I put to the applicant that he had told the Department that priests for both Shia’s and Sunnis prohibited them from going to the mosque to pray. Both Imams had issued a 'Fatwah' against both of them. I put that his information was inconsistent. He said that it was a verbal fatwa against him and his wife.

23. I asked the applicant if he and his wife were related to each other. He said they used to meet when they were kids. They were friends.

24. I advised the applicants that I would put to them information, pursuant to s.424AA of the Act.   I advised the applicants that I proposed to put information that would, subject to anything else they might say, form reason or part of the reason for affirming the decision under review. I advised the applicants that they did not have to comment or respond immediately and could seek additional time to do so, including after the hearing.

25. I explained that a note on the child’s medicals stated that there was [deleted] and they had been counselled by Dr [C]. I advised the applicants that this information was relevant as it indicated they were first cousins, that this indicated they were both Shi’a and if I relied on the information, I may find that it undermined their credibility and would lead me to conclude that their claims were not genuine. If this was the case, I would have no other option but to find that the applicant and his wife did not meet the definition of a refugee or the complementary protection criterion and I would affirm the decision under review.

26. The applicant responded that he would not call it cousins, he said their mothers were distant relatives.

27. The 2^nd applicant wife said that they are cousins from the mother’s side. Their mothers are sisters. She said all her family are Sunni. She said they told the Department they were cousins. She said the families never meet and they never come together.

28. I put that that as the applicant’s mother is Sunni and father Shi’a it was implausible that he claims to being a Shi’a who was attacked for being married to a Sunni. He said he cannot comment on the marriage of his mother and father. He said traditionally the child follows the father. I put to him he never claimed his parents suffered any harm, but he claims to have suffered harm for marrying a Sunni. He said the problem is his father is a fundamentalist Shi’a, he said his mother is just Muslim. But his father’s family are extremists.

29. I put to the applicant that he has created his claims in order to obtain the visa sought. He responded that he cannot comment on a problem but what he wrote in the application is correct. What they faced is Shia and Sunni.

30. The 2^nd applicant said that was the same thing whatever risk factors is same for them. I asked why there was problem for them and not for their parents. She said her father is extreme. She said they are allowed by Islam to marry. She said “we cannot change the community and the mindset”.

31. I asked them again what they feared about returning to Pakistan and the applicants said that the only thing they fear is harm for being in a Sunni Shia mixed relationship.

    REASONS AND FINDINGS

32. On the basis of their Pakistani passports, I accept that the applicants are nationals of Pakistan and not national or citizen of any other country. I accept that the applicants do not have a right to enter and reside in any country other than Pakistan. Therefore, I find that the applicants are not excluded from Australia's protection by subsection 36(3) of the Act. I also find that Pakistan is the applicant’s “receiving country” for the purposes of s.36(2)(aa).

33. As per ss 10 and 78 of the Act, a child is taken to have been granted the same visa as their parents and to have “entered” Australia on the date they are born. Although the applicant has not provided a Pakistani passport for the child, I am satisfied that based on his father’s and mother's citizenship, the child is a Pakistani citizen. Therefore, I find that the child is not excluded from Australia's protection by subsection 36(3) of the Act. I also find that Pakistan is the child's “receiving country” for the purposes of s.36(2)(aa).

34. I note that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might be possibly true (see MIMA v Rajalingam (1999) 93 FCR 220).

35. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that that the particular assertion by an applicant has not been made out (see, Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).  

36. The applicant and his wife are from Lahore Pakistan. The applicant claimed that he and his wife are in an intersect marriage ie. he is Shi’a and his wife is Sunni. They fled to Australia fearing harm after being attacked and verbally abused in Pakistan by their family and other non-state actors. Their child, born in Australia, suffered from a back condition, kidney condition and PDA and the 2^nd applicant feared their child will suffer harm in Pakistan as the child will not be able to obtain medical services needed.

37. By way of background, in Pakistan[4], family law matters, including marriage, are predominantly regulated by uncodified Islamic or Shari’a law, subject to statutory provisions for members of the Muslim population.  According to Mulla, a text on Islamic law, that is frequently cited by Pakistan’s superior judiciary, “Muslim male may contract a valid marriage not only with a Muslim woman, but also with a Kitabia,” meaning a member of the Christian or Jewish religion.  Marriage to polytheists and idol or fire worshipers are not considered valid.  Moreover, “Muslim woman cannot contract a valid marriage except with a Muslim.  She cannot contract a valid marriage even with a Kitabi, that is, a Christian or a Jew.”  However, it has not been possible to confirm whether a Muslim woman’s marriage to a Kitabia is considered void or only “irregular.”

    [4]

38. Marriages in Pakistan generally follow Islamic marital jurisprudence.  Culturally, marriages are not only seen as a union between a husband and a wife, but also an alliance between their respective families. The Muslim Family Laws Ordinance 1961[5] introduced reforms regarding registration of marriages and in default of such registration penalties of fine and imprisonment have been prescribed. Muslim marriages are legal and valid if they are performed according to the requisites of Islam.

    [5]

39. Canadian IRB reports[6], “there are no formal legal barriers to inter-sectarian marriage between Shi'a and Sunnis in Pakistan" and "such marriages do occur across the country (most commonly in large cities such as Lahore)” in the Shi’a community in Lahore, up to five per cent of the city's Shi’a  population might marry Sunnis. DFAT[7] information indicates that a 2009 Shi’a Personal Status Law recognises different practices on issues such as marriage, divorce and inheritance among the Shi’a community. In-country sources report that there has not traditionally been a significant sectarian divide between Sunni and Shi’a: conflict between communities has instead tended to be along either ethnic or political lines.

    [6] IRB – Immigration and Refugee Board of Canada: “Pakistan: Treatment of persons in mixed Sunni-Shi’a  marriages; ability to relocate to other parts of the country; state protection available (2017-December 2018) [PAK106222.E]”, Document #1457385 - ecoi.net

    [7] DFAT Thematic Report Shi’a s in Pakistan 27 June 2019

40. The applicant has claimed that he has a bad memory and anxiety issues. I have no information before me that supports his claim. The applicant was able to give evidence without hesitation. I am of the view that the applicant’s claim to having a bad memory and anxiety issues was made when he was unable to explain inconsistencies in his evidence.

41. I do not accept that the applicants are witnesses of truth. I am satisfied the applicants have created their claims in order to obtain the visa sought for the following reasons:

42. Firstly, the applicants consistently maintained that they are an intersect couple, the applicant being Shi’a and his wife Sunni. The applicant confirmed that his family both on his mother’s and father’s side were Shi’a. He and his wife also confirmed that her family were Sunni. Medical reports submitted to the Department in regard to the child noted that the parents were seen by Dr [C] on 19/9/17 and they were counselled [appropriately]. Another file noted stated that the parents are first cousins. The applicant claimed that he and his wife had just been friends when they were young. Subsequently when it was put that they were related, the applicant then claimed they were distant relatives. The 2^nd applicant confirmed that their mothers were sisters and this was eventually agreed by the applicant. I reject the claims that their mothers were friends or that the applicants were friends prior to marriage. I find that the applicants were and are first cousins.

43. The applicant claimed that his father was an extremist Shi’a and his wife’s father was an extremist Sunni. I reject his claim. I am of the view it is a claim made to overcome the information that both applicants are first cousins.

44. Secondly, there are other inconsistencies. The applicant confused the circumstances of being attacked. At the 1^st Tribunal hearing the applicant stated that there were 2 incidents in 2014 when he was attacked. In January 2014, a mob came and threw stones at him, accusing him of being an infidel for what he has done. The 2^nd  incident of harm occurred in  August 2014 when his [car] was attacked when 2 guys broke his windscreen and threatened him to leave his wife otherwise telling him “we will not spare you”. I put to the applicant that he stated in his PV that their house was attacked several times by people. He was also attacked by a group of men on two separate occasions. They came on bikes and stopped his car. They dragged him out of the car and beat him. They broke his car and warned him that if he did not leave his wife, they will kill him. The applicant’s explanation of the inconsistency was to state that there were 2 occasions when 2 people came on a bike and broke his windscreen and because he was a person who married out of caste, they threw stones as well, this was to scare him. The applicant did not explain the inconsistency.

45. Thirdly, at 1^st Tribunal hearing the applicant claimed that a verbal fatwa was issued by an Imam.  I put to the applicant that he had told the Department that priests for both Shia’s and Sunnis prohibited them from going to the mosque to pray. They both issued a 'Fatwah' against both applicants. I put that his information was inconsistent. The applicant did not explain the inconsistency he responded that a verbal fatwa was issued. I reject his claim.

46. Fourthly, marriage by Shi’a and Sunni is not prohibited by law. A fatwa is a non-binding ruling on a point of Islamic law given by a qualified jurist in response to a question posed by an individual,  judge or government[8]. I note that amongst Shia scholars and jurisprudents the popular view is that a Shia man can get married to a Sunni woman, but there is a difference of opinion regarding the marriage of a Sunni man with a Shi’a woman as most scholars see it as impermissible[9]. I do not accept as plausible that a verbal fatwa would be issued because a Shi’a husband married a Sunni wife when such a union is not prohibited by Islamic law. I also therefore reject the applicant’s claim that it is prohibited to marry Shi’a. I further do not accept that a rebel Imam issued a verbal fatwa. I am of the view that it was an invention made in order to obtain the visa sought.

    [8]

    [9]

1. Fifthly, outlined in the Department decision was reference by the delegate to a letter of support provided by the applicant from his father, in order for the applicant and his wife to travel to Australia. When asked about this letter, he said it was on his dad’s company paper and he was receiving money from his father’s company.  He said he did not tell his father and it was not help from his father. I do not accept as plausible that a person who claims having been sacked from his employment, albeit family employment, was still receiving money from the company. I am satisfied the applicant’s father’s letter of support for him and his wife to travel to Australia was provided to the Department in order to obtain the visa and providing this letter is inconsistent with his claims of estrangement from his family for his marriage.

2. Sixthly, the applicant claims that he was harmed twice, the 1^st attack in January 2014 and the 2^nd attack in August 2014 but he did not leave Pakistan to come to Australia until December 2015. He waited for an Australian visa to leave. When put that there were numerous places he could travel to without the need for a visa if he was in fear, he said that he was not aware and it was not on his mind to travel there. I reject his explanation for the delay. The applicant’s delay in leaving Pakistan after the claimed attacks on him indicate a lack of a subjective fear of persecution. 

3. I am satisfied the applicant and his wife are not witnesses of truth. I am of the view that it is implausible that the applicant would be attacked and harmed by family and friends whilst his parents and his wife’s parents were not harmed by family and friends for doing the same thing. I reject his explanation that his father is a fundamentalist or his family are extremists.  I also reject the 2^nd applicant’s explanation that her father is an extremist or that “we cannot change the community and the mindset”. 

4. As the applicants are not witnesses of truth, I find that

   ·The applicant and his wife were not childhood friends, they were cousins

   ·Neither the applicant’s father nor his family objected to the marriage and no-one was forced to come to the wedding

   ·The applicant’s father did not refuse to give him his inheritance, or sack him from employment or stopped financially supporting the couple when they married

   ·There was no fatwah issued and the applicants were not prevented from going to the mosque

   ·The applicant was not physically or verbally attacked by anyone.

   ·The 2^nd applicant’s family did not seek to harm the applicant, nor did the applicant’s family seek to harm him.  The applicant’s friends and relatives did not shun him and refuse to meet with him

   ·The applicant was not harmed or verbally attacked in Pakistan for any reason.

   ·The applicant and his wife are not in an intersect marriage.

   ·The applicant did not marry out of caste

5. I am satisfied that the applicants families approved the marriage and that the families are of the same sect of Islam. As the applicant has maintained that the child is Shi’a, I am satisfied that the couple are Shi’a.

6. I have considered a report by dated 17 April 2018 by a Social Worker [who] opines that as the child’s parents are a Shia-Sunni love match, they face serious persecution in their home country, and have been shunned by their families and their community. They currently have no contact with their families and as result, receive no support regarding theirs or [Master B]'s intensive medical needs.  I place no weight on this report, as the author does not acknowledge the applicant’s brother being in Australia, and the author has obtained information regarding the applicants’ circumstances only from the applicants.

7. I am satisfied the applicants came to Australia, where the applicant’s brother lives and where he believes there are better opportunities and not because he did not feel safe in Pakistan or because he suffered harm for being in an intersect marriage. I am satisfied the applicants did not suffer serious harm in Pakistan for any reason.

8. I find therefore that the applicants had no adverse profile in Pakistan prior to departing for Australia, for any of the reasons enumerated in s.5J(1)(a). I find the applicants did not flee Pakistan fearing harm and did not have an adverse profile in Pakistan.

9. I am required to consider the situation if there is a real chance the applicants, and/or the child, would suffer serious harm or a real risk they and/or the child would suffer significant harm within a reasonably foreseeable future, if they and/or the child were to return to Pakistan.

10. In regard to the applicants as I am satisfied they are not in an intersect marriage and as I am satisfied they did not suffer any harm in Pakistan for a refugee reason, I am not satisfied there is a real chance they will suffer serious harm in Pakistan for a refugee reason within a reasonably foreseeable future.

11. In regard to the applicant child I have considered medical reports provided to the Department. It was claimed in the PV by the child’s Paediatric Cardiologist’s report dated 24 April 2018 stated that the child has been diagnosed with patent ductus arteriosus (PDA). This will require closure either as a catheter intervention procedure or surgically, the nature and timing as yet not determined but in the foreseeable future. I note that the 2^nd applicant told the Tribunal that the child’s medical condition has improved and he no longer needs treatment for his health, including the PDA diagnosis.

12. In general in Pakistan, health care services in hospital emergency centres – including tests recommended to those who avail themselves of emergency services – are meant to be free of cost. Medicines are to be made available from hospital dispensaries either for free or at a nominal cost. For outpatients, a nominal fee is supposed to be charged, although medicines are to be provided from public dispensaries. In-patient facilities are normally subject to charges, but these are nominal compared to the costs of private health facilities.[10]  While official policy on health coverage in Pakistan affirms that all above services must be available, in practice, public health facilities tend to be poorly resourced. Staff attendance – particularly the presence of doctors – is uncertain in many facilities.

    [10] UK Home Office, Country Policy and Information Note Pakistan: Background information, including internal relocation, June 2020, p 17.

13. The Pakistan Bureau of Statistics released a report in 2019, in which it recorded there were a total of 1,279 hospitals; 5,671 dispensaries, 747 MCH (maternal and child healthcare) centres, 441 tuberculosis centres, 686 rural health centres; 263 sub-health clinics and 5,264 basic health centres across Pakistan in 2018, with a combined total of 132,227 beds.[11] Despite an elaborate and extensive health infrastructure, health care delivery suffers from some key issues such as, high population growth, uneven distribution of health professionals, deficient workforce, insufficient funding, and limited access to quality healthcare services.[12] Access to healthcare is limited, especially for refugees and IDPs. Weak health infrastructure and surveillance systems, poor hygiene practices in homes and hospitals, and community scepticism towards public health campaigns has contributed to outbreaks of disease, including Dengue Fever, HIV, and Polio.[13]

    [11] UK Home Office, Country Policy and Information Note Pakistan: Medical and healthcare provisions, September 2020 at 2.2.1.

    [12] Ibid.

    [13] UK Home Office, Country Policy and Information Note Pakistan: Background information, including internal relocation, June 2020, p 18; ACAPS, ‘Pakistan – Key priorities’, 20 April 2020.

14. MedCOI noted in January 2020 that most private health facilities in Pakistan were in urban areas. The private sector plays a vital role in the delivery of healthcare services in Pakistan. Most private hospitals, clinics, and health related facilities are in urban areas and are well-equipped with modern diagnostic facilities. These private healthcare options are in greater demand than healthcare available through the public sector.[14]

    [14] UK Home Office, Country Policy and Information Note Pakistan: Medical and healthcare provisions, September 2020 at 2.3.1.

15. In Lahore alone, where the applicants is from, there are around 1,533 public and private hospitals. Islamabad offers 517 health institutions, either public or private.[15] Basic health care in Pakistan is free, but limited capacity, lack of funding, corruption, slow economic growth and overarching governance challenges combine to reduce quality and accessibility.[16] In 2010, the 18th Amendment to the Constitution devolved significant powers to the provinces, resulting in highly variable health service provision and budget allocation across the country.[17] Wealthier Pakistanis have access to better quality private health care. Rural areas have poorer access to health care services, compounded by a lack of infrastructure and transport facilities.[18]

    [15] Marham Top Hospitals In Pakistan | View Doctors And Services | Marham; See UK Home Office, Country Policy and Information Note Pakistan: Medical and healthcare provisions, September 2020, p 12.

    [16] DFAT Country Information Report Pakistan, 20 February 2019 p 11 at 2.22.

    [17] Ibid at 2.23.

    [18] Ibid at 2.27.

16. Treatment of young children’s diseases - patent ductus arteriosus [PDA]. Each year, about 50,000-70,000 children are born with congenital heart defects, and almost 25% need surgery within the first year. Information from Aga Khan University confirms that 4 facilities in the country can perform surgery on patients with congenital heart diseases.[19] The country has about 21-25 trained paediatric cardiologists and 4-8 paediatric cardiac surgeons, as the exact number varies slightly according to different sources. Most trained Pakistani surgeons leave the country for countries with better pay and better quality of life, though some are said to be returning to Pakistan. According to the Pakistan Children Heart Foundation, this results in long queues, with 9,000 patients waiting for surgery and 25-30 new cases added to the list each week. According to the Head of Paediatric Cardiology, National Institute of Cardiovascular Diseases (NICVD), 22,000 surgeries need to be performed each year, but only 4,000 are performed each year.

    [19] Ibid p 18 at 4.2.7.

100.   The Aga Khan University Hospital can via its Congenital Heart Disease Fund pay for some patients with congenital heart diseases who cannot afford treatment. The Children’s Hospital in Lahore treats children with PDA[20]. The hospital offers various facilities to both In-patient and out-patient.  The Social Welfare Department[21] receives donations and facilitates poor patients. Provision of free medicines and operation items MRI, CT Scan and Blood tests.

[20]  The 2^nd applicant told the Tribunal her son is now cured and that the hospitals are not as good in Pakistan. In the event that her son would need medical services, I accept that the harm feared, is the lack of adequate medical services.  I am satisfied that the wait for medical treatment is harm that affects all residents who have similar medical conditions to the applicant. I note that mere inability on the part of a state to prevent harm is not sufficient to establish a refugee nexus. It must be shown that the failure on the part of the state to prevent the relevant conduct is the result of toleration or condonation of the conduct, not simply inability to prevent it. The independent evidence indicates that Pakistan’s medical system faces a number of challenges, as outlined above. I have found no independent evidence to suggest that the long waiting times for treatment in Pakistan is the result of toleration or condonation of the lack of provision of adequate medical services for its population.

102.   On the evidence before me I am not satisfied that the child will suffer serious harm on his return to Pakistan for a refugee reason. Rather it is because the medical system is overwhelmed by the numbers of children needing the service and the lack of trained doctors and available hospitals.

103.   Therefore, I find remote the chance the child will suffer harm for a refugee reason on his return to Pakistan.

104.   The applicant’s only fear of harm about returning to Pakistan is fear of harm from their relatives. As I have rejected all his claims about harm from family, friends and relatives for an intersect marriage I am satisfied that there is not a real chance the applicants and/or their child will suffer serious harm on their return to Pakistan for a refugee reason. 

105.   I am required to consider whether there is a real risk that the applicants will suffer significant harm on their return to Pakistan. The applicants are Shi’a Muslim. The 1^st and 2^nd applicants did not suffer any harm in Pakistan prior to their departure to Australia.

106.   The applicant claims that a church was blow up by the Taliban a few meters from his house and his cousin was killed by a mob. I accept that there is generalised violence in Pakistan. DFAT[22] country information regarding generalised violence in Pakistan states 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. The applicant does not claim, nor does the evidence suggest these incidents of violence were directed at the applicant, nor does the evidence suggest the applicant is Christian.  Not all persons have a real risk of suffering harm, merely for reason of their residence in Pakistan. Therefore, I am not satisfied that the applicants’ individual circumstances are such that they would face a real risk of significant harm should they return from generalised violence.

[22] DFAT Country Information Report Pakistan 2019

107.   The applicant claims that “if you do not have money you cannot live in Pakistan”. He has no university education and will not be able to find a job. I am not satisfied the applicant would be destitute if he returns to Pakistan. I am also not satisfied that he will not be able to secure some form of employment and family support if he returns to Pakistan. I am satisfied that he, his wife and child will be able to subsist. The applicant has lived and worked in Australia. He has also worked in Pakistan, albeit he did not believe his salary was adequate. He claimed to have been supported by family for 1.5 years prior to coming to Australia. Therefore I am not satisfied that the applicants’ circumstances are such that there is a real risk they would face significant harm on their return for a lack of university education and/or employment by the applicant.

108.   I have considered whether the applicant, a child who may need medical attention in the future, would suffer significant harm on his return to Pakistan.

109.   Based on the evidence before me, I find that the inadequacies of the Pakistani health care system or the inability to access medical treatment in Pakistan that the child may face on his return to Pakistan does not amount to significant harm as defined. It does not constitute the carrying out of the death penalty, the arbitrary deprivation of life, cruel or inhuman treatment or punishment or degrading treatment or punishment. The country information indicates that any failure to provide the child with relevant and appropriate health care treatment or support will be due to the Pakistan economy rather than any intentional act or omission. I also find that the risk of harm due to inadequate heath care services in Pakistan is one faced by the population of Pakistan generally and not faced just by the child only.

110.   I have considered the applicants’ evidence singularly and cumulatively. On the evidence before me, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants and/or their child being removed from Australia to Pakistan, there is a real risk they will suffer significant harm ie that they will be arbitrarily deprived of their life or that the death penalty will be carried out on them; that they will be subjected to torture or cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment. They therefore do not satisfy s.36(2)(aa).

111.   Accordingly, I find that the applicant does not satisfy the requirements of s.36(2)(aa) of the Act. I also find that the child does not satisfy the requirements of s.36(2)(aa) of the Act.

CONCLUSIONS

112.   For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(a).

113.   For the reasons given above, the Tribunal is not satisfied that the child is a person in respect of whom Australia has protection obligations under s.36(2)(a).

114.   Having concluded that the applicants do 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 applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).

115.   Having concluded that the child 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 child is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

116.   There is no suggestion that the applicants satisfy s.36(2) or that the child 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.

117.   Accordingly, the applicants do not satisfy the criterion in s.36(2) and the child does not satisfy the criterion in s.36(2).

DECISION

118.   The Tribunal affirms the decision not to grant the first named and second named applicants a protection visa.

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

Lilly Mojsin
Member

ANNEXURE A

120. 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.

121.   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.

122.   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).

123.   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.

124.   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

125.   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.

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

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(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.

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