1712009 (Refugee)

1712009 (Refugee) [2021] AATA 4524 (4 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1712009

COUNTRY OF REFERENCE: Pakistan
MEMBER:Denis Dragovic
DATE:4 November 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Migration Act

Statement made on 04 November 2021 at 2:24pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – race – Hazara – religion – Shia – particular social group – divorced women – unmarried mothers – mixed religious relationship – unregistered children – physical assault – honour killing – abusive first marriage – internal relocation – access health and education – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 24 May 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The first named applicant (“the applicant”) and second named applicant claim to be citizens of Pakistan. They applied for the visas on 3 March 2016.
A third named applicant who was added to the application as the partner of the first named applicant, was removed from this application as the relationship had broken down. The third named applicant, nevertheless, sought and was granted a separate review based upon his own claims for protection.
The delegate refused to grant the visas on the basis that the information before the member regarding the applicants’ claims of fearing harm did not amount to a well-founded fear of persecution nor did it trigger Australia’s complementary protection regime.
The Tribunal exercised its discretion to hold the hearing by video conference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also 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 hearing was not to be conducted by video conference. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant was born in Quetta, Pakistan, on what is recorded as [date]. She has [specified family members] of whom all but one live in Pakistan. The one [sibling] who does not live in Pakistan, is living in Melbourne, Australia.
The second named applicant was born to the first named applicant and the formerly third named applicant, a Sunni Punjabi man from Karachi, Pakistan, who is in Australia with a pending protection appeal.
The applicant submitted evidence of being a citizen of Pakistan. I accept, based upon a copy of her passport, that she is a citizen of Pakistan.
The second named applicant was born in Australia and it is claimed that he is not registered with the Pakistan authorities although he has rights to Pakistan citizenship. The applicant stated that as he was born out of wedlock and Pakistan authorities both in Pakistan and Australia require a marriage certificate to accompany a request to register a birth, she has been unable to register him. Country information supports this claim: “For registration of birth of a child, production of Marriage Certificate / Nikahnama is a mandatory requirement.”[1] As such I accept this as fact.
[1] Consulate General of Pakistan, Melbourne, Birth Registration, >
I accept that the applicant is Hazara and would be identifiable as Hazara based upon the consistency of her claims of being Hazara, the detail to which she described life as a Hazara in Quetta and her facial features.[2]
[2] Mubarak Ali Kuhzad and Novel Lyndon, ‘Thoughts of the Hazara Youths on Hazaras Identity: A Case Study at 13th District of Kabul, Afghanistan,’ Asian Journal of Scientific Research, 8: 195-204.
The applicant fears return to Pakistan because she is Hazara and Shia, divorced from her first husband and has had a child out of wedlock with a non-Hazara. She fears harm from her family, her community and from society in general including terrorist elements.
Country information on the situation of Hazara in Pakistan
The following information from diverse sources including international observers and the Pakistan national human rights body paints a bleak picture of the circumstances facing Hazara in Pakistan. I have extracted direct quotes as being consistent with the messages contained in the extensive material reviewed for this decision:
a.‘DFAT assesses that Hazaras face a high risk of violence from sectarian militants because of their religious beliefs. Hazaras face a higher risk than other Shi’a due to their distinct appearance and to segregation. Significant security measures taken by Hazara communities partly mitigate the risk of violence in the Hazara enclaves, but Hazaras moving out of the enclaves, within and outside of Balochistan, face a high risk of societal discrimination and violence.’[3]
b.‘The Hazara Shia have been targeted over many years by Sunni extremists, such as Lashkar-e-Jhangvi, Sipah-e-Sahaba and now ISIS. According to a 2019 report by Pakistan’s National Commission for Human Rights, an independent watchdog, at least 509 Hazara have been murdered for their faith since 2013. The non-profit Human Rights Commission of Pakistan says that from 2009 to 2014, nearly 1,000 Hazaras died in sectarian violence. Thousands have been injured. ‘Our men and young can’t go outside. If they go, they will be killed. Our graveyards are full of young men.’ [said Masooma Yaqoob Ali]. To curb attacks on the 600,000 Hazaras living in the towns of Mariabad and Hazara Town in Quetta, authorities have built military checkpoints, roadblocks and walls around the areas.’[4]
c.‘Iqbal Nasiri, a social activist belonging to the Hazara community, said Hazaras were not even safe in Karachi, as “a large number of community members have been killed in recent years”’.[5]
d.‘Groups designated as terrorist organizations by the United States and other governments, such as ISIS, also committed violent acts. Among the targets of these attacks were Shia Muslims, particularly the predominantly Shia Hazara community.’[6]
e.‘The threat of sectarian violence against the Shia Hazara community in Balochistan remained omnipresent. Even with 10 check posts and 19 FC [Frontier Corps] platoons in the two main Shia Hazara settlements of Quetta, more than 500 Hazaras had been killed and 627 injured in just five years. In April 2019 an explosion in a vegetable market frequented by Hazaras killed 20 people, including 10 Hazaras. A report released by National Commission for Human Rights (NCHR) in March 2018 stated that 509 members of the Hazara community had been killed and 627 injured in various targeted incidents of terrorism in Quetta over the previous five years. Security measures for Hazara areas have recently been referred to as extreme ghettoization of the community. The ghettoization appeared to be cost of relative safety for the Hazaras. Between 75,000 and 100,000 Hazaras were said to have been forced to relocate elsewhere in the country or abroad in search of safety.’[7]
f.‘The existing situation of [the] Hazara community is precarious, [as they] are facing enormous difficulties in exercising their fundamental human rights i.e. right to life, freedom of movement, right to higher education, and right to participate in the earning of their daily living and access to necessities of life. They are also having limited social opportunities due to fear of violence.’[8]
[3] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Pakistan’, 20 February 2019 at 3.37
[4] Shah Meer Baloch, 'Every year we dig mass graves': the slaughter of Pakistan’s Hazara’, The Guardian, 5 April 2021
[5] Zia Ur Rehman, ‘After Machh tragedy, Karachi's Hazaras fear for their safety as well,’ Geo News, 6 January 2021 2020 International Religious Freedom Report
[7] PIPS/FES - Pak Institute for Peace Studies/Friedrich-Ebert-Stiftung Pakistan: Strengthening
[8] National Centre for Human Rights in Pakistan, quoted from Document #2025210; IRB – Immigration and Refugee Board of Canada, ‘Pakistan: Situation and treatment of Shia [Shi'a, Shi'i, Shiite] Muslims, including Hazaras and Turi, particularly in Lahore, Karachi, Islamabad, and Hyderabad; state response to violence against Shias’ (2017-January 2020) [PAK106393.E]
In addition, evidence was provided by the applicant orally at the hearing and by way of submissions of newspaper articles that [a number] of the applicant’s sisters were victims of an attack targeting Hazaras while on a bus and one of her cousins was killed in a separate incident. I accept this as fact.
As recorded above, DFAT notes that specific measures have been taken by Hazara living in enclaves which mitigate the risk. The applicant originally lived in the eastern Quetta Hazara enclave of Mariabad, but she claims that she is unable to return. This is because in addition to being Hazara, the applicant has other claims that exacerbate her risks as a Hazara in general and specifically add additional risks to her return to either of the two Hazara enclaves in Quetta, namely, that she has a child from an inter-sect relationship and is divorced.
The applicant gave evidence of the Hazara community’s perspectives on divorce. She said that the community would know that she is not married. When they know that she has children but is not married they will say that the children are illegitimate. She thought that maybe they would harm her adding that before they would stone women to death for adultery. She added that her child won’t be accepted in the community.
If the community doesn’t take action and harm her, she believes that then the family will be shamed. In such a situation the family must take action. She said that there are many stories in which the daughter has shamed the family and that they then kill the daughter as an honour killing. She said that this is common in her Hazara community. She explained that the logic is that if one girl does something bad then it will influence other girls hence the need for punishment.
Country information supports the claim that honour killing occurs among the Hazara.[9]
[9] Nisar Ahmad Khan, ‘Honour killings — The dark side of Hazara’ July 23 2017 >
The applicant gave evidence of her specific situation, namely that she was forced into her first marriage, of her family not knowing that she has children out of wedlock to another man as she fears telling them and of having moved from Sydney to [Town 1] to avoid people associated with her first husband finding out that she has had children outside of wedlock. I accept the applicant’s subjective fears that led her to move to [Town 1] as well as these reported circumstances as fact.
The applicant claimed that her ex-husband’s family have threatened to kill her. This threat, she claims, arises from what was a violent relationship. She wrote in a statutory declaration, ‘Our marriage was arranged and my husband did not treat me well. As a woman in Pakistan, once you are married you cannot complain about the way your husband treats you and you cannot get divorced.’ When she followed her husband to Australia in 2012, she said that he limited her ability to leave the house, verbally abused her, threatened to send her back to Pakistan and physically harmed her. She said that her family encouraged her to stay with her husband even after she described how he treated her. She claimed that this treatment subsequently led to her leaving him and staying in a woman’s refuge. She claimed that their relationship became irreconcilable and as a result they divorced.
I accept that the applicant was in an abusive relationship and that her narration of the relationship including her family’s views is truthful.
Regarding divorce, the applicant said, ‘Being divorced in my Hazara culture and the Shia Muslim religion is very shameful. Because of our culture and religion, my family do not accept divorce. In Hazara culture, if you have been divorced, people will think and speak poorly of you, for example that you are not “a good girl” and that you are “cheap”. These things are particularly negative attributes in Hazara culture because you have brought significant shame to your family and this may mean that your family will disown you or that no one will marry you again.’ I accept that the applicant’s representation of the cultural stigma of divorce among the Hazara in Quetta is accurate.
The applicant being divorced faces cultural challenges including, ‘renting property in urban areas…security concerns and social constraints. Divorcees faced stigmatisation and social rejection.’[10] But this depends upon the single mother’s, ‘religion, caste, class, education, economic position, economic independence, marital status, number of children and geographical location (including distance from urban centres)’.[11] In the applicant’s case, she is of a religion and ‘caste’ that is not accepting of divorcees. Her economic position is poor as she has no support, income or assets. Overall, the applicant’s socio-economic situation does not mitigate the risks she faces.
[10] EASO Country of Origin Information Report Pakistan Country Overview, August 2015
[11] Human Rights Commission of Pakistan 2011, State of Human Rights in 2011, 31 December pages 155-156
Regarding being in a Sunni-Shia relationship in Pakistan, country information notes that while it is legal and accepted in some communities, there may be specific cultural issues in certain circumstances, ‘particularly reactions from members of the two communities who may have extreme sectarian feelings and beliefs.’[12] I note that this country information, which is the latest I was able to find, is from 2006 and that sectarianism has increased since then, particularly between Shia and Sunni and as such anticipate that the situation is worse.[13]
[12] Rahim, A 2006, ‘Marriage Between Shi'ites & Sunnis’, Understanding Islam, 5 September < Shah Meer Baloch and Hnnah Ellis-Petersen, ‘Pakistani Shias live in terror as sectarian violence increases’ The Guardian, 21 October 2020
Based upon the above information, specifically that Hazaras in Pakistan face substantial risks, that inter-sect marriages present cultural issues within the Hazara community and that divorce can lead to security concerns, I find that the applicant faces a real chance of serious harm into the reasonably foreseeable future for the reason of her race, namely, being ethnically Hazara.
I find that reasons of race are the essential and significant reason as extremists would target her based upon her visible Hazara features albeit as a proxy for being Shia and that the harm she faces from her family and community arise from being a part of the Hazara community. As the applicant explained, women are expected to maintain certain norms to prevent other women from transgressing those norms. This is a cultural expectation for all members of the Hazara community. This harm is not for reasons of being a member of a particular social group such as female. Was she not Hazara, but lived among them, for example a non-Hazara expatriate female aid worker, she would not face the same expectations and threats.
I find that the harm the applicant faces is systematic and discriminatory in that she would be targeted by extremists for being Hazara as a proxy for Shia as a part of a wider sectarian fight against heretical beliefs. Whereas within her community she would be targeted for being a divorcee who has committed zina.

I now turn my mind to whether the applicant can relocate. The applicant lived in the eastern Hazara enclave of Quetta where her family continue to reside. As noted above, country information suggests that significant efforts are made by the Hazara and authorities to protect such enclaves. I have considered whether the applicant could move to the other Hazara enclave in the west of Quetta. When this was raised with the applicant, she said that word would quickly travel between the two enclaves and people would find out who she is, who she was married to previously and that she is now a divorcee. People would see that she has two children but no husband, she claimed, and that they would find out about her past. I accept that she is unable to relocate to the west as the two enclaves are closely integrated socially. I also find that other parts of Pakistan would be unsafe for her based upon the above country information, specifically that DFAT assesses that Hazaras face a high risk of violence from sectarian militants because of their religious beliefs. As such I find that the real chance of persecution relates to all areas of Pakistan.
I find that the applicant cannot modify her behaviour as the essential and significant reason because the persecution is an innate characteristic, namely her Hazara ethnicity.
The second named applicant
The second name applicant is a minor. He is part Hazara and part Punjabi. His birth has not been registered and he cannot speak Urdu or Hazaragi in any meaningful way. Into the reasonably foreseeable future the child will remain dependent upon his mother. As such I note that he would be at equal risk to his mother for being Hazara. Although he does not face the same cultural repercussions as his mother, he faces a different set of challenges, primarily being unable to access health and education without being registered. There is country information that indicates ‘illegitimate children can be made legitimate’[14], and that 34% of children under the age of 5 are unregistered.[15] While registration is possible it is only due to recent case law in another province. Similarly, while others live without being registered, this does not negate the harm he may face. Without registration a child cannot obtain a birth certificate, which is required for the issuance of National Identity Cards (NIC), passports and school enrolment.[16]
[14] Ahmed Tariq, ‘Rights of Illegitimate Children in Pakistan: Sunni and Shia Law Perspectives’, December 14, 2020,
[15] Sahar Bandial, ‘Unregistered children’, 27 March 2017 UNICEF Pakistan >
For the reason that the applicant is Hazara and unregistered I find that he faces a real chance of serious harm into the reasonably foreseeable future arising from both reasons of race and membership of a particular social group, namely unregistered children.
I am satisfied that combined these reasons are the essential and significant reasons for the persecution.
I am satisfied that the persecution is systematic and discriminatory for the reason that the targeting of the Hazara by extremists is calculated as a proxy for being Shia in a broader sectarian fight against heretical beliefs and that the Pakistan government has established its registration processes intentionally.
I find that the second named applicant cannot modify his behaviour as being Hazara and unregistered is innate to who he is. I find that he cannot relocate as he is a minor and dependent upon his mother, who herself cannot relocate.
For the reasons given above the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants satisfy the criterion set out in s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s.36(2)(a) of the Migration Act.
Denis Dragovic
Senior 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.
…

Governance in Pakistan - Assessing the National Action Plan to counter Terrorism and
Extremism, December 2020

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[2021] AATA 4524

4 November 2021

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