1714751 (Refugee)

1714751 (Refugee) [2021] AATA 4215 (24 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1714751
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Kate Millar
DATE:24 August 2021
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 24 August 2021 at 3:13pm

CATCHWORDS
REFUGEE – protection visa – Pakistan – applicant escaped indoctrination at young age from madrassa – pursued by supporters of Tehrik-e-Taliban (TTP) – educational record unlikely and unconvincing – account of travel to madrassa does not accord with maps and country information – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
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

[The applicant] is a citizen of Pakistan. He arrived in Australia as the holder of a student visa [in] October 2015, and on 19 May 2016 lodged an application for a Protection (Class XA) Subclass 866 visa. This was refused as he failed to attend an appointment, an error which his migration agent later stated was due to the agent’s error.
A further application lodged 17 February 2017 was also refused because the delegate was not satisfied there was a real risk [the applicant] would be harmed if he returned to Pakistan.
This is an application for review of the decision made by a delegate of the Minister for Immigration and Border Protection on 16 June 2017 to refuse to grant [the applicant] a protection visa under s 65 of the Migration Act 1958 (the Act).
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.
Under s 36 of the Act, an applicant for the visa must fall within one of the following groups of people. As it applies to [the applicant], he must be:
· A person to whom Australia owes protection obligations because he or she is a refugee (“the refugee requirement”); or
· A person to whom Australia owes protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a risk he or she will suffer significant harm (“the complementary protection requirement”);
Each of these requirements is further defined.
The refugee requirement
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).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of their 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 the 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–5LA, which are extracted in the attachment to this decision.
The complementary protection requirement
The complementary protection requirement is that if the person is removed from Australia there are substantial grounds for believing there is a real risk that he or she will suffer significant harm.
Significant harm is defined in s 36(2A), and a person will suffer significant harm if he or she will be arbitrarily deprived of his or her life, the death penalty will be carried out on the person, the person will be subjected to torture or the person will be subjected to degrading treatment or punishment.
Circumstances in which the person is taken not to face a real risk of significant harm are set out in s 36(2B) and are:
·     Where it would be reasonable for the person to relocate to an area of the country where there would not be a real risk the person would suffer significant harm; or
·     The person can obtain from an authority of the country protection such that there would not be a real risk the person would suffer significant harm; or
·     The real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal is required to take into account the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
In this case DFAT has prepared a country assessment DFAT Country Information Report Pakistan (20 February 2019) (“DFAT report”), and the Tribunal has taken this information into account in making its decision.
[THE APPLICANT’S] CLAIMS
With his first application, [the applicant] provided a statement of claims dated 10 May 2016. In this statement he claims:
·     From the age of [age] years, he and his brother studied at [Madrassa 1], and after five years went to the higher classes of the madrassa to study the Koran.
·     In these higher years the Taliban came and started brainwashing them, talking of suicide bombers and jihad. This was three years of training in radicalisation.
·     They did not tell their parents what was happening as they were young, and their parents did not know this was happening. They were told at the madrassa not to talk about it with their families.
·     The leader of the Taliban was [Fazlur Rehman Khalil]. The Taliban gave them videos of beheadings produced by the Taliban.
·     At the end of three years Fazlur called their father and said they would find [the applicant] and his brother a job. They said they would give his father money, but [the applicant] said he did not think his father received any money. However, their father agreed Fazlur could find [the applicant] and his brother a job.
·     They were taken to a madrassa near Muzaffarabad on the border with Kashmir. Fazlur’s driver drove them there with another man. After they arrived they were trained to use guns and knives. There were 30 to 40 young men in a group and they had different trainers who covered their faces.
·     During the training [the applicant] says he was accidentally cut across [Body Part 1] by a knife. There was no medical treatment only antiseptic put on the wound.
·     One day at the madrassa they were told they were going to be sent away to undertake a mission. [The applicant] and his brother didn’t want to be sent on a mission so they ran away by climbing out of the window at night. They became separated and [the applicant] says he hasn’t seen his brother since. In [the applicant]’s opinion his brother was captured and sent back to the training camp.
·     They had been at the training camp for about 25 days when they escaped, he thinks this was sometime in 2014.
·     [The applicant] states he ran for about two hours and found a man on a road who took him to a transport depot where buses and trucks stopped. He states he borrowed a phone to call his father who came to collect him.
·     After he returned home [the applicant] states Fazlur Rehman Khalil sent two men to his house and threatened his family about what would happen if they did not return [the applicant] to them. He states the men came every week for eight months looking for him.
·     His father told them they did not know where [the applicant] and his brother were and had not seen them since they left for training. [The applicant] states they visited their home from January to August 2015.
·     He then states because they only asked for him, he thinks his brother may have been recaptured or killed.
·     [The applicant] states his father was very worried for his safety and sold the family home. The family now lives in a rented house. He states that the proceeds from the sale of the house were used to pay an agent to arrange his passport and for the visa to get him out of the country and into Australia. [The applicant] states his father also borrowed money to pay the agent.
·     [The applicant] states he arrived in Australia [in] October 2015 and stayed for two nights in a hotel. He then met some Pakistanis in the street, and they offered him a bed as one of their household had returned to Pakistan. He states he has been living with them since November 2015. They had asked him to pay rent, but he doesn’t have any money and is sleeping on the floor.
In a further statutory declaration dated 10 May 2016 [the applicant] declares that the people from the madrassa had been looking for him but he managed to stay hidden in his father’s house as his father refused to let them inside to search for him. He states when the people from the madrassa tried to go inside, other people living in the street came outside and the men left. He states they often came to his father’s house.
With his application, [the applicant] provided:
·     Photographs of a scar on his [Body Part 1].
·     A copy of his passport issued [in] 2013.
·     A translation of his National Identity Card which specifies his current address was [location], Islamabad and his permanent address is [location], Mansera.
·     A certificate of children under 18, listing [four named individuals and their birthdates] as his siblings.
·     A certificate and translation of the certificate stating he enrolled in the Koran section of [Madrassa 1] in [year], and over a period of six years completed the memorisation of the Koran finishing in [year] with a distinction.
·     A Secondary School Certificate Examination Certificate of the Board of Intermediate and Secondary Education, Rawalpini. The date of issue is [date], and the certificate is in English. It lists [the applicant] as having studied English (compulsory), Urdu (compulsory), general science, civics, mathematics (compulsory), Islamiyat (elective), Pakistan Studies (compulsory) and Islamiyat (compulsory), passing all subjects.
·     Articles about the support madrassas have provided to the Tehrik-e-Taliban (TTP), including a reference to [Madrassa 1] and Fazlur Rehman Khalil’s connection to this madrassa.
In the decision record, the delegate refers to the following additions to his claim:
·     He lived in the madrassa and when the exams were finished, he was able to return to his family home.
·     His father selected [Madrassa 1] because it teaches both religious and non-religious studies.
·     After he escaped from the second madrassa he did not go to the police because the police were involved with the training centre in Kashmir. The police also escorted Fazlur to the madrassa.
·     Since he has been in Australia the Taliban are still looking for him, but they do not come as often (around once a month).
·     If he returned to Pakistan, he would be taken back to Kashmir. They can find him anywhere in Pakistan.
In a claim made in submissions, [the applicant] claimed there would be a risk of harm to him if he were to relocate in Pakistan as it would be imputed that he is an Afghan Pashtun.
At hearing, [the applicant] claimed that if he returned to Pakistan, Fazlur Rehman Khalil’s people would think he is a spy and kill him. He further claimed that he did not stay at his parents’ house when the men returned to search for him, but went to his neighbour’s house or his sister’s house and returned after they had left.
THE DELEGATE’S DECISION
The delegate referred to inconsistencies between [the applicant]’s protection visa application and his student visa application. According to the delegate this included a different family composition, residential address, school information and school documents. The delegate did not accept he was at any risk of recapture during the eight months he returned to live with his family.
The delegate notes the student visa application included:
· A secondary school certificate examination from the Federal Board of Intermediate and Secondary Education Islamabad [year] which states [the applicant] attended [Secondary School 1] in [Rawalpindi].
· A higher secondary school certificate examination certificate dated [year] stating he attended [College 1].
The secondary school certificate [the applicant] provided with his protection visa application does not specify which school he attended. In an unsigned statutory declaration provided to the Department, [the applicant] declares his father and an agent in Pakistan prepared the documents and information for his student visa, and he was not aware they were submitting false documents and information. He states he signed where the agent told him to sign and went to the relevant Department with his agent and his father to have his fingerprints taken. At this time, he states he did not read English well and did not know the whole document was fake including his parents’ dates of birth, his family composition, the references provided, and the photos of the family in the family registration (although there is a photo of him). He states the details in his protection visa application are correct, although he omitted one sister.
In response to the difference in age when he and his brother attended the madrassa, he declares he and his brother started at the madrassa at the same time, despite his brother being two years older. He declares at the time his father was trying to get him out of Pakistan, and he was extremely worried about his brother who was missing. [The applicant] states he was scared about what could happen to him and very nervous and followed what his father was doing as he was [age] years old.
ASSESSMENT OF EVIDENCE
In submissions prior to the hearing, [the applicant]’s representative provided extensive information on what should be expected of [the applicant] at hearing given that the events about which he is giving evidence occurred in the period he was between [age] and [age] years of age, and as he had been subject to traumatic experiences. The Tribunal has been mindful of [the applicant]’s age at the time of the events he described and had not expected him to know detail that is not consistent with his age at that time.
It was also submitted that in assessing [the applicant]’s evidence that he had been subject to a terrifying educational environment and had been subject to trauma and stress that have an impact on his ability to provide a consistent and detailed narrative.[1] The Tribunal also was referred to information changes to thought processes in adolescents.[2]
[1] Herlihy, J., Jobson, L.and Turner, S (2012) Just tell us what happened to you: Autobiographical Seeking Asylum Applied Cognitive Psychology
[2] UNHCT (2014) The Heart of the Matter: Assessing Credibility when Children apply for Asylum in the European Union at p.59
In assessing claims for a protection visa, the Tribunal is always mindful of the circumstances in which a person claims to have left his or her country of origin, and that a rational examination of the credit of a story is not undertaken by picking it to pieces to discover small discrepancies.[3] It is necessary to consider the person’s evidence in light of the person’s circumstances at the time, and not to expect knowledge that it would not be reasonable for the person to have in those circumstances. The Tribunal is also mindful of the effect trauma has on memory, and other influences on how events are remembered by a particular person in their specific circumstances.
[3] Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
[The applicant] was represented throughout his application, and before the Tribunal. His representative provided submissions on the difficulties of child asylum seekers and trauma. [The applicant] did not provide any medical or psychology reports about his mental health. He has worked and studied since arriving in Australia.
The interview with the delegate was ended early due to his distress, however [the applicant] did not experience any such difficulty before the Tribunal. [The applicant] did state at the end of the hearing that he considers his voice is affected by having to repeatedly yell the verses of the Koran, which had the result of his voice being hoarse and soft. This did not affect his ability to give oral evidence at the hearing, and the Tribunal did not have difficulty hearing or understanding [the applicant]’s evidence. [The applicant] was confident in English and had access to an interpreter as required throughout the hearing.
The Tribunal accepts that [the applicant]’s knowledge of his circumstances should not be expected to be greater than a child of his age at the particular time. It also acknowledged cultural differences and traumatic experiences can affect a person’s memory of events. As it was claimed [the applicant]’s memory may be affected by his age at the time and past trauma he suffered, the Tribunal provided him further time after the hearing to provide an explanation for oral evidence that appeared inconsistent with his claims, provide further information and respond to matters in issue.
While the Tribunal has taken into his account [the applicant]’s age at the time of the events and his claimed history of trauma, this does not mean that the Tribunal is required to accept uncritically the information and oral evidence provided by [the applicant].
Study at the first madrassa
[The applicant] claims to have studied [Madrassa 1] for eight years from the time he was [age] years old until he was nearly [age] years old.
DFAT reports[4] that an estimated 18,000 to 35,000 madrassas operate across Pakistan, with the numbers increasing. Madrassas provide education free of charge and often provide food and shelter, which increases their attractiveness for poorer families. DFAT report that local sources see a pressing need for reform of the education curriculum to remove discriminatory content and combat growing religious intolerance and conservatism. It is reported that academic qualifications provided by madrassas are not recognised, which limits employment opportunities.
[4] DFAT [2.35]
It is also reported by DFAT[5] that the government is working towards reforming madrassas that promote radicalisation and facilitate recruitment to terror networks and formed a taskforce in September 2018 to develop a uniform curriculum in schools across Pakistan. The National Action Plan requires madrassas to register, reform their curriculum and report their funding sources with a view to monitoring extremism. The government is reported to have identified some madrassas with links to terrorist organisations and arrested some clerics but has yet to establish a uniform national registration and regulation process.
[5] DFAT [2.36]
[The applicant]’s claim that he was taught extremist doctrine in the madrassa is consistent with the most recent US United States Commission on International Religious Freedom Report[6] that states there are continued reports that madrassas taught violent extremist doctrine. The government is attempting to curb this activity through madrassa registration and curriculum reform.
[6] PAKISTAN 2020 INTERNATIONAL RELIGIOUS FREEDOM REPORT (state.gov)
He has provided a certificate of memorisation of the Koran. This states [the applicant] enrolled in the Koran sections of [Madrassa 1] in [year] and over a period of six years completed the memorisation of the Koran, ending in [year].

[The applicant] claims that the madrassa he attended was administered by Fazlur Rehman Khalil, who is associated with the Taliban.
Fazlur Rehman Khalil
Fazlur Rehman Khalil is reported to have been associated with Osama bin Laden,[7] and to have supported Imran Khan and his ruling Tehreek-e-Insaf party, [8] although claims he had joined the party have been disputed.[9]
[7] ibid, where it is reported Fazlur Rehman Khalil signed Osama bin Laden’s fatwa calling for attacks on US and Western interests
[8] Pak govt leaders caught sharing stage with US-designated terrorist (aninews.in) (provided by applicant), Harkat-ul Mujahideen founder Maulana Fazlur Rehman Khalil joins PTI (thenews.com.pk) (provided by applicant)
[9] Times Now, ET & News18 run false report on global terrorist joining Imran Khan’s party (theprint.in)
Fazlur Rehman Khalil is reported to have been a founder of Harkat-ul-Mujahideen (HuM) which was declared a terrorist organisation, and subsequently formed Ansul-ur-Ummah (AuU). Fazlur is reported to have claimed AuU was separate from HuM but was viewed by Pakistani and US intelligence as an alias for HuM.[10]
[10] Mapping Militant Organizations, Harakat-ul-Mujahedeen, Stanford University, last modified July 2019 (provided by applicant)
Fazlur Rehman Khalil was reported in information provided by [the applicant] as associated with a different [madrassa], being [Madrassa 2],[11] although another article he provided states he is associated with the seminary [Madrassa 1].[12]
[11] [Source deleted]
[12] [Source deleted]
While there is conflicting information about Fazlur Rehman Khalil, it is common in the various sources that he was associated with Osama bin Laden, that he signed the fatwa against the West, and that he has supported the ruling Tehreek-e-Insaf party, although the extent of that support is unclear. There are reports associating him with [Madrassa 1]. It is common in various reports that he was the leader of HuM.
Harakat ul Mjahideen (HuM)
HuM is described as a Sunni organisation similar in ideology to Wahhabism and the Deobandi school of thought. It maintains a strict interpretation of Islamic law, which identifies parliamentary democracy as a manifestation of the negative influence of the West on Islamic Societies.[13] The primary motivation is stated to be to wage war on all non-believers and anti-Islamic forces.[14] HuM seeks to bring Jammu and Kashmir under Pakistani control, carries out attacks against India and supports Afghan jihad by waging war against US led coalition forces in Afghanistan.[15] HuM are reported to operate out of Rawalpindi and Muzzafarabad,[16] and to conduct bombings, kidnappings, and hijackings with the use of machine guns, rockets, mortars and explosives.[17]
Madrassa education
[13] ibid
[14] ibid
[15] ibid
[16] ibid
[17] ibid
[The applicant] said at the madrassa he studied Urdu, Islamic studies, science and maths. According to his higher education certificate he studied English, Islamic Studies, civics, maths, general science, Pakistan Studies, and Urdu. On being asked how he sat his exams, [the applicant] said he sat them at the madrassa and people came in from outside to supervise the exams after his teachers enrolled him for the exams online.
The delegate expressed doubt that a madrassa associated with Fazlur Rehman Khalil would include subjects such as English and Science.
Each of the schools of religious thought in Pakistan, including the Deobandi have established their own madrassa board approved by the government and recognised by the Higher Education Commission.[18] The boards are responsible for coordinating and running the affairs of the madrassa with regard to their examinations. The boards set syllabus, conduct exams and regulate madrassa in their school of thought.[19]
[18] The-Role-of-Madrasas.pdf p 22, 23
[19] ibid
There are four levels of madrassas working in Pakistan, which are:
1.Nazira: These madrassas impart preliminary knowledge and are restricted to teaching their students recitation of the Quran. Such madrassas could be found attached to almost all mosques and require the comparatively least amount of financial resources. Usually the Imam Masjid (prayer leader) teaches students early in the morning or in the evening how to read Arabic and properly recite the Quran. At this level, students remain in the madrassas for only about an hour a day.
2.Hifz: In addition to basic reading of the Quran, memorisation or rote learning of the Quran is undertaken in the Hifz madrassas. These madrassas are also most common within mosques, either with or without accommodation facilities. There are two types of Hifz madrassas:
a.Iqamti (boarding schools): Students stay in madrassas for as long as they memorise the Quran. The students get one day off per week to see their parents and one and a half months’ vacation during Ramadan and Eid. Usually a student becomes Hafiz (the one who memorises the complete Quran) in two and a half to three years. Such madrassas require more financial resources as dining and living expenses for students are provided by the madrassa, in addition to other miscellaneous expenses.
b. Ghair Iqamti (day schools): Students spend eight to 10 hours per day in these madrassas and then go back home. Hence, no stay in the madrassa is required, and therefore, comparatively fewer financial resources are required to establish and run such madrassas, especially when such madrassas are established within a mosque.
3.Dars-e-Nizami: Generally provide eight years of education in which the Quran, its translation, Tafseer (explanation of Quran), books of sayings of the Prophet Muhammad, Islamic jurisprudence, Arabic and Persian languages, and supporting subjects are taught.
4.Takhassas: This level offers specialisation courses including Mufti (who can issue a Fatwa) and Qazi (a judge in Islamic Sharia Justice System). [20]
[20] Royal Danish Defence College (ed. Vestenskov, D.)(2018) The role of Madrassas: Assessing Parental Choice, financial pipelines and recent developments in religious education in Pakistan and Afghanistan
[The applicant] provided a chapter of a book by Mumtaz Ahmad[21] stating madrassas may teach 20 subjects, of which only eight are regarded as solely religious. Of the other subjects cited in this chapter: grammar, rhetoric, prosody, logic, philosophy, Arabic literature, dialectical theology, life of the Prophet, medicine, mathematics, polemics chapter, none are English. It is stated the books used to teach the curriculum are very old. The chapter refers to levels of education. The chapter supports [the applicant]’s evidence of being provided food and board and that the books used were very old as it refers to medicine being taught through an 11^th century text that is still considered an authentic study on human anatomy and pathology.
[21] The reference cited in the submission is Mumtaz Ahmad Madrassa Education in Pakistan and Bangladesh Chapter 5 of Religious radicalism and security in South Asia eds Sayu P Limaye, Mohan Malik, Robert G Wirsing 2005 pp 103–105
A quote from a book by Syed Manzar Abbas Zaidi was provided to support the contention that madrassas associated with jihadi outfits invite commanders to speak to students, and that madrassa education “is not considered a poor cousin for the destitute and fanatical in Pakistan, but had broad support as an educational system.” Neither a link to the book or an electronic copy was provided, and the Tribunal is unable to view the quotes provided in context. The quote provided states “many students of the madrassa are sharp and intelligent and can compete even with ‘secular’ students in board examinations.”
The information on the levels of study at a madrassa shows that a course of education for eight years at a madrassa is focussed on the Quran and its supporting subjects. The Iqamti is consistent with [the applicant]’s account of learning the Quran and the certificate he provided.
His account of an eight year course of study including English, leading to a Board of Intermediate and Secondary Education Secondary School Certificate and undertaking examinations for this certificate is not consistent either with the information from the Royal Danish Defence College or the chapter he provided from the author Mumtaz Ahmad of the eight year course of study, the Dars-e-Nizami. It is not consistent with his account, as the secondary school certificate he provided has subjects other than subjects that support his study of the Quran, such as English. His attainment of a Secondary School Certificate is also not consistent with the DFAT reports which states academic qualifications from a madrassa are not recognised.
The Tribunal could not locate other information to support the contention that madrassa students can compete in board examinations. The reasons given for parents to send their children to madrassas are primarily the financial status of the household and a general devotion to religion.[22] The report it could locate on madrassa education support both that there are madrassas that promote the radicalisation of attendees, and that parents send their children to madrassas because of financial constraints or because they want a religious education.[23] The available information does not support that families send children to madrassas to promote academic achievement in the Pakistani education system.
[22] Royal Danish Defence College, at p56
[23] Royal Danish Defence College, at p.33
The DFAT report and other country information does not indicate that a person following this course of education would be able to sit for and pass Secondary School Certificate Board exams, or that the subjects for a Deobandi associated madrassa would include English.
This makes it improbable that [the applicant] received the education he claimed to have received at the madrassa. He has provided what he now claims are bogus documents with his student visa application showing he studied at [Secondary School 1], a public school that does offer the Secondary School Certificate examinations.[24]
[24] [Source deleted]
He has then provided what he states is a genuine document from the Rawalpindi Board, for studies he claims were at the madrassa which does not name the school at which he studied. His account of how he came to be assessed by the Rawalpindi Board was improbable in light of the reported allegiances of Fazlur Rehman Khalil and reports of the seminary at [Madrassa 1].
Conclusion on education at the first madrassa
Information available on Fazlur Rehman Khalil, and his association with a strict interpretation of Islamic law, opposition to parliamentary democracy and the negative influence of the West, makes it highly unlikely that he would support a madrassa education that included subject such as English, civics and Pakistan Studies. This is compounded by the ideology of HuM, which he led, and information on the operation of madrassa in Pakistan and the nature of the curriculum. The DFAT report states that madrassa qualifications are not recognised, and this is not consistent with [the applicant]’s Secondary School Examination Certificate, which he states was attained at [Madrassa 1].
The Tribunal finds it is improbable that [the applicant] attained the education he claims at [Madrassa 1]. However, there are reports of attempts to reform the madrassa system, and encouragement for madrassas to introduce a broader curriculum. It is reported that the reforms have met severe resistance from the traditional religious establishment.[25] This means that while it is highly unlikely [the applicant] was able to study these subjects at the madrassa, it is not impossible.
[25] The-Role-of-Madrasas.pdf p.20
As it is highly unlikely, but not impossible, that [the applicant] received his education at the madrassa, the Tribunal has erred on the side of caution and accepts he studied to some extent at [Madrassa 1].
Identity documents
[The applicant] provided a certificate of registration of children under 18 years (CRC), a passport, and a computerised national identity card (CNIC). He says he brought these documents with him to Australia. A CNIC and passport are considered the most reliable forms of documentation from Pakistan.[26]
[26] DFAT [5.46]
All applicants seeking a CNIC for the first time must present in person to a NADRA (National Database and Registration Authority) registration centre to submit their paperwork, have their photograph taken, and provide their signature and an impression of their thumb print.[27]
[27] DFAT [5.54]
An applicant who has turned 18 and holds a child registration certificate must submit the CRC or a copy.[28] A person seeking a CNIC must submit the child registration certificate and the CNIC number of a blood relative with their birth certificate, school or university certificate or citizenship certificate.[29] A passport can be issued on the basis of a CRC.[30]
[28] ibid
[29] DFAT [5.53]
[30] UK Home Office (January 2020) Country Information Note - Pakistan Documentation.pdf at [2.4.1]
[The applicant]’s CRC was issued [in] 2010, and he said his CNIC card was issued on the basis of the CRC. He described the process to obtain his CNIC and said NADRA have the record of his CRC and he had to go to NADRA for fingerprints and a photo. This is consistent with country information.
[The applicant]’s passport is issued [in] 2013, which is before he went to the second madrassa and two years before his student visa application. It is a period of approximately [number] days after his secondary school certificate was issued.
When he was first asked when he obtained his passport, he said sometime in 2013 or 2014. He was referred to the date on his passport, [date] 2013, and asked if that was correct and he said yes.
Later in the hearing, he was asked why his passport was issued two years before his student visa application, and before he went to the second madrassa. [The applicant] said he only went to the agent to give him biometrics and does not know how he got the passport. [The applicant] said the passport could be fake. He denied there was a plan for him to leave Pakistan in 2013 to continue his education.
[The applicant] claims his CNIC and his passport were issued on the basis of a genuine document, which was his CRC. It was put to him that if the passport and CNIC were issued on the basis of a genuine CRC, it is difficult to understand why a fake passport would be obtained. [The applicant] said that when he went to see the agent to sign and provided his biometrics, they took his identity card and photocopied it. This did not address the concern of the Tribunal.
The Tribunal finds [the applicant] obtained a passport two years before his application for the student visa and before he states he attended the second madrassa. He has failed to adequately explain why the passport was obtained prior to events he claims led to him needing to leave Pakistan.
The Tribunal finds the issuing of a passport in 2013 does not support [the applicant]’s claim to need to leave Pakistan and obtain fake documents in 2015 as Fazlur Rehman Khalil was searching for him as he had escaped the second madrassa.
Travel to the second madrassa
[The applicant] states after his father agreed that Fazlur Rehman Khalil could given him and his brother a job, they were taken to a madrassa near Muzaffarabad on the border with Kashmir. He travelled in a car with Fazlur Rehman Khalili’s driver and his brother.
At hearing, he was asked how long it took to travel to the second madrassa. He claimed it took 8–10 hours. He states Muzaffarabad was within one and a half hours’ walking distance from Kashmir. He said he knew this distance because he had to walk here. He confirmed the name of the place was Muzaffarabad.
Muzaffarabad is within Pakistan and some distance from the line of control that separates India and Pakistan.[31] Muzaffarabad is close to the Kashmir border, and it is conceivable that a person could walk from Muzaffarabad to the Kashmir border in the time [the applicant] specifies. The Tribunal is satisfied that this is the place to which [the applicant] refers in his statement and in his oral evidence.
[31] Muzaffarabad - Google Maps
It was put to [the applicant] that the travel time from Islamabad to Muzaffarabad shows that it takes 3–4 hours to travel to Muzaffarabad, not 8–10 hours.
[The applicant] said at hearing it did take 8–10 hours to drive to the second madrassa as it is a mountainous region. After the hearing he provided a route mapped between Islamabad and Jammu, which is in India, showing a travel time of approximately nine hours. Jammu is a considerable distance form Muzaffarabad.
Information from the Ministry of Home Affairs website in India website[32] shows a visa is required from Pakistani nationals to enter India. The designated entry points for Pakistani nationals travelling by land to India are Attari and Munabao.
[32] >
The line of control between Pakistan and India in Kashmir has significant security. India has constructed a 550km fence along the line of control, consisting of double row fencing and concertina wire. The fence is reported to be electrified and connected to a system of motion sensors, thermal imaging devices, lighting systems and alarms. The area between the rows of fencing is mined with landmines.
The Tribunal is not satisfied that [the applicant] was talking about Jammu when he refers to Muzzafarabad in his statement and in his oral evidence. Muzzafarabad is a town near the Kashmir border that is within Pakistan. The Tribunal considers it is not plausible that [the applicant] would have crossed the border into India readily to attend a second madrassa or training camp in Jammu.
The Tribunal has considered whether [the applicant]’s perception of the time it took to travel to the madrassa was affected by his age or any trauma. [The applicant] was provided the opportunity to explain the travel time after the hearing and confer with his representative. In his statement he provided a map and accessed maps to calculate a travel time that was consistent with this oral evidence. Given he has had the opportunity to explain the disparity between his evidence the Tribunal does not consider this inconsistency can be explained by his age or trauma.
The Tribunal finds that his oral evidence does not support his claim to have travelled to a second madrassa to undertake training in jihad.
25 days at the second madrassa
[The applicant] does a have scar on his [Body Part 1] and states this was from a sword injury at the second madrassa. The Tribunal accepts he has had an injury that resulted in a scar across his [Body Part 1].
In his statement dated 10 May 2016, he said they were trained at the second madrassa to use guns and knives. At hearing, he said that they were mainly brainwashing them, showing videos from Afghanistan and stating if they go for jihad they will go to heaven. They also did running and physical activities and they showed them self-defence. He said he was cut with a knife by accident when he was being shown self-defence. After this he rested for three or four days, but did not get stitches, only an antiseptic. The description of the antiseptic varied between statements and the hearing, however there is little that turns on this.
He said his brother came to see him in his room and they escaped through the window and ran separate ways. [The applicant] states he saw a man on a motorbike who took him to a bus stop, called his father for him and paid his bus fare. He was on the bus for more than nine hours and his father met him and took him back to the family home in Rawalpindi.
Eight months at his parents’ house
[The applicant] said he had never met Fazlur Rehman Khalil personally and his parents did not know Fazlur Rehman Khalil personally.

[The applicant] states after he ran away from the second madrassa he returned to his parents’ house and remained with his parents for eight months until he travelled to Australia. In this time his parents sold their house and used the proceeds to pay for his travel to Australia, and they now rent a house in Rawalpindi.
In his statutory declaration dated 10 May 2016, [the applicant] states:
The people for the madrassa have been looking for me but I have managed to stay hidden in my father’s house as he refused to let them search for me. When they tried to get in the house, other people living in the street came outside so the men left. They came often to my father’s house.
After he had returned to his parents’ house, [the applicant] said the men from the madrassas came and wanted to search the house, but his father didn’t let them in and they left. He said his father told his neighbours the situation so the next time he went to his neighbours’ house for a week, then he would return to the family home. He said this happened for several months. On being asked why they did enter to search for him despite his father’s objection, he said they could not force entry and he was safe in the house. He says the men left after the neighbours came.
At hearing, [the applicant] claimed that after the first time the men came to his house he barely stayed at the house and went to his neighbours, or to his sister’s house which was eight minutes away. After this first time his father let them into the house to search for him after they forced his father to let them in.
It was put to [the applicant] that in his statement of 7 February 2017, he said that he stayed hidden in his father’s house and did not mention going to any other houses. His account at hearing was significantly different to his previous accounts. He was asked why he had not mentioned going to a neighbour or his sister before. [The applicant] said he did not know why he had not mentioned this before, but this was what happened. Even accounting for his age and any trauma he suffered at the time, the Tribunal finds this is a significant inconsistency that lead it to doubt the veracity of [the applicant]’s evidence. It is inconsistent with the detail provided in his statement that the men would go away because the neighbours came outside when his father yelled.
[The applicant]’s claim that people from the madrassa came to look for him is a significant reason why he says he seeks protection in Australia. It was central to his claims when he lodged his application, and his statement was prepared with a representative. The claim that he went to neighbours and to his sister’s house to avoid the men first emerged at hearing, after the delegate raised concerns that he could remain safely in the house for a period of eight months. The Tribunal finds this is a recent fabrication in an attempt to bolster his evidence that he remained unharmed in Pakistan for eight months after he escaped the madrassa.
He said the men came more than once a week initially, then every fortnight then monthly. He did not go to relatives in Lahore or Karachi as he would be recognised in Lahore or Karachi. On it being put to him that these are large places with large populations, he said “They have people everywhere”. This was also his response when asked how Fazlur’s men would know he had returned to Pakistan.
[The applicant] was also asked why he thought these men would still be looking for him after seven years, and he said they gave him food and shelter for eight years, so they think he needs to do something for them. On being asked how Fazlur Rehman Khalil or his men would know he had returned to Pakistan he said “They have people everywhere”.
[The applicant]’s parents, three brothers and a sister live in or around Rawalpindi, as does his sister. Two of his brothers and sister are married and live separately to his parents. His youngest brother lives with his parents. [The applicant] said his family members in Rawalpindi have not had any problems with people from the madrassa. He said they sometimes came and walked around the streets but did not go to his parent’s home.
[The applicant] initially claimed through his representative that people for the madrassa would not enter the property as Fazlur Rehman is a politician and wanted to protect his image, but in later submissions it was acknowledged they had been referring to the wrong person, that Fazlur Rehman was the politician, and is a different person to Fazlur Rehman Khalil. He then claimed Fazlur Rehman Khalil is now reported to be associated with the Tehreek-e-Insaf and there are reports that the militant arm of HuM is not active, and this explains why [the applicant]’s home was not forcibly entered and [the applicant] removed. In further submissions it is claimed that Fazlur Rehman Khalil is associated with Fazlur Rehman, and therefore JUI-F. At its highest the Stanford University report cited in support of this contention that HuM was ideologically aligned with JUI-F.[33] However, even if it were the case that Fazlur Rehman Khalil did not want to tarnish his political interest by forcibly capturing [the applicant], this would equally apply if [the applicant] returned to Pakistan.
[33] Mapping Militant Organizations, “Harakat-ul-Mujahedeen”, Stanford University, last modified July 2019 (provided by applicant)
It is also claimed this means Fazlur Rehman Khalil has an interest in silencing [the applicant] as he would be an inconvenience to him if he returned to Pakistan. Given [the applicant] left Pakistan as a [age]-year-old and Fazlur Rehman Khalil’s reportedly high profile, this is highly speculative and the Tribunal does not consider it even a remote possibility.
It is claimed that Fazlur Rehman Khalil now has the support of the military and that, given his political profile and this support it is dangerous for [the applicant] to return. There is no information before the Tribunal that Fazlur Rehman Khalil has the support of the military. At it highest, there is information to show he supports, or is associated with, Tehreek-e-Insaf. This does not equate to him having the support of the military.
It was further claimed in submissions that [the applicant] not being harmed in the eight months he remained in Pakistan was not an indication he would not be harmed “when the time was right,” and this delay accorded with Pashtun cultural norms. It is submitted that the fact he was not harmed is in no way a reflection on the desire of Fazlur Rehman Khalil to do him harm at a later time. This imputes a motive to Fazlur Rehman Khalil that the Tribunal does not accept he has, or [the applicant] could have knowledge of, or that is more than speculation.
The Tribunal did not find [the applicant]’s account of attending the second madrassa or of people searching for him from the madrassa plausible or convincing. This is because:
·     His account of his education at the first madrassa, while theoretically possible, is unlikely and unconvincing.
·     He obtained a passport two years before the events that he said caused him to leave Pakistan.
·     The Tribunal does not accept that this passport and the date it was issued is bogus in light of [the applicant]’s evidence that it was obtained on the basis of genuine documents.
·     [The applicant]’s account of his travel to Muzaffarabad does not accord with maps and country information.
·     It is implausible that he would have travelled to a second madrassa in India controlled Kashmir.
·     There are thousands of Madari in Pakistan who educate thousands of children. It is not plausible that he would be sought solely because he received education at a madrassa.
·     His initial statement that people from the madrassa visited his house regularly for eight months and did not search the house or locate him is implausible in light of the information about Fazlur Rehman Khalil and his association with HuM and Ansarul ul-Ummah organisations.
·     His later account that he went to his neighbour or his sister and his father then let the men search the house is inconsistent with his earlier statements. Even accounting for his age and any trauma, the Tribunal considers this was an important part of the reason he seeks asylum in Australia and would be recalled. The Tribunal finds this is a recent fabrication.
·     His parents and siblings have not had any further problems in Rawalpindi.
While each element in itself is not conclusive, the cumulative effect of these findings is that the Tribunal finds [the applicant] did not attend a second madrassa, did not escape from this madrassa, and that people associated with this madrassa did not search for him for eight months before he came to Australia.
As a result, the Tribunal further finds [the applicant] would not be at risk from men associated with the madrassa or with Fazlur Rehman Khalil if retuned to Pakistan.
It further finds he would not be imputed to be anti-Taliban, anti-Fazlur Rehman Khalil, anti-extremist or anti-HuM as he claims as the Tribunal has found he is not an escapee from a militant training camp. [The applicant] gave evidence that he was not involved in political groups in Karachi and or Lahore and had never been associated with a political party. The Tribunal was referred to the UK Home Office report[34] and an Amnesty International report[35] referring to the targeting of political activists, however the Tribunal firstly does not accept that [the applicant] escaped from a training camp or secondly that if he did, this would give him a profile of a political activist as referred to in these reports.
[34] UK Home Office (June 2019) Country Information Note Pakistan: Security and Humanitarian situation, including fear of militant groups
[35] Amnesty International Pakistan 2020 (unreferenced by representative)
While the Tribunal is not satisfied that [the applicant] was taken to a second madrassa or that he is sought by Fazlur Rehman Khalil or people associated with Fazlur Rehman Khalil after he ran away, it is mindful of the gravity of such a finding. Therefore, it has also considered the circumstances if this were true and has considered whether [the applicant] could relocate within Pakistan.
Relocation

100. DFAT report that large urban centres such as Karachi, Islamabad and Lahore have ethnically and linguistically diverse populations, and offer some anonymity for people fleeing violence by non-state actors.[36] The UK Home Office report that in general, a person fearing ‘rogue’ state actors and non-state actors is likely to be able to internally relocate to another area of Pakistan, although whether this would be reasonable and not unduly harsh will depend on the nature and origin of the threat as well as the person’s individual circumstances.[37]
[36] at [5.31]
[37] UK Home Office (June 2020) Country Policy and Information Note Pakistan: Background information, including internal relocation at [2.3.9]
101. [The applicant] states that he is Pashtun and as Pashtuns are targeted in Pakistan, he cannot relocate. He said he will be perceived to be an Afghani Pashtun. [The applicant] speaks Pashto. His application for the protection visa states he can only speak Pashto whereas he can read, write and speak Urdu and English. The original response to the hearing invitation states he requires either a Pashto or an Urdu interpreter. the Tribunal finds he is fluent in Pashto, Urdu and English.
102. The DFAT report states that Pashtuns are an estimated 15.4% of the population in Pakistan, making them the second-largest ethnic group in the country after Punjabis.[38] It is stated the largest Pashtun communities live in Karachi, which hosts the largest population of Pashtuns in the world, followed by Peshawar. It is stated Pashtuns also live in Lahore.[39] Karachi has a population of approximately 16.4 million people and is the largest and most populous metropolitan city in Pakistan with its second largest ethnic group being Pashtun.[40]
[38] DFAT [3.5]
[39] ibid
[40] Karachi Population 2021 (Demographics, Maps, Graphs) (worldpopulationreview.com)
103. DFAT report that Pashtun-majority areas have historically experienced high levels of tribal, intra-communal and politically motivated violence and a high concentration of military operations. The security situation for Pashtuns is reported to have improved in line with increased security in Pakistan. Pashtuns relocating within Pakistan, particularly to Karachi and Lahore report ethnic profiling and harassment of security officials, including demands for bribes under threat of being declared a terrorist. Pashtuns report frequent blocking of their CNIC when relocating which impedes access to property and assets. Pashtun community leaders are typically able to obtain their release. It is reported that as a result Pashtuns prefer to relocate to areas where they have family connections and to avoid resettlement in Lahore.[41]
[41] DFAT [3.10]
104. DFAT assess that Pashtuns in a Pashtun minority area face a medium risk of societal discrimination in the form of terrorism-related activities and racial profiling by security forces. Pashtuns in Pashtun majority areas or locations where they have family or social connections face a low risk of social discrimination.[42]
[42] ibid
105. [The applicant] has two brothers and a sister living separately from his family in Rawalpindi.
106. [The applicant] said he has aunts and uncles in Lahore and one in Karachi. In Lahore he has two uncles but says he has not seen them for a long time. He said that his father did not have a good relationship with his family, and [the applicant] thought this was because they did not agree about sharing the property from his grandparents. He said his grandfather had land and they had all lived together.
107. In Karachi he has his mother’s sister and three male cousins. He said his mother’s relationship with her sister was okay, but they live far away in Karachi. [The applicant] said his mother’s brother lives in Rawalpindi, but his mother has not been to his house because of bad relations.
108. On being asked if he could live in Karachi or Lahore, [the applicant] states he would be recognised easily and recaptured if he lived in either Karachi or Lahore. He said he has so many people in the group and even if he goes there they will recognise him easily because he speaks Pashto. It was put to him that these are large places with large populations. [The applicant] said they have links there and it is very easy to get people back.
109. In a statement provided after the hearing, [the applicant] stated that his relatives in Karachi or Lahore would perhaps give him shelter for a week or two, but not for life and they will be afraid to give him shelter if they know he is running away from the maulana as this would put their own lives at risk.
110. In post-hearing submissions, [the applicant] states that Fazlur Rehman Khalil would still be interested in him after seven years because they want something back from him for the time he spent in their care. He states it is important to understand in his culture that issues of revenge can go for many years and even if the targeted person dies the people seeking revenge may target other family members.
111. However, on his own evidence this has not been the case. Even if the Tribunal were to accept his account of being sought after fleeing the second madrassa, he was able to remain with his parents for eight months and was unharmed in this time. His parents, two brothers and a sister are living in Rawalpindi, and he said they did not have problems with people from the madrassa. The Tribunal does not that accept that after seven years Fazlur Rehman Khalil or people associated with him would be actively searching for one escaped student, or that he would by chance encounter a person associated with Fazlur Rehman Khalil who would recognise him, or that any association with which Fazlur Rehman Khalil is involved is searching for him.
112. [The applicant] has been a [Occupation 1] and more recently has been running his own [Occupation 2] company in Australia, and says he helps to financially support his family in Pakistan. He recently quit the [Occupation 2] company and took his 40% share because his partner stopped working, and he is looking to start his own business again soon.
113. [The applicant] started working as a [Occupation 1] in mid-2016 and worked with [Business 1] for two and a half years. On leaving [Business 1] he was doing [Occupation 2] for other people for six months and then started a business with a friend. This business has been profitable.
114. [The applicant] has family connections in Karachi and Lahore. If he considered he was unable to remain in Rawalpindi he could relocate to Karachi or Lahore. While he states he could only obtain minimal family support, he would have had an initial place to live while he sought work and can live within a Pashtun community.
115. While the Tribunal is not satisfied there is a real risk of significant harm if [the applicant] were to return to Rawalpindi, even if it were wrong it is not satisfied he could be located in Karachi or Lahore or that he would still be sought after by people from the madrassa.
116. Even if the Tribunal were to accept that [the applicant] attended and fled a second madrassa, which it does not, it is not satisfied that there is a real chance of serious harm or a real risk of significant harm if he relocates to Karachi or Lahore.
117. [The applicant] claims he cannot relocate because he is Pashtun and would be imputed to be an Afghani Pashtun and treated unfavourably. The Tribunal does not accept there is a basis on which he would be imputed to be Afghani. It does not accept, in accordance with the DFAT report cited above, that if he relocated to Karachi where he has family, he would face more than a low risk of social discrimination.
118. The Tribunal also considered whether he would face hardship as a returnee.DFAT report that returnees are typically able to reintegrate into the Pakistani community without repercussions stemming from their migration attempt. In [the applicant]’s case as he left lawfully to study in Australia there is no reason he would be questioned on his return. DFAT also assess that returnees to Pakistan do not face a significant risk of societal violence or discrimination as a result of their attempt to migrate, or because of having lived in a western country.[43] However, DFAT also note that societal or official violence can still occur due to the reason they attempted to migrate, which is addressed above.[44]
[43] At [5.45]
[44] ibid
119. The Tribunal finds that it would be reasonable for [the applicant] to relocate to Karachi where there is no chance of serious harm because of his race, religion, nationality, membership of a particular social group or political opinion and no real risk he will suffer significant harm.
CONCLUSION
120. The Tribunal has found that [the applicant] did not attend the second madrassa, did not escape this madrassa, and was not pursued by Fazlur Rehman Khalil, or people associated with Fazlur Rehman Khalil. It has found that even if it did accept this had occurred, he could relocate to Karachi.
121. As a result, the Tribunal finds he does not have face a real chance of serious harm because of his race, religion, nationality, membership of a particular social group or political opinion. As a result he does not have a well-founded fear of persecution and does not meet the definition of refugee in s 5H of the Act. He therefore does not meet s 36(2)(a) of the Act.
122.
It further finds he does not face a real risk of significant harm if he is removed from Australia and returned to Pakistan and does not meet the complementary protection requirement in

s 36(2)(aa) of the Act.
123. There is no suggestion that [the applicant] satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, he does not satisfy the criterion in s 36(2).
DECISION
124. The Tribunal affirms the decision not to grant the applicant a protection visa.
Kate Millar
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.
…

[2021] AATA 4215

24 August 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness