1717280 (Refugee)

1717280 (Refugee) [2021] AATA 5354 (29 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1717280
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Sean Baker
DATE OF ORAL DECISION:  29 November 2021
DATE OF WRITTEN STATEMENT:         10 December 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 10 December 2021 at 5:01pm
CATCHWORDS
REFUGEE – Protection visa – Pakistan – conversion from Islam to Christianity – threats from devout Muslim family – spontaneous credible evidence – witness statements – genuine Christian convert – hostility towards Christian converts in Pakistan – conduct in Australia not for sole purpose of strengthening claim to be refugee – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65, 499
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 2 August 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Pakistan, applied for the visa on 7 September 2015. The delegate refused to grant the visa on the basis that the delegate did not accept that the applicant was a genuine Christian convert.
The Tribunal gave its decision on the review at the conclusion of the hearing held on 29 November 2021.
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 (Cth) (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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant has well-founded fear of persecution if returned to Pakistan or whether there is a real risk he will suffer significant harm if he is removed from Australia to Pakistan. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
The applicant was born in Gujranwala, Pakistan. He attended school until his parents withdrew him in Year [grade], intending him to become a Hafiz, or memoriser and reciter of the Quran. He studied the Quran but did not become a reciter. He was abused at the madrasa. His family are devout Muslims and his first cousin is a radicalised jihadist who has travelled to Afghanistan to engage in violent jihad and has a document history of having been arrested for terrorist related offences by the Pakistan authorities.
He was put to work in [a business] and he then travelled to [Country 1] where he ran [a similar] business.
He was married in 2001 and the couple had [children]. [One] daughter[has] a serious [health] condition [for] which she required significant surgery. She attended a specialist surgeon in [another country] and eventually had the surgery completed in [Country 1] in 2014. The applicant, in [Country 1] at that time, met someone who suggested the applicant pray to Jesus for the health of his daughter. He promised Jesus that if his daughter recovered, he would follow the faith. His daughter underwent the surgery and recovered.
The applicant visited a Pastor in Lahore but was initially too afraid of the consequences to be converted. He was then Baptised when he returned to Pakistan in November 2014 following the birth of his son. He then returned to [Country 1].
He began speaking with his wife about Christianity, but she was not receptive. Then in July 2015 she told the applicant that their family were sending their daughter[to] a madrasa to become a Hafiza. The applicant did to wish this to happen and told his wife he had converted to Christianity and that they could not send their daughter to a madrasa. His wife was very upset, and the applicant’s family found out about his conversion. He was threatened by his family. His family say that he is no longer married to his wife as he is an apostate. He has had no contact with his wife, children or family since that time.
His business in [Country 1] was seized by his business partner.
The applicant claims to have become aware of Christianity through a friend in [Country 1] in approximately 2014. He claims to have converted and been Baptised in Pakistan in November 2014 and has provided a Baptism certificate to this effect.
The applicant travelled extensively through Europe and then arrived in Australia in 2015.
In Australia the applicant joined the [Church] soon after arrival and has remained at this Church until now. He provided a letter of support from the Reverend [A], who was ordained 19 years prior and had been a Minister of this Church for almost 10 years at that point, dated 17 June 2017 to the Department. This letter states that the applicant had consistently attended worship services, bible studies and training courses and set out the courses he had attended and noted that the applicant was an Usher on roster.
The applicant also provided to the Department his Baptism certificate from the Biblical Church of God, Lahore, and a reference letter from the pastor there, Pastor [B], as well as documents evidencing his claims of marriage, the [health] condition of his daughter, that his first cousin is an extremist who has been jailed for terror related offences.
The delegate found the applicant’s knowledge of Christianity was not commensurate with his claimed level of involvement, his claims regarding his journey of faith were unconvincing, he had travelled to many Western countries but had returned to Pakistan afterwards, fraudulent documents are readily available in Pakistan and the documents relating to his conversion had no security features. The delegates decision also included country information indicating that Christian converts face repercussions if the fact of their conversion becomes known, including harm from relatives or their community as well as prosecution for apostasy.
To me the applicant provided a copy of the delegate’s decision. He provided a detailed statutory declaration which set out his claims in more detail and addressed the concerns raised by the delegate. He provided a document which describes his faith and how this helped him during the illness of his daughter and during his recovery from a serious work accident he suffered in Australia. He provided information on the courses he has completed at the Church. He provided his certificate of his ordination to the Eldership of the Church. He provided detailed, contemporary letters of support from Reverend [A], Reverend [C], [the] coordinator of [a] Ministry team at the Church, from [Mr D], Mr [E] who printed some card for the applicant which the applicant distributes when he is preaching to people in the community, Reverend [F], the Editor of [a] Christian Newspaper, and a further copy of his Baptism certificate.
All of the letters of support speak of the applicant’s absolute commitment to the Church, his good works, his development of himself and their complete understanding that he is a genuine Christian convert.
At hearing I had the benefit of speaking with many of these people. They impressed me with their candour, their clear-eyed understanding that many people may seek to claim conversion to advantage themselves, and their absolute certainty that the applicant is a genuine Christian convert.
Reverend [C] spoke of visiting the applicant in hospital after the applicant’s workplace accident. He said he had had many conversations with the applicant about Christianity and Islam, he had seen the applicant each Sunday and had seen the applicant taking on roles of further responsibility in the Church. He said that he knew the applicant had a further role of evangelising with [Mr D]. The Reverend stated that he had no doubts that the applicant’s faith is genuine, that it had been a conversion of great personal inconvenience for the applicant. He said that he had seen the applicant grow in understanding, the applicant was very open about his faith and had been extraordinarily consistent in his attendance and engagement.
[Mr D] said that he had met the applicant in 2017 in a supporter group and because of their shared background having come from Muslim majority countries, they became very close. He said that, in a group, he and the applicant would go to the streets and tell people how much God loves them. He said the applicant was actively involved in this evangelising. He said they had done this prior to the lockdowns and had recently re-started. [Mr D] also recounted how the applicant had attended [another] Church to give testimony about how his faith had helped him with the illness of his daughter and his workplace injury in Australia in 2018. He said they met every week to discuss the Bible and he had never met anyone so passionate. He said when they came to a religious conclusion, he could see the applicant’s face shining with joy that he had come to understand something about the faith he did not know before. He said he had an understanding of what happened to Christian converts in Muslim majority countries, and he was very concerned with what may happen to the applicant on return to Pakistan. He said that he had no doubt the applicant was a genuine Christian.
Reverend [F] said that the applicant assisted with him the work of the Pastor. He said that the applicant shows every sign of a converted man, his bible is well used and has copious notes and bookmarks, he is very active in the church community, he welcomes people and does everything he can do to assist, all for the Glory of God. He has seen nothing to indicate the faith of the applicant is not genuine. He spoke of his knowledge as Editor of [a] Christian Newspaper of persecution of Christians in Pakistan, accounts which were corroborated with multiple reports. He said that on the Open Doors ranking, Pakistan was the fifth hardest place for Christians to live.
Pastor [A] said that he enjoyed seeing the work that the Lord had done in the applicant’s life, the signs of Spiritual life for the applicant were flourishing. He said that the applicant had been consistent in his devotion to God and the Church, to the teachings of Christ, had attended and assisted and sought to learn as much as he could. Since they first met in August 2015, they have developed their Brotherhood and understanding of each other. The applicant was consistently growing spiritually.
The applicant spoke of his faith, of promising to follow the faith if his daughter survived her surgery, his joy when she had. He explained his fear and that he had decided when his son was born that he should do as he had promised, and he converted and became Baptised. He spoke about the Church community here and his evident and strong connections with the Church community. He spoke of his learning further about the Christian religion and teachings of Jesus. He spoke about his work with the Church. I found the applicant to be a truthful and credible witness. He was able to explain to me in detail everything which I asked.
A number of dob-ins were made to the Department after the Department’s decision and a s 438 certificate was placed over them. I have had regard to this information and address this below.
Reasoning
Country of nationality and third country protection
Having regard to the applicant’s passport, I find that he is a national of Pakistan. Having regard to his extensive travel history, I find that the applicant has travelled to several countries. However, on the information before me, he does not have a presently existing right to enter and reside in any third country.
His claims
It is trite to observe that a person is persecuted for some characteristic or attribute that is perceived by the persecutor. In cases of religious conversion, what is most relevant is how the applicant will conduct themselves if they returned to their home country, and how the putative persecutor(s) would react to this conduct.
The genuineness of a conversion is relevant therefore where an applicant would, if they continued their claimed conduct in the converted religion, face a real chance of persecution for reasons of religion. In assessing the genuineness of a conversion the applicant’s detachment from his previous religion and his turn to the other faith relies on a full inner conviction, insofar as that can be discerned. In the case of Christian conversions, Baptism alone may not demonstrate such inner conviction, nor that the applicant will continue any claimed conduct in the home country.
The delegate refused the application on the basis that they were not satisfied that the applicant was a genuine Christian convert.
I have reached a different view for the following reasons.
In summary, the applicant’s current relationship with his Christian community in Australia at the present time is indicative of a person who deeply holds with the Christian faith. His spontaneous and credible evidence at the hearing demonstrates that his claims as to his early interest in, conversion to, and current practice of his faith are the result of a full inner conviction and a complete detachment from his past faith.
The applicant has provided a credible explanation for why he became interested in Christianity, with the acute fear that came from the health of his daughter and her need for significant surgery. He explained why he did not become Baptised at this point due to fear, but then decided he should do as he had promised. When seen in the context of his consistent and devoted practice of his faith in Australia, and in particular reading his thoughts in his presentation to the congregation after his workplace accident, I find this explanation entirely convincing.
The applicant demonstrates his knowledge of the religion, in the same presentation, in his knowledge of the Bible and the faith, in his interactions with all of the witnesses.
The applicant has demonstrated, many times over, the importance of his new faith to his life. Again, the presentation, his belief that God assisted him to recover from his serious workplace accident and his daughter to survive his surgery all point to this. As Reverend [C] noted, and I accept, the applicant’s conversion has come at great cost to him, being the estrangement from his wife and children and entire family in Pakistan after he told his wife of his conversion. Having spoken with the applicant and seeing how eager he is to speak of his faith, and hearing from the credible witnesses who are very well qualified to consider questions of faith and evangelism, I have no doubt that the applicant wished to share his faith with his family, to his detriment. He has consistently sought to enlarge his knowledge of his faith but he has also demonstrated a willingness to practice his faith through good works. All of the witnesses spoke to the applicant’s absolute devotion to attend worship at the Church.
I have had regard to the dob ins. I accept the certificate is valid and so I put to the applicant at hearing for his comment only the gist of that information. I explained that the person or persons had not disclosed their identities, but were aware of significant bio details of the applicant which appeared to indicate they knew the applicant reasonably well. I set out the main concerns in those dob ins, which revolved around an assertion that the applicant’s conversion was non-genuine, that he continued to speak with his family in Pakistan, and that he had obtained false documents from Pakistan to assist his claims. The applicant responded that he was not aware who may have made these allegations. He denied them entirely. He explained that the Australian – Pakistan community was aware of his conversion as he made no secret of it, and that it may be someone in this community or persons who were upset at his conversion. He said that he had had many housemates who were Muslims and it may have been one of them.
Having regard to my view that the applicant is credible, to the fact the dob ins do not identify who they are or why they are making these allegations, and the fact that I am unable to discern the motivation of the dob-ins, I accept the applicant’s explanations and place no weight on these dob-ins.
Having considered the materials provided, including the letters of support, and placing particular weight on the evidence of the witnesses, who through their positions with the Church and association with the applicant are in an unimpeachable position to provide expert testimony on the genuineness of his faith, I find that the applicant is a genuine convert to the Christian faith. I find that he has developed his understanding and involvement with the faith over time, and that this continues, as noted by Pastor [A], that he has taken on progressive responsibilities with the Church, now being an Elder, as an expression of this growing faith and his desire to do good works, that he in particular sees it as his mission to preach to people in the community with [Mr D] as an expression of his faith, and that he is committed to the faith and to the faith community of which he is a part.

I find the applicant is credible. I accept that his daughter was very ill and required [surgery], and that this was the initial impulse that drew him to Christianity. I accept that the applicant was Baptised in Lahore after speaking with that pastor for some time. I accept that the applicant wished to tell his wife of his faith after she told him their daughter would go to the Madrassa. I accept that his wife was unhappy with this and when she told their family the family were upset with the applicant. I accept that he has not had any contact with his family since that time. I accept that the applicant was sent to a madrassa to be a Hafiz rather than completing school, and I accept that this demonstrates his family are religious Muslims. I accept that his first cousin was jailed and was involved in extremist activities.
Is there a real chance the applicant will suffer serious harm amounting to persecution if he returns to Pakistan now or in the reasonably foreseeable future?
I find that if the applicant returns to Pakistan, he will continue to practice his Christian faith, including by seeking to attend a Church, be part of a Christian community and by seeking to proselytise as he has done consistently in Australia when there have not been lockdowns.
I find on his evidence that this will lead to the applicant continuing to be cut off from his family, his wife and children. I accept that he may face harm from his family and in particular his first cousin.
Having regard to the country information, I find that there are no laws against conversion from Islam to Christianity but that, in reality the situation for someone who is known to have converted rather than being born a Christian is very difficult.[1] In general society is extremely hostile towards converts to Christianity and such persons suffer the potential for having a fatwa against them as an apostate, acts of violence, intimidation and serious discrimination from non-state actors, treatment which is prevalent throughout Pakistan.[2] Conversion from Islam is often seen as blasphemous and can result in prosecution under blasphemy laws.[3] Individuals have used blasphemy laws to settle personal disputes.[4] Communal violence also often targets those accused of blasphemy.[5] DFAT assessed in 2019 that Christians faced a low level of official discrimination and a moderate level of societal discrimination and a moderate risk of societal violence and sectarian violence.[6] DFAT also assessed that blasphemy laws, and the possibility of communal violence following a blasphemy accusation, disproportionately affect religious minorities in Pakistan.[7] Evangelising Christians who seek to proselytise may find themselves facing a charge of blasphemy.[8] Apostasy is seen as blasphemy which may attract the death penalty and there was a significant increase in individuals accused of blasphemy in 2020 over 2019.[9]
[1] UK Home Office, Country Policy and Information Note, Pakistan: Christians and Christian converts, v. 4.0, February 2021, p. 11.
[2] UK Home Office, Country Policy and Information Note, Pakistan: Christians and Christian converts, v. 4.0, February 2021, p. 11.
[3] DFAT Country Information Report Pakistan, 20 February 2019, 3.81.
[4] DFAT Country Information Report Pakistan, 20 February 2019, 3.84.
[5] DFAT Country Information Report Pakistan, 20 February 2019, 3.85.
[6] DFAT Country Information Report Pakistan, 20 February 2019, 3.143.
[7] DFAT Country Information Report Pakistan, 20 February 2019, 3.89.
[8] UK Home Office, Country Policy and Information Note, Pakistan: Christians and Christian converts, v. 4.0, February 2021, p. 9.
[9] USCIRF, 2020 Report on International Religious Freedom: Pakistan, Office of International Religious Freedom, 12 May 2021.
Having regard to what I accept of the applicant’s attributes and how I assess he will behave if returned to Pakistan, I find that the applicant will come to the attention of his family, his community, and society in general, particularly through his proselytising. As a convert from Muslim he is vulnerable to charges of apostasy and fatwas issued by clerics against him. I find on the country information that there is a real chance of serious harm in the form of sustained and significant harassment, acts of violence, intimidation and serious discrimination from non-state actors, treatment which is prevalent throughout Pakistan. There is a real chance, as an outspoken Christian convert who proselytises, that he may also be accused and charged with blasphemy.
I find that this harm amounts to serious harm because it involves significant physical harassment, significant physical ill‑treatment and in the case of blasphemy charges, a threat to the applicant’s life, and because of the serious, significant or repetitive nature of the harm, is for the essential and significant reason of his religion, is systematic and discriminatory in that it is not random and sporadic but sustained and targeted at the applicant for the reasons expressed.
I find that this harm will be for reasons of his religion as a Christian, a Christian convert, and for perceived reasons of his conversion from Islam seen as apostasy.
Having regard to the country information, I find that the real chance relates to all areas of Pakistan. While he may be able to avoid harm from his family, the country information is clear that he will suffer forms of serious harm from the community in general as a Christian convert from Islam who proselytises.
Effective protection is not available to the applicant because the harm of blasphemy charges would involve treatment of the state. Further, while there is some evidence of state protection of minorities, this is sporadic and ineffective in many cases, particularly instances of communal violence.
I consider that there are not reasonable steps the applicant could take to modify his behaviour that would not conflict with a characteristic that is fundamental to his identity or conscience, being his genuinely held faith, and in particular his genuine and ongoing desire to proselytise.
I have considered the conduct of the applicant in Australia. However, on the basis of my findings above I find that this conduct has not been engaged in by the applicant for the sole purpose of strengthening his claim to be a refugee, but as an expression of his genuinely held beliefs. I have therefore not disregarded this conduct.
Having carefully assessed the claims of the applicant, his evidence and that of his witnesses, and the country information against the requirements, I find that it is established that the applicant is a refugee.
Conclusions
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Sean Baker
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 5354

10 December 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction

Natural Justice