1720413 (Refugee)

1720413 (Refugee) [2021] AATA 2605 (13 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1720413
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:C. Packer
DATE:13 May 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 13 May 2021 at 6:17pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – Shia religion – high profile academic and Shia community member – religious lectures and videos – further qualification obtained in Australia – real chance of drawing adverse attention from militants – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration (the delegate) to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).
The review applicants are a family group comprising the first named applicant (the applicant) aged [age], his wife (RA2) aged [age], and their youngest child/daughter (RA3) aged [age], all of whom are citizens of Pakistan, and who were born and always lived in Karachi when in Pakistan.
The applicant first arrived in Australia [in] July 2011, as a holder of a Student visa. He subsequently departed Australia and returned several times, and he travelled on a Pakistan passport. The second and third-named applicants first arrived in Australia [in] February 2013.
On 15 February 2016 the applicant applied for a Protection (Class XA) visa. On 23 August 2017 the applicant attended an interview with a delegate. On 1 September 2017 the delegate refused the application, and on 4 September 2017 the applicant applied for review of the delegate’s decision.
On 12 May 2021 the applicant attended a Tribunal hearing.
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether the applicant is entitled to complementary protection. A summary of the relevant law is set out in Attachment A. The applicant’s narrative is centred on his Shia Muslim religion and his elevated profile as a prominent religious scholar in Karachi and Pakistan. After considering his evidence and the material before the Tribunal, I accept that he has a well-founded fear of persecution in Pakistan arising from his religion as a high profile Shia Muslim. My assessment follows.
CONSIDERATION OF CLAIMS AND EVIDENCE, FINDINGS
Background
The applicant’s protection visa application provided some basic background information, and the applicant supplemented this with further details in the review and at the hearing.
In the written application, the applicant stated that he was born and raised in Karachi, Sindh province, Pakistan. He completed his schooling and tertiary studies in Karachi, and he showed he lived in Karachi until his departure in July 2011. He speaks Urdu and English. His parents are deceased, and he has two brothers and two sisters, all in Pakistan. He also has two sons and a daughter not included in his application.
At the hearing the applicant said his brothers and sisters continue to reside in Karachi. Nonetheless, they seek to hide their religious identity and have problems with employment and renting property. His daughter is currently [studying]. Of his children (all in Australia) not included in the application: a son is an Australian citizen; a son [holds] a [ visa]; a daughter is studying [and] holds a [visa].
The applicant’s protection visa application showed several trips to Iran, Iraq for pilgrimage, and travel to [other countries].
Country information[1] shows that Pakistan is a Muslim-majority state located in South Asia and is the sixth most populous country in the world, with the 2017 census[2] revealing a population of 207.8 million, showing an increase of 75.4 million people in 19 years. Over 31% are aged between 15 and 29. Pakistan is a Federal Islamic Republic comprising four provinces (Balochistan, Punjab, Sindh and Khyber Pakhtunkhwa), and two autonomous regions, Gilgit-Baltistan, and Azad Jammu and Kashmir (AJK). Just over half the population of Pakistan lives in Punjab (110 million people), 23% live in Sindh (47 million), over 14% in Khyber Pakhtunkhwa (30 million), just under 6% in Balochistan (12 million), just over 2% in the former FATA (now part of Khyber Pakhtunkhwa) (4 million), and less than 1% in Islamabad (2 million). Punjabis form the largest ethnic group (44.7%), followed by Pashtuns (15.4%), Sindhis (14.1%), Saraikis (8.4%), Mohajir (Urdu-speaking immigrants from India, 7.6%), Balochi (3.6%), and others (6.3%, including Hazaras who number at less than 1%). Urdu and English are the official languages of Pakistan.
[1] The Department of Foreign Affairs and Trade (DFAT) report: DFAT Country Information Report Pakistan, 20 February 2019, (the DFAT report Pakistan) [
[2] The Express Tribune, 6^th census findings: 207 million and counting, 25 August 2017, [>
Country information[3] shows that the Sindh provincial capital, Karachi is the largest city in Pakistan with a very large population: 14.9 million (2017 census) but realistically between 20-25 million.
[3] EASO Pakistan Security Situation report, October 2020 [ of claims
The applicant claims to fear harm in Pakistan from anti-Shia and non-State agents. He claims he was exposed to religious hate mongers, sectarian tension, and a life-threatening situation for himself and his family in Pakistan because of his profile, including because:
·he is a Shia Muslim and a professional person/teacher at university: and he had faced workplace discrimination
·he organised gatherings at friends’ houses and delivered religious lectures and made religious videos
·he was involved with social welfare activities within his Shia network
·his [relative] was gunned down in October 1999, and Shia friends had been murdered in 2012 and 2013
·he is a Mohajir
·his profile would be heightened as a result of having gained a [qualification] in Australia and as a returnee from a Western country
In submissions the applicant claims he has a well-founded fear of persecution in Pakistan arising from:
- Religion: He fears anti-Shia agents including Taliban and Daesh will harm him because he is a high profile Shia
- He fears anti-Mohajir agents will harm him because of his Membership of a particular social group, of Mohajir
Evidence
The evidence before the Tribunal includes the following material:
- the applicant’s Protection visa application form lodged on 15 February 2016, which includes reasons for seeking protection in Australia
- passport pages, his CV and qualifications
- submissions and country information
- statements, letters of support
- photos and related videos, ATO documents, Facebook pages, qualifications
- documents concerning the death of his brother in law
- the Protection visa decision record (‘delegate’s decision’) dated 1 September 2017, which is the subject of this review (he provided a copy to the Tribunal)
- the application for review, which has attached to it a copy of the delegate’s decision
The applicant appeared before the Tribunal to give evidence and present arguments, on 12 May 2021. The hearing was conducted in English. Witnesses gave evidence: [names deleted].
At the start of the hearing I asked whether he was well and able to talk about his claims, and he stated he was. During the hearing he appeared to fully understand questions and he gave coherent answers and explanations. I assess that he was competent to give evidence and had a full opportunity to put forward his story and arguments.
Assessment of claims: credibility
The applicant claims to be a national of Pakistan. I have sighted copies of his Pakistan passport. All the available evidence, including the applicant’s oral evidence and familiarity with Pakistan, supports his claim to be a Pakistan national. Pakistan is therefore the receiving country for the purpose of assessing both the applicant’s protection claims, and his claims against the complementary protection grounds. Having considered the material before the Tribunal including the applicant’s evidence given at the hearing, I accept he has the identity he claims. I similarly accept that the other applicants are Pakistan nationals.
His religious activities and profile in Pakistan
At hearing I found the applicant to be credible. The applicant claims and I accept that his name, identity documents and religious practices all identify him as a Shia. In the applicant’s narrative he is a well-known Shia from Karachi Pakistan. His profile as a well-known Shia man is strongly supported by his witnesses at hearing who stated the applicant had been socially active and well-known in the Shia community in Pakistan and in Australia.
I find that the applicant has been active in the Shia community both in Karachi largely before he departed Pakistan in July 2011, and in Australia since his arrival. He has made and posted a large number of videos online, and those videos have all had a number of views. I accept that in the past and ongoing he organises gatherings at friends’ houses and delivers religious lectures, and is involved with social welfare activities within his Shia network. I accept too, that well-known Shia community members have met and know him.
I accept that he and his family are Mohajirs. I cannot discount the possibility that as a Shia he had faced workplace discrimination while working as a professional person/teacher at university.
He provided to the Tribunal documents and information concerning the shooting murder of his brother in law in October 1999. I accept that this murder occurred, and I accept that the applicant has had some friends murdered in past years.
In sum, I accept his claims that:
·he is a Shia Muslim and a professional person/teacher at university: and he had faced workplace discrimination
·he organised gatherings at friends’ houses and delivered religious lectures and made religious videos
·he was involved with social welfare activities within his Shia network
·his [relative] was gunned down in October 1999, and Shia friends had been murdered in 2012 and 2013
·he is a Mohajir
·in Australia he has continued his academic and religious activities
·his family are Shia Muslims and Mohajirs
At hearing he stated that if he returned to Pakistan he would first return to live in Karachi, but he would never relocate to another place in Pakistan, rather, he would look to promptly migrate to another country.
Conclusion
I now assess whether, on the basis of the foregoing findings of fact, the applicant’s future conduct if he returns to Pakistan, and relevant country information, the applicant has a well-founded fear of Convention-related persecution, now and in the reasonable foreseeable future.
Having considered the claims and evidence I find that the applicant is a Pakistan national. All of his close family bar a son are Pakistan nationals and are in Australia: his wife and daughter included in the application; and an Australian citizen son, a son on a [visa], and a daughter on a [visa]. The applicant is a mature, married Muslim Shia man, of the Mohajir ethnic group, who comes from a large family in Karachi, Sindh province. He is well-educated having completed [qualifications] at University in Karachi, and a [qualification] in Australia (2011 to 2015). He has also performed high level work in private industry (2002 to 2004 and 2009 to 2011) and at University (1993 to 2008). All of his siblings and their families reside in Pakistan.
He first arrived in Australia on a Student 574 visa [in] July 2011 and he studied at University. Family members joined him in 2013. He has had six trips out of Australia. He has now been in Australia, living with his close family independently, for ten years.
Karachi is where he last resided and where close family continue to reside, and so I find it is most likely that if he returns to Pakistan he would return to Karachi.
His travel to Pakistan as a returnee from the West
I am satisfied the applicant and his dependants will be able to travel to and enter Pakistan without difficulty. As discussed at hearing, he is a Pakistan national who last departed Pakistan legally with a genuine Pakistan passport, and the Tribunal sighted a copy of his Pakistan passport that is current to [2024]. His wife and daughter also have current Pakistan passports.
He would enter Pakistan as a Pakistan national who had last departed that country legally and in the usual way, and as a man who had lived away for a number of years but was now returning on a Pakistan passport. The DFAT report Pakistan[4] shows that in such circumstances he would be typically processed like any other citizen returning to Pakistan, or as an involuntary returnee he would typically be questioned upon arrival to ascertain whether he left the country illegally, or is wanted for crimes in Pakistan, or had committed any offences while abroad. Those who left Pakistan on valid travel documentation and have not committed any other crimes are typically released within a few hours. Having considered his personal circumstances and in light of country information I find there is not a real chance he will face serious harm, or for complementary protection purposes a real risk of significant harm, in Karachi because of being a returnee (whether or not involuntary) who had attempted to migrate and was a failed asylum seeker and had lived in a western country.
Karachi environment including Mohajir ethnicity
[4] Para 5.37 to 5.42
In my foregoing findings I accept that the applicant and his family are Mohajirs. As discussed at hearing, country information[5] shows that Mohajirs are notably present in the city of Karachi where they reportedly make up to half of the population and constitute the largest ethnic group. The DFAT report Pakistan[6] also states the MQM has been a large and important political party in Karachi which advocates the rights of Mohajirs:
3.163 MQM is a Karachi-based secular political party which advocates the rights of ‘Mohajirs’, or Urdu-speaking Muslim migrants (and descendants) from India. MQM also has power bases in Hyderabad and Nawabshah districts, Sindh. Prior to the July 2018 general election, MQM exercised considerable political influence in Sindh holding 50 seats in the 167-seat Provincial Assembly of Sindh. Its influence has diminished in the wake of the general election: it now holds 21 seats in the Provincial Assembly. It remains a political force, but leadership and faction conflicts have affected performance. MQM’s representation of Karachi’s Urdu-speaking community often brings it into conflict with the Sindh-based Pakistan People’s Party and Pashtun parties.
[5] Immigration and Refugee Board of Canada report, Pakistan: Situation and treatment of Mohajirs…, 5 July 2012, [ DFAT report Pakistan, para 3.163-3.169
Country information including information provided by the applicant shows that broadly, the security situation in Pakistan is complex, volatile, and affected by domestic politics, politically motivated violence, ethnic conflicts, sectarian violence, and international disputes with India and Afghanistan. But as discussed at hearing, in recent years the security (and political) situation in Karachi has changed significantly, and particularly since he lived there. My discussion encompassed country information[7], including reports provided by the applicant, that show:
- While militant groups remain active across Pakistan and authorities rarely investigate alleged human rights violations by security forces, the overall security situation across Pakistan and including in Karachi and Sindh province has improved since the Pakistan armed forces launched several security operations. Observers credit Operation Zarb-e-Azb, its successor Radd-ul-Fasaad, and the government’s National Action Plan (NAP) with a significant reduction in the number of violent and terrorism related attacks in Pakistan. Militant groups such as the Taliban (TTP) have periodically attacked MQM members because of their secular ideology, but such attacks have been much less frequent in recent years.[8]
- DFAT assesses that “Although counter-terrorism operations have succeeded in suppressing terrorism-related violence, societal intolerance and religious extremism appear to have increased, suggesting the underlying causes of violence remain. DFAT assesses, despite a reduction in levels of violence, sporadic large-scale terrorist attacks are likely to continue to occur, against a background of ongoing smaller-scale attacks (albeit at a reduced tempo).”[9]
- Security forces have sought to tackle violent and organised crime across the country, particularly in large urban centres such as Karachi. Major cities including Karachi and Lahore generally have higher levels of violent crime than Islamabad, due to the large number of security personnel deployed in Islamabad relative to its population. The Rangers (a federal paramilitary force) and police have arrested large numbers of people allegedly involved in kidnap, robbery and extortion in Karachi in recent years. DFAT assesses that, while verifiable data remains unavailable, serious crime across Pakistan and especially in Karachi has reduced significantly since Operations Zarb-e-Azb and Radd-ul-Fasaad, and the NAP.[10]
- In 2013 the Rangers commenced operations in Karachi that has significantly reduced political violence.[11] The MQM leaders claimed the Rangers disproportionately targeted MQM with enforced disappearances, extra-judicial killings, and detentions. But subsequently, MQM reports a decrease in numbers of new enforced disappearances in the context of an increase in enforced disappearances across Pakistan.[12] MQM’s representation of Karachi’s Urdu-speaking community often brings it into conflict with the Sindh-based Pakistan People’s Party and Pashtun parties. The level of anti-MQM rhetoric, discrimination and violence reflects popular perceptions of the Pakistan-India bilateral relationship.[13]
The EASO COI report Pakistan, October 2020, discussed the security situation in Sindh province including Karachi, and in relation to 2019 and 2020 shows that overall there had been decreasing terrorist incidents in Karachi. Key points are:
·In 2019 there had been 10 terrorist incidents in Karachi with 14 killed and 2 injured.[14]
·From 1 January to 31 July 2020, ACLED coded 12 violent attacks against civilians in Sindh (of 28 violent events, 15 events were in Karachi).[15]
·In the first seven months of 2020, Pakistan Institute for Peace Studies (PIPS) observed 13 overall incidents of which 11 were mentioned as ‘terrorist attacks’ in the province, and most ‘terrorist attacks’ took place in Karachi and Larkana. Pakistan Institute for Conflict and Security Studies (PICSS) also counted 11 militant attacks, from 34 incidents of violence in the province.[16]
[14] Pp70
[15] Pp91
[16] Pp92

The applicant does not claim to have had involvement with the MQM or any political involvement in Pakistan or in Australia. I find that should he return to Pakistan and in the reasonably foreseeable future, he would not have any more political involvement than he now has. The applicant and his family are Mohajirs, however, I find that as a Mohajir he has not faced harm or discrimination rising to the level of serious harm before he departed Pakistan, and on return to Karachi he does not face a real chance of serious harm (or for complementary protection purposes a real risk of significant harm) now and in the reasonably foreseeable future. He is an Urdu and English speaker, however, Urdu and English are the official languages of Pakistan, and Urdu is widely spoken in Pakistan and particularly Karachi.
Muslim Shia religion
The DFAT report Pakistan[17] discusses Shia in Pakistan and notes that 10-15% of the population identify as Shia. Significant numbers of Shia live throughout Sindh including in Karachi. In respect of employment, education and political participation DFAT states in part:
3.96    DFAT has no evidence of systemic discrimination against Shi’a in gaining employment in the public service, police, military or the private sector. However, some Shi’a perceive discrimination against Shi’a gaining roles at higher levels of some organisations. Overall, DFAT assesses that Shi’a who are not Hazara or Turi generally do not face discrimination based on their religious affiliation when seeking employment. Low-level anti-Shi’a discrimination does occur at the community level, and can manifest in violence or damage to property.
3.97    Sunni and Shi’a students attend the same public and private education institutions. Students must declare their religious affiliation for entry into both public and private institutions, including universities. Religious bias in public education predominantly affects non-Muslims, but Shi’a groups have raised concerns that the public school syllabus and prescribed textbooks contain depictions of Sunni prayer rituals, and omit prominent historical Shi’a figures.
3.98    Shi’a are well represented in parliament and regularly contest elections for mainstream political parties. DFAT assesses that there are no barriers preventing Shi’a from actively participating in democratic processes in Pakistan due to their sectarian affiliation.
[17] At 3.90-3.112
While the applicant claims, and I accept, that he had been discriminated against in his academic career, I find such discrimination does not rise to the level of persecution.
The applicant fears sectarian-motivated violence against him and his family in Pakistan. DFAT discusses the sectarian violence targeting Shia individuals, places of worship, shrines and religious schools, and how Shia continue to face a threat from anti-Shia militant groups, including LeJ, Sipah-e-Sahaba Pakistan (SSP), also known as Ahl-e-Sunnat-Wal-Jamaat (ASWJ), LeJ al-Alami, and other factions of the TTP. DFAT broadly assesses in Pakistan:
3.104 Overall, DFAT assesses that most Shi’a in Pakistan face a low risk of sectarian violence. This risk can vary depending on geographic location and for members of specific groups (see Hazaras and Turis). High-profile Shi’a face a moderate risk of violence, as they are more likely to be targeted.
With respect to Karachi, DFAT assesses in part:
3.105 Karachi has historically experienced high levels of violence due to rival ethnic, sectarian, political, business and criminal interests. The NAP and the highly visible presence of the paramilitary Rangers, have led to a significant decrease in violence, including sectarian violence. Sunnis and Shi’a live throughout the city, although concentrations of Shi’a, particularly Harazas can be found in Abbas Town, Hussain Hazara Goth, Mughal Hazara Goth, Rizvia, Ancholi, DHA Gizri, Pak Colony and Manghopir. According to the SATP, at least two sectarian attacks targeted Shi’a in Sindh province in 2017, resulting in at least 90 deaths, while one attack causing one death occurred between 1 January and 6 May 2018. DFAT assesses that a low level of sectarian-motivated violence in Karachi exists within the context of a moderate level of overall violence. The sustainability of recent security force efforts to reduce violence in Karachi is not yet clear. Karachi has historically experienced high levels of violence due to rival ethnic, sectarian, political, business and criminal interests.
The EASO COI report Pakistan, October 2020, discussed the victims of ‘terrorist attacks’ and security operations throughout Pakistan during the year 2019, and assessed that Shia religious scholars/community had faced 11 incidents, with 32 killed and 72 injured.
In light of the country information, including the reports provided by the applicant, I find there continues to be sectarian-motivated violence against Shias in Karachi and throughout Pakistan. The DFAT report Pakistan states that in Karachi there is a low level of sectarian-motivated violence albeit within a moderate level of overall violence; and in cities in Punjab such as Lahore and Islamabad there is a low risk of sectarian violence.
However, the DFAT report Pakistan states that in Pakistan “High-profile Shi’a face a moderate risk of violence, as they are more likely to be targeted.”
While the applicant does not have a readily-identifiable nation-wide profile as a Shia scholar or academic, he does have an elevated profile as an academic (who is a Shia) that grew during his University employment from 1993 to 2008. He was known as a Shia at University and his University positions brought him to the attention of faculty and students at the time, and his evidence is that this resulted in warning phone calls. His subsequent Australian qualification has ostensibly added to his reputation and profile as a Shia academic. I accept that despite his long residence in Australia, his University employment and activities would be remembered by many influential and important people he met and lectured to and dealt with over his 15 years in academia.
Additionally, he has also participated in religious discussions and given religious lectures both in Pakistan and Australia. This includes discussion groups of up to 20 people, Facebook posts that have attracted growing interest, and in particular videos he has posted that have attracted views and growing interest. At hearing the applicant discussed the content of the videos and explained that he discussed a range of religious topics, including historical references that while not in any way critical of Sunnis, would certainly attract the adverse interest of Wahhabis and anti-Shia activists. As well, he has undertaken several pilgrimages to Iraq and Iran that would reasonably add to his profile as a devout and active Shia man.
In sum, I give great weight to the applicant’s evidence at hearing that shows he is a mature and educated intellectual, a clear thinker and persuasive Shia speaker who would reasonably attract the adverse attention and enmity of anti-Shia activists, factions and/or groups. With his academic background and easily accessed Facebook and online videos that seek to persuade and provoke religious discussion with a Shia and Shia/Sunni historical focus, I give him the benefit of the doubt and accept that he has an ongoing public profile as a proponent of the Shia religion. His activities and videos may well be viewed by anti-Shia activists as having provocative pro-Shia and anti-Sunni sentiments. I therefore accept that the applicant has been and is a high profile Shia academic and scholar. I find that if he returns to Pakistan he would continue to be a high profile Shia academic and scholar in the reasonably foreseeable future. I find that the nature of his Shia academic lecturing and activism would readily bring him to the adverse attention of anti-Shia activists throughout Pakistan including Punjab province.
After considering the country information, the applicant’s high profile as a Shia scholar and active Shia community member, his past and future work and likely ongoing activities, I accept that there is a real chance he would come to the adverse attention of militants, anti-Shia activists or their agents, or elements of the Sunni community such that he or family members would be targeted and seriously harmed. In light of the DFAT report Pakistan’s advice that in Pakistan “High-profile Shi’a face a moderate risk of violence, as they are more likely to be targeted”, I find that the real chance of serious harm includes cities in Punjab province and throughout all of Pakistan.
For the purposes of s.5J(1), I find the applicant fears being persecuted for reasons of religion. I find the real chance of persecution relates to Karachi and to all areas of Pakistan, and there are no effective protection measures available to him in light of the country information about the low effectiveness of police/authorities in Pakistan. The real chance of harm to the applicant amounts to serious harm in that he faces a threat to his life or liberty, significant physical harassment and/or ill-treatment (s.5J(5)). The s.5(1)(a) reasons I have outlined are the essential and significant reasons for the persecution that would involve systematic and discriminatory conduct.
For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s.36(2)(a).
The Tribunal is not satisfied that the other applicants are persons in respect of whom Australia has protection obligations for the purposes of s.36(2)(a). However, the Tribunal is satisfied that wife and daughter are members of the same family unit as the first named applicant for the purposes of s.36(2)(b)(i). As such, the fate of their application depends on the outcome of the first named applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa are met.
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
(i) that the first named applicant satisfies s.36(2)(a) of the Migration Act; and
(ii) that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
C. Packer
Member

ATTACHMENT A – RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee
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 themself 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.
Complementary protection
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 a protection 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 the applicant 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’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(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 2605

13 May 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness