1724257 (Refugee)

1724257 (Refugee) [2020] AATA 3737 (29 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1724257
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Denis Dragovic
DATE:29 July 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 29 July 2020 at 1:00pm
CATCHWORDS

REFUGEE – Protection visa – Pakistan – father being a tribal chief – family being well known and wealthy – political opinions – supporter of the Pashtun cause – low level political commitment – family has never been harmed – decision under review affirmed
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 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 18 September 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Pakistan, applied for the visa on 15 March 2016. A copy of the applicant’s Pakistani passport was available on the Departmental file and was reviewed during the hearing. I find that the applicant is a citizen of Pakistan.
The delegate refused to grant the visa on the basis that the applicant’s claims were not believed. The delegate did not accept that the applicant was from a wealthy family; that his father was a malik, ANP supporter and a member of a peace committee; or that the applicant campaigned for the ANP; or that his brother owns a school. Instead, the delegate accepted that the applicant has lived in Australia for several years and ultimately found that the applicant does not engage Australia’s protection obligations.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Summary of the applicant’s claims: The applicant claims that he fears returning to Pakistan for reasons of his family’s circumstances including his father being a tribal chief, his family being supportive of liberal values, his father being a member of the Awami National Party and the family being well known and wealthy. The applicant also fears harm for reasons of being a supporter of the Pashtun cause.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Evidence and findings of fact
The applicant claims to have lived throughout his life in [Town 1], Khyber District, Pakistan. He claims that even while studying in Peshawar he would travel back home on a daily basis. The applicant’s father [and siblings] continue to live in this same address. Two other brothers live outside of [Town 1]. I accept this as fact.
The applicant has [number of siblings]. One sister teaches at a girl’s school. One brother is a principal of a private co-educational school which he established, [a number work] in the family’s [factory], [two] are unemployed. The applicant claims that his two unemployed brothers live in Khyber Agency outside of [Town 1]. I accept this as fact.
The applicant is Pashtun and because the Taliban are also Pashtun, he fears that others may perceive him to be a supporter of the Taliban. I accept that he is visibly and audibly Pashtun and as such identifiable as Pashtun.
The applicant claims that he was sent abroad to complete his studies because of fears of the security situation. He claims that the intention was to send him to Australia temporarily until the situation improved. He claims that the situation did not improve, noting the 2014 attack on the Peshawar army run primary and secondary school in which 150 people were killed and the attack on the Bacha Khan University in January 2016. I accept that the applicant was, in part, sent abroad to complete his studies due to the security situation in August 2012 when he applied for his student visa.
I asked whether the applicant has had any family members killed, to which he replied only his [cousin]. The applicant’s cousin, he claimed, was murdered in September 2012. He explained that there was a [sports] ground [near] their house. While his cousin was crossing the ground, he was approached by two armed individuals [who] shot him. They did not pursue anyone else. As they were leaving, they fired their guns into the air. There was no warning or threats before the incident. I accept this as fact. Considering that there were no warnings or threats before or after and no further actions against his family, I find that this incident targeted his cousin for reasons not associated with the wider family.
The applicant claims that his entire family are in constant danger. He doesn’t know when they will be attacked. He claims that his brother, who is the principal of the school, has received a threat over the phone demanding that he shut the school, otherwise he would face consequences. The applicant claims that the person who called him had details about their family. He claims to have only learned about this during a call he had with his brother a few days prior to the hearing as he hasn’t talked much to his brother before. He claims that the threat occurred in February 2020. When his brother received the call, he didn’t know who had called him, but was only told that co-education is “against our culture”. I have doubts about the veracity of this claim but give the applicant the benefit of the doubt and accept that a threat was received.
The applicant explained that when the Tehrik-i-Taliban Pakistan (Taliban) had a heavy presence in the area, the Taliban demanded a bribe from his family. The bribe demanded by the Taliban was in approximately 2009-2010. He said that all businesses were approached. He recalled that they didn’t give any money because business was bad and the Taliban accepted the explanation but said that they would come back later, though they never did as the government’s security operation against the Taliban began. I accept this as fact.
He also said that they received a threat when the Taliban came to their village and saw that they had an Awami National Party (ANP) flag on their house. His father was warned to remove it and instead put up the Taliban flag. After the warning they did remove the ANP flag, but they did not put up a Taliban flag. I accept this as fact.
The applicant stated that other than the bribe, his father has not been confronted.
The applicant claims that his father has been a Malik, a hereditary chief, since 2000 and a member of a peace committee since 2009. He said that members of the peace committee are mostly Maliks. He added that there haven’t been attacks on peace committee members in their areas but there is always a risk to the peace committees. He believes that the reason an attack didn’t happen was because the military operation against the Taliban was launched sooner in their area than in other areas, that their area is close to Peshawar and also because their area had a supply line running though it into Afghanistan and so it was important to secure. I accept this as fact.
The applicant claimed that his father was active with the ANP. He explained his father’s role in the ANP as campaigning during national elections, which are held every five years, and hosting local ANP leadership meetings in his home. He claimed that during every election his father participated and encouraged people to support the ANP. Last year, for the first time, their area was allowed to have a member in the provincial assembly for which elections were held. The applicant said that ANP meetings would be held in various houses and when it came to their area it was held in their house. The applicant stated that his father is still active in ANP meetings. I accept this as fact.
The applicant claims to have supported his father when ANP meetings were held in their house and when posters were being made. He would organise food for participants and distribute posters in the village. He said that he would also give flags to the people to put up on their houses. He said that he was never a member of the ANP, though his father was. I accept this as fact.
The applicant claims that his tribe opposed the Pakistan Taliban’s takeover of his areas and that because of this opposition they are a target. I accept that his tribe opposed the Taliban.
The applicant claims that the ANP’s ideology is that there should be equal rights between men and women and that is why his brother runs the co-educational school. I accept that the ANP has such an ideology and that his brother running the co-educational school is representative of such values.
The applicant claimed in his submission that he often spoke up among his community about the rights of women. I challenged him, noting that he was young at the time and asked how he had done this. He said that he had expressed his views among friends and school mates. He confirmed that he didn’t speak at any ANP meetings. I accept that he spoke to his friends and school mates about his views on the rights of women.
The applicant claimed that his father donated land to the government to build a female primary school. The land was donated in [year] and the school has been built on the land. The applicant’s sister currently teaches at the school. He fears that this donation would contribute to a perception of his family supporting the government and hence putting him and his family at risk. I accept that the applicant’s family donated the land upon which a girl’s school was subsequently established.
I asked the applicant if he has undertaken any political activity since he arrived in Australia. He said that there was a demonstration by the Pashtun Tahafuz Movement (PTM) [which] he attended. I accept that in the nearly eight years the applicant has been in Australia, he has expressed his political views by attending one demonstration.
Considerations
Risks arising from his family and tribe
I first turn my mind to the risk the applicant faces as a result of his association with his family. I put to the applicant that his father has been the Malik (hereditary chief) since 2000 and nothing has happened to him for over a decade while he was still in Pakistan and that his siblings continue to live in Pakistan without any claim that they have been attacked. The applicant responded that the position of Malik is hereditary and that this puts his family at continued risk. He added that as Malik his father interacts with the government and the army and the militants don’t like that.
The applicant’s father’s membership of the ANP and as a host of party meetings was claimed to put him at risk. I note that his father has never been harmed nor has the family house been targeted. Even when the Taliban controlled the area, the applicant’s family was simply asked to remove the flag, which they did, and experienced no further repercussions.
The co-educational school, which was established in 2016, is currently closed because of COVID-19 but had not been attacked or received a threat prior to February 2020 nor since. The applicant suggested that the reason the school had operated without receiving any threats until recently was because initially it only had young children as pupils but as they grew older the extremists may have objected to older children studying together. This is one possibility. I acknowledge that co-educational schools are at risk, as noted by the applicant and supported by country information provided in the pre-hearing submission, but I suggested to the applicant that his association with the school is tenuous and that if someone wanted to stop co-education they would destroy the school and his brother, as principal, would be at risk, with the applicant being at a much lower risk. The applicant responded that the phone call threat his brother received included the identification of the applicant living in Australia. He said that his brother was surprised that they knew so much. He said that they threatened the whole family, including his father, brothers and sisters. They didn’t specifically threaten him but mentioned the whole family.
The applicant also noted that his family has money. They own a [factory]. They were able to send one sibling to Australia for his education. They run a private school and were able to donate land for a government school to be built. He believes that they are well known. Despite having such wealth and being well known, none of the family has been kidnapped or harmed. The Taliban did seek a bribe. The family did not pay the bribe and there were no repercussions to not paying the bribe. While the past will not necessarily be repeated, it can be representative of the future. That, during the worse period of insecurity, the family did not face harm because of their wealth or social standing is indicative of the circumstances they will face in more secure times.
In considering the circumstances to which the applicant will be returning to and in particular the risks arising from his family, I note that none of his family has been harmed even during the period when the Taliban controlled their area. I found his cousin’s killing to be unrelated to the family. His father’s activities, as with his brother’s, are related to him as a part of the family, but the father and brother would bear the brunt of any risks, and yet nothing has happened to them other than the brother receiving a threat. While a threat was received, and the message included a mention of the applicant, this indicates that those who made the call knew of the family’s circumstances. This is not surprising as the applicant’s father is a malik and as such would be well known to the community. It is not indicative of the applicant being at risk. Even though the family is financially well off, well known and known to be liberal, they have not faced harm either arising from their personal activities discussed above (such as, but not limited to, the donation of land, teaching female students, being a member of a political party) nor for the reason of being members of a tribe that was against the Taliban. In addition, the applicant’s father is the chief of his clan within the tribe, yet they did not experience harm. When considered collectively, including the father’s political and tribal activities, country information provided by the applicant indicating an uptick in violence against peace committee members, his brother’s educational activities and their wealth and social standing, and considering that no harm has befallen those family members most at risk, I find that the applicant, who is not distinguished as being an heir to the family responsibilities of being a malik or manages the [factory] or runs the school, despite being mentioned in a threat, does not face a real chance of serious harm or a real risk of significant harm arising from his family’s activities or tribe’s actions against the Taliban.
Risk from his political opinions
I now consider the applicant’s political opinions. He said that he agrees with the PTM, which he described as a voice that supports raising information of atrocities against Pashtuns. He claims that they represent the missing people who have been taken by the army. I asked him why he hasn’t been involved in these movements over the past seven years in Australia. He said that the ANP doesn’t have any presence in Australia and the PTM is new. He explained that the PTM has had two demonstrations in Melbourne to date and he attended one. He accepted that there were other ways that he could have been involved but when he learned of what the PTM is doing he decided to support them.
The applicant claimed that he was and remains strongly opposed to the political and religious beliefs of the Taliban and other extremist groups, but he acknowledged that he hasn’t expressed these views in the last seven years since he has been in Australia. He explained that this was because he didn’t have a platform, and he had not been provided with the opportunity to express his views.
I find the applicant’s commitment to social and political causes low level. While he may believe them, he hasn’t shown an interest in pursuing them other than attending a recent march.
In considering the risk of harm a low level of engagement may lead to, I note that the applicant’s father has been involved as an active member of a political party that opposes the Taliban and he has not been harmed.
The applicant also fears the army, who are purportedly targeting the PTM. The applicant claims that many, or alternatively he claimed, hundreds of members of the PTM were killed and put in jail. He fears the same outcome. I put to him that there is no evidence that any members or supporters have been harmed but rather their leaders have been jailed. He responded by giving examples. He said that Arif Wazir May was killed in 2020, as well as Arman Luni, a professor in Quetta and Hayat Prighal, who lived in Dubai, but was detained and tortured when he returned to Pakistan. The applicant acknowledged that these men were well known leaders of the movement. As noted to the applicant, leaders of the movement, such as those noted by the applicant, were the focus of the army, and not general members.

The applicant submitted country information relating to the PTM. The articles noted: the arrest of the ‘leadership’ of the PTM; online censorship; the arrest of Manzoor Pashteen (the young leader of the PTM); the arrest in Islamabad of those protesting for his release, who were subsequently released on bail; two leaders who were elected as politicians were arrested and spent four months in detention; ‘the group has mostly been allowed to hold protests’; the group has been maligned as traitors and agents of the enemy; the murder of Arif Wazir, a Pashtun political leader; the arrest of ‘PTM activist’ Hayat Preghal who is the social media lead for the PTM; and the arrest of Gedaman Pashteen who has been ‘peacefully using his Twitter account calling for equality and justice for…the Pashtun community’. I had put to him that news is being suppressed, leaders are being arrested but general supporters are not being targeted. He agreed that the media had been blacked out.
I accept that the leadership of the PTM is being targeted and that the army is waging a concerted effort against this new movement. But the applicant is not a leader nor into the reasonably foreseeable future would he become one. He has participated in one protest while in Australia, and he has not shown support for the Pashtun cause in other ways despite modalities being available to him over the seven years that he has lived in Australia. This suggests that the applicant could be described as having a very low level of commitment to the PTM.
I accept that he may participate in a very limited number of protests organised by others if he were living in Pakistan. I find that he would do so only if convenient to his location and circumstances. Country information provided by the applicant shows that the PTM has many protests, of which the only indication that some members were arrested was one incident in Islamabad following which those arrested were released on bail. I also note that country information provided by the applicant states that the ‘group has mostly been allowed to hold protests.’ Overall, considering that the level of support for the PTM or the broader political opinions he claims to embrace amounted to, over a period of seven years in Australia, free from fear, the attendance of one protest, I find that, was the applicant to continue his very low-level support of the PTM, he does not face a real chance of serious harm or a real risk of significant harm for reasons of his political opinion.
The applicant fears that his progressive views are easily identifiable through visible characteristics including his skin colour, dress and hair style. He said that wearing pants and his hair tied back would put him at risk, and that people would discriminate against him and look differently at him. He said that people in his area are very narrow minded. He claimed that when he was attending college, he would wear pants, a shirt and have his hair tied and that led to discrimination including having bad things said to him for not wearing traditional dress. While I accept that this has occurred in the past, I do not accept that having bad words said to him amounts to serious harm or significant harm. The applicant did not provide any additional evidence that skin colour, not wearing traditional clothes or having long hair could lead to serious or significant harm. For this reason, I find that even was he to choose not to wear traditional clothes or keep his hair long, he does not face a real chance of serious harm or a real risk of significant harm.
The applicant also raised concerns about the general standing of Pashtuns in other parts of the country. The applicant did not express a need or interest in moving to other parts of the country. The situation of Pashtuns in those areas is not relevant to the specific circumstances the applicant faces. As such, I only assessed the circumstances the applicant faces upon return to his district where he and his family have lived their entire lives.
The applicant fears being targeted for reasons of having spent an extended period of time in Australia. I read to the applicant a section from the DFAT report on Pakistan:
DFAT assesses 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.
He responded that their tribal area is very backward compared to other parts of Pakistan. It might be the case with other returnees who don’t have political views or affiliations with political groups, but he is at risk because of his background. While I accept that the tribal areas of Pakistan are more traditional, the applicant’s specific circumstances of being from a wealthy family who are known supporters of the ANP which has moderate views are those that would be imputed upon someone returning from the West (i.e. that they are wealthy or have moderate views). That the applicant and his family have not experienced harm as a result of these same traits in the past suggests that the mere fact that he would be returning from overseas would not exacerbate any risk he faces. As such, I find that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from having lived in a Western country for an extended period of time.
Ethnicity
The applicant said that the government does not say that all Pashtuns are militants, as the government mainly deals with parliamentary affairs. Instead, he fears the army.
The other threat he fears is the ‘good’ Taliban whom the army coordinates with. The applicant claims that the army uses so called ‘friendly Taliban’ against people who talk down the army. I accept this as fact. I asked if there was a reason why he would be worried about this as his father is aligned with the army. He said that his family activities are not aligned with the army but rather the government, but the army has control over the resources. He admitted, though, that his father has not done anything against the army. The applicant explained that the army doesn’t like Pashtun voices coming to the fore.
I read to the applicant information relevant to the applicant’s circumstances from the DFAT report on Pakistan:
Pashtuns in Pashtun majority areas or locations where individuals have family or social connections face a low risk of official discrimination.
The applicant responded that the statement is not correct. He explained that the army are deployed to Khyber Pakhtunkhwa (KPK) and they harass people, search people, ask questions about where you’re going. I put to him that the army had withdrawn from his area. He said that the army haven’t left completely and that they still retained some check points. He said the local force, the Khazara, are under local control but the Frontier Constabulary Corps is a branch of the army.
The applicant provided country information, which included an opinion piece by Saroop Ijaz. The piece included a summary of a criminal case against a ‘Pashtun activist’ in another province to the one the applicant resides in, and it mentions restrictions on the Federally Administered Tribal Areas, which the applicant does not live in, and an action by the Punjab government, again, a province that the applicant does not live in. As this information does not relate to the circumstances of the applicant, which is that he lives in a Pashtun majority area, I give greater weight to the DFAT report.
The applicant is a Pashtun in a Pashtun dominated area. Country information states that in such locations, Pashtuns face only a low risk of official discrimination. The applicant’s family has not faced harm because of being Pashtun, which supports what country information states. While the army may use ‘good’ Taliban against Pashtun voices, the applicant’s father is a malik who has aligned the family with the government. While I acknowledge the distinction between the government and the army, it is notable that his father is also on the peace committee, which engages with the army. I find that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from his ethnicity.
Other considerations
The applicant is also concerned about the general security situation. The representative noted the DFAT report, which states that violence has been decreasing but threats from insurgent groups are very real. The claim was made that despite the success of the military in tackling the terrorist groups, they return as soon as the military departs the area. On the one hand, the applicant has argued that the army remains, and he is at risk of harassment from them, while on the other hand, the applicant is arguing that due to the army’s departure the terrorist groups return. I do not find reaching a conclusion on these sweeping statements useful. The DFAT report is generic for the entire country and the army’s presence or lack of presence isn’t binary, it isn’t that they are in or out but rather force numbers ebb and flow, different units remain, and others go. Some units may serve as protection against terrorists, others as enforcement against internal violence. Residents may be harmed by one and protected by another. As such, I find it more useful to look at the actual security situation on the ground.
We discussed the number of security incidents that have occurred in his district over the past several years, as reported by the South Asia Terrorism Portal.[1] I noted that since 2014 there have been only two security incidents in total, killing one civilian and one terrorist. The applicant responded that previously there have been explosions in mosques, markets and check points. He claimed that targeted killings still happen but are not normally reported. He gave an example where, two days ago, a teacher was kidnapped, and his body was found in Peshawar. He said that the teacher was kidnapped on 1 June and that the incident was not reported in the news. He learned about it through social media. The applicant provided the name of the man, Irfan Ullah Afridi. I found the claim on Twitter, which included that the man was killed by the Counter-Terrorism Department of the police in Peshawar. The applicant claimed that the South Asia Terrorism portal have not personally travelled to their area and that the media is not allowed in. He said that if they had approached the army, the army would say that everything is calm for the sake of their reputation.
[1]. South Asia Terrorism Portal >
In a post hearing submission, the applicant provided extracts from the South Asia Terrorism Portal, which describes a downward trend in the number of fatalities, but notes there was an upward trend in the number of incidents between 2018 and 2019. While I accept that this is a fair representation, I note that the data extracted refers to KPK as a whole. Within KPK there are different districts, and each area has its own unique circumstances. The data I discussed with the applicant was relevant to the district to which the applicant would be returning to; as such, I preference the information and analysis discussed at the hearing over the broad generalisation of the security situation in the province as a whole.
The applicant claims that the South Asia Terrorism Portal does not cover all incidents, including, for example, the killing of Mr Afridi. The claim in the social media posts provided to the Tribunal is that Mr Afridi was killed by security forces. The South Asia Terrorism Portal records terrorism; as such, I accept that it is not recorded in that database. I accept that there was an incident that led to his killing. The Twitter feeds submitted to the Tribunal do not provide information about how or why he was killed. There is no basis upon which to accept the applicant’s claims that it was because he looked Pashtun. Country information supports the reporting on social media that there was a police killing in the applicant’s district, but I do not accept that one incident is an indication of a pattern that may pose a risk to the applicant.
The applicant submitted that DFAT’s travel advice recommends that Australians not go to his area of Pakistan. While this is factually correct, it is not applicable to the applicant’s case as it is premised upon non-natives traveling as tourists. There are different risks that tourists face as opposed to local residents who speak the language and understand the circumstances. As such, I place no weight on this evidence.
The applicant also provided country information regarding the security situation. The country information ranges from 2008 through to early 2017 but is from places other than Khyber District where the applicant is from.
Overall, I find that the country information of the security situation in the applicant’s district of Khyber indicates that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from the general security situation, including both the actions of extremists and the security forces. Any risk that the applicant faces is one faced by the population generally and not just by the applicant.
The applicant is Sunni. He acknowledges that the majority sect in his area is Sunni. He claims that he has liberal or moderate Islamic views and that the Taliban want to implement Sharia law. He claims that moderate voices are lone voices and that they are not supported by the Ulema (scholars of Islam). I accept that he has moderate Islamic views that are counter to those of the Taliban. But the Taliban do not control the district that he resides in nor do I find that they will into the reasonably foreseeable future. For this reason, I find that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from his moderate Islamic views.
Cumulative
I now turn my mind to the situation the applicant faces cumulatively. He is Pashtun, from a family that is well known and wealthy. His father is politically active, a malik and on the peace committee. His brother runs a co-educational school. His views align with those of his family and a new movement that supports Pashtun rights in Pakistan. His family have in the past been approached by the Taliban and warned not to support other political movements and most recently, his brother received a threat that extended to the entire family. He is a moderate Muslim living in an area that has limited security incidents. Taking into consideration the experiences of the applicant’s family in the past and country information, none of these aspects of themselves raised the applicant’s risk to a real chance or a real risk. In considering all of the claims enunciated by the applicant as summarised in this paragraph cumulatively, I find that even when considered cumulatively, the risk the applicant faces does not amount to a real chance of serious harm or a real risk of significant harm.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
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, the applicant does not satisfy any of the criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Denis Dragovic
Senior Member

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

[2020] AATA 3737

29 July 2020

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction