1724687 (Refugee)

1724687 (Refugee) [2021] AATA 3470 (23 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1724687
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Rodger Shanahan
DATE:23 July 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 23 July 2021 at 6:12am
CATCHWORDS
REFUGEE – protection visa – Pakistan – political opinion – PTI supporter – active campaign for candidate in electorate – fear of the Muslim League - Noon (ML-N) – credibility concerns – lack of knowledge regarding the PTI – failure to mention key claims earlier – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 424AA
Migration Regulations 1994 (Cth), 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 15 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 22 June 2017.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
Protection Visa Application
The applicant’s original protection visa application contained a very simple claim contained within the application itself without a supporting statement. It essentially said that a political party had made threats against him and made attempts on his life and that the police could not help him because of corruption and the influence of political parties. He said that he would be harassed, threatened or killed by the Muslim League Noon Group.
AAT Hearing
The applicant agreed that he knew everything that had been written and submitted with respect to his protection visa application and he knew it to be true and correct. He claimed that if he returned to Pakistan his family would all be at threat. It was put to him that the Tribunal wanted to know what serious harm would happen to him if he returned to Pakistan, not his family.
He claimed that he had had his leg broken. He was asked again what serious harm he feared on return to Pakistan and he said that he feared the party or group and that they could kill him. Asked what group he was talking about, he claimed that it was a group and were doing everything with the support of the police. He didn’t know them but they all knew him. Asked if it was a political or other group, he said it was a political group.
He said they belonged to the Muslim League – Noon. There were two other people and they had already been killed. Asked again why they wanted to kill him, he said that he was living in their area and he was asking people to vote for the other party, PTI. He had no other claims and agreed that this was the only one.
He first had this fear in 2014 and he was targeted because he was the only one in this area that was against them. His family also follows PTI because of him. His leg was broken in front of his family and so he had to leave Pakistan and came to Australia. Asked about the circumstances, he said that he was campaigning for the PTI in the 2013 elections. There was a candidate from PTI he was supporting but it was in their area.
Asked who the PTI candidate was, he said it was [Mr A]. Asked what the electoral district was that he was campaigning in, he said it was in [District 1], he was asked which district and he said it was Number [number redacted]. He agreed it was NA [number] from [District 1]. Asked to confirm that [Mr A] was the candidate, He said that [Mr A] was supposed to be, but they didn’t allow him and they killed the other two boys as a result. Asked to confirm that [Mr A] was the PTI candidate for NA [number] for the 2013 election, he said [Mr A] was supposed to be but they didn’t give him a ticket. Asked who the PTI candidate was, he then said the name of the ML-N candidate.
Asked again who the PTI candidate was, he said that [Mr A] couldn’t fight the election as they didn’t give him the ticket, but there were some independent candidates who ran and then after the election they joined PTI. Asked if there was a PTI candidate he said that there was no PTI candidate in his electorate but there were in other electorates although he didn’t know their names. He was then asked again to confirm that there was no PTI candidate for NA [number] in the 2013 election he said that because they were beaten up and locked up in their house he didn’t know what happened in the election. It was put to him that he had just said there was no PTI candidate in the election and now he said that he didn’t know.
He then said there were other candidates but ML-N were very strong and they didn’t allow anyone else to run and after he had his leg broken and they stopped campaigning so he didn’t know what happened. It was put to him that his family would have voted PTI and know the candidate. He said his family was threatened and so didn’t vote. It was put to him that they would have known if there was a PTI candidate or not regardless of whether they voted. He said the situation was tense and his family was concerned by his safety rather than the election.
He was threatened that if he didn’t stop his activities and leave the area they would kill him. Asked when he left the area, he said he went to [Country 1] in 2016. Asked why he wasn’t killed even though he didn’t leave for three years, he said he kept changing his address but they kept chasing him. The time went very quickly. Asked to confirm whether they found him at these addresses, he claimed that whenever they came to where he was they would threaten him and tell him if he didn’t leave they would kill him.
It was put to him that it was strange that they kept on threatening him but not killing him. He then said that he moved to a big city for six or seven months and they threatened him by phone but didn’t see him in person. He was in Peshawar. Asked why he didn’t change his phone number if they kept calling him, he said that their sources were so strong they would always track down his new number. He was asked if he had ever mentioned this previously in his submissions or during his interview, he claimed that he hadn’t as he was never asked. It was put to him that he didn’t need to be asked a question and could have outlined this at any stage.
He claimed he had been to many countries, to [Country 1] and tried for protection and then [Country 2] and [Country 3] and tried there for protection but couldn’t. In [Country 1] he spoke to the lawyer there and the lawyer told him that he couldn’t apply. A friend put him onto this person – he went out for lunch or dinner and met him there as he didn’t want anyone to know he was in [Country 1]. The lawyer was a Pakistani who had studied law in Pakistan but was living in the [Country 1].
Asked if he ever returned to Pakistan after 2016 he said he never did. He then said that when he went from [Country 1] he did go to Pakistan but only stayed in a hotel for five days. He was asked if his enemies were so powerful they could match his name with new phone numbers they couldn’t know he had returned to Pakistan, he said even his family didn’t know and he went straight to the hotel and stayed there.
Asked if he was a PTI member, he said he was but never got his name registered. It was put to him that it was now 2021 and PTI was in government and was asked why anyone would hurt him. He claimed that in his area ML-N was still powerful. Asked why he didn’t move into a strong PTI area given he was a member and had campaigned for them. He claimed the police were corrupt and they could kill him for money. It was put to him that he campaigned for someone who never ran and didn’t have a profile in a country of 290 million people so it was strange he was such a target.
He claimed that if he wasn’t a target he wouldn’t have stayed in Australia. Asked again why he was of interest to others given he had no profile, he claimed that it wasn’t political, it was private now. Asked if his family had been targeted, he claimed that his family wasn’t allowed to vote in the last election by the same people who asked about his whereabouts. He was asked if they were still interested in him eight years later, and he claimed they were still enquiring about his whereabouts. It was put to him that if they were so powerful they would know he had been out of the country since 2016 so it was strange they would still hassle his family.
He claimed they even had sources in Australia and he lived in a quiet area. He lived in [Suburb 1]. It was put to him that there was a large Pakistani community in [Suburb 1] so it was strange he would choose to stay there if he was trying to maintain a low profile. He claimed that he remained very quiet.
He was asked if he had any evidence whatsoever of any connection with PTI at all such as photos, social media mentions, or other media. He claimed the only evidence was his broken leg. He had no contact there and had no help from there so the photo of the broken leg was all that he had. His sister took some photos when he broke his leg. He was asked how the Tribunal would be able to know that he hadn’t broken his leg in a motorbike accident or some other accident. He claimed they plastered his whole leg.
It was put to him that (DFAT) country information indicated that PTI supporters aren’t at risk of being harmed so the Tribunal had trouble understanding why he would be targeted. He claimed that during the election it was political but now it was personal rivalry which was more dangerous. It was put to him the Tribunal didn’t understand why it was now personal. He claimed such rivalries went on for generations. It was put to him that nothing had happened to his family so it didn’t appear very personal. He said the family agreed they wouldn’t vote or do anything with PTI so they are okay now. As a result it was all about him. Asked if he had any other things he wanted to raise he said this was all he wanted to say.
He was told about s 424AA and it was put to him that in the 2013 election he said he had campaigned for [Mr A] the PTI candidate for NA [number] but then he later said [Mr A] couldn’t run and there was no PTI candidate, then that he had no idea about the election. Yet in the Pakistani Electoral Commission report it said that someone called [Mr B] was the unsuccessful PTI candidate in NA [number] that year; he came second out of five candidates with 30,000 votes.
The concern was that the applicant didn’t know who ran, then said no one ran, then came up with different stories to explain why he didn’t know whether anyone actually ran. The concern was that he had nothing to do with PTI in Pakistan. This was reinforced by the lack of any evidence regarding any association with PTI and the Tribunal may form the view that because he had nothing to do with PTI he was, and never had been of any interest to anyone in Pakistan.
If he had nothing to do with PTI then none of the subsequent claims, such as being beaten up, his family being targeted, himself being targeted were likewise not true. He asked why he would make up the story as he was away from his family and parents. He was asked why he knew nothing about the 2013 PTI candidate even though he claimed to be campaigning for him. He said they were scared when the incident happened and they had to stay at home and weren’t allowed to talk to anyone.
Under s 424AA it was also put to him that he had never mentioned that his family was threatened in 2013 or stopped from voting in 2018 or that two people were killed, forcing him to leave Pakistan. He had never mentioned about having to move from house to house for three years, living in Peshawar for seven months or receiving threatening calls. His past claim centred around threats from money lenders which had not been mentioned here and the concern was that he was trying to change claims because he was worried the money lender claim would not be accepted. He claimed that he did not discuss the money lending because the debt had been paid off by his family and was no longer a claim.
Regarding his failure to mention the other issues about threats and moving location and the like, he claimed that he was under a lot of stress when he came to Australia and he was helped by the person who was going to be his witness today. Also under s 424AA it was put to him that when he was asked by DIBP how he found out that he couldn’t apply for protection in the [Country 1] he said he met someone at mosque who told him that he couldn’t yet today he said he went out with a Pakistani lawyer for lunch or dinner who told him this. He claimed that they went to the mosque at the same time and had food after mosque so it was the same thing.
Asked what his family did for a living in Pakistan, he said they owned and ran a shop but his brothers were finding it difficult to run after the death of their father. He claimed that he was living in Australia for several years and believed he could have a future here.
The applicant’s witness was called and he said that he met the applicant in 2017 when he was driving a hire car at the airport in the morning and said that he stayed overnight at the airport. He claimed the applicant said he had some political issues with people in [District 1]. In 2018 the witness went to Pakistan and he met the applicant’s parents and siblings. They told him the story about how often they had been humiliated by people in the area and he confirmed this with someone else he met outside who told him how the applicant had problems with some political group and that he shouldn’t come back to Pakistan. He was there before June 2018.
The applicant was a supporter for PTI. He knew this because the applicant told him and the applicant’s father said they also supported PTI. Asked if they mentioned about owing money, he said they owed 30 or 40,000 in money. He said they sold something and paid off the debt but they hadn’t told him about what they sold. His mother was diabetic and up and down and his mother was okay in 2018.
Asked if anything happened to his parents he said people came to their house at midnight and yelled through the door. Asked how long he stayed there, he was there for two to three hours. Asked how he knew they were telling the truth, he claimed he had to believe them. He also asked a street boy and they told him the applicant was in trouble. The father also told him about two people being killed. The applicant was working for a OPTI member but he didn’t know the name of the person. Other people were also being given a hard time.
The applicant was then asked if there was any evidence about these two people being killed such as media reports, he claimed that he couldn’t provide any evidence. There might be media reports but he had left six years ago. It was put to him that his family was still there. He said that police didn’t help – he was told about media reports or social media entries about two PTI supporters being killed. If there was nothing about this incident it may raise questions in the Tribunal’s mind that this never occurred. He said he was sure there would be something and would ask his family to pass it on.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia on a tourist visa and applied for protection on 22 June 2017. The Tribunal sighted a copy of his Pakistani passport as proof of his identity and his claim will be assessed accordingly.
The Tribunal exercised its discretion to hold the hearing by Microsoft Teams. The hearing was held during the COVID-19 pandemic. In arriving at this course of action the Tribunal had regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by this means.
The applicant is a [age] year-old single male. He claimed that if he returned to Pakistan he would be killed by ML-N supporters because he had actively campaigned for the PTI candidate in his electorate.
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not required to accept uncritically any and all claims made by an applicant.
I found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be an entirely reliable, credible or truthful witness, and find that he fabricated his claims in order to be granted a protection visa.
Dropped Claim

The applicant’s claims for protection initially rested on two elements – that he would be harmed because he had not re-payed money to a money-lender, and because of a political profile he possessed. At the hearing he stated that the money had been repaid and therefore it was no longer a claim. This finding therefore only relates to his claim regarding political activism.
Political Participation
I do not accept that the applicant was ever a member of, or connected in any way with the PTI, let alone that he campaigned for a candidate in the 2013 election. Despite claiming to be a member and an active campaigner on their behalf with a profile such that he came to the attention of the rival ML-N party he was unable to provide any evidence that indicated his political role. Given he claimed to have been such an active campaigner in his local electorate, it is strange that there were no social media entries (from him, the local candidate or local branch of PTI, or anyone else) that could support this claim, no local media reports or photos that the applicant may have been able to source from Pakistan that may have given the Tribunal confidence that he had a connection. While the absence of such evidence is not determinative in and of itself, combined with the other concerns the Tribunal has with his evidence (or lack thereof) it is sufficiently concerning for the Tribunal to conclude that the applicant never had a link with PTI.
It was the applicant’s lack of knowledge about the 2013 election however, that carried most weight with the Tribunal in reaching its finding regarding his lack of involvement with PTI. When he was asked the name of the PTI candidate for whom he was campaigning, he kept on changing his story. He originally said that it was [Mr A], then that he wasn’t given a ticket, then that some independents ran who later joined PTI, then that there was no PTI candidate, then that he was beaten up, confined to home and his family prevented from voting so he never found out who won.
Any one of these claims is either implausible or strange to say the least. None are backed up with any evidence and in combination the story does nothing to indicate that he knows anything about PTI politics in the [District 1] NA-[number] electoral district. A simple internet search shows that PTI ran a candidate in NA-[number] by the name of [Mr B] who came second to ML-N with nearly 30,000 votes[1]. The fact that he was unaware of this says much. I do not accept that he was unaware of the result because they had to stay at home and weren’t allowed to talk to anyone. This claim was never mentioned previously and was only put forward after his inconsistent answers regarding the PTI candidate’s name (and his inability to name the actual candidate) were put to him.
[1][Source deleted], accessed 23 July 2021.
Because I do not accept that he was ever working for PTI, it follows that two people working with him weren’t killed, that he never received threats, was harassed, that he was beaten up and had his leg broken, that an attempt was made on his life, that he was forced to move from house to house to avoid ML-N members or that they were still interested in his whereabouts. He had not previously mentioned that two people were killed, that he had to move addresses constantly or that his family was prevented from voting. I do not accept that this was due to stress, given he was able to articulate other elements of his claim and he could have provided this information in a written statement if he found interviews too stressful. The degree of interest in him given his allegedly low level of seniority, and the persistence of the alleged political opponents from ML-N given the fact they won the seat easily in the end is inconsistent with country information that indicates PTI members face a low risk of violence based on party affiliation[2].
[2] DFAT Country Information – Pakistan, 20 February 2021, p 45.
Although he did not expand on his claim that attempts were made on his life (made very briefly in his protection visa application), I take it that the broken leg was one such incident. I have taken into account his photo of him with his leg in a cast he provided post-hearing but lend it little weight. It had no date stamp and his leg could have been broken in any number of ways other than being beaten up for his political activities. Given that he claimed the attempts on his life were the result of his activities with PTI and I have found that he has fabricated these activities, it follows that the claim regarding attempts on his life are also fabricated. I do not accept that the focus on him was now personal given the genesis of it was his activities with PTI. And, given I have found that he was never connected to PTI the reason for the threats cannot have transformed given they were never present in the first place.
I have also taken into account the witness testimony but also lend it little weight. It was based on a two-hour conversation the witness allegedly had with the applicant’s parents in Pakistan. Being such close relatives they were not independent of the applicant and the information they told the witness was recounted after the applicant’s claim was refused by DIBP. The witness claimed that he also asked a person on the street about the applicant who also told him the applicant was wanted.
I put little weight on his account and much more weight on the applicant’s lack of knowledge regarding PTI in the 2013 election and country information regarding the low risk of violence faced by PTI supporters. Following the hearing the witness contacted the Tribunal and stated that the call to him came at an inconvenient time and that he wished to give further evidence. He was advised by the member that he was called at the time nominated by the applicant, the hearing had already concluded and concerns with the applicant’s claims had been put to him so this would be taken into account when determining how much weight would be given to any more evidence he may wish to provide but that he could provide a written submission to the Tribunal if he wished. He thanked the Tribunal but declined to provide any further information.
As the applicant hasn’t raised any other claims to fear persecution and, having had regard to all the evidence, and the applicant’s claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason either now or in the reasonably foreseeable future.
Complementary Protection
Because I do not accept that the applicant was ever working for, let alone a member of PTI in Pakistan, was ever threatened, beaten up, forced to move addresses or is of any interest to ML-N or any other political group in Pakistan, I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.
As a consequence I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).
CONCLUDING PARAGRAPHS
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 the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rodger Shanahan
Member

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

[2021] AATA 3470

23 July 2021

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Immigration

Administrative Law

Statutory Interpretation

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