1726113 (Refugee)

1726113 (Refugee) [2021] AATA 3877 (14 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1726113
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Sheridan Lee
DATE:14 July 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 14 July 2021 at 3:57 pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – falsely accused as supporter of Mirza Ahmed Qadiyyani – fear of persecution from authorities – threats and torture – friendship with a known Ahmadi – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K-LA, 36, 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 and Border Protection on 10 October 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant is [an age]-year-old man from Punjab, Pakistan. He applied for a protection visa on 25 March 2015 on the basis that he would be persecuted by local religious leaders who incorrectly believe that he is a supporter of the Mirza Ahmed Qadiyyani. The delegate refused to grant the visa on the basis that there was insufficient evidence to support the applicant’s claims.
The Tribunal viewed a copy of the applicant’s Pakistani passport and I accept that the applicant is a citizen of Pakistan and will assess his claims against Pakistan as the country of reference for the purposes of s.5H(1)(a) and receiving country for Complementary Protection purposes.
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).
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, I have taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Claims for protection
The applicant was born in the city of [City 1] in Punjab, Pakistan. On his application for protection form, he identified as Sunni Muslim and of [deleted] ethnicity. The applicant first arrived in Australia [in] February 2015 on a Subclass 600 visitor visa. He applied for protection on 25 March 2015.
The application for protection outlined that the applicant was falsely accused of following the Mirza Ahmed Qadiyyani because he associated with a follower. The form also set out the following claims:
·the applicant left Pakistan due to political unrest and religious violence.
·he was mistreated by the religious authorities in Pakistan. They accused him of being a follower of the Mirza Ahmed Qadiyyani group. He was a very respected person in society before his friend - a follower of the Mirza Ahmed Qadiyyani group - was killed by the religious authorities.
·the applicant’s friend was killed [in] front of people and no one assisted him, not even the police.
·it was a disgrace for him to walk in society because of the false accusation. He lost respect in society and was unable to protect his dignity. He was also unable to attend religious activities or go to the mosques for prayers.
·he was threatened and tortured on a number of occasions. Hand grenades were thrown at his house and shop from time to time.
·the applicant’s own brother blamed him, and his wife’s parents asked her to leave the applicant due to the propaganda in society that he was a follower of Mirza Ahmed Qadiyyani. The applicant’s wife believed that he was not a follower of the Mirza Ahmed Qadiyyani.
·due to the pressure and fear of being killed, he had no option but to leave his country, leaving his wife, children, and business behind. His business has now been looted.
·if he returned to Pakistan, the Muslim authorities would kill him because of the misunderstanding that he is a follower of the Mirza Ahmed Qadiyyani group. He would be harmed and mistreated by the authorities and the people of Pakistan.
·the Government of Pakistan declared that followers of Mirza Ahmed Qadiyyani are not Muslims and they are liable to be punished under Pakistani laws.
·Pakistan was formerly the home of the Ahmadiyya Muslim Community before they moved to England. The population has been persecuted and discriminated against by the Sunni majority.
·the authorities would not provide protection and there are daily killings in the name of religion.
·he never moved to another area of Pakistan because all sections of the Muslim world have decreed that Qadiyyanis are heretics, infidels and apostates. To be associated with them would result in torture and death.
·the applicant went to the Imam in the local mosque and spoke with him, but he did not believe that the applicant was not a Qadiyyani.
Along with the application form, the applicant supplied the translation of a police report. An original or copy of the document that was translated was not provided. The translation outlined that the police report was made [in] September 2014. The statement was made by [Mr A], son of [name deleted] and related to the deaths of [Mr B] and [Mr C].
The translation of the report states that the men were shot while driving in their car by assailants armed with Kalashnikovs. The report goes on to state that one of the victims, [Mr B], was a witness in a murder case against one of the assailants. It states that ‘the accused party tried to patch-up but [Mr B] recorded his statement in the court. For the reason eliminate the evidence they killed [Mr B] and [Mr C] on the behalf of [name deleted].’
Application for merits review
The applicant applied for merits review on 25 October 2017. No further documentary evidence was submitted with the application. He appeared before the Tribunal on 18 May and 7 July 2021 to give evidence and present arguments. The Tribunal was assisted by an interpreter in the Urdu and English languages.
The applicant gave evidence that he speaks Urdu and Punjabi. He follows Ahle Sunn (a Muslim religious organization in Pakistan that represents the Barelvi movement), a form of Sunni Islam. In Australia he attends a mosque in [location]. The applicant is married with [children]. His wife and children continue to live in [City 1].
Prior to departing Pakistan, the applicant owned a business [at] [Location 1] in [City 1]. The applicant started the business in 2003. Now the business is operated by the applicant’s brothers; he wasn’t sure which ones. The applicant has [a number of siblings]. In Australia, the applicant works as [an occupation].
The applicant gave evidence that he had a friend from high school named [Mr B] who initially attended [the business] as a customer. Later he would come to visit and sit by the applicant at the store. The applicant described [Mr B] as Qadiyyani. [Mr B] would speak to the applicant about the Ahmadiyya religion. The applicant explained that Ahmadiyya is part of Islam, but he doesn’t have trust in it. [Mr B] would also speak with customers in order to spread the word through them.
The applicant alleged that [Mr B] was killed in 2014 as a result of his religious beliefs. People from the mosque were tracking and following him. [Mr B] was in a car [when] he and another person in the car were shot from behind. The second occupant of the car died later in the hospital. The applicant stated that he did not file a report about the incident; he thought that perhaps the victim’s family filed a police report.
The applicant claimed that when the mosque people found out [about his friend supporting the Ahmadiyya religion], they came and tortured him. They would come to his house and shop and abuse him, even though he is not a follower of Ahmadiyya Islam. I asked the applicant to explain what he meant when he claimed to have been tortured. The applicant explained that people came and started hitting him. One person hit him in the back of the head. If they saw him in the street they would physically assault him or if he was riding his bike they would make him throw the bike away.
On one occasion, people threw a grenade into his shop and it caused damage. The applicant stated that these events happened after the death of his friend, however he couldn’t recall specific dates. The applicant alleged that he reported the incidents to the police, however they did not assist him because they also attended the mosque.
When asked about the frequency of the visits, the applicant stated that they came to his house on one occasion and his shop on one occasion. Sometimes they would find him in other places and once he was hit on the head on the street. He visited the doctor and received stiches and some medicine. I asked if the applicant could request a medical record from his visit. The applicant said that he was unable to request his record, he has no connection to Pakistan besides his wife. The applicant estimated that he remained in [City 1] for six to seven months after the incidents.
I asked the applicant to provide some information about the mosque. He explained that it was one of the biggest in [City 1] and it was located near his shop. The applicant could not recall the name of the mosque but thought it may be ‘[name]’. The applicant noted that the mosque was located behind [Location 1] and it was where celebrations were conducted. The leader of the mosque put the accusations on the applicant in around July or August 2013.
The applicant gave evidence that he attended the same mosque and therefore knew the individuals who assaulted him. He identified them as [names deleted]. He was unsure if they still attend the mosque. The mosque preaches Deoband Islam. The applicant explained that Deoband and Barelvi are sort of the same, followers can all go and worship at each other’s mosques.
I asked the applicant if he ever went to the mosque to make representations about the authenticity of his beliefs. The applicant said no, nothing like that, he only went to worship.
The applicant gave evidence that his wife and children previously lived with family, but now live in a rented property. Since the applicant departed Pakistan, he alleged that his wife was teased and encouraged to leave him. His brothers were reading the book with the mosque leaders, and they teased the applicant’s wife and took the [business]. The applicant’s brothers insisted that his in-laws pressure his wife to file for divorce. The applicant’s wife did not file for divorce because she knows that the applicant doesn’t follow the Ahmadiyya religion.
I highlighted that the events described by the applicant happened some time ago and his family has remained in Pakistan relatively unharmed. The applicant claimed that his wife was safe because she told people that they are no longer together. The applicant continues to speak with his children. He explained that the eldest child knows there is a relationship but the younger children are naive.
In relation to the police report, the applicant gave evidence that it was about the death of his friend. He said he’d had the report for a long time. I asked how the applicant came to have a copy of the police report. In response, he explained that when the family filed the report with the police, he went along. I noted that the applicant had been unsure about who lodged the police report earlier in the hearing and that seemed inconsistent with his later evidence about how he came to have a copy of the report.
The applicant explained that they had to go to the police a few times. He went once, but a report was not filed. Later the family went to the police and a report was filed.
I clarified that the applicant was not given any documentation when he went to the police, and he confirmed this to be true. As he had earlier said he was given a copy of the report when he went with the family to the police, I again asked how he came to get a copy of the report. The applicant then gave evidence that the victim’s father gave him a copy later. I advised the applicant that I was having difficulty accepting his evidence about the police report and this may lead me to question the authenticity of the report. In response, the applicant stated that the report was genuine.
The applicant did not experience any issues with Pakistani government authorities, and he had no difficulty departing Pakistan. However, he felt that he could not live in another area of the country. The applicant explained that the religious group had roots all over the place. He claimed that his wife informed him that his photo had been circulated around Pakistan. He was personally unsure about whether that happened, but his wife had told him it did. I asked the applicant how his photograph would have been circulated and he speculated that they would have taken the photo from his shop and put it on the internet. He did not have any examples.
Having considered the evidence presented in the original application and at the first hearing, the Tribunal invited the applicant to a second hearing to discuss some inconsistencies and concerns. The applicant’s responses in relation to specific issues are discussed below.
At the second hearing, the applicant explained that the events discussed took place almost ten years ago and it was difficult to remember everything in detail. Further, he was unable to bring evidence with him from Pakistan. The applicant highlighted that he had a good shop and made a living in Pakistan. He supplied bank statements and other financial documents demonstrating his income to the Department at the time he applied for a visitor visa and again with his application for protection.
At the second hearing I also asked the applicant about whether his shop had been looted as outlined in the application form, or taken over by his brothers. The applicant explained that while he still operated the store a grenade had been thrown into the store and damaged property, however the store was not looted by members of the public after he departed Pakistan, it had been taken over by his brothers.
In post-hearing submissions dated 11 July 2021, the applicant’s representative outlined that he discussed the details of the applicant’s claims and the consistency of his evidence. He alleged that [Mr A] was nervous at the hearing and feared deportation back to Pakistan. The statement went on as follows:
[Mr A’s] own brothers refuse to believe him and supported the religious group, saying he is the follower of Mirza Ahmed Qadiyani group and took over his whole business.
[Mr A] was a successful businessman and had 4 employees working for him, his brother could not see his success and supported the religious group to bring him down, his friend [Mr B] was the follower of Qadiyani group.
His bank statement and Tax documents was submitted to the department with his initial visitor visa application.
His shop was not looted by the public but by his own brothers who took over his business.
In Pakistan it is common to kill someone in the name of religion. there is always conflict between Ahmadiyya and Sunnis for a long time and lots of people have been killed in the name of religion, although my client is not the follower of the Ahmadiyya group but was accused by the religious group at his local mosque of betraying sunnies and joining Ahmadiyya group.
When my client started facing problem, he did go to the police for help, but no FIR was lodged by the police, the government of Pakistan is overpowered by the religious leader in Pakistan and the wrong blame which had affected my client and removed him from the community that he is the follower of Mirza Ahmed Qadiyyani group which In fact was not the follower.
My client went to the imam at the local mosque to spoke with them, but the imam did not believe him as he was friend with Qadiyyani who are later killed [in] front of people, and no one was there to save him not even the police.
The authorities will not be able to help you unfortunately there are many people are killed in the name of religion it became the norms to use the name of religion and kill someone, even the government is unable to stop it, police refuse to take the complaint against it, therefore my client had to tick No in his protection visa application as his complain was never lodged.
[Mr. A’s] friend [Mr B] was killed because he was Qadiyyani but the police recorded wrong information in the FIR that he was killed because he was a witness on the case.
In summary [Mr. A] has gone through a great deal of torture and disgrace, betrayal and running away from honour killing has been staying alone in Australia leaving his wife and children in Pakistan and he fear returning to Pakistan.
Honour killing has become quite common in Pakistan, there is no human right system in Pakistan, nor the complaint can be heard, or any action is taken against this religious groups.
Chance of harm
I accept that the applicant is a Pakistani man and a Sunni Muslim. I accept that he is married with [children], who remain in Pakistan. I accept that prior to departing Pakistan the applicant owned and ran a successful [business] in [City 1] and that he is no longer the proprietor of the business. I do not accept that the applicant’s friend was killed by local religious authorities or members of the local congregation on the basis of his religious beliefs. I do not accept that the applicant was accused of following the Ahmadiyya religion and therefore I do not accept that he was harmed by followers of the local Imam or anyone one else on that basis. Further, I do not accept that there are any individual, or political or religious groups that would be motivated to locate or harm the applicant if he returned to Pakistan.

I note that the high-level narrative presented by the applicant in his original claim for protection form and at the Tribunal hearing was generally consistent. Further, I accept that religiously motivated killings can and do occur in Pakistan. Nevertheless, there were some significant inconsistencies and issues with the applicant’s evidence, outlined below. I did not find the applicant to be a credible witness. On this basis, I am not satisfied that the applicant faces a real chance or risk of serious or significant harm as a result of his imputed religious beliefs or for any other reason.
The content of the translated police report provided to the Department does not support the applicant’s story. The applicant alleged that his friend, [Mr B], was killed by members of the local Deoband mosque as result of proselytising and supporting the Ahmadiyya religion. As highlighted in the delegate’s decision, the police report states that [Mr B] was a witness in a murder case involving the perpetrator and the reason for the killing was to ‘eliminate the evidence’. When asked about the police report at the hearing, the applicant first said he was unsure who contacted the police about [Mr B]’s death, then that he had a copy of the report because he attended the police station with the victim’s family, and later that the victim’s father was provided with the police report and he passed that on to the applicant at another time. The applicant’s advice about how he came to have a copy of the police report was vague and changed throughout the hearing.
At the second hearing, I questioned the applicant further about the content of the police report. The applicant maintained that the death of [Mr B] was the result of religious violence. He stated that the police have many sources, the victim’s father was not well educated, and he was unsure why the report provided an alternative motive.
The applicant alleged that he was accused of being Ahmadi by the local Imam. The application for protection form outlined that he went to the Imam of the local mosque and spoke with him about his faith, but the Imam did not accept his representations. At the first Tribunal hearing, I questioned the applicant about this incident, and he gave evidence that he never approached the Imam to make representations about the authenticity of his faith, he only attended mosque to worship. I highlighted this inconsistency during the second hearing and in response the applicant explained that he only went to mosque to pray, but he did speak with the Imam once about his faith when he came into the shop. Finally, in post-hearing submissions, the applicant’s representative again stated that the applicant went to see the Imam at the local mosque.
Question 93 on the application for protection form asks ‘did you seek help within the country(s) after the harm?’. In response to question 93, the applicant selected ‘no’. However, in response to question 99 on the application form, which relates to documents which cannot be provided to the Department, the applicant stated ‘I cannot ask anyone in Pakistan to send me documents and the fir which I lodged with the local police of getting tretad [sic] by religious authority as they are looking for me…’
At the first hearing the applicant gave evidence that he went to the police in relation to the damage of his property and physical assaults, but they refused to assist him because they also attended mosque. At the second hearing, I asked the applicant about visiting the police. He clarified that he did go to the police, but they didn’t listen. His report was never acted upon. I consider this evidence to be largely consistent with the first hearing and the longer written statement on the application form. However, in post-hearing submissions, the applicant’s representative stated that following a conversation with his client, he could confirm that: ‘when my client started facing problem, he did go to the police for help, but no FIR was lodged by the police’. This final written statement is in direct conflict with the statement on the application form.
When questioned about the completion of his application form at the first hearing, the applicant gave evidence that he was assisted to complete the form by his migration agent. There is no reason apparent to the Tribunal that the migration agent would personally amend major details of the applicant’s claims. At the second hearing, the applicant gave evidence that he had difficulty explaining things in English, so he was assisted by a friend named Habib, who is now in America. I highlighted that this was different to the evidence provided in the first hearing and the applicant then gave evidence that his friend explained the claims to the migration agent.
By the applicant’s own evidence, he is not a supporter of the Ahmadiyya religion. His claims hinge entirely on the existence or otherwise of an accusation made by the local Imam on the basis of his association with a known Ahmadi, [Mr B]. The applicant presented inconsistent evidence about the motivation for the killing of [Mr B], how he came to have access the police report, whether the police accepted a report about the physical assaults and damage of his personal property and whether he made representations to his accuser about the authenticity of his faith. These issues go to the core of the applicant’s claims. In addition, the applicant amended his evidence regarding the assistance he was provided to complete his application form when questioned about the inconsistencies in his evidence.
Although it may be implied, without accepting that the applicant was friends with an individual who was killed on the basis of his religious beliefs, or that the applicant was accused of being Ahmadi himself, I cannot accept that the applicant was physically assaulted or that his personal property was damaged as a result of his imputed religious beliefs.
In making these findings the Tribunal has allowed for the possibility of discrepancies arising because of genuine lapses of memory, nervousness and the manner in which responses can differ depending on the nature and manner in which a question is asked. It is also sensitive to the various cultural differences that can impact on an applicant’s responses to questioning, as discussed in the Tribunal’s ‘Guidance of the Assessment of Credibility’. The Tribunal does not accept that any of these factors explain or excuse the concerns which, cumulatively, have led it to find that the applicant is not a reliable witness to these claims.
I find that the applicant does not face a real chance of serious harm, now and into the reasonably foreseeable future, for any reason if he were returned to Pakistan. I therefore find that the applicant is not a refugee within the meaning of s.5H and does not fall within Australia’s protection obligations under s.36(2)(a).
For the same reasons that I found there is no real chance of serious harm, I find that the real risk element of the test in s.36(2)(aa) has not been met.[1] I find that there are no 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 he will suffer significant harm: s.36(2)(aa).
[1] as per the judgment in MIAC vSZQRB [2013] FCAFC 33.
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.
Sheridan Lee
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 3877

14 July 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Jurisdiction

Appeal