1727658 (Refugee)

[2022] AATA 1380

1727658 (Refugee) [2022] AATA 1380 (8 April 2022)

Corrigendum

DIVISION:Migration & Refugee Division

CASE NUMBER:  1727658

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Peter Vlahos

DATE OF DECISION:  8 April 2022

DATE CORRIGENDUM

SIGNED:13 April 2022

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

·At paragraph 23, delete the sentence: ‘The applicant finds the applicant’s claims are vague and lacking in detail.’ and replace it with the sentence: ‘The Tribunal finds the applicant’s claims are vague and lacking in detail.’

Peter Vlahos
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1727658

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Peter Vlahos

DATE:8 April 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

This Statement was made on 8^th April 2022 at 8.50AM

CATCHWORDS

REFUGEE – protection visa – Pakistan – applicant and friends kidnapped by security agents, beaten and accused of belonging to extremist group and organising terrorist attack – threats and monitoring – no appearance at hearing – applicant’s responsbility to specify particulars of claim and provide sufficient evidence – delay in applying for protection – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5H(1), 5J(1), 36(2)(a), (aa), 65

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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 31 October 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Pakistan, applied for the visa on 6 November 2015. The delegate refused to grant the visa on the basis that the applicant did not satisfy sub-section 36(2) of the Act.

   History of Proceedings

3. The applicant was invited to attend a scheduled hearing of this matter on 18 May 2021 at 9.00am. The applicant failed to attend the scheduled hearing of the matter and provided on reasons written or verbal to the Tribunal.

4. On 18 May 2021, the Tribunal determined that the matter be dismissed with a right of reinstatement.

5. On 1 June 2021 the applicant wrote to the Tribunal seeking the reinstatement of this matter and scheduling for a hearing before the member.

6. On 12 August 2021 the Tribunal wrote to the applicant informing him that due the imposed lockdown by the Victorian government, which was to be in force until 19 August 2021, the scheduled hearing of this matter would not proceed on 16 August 2021.The Tribunal also informed the applicant (in writing) that it was seeking the applicant’s consent and indication how the applicant would wish his matter to be heard by the Tribunal once hearings could be resumed. The applicant was provided with various options, for example, ‘teleconference’ of via ‘Microsoft Teams’ or ‘Zoom’. The Tribunal also indicated to the applicant, that it would require his preference of contact to be provided to the Tribunal no later 12 August 2021.

7. On 23 August the applicant wrote to the Tribunal the following (via email):

   “G’Day

   As Taliban won the Afghanistan battle through help of Pakistan…please allow me to remain permanent in Australia as I given half of [my] life to this country …please Chuck me under the Afghan PR scheme and help please get a way out through …

   I will be praying peace for your upcoming generation…

   Cheers, thanks heaps …ciao”

8. On the 29 November 2021 the Tribunal wrote to the Applicant indicating that it was considering holding a hearing in January 2022 and requested the applicant provide his response concerning this suggestion by 10 December 2021.

9. No response was received.

10. On 14 December 2021 the Tribunal wrote to the applicant informing the applicant that a scheduled hearing would be held at 9.00AM on 27 January 2022.

11. No response was received from the applicant and the hearing did not proceed.

12. On 15 March 2022, the Tribunal wrote to the applicant informing him that a scheduled hearing would be held (in-person) on 6 April 2022 at 9.00AM. The applicant did not attend the hearing at the appointed time and did not provide the Tribunal with any explanation as to why he could not attend.

    Criteria for a protection visa

13. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

14. 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.

15. 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).

16. 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.

17. 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

18. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF Claims and evidence

19. The issue in this case is whether Australia has protection obligations in respect of [the applicant]. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Country of Nationality and Identity

20. Based on a copy of the applicant’s passport, which was provided to the Department of Immigration & Border Protection (the Department) and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of Islamic Republic of Pakistan and has had his claims assessed against that country in relation to sections 36(2) (a) and 36(2)(aa) of the Migration Act (the Act).

21. Based on the abovementioned evidence, the Tribunal further accepts the applicant’s identity as claimed.

    Protection Claims of the Applicant

22. The applicant’s claims for protection, including those provided at the departmental interview, and supporting evidence are contained in the Department’s File no. [Number]. The applicant’s claims are summarised as follows:

    §The applicant does not feel secure enough mentally and physically, and his life was in danger because of incident that took place while he was studying in Australia. He and some fellow students were kidnapped by some security agency in Pakistan who later disclosed themselves to be Pakistani CIA. They took the applicant and his fellow students to an unknown place and put mask on their face so that they cannot see outside. They hung one of his friends upside down and started hitting him with a belt until he was numb;

    §They asked him questions about who they work for and what they have been planning to do while student. They asked if the applicant and his friend were planning a terror attack. His friend was not able to answer because he was screaming in pain. The applicant claims that they already told these Pakistani CIA that they do not have any involvement with any political group. But their captors did not listen to them and beaten them one by one;

    §The applicant claims that they were made to bleed and cry all day. They were accused of being suspected TTP. They were given a night to accept all charges and warned that next day they will see more fun;

    §His captors said that if the applicant and his fellow students do not have criminal record, they will make one for them implicating them to be TTP members. They said they have to report to their seniors and if the applicant and his friends are really innocent, they will be in trouble. Being a reputable agency, there is risk that the applicant and his friends will tell the media how they have been tortured despite being innocent. Therefore, it will be better to kill them and make them disappear;

    §The applicant and his friends were locked in different rooms for the night. He managed to escape and after a few kilometres of running, he hailed a truck. He went to his aunt’s place knowing that they will look for him in his own residence. He told his family where he was and that he was safe. His kidnappers went to his house the same day looking for him;

    §The applicant claims if he returns to Pakistan, he will be killed straightaway. His family has been constantly monitored and followed by these people in Pakistan;

    §The applicant claims that as soon as he returns, he will be taken for special kind of hospitality. It will start by hitting and punching. Then they will undress him and hit him with oiled hunter which they use for horses. Since he had ran away for seven years and he knows their secrets, they took (sic) his nails off, break his backbone and torture him sexually;

    §The applicant did not seek help in Pakistan because ‘CIA’ is the most reputed organisation, but their protectors and the people they work for are racist. He speaks Urdu and these people are local Sindh. If he complains about them, he will be handed over to this agency and be killed;

    §The applicant does not think the authorities will protect him. He thinks the authorities will hand him over to the agency; the court will grant 90 days remand and in those 90 days, he will be tortured like a terrorist. He will be tortured to accept whatever they say;

    §The applicant did not try to relocate elsewhere in Pakistan because ‘CIA’ has people all over Pakistan and they have his details including his National Identity Card number. They will track him down wherever he goes.

23. The applicant finds the applicant’s claims are vague and lacking in detail.

24. Section 5AAA of the Act makes it clear that it is the applicant’s responsibility to specify all particulars of a claim to person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The tribunal does not have any particulars of the applicant’s claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.

25. The applicant did not attend the Tribunal hearing despite being advised that the Tribunal had considered all the material before it in relation to his application, but it was unable to make a favourable decision on the information alone. Had the applicant attended the hearing, the Tribunal would have explored the applicant’s claims with him, in particular, his claim, that while in Pakistan undergoing his studies he was “kidnapped by some security agency in Pakistan” who later (according to the applicant’s claims) “disclosed themselves as the Pakistani CIA.” More to the point, the Tribunal would have engaged with applicant in order to ascertain the motives and reasons why a security and intelligence service of his country had sought him out? The Tribunal would have examined the applicant’s past life in Pakistan as a possible avenue for explaining the reason or reasons why the applicant was as he claimed a ‘person of interest’ to his country’s intelligence service.

26. The applicant also claimed that he had been taken to an undisclosed place where he threatened and interrogated by the (as he described it) “Pakistani CIA”. The Tribunal would have asked the applicant – why, Pakistani intelligence consider possible, that he and his friend (who was also interrogated) were suspected of “planning a terror attack.”

27. Included in the applicant’s claims that required for analysis and explanation was for example, the applicant’s assertion, that he was a suspected of being a “TTP member.” The Tribunal would have invited the applicant through examination to explain to the Tribunal for example, what was his knowledge of the organisation which he had identified to Department as the TTP. Also, the Tribunal would have inquired of the applicant to provide some knowledge (if he had that knowledge) concerning this organisations aspirations, platform and activities currently in Pakistan.

28. The applicant claimed that he had been blackmailed by the security service that if he continued with his activities (as they had observed them to be) they would invent a “criminal record” for the applicant and “his friends.” The Tribunal would need an explanation to the applicant’s claim – why this security organisation considered him and his friend’s implicated in the organisation known as the TTP.

29. The Tribunal would also examine the applicant’s assertion (if he had attended the scheduled hearing) why he was of the belief, that if he returned to Pakistan “he will be killed straightaway.” Also, he would have to explain his assertion that his family members were constantly subject to security surveillance.

30. Further and in relation to the available country information on Pakistan[1] the Tribunal would seek from the applicant an explanation as to why there is no country information or open-source references referring to the existence of a ‘Pakistani CIA’ or an intelligence organisation that is alternatively called ‘CIA of Pakistan.’ The national intelligence agency of Pakistan is referred to as the Inter-Services Intelligence’ which is a widely known organisation within the Pakistani citizens. There are references to the existence of US intelligence organisations which reportedly operate in many countries including Pakistan. However, the Tribunal (like the delegate in his decision) could not identify such an organisation.

    [1] see DFAT Country Information Report – Pakistan updated 25 January 2022

31. The Tribunal would have also discussed with the applicant the country information[2] which indicated that enforced and involuntary disappearances was an on-going phenomenon in Pakistan and attempted to ascertain details from applicant concerning his abduction: for example, why did he assert that it was a ‘Pakistani CIA’ and what did he mean about the Pakistani CIA was a ‘local Sindh people.’  

    [2] Freedom House, ‘Freedom in the World 2017’ (Section F. Rule of Law), 31 January 2017, >

    The Tribunal would have also asked the applicant to explain – according to his claims, he was in hiding until he arrived in Australia. The Tribunal noted that the passport that he used to travel to Australia was issued in [2007] and his Australian visa was granted in 2008. The applicant came to Australia using what appeared to be a genuine Pakistani passport. The applicant did not claim any issues or impediments to his obtaining his passport or encountered any hindrance at the border when he chose to depart Pakistan.

32. DFAT Country Information Report 2016 on Entry and Exit procedures in place in Pakistan states:[3]

    5.26 Under the Exit from Pakistan (Control) Ordinance 1981, the Government of Pakistan can prevent any person with valid travel documents from leaving the country. The government maintains an Exit-Control List (ECL) of those wanted for existing criminal offences, which is used at all Pakistani airports and border transit points. Credible sources have also told DFAT the government maintains a separate ‘Black List’ (BL) to record the details of all involuntary returnees, and that those on the BL are unable to hold or obtain passports. DFAT notes media reports from September and November 2015 which indicate that the ECL is used to record the details of people who have committed anti-state activities, including espionage and terrorism, while the BL is a list of those who have committed immigration-related offences, including document fraud, people smuggling and travelling without a passport. These reports also indicate the government has drastically downsized both the ECL and BL; replaced the BL with separate Passport Control and Visa Control Lists (the PCL and VCL respectively); and adopted new policies to ensure that placement on the ECL, PCL and VCL only takes place pursuant to an adverse finding by Pakistani courts, tribunals and security agencies, and is limited to three years in duration, or to those who have committed anti-state/terrorist activities. There are reportedly 5,000 names on the ECL, 27,452 on the VCL, and 9,660 on the PCL.

    [3] Department of Foreign Affairs and Trade 2016, DFAT Country Information Report Pakistan, 15 January, Section 5.26, p. 22, CIS38A801264

33. Based on this available information, the Tribunal would have asked the applicant – how was he able to obtain a legal passport from the Pakistani authorities when he claimed that an intelligence service had him under suspicion and monitor.

34. Finally, the applicant’s delay in making his protection application would be considered and an explanation sought from the applicant as to why he had chosen to apply for a protection visa on 6 November 2015 and not earlier having arrived in Australia [in] May 2008.[4]

    [4] see, decision record, Department of Home Affairs File, at p.7

35. On the basis of the above available evidence, the Tribunal does not accept that the applicant had fears an intelligence service or organisation attached to the Pakistani state had him monitored or that he had been abducted, torture, threatened and blackmailed by this intelligence service for the reason that he was suspected (together with his friends) as being members of TTP – and for having attempted to organise a terrorist attack. Indeed, on the available evidence the Tribunal does accept that as a result of these occurrences the applicant would face a threat from the Pakistani CIA if he was to return to Pakistan.

1. Considering the applicant’s individual circumstances, on a cumulative basis, the Tribunal finds there is no real chance that, if he returns to Pakistan the reasonably foreseeable future, he would be persecuted for any reason. His fears are not well-founded as required by s.5J of the Act and therefore, he is not a refugee within the meaning provided by s.5H of the Act.

2. Considering the applicant’s individual circumstances, the Tribunal finds 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, he will suffer significant harm.

   Conclusions

3. 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).

4. 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).

5. 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

6. The Tribunal affirms the decision not to grant the applicant a protection visa.

   Peter Vlahos
   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.

   …

   
   

Country Report on Human Rights Practices 2016 – Pakistan, US Department of State, 3 March 2017, OGD95BE926859; UN Human Rights Council, ‘report of the Working Group on Enforced or involuntary Disappearances, Addendum: Follow-up report to the recommendations made by the Working Group: Missions to Pakistan and Congo’, (paragraphs 24-27) 13 September 2016, A/HRC/33/51/Add7, available at: