1801918 (Refugee)

1801918 (Refugee) [2023] AATA 3430 (19 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr George Vassiliou (MARN: 0746634)
CASE NUMBER: 1801918

COUNTRY OF REFERENCE: Pakistan
MEMBER:Denis Dragovic
DATE:19 July 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 19 July 2023 at 9:55am
CATCHWORDS
REFUFEE – protection visa – Pakistan – political opinion – Pakistan Tehreek-e-Insaf Party – voluntary work for an NGO – land dispute – Taliban threats – return visits to Pakistan – internal relocation – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 January 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Pakistan, which I accept, applied for the visa on 10 March 2016.
The delegate refused to grant the visa on the basis that despite claiming to fear harm from the Taliban and a group of land squatters over a land dispute, the delegate found that ‘There is no evidence before me to support the assertion that [the] applicant is wanted or targeted by the Taliban or any other person or group for his anti-Taliban views - imputed or otherwise, or for his previous voluntary work with a NGO, or because of the family’s land dispute.’
The applicant appeared before the Tribunal on 30 May 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
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 (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.
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.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Evidence and findings of fact
The applicant was born in Kunzdar, Balochistan, as a Sunni Muslim where he lived through to [specified year] when he moved to Kohat in Khyber Pakhtunkhwa (KPK) to continue his education at [an identified] College. The applicant was [age] years old at the time.
During his early childhood living in Balochistan he explained that his father was [an occupation 1], who started a [business] there in the 1970s, although he was originally from KPK. The applicant had recollections of his father telling him that he had encountered some troubles with politicians as according to him, Balochs didn’t like outsiders. So, according to the applicant, for the safety of the family they all moved. While the applicant went to Kohat, the rest of the family went to [Town 1 in] KPK.
The applicant described Kohat as secure and safe and under the observation of the army. He stayed in a boarding school but would go to [Town 1] to visit his family. He claims that he went to Kohat in part because [Town 1] wasn’t safe noting that a cousin was shot dead in the past and the family had an ongoing land dispute.
[Details deleted.] To join [his employing agency], he still needed to go through a series of tests which he didn’t pass during his first attempt. While waiting for the second round of tests he travelled to [Town 1] and help his sister who was working on a polio vaccination campaign with an NGO. His job was to go door to door asking if they have children under the age of 4 and then calculate the dosage and give it to his sister to administer.
The applicant has [specified family members]. Their professions and locations are relevant and as such I will provide some detail.
One [Sibling] is [an occupation 1], [Sibling A], who lives in [Town 1] and has [a business]. [They] used to have a government job but according to the applicant, because of threats from the Taliban, [they] quit the government job. [They have a business] in the same street where the family home is, and [also number] children who live in the extended family home.
Another [sibling is Sibling B], who is [an occupation 2] posted to a [location] in a village about four hours from [Town 1]. [They return] to [Town 1] on the weekends. [Their] family which includes [number] children live in [Town 1] in the same extended family compound.
[Sibling C] is a business owner who owns a grocery store in [Town 1], and lives with [their] family separately to the extended family but still in [Town 1].
[Brother A] was a [rank] in the army and had served in Khyber Agency as well as North Waziristan Agency. After retiring in [year] he moved to [Country 1] together with his family where he works as a consultant.
The applicant’s [Sister A] works in [a named agency] in Mansehra, the district capital which is about [distance] from [Town 1 variant]. She lives in accommodation provided for her by the [agency].
The applicant arrived in Australia in August 2007 on a [student] visa. He has subsequently remained in Australia since then on various visas and returned to Pakistan on three occasions. The first was in 2011 due to his mother having [surgery], a second time in 2012 to attend his sister’s wedding and a third in 2014 to attend his brother’s wedding.
The applicant explained that during each of these visits he didn’t visit or stay long in [Town 1]. He said that during his 2011 visit he stayed with his brother, the now retired [rank], who was based in Rawalpindi at the time while his mother was in a hospital in Rawalpindi. During his 2012 visit he did visit [Town 1] but claimed not to have stayed there long and instead stayed in Islamabad. Similarly, during the 2014 visit he stayed in Lahore and Islamabad.
The applicant’s mother and father have both passed away.
When I asked the applicant where he would return to free from fear, he said [Town 1] as he considers it his home town. He said that he used to visit it when he was young and his whole family is there.
The applicant claims that his family have a land dispute with another group who are conservative and hold extremist views. He said that the dispute has been in the courts since 2007, and that they had a win in 2010; another win in the Court of Munawar [named Judge and district] in 2013; and another win in the [named court] in 2019, but then the other side are claimed to have appealed to the High Court of the province. A scanned document was provided which is a petition by the opposing group appealing the decision of the [identified] judge to the Peshawar High Court.
The applicant is unsure of the size of the land but said that it includes flat lands, water and mountains. He said that it can provide livelihood for 700 people.
According to the applicant, the land dispute emerged when the other group sought an opportunity to utilise some of the land for one season which was agreed but then they refused to leave. He said that they erected fences and established farms. When this other group did not leave, as required of them in around the 2001, the applicant said that his family went to meet with them, but they were met with machine guns. As a result of the tensions his people moved to [Town 1] and worked on other people’s land. He said that these people struggled following the move.
Based upon the documents available to the Tribunal the official respondent is [Cousin A], son of [Uncle A], who is the applicant’s uncle and has been deceased for 5-6 years. The applicant said that although [Cousin A] is the official respondent his brother, [Sibling A], the [occupation 1], does the paperwork and engages with the lawyers. The applicant added that the opposing party have stopped attending court.
The applicant said that [Cousin B], another son of [Uncle A], was murdered in 2001 or 2002. The death occurred when they went to take control of the land thinking that they would talk to the other party but instead it was claimed that the other party started firing and [Cousin B] died.
The perceived threats to the applicant’s family is claimed to have led to changes in their behaviour including his brother quitting a government job in a village that would take him through that area which had led to him being threatened every day. The applicant said that his brother quit that role in 2009 after working for the government in that role for about 7 years.
The applicant described a threat that his family received as a result of the land dispute. He said that at one point a man came to the street where they were living and told a shopkeeper to tell the applicant’s brother, [Sibling A], that he should take care of himself as he travels through the area.
The applicant fears that this group of land squatters have joined the Taliban and will seek revenge on his family. He said that the area is a mountainous region, and that [Town 2] where the Taliban are known to be, is close. He claims that some people have seen the Taliban carrying weapons in [Town 1]. He said that they live on the land that is in dispute.
He claims that the tribe that this group is a part of is known for land grabbing activities and that they have done the same in other locations and are an influential tribe aligned with the Taliban.
He believes that the judiciary and police have been compromised. I put to him that his family won in court three times which would indicate that they aren’t that powerful or have had success in compromising the judiciary. He responded that they still haven’t received the land.
The applicant provided a copy of an article that described the actions of a man called [Mr A] who he claimed had threatened his sister. He claims that [Mr A] came to the [agency] where she worked and threatened her, but as other staff came, he threatened them as well. Despite this his sister continues to work in the [agency].
Another document from the [agency] to the police indicates that [Mr A] threatened the staff without mentioning the applicant’s sister specifically. While this letter appears to suggest it was a separate issue and not related to the applicant’s sister, I accept the applicant’s narration that at least on one occasion [Mr A] specifically targeted her as there is no need for the [agency] to specifically name the sister in the letter to the police. A second letter dated [in] March 2023 supports this view by noting that the applicant’s sister made a specific claim against [Mr A].
The applicant said that [Mr A] couldn’t go to [Town 1] and threaten his family as there are too many of them who all live together, and it would be too dangerous for [Mr A].
Prior to coming to Australia, the applicant volunteered for an NGO for four months in 2007 working on a polio campaign. In his written statement he wrote that he had volunteered since 2005, but as the applicant was in Kohat at that time through to August 2006, I find that this was an inadvertent error and accept his oral evidence. Even were I to find that his volunteering began earlier, the relevance to the matter at hand of a few additional months of volunteering is negligible.
The applicant wrote in his statement accompanying his application for the visa that his work with NGOs put him at risk as there is an assumption that NGOs work for foreign agencies against the religion. The applicant described in his statement and at the hearing how in May 2007 while he was at the mosque a group of men were looking for him. He claims that the imam told him that they had asked about him. When he met them, he claims that they hit him with the butt of a rifle and threatened him about his volunteering with an NGO alongside his sister.
I put to him that the incident was in 2007 at the height of the power of the Pakistan Taliban and a time where they controlled large swathes of KPK. I asked him under the current circumstances how would his past volunteering for an NGO be remembered. He believes that it would still be remembered that he volunteered for an NGO. He said that people don’t forget, noting that [Town 1] is not a big city and people know about each other. He said that without the presence of the United States in Afghanistan more Taliban will be coming across the borders. I acknowledged this possibility but noted that [Town 1] is not in a border area. He said that they use the area as a training camp. He noted the proximity of Abbottabad, where Osama bin Laden was captured and killed, to his hometown of [Town 1].
In considering the applicant’s past volunteering I note that it has been approximately 16 years. But I accept the applicant’s reasoning that it’s a small town and in addition his family is well known and as such his activities in the past would have been well known and would continue to be remembered. As such I accept that his volunteering on a polio campaign for an NGO would be known.
I also add that it was a polio campaign that was used as cover to determine that Osama bin Laden was living in the Abbottabad compound. As the Guardian report in 2011: ‘The CIA organised a fake vaccination programme in the town where it believed Osama bin Laden was hiding in an elaborate attempt to obtain DNA from the fugitive al-Qaida leader's family.’[1] That the applicant participated, albeit four years earlier in the polio campaign would leave an additional degree of prominence to the applicant’s past circumstances.
[1] >
In 2011 when the applicant was returning to Pakistan to visit his mother, he claims that he was threatened over the phone by the Taliban that they had to pay 2 million rupees or otherwise he would be killed. He claims that the caller supposed that the family had the money as they mentioned that as his family can send him overseas to study, he must have the money. The applicant said that nothing happened despite no money being paid. He claims that he returned to Australia immediately after these calls.
The applicant claimed that in 2016 two of his [siblings] received threatening phone calls during which the callers noted that the applicant was back in Pakistan. The applicant acknowledged that nothing happened following the calls, though the applicant wrote that his [Brother A] returned earlier to his then posting due to the threats. The applicant also claimed that at the instigation of the land squatting group their family have been spoken ill of by an imam and even cursed by him.
Regarding the applicant’s brother, [Brother A], who was in the military, the applicant claimed that during his postings he undertook some operations against the Taliban in 2007 or 2008. He claimed that he received threats when he went back to [Town 1] as recently as 2020.
The applicant confirmed that other than what has been described in this decision none of the [family members] have been attacked or harmed.
The applicant described the circumstances of a [Relative A] who [details deleted]. The applicant claims that the [Relative A] was abducted by the authorities while in Islamabad. Initially the [Relative A] [worked for] the Pakistan Tehreek-e-Insaf (PTI) party, which is the party headed by Imran Khan. The applicant said that he was abducted for a couple days but wasn’t harmed other than suffering humiliation. The applicant said that the authorities took him and later apologised for how they treated him. An article was provided of this incident [details deleted.]
The article [describes] the circumstances has having occurred during a protest and the [Relative A] being arrested in a ‘terrorism case’.
I asked how this situation would affect the applicant. He said that his [Relative A] is now in hiding. He explained that everyone in his family are supporting the PTI and that the government is cracking down on the PTI including the police coming to people’s homes. I note that the applicant has not claimed to be a PTI worker nor that he would be in the future.
I find the applicant to be a credible orator of events and as such accept evidence that he has provided regarding past and present circumstances. I do not include in this acceptance his interpretation of these events and how they may impact him which is now considered further below.
Considerations
There are three aspects to the applicant’s claims. Those fears of harm that arise from his past, those that arise as a result of his family’s circumstances and those that are new circumstances. I will address each separately.
The applicant has claimed that his past work with NGOs providing polio vaccination which were used as a cover in the capture of Osama bin Laden will lead to him facing harm as he claimed he had faced earlier in the form of threats. In considering this claim I note that his last presence in the country for any extended period was about 16 years ago. While I have found earlier that in smaller towns people don’t forget, I also find that he is no longer front of mind to those who may be potential persecutors. This doesn’t mean that his circumstances may not make him a priority, a matter which I discuss further below, but from the perspective of his past circumstances and actions, I find that he does not face a real chance of serious harm or a real risk of significant harm were he to return to [Town 1].

In considering the level of harm he faces arising from his family’s circumstances, I note that his family is involved in a land dispute, that one of his brothers was in the military and had undertaken operations against the Taliban, and that his sister had worked for an NGO which had provided polio vaccination. In addition, the family, I found, would be considered above average in status and wealth and as such influential in their community.
The family who has all remained in Pakistan either in [Town 1] or nearby have at various times been threatened including by telephone, via third parties conveying a message such as a shop keeper or directly such as the applicant’s sister who was confronted in the [agency]. Despite the geographical proximity to those who are threatening them, an conservative Islamic affinity if not a relationship with the Taliban, and the clear knowledge of where the applicant’s family live and work, none of his family have been physically harmed. The applicant provided a news article that described the death of a man and woman and four others being injured in a land dispute in Mahsehra, which I accept supports the case that land disputes in Pakistan and specifically in Mahsehra can lead to violence.
While the past is not necessarily a predictor of the future and the specific circumstances of the present need to be taken into account, that the applicant’s siblings have not been harmed over a period of 16 years since the applicant left Pakistan including family members who have taken a very proactive role in the land dispute, strongly indicates that the threats from the land squatters, their purported allies the Taliban or imams who speak ill of them and other claimed sources of risk to the family members, including the applicant, are of a low level nature.
When considering the applicant’s specific claims of fearing harm, it is necessary to consider the general security situation in Mansehra. The reason for turning to this consideration is that a perilous security environment amplifies certain individual risks, including many of the type the applicant fears, whereas a more secure environment mitigates them. When there is chaos that accompanies conflict, as there was during the height of violence in 2009 and 2010, targeted killings, retribution, political assassination and other forms of violence can and did occur with virtual impunity. With greater security these events are constrained if not eliminated. To undertake this assessment of the security environment, I shared with the applicant quantitative information including the number of terrorist incidents and civilian deaths in his district. I also considered country information presented by the applicant.
I presented to the applicant data from the South Asia Terrorism Portal regarding civilian deaths in the entire Mansehra district within which lies [Town 1]. I noted that there have been zero deaths arising from terrorist activities in each of the years reaching back to 2017 when there was one death and then none again in 2016 and three in 2015. I put to him that based on this data I classified it as a safe place which would support a view that the Taliban are not active even though twelve years ago Osama bin Laden was captured in Abbottabad and that at some time in the past they had training camps in [Town 2]. The applicant cited an incident in which two men were given the death sentence for having killed 13 people in a suicide attack in 2020. The applicant said that the location of that attack was near them. But I noted to the applicant that the incident occurred in a separate district some distance away from [Town 1]. The applicant responded that the general reporting is focused on political issues and so many security incidents aren’t reported. No third party evidence was provided to support this view. Overall, while it is possible that some incidents aren’t reported, the SATP draws on a variety of sources as can be seen from its detailed daily reports of incidents and as such I give considerable weight to the robustness of the SATP data.
The Pakistan Taliban’s strength was rightly raised as a factor that may influence the applicant’s situation. In 2021 the United States pulled out its armed forces from Afghanistan which in turn led to the collapse of the Ashraf Ghani led government and the installation of an Afghan Taliban government. The applicant has claimed that this situation has changed the circumstances facing the applicant vis-à-vis the threat from the land occupiers as the Taliban are now emboldened with a base and support networks. The applicant fears that this will lead to him facing harm from the land occupiers who he claims are affiliated with the Taliban. In considering this claim I note that it has been two years since the fall of the Ghani government and there hasn’t been any uptick in terrorist violence in Mansehra district. While I accept that there was an incident in a neighbouring district in 2020, which led to 13 deaths, the evidence before me suggests that the applicant’s home village and the district are safe despite the changed geopolitical environment. Even if the situation does change, and the Pakistan Taliban re-establish themselves in the border regions as had occurred before and noting the submissions by the applicant’s representative that the Taliban are in the ascendency, I raised at the hearing that [Town 1] is not on the border with Afghanistan. While being away from the border does not preclude the Taliban from being active, it does nevertheless add an additional layer of security as fewer Taliban will be operating further afield from their bases.
I now turn my mind to consider the situation the applicant faces arising from his family’s land dispute as well as other factors such as his brother’s involvement in the military. It is relevant that none of the applicant’s siblings have been hurt. This could be for various reasons including but not limited to the families who have taken the land not having the means or the will to harm them; or as discussed above, the security situation is such that it provides a deterrent to any intentions those families may have. Either or all of these align with the fact that the applicant and his siblings, while receiving threatening messages via various means, have not experienced physical harm since the original confrontation that led to the death of the applicant’s cousin.
In considering the situation into the reasonably foreseeable future, I find this period to include the family continuing to pursue their legal claim over the land in the courts. But it would be speculative to consider it further by supposing how the Peshawar High Court may rule on this dispute and how the authorities may act thereafter in following through with any ruling.
Considering that the matter has seen three favourable outcomes in the courts for the applicant’s family and yet there has not been any physical harm against any member of the family as retribution for their ongoing efforts, I find that into the reasonably foreseeable future the applicant may receive some verbal threats but that this nor any other actions that he faces does not amount a real chance of serious harm or a real risk of significant harm arising from his family’s land dispute.
The applicant’s representative provided a considerable amount of geopolitical assessment of the situation in Pakistan including referring to the country as being ‘on the brink’ among other commentary. While these opinions were heard, I place minimal weight on them as the representative has not presented to the Tribunal his qualifications to present on such issues or is a known and recognised expert on Pakistan. As such I have only taken into consideration expert or third party opinions on the future of Pakistan.
I have also considered the family’s political stance in the broad understanding of that term, namely being supporters of the army and being related to a member of [thePTI] and generally supporters of the PTI. As supporters of the army this would expose the family to risk from those who oppose the army which at the hearing were identified as the Pakistan Taliban. As discussed above, in the specific circumstances of [Town 1] I find that the family’s long support of the army is well known and note that it has not brought harm to them to date and as such with the caveat of the geopolitical situation having changed with the Taliban controlling Afghanistan, drawing on past experiences, I find that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from the family’s support of the army.
I have also considered the family’s support of the PTI which has recently been targeted by the new government. I accept that the applicant’s [Relative A], a high profile PTI leader, was detained and subsequently released. I acknowledge the purge that is ongoing against the PTI, but in considering the circumstances of the applicant in the wider context of his family’s activities, I note that no one of his family was claimed to have been politically active. The applicant himself is not politically active. No one of these low profile supporters in the family has been detained. As such while there is a purge against PTI leaders such that his [Relative A] was detained, no evidence was provided to support the view that supporters of the PTI would be targeted by the authorities and especially not in the circumstances of a family who have a [rank] who has served in the army in their family.
Arising from his written material the applicant has also claimed that he fears harm arising from his lengthy period abroad and a perception that he has aligned himself to the West creating an animosity against people returning from overseas. In addition, a perception of being rich and that this would lead to him facing a threat of kidnapping and demands for protection money through to being ripped off by people in general day to day transactions.
I read to the applicant material from the DFAT report which indicates that DFAT assesses returnees to Pakistan don’t face significant risks of societal violence or discrimination but that it can occur arising from the reason for the departure in the first place and for reasons associated with the behaviour of the person while abroad.[2] The applicant said that he would be expected to be very rich and believes that someone would ask him to pay protection money. I note that at an earlier return to Pakistan he faced an attempted extortion. But I note that the evidence presented to the Tribunal was that the person attempting to extort the applicant suggested that the family were rich for having sent the applicant abroad and not that he was perceived rich arising from having accrued wealth while abroad. He also said that people start taking money from the moment you arrive to the airport by asking much more than what the taxi fare should be and that this keeps going on through to applying for work and having to bribe officials.
[2] DFAT [5.31]
In considering whether the applicant faces a real chance of serious harm or a real risk of significant harm arising from his time abroad in a Western state I note the applicant returned three times to Pakistan without providing claims to have experienced any of the types of incidents that suggested occurs to returnees other than the phone call with a demand for 2 million Rupiah. Based upon his past experience of returning to Pakistan, the DFAT reporting and noting that the family would all be considered relatively wealthy anyway, regardless of whether the applicant had returned from overseas or not, I find that into the reasonably foreseeable future the applicant does not face a real chance of serious harm, nor does he face a real risk of significant harm arising from the necessary and foreseeable consequence of removal.
The applicant’s claims that he won’t find work unless he pays a bribe, was not supported by evidence, but giving the applicant the benefit of the doubt based on what he may have heard from others, I accept that for him to find a job that he aspires to, he would need to bribe someone. But this is not the relevant test. In considering whether the applicant faces a real chance of serious harm or a real risk of significant harm I note that he has extensive family members in [Town 1]. His family is well off, well known and well regarded according to the evidence he provided, although, he self-identified his family as being average in an income sense, but prominent socially. By no means do I accept that they are ‘average’ in any sense considering the evidence he provided including that they own land that several hundred people could sustain themselves on and noting the professions of his siblings. In such a situation I find that the applicant will not be destitute or left without a shelter or source of sustenance. Instead, I find that his family would support him and as such I find that not being able to find work for whatever reason including for discriminatory reasons, in the applicant’s case does not amount to serious or significant harm.
The applicant’s representative asked for an opportunity to provide post-hearing submissions. It was agreed that the applicant would have four weeks to provide them, and a deadline of 27 June was agreed. As of the date of this decision no submissions were received.
Cumulative considerations
In considering the circumstances cumulatively, namely those identified as arising from his past, those that arise as a result of his family’s circumstances and those that are new circumstances, I note that in many instances they overlap. This overlap compounds the risks as, for example, being known as someone who participated in the polio campaign which was method used four years later to capture Osama bin Laden together with the final court battle may lead to the applicant being publicly maligned as a means to pressure his family to withdraw from the case. But in such a situation and in considering other combinations and permutations I find that the applicant does not face a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary consequence of removal.
For the reasons given above, I am 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), I have considered the alternative criterion in s 36(2)(aa). In this instance I am 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.
Denis Dragovic
Deputy President

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.
…

[2023] AATA 3430

19 July 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice