1804704 (Refugee)

1804704 (Refugee) [2021] AATA 3883 (14 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1804704
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Luke Hardy
DATE:14 July 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 14 July 2021 at 2:39pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – religion – Shi’a Muslim – threats of harm by Sipah-e-Sahaba (SES) – father killed – self-flagellation as a conspicuous sign of being devout Shi’a – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 65, 116, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Sun v MIBP [2016] FCAFC 52
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 February 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, [named], is a Shi’a Muslim citizen of Pakistan from [City 1] near Rawalpindi. He entered Australia [in] September 2014 on a student visa issued to him earlier in the month. On 25 October 2016, he received a Notice of intention to consider cancellation of the visa under section s.116 (General Power) of the Act. He lodged a protection visa application two weeks later on 8 November 2016. He claimed fear of being persecuted in Pakistan for reasons of “religion.” (See CRITERIA FOR A PROTECTION VISA below.)
The delegate refused to grant the visa on the basis of independent country information and found that [the applicant] could modify his behaviour in Pakistan to avoid being persecuted without any of the implications described in s.5J(3) of the Act. (See attachment below.)
[The applicant] then sought merits review in this Tribunal and the matter was been constituted to me.
The hearing was originally scheduled as a face-to-face hearing, but [the applicant] asked if it could be changed to a video or MS Teams hearing, citing hearing impairment on his part that would be better overcome using appropriate audio equipment. The Tribunal agreed to this request.
[The applicant] appeared before the Tribunal on 8 July 2021 to give oral evidence and present arguments. He was accompanied by his adviser. The hearing was held during the current COVID-19 pandemic lockdown. I exercised the Tribunal’s discretion to hold the hearing by telephone, determining it reasonable to do so, having regard to the nature of this matter and [the applicant]’s individual circumstances. I also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and to avoiding delay in this matter if the hearing were not to be conducted by telephone.
The hearing was attended by an interpreter in the English-Urdu medium who was not required except to translate a very short part of my introduction to the proceedings.
There were no significant audio issues during the hearing. After we resumed from a short adjournment there were a few instances of short sound “drop out” so that [the applicant] needed to repeat a few individual words that were affected. Overall, I am satisfied that [the applicant] was provided a fair opportunity to present his claims.
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, he or she 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: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she 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 that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she 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.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration - PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines - and relevant 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
The issues
The main issue in this case is whether, on accepted evidence, [the applicant] is entitled to protection in Australia as a refugee or, if not, on complementary protection grounds.
For the following reasons, I have concluded that the decision under review should be affirmed.
Claims
In his application to the Department of Home Affairs (the Department), [the applicant] claimed to have been raised in Pakistan’s minority Shi’a stream of Islam, the country’s greater population being Sunni. He claimed that although he came to Australia to study, his main reason in coming here to seek protection from religious persecution. He claimed he was treated as a “infidel” during his student life in Pakistan. He said he and his family were specifically targeted because they practice a more “physical” manifestation of their faith including public group self-flagellation during annual Ashura mourning observances. He claimed to have started participating in these activities from the age of seven and had done so every year since then.
[The applicant] claimed that in 2008 during the period called Muharram, an Ashura gathering in Chakwal that he was attending was targeted by a suicide bomber, killing 21 persons.
[The applicant] claimed that during his college years in Pakistan there were several strikes against Shi’a groups.
[The applicant] claimed that in 2012, a religious march that he was participating in was attacked by a Sunni Muslim group in plain sight of security forces. He claimed that a friend of his was shot and killed on that occasion. He claimed that he himself suffered a stab [wound] at that time. He said he believed that the attackers belonged to the extremist Sunni group called Sipah-e-Sahaba (SES).
[The applicant] claimed that he continued to practice his faith with greater passion and faith in spite of these attacks and became well-known and prominent as a person who is extremely devout and capable of withstanding extreme pain.
[The applicant] claimed that he and a group of students, all members of the Imamia Student Federation (ISF) would partake in “extreme” measures to display their faith through self-flagellation with whips with blades and/or chains. He said was the General Secretary of the ISF group in his college.
[The applicant] claimed he used his father’s position as a police officer to secure police help when organising gatherings and 'majlis' meetings at the mosque. He claimed he was “the face” of his college’s ISF chapter and that he would often speak at rallies. He claimed to be proud of the scars on his body acquired during self-flagellation. He did not refer to any occasion on which he was harmed or threatened in response to his speaking at rallies.
[The applicant] claimed that in 2013, he visited Rawalpindi during Muharram and attended the Ashura march there that was notoriously attacked, with 35 people killed in the violence. This event, I observe, is widely documented. As [the applicant] claims, the entire city was shut down as a result of these attacks. [The applicant] described having to walk almost 20km in order take his lELTS examination at that time, which indicates that he travelled to Rawalpindi with the intention of preparing his student visa application even before attending the ill-fated Ashura march.
[The applicant] claimed that after the attack on the march in Rawalpindi he made arrangements to leave his country and travel to Australia. However, I note again the evidence above, to the that he travelled to Rawalpindi already intending to sit the IELTS test.
[The applicant] claimed that after he arrived in Sydney he found himself on a “downward spiral’ due to his fears and emotions at the thought of having to return to Pakistan one day. He said he felt this way because he experienced “freedom” in Australia. This is apparently notwithstanding that public self-flagellation in Ashura marches or any other context is banned in Australia.
[The applicant] described being on the one hand happy that he did not need to hide his religion or look over his shoulder during the traditional Shi’a month of grieving for fear of being attacked or receiving news of another friend being killed and, on the other, being so immobilised by fear that he could not keep up college attendance. He claimed his fears continued to escalate even after he moved to Melbourne to the point where he could not sleep at nights or think straight. [The applicant] said that because his father had been a police officer in Pakistan, he had generally felt somewhat protected. He said, however, that his father was killed in November 2016 and feared that he too would be killed. He said that when his father was shot, his brother was with him and saw someone from SES. He said his brother lodged a First Information Report (FIR) with the Pakistan police who took no action. He said he believed that SES killed his father because he, [the applicant], had been providing security at Shi’a gatherings with his father’s help. I note that he was later to posit at the Tribunal a different reason for the SES killing his father.
[The applicant] said that when his brother took his father from the scene of the shooting to the hospital where he was pronounced dead, his brother called him and told him not to return to Pakistan.
[The applicant] claimed that his father was killed three days after he told his family that he was not returning to Pakistan.
[The applicant] claimed he would suffer serious injury, torture or death if forced to return to Pakistan. He said he had personally witnessed the police fleeing from the Ashura processions and other Shi’a gatherings that have been attacked. Here, however, he did not appear to acknowledge the gatherings for which he and the police had secured protection, to the alleged frustration of the SES.
[The applicant] said he did not believe he would have the protection of any authorities in Pakistan. He said that sectarian violence continues against Shi’a in his country such that he feared for his life as a prominent Shi’a Muslim. He also claimed that Shi’a mosques are regularly targeted for intimidation and violence in Pakistan. He claimed he could not relocate within Pakistan because Shi’a Muslims are not safe anywhere there.
Supporting material
In addition to a number of covering submissions from his adviser, [the applicant] has presented the following material in support of his case:
- A translated undated letter purportedly from the [Office Bearer 1] of [the City 1] chapter of the Anjuman-e-Tanzeem-ul-Momineen (ATM) attesting to [the applicant]’s prominence as a Shia in [City 1] and his experiences in Pakistan;
- A copy of the FIR purportedly lodged by [the applicant] with Pakistan police on 23 November 2012, along with an English translation;
- A copy of the FIR purportedly lodged by [the applicant]’s brother on 12 November 2016, along with an English translation;
- A photocopy of the original death certificate for [the applicant]’s father, stating that he was murdered;
- Evidence to the effect that [the applicant]’s father was a police officer;
- A service certificate pertaining to [the applicant]’s father, issued by the Office of the District Police Officer, [City 1] and dated 23 November 2017;
- A “duty pass” in [the applicant]’s name, issued by the police;
- ISF membership cards in [the applicant]’s name;
A medical legal examination certificate dated 12 November 2016 showing [the applicant]’’s father’s name as that of the deceased; and
·A medical legal examination certificate dated 23 November 2012 for [the applicant].
Independent country information
Further to paragraph 14 above, I have had regard to the following reporting from DFAT[1]:
[1] DFAT Country Information Report: Pakistan, 20 February 2019
3.79   While there has been a declining trend in sectarian violence since 2014, the Pakistan Institute for Peace Studies (PIPs) recorded at least six terrorist attacks deliberately targeting religious minorities in 2017, killing 13 and injuring 57 people. Four of these attacks targeted the Ahmadi community across three cities in Punjab, and one, claimed by ISIL, targeted the Christian community in Quetta. PIPS reported five incidents of faith-based mob violence in 2017 ...
Shi’a
3.90   Pakistani Shi’a live throughout the country in urban centres, including Karachi, Lahore, Rawalpindi, Islamabad, Peshawar, Multan, Jhang and Sargodha. While Shi’a are not a majority in any of Pakistan’s four provinces, they are a majority in the autonomous region of Gilgit-Baltistan.
3.91   Significant numbers of Shi’a live in Peshawar, Kohat, Hangu and Dera Ismail Khan in Khyber Pakhtunkhwa; in Kurram and Orakzai districts in the former FATA; in and around Quetta and the Makran coastline in Balochistan; in parts of southern and central Punjab; and throughout Sindh. Although some Shi’a live in enclaves in these cities … Shi’a and Sunni communities are generally well integrated.
3.92   Most Pakistani Shi’a are not physically or linguistically distinguishable from Pakistani Sunnis. NADRA collects sectarian information during the application process for identity documents, but CNICs do not identify a cardholder’s religion, and passports do not distinguish between Sunni and Shi’a Muslims. Some Shi’a may be identifiable by common Shi’a names such as Naqvi, Zaidi and Jafri. Similarly, ethnic and tribal names can reveal a person’s ethnicity or tribal affiliation: nearly all Hazaras and Turis are Shi’a, and significant numbers of Bangash are Shi’a.
3.93   Shi’a in Pakistan are most prominent during Shi’a religious events and pilgrimages to Iraq and Iran. Shi’a commemorate the Day of Ashura with re-enactments of the martyrdom and processions, during which Shi’a men and women dressed in black parade through the streets slapping their chests and chanting. Self-harm, such as flagellation performed during Ashura processions, can leave permanent marks. Shi’a and Sunni mosques are clearly distinguishable.
3.94   Shi’a mosques and places of worship, or imambargahs, feature different Muslim iconography, including the Shi’a sword, horses, images of Ali and Hussein, and ‘U-shaped’ crescent moons. Shi’a and Sunni mosques have different prayer times, and worshippers use different hand positions while praying. Shi’a mosques are located throughout Pakistan. Shi’a can pray in Sunni mosques and vice versa, although this rarely happens. Both sects share a number of famous religious sites, including Sufi shrines.
3.95   No legal barriers prevent marriage between Shi’a and Sunnis in Pakistan. While marriages do occur, Sunni-Shi’a marriages are becoming less common in an environment of increasing religiosity. One partner (typically the bride) usually undergoes religious conversion. DFAT is not aware of forced conversions between sects.
3.96   DFAT has no evidence of systemic discrimination against Shi’a in gaining employment in the public service, police, military or the private sector. However, some Shi’a perceive discrimination against Shi’a gaining roles at higher levels of some organisations. Overall, DFAT assesses that Shi’a who are not Hazara or Turi … generally do not face discrimination based on their religious affiliation when seeking employment. Low-level anti-Shi’a discrimination does occur at the community level, and can manifest in violence or damage to property.
3.978   Sunni and Shi’a students attend the same public and private education institutions. Students must declare their religious affiliation for entry into both public and private institutions, including universities. Religious bias in public education predominantly affects non-Muslims, but Shi’a groups have raised concerns that the public school syllabus and prescribed textbooks contain depictions of Sunni prayer rituals, and omit prominent historical Shi’a figures.
3.97   Shi’a are well represented in parliament and regularly contest elections for mainstream political parties. DFAT assesses that there are no barriers preventing Shi’a from actively participating in democratic processes in Pakistan due to their sectarian affiliation.
3.99   Sectarian violence in Pakistan has historically targeted individuals, places of worship, shrines and religious schools, however Shi’a traditionally represented a higher proportion of the casualties … Shi’a continue to face a threat from anti-Shi’a militant groups, including LeJ, Sipah-e-Sahaba Pakistan (SSP), also known as Ahl-e-Sunnat-Wal-Jamaat (ASWJ), LeJ al-Alami, and other factions of the TTP. The LeJ’s objective is to establish an Islamist Sunni state in Pakistan and seeks to have Shi’a declared ‘non-believers’ or apostates, and to eliminate other religious groups such as Jews, Christians and Hindus.
3.100 The LeJ … has claimed several attacks on Shi’a in recent years, particularly Hazaras in Quetta … and other Shi’a groups in the former FATA and Karachi. In an open letter released in June 2011, LeJ leaders declared their intention to ‘abolish the impure sect’ of ‘Shi’a and Hazara Shi’a.’ According to the SATP, 114 Shi’as were killed and 308 injured across 10 attacks in 2017. The SATP reports a further five attacks between 1 January and 17 June 2018 killed seven and injured four people. LeJ and LeJ al-Alami, in conjunction with the ISIL, claimed responsibility for many of the attacks.
3.101 Travel in parts of Pakistan is dangerous for all travellers, regardless of sectarian, religious or ethnic affiliations. Shi’a are most vulnerable during large gatherings, such as Ashura processions. Heightened state protection measures during these events partly mitigate the threats associated with this greater exposure. Travellers in remote areas of Pakistan, notably Balochistan, Khyber Pakhtunkhwa and districts in the former FATA, are also at greater risk of criminal or militant violence due to their isolation and the limited presence of security forces. Many roads fit this profile.
3.102 Shi’a in Pakistan often travel to Iran and Iraq for religious pilgrimage. Militant groups have historically targeted routes used by Shi’a pilgrims, particularly through Balochistan. In 2014, militants attacked a bus on the Quetta-Taftan highway in Mastung District, Balochistan, killing at least 29 Shi’a pilgrims and injuring 35. Militants identify Shi’a by Shi’a names displayed on CNICs, or flagellation marks from Ashura ceremonies. Hazara Shi’a are more readily identifiable due to their distinctive physical appearance … Shi’a pilgrims can travel by air rather than by road, but many cannot afford to do so.
3.103 DFAT understands that the Pakistani military provides escort services for Shi’a pilgrims to protect them from attacks, significantly mitigating the risk of violence. Military escorts can be infrequent. DFAT assesses that Shi’a pilgrims travelling by road to Iran through Balochistan without military escort face a moderate risk of violence from sectarian militants.
3.104 Overall, DFAT assesses that most Shi’a in Pakistan face a low risk of sectarian violence. This risk can vary depending on geographic location and for members of specific groups (see Hazaras and Turis). High-profile Shi’a face a moderate risk of violence, as they are more likely to be targeted.
Anti-Shi’a violence
3.105 Karachi has historically experienced high levels of violence due to rival ethnic, sectarian, political, business and criminal interests. The NAP … and the highly visible presence of the paramilitary Rangers, have led to a significant decrease in violence, including sectarian violence. Sunnis and Shi’a live throughout the city, although concentrations of Shi’a, particularly Harazas … can be found in Abbas Town, Hussain Hazara Goth, Mughal Hazara Goth, Rizvia, Ancholi, DHA Gizri, Pak Colony and Manghopir. According to the SATP, at least two sectarian attacks targeted Shi’a in Sindh province in 2017, resulting in at least 90 deaths, while one attack causing one death occurred between 1 January and 6 May 2018. DFAT assesses that a low level of sectarian-motivated violence in Karachi exists within the context of a moderate level of overall violence. The sustainability of recent security force efforts to reduce violence in Karachi is not yet clear.
3.106 In Punjab, sectarian tensions and violence are more prevalent in the south, and in parts of Gujranwala, Sialkot and Rawalpindi. Conservative madrassas and militant groups are more prominent in southern Punjab, and Sunni and Shi’a communities are more segregated. Shi’a live throughout Punjab, including in Lahore. Shi’a and Sunni communities in cities are much more integrated. According to the SATP, three incidents of sectarian violence in Punjab in 2017 killed three people and injured one, and no incidents of sectarian violence occurred between 1 January and 6 May 2018. The largest sectarian attack in Punjab in 2016 targeted Christians … While violence can occur in any part of Punjab, DFAT assesses that Shi’a in Lahore and Islamabad face a low risk of sectarian violence.
3.107 Balochistan has historically suffered from ethno-sectarian tensions and politically motivated violence, including violence from an active separatist movement. There is a large Hazara Shi’a population in Quetta, the provincial capital, which has historically been a target for sectarian violence … Militants also target Shi’a travelling through Balochistan to the Iranian border … The number of casualties from sectarian violence in Balochistan has fallen since the introduction of the NAP and Operation Zarb-e-Azb … According to the SATP, six incidents of sectarian violence in Balochistan in 2017 killed 38 people and injured 37, and four incidents of sectarian violence between 1 January and 6 May 2018 killed six people and injured two. DFAT assesses that Balochistan has a low level of sectarian violence, within the context of a moderate level of overall violence. Shi’a do not face a higher risk of violence because of their sectarian affiliation, with the exception of the visually distinct and geographically segregated Hazara Shi’a who face higher risk …
3.108 The population of Khyber Pakhtunkhwa is mostly Pashtun and predominantly Sunni. Most Shi’a live in Hangu, Kohat, Peshawar and Dera Ismail Khan. Most Shi’a in Peshawar are long-term residents of the Old City, while many Shi’a in Hangu, Kohat and Dera Ismail Khan are Turi or Bangash Shi’a from Kurram and Orakzai agencies. Similar to other parts of Pakistan, Khyber Pakhtunkhwa has seen a significant reduction in militant violence in recent years. According to the SATP, one incident of sectarian violence in 2017 killed three people, and no incidents of sectarian violence occurred between 1 January and 6 May 2018. Overall, DFAT assesses that Khyber Pakhtunkhwa has a low level of sectarian violence, within the context of a moderate level of militant and criminal violence across the province.
3.109 Most Shi’a in districts in the former FATA live in Kurram and Orakzai agencies. Shi’a comprise around 40 per cent of the population of Kurram Agency; Upper Kurram Agency is estimated to be around 80 per cent Shi’a, while central and lower Kurram Agency is majority Sunni. Most Shi’a in Kurram Agency are from the Turi tribe, particularly in Parachinar … The Bangash tribe is around 40 per cent Shi’a, and lives mainly in Orakzai Agency as well as parts of Khyber Pakhtunkhwa such as Kohat, Hangu and Peshawar.
3.110 Despite a relative decline in violent incidents, violence across the former FATA is still widespread and sectarian attacks can be lethal. According to the SATP, two incidents of sectarian violence in the former FATA in 2017 killed 92 people and injured 300, while no incidents of sectarian violence occurred between 1 January and 6 May 2018. In 2017, militants carried out several attacks in the Shi’a-majority city of Parachinar.
·On 21 January 2017, a bomb exploded in a crowded market, killing 25 people and injuring dozens more. Lashkar-e Jhangvi (LeJ) and the TTP claimed responsibility, saying they were responding to the death of LeJ leader Asif Chotu and support by Shi’a for Syrian president Bashar al-Assad. According to Pakistani news outlets, this was the fourth time militants had targeted the same area of Parachinar in recent years.
·On 31 March 2017, a suicide attack on a Shi’a imambargah killed at least 24 people and injured 100. Jamaat-ul-Ahrar claimed responsibility.
·On 24 June 2017, two bombs detonated in a market busy with people preparing for Eid celebrations, killing 72 people and injuring more than 200. LeJ Al-Alami claimed responsibility for the attack.
3.111 DFAT assesses that Shi’a in the former FATA face a low risk of sectarian violence, within the context of a moderate level of militant and criminal violence across the region. While attacks against civilians can occur in any part of the former FATA, DFAT assesses that the risk of sectarian violence for civilians in Kurram Agency, particularly in Parachinar, is higher than in other parts of the former FATA …

The adviser’s submission of 1 July 2021 cites other sources regarding “love marriage” and marriage outside of one’s own various socio-religious groupings. I understand this material to relate to the subject of intermarriage between Shi’a and Sunni in Pakistan.
The Tribunal hearing
I asked [the applicant] about his family’s circumstances over the years, in view of his having claimed that his family had been specifically targeted due to their more conspicuously “physical” manifestation of Shi’a Islam, including public self-flagellation during annual Ashura mourning observances.
[The applicant] told me that he and his family lived in a gated community in the environs of [City 1] from 2000 to 2005. He described this accommodation as temporary, apparently accompanying his father’s posting as a policeman in the are at the time. He said his family moved out of gated life and into more of a village environment in [District 1], a semi-rural subdivision of [City 1], in 2005 and remained there until his brother took a job as a [occupation] about four years ago. He said his brother and mother moved to their current accommodation in what is known as [District 2], [City 1], in or 2017. He said that his father, who died in 2016, worked as a policeman the whole time the family lived in [District 1].
[The applicant] said that he and his brother attended school while they were living in [District 1]. I note that [the applicant] attended an international standard school for twelve years from [year] to [year] and that the college from which he graduated in 2013 was a state institution. He claimed he never worked in Pakistan and was supported financially by his parents until November 2015, just over a year after he came to Australia.
[The applicant] told me more about [District 2] where his brother and mother live. He said [District 2] is a district in [City 1] where government offices and functions are concentrated, meaning that it is not simply a gated residential community but more of an administrative district with housing that is accessible via checkpoints staffed by police. I located the [District 2 information online] and maps on other sites showing that the area also includes shops such as bakeries and schools and other facilities.
[The applicant] did not at any stage in the hearing suggest that his brother had ever been targeted for any kind of potentially relevant harm. This is notwithstanding that his brother is also a member of his family, which he described as having been specifically targeted for harm in Pakistan due to its conspicuously “physical” religious observances.
I asked [the applicant] about his own individual profile as a Shi’a Muslim in Pakistan. He said he had been affiliated with a few groups in Pakistan, most notably with his campus chapter of the IFS. I asked him what had been his membership status with IFS, and he said he had been in charge of that chapter’s security. He said two other students had a similar designation in the campus IFS group. He said that one of them was the friend who was killed during in the 2012 Ashura mourning procession. Overall, he did not suggest that he had been an office bearer or leader of his ISF chapter.
[The applicant] confirmed that the only occasions on which he suffered harm were those of the 2012 and 2014 Ashura processions. The 2008 procession is somewhat different as it was an occasion on which [the applicant] was aware of the harming of others. At one point of the hearing, he said, “only mourning Shi’a get attacked.” When I drew his attention to recent evidence of anti-Shi’a marches having been set upon violently by Shi’a groups, he said this was true. He said, “I’m not going to stop myself attacking an anti-Shi’a who I know if I see him marching.” He went on to say that Sunni gatherings suffer less attacks than do Shi’a ones. He also said that police provide a presence at Shi’a imambargahs on days of prayer. I considered this evidence having regard to the question of state protection.
[The applicant] described his late father as a person with good social and professional connections. At one point in the hearing, he said his father had been a person with “no enemies.” He said, “Everybody respected and loved him.” He said his father had had a reputation for not having any pro-Shi’a bias and for always doing his job fairly. He described his father as a person who, at least up to the time he was killed, had not been mistreated or suffered discrimination due to his religion or for any other potentially relevant reason; this, again, is apparently notwithstanding that [the applicant] had originally claimed to the Department that his family been specifically targeted for harm in Pakistan due to its conspicuously “physical” religious observances.
[The applicant] said his brother, who was with their father when the latter was ambushed and shot, was also harmed. However, he went on to say that his brother was not targeted by the killers. The brother’s own description of events in the purported 12 November 2016 FIR is consistent with [the applicant]’s second description of what happened, and not with the first. When I sought clarification, [the applicant] said his brother was not targeted. Again, this is notwithstanding the claim about [the applicant]’s family having been specifically targeted for harm in Pakistan due to its conspicuously “physical” religious observances.
I asked [the applicant] if a motive for his father’s killing had ever been established. In response, he said, “We all believe it was [SES].” I asked him the basis of this position and he said he believed this because he had inferred that SES members had attacked him in Chakwal during the 2012 Ashura procession and in the Rawalpindi gathering in 2013.
I note that in his original protection visa application [the applicant] said that he believed his father had been targeted and killed because he, [the applicant], had been providing security at Shi’a gatherings with his father’s direct help. This seemed an odd inference given that his father would have been easy to locate in [District 1] where he lived and yet was not punished for the actions described until three years after he had stopped assisting [the applicant] as claimed. In any event, in oral evidence before me, [the applicant] provided a different theory as to why his father had been killed: he said that his father had been receiving telephone calls for some time demanding that he put him, [the applicant], under pressure to return to Pakistan. He said he was not made aware of this pressure on his father until he was telephoned by his brother, calling from the hospital where their father was pronounced dead. I have some concerns about this version of events as [the applicant] did not evidently suggest this in his original protection visa application, lodged shortly after he purportedly received his brother’s telephone call. I put to [the applicant] that this position also seemed somewhat illogical, in that if the killers thought his father could be useful in persuading him to return, then killing him would have been an act of self-defeat. In reply, [the applicant] did not help to make this position appear more plausible; he simply said that killing his father would have made his killers happy. I note that the brother did not provide this information, say, as background in his FIR, say, to help provide police with potential leads in any ensuing investigation.
[The applicant] went on to say that neither the police nor the media (generally local media) had any idea who was responsible for his father’s death. He said that local Shi’a, however, had generally supposed that the SES had been responsible, again, apparently on the basis of SES-backed groups having commonly been those who disrupted Ashura processions in the past.
[The applicant] generally described his father’s murder as though it had become a cold case, as it were. He said the police had not treated his father’s death sufficiently seriously for the matter to have been resolved. I put to him that that seemed hard to conceive, given that a fellow police officer had been killed. I put to [the applicant], and he concurred, that police in Pakistan have sometimes been quick to arrest “suspects” in attacks on police. In response to this, [the applicant] provided apparently new evidence: he said the police blamed an individual family for the killing of his father, but were unable to lay charges because his, [the applicant]’s, mother considered them innocent and did not want to press charges against them after they had taken an oath on the Koran professing their innocence. I asked [the applicant] for more detail about this family and he said he had no idea. Then he appeared to change his evidence, saying that they were a family of beggars who could not have performed the killing because they did not appear to have received payment for doing so.
I note that [the applicant] has also indicated that there was a possible link between his having applied for protection here, and act he described in a call to his parents around the time of lodging his application, and the killing of his father. The suggestion here appears that the killing might have been revenge, information about the protection visa application having somehow reached the killers, but nothing in [the applicant]’s evidence suggests that this linkage of events is based in anything other than bald speculation.
I asked [the applicant] why he went to Rawalpindi when he did in 2013 and he said that he and others went there intending to hear a particular speaker and believing it would be safer there than in [City 1]. He also gave evidence of having to go to Rawalpindi because that was where he was booked to sit his IELTS test. By his evidence the date of the Ashura procession in 2013 fell before the day of the IELTS examination. In any event, his evidence indicates that he was already in the midst of preparations to study in Australia before he travelled to Rawalpindi and suffered, to the extent that he did, the attack on the procession by anti-Shi’a protesters.
Relevantly, [the applicant] did not suggest that there were any attempts to kill or otherwise harm him, or any threats or intimations of the same, in his home city of [City 1] in the year and a half between the late 2012 disruption of the Ashura procession and his departure for Australia, let alone attempts or threats to harm him for being able to engage police protection for IFS gatherings or the like.
[The applicant] told me he chose a course of study in Australia for which his qualifications in Pakistan were a chosen preparation, indicating that, at least in part, he had genuine career-oriented motivations for studying here at the time he came. I note that he did not change his lifestyle in Pakistan after either the 2012 procession attack or the one in 2013; rather, he continued to live where he lived and study where he studied, graduating in the middle of 2014 around the month prior to coming to Australia. His ability to graduate as he did appears to suggest that he was not debilitated by fear of harm at the time, and yet he claims that debilitating fear overwhelmed him so much, and so quickly after he found himself safe and happy in Australia, that he stopped attending classes here within about three months of commencing his tuition here. Overall, [the applicant]’s evidence about breaching his student visa conditions due to past trauma and/or fear of the prospect of having to return one day to Pakistan struck me exaggerated and somewhat inconsistent, especially given his claimed relief at having arrived here. I note that he did not need to work any of the 20 hours his visa allowed him to work because his parents supported all of his expenses, and the visa on which he arrived was not due to expire until January 2018.
I invited [the applicant] to comment on the concerns the delegate had raised with him about his apparent delay in lodging his protection visa application until around two years after breaching the conditions of his student visa and more than two years after purportedly having fled Pakistan for his safety. In response, [the applicant] initially said that, throughout the time until around when he applied for protection here, he had been unaware of the existence of protection visas in Australia’s immigration regime, but then he said that he was aware of them and had mistakenly believed they were only available for people from certain parts of Pakistan where he himself did not live. I questioned [the applicant] on this topic for some time and his evidence in reply struck me as being contradictory, implausible and improvised.
I asked [the applicant] if he had continued his religious observances here in Australia. He gave evidence of regular mosque attendance and of having continued to participate in annual Ashura mourning processions. He said he had not performed any public self-flagellation here as such practice in banned in Australia. He indicated that he considers this regrettable because his beliefs compel him to the practice, but he said he is nevertheless able to join in other activities common to such processions, such as organised charity activities, that still make the event meaningful to him.
I put to [the applicant] that I had not been able to find evidence of attacks on Ashura processions in Chakwal since the 2012 episode, or in the rest of Pakistan since 2013, not even in his own submissions. In reply, he said that there had been some anti-Shi’a violence in Pakistan recent years and referred to instances like the ones described in the DFAT report cited above.
I put to [the applicant] that I had seen recent reporting of attacks perpetrated by extremists on both sides of the Sunni-Shi’a divide.[2] There is also evidence of the authorities cracking down on violent Shi’a militant groups in places like Punjab.[3] Addressing this information about two-sided sectarian violence in Pakistan, [the applicant] said that in the area where he lives in Pakistan, there are Sunni mosques and Shi’a mosques. He then said that when one group goes to its own mosque the other group attacks it. He acknowledged that the conflict is two-sided. He said that Shi’a nevertheless bear the greater burden of casualties by far, which claim, I note, is supported independently. He also indicated that he would not shy from attacking Sunni who protest against Shi’a.
[2] “Pakistan cleric killed in apparent sectarian attack,” AP, 11 October 2020,
[3] “Pakistan arrests 7 Shiite militants, foils possible attacks,” US News, 7 January 2021,
Regarding his relationship in Australia, [the applicant] said his fiancée is a Sunni Muslim Australian citizen who is twice divorced and has a child. They have been engaged for three years. He said he had not yet told his mother or brother of the relationship as he expects that they would not welcome the news. He said his fiancée’s status as a Sunni, and a divorced woman, has separately and cumulatively the potential of causing his mother and brother to harm him.
I asked [the applicant] to describe what harm his mother and brother might inflict and he said they would probably start by ignoring him and, depending on the circumstances, disown him. He said that that might eventually lead to physical harm. I asked [the applicant] if this were mere speculation on his part and he said, “I know this will happen.” He said the police only nominally offer protection and would more likely leave it to his immediate family to deal with the matter.
I put to [the applicant] that his brother has what seems to be a highly respectable position in the state justice system and that it might be out of character or at least potentially very risky for him to inflict harm upon him. In reply, he said his brother might pay someone to hurt him.
Findings in relation to s.36(2)(a) of the Act
In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[4] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[5]
[4] MIMA v Rajalingam (1999) 93 FCR 220.
[5] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[6] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[7]
[6] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70
[7] Sun v MIBP [2016] FCAFC 52 at [69].
I have considered all of the evidence in this matter separately and cumulatively.
I accept that [the applicant] is a Shi’a Muslim Pakistani national from [City 1]. I accept that he lived at the one address in [District 1] from 2005 until September 2014 when he flew to Australia. I have not seen the scars [the applicant] claims to have acquired through self-flagellation, but I note that the delegate saw that evidence and accepted [the applicant]’s explanation of their cause, and I see no reason not to accept that he and other males in his immediate family practice or practiced the conspicuously “physical” ritual of self-flagellation during annual Shi’a Ashura mourning processions in Pakistan.
I accept that conflict exists, at least in principle and occasionally in unruly and even violent practice, between sectors of Pakistan’s Sunni majority and sectors in the Shi’a community. There are extremists on both sides: a fact the [applicant] acknowledges. However, I also accept the information that DFAT and [the applicant] himself have provided about the potential in Pakistan for Shi’a to be disproportionally affected by sectarian violence, and about the potential for Shi’a to be more likely than Sunni, in certain circumstances, to face relevant discrimination, or worse, in Pakistan. Whether these conditions give rise to a real chance of [the applicant] being persecuted is a separate question to be determined on the merits of his claims.

[The applicant] acknowledges that merely being a Shi’a Muslim in Pakistan is not sufficient to attract a real chance of serious or significant harm. He, his father and brother are examples of Shi’a males, at least, having been able to progress through their education and/or secure and maintain employment in quite high-powered occupational sectors in Pakistan. He described his father, while he lived, as an integral member of the police force who had no known enemies. Although he claims he will be persecuted in Pakistan because his family conspicuously practices self-flagellation during Muharram each year, he has provided no evidence his father or brother ever having suffered harm for doing so, let alone whilst doing so. [The applicant] did say there is always some degree of risk of Shi’a being harmed by militant Sunni groups during Friday prayer, but he also indicated that the state provides some degree of protection of Shi’a mosques at prayer times. Meanwhile, throughout all of his lifetime attending Friday prayer in and around [City 1] in Pakistan, [the applicant] has never been prevented from attending prayer or been harmed whilst attending.
I accept that [the applicant] was a member of his campus chapter of the ISF student group. I accept that he and others played a role in organising police and other security for ISF public gatherings. On the evidence before me, I consider his claims about having achieved prominence as a public speaker somewhat exaggerated. I do not accept on the evidence before me that [the applicant] was able to secure special police support through the agency of his father. Overall, I give very little weight to claims about [the applicant] being known or imputed to have leverage with the authorities. I give much more weight to the fact that he was a college student in [City 1] for three years from 2010 to 2013 and, on the evidence before me, was not targeted individually for serious or significant harm whilst a student.
I accept that the letter from the [Office Bearer 1] of a [City 1] chapter of the ATM is from its claimed author. However, I give very little weight to it given its lack of detail and apparent inaccuracy in suggesting that [the applicant] was suffering under threats from the SES up to the time he left Pakistan. I give more weight to [the applicant] having embarked on preparing to study in Australia even before he went to Rawalpindi in 2013, by booking his IELTS test there, and having had a sufficiently stable life in and around [City 1] to complete his college studies and graduate. I give some weight to the date of the letter indicating that the [City 1] chapter of the ISF was still operating, with [an Office Bearer 1], in 2017 when the letter was written.
I give very little weight in this matter to the fact that [the applicant]’s brother and mother moved into [District 2] in 2017, as the brother and mother evidently lived many years in [District 1] without being targeted for relevant harm. I find that [the applicant]’s description of [District 2] is a little misleading in that, according to his responses to my questions, he demonstrated that it is not a gated residential community as such but, rather a civic administration hub that one would reasonably expect to be surrounded, in Pakistan, by police checkpoints to control the movement of weapons and explosives and the like. I give some weight to the evident safety and stability in which [the applicant]’s mother and brother reside. It is evidence of their religion not being a factor excluding them from such protection. [The applicant] told me that he himself would not be able to take up residence with his family as he does not have a government job in [District 2]. That claim is unsupported, but may well be true. In any event, I give weight to the fact that [the applicant] and his family lived a stable life in [District 1] and that when his brother and mother moved to [District 2] it was because of his brother’s career rather than to seek refuge from serious or significant harm or threats of the same.
I accept that [the applicant]’s father was ambushed and murdered whilst out in the company of his son, [the applicant]’s brother, even though a search of incidents of sectarian violence in [District 1] or greater [City 1] in 2016 yielded have yielded no references at all to the murder of any police officers in November of that year. I do not accept on the evidence before me that this was an act of revenge arising from the father’s role in providing occasional police protection for ISF gatherings. I do not accept on the evidence before me that this was an act of revenge for the father’s failure to persuade [the applicant] to return to Pakistan. I do not accept on the evidence before me that the killing was a response to [the applicant] having days earlier lodged a protection visa in Australia. On the evidence before me, I consider all these claims about possible reasons for the murder of [the applicant]’s father to be speculative at best. I find on the evidence before me that I cannot rely on the claim about the father having received intimidatory telephone calls in the period leading up to his death, as this information was not provided to the Department, even though it would have been fresh and important information to provide to the Department, either orally or in writing.
On the evidence before me, I find that it is merely bald speculation to suggest that [the applicant]’s father was killed because he was a Shi’a or that the SES was responsible for his death, or that he was targeted by Sunni extremists largely or party due to his religion. I understand that Shi’a people in Pakistan might presume that some Sunni group was involved for purely sectarian reasons, however, I give more weight in this matter to [the applicant]’s evidence of his father having been an even handed officer who was well liked in the community had no known enemies during his lifetime. In this light, it is not inconceivable that his father was killed over some local, individual grievance, perhaps even by disaffected Shi’a, not least because his brother was evidently not targeted in the attack. I accept that the police have not to date solved the matter of responsibility for the killing of [the applicant]’s father, but I do not accept that this is because the police did not consider his murder a serious enough issue for any reason, let alone because of his status as a Shi’a.
In considering [the applicant]’s protection prospects in Pakistan, I give weight to his evidence to the effect that his brother was not targeted in the episode in which their father was shot and killed.
Essentially, [the applicant] suffered potentially relevant harm on three occasions in his life: the first was during the 2008 Ashura procession when he witnessed the death of some of the participants in what was evidently a terrorist attack intended to cause mass injury and panic; the second was during the 2012 procession when there was another attack, this one killing [the applicant]’s comrade in the ISF; and the third, the attack on the 2013 procession in Rawalpindi. [The applicant] claims that his participation in public self-flagellation was an essential and significant factor in the harm inflicted. I accept that [the applicant] suffered physical injury on some of these occasions. However, I do not accept that he was directly targeted. On the evidence before me, there has not been such an attack on the Ashura day procession in Chakwal since 2012, which fact supports the independent evidence of the authorities in Pakistan having improved security for Shi’a generally and participants in these processions in particular, notwithstanding occasional events such as those described by DFAT in the citation above. Accordingly, I find that there is not a real chance of [the applicant] being persecuted in the reasonably foreseeable future either at one of these processions or for having attended one.
I give some negative weight in this matter to [the applicant]’s long delay in lodging his protection visa application. I am not satisfied on the evidence before me that he was crippled by fear or trauma, or disadvantage by ignorance of the existence of the protection visa stream in Australia. I found his evidence to such effects to be wholly unconvincing. I find on the evidence before me that his application for protection was triggered by the notification he received regarding his student visa. I give this finding some negative weight.
Notwithstanding some reports of an increase in anti-Shi’a activities in the last few years, mainly in Karachi and Punjab, I am not satisfied that [the applicant] faces a real chance of being persecuted in Pakistan for reasons of being a Shi’a, or even a conspicuously devout Shi’a.
I have already found that there is not a real chance of [the applicant] being persecuted if he continues to attend Ashura processions in Chakwal and participates in self-flagellation during the same. If he remains subjectively fearful of being harmed due to the minority of occasions during which violence erupted in the past, I find that he could modify his behaviour in Pakistan by not attending such events without giving rise to any of the implications described in s.5J(3) of the Act.
I accept that [the applicant] is in a relationship with a twice-divorced Sunni mother who has one child. I have considered all [the applicant]’s evidence about what might happen to him in Pakistan of his family finds out about the relationship but I find on the evidence before me that it is bald and unsupported speculation. No evidence that [the applicant] has provided about his family satisfies me that there is a real chance of their turning against him in ways he described. I consider it more likely that on balance, his family would be happy to see him settled in Australia, or on a pathway to being so, with an Australian citizen wife.
Ultimately, having considered all of the evidence in its entirety, I am not satisfied that [the applicant] faces a real chance of being persecuted in Pakistan in the reasonably foreseeable future for any of the five reasons cited in s.5J(1)(a) of the Act. His claimed fear is not well founded. He is not a refugee.
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).
Findings in relation to s.36(2)(aa) of the Act
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).
A person is entitled to protection under s.36(2)(aa) if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
Relevantly, s.36(2)(aa) refers to a "real risk" of an applicant suffering significant harm. The "real risk" test imposes the same standard as the "real chance" test applicable to the assessment of "well-founded fear" in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).
"Significant harm" for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. "Cruel or inhuman treatment or punishment", "degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act.
Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.
Essentially, all three of these definitions require that there be an intention to inflict harm by some act or omission. Torture 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 ICCPR. "Cruel or inhuman treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Degrading treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one 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 ICCPR.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Accepting that [the applicant] is a citizen of Pakistan, I find that Pakistan is the “receiving country” in this case.
I find that the harm [the applicant] identifies in his claims appears to include “arbitrary deprivation of life”, “cruel or inhuman treatment or punishment”, “torture” and “degrading treatment or punishment”.
[The applicant]’s claims to complementary protection are essentially the same as his refugee status claims. His claims have failed as refugee status claims due to their not having met the “real chance” test. In view of this, and of the "real risk" test imposing the same standard as the “real chance” test, [the applicant]’s claims cannot succeed as complementary protection claims.
On the evidence before me I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Pakistan, there is a real risk that [the applicant] will suffer significant harm.
Accordingly, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Other findings
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, he does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Luke Hardy
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 3883

14 July 2021

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Immigration

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