1805956 (Refugee)
[2022] AATA 4980
•5 December 2022
1805956 (Refugee) [2022] AATA 4980 (5 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Ejaz Khan (MARN: 0213478)
CASE NUMBER: 1805956
COUNTRY OF REFERENCE: Pakistan
MEMBER:Mara Moustafine
DATE:5 December 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 05 December 2022 at 7:42am
CATCHWORDS
REFUGEE – protection visa – Pakistan – fear of harm because of brother’s work for coalition country government agency – threat to brother from unknown person, assumed to be Taliban – fear of harm from extremist individuals or groups – ethnicity and religion – Hazara Shi’a – credibility – delay in applying for protection – applied two years after arriving and just before temporary visa due to expire – marriage to Australian permanent resident and Australian-born child – country information – passage of time and significantly changed political/security circumstances – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5(1)(a), 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2CASES
Luu v Renevier (1989) 91 ALR 39
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MIEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275Any 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 16 February 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Background
The applicant is a citizen of Pakistan and is [Age] years old. She arrived in Australia [in] November 2015, travelling with her parents and brother as a dependant on her father’s [Specified temporary] visa. The applicant applied for a Protection visa on 3 November 2017.
Evidence before the Department
Protection Visa Application
According to her protection visa application form, the applicant was born on [Date] in [Kurram Agency], where she lived until 2009 when she moved to Islamabad. The applicant identified her ethnicity as Hazara and religion as Shi’a Muslim. The applicant speaks, reads and writes in Urdu, English, Persian and speaks Pashto. She completed [high school] in [Year]. The applicant left Pakistan legally from Islamabad on her own passport (copies of the biodata pages were submitted with her application).
In summary, the applicant’s protection claims, as set out in her written statement of 3 November 2017, were as follows:
a.She fears that if she returns to Pakistan she will be killed because of the threats made to her brother.
b.She fears this harm from Sunni groups supported by the Tehгik-e Taliban Pakistan (TTP) and from members of the Haqqani group operating in the border region of Pakistan and Afghanistan.
c.Her [hometown] on the border of Afghanistan and Pakistan is not a safe place. She still has bad memories of the sectarian clashes in April 2007 and their family home was damaged by a mortar shell.
d.In December 2009, she and her family were rescued by an Army helicopter and flown to [Peshawar] to escape the violence because it was too dangerous to travel by road. She then settled in Islamabad with her parents and was glad to escape the violence.
e.Education was her first priority at the time and she was admitted into [Number] grade at school.
f.She remembers that, at the time of the Taliban attack on the Army public school in Peshawar on 16 December 2014 which killed more than 140 children, she was a [Number]-year student and her college began teaching courses for girls on how to respond if an attack ever happened. College buses also transported children home from school quickly as it was not safe for students to travel in large groups. She stopped attending college for a few weeks due to stress. On return she learned that the Taliban had dropped letters stating that education for girls should be stopped or they could be targeted. The teachers began training them in emergency procedures.
g.When her older brother [Mr A] left for [Country 1] in April 2011, he said he was just going for a visit. But in May 2012 he rang his parents and she found out he was in detention on Christmas Island seeking protection in Australia. Her mother told her [Mr A] had left the country for fear of being killed. She found out he had been threatened with death by unknown people because he had been working as [an Occupation] for the [Country 2 government agency] and [International organisation] in Peshawar. [Mr A] also told his family that they had to be very careful because the people who threatened him would harm or kill the family as a way of getting revenge on him.
h.In April 2012, her brother [Mr B] was hit by a car when he was on his way to university. Thankfully his injuries were not life-threatening but the family became really scared as [Mr A] had warned that this may happen.
i.After this she lived in fear for her safety because [Mr A] told them it was the Taliban who were after him and they could hurt all of them at any time. She then began attending college on and off and the family made the decision to escape to Australia where her brothers were.
j.In April 2012 her brothers lodged an application for a [temporary] visa so that the family could be safe with them in Australia.
k.She has no family in Pakistan and will have nowhere to go.
l.She fears that if she has to return to Pakistan she will be killed by the Taliban because of her brother’s association with the [Country 2] government.
On 16 February 2018, the delegate refused to grant the applicant a Protection visa as he was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under either the refugee or complementary protection criterion.
Application for Review
On 6 March 2018, the applicant applied to the Tribunal for a review of the Department’s decision, a copy of which she provided for the purpose of the review.
On 24 June 2022, the applicant was invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in their case on 14 July 2022. The applicant was represented in relation to the review.
Pre-hearing Submissions
On 12 July 2022 the applicant’s migration agent provided to the Tribunal the following documents in support of her application: the applicant’s domicile certificate from [Kurram Agency] dated [February] 2006, her NSW Marriage certificate dated [February] 2020 and her son’s birth certificate, media articles relating to sectarian violence and the security situation in Pakistan and a witness statement from her brother [Mr A] dated 11 July 2022.
In his statement, the witness outlined his family relationships and the background to his arrival in Australia in 2011. The key points were as follows:
a.He worked for the [Country 2 government agency] in Peshawar as [an Occupation] from October to December 2010 but his job was terminated for unknown reasons. Before he left his work at the [Agency], he was warned that there could be a serious threat to his life and that, should he feel danger, to inform the [Agency] who would take necessary actions.
b.In the first quarter of 2011, he received a phone call from an unknown number in which he was threatened with murder. He was so scared and distressed that he couldn't approach the [Agency] but rushed to hide. After getting a [Country 1] visa, he left Pakistan in the first week of April 2011, then went to [Country 3] and by boat to Australia. He had no intention to go to Australia but there was no choice and no better place to feel safe.
c.He sought asylum in Australia due to his association with [Country 1 people] in Pakistan and his targeting by extremist groups, particularly TTP.
d.He let his family in Pakistan know that they could also be harmed because he worked for the [Agency].
The hearing
10. The applicant appeared before the Tribunal on 14 July 2022 to give evidence and present arguments. The Tribunal also received oral evidence from her brother [Mr A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
Witness evidence at the hearing
11. The applicant nominated her older brother, [Mr A], as a witness in her case. Her mother and brother, who arrived in Australia together with the applicant and her father but made separate applications for Protection visas, (Cases No 1805947 and 1805955 respectively) requested that the Tribunal take evidence from this witness also. By agreement with all three applicants, the Tribunal swore them in and took evidence from the witness conjointly, before hearing each case individually in sequence on the same day.
12. In his evidence at the hearing, the witness elaborated on his written statement (paragraph 9 refers), making the following key points:
a.In the 2nd or 3rd month of 2011, he received a death threat from an unknown number. He was very worried and depressed but could not tell his elderly parents or his pregnant wife that he had received the threat. Rather than reporting the threat to the [Country 2 people], as instructed, he decided to run away. He arranged a visitor visa to [Country 1] then came to Australia.
b.Asked to elaborate on the threat, he said it was a long time ago but remembered being told that he would be kidnapped, and his body cut into pieces because he provided services to [Country 2 people]. He took it as a very serious threat. The call was made to his mobile phone from an unknown landline number. He was in Islamabad with his friends at the time. The applicant asked who was calling but the caller did not identify himself and the applicant hung up. The caller did not say anything else.
c.He was in fear, traumatised and depressed for a few days but did not tell his family anything as he was the ‘elder son and big brother’ and responsible for their welfare. As his wife was pregnant, his parents were too weak and his siblings too young, he did not want to worry them.
d.He tried to leave Pakistan as soon as possible to save himself first. It took about 25 days to get the [Country 1] visa. He pretended to his family that he was just going there for a visit. While waiting to depart, he tried to isolate himself and restricted his movements. He was not working at the time.
e.Two weeks after he got to Christmas Island, he informed his family that he had received a serious threat from the TTP because of his work with the [Country 2 people] and told them they could be the next target. He told them not to take unnecessary risks because he didn’t want them to be harmed by the extremists.
f.He had concluded that the threat came from the TTP because he could tell from the caller’s accent that he was a Pashtun. He confirmed that it was his supposition that the threat came from the TTP. He volunteered that he had not said in his first interview (presumably, his own Protection visa interview) that it was the TTP who threatened him, just that it could be the TTP. He said the threat could have come from the TTP or any one of the 23-24 extremist groups active in Pakistan.
g.He thought his family would be harmed by the extremists because they were associated with him and he was associated with the [Country 2 people]. He could not remember whether the caller specifically told him his family would be killed as well as himself but it was clear to him that this was ‘their intention.’ This was why he warned them to be very careful as there could be serious consequences for them.
h.Noting his evidence about his strong sense of responsibility for his family and that he only told his family of the death threat after he reached Australia in April 2011, the Tribunal suggested that it seemed dubious that he would have run away to [Country 1], leaving his family behind if the caller had threatened his family as well as himself. The witness responded ‘yes’ and said that the direct threat was made only to him as he was the one working with the [Country 2 people].
i.He said this did not mean the extremists were not going to hurt or kill his family and claimed that, according to Pashtun culture, anyone in his family could be targeted by association with him at any time – even after a hundred years. He knew about Pashtun culture because his mother is a Pashtun.
j.As an Australia citizen now, he requested that his family not be sent back to Pakistan to face depression and stress but be allowed to stay in Australia.
13. The Tribunal discussed with the applicant her background in Pakistan, her reasons for leaving and why she fears returning there. Where relevant to her protection claims, the applicant’s evidence to the Tribunal is referred to below.
Criteria for a protection visa
Relevant Law
14. 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.
15. 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).
17. 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
19. 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.
Credibility
20. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her: Prasad v MJEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MIEA (1994) 52 FCR 437 at 451.
Analysis, Findings and Reasons
21. The issues that arise on review are whether the applicant is a person in respect of whom Australia has protection obligations under the refugee criterion or the complementary protection criterion.
The applicant’s claims
22. The applicant’s key claims are that she fears that if she returns to Pakistan she will be killed by the TTP/Taliban or Sunni Pashtuns from [Kurram Agency] because they threatened her brother [Mr A] who worked as [an Occupation] for the [Country 2 government agency] in Peshawar. She also fears they will harm her because she is a Shi’a Muslim and a Hazara.
23. For reasons detailed below the Tribunal has concluded that the decision under review should be affirmed.
Will the applicant be targeted by the TTP/Taliban or Sunni Pashtuns because her brother worked with the [Country 2 government agency] in Peshawar?
24. The applicant’s key claim at hearing was that if she returns to Pakistan, she will be killed by the TTP/Taliban or Sunni Pashtuns because of her brother [Mr A]’s association with the [Country 2] government. According to her statement, she heard from her mother that the reason [Mr A] left Pakistan in 2011 was that he feared being killed after being threatened by unknown people because he had been working as [an Occupation] for the [Country 2 government agency] and [International organisation] in Peshawar; and that [Mr A] warned his family to be very careful as the people who threatened him would harm or kill them to get revenge on him (paragraph 4.g).
25. The Tribunal appreciates that the applicant was around [Age] years old at the time of her brother’s sudden departure from Pakistan and was living in a climate of fear and uncertainty about her safety because of this and ongoing sectarian conflict in Pakistan, exacerbated by the alleged attack on her other brother in Islamabad.
26. The Tribunal can accept that, if [Mr A] worked for the [Country 2 people] in Peshawar at the height of US Coalition operations in Afghanistan, as he claims, he may have received such a threat from unidentified Sunni extremists in 2011. However, the Tribunal is not satisfied that, should she return to Pakistan now, the applicant will be targeted or killed by the Taliban or Sunni Pashtuns more than 10 years since the threats were allegedly made against her brother and in significantly changed political/strategic circumstances in Pakistan and Afghanistan, including withdrawal of foreign forces and the Taliban’s seizure of power in Afghanistan in August 2021. It is also notable that the applicant and her family continued to live in Islamabad unharmed for more than 4 years after the alleged threat was made against [Mr A] until their departure for Australia in November 2015.
Will the applicant face harm in Pakistan because she is a Shi’a Muslim and Hazara?
27. The Tribunal has considered the applicant’s claim that she will be targeted by Sunni extremists and Pashtuns on the basis that she is a Shi’a Muslim and a Hazara. It has also reviewed the media reports provided by her adviser about sectarian violence against Shi’a Muslims and Hazaras in Pakistan, the most recent relating to the bombing of a Shi’a Mosque in Peshawar in March 2022 and a police checkpoint in Islamabad in January 2022, as well as recent DFAT reports on Pakistan.
28. The Tribunal accepts that the applicant is a Shi’a Muslim and a Hazara.
29. With regard to the situation of Shi’as in Pakistan, DFAT’s latest report[1] states:
Pakistan is home to the world’s second-largest Shi’a population (after Iran). An estimated 20-40 million Shi’a live throughout the country, constituting 10-20 per cent of the population. There are significant Shi’a communities in Karachi, Lahore, Rawalpindi and Islamabad …
Shi’a have historically been targeted by sectarian terrorist groups such as the TTP … These groups have attacked Shi’a individuals, places of worship, shrines and religious schools, as well as Shi’a travelling to Iran or Iraq for religious pilgrimage. The frequency of these attacks has steadily declined since 2013 …. This is a result of the overall improvement in the security situation in Pakistan, as well as increased security provided by the Pakistani police for Shi’a places of worship and processions. Nevertheless, sectarian terrorist groups retain the capacity and intent to carry out attacks against Shi’a anywhere in the country … DFAT assesses Shi’a in Pakistan face a moderate risk of sectarian violence, although the situation has improved considerably in recent years.
[1] DFAT, DFAT Country Information Report – PAKISTAN – 20 January 2022, pp.26-27.
30. In relation to the TTP, the DFAT report states:
TTP attacks within Pakistan have increased since the Taliban seized power in Afghanistan in August 2021. These attacks have occurred mostly in Khyber Pakhtunkhwa and Balochistan, but also Punjab and Sindh … After several years of declining influence under former leader Maulana Fazlullah, the TTP began regrouping in 2020 under the leadership of Noor Wali Mehsud … Under the leadership of Mehsud, the TTP has moved away from targeting civilians – which was undermining its popular support – to focus on attacks against the Pakistani military and other government representatives.[2]
[2] Ibid, p.15
31. With regard to Hazaras, DFAT reports that there are an estimated 600,000 to 1 million Hazaras in Pakistan, most of them Shi’a Muslims. Most live in enclaves in Quetta due to the security situation in Balochistan. Smaller populations live in Karachi, Lahore and Islamabad. Hazaras outside Quetta tend not to live in enclaves to reduce the risk of ethnic profiling, discrimination and attack. Militant Sunni groups have targeted Hazaras in Pakistan for their sectarian affiliation. Hazaras face a higher risk than other Shi’a due to their distinct appearance and to segregation.[3]
[3] Ibid, p.19 and DFAT, DFAT Country Information Report – PAKISTAN – 20 February 2019, pp.27-30.
32. The Tribunal has to consider the applicant’s case in its individual context and is not persuaded that the examples of attacks on Shi’a Muslims mentioned in the media reports submitted to the Tribunal were relevant to her circumstances. The fact that a Shi’a boy got blown up in Parachinar or a bomb exploded in a Shi’a mosque in Peshawar at a particular time and place does not mean that the applicant would be harmed in a targeted way in Islamabad, the city where she and her family lived before coming to Australia, if she was to return there. The Tribunal notes that according to independent sources, the situation of Shi’a Muslims in Islamabad is relatively favourable.
33. The Tribunal is not satisfied that the applicant would face a greater risk of harm for reasons of her Shi’a faith than other members of the Shi’a Muslim or Hazara communities in Pakistan or that the general security situation in Pakistan would expose her to a real chance of persecution for reasons of her Shi’a religion or Hazara ethnicity, as claimed.
Delay in applying for a Protection visa
34. The applicant told the Tribunal at her hearing that she came to Australia with her parents and brother on a [temporary] visa in 2015, although her brothers in Australia lodged the application in 2012 because the family’s life was in danger.
35. As discussed with the applicant, the delay of almost two years in applying for a Protection visa until just before her temporary visa was due to expire raises serious doubts about the genuineness of her protection claims. The Tribunal’s concerns are not assuaged by the applicant’s response that she did not apply earlier because she was not in a good state to undergo a Protection visa interview soon after arriving in Australia and applied for it as a ‘last resort’ after the family was unable to raise the money for a [permanent] visa. As suggested to the applicant, someone in genuine fear of harm would not have delayed making a Protection visa application, with its inexpensive application fee. In the Tribunal’s view, the applicant’s protection claims were contrived for the purpose of achieving a migration outcome.
36. The Tribunal appreciates that the applicant wishes to remain in Australia as she is now married to an Australian permanent resident, with whom she has an Australian born child. As submitted by her representative, she hopes to be granted permanent residence as his spouse should the Tribunal not find that she is not a person in respect of whom Australia has protection obligations under the refugee criterion or the complementary protection criterion.
Summary Findings
37. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence before it, the Tribunal is not satisfied that there is a real chance that on return to Pakistan the applicant will suffer serious harm amounting to persecution for reasons of her brother [Mr A] working for the [Country 2 government agency] in Peshawar in 2010, her religion as a Shi’a Muslim, ethnicity as a Hazara or for any other reason set out in s.5J(1)(a) of the Act. Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution should she return to Pakistan now or in the reasonably foreseeable future.
Complementary Protection
38. The Tribunal has also considered the applicant’s claims under the complementary protection criterion. The Tribunal has not accepted the applicant’s claims that she will be harmed or killed by the TTP/Taliban or other Sunni Pashtuns for reasons of her Shi’a religion, Hazara ethnicity or because of her elder brother‘s work with the [Country 2 government agency] in Peshawar in 2010. In view of country information referenced at paragraph 29-31 regarding the security situation for Shi’as and Hazaras in Pakistan, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that she would suffer significant harm, which includes arbitrary deprivation of life, the death penalty, torture or cruel or inhuman treatment or punishment, or degrading treatment or punishment.
39. The Tribunal does not accept on the evidence before it, therefore, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that she will suffer significant harm as defined.
CONCLUSIONS
40. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
Mara Moustafine
MemberAttachment - 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.
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36 Protection visas – criteria provided for by this Act
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(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.
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Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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Natural Justice
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Standing
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