1809621 (Refugee)

1809621 (Refugee) [2024] AATA 1333 (23 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr George Vassiliou (MARN: 0746634)
CASE NUMBER: 1809621

COUNTRY OF REFERENCE: Pakistan
MEMBER:Sheridan Aster
DATE:23 January 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act 1958.

Statement made on 23 January 2024 at 3:24pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – particular social group –– female victims of sexual violence love marriage – mixed caste marriage – fear of honour killing – women’s rights to inheritance – physical assault – forced divorce – mental health issues – state protection – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 March 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The primary applicant, [named], is [an age]-year-old woman from Lahore, Pakistan. The secondary applicants are her husband, [Applicant 2], and one of their [number] children. [The applicant] first arrived in Australia [in] January 2010 on a [Student] visa. She departed Australia [in] November 2010 and travelled to Pakistan, where she married [Applicant 2] [in] January 2011. She returned to Australia [in] March 2011. [The applicant] departed Australia and travelled to Pakistan on one further occasion from [January] to [March] 2012.
[Applicant 2] first arrived in Australia [in] September 2011 on a [Student] visa, granted on the basis that he is a member of the same family unit as [the applicant]. [Applicant 2] departed Australia and travelled to Pakistan on one further occasion from [January] to [March] 2012.
On [date], [the applicant] gave birth to the couple’s first child, [Child A]. [Child A] became an Australian citizen in [specified year] and is no longer included as a party to the application for protection. On [date], she gave birth to their second child, [Applicant 3] (the third named applicant). The couple have [number] younger children who were not born at the time the family applied for protection.
On 13 March 2015, [the applicant] applied for her third [Student] visa, including her husband and two eldest children as secondary applicants. The visa application was refused on 29 June 2015.
On 15 January 2016, the family applied for protection, claiming that [the applicant] would be harmed by members of her family seeking to take ownership of a property she inherited following the death of her mother and because she entered into a marriage of love rather than a marriage arranged by her family. The delegate found that the family were not people to whom Australia had protection obligations.
The applicants provided the Department of Home Affairs with a copy of their passports issued by the Islamic Republic of Pakistan, their Government of Pakistan National Identity Cards, birth certificates issued by the Victorian Registry of Births, Deaths and Marriages for the children and a copy of their marriage certificate issued by the Government of Punjab Pakistan. I accept that the applicants are citizens of Pakistan and will assess their claims against Pakistan as the country of reference for the purposes of s.5H(1)(a) and receiving country for Complementary Protection purposes.
The issue for determination is whether, based on what is accepted of the claims made and arising on the evidence, the applicants are persons to whom Australia has protection obligations. This involves assessing the credibility of the factual basis for the claims and assessing what is accepted against the applicable legal framework.
CLAIMS AND EVIDENCE
Application for protection
[The applicant] provided the Department with an undated written statement in support of her application. In the statement, she outlined that she was born in Lahore Pakistan. [The applicant’s] father died when she was [very young] and she was raised by her mother. After her husband’s death, her mother moved into her father’s house, where they lived with [the applicant’s] uncles and cousins.
[The applicant] said that her family belonged to an orthodox (Sunni Brelawi Muslim) sub cast (Gill, Jutt). She described them as strictly against women’s empowerment. She also said women are deprived of their right in inheritance.
[The applicant’s] mother held different views to the family and wanted her to be educated. [The applicant] wanted to pursue a career as a model or actress.
[The applicant’s] uncle, [named] was murdered in a family property dispute. His sons, [Cousin A] and [Cousin B] became heads of the joint family. [Cousin A] was a member of an extremist group known as Laskar-e-Taiba or Jamat-u-Dawah. [Cousin A] and [Cousin B] wanted [the applicant name variant] to pursue religious studies and stay at home.
When she was 19, [the applicant] fell in love with [Applicant 2]. [The applicant name variant] described his family as mediocre and from a different caste (Sunni Dioband Muslims from the Arain caste). When [Cousin A] and [Cousin B] discovered that [the applicant] wanted to marry [Applicant 2] they tortured her physically, mentally and verbally. She claimed they broke her nose and burnt her left arm with cigarettes. [The applicant’s] mother intervened and saved her life. They did not want [the applicant] to marry out of her caste or family. [Cousin A] wanted to marry [the applicant] so that he might inherit her mother’s wealth and property. He was twenty years her senior.
[The applicant] alleged that [Cousin A] sexually harassed her throughout her childhood and threatened to force her into Haq Bakshish, a ceremony in which a woman is married to the Quran and can no longer marry a man. The practice prevents the transfer of property to a man outside the family. [The applicant’s] mother decided to send her to Australia without their knowledge.
When [Cousin A] and [Cousin B] discovered [the applicant] had travelled to Australia, they allegedly tortured her mother. She was isolated from the family and suffered depression as a result. [The applicant] was so worried about her mother she couldn’t resist visiting her in Pakistan. She stayed at [Applicant 2’s] house and secretly informed her mother of her plans so she could visit. [The applicant’s] mother was worried about what would happen after her death and arranged for her to marry [Applicant 2] in secret while she was in Pakistan.
After the marriage, [Cousin A] and [Cousin B] confined [the applicant’s] mother to her home. They tortured and abused her, and she became sick and passed away [in] December 2011. [The applicant] learned of her mother’s death from her neighbour. She could not resist returning to Pakistan and returned in January 2012.
[Cousin A] and [Cousin B] unlawfully took possession of [the applicant’s] mother’s property with help from a friend named [Friend A], who was a member of a land mafia group. [The applicant] and [Applicant 2] lodged a petition in court against [Friend A]. The family came to know [the applicant] was in Pakistan and attempted to shoot her and [Applicant 2] when they attended a busy market near [Applicant 2’s] family home [in] March 2012. They missed and the couple were able to escape in the crowd. [The applicant] and [Applicant 2] moved to [Applicant 2’s] Uncle’s home and went to the police. The police did not assist because her cousins have strong connections within the police force.
[The applicant] said she received lots of threats from [Cousin A] over the phone. On one occasion he sent a message stating that the only option to resolve the dispute was for [the applicant] to divorce [Applicant 2] and marry him. [Applicant 2’s] parents also received a threat at their home. The applicants did not want to risk their lives and returned to Australia. [The applicant] was so stressed she sought assistance from a psychologist during her stay in Pakistan.
[The applicant] continued to pursue her case in Pakistan through her lawyer. [In] December 2015, she received a favourable decision and the court ordered that [Friend A] had to vacate the relevant property.
The applicants’ children were born in Australia. [The applicant] expressed the desire for them to grow up safely in Australia. She highlighted the prevalence of police corruption and provided the example of a reported incident in which police killed Naqeebullah Mehsood in January 2018, falsely claiming he was a terrorist.
[The applicant] completed her study and is qualified as [an occupation 1]. She outlined that she took part in [a named competition] and won. [Details deleted.] She has worked on domestic violence and dowry related [workshops].
When she thinks about returning to Pakistan, [the applicant] gets panicked and anxious. She said she had consulted with a psychologist for approximately one year. She expressed fear that if she returned to Pakistan she would be found and killed by her family.
On 7 February 2018, [the applicant] and [Applicant 2] attended an interview with the delegate. A recording of the interview was provided to the Tribunal. In addition to the information outlined above, the applicants gave evidence that:
·At the date of the interview, [Applicant 2’s] mother and [siblings] continued to live in Punjab, Pakistan. His father passed away. His [siblings] are all married, and his mother has lived with her brother since 2015.
·[Applicant 2] commenced a [course] in Pakistan but did not complete the course. He was working in a [business] at the time of the interview.
·[The applicant’s] cousin, [Cousin A] sexually abused her as a child and threatened to kill her and her mother if she reported the abuse. [The applicant’s] mother encouraged her not to say anything because the female is always blamed. She never left [the applicant] alone in the house with her cousin once she learned of the abuse.
·[The applicant] and [Applicant 2] met at a college event and commenced a relationship, which they kept quiet.
·When her cousin discovered her talking to a man, he dragged her by the hair and beat her in front of the family. He broke her nose and burned a tattoo of her boyfriend’s name from her body with a cigarette.
·[The applicant’s] mother sent her to Australia to further her education. [The applicant] did not originally apply for protection because she wanted to utilise her degree to apply for a permanent visa.
·[The applicant’s] mother was accused of raising a girl with no shame. She was abused by the family. [The applicant] communicated with her mother through a neighbour and went back to visit. She stayed with her partner’s family.
·[The applicant] was not informed by her family when her mother died [in] December 2012. They only told her when she called three or four days later to enquire about her. [The applicant] travelled back to Pakistan.
·The applicants said they gave the necessary documents to their migration agent at the time they applied for the final student visa. They were unaware that the visa had been refused and they were in Australia illegally until they were stopped by the police. They applied for protection at that time because if they went back to Pakistan they would be killed.
·The applicants could not relocate in Pakistan because [the applicant’s] cousin has strong connections within a terrorist group. They are known as Laskar-e-Taiba but they may be under another name.
·When [the applicant] returned to Pakistan in November 2010, she stayed for a lengthy period because she had to move from place to place and it took time to arrange to meet her mother and arrange the marriage. They then travelled to the northern regions of Pakistan.
·[The applicant’s] mother died under suspicious circumstances. A neighbour saw bruises on her body and said her lip was broken. [The applicant] wanted to file a murder case but decided that she didn’t want to put her mother’s body through an autopsy.
·If the applicant’s relocated to another state in Pakistan there would be language, ethnicity and gender bias. People are killed just for being from the Punjabi area. There would be less opportunity for work in regional or rural areas.
The delegate accepted that the applicants had a marriage of love. However, did not accept that they would be at risk of harm because of their love marriage as they are both Sunni Muslims and married with the blessings and support of both parents. The delegate noted that the couple spent two months in Pakistan together after they were married, and [Applicant 2] continued to live in Pakistan for eight months without being harmed.
The delegate gave minimal weight to any of the documentary evidence submitted by the applicants, highlighting concerns with the content and noting the prevalence of fraud in Pakistan.
The delegate accepted that [the applicant] was sexually abused by her cousin as a child.
The delegate did not accept that the applicants were shot at in a busy market, [the applicant] was burned with cigarettes by her cousin or that [the applicant’s] mother was murdered.
The delegate accepted that [the applicant] took successful legal action against [Friend A], but did not accept that this would lead to harm if she returned to Pakistan. The delegate also accepted that [the applicant] had sought psychological treatment following the death of her mother, but did not accept this as evidence that her broader claims were true.
Application for merits review
On 6 April 2018, the applicants applied for merits review of the decision to refuse them protection visas. A copy of the delegate’s decision was provided to the Tribunal with the application for review.
On 14 August 2023, the applicants were invited to attend a hearing on 4 October 2023 to give evidence and present arguments relating to the issues arising in their case.
On 28 September 2023, the representative requested that the hearing be postponed because [the applicant] was unwell. The applicant supplied a letter from [Doctor A] of [Health Service 1], dated 28 September 2023. [Doctor A] wrote that [the applicant] had an episode of bronchitis which led to tiredness and one hospital admission. The letter also outlined that [the applicant] had been experiencing stress and anxiety, being a single mother taking care of [number] children. “She has trouble concentrating and coping with daily activities, due to all this her mental health has been affected and she will not be able to attend any court hearing from 28/09/23 till 28/10/23.”
I agreed to the request and the hearing was postponed. Due to the volume of evidence, the hearing took place over two days on 31 October and 21 November 2023. [The applicant] and [Applicant 2] each gave evidence separately and the hearing was conducted with the assistance of an interpreter in English and Urdu languages.
[The applicant] confirmed that she is still a party to a legal dispute in respect to the property in [Town 1] and continues to fear harm from her cousins. She also gave evidence that she suffers from depression and anxiety when she thinks about returning to Pakistan. Her oral evidence will be discussed further below where relevant.
At the hearing, I confirmed with both parties that [the applicant] and [Applicant 2] are in an ongoing relationship and [Applicant 2] has not been removed as an applicant to the case. [The applicant] said that they had some relationship problems over the years and [Applicant 2] once went to stay with a friend for two weeks. [Applicant 2] said he supported his wife financially, including paying for the legal action in Pakistan. He said she was a great wife, and they have [number] children together.
On 1 November 2023, the applicant provided the following documents to the Tribunal in support of her application for protection:
·An undated letter from [Doctor B], clinical psychologist. [Doctor B] outlined that he provided counselling to [the applicant] from 23 January to 8 March 2012 in Lahore. He reported that [the applicant] was suffering from a high level of stress, depression, anxiety, insomnia and mood disorder.
·Letter dated 22 September 2023, co-signed by [Applicant 2’s] siblings, [named]. The letter outlines that the applicants face a life-threatening situation because they were married against the will of [the applicant’s] family. It further outlines that their mother, [named], passed away [in] January 2023 and [Applicant 2] was unable to attend the funeral because of the threat to his life in Pakistan.
·Letter dated 30 October 2023 from [Representative A] of [business name]. Mr [Representative A] confirmed that the firm represents [the applicant] before the courts in Pakistan. Attached to the letter was an order sheet issued by [Court 1], dated [in] April 2023. The Judge issued a pre-admission notice to hear from the other side by [a date in] June 2023 and no date for the main case was set.
On 21 November 2023, the applicant’s representative advised that they had been unable to get a report from [the applicant’s] treating psychologist despite several requests. He supplied a letter dated 8 November 2023 from [Doctor C], General Practitioner at [Health Service 1]. [Doctor C] outlined that [the applicant] is a regular patient of the clinic. She suffers from Depressive Anxiety disorder. She had psychotherapy in the past and was taking medication at the date of the letter.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations

In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
ANALYSIS AND FINDINGS
I accept that [the applicant] is a Sunni Muslim woman from Pakistan. I accept that she is married to [Applicant 2] and they have [number] children together. I accept that she stood to inherit a property in [Town 1], Lahore, when her mother passed away in 2012. However, she has been embroiled in a legal dispute with the tenant of the property over its ownership. I accept that [the applicant] was sexually and physically assaulted by her cousin and I accept that her cousins disapproved of her marriage to [Applicant 2], preferring to keep the ownership of her inheritance within the existing family. Finally, I accept that [the applicant] has been diagnosed with Depressive Anxiety disorder.
For the reasons outlined below, I find that the combined effect of the harm faced by women who inherit property, female victims of sexual violence, women who marry without the support of their family and women with mental health issues is such that [the applicant] would face a real risk of persecution in Pakistan.
The Department of Foreign Affairs and Trade (DFAT) reports that gender-based violence is common in Pakistan. Attending a police station may put women at risk of further violence and low conviction rates discourage reporting. So-called ‘honour killings’ are common in Pakistan and can be carried out in response to behaviour including refusing an arranged marriage. Once a threat of honour killing has been established, women remain at risk even if they relocate within Pakistan. DFAT assess that women and girls in Pakistan face a high level of official and societal discrimination. Women also face legal discrimination on issues such as inheritance and property rights. Options for the treatment of mental health disorders are limited in Pakistan.[1]
[1] Department of Foreign Affairs and Trade, Country Information Report Pakistan, 25 January 2022.
Throughout the protection application process, [the applicant] submitted a number of court documents to the Department and the Tribunal evidencing the legal action in respect to the property she inherited in [Town 1], Lahore.
The delegate did not accept the authenticity of the legal documents supplied by the applicant in support of her claim to be involved in a property dispute and her claim to have been shot at in the market, primarily on the basis that document fraud is widespread in Pakistan. I asked [the applicant] about the delegate’s concerns during the first hearing and she said she understood the delegate’s concerns and agreed that document fraud is common. I asked the applicant how she received documentation from her lawyer in Lahore. She told me it was sent by email. She then said email and WhatsApp. I asked her to provide some examples of documentation being sent to her by the lawyer to assist in authenticating the documents she had provided to the Tribunal.
On the day of the second hearing, the applicant submitted further court documents relating to the property dispute with her cousins. However, she did not submit any evidence of how she came to receive the documents. [The applicant] thought she had sent the necessary information to her representative and requested additional time for him to provide it to the Tribunal. I provided the applicant until 1 December 2023 to make all final submissions.
At the second hearing, I discussed the payment of the lawyers with [Applicant 2]. He held paid employment at the date of the hearing, while [the applicant] was caring for their children. [Applicant 2] said that sometimes [the applicant] arranges the payments and sometimes he does it personally. I asked if he could provide the Tribunal with evidence of invoices and payments for the legal work. On 1 December 2023, the Tribunal received a screenshot from a mobile phone, displaying a transfer of $[amount] AUD from [Applicant 2] to [Person A], [Business 2] on 14 September 2022.
As previously outlined, the most recent court document submitted by [the applicant] was an order sheet issued by [Court 1], dated [in] April 2023. On 6 December 2023, the Tribunal sought [the applicant’s] permission to send the document to the Australian Embassy in Lahore for verification. On 14 December 2023, [the applicant] provided the necessary permission and on 5 January 2024, the Tribunal was advised that the document was found to be genuine. This advice supports the applicant’s claim to be a party to an ongoing legal dispute.
I had some concerns in respect to the applicant’s claim to have been shot at in a market and regarding the association of her cousins with terrorist organisations. The applicant’s recounting of the alleged shooting was confused. She claimed to know that she and her husband were the intended targets, however the assailants did not say anything to them. She said she could not identify the assailants because she didn’t see them, but also said she saw men paying attention to her and saw a gun pointed at her. Despite claiming that everyone was aware her cousins were connected to terrorist groups, she could not explain how and had no examples of their activities or associates.
Nevertheless, it is ultimately unnecessary to make a finding on the remaining claims. I accept that [the applicant] would face a real chance of persecution on the basis of the accepted facts outlined above. [The applicant] is at risk of harm from her cousins because she stands to inherit property. While the motivation may be personal to [the applicant’s] situation, I accept that she would not receive adequate protection from the state because of her gender. Further, I note that [the applicant] experienced sexual and physical harm unrelated to the property dispute. Given the nature of the risk, I accept that it is a risk that would be faced by the other members of her immediate family. If something were to happen to [the applicant], the issue of who should inherit the property would continue. This would put her husband and young [child] at risk. Further, [Applicant 2] would be at risk of harm from [the applicant’s] cousins who disapprove of their marriage.
For the reasons given above the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants satisfy the criterion set out in s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act 1958.
Sheridan Aster
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.
…

[2024] AATA 1333

23 January 2024

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Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Remedies