1813065 (Refugee)

1813065 (Refugee) [2023] AATA 4103 (29 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mrs Joey Bich Chau Tam
CASE NUMBER:  1813065
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Peter Haag
DATE: 29 August 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 29 August 2023 at 4:10pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – religion – Shia – active member of Shia religious organisation – Mujlis Wahdat-e-Muslimeen – religious persecution – attacked by Sunni extremists – state protection inconsistent – changed circumstances in Pakistan since delegate’s decision – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 424A, 438, 499
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 April 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Pakistan, applied for the visa on 16 November 2016. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Act).
The applicant appeared before the Tribunal on 24 August 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A], [an official] of [Organisation 1]. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
The applicant was represented in relation to the review.
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–5LA, 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.
Section 5AAA of the Act
Pursuant to s 5AAA of the Act, it is for the applicant to specify all particulars of their 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 their claim, nor does the Tribunal have any responsibility or obligation to establish or assist in establishing the claim. The Tribunal applied this provision when considering the applicant’s claims and evidence.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Applicant’s background
In his visa application, the applicant claims to be a citizen of Pakistan, born on [date] in Mandi Bahauddin, Punjab province, Pakistan. He claims to be a Shia Muslim who can speak, read and write in Urdu.
The applicant provided details in his visa application of his mother, father, sister and [brothers], who are all citizens of Pakistan residing in Pakistan.
At the time of his visa application, the applicant was residing in [Victoria], Australia since January 2016. Prior to this, the applicant lived in [another location in] Victoria, Australia, between June 2015 and December 2015. The applicant previously resided in Mandi Bahauddin, Punjab province, Pakistan, between [birth] and May 2015.
In his visa application, the applicant stated that he had completed [his] education in Mandi Bahauddin, Punjab province, Pakistan between [year range]. He also completed a [course] in Mandi Bahauddin, Punjab province, Pakistan between September 2011 and November 2012.
At the time of visa application, the applicant claimed to be unemployed. He was previously employed [in] Victoria, Australia between August 2015 and September 2016.
Applicant’s identity
The applicant provided the Department with a certified copy of his Pakistani passport and a copy of his Pakistani birth certificate.
The documents provided by the applicant are consistent with his evidence to the Tribunal in relation to his identity. There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicant, the Tribunal finds that he is a citizen of Pakistan, and as such his protection claims will be assessed against Pakistan as the country of reference and ‘receiving country’ respectively.
Migration history
On 29 December 2014 the applicant lodged an application for a TU-573 student visa and on 29 April 2015 the visa was granted.
[In] June 2015 the applicant arrived in Australia from Pakistan on a TU-573 student visa.
On 24 October 2016 the applicant’s TU-573 student visa was cancelled.
On 16 November 2016 the applicant lodged an application for a protection visa.
On 18 April 2018, the applicant’s protection visa application was refused by the delegate for the Minister.
On 7 May 2018 the applicant applied to the Tribunal for review of the protection visa refusal decision.
Claims for protection and other supporting documentation
The applicant submitted his claims for protection when he lodged his protection visa application with the Department on 16 November 2016. The applicant’s claims are as follows:[1]
[1] Department file [number], Doc ID 10298900, folios 18–20.
88 I am seeking protection in Australia so that I do not have to return to (name of country or countries that you are able to legally enter and/or reside In. This includes countries you are a citizen or national of or you have a current visa for).
My family has received constant life threats from Religious organisations for a long time and believe that I will be harmed, threatened and harassed (physically and emotionally) upon my return to Pakistan.
89 Why did you leave that country(s)? Provide specific details
Being a Shia Muslim, I was an active member of 'Mujlis Wahdat-e-Muslimeen', a peaceful Shia religious organisation. In April 2015,1 was involved in an incident involving another religious organisations. We were carrying out a small peaceful meeting when were were attached by members of a Sunni organisation. There were some existing dispute between the two organisations but this attack was not expected by anyone. We were unprepared but in the midst of things, we had to retaliate to save our lives. I and some of the other members of my organisations fought back in self-defense until the police arrived. The attackers fled the scene and were not caught.
With in days, my family started receiving death threats, most of which were directed towards me. Threats were made due to my affiliation with a peaceful religious organisation, and I was being targeted for being involved in a physical confrontation with members of this Sunni organisation.
Even though the Sunni organisation hasn't taken the responsibility of the attack, they are a powerful well-known and bigger organisation with considerable political support from the bigger religious political parties that they support and affiliate with.
90 What do you think will happen to you if you return to that country(s)?
Local Sunni religious organisations in Pakistan are almost always backed by the big religious political parties. Their threats are not supposed to be taken lightly. This was also the case in my situation.
After the incident, my family received serious direct and indirect life threats. This has been reported to the police however little action has been take so far.
91 Did you experience harm in that country(s)?
No
I am relieved to have left Pakistan and arrive in Australia before the situation was worsen. I do worry about my family but at the same time, the thought of having to return back to this situation is enough to make me sleepless due to stress and anxiety.
Further-more, my family in Pakistan has received regular life threats that were directed towards me.
I believe that upon my return to Pakistan, I can be targeted by the same group that has previously killed several people on the same grounds.
92 Did you seek help within the country(s) after the harm?
Yes
Police in Pakistan, due to cultural and political reasons has a record of showing hesitation in taking action against religious organisations.
Nevertheless, there is a registered FIR made by my family against the members of this organisation, however little progress has been made by the police in all this time.
Police corruption is very common and they abuse their power for personal gains and get involved in bias conduct. In Pakistan, these disputes are often settled at the cost of death, murders and disputes lasting years.
93 Did you move, or try to move, to another part of that country(s) to seek safety?
No
We have been living in Mandibahauddin for generations. Leaving Mandibahauddin and moving to another city is not an option. It is not practical to leave our home, land and all the family relatives and move to another city.
Our lands are our sole source of income. Leaving the city will not only create severe financial hardship for my family but will also leave our property open to be occupied by others such as land mafia.
94 Do you think you will be harmed or mistreated if you return to that country(s)?
Yes
I am bound to received more life threats and possible murder attempts.
My family has been a victim of serious life threats, most of which were directed towards me.
95 Do you think the authorities of that country(s) can and will protect you if you go back?
No
Police in Pakistan, due to cultural and political reasons has a record of showing hesitation in taking action against religious organisations.
Nevertheless, there is a registered FIR made by my family against the members of this organisation, however little progress has been made by the police in all this time.
Police corruption is very common and they abuse their power for personal gains and get involved in bias conduct. In Pakistan, these disputes are often settled at the cost of death, murders and disputes lasting years.
96 Do you think you would be able to relocate within that country(s)?
No
We have been living in Mandibahauddin for generations. Leaving Mandibahauddin and moving to another city is not an option. It is not practical to leave our home, land and all the family relatives and move to another city.
Our lands are our sole source of income. Leaving the city will not only create severe financial hardship for my family but will also leave our property open to be occupied by others such as land mafia.
On 10 March 2017 the applicant submitted the following documents to the Department in support of his protection visa application:[2]
[2] Department file [number], Doc ID 10298900, folios 70–82.

a) The following applicant statement, unsigned and undated, along with a number of screenshots of online news articles, in support of his protection visa application:
Introduction-Citizenship and Background
2. I was born in Mandi Bahuauddin district in the Punjab province of Pakistan.
3. I was born in [year] on [date].
4. I'm a citizen of Pakistan, currently living in Australia on a Bridging Visa. I do not have right to enter or reside in any country other than Pakistan and Australia (Australia-on a valid Visa). I do not hold citizenship of any country other than Pakistan.
5. I'm a Muslim (Shia) by religion.
6. I'm separated from a relationship since 2016 which started from 2015.
7. My main language is Urdu, in which I can speak, read & write.
8. My parents, one sister and [brothers] reside at Mandi Bahauddin district in the Punjab province of Pakistan.
The country to which I fear returning
9. Pakistan.
Why I left Pakistan
10. The initial plan/reason to leave Pakistan was for obtaining higher education from well qualified universities for a better future.
Why I fear to return
11. The thought of returning to Pakistan runs fear and brings shiver in me. It is sad that how an individual's fear to return to own country or origination, and in my case, this has escalated to build anxiety and fear. To add and make it simple, the fear of returning to own land is fear of being tortured, harmed or even loss of life.
In brief below is the history of Shia Muslims, my personal reasons to the start of this situation, actions taken, what I fear for. What my family is undergoing, political and religious unsettlement, political and religious power used against, and the reason to why I fear for my personal and family's wellbeing in Pakistan.
As and by birth I have been a religious follower of Islam (Shia), also known as Shia Muslim. Shia Muslims is of 5 to 20 % of the total population in Pakistan. Shia Muslims are actually the refugees in Pakistan, though they have found refugee the tension between them and the Sunnis has been an ongoing issue.
Sunni is believed to have a approximate population of 75 to 95%. Sunni and Shia Muslims relationships in recent years have increasingly marked by conflict. Particularly the Iran-Saudi Arabia proxy conflict. Sectarian violence persists to this day from Pakistan to Yemen and is a major element of friction throughout the Middle East. Tensions between communities have intensified during power struggles, such as the Bahraini uprising, the Iraq war, and most recently the Syrian Civil War and in the formation of the self styled Islamic State Of Iraq and Syria that launched a genocide against Shia's.
The troubles like genocide, persecution, torture and other non explanatory harm to Shia's is not just the current issues, this has also been occurred in the past. In the past, Shia's in Pakistan has also faced persecution by some Mugal emperors which not only resulted in murder of common people, but also of high priests and scholars.
Should acknowledge there was a moment where the Shia-Sunni relations have been cordial. But this did not last long in Pakistan. As per the records unfortunately from 1987 to 2007 as many as 4000 people are estimated to have died" in Shia-Sunni sectarian fighting in Pakistan. The number from 2007 is not officially informed, however the news that we read day in and out estimates almost to the same figures. The Shia's have been targeted not only by the Sunni's but by also other religious groups. The problem is that the Pakistan's religious groups are being funded by Arab states which allows the groups to escalate the conflict. Pakistan has become a battleground between Saudi Arabia-Funded Sunnis and Wahhabis and Iran funded Shia resulting in the deaths of thousands of innocent Muslims.
Anti Shia groups in Pakistan include the Lashkar-e-Jhangvi and Sipah-e-Sahaba Pakistan, offshoots of the Jamiat Ulema-elslam (JUI). The groups demand the expulsion of all Shias from Pakistan and have killed hundreds of Shias Between 1996 and 1999. As in Iraq they targeted Shia in their holy places and mosques, especially during times of communal prayer. In 1997 Sunni terror groups assassinated 75 Shia community leaders in a systematic attempt to remove Shias from positions of authority. To add on the Lashkar-e-Jhangvi has declared Shia to be "American agents" and the near enemy in global Jihad.
The reason to highlight the above, which is just a minute information is to project and indicate the status of a Shia Muslim believer. Shia's are peace loving small religious group who would not want any troubles. Unfortunately, this has not been the case as the other anti-Shia groups in Pakistan has always been troubling in some way or the other.
To point out the main reason why I fear, and the incident that has triggered more fear in my life. As a true follower and being a Shia Muslim, I have been an very active member of "Majlis Wahdat-e Muslimeen (MWM). Few points to highlight about MWM's activities and their main role is to bring unity and peace. MWM is a Shiite Political organisation in Pakistan participating in political activities in all over the country with headquarters in Islamabad. MWM Pakistan working with ideology to establish an Islamic democratic welfare state, particularly emphasizing on Shiite-Sunni unity in the country.
The Majlis Wahdat-e-Muslimeen was founded by a group of Shiite Muslim clergy and former members of single largest Shiite students' organization 'Imamia Students Organization' on August 2, 2009 in Islamabad, Pakistan. It has a prominent presence among the Shiite Muslims in the Punjab, Sindh, Khyber Pukhtunkhwa, Baluchistan, Gilgit-Baltistan and in Azad Kashmir. The party's main perspective is to raise the voice against oppression on Pakistan's Shia community, establish goodwill with the Sunni Muslim community, raise the political and religious awareness among the Shia Muslims of Pakistan and to revive the teachings of justice and peace in the society

But much to my shocking, the turnaround of my life and situation happened in April 2015. As an active member of MWM and participating in a peaceful meeting, is when the whole new episode erupted. During the peaceful meeting there was disturbance by other groups. It was bought to our notice and became aware of that the other group was none other than members of a Sunni organisation. Though it was known conflict between the Sunni's and the Shia's, the attack on this peaceful even was not expected by any.
The unexpected attack from the Sunni group resulted in various member of the group being hurt. We were stranded there filled with fear of being killed. The incident directly on us occurred this way to be more precise. After the meeting as Me and group of friends were getting on to our car to return home. The accused (refer to attached First Information Report to police) blocked our way by parking their car in front of ours. And they were so agitated, shouting and yelling. To our more surprise, they also started to fire at us using fire arms. To our luck we were not killed, but from this incident one of my friend was hit on his right shoulder and couple of them on the car.
This incident also involved in the attackers kidnapping one of our friends. As we were helpless and feared for the life and safety of the kidnapped friend, we shouted, cried, and yelled for help. Hearing to our plea, the local men and women gathered resulted in the gang members to abandon our friend and flee.
As usual the police force arrived at the scene after some time which by then had ended with few of the members being physically hurt. As the Police force arrived the troublesome group fled the scene. The troublemakers were so quick, that they got on their heels and were not caught by the police.
After the incident, and being lucky of having our lives safe, I and my couple of other friends went to the local Police Station [and] registered a case (First Information Report-FIR) [in] April 2015. The FIR was against the people who attacked me and friend on that fateful day.
The FIR (First Investigation Report) changed my life completely. As I was the key person to lodge an official complaint against the attackers and being able to name them has led to the extent of them wanting to see me killed. I never in my wild dreams had thought of being targeted for being bold enough to complain against the culprits who were seeking harm to me and my friends.
The accused that I could name few, and register a case against were from the Sunni group, and to my knowledge they are from the Lashkar e Jhangvi, they run as an organisation and especially in Mandi bahauddin and surroundings. To brief about Lashkar e Jhangvi the term itself means Army of Jhangvi. This group is a Sunni supremacist. This group LeJ (Lashkar e Jhangvi) is group that has also claimed various attacks in Pakistan. To point out one incident that shocked the whole world is when the Sri-lankan Cricket team was attached in Lahore and this attack is claimed to be conducted by this LeJ organistaion, who are now claiming that the reason for them to attach me and my friends while heading home was because we fought against the Sunni's on the procession day. Should acknowledge that there was push and shove to save our lives. The attack was from the other group, and any human to self defend would push the attacker when being attacked.
To highlight more about the atrocity of this LeJ group. Source Wikipedia ( "On Sunday, 16 August 2015, 71- year-old Shuja Khanzada was meeting with relatives and friends at his home office in the village of Shadikhan to condole the death of a relative who had died in the United Kingdom, when the attack was perpetrated by two men strapped with a combined 15 kg (33 lb) of explosives. According to the initial investigation, the bombers' intent was to collapse the building. The first bomber entered Khanzada's home office, shook his hand and detonated the device while standing next to one of the pillars on the veranda. It is believed a second bomber, standing on the street next to the building, then detonated his explosives, causing the building to collapse when the roof of the house caved in, trapping an unknown number of people under the rubble".
Since this incident, my family has received numerous death threats, and in main most of them were directed towards me. The threats are because; my family and I are Shia Muslims and standing strong with our faith and religion. The threat is also extended due to my involvement with the MWM peaceful group, who is trying to unite the religious groups and bring peace and harmony in the country.
After my case (FIR) being registered with the police, there was no action taken and though the Sunni group/organisation did not take the responsibility of the attack, it is clear and known secret that they have the capacity/power to easily walk away from such allegations. This group or organisation is well supported by the political parties who guide and guard them in all possible way. This includes them being supported that even results in someone being killed or physically harmed.
As stated earlier the religious groups are known to be sourced financially by political parties from within the country and at times sourced by other countries. This was just to point that they are able to get any official case lodged against them with the police can be settled. This is due to the corruption with the whole policy. Where we go to seek Justice and protection gives deaf ears. When my parents started receiving phone calls, they did seek help and protection from the police. But there was not help provided which still results in my family receiving death threats. Due to these threats I fear to my own country where I was born and spent my childhood. Being away from my parents and siblings has left a big heavy heart, however in return my parents are happy that I am safe and living in a peaceful country.
Do I think if the Authorities of Pakistan can will protect me if were to go back & What will happen to me if I return.
12. I would not even dream in my wild dreams of being protected by the authorities of Pakistan that can protect me on my return. This is not being sarcastic or negative, but this is the known truth and fact of the corruption within the authorities, police of Pakistan. Though my family has been receiving constant threats including life threat police have not been able to find those responsible for these threats inspite of numerous complaints. Though the Sunni organisation have not taken the responsibility of these attacks and threats, police have been unable to trace the right people in spite of few names provided to the police at the time of FIR (first investigation report) lodged.
On my return, as mentioned earlier due to lack of support from the authorities and protection from police, I may end up being killed by those who want me to be, no more in life. As these groups or people have the power, source means to hurt an individual, without doubt they will be successful in eliminating me. Words cannot be compressed to typing with details, because the threat received by parents and fear for life is beyond explanation.
I have only heard about people having sleepless nights and living in fear, but this is a direct experience to me, which is not pleasant. This has led to depression, anxiety and unstableness in life. This is a mental torture of even thinking of going back to the country of origin as I am sure; they will be able to trace me out in any part of the country. As the hatred is between two groups and me belonging to the minority group, they will be successful in tracing me out.
The police who are prone to these of disputes, do not show much interest as at times, this may also threaten their life and families. There are even chances that some corrupt police officers may join hand with the group/organisation and assist them. I would not doubt if my details are leaked by the officials who are supposed to be protecting me and my family.
As it is a known fact about the corruption of police in Pakistan, you cannot say that you may even be tortured or meet end to life by one of them. Again, these statements are from my experience and fear of life and thoughts to my family.
Questions may rise, if I and my family could move to other part of the country. As mentioned earlier since this is a communal issue between two groups, the threat and standard of life will remain same. Standard of life here is referred to living in fear. To add, my parents may not be willing and also it is not practical to leave the current place of residence and move to another part of the country. Our family and their ancestors have been living in Mandi bahauddin for generations. There is sentiment attached to the land, and surroundings we live. Again to reiterate there is no compromise here as our situation may remain same regardless we live here or move to other part. Moreover, we feel little safe and protected within this community as we are surrounded by our same group (shia), relatives and friends who care for each other, though they are fear the same.
On a second thought if we were to leave the current place, it will only end us up with financial hardship. This is due to the fact that relocating to another place means finding a place to live, find a job etc. I should also highlight that, leaving the property that we own, may be an open invitation to the land mafia. Land mafia is another source of anti element which has shivered most of the Pakistanis. These land mafias are known for occupying vacant plots and this is run hand in glove along with the local council/government authorities. People who has tried to fight against the so called land mafias have never been able to retrieve their land rather than ending in more troubles like exhortation, or even losing life.
Overall to be more precise, my life is in danger at this current situation. Even at the time of drafting this request my family has received another threat and asking about my whereabouts. They have also been threatening to harm my other family members. It is so fearful to hear that they have also mentioned the reason why they have left my parents and family members alive is so that I return back to my family. The fear of life is not limited to self, but to my entire family. Heart aches, when parents ask not to return as they fear for my life. No parents would want to ask their kids not to return home, but this is not in my case.
Words cannot express the gratitude and thankfulness to Australia who has currently provided me refuge. Otherwise, I would have already been a victim by know. This could have been by means of physical or mental torture, un explainable torture, suffering, and the worst being death.

b)     Translated copy of a document that purports to be a First Information Report made [in] April 2015, regarding an incident in which the applicant claims to have been attacked in his car;
c)     Newspaper article from [news source], with English translation, titled ‘[deleted]’, dated [April] 2015;
d)     Statement of membership of Majlis Wahdat-e Muslimeen (MWM), with English translation, dated [November] 2016, which purports to be evidence of the applicant’s membership of MWM.

On 7 May 2018 the applicant provided to the Tribunal a copy of the decision of the delegate of Minister refusing to grant him a protection visa.[3]
[3] Tribunal file 1813065, Doc Id 4289761.
On 20 July 2023 the Tribunal invited the applicant to comment on or respond to information contained in his earlier student visa application, lodged on 29 December 2014, which was inconsistent with information he provided to the Department as part of the protection visa application he lodged with the Department on 16 November 2016. The applicant responded to the Tribunal via his representative.
On 2 August 2023, the applicant’s representative submitted written submissions on behalf of the applicant in response to the Tribunal’s invitation to comment on or respond to information.[4]
[4] Ibid, Doc Id 11347414.
Evidence not presented before the primary decision was made
On 14 August 2023 the applicant submitted to the Tribunal the following documents:
a)A Health Summary sheet for the applicant, [dated] 21 July 2023, recording the applicant’s current medications and active health concerns;[5]
b)The applicant’s Discharge Summary for surgery conducted on 2 August 2023 at [Hospital];[6]
c)Copy of Affidavit, with English translation, dated 22 June 2022, from [Mr B], in support of the applicant’s protection claims;[7]
d)Copy of Affidavit, with English translation, dated 22 June 2022, from [Mr C], in support of the applicant’s protection claims;[8]
e)Copy of Affidavit, with English translation, dated 22 July 2023, from [Mr D], attesting to the applicant’s participation in the Shia community, membership of MWM and in support of the applicant’s protection claims;[9]
f)Copy of First Information Report, with English translation, made by the applicant, dated [April] 2015, as per paragraph 27(b);[10]
g)Copy of newspaper article, with English translation, from [news source], titled ‘[deleted]’, dated [April] 2015, as per paragraph 27(c);[11]
h)Statement, with English translation, from [Mr D], dated [November] 2016, attesting to the applicant’s involvement in an incident in April 2015 and the applicant’s participation in the Shia community and membership of MWM, as per paragraph 27(d);[12]
i)A collection of screenshots of photographs and video stills from the applicant’s social media account.[13]
[5] Ibid, Doc Id 11391502.
[6] Ibid, Doc Id 11392118.
[7] Ibid, Doc Id 11392119.
[8] Ibid, Doc Id 11392121.
[9] Ibid, Doc Id 11392121.
[10] Ibid, Doc Id 11392122.
[11] Ibid, Doc Id 11392124.
[12] Ibid, Doc Id 11392125.
[13] Ibid, Doc Id 11392168.
On 15 August 2023 the applicant’s representative provided to the Tribunal written submissions in support of the applicant’s application. The applicant acknowledged and signed the submissions on 14 August 2023.[14]
[14] Ibid, Doc Id 11399622.
On 18 August 2023 the applicant submitted to the Tribunal a copy of the First Information Report dated [April] 2015, with certified English translation made by an alternate translation service to the translation provided with the same report as per paragraph 27(b) and 31(f).[15]
[15] Ibid, Doc Id 11414922 and 11421945.
On 21 August 2023 the applicant submitted to the Tribunal a Statutory Declaration made by [Mr A] of [Organisation 1], in support of the applicant’s protection claims, signed and dated 18 August 2023.[16]
[16] Ibid, Doc Id 11421944.
Between 18 August 2023 and the day of the hearing the applicant’s representative provided photographic materials, and a large body of untranslated country information, much of which the Tribunal was asked to access by following internet links provided in an email. In pre-hearing information provided to the applicant via his representative the Tribunal made it clear that information written in a foreign language should be accompanied by a certified translation of it. The Tribunal gives no weight to the untranslated materials because the Tribunal is unable to understand it. It is not for the Tribunal to provide as evidence in a review, translations of untranslated documents submitted by an applicant to sustain his application: see [10] and s 5AAA of the Act.
The determinative issues
Before approaching the issues which the Tribunal considers to be the issues determinative of the visa application, it is important to make a few general remarks. First, the security situation in Pakistan has deteriorated significantly since the delegate of the Minister decided on 18 April 2018 that the applicant did not satisfy the requirements for the grant of a protection visa. Second, new and more recent country information is available to the Tribunal that was not available to the delegate.
The determinative issues in this case are whether:
·the applicant would be subjected to a real chance of serious harm for reasons of religion and political opinion, if he is removed to Pakistan now or in the reasonably foreseeable future; and,
·a real chance of serious harm relates to all areas of Pakistan;
·effective protection measures are available to the applicant in Pakistan; and,
·the applicant could take reasonable steps to modify his behaviour to avoid the real chance of persecution, other than altering his religious beliefs, including renouncing a religious conviction, or concealing his true religious beliefs, or ceasing to be involved in the open practice of his faith.
Non-disclosure certificate (s 438) – invitation to comment on the certificate (s 424A)
Pursuant to s 438 of the Act, the delegate of the Minister issued a s 438 certificate that restricted disclosure of the information that is the subject of the certificate. The validity of the certificate and the related information concerning the applicant was the subject of an invitation to the applicant to comment on certain matters particularised in the invitation. The invitation to comment was made pursuant to s 424A of the Act. The invitation afforded to the applicant an opportunity to comment on the Tribunal’s preliminary view that the non-disclosure certificate was valid. The applicant’s representative responded on behalf of the applicant. The response did not address the validity of the certificate. At hearing the representative conceded the certificate was valid.
In addition to addressing the validity of the non-disclosure certificate, the s 424A invitation to comment on information before the Tribunal informed the applicant of the gist of the information that was protected by the certificate. The s 424A invitation also informed the applicant, that the information was insufficiently probative for the Tribunal to give it any evidentiary weight; that the Tribunal would put it aside and it would play no part in the determination of the review. The applicant’s response to the s 424A invitation seemed to derive from a misunderstanding of the contents of the invitation.
At hearing the non-disclosure certificate and the s 424A invitation to comment on the protected information referred to in the invitation was discussed with the applicant’s representative. During those discussions the representative indicated she accepted the Tribunal would not have regard to the information covered by the non-disclosure certificate, and that the applicant was content to proceed on that basis.
The Tribunal finds the s 438 non-disclosure certificate is valid.
The Tribunal has decided to have no regard to the information that is protected from disclosure by the s 438 non-disclosure certificate (subject to the Tribunal’s discretion to disclose information) and that the information will have no influence on the Tribunal’s decision and Reasons for Decision.
The evidence
The evidence is sufficient to satisfy the Tribunal that the applicant, in accordance with beliefs fundamental to his conscience, is a Shia Muslim and that he regularly and openly practised his faith in Pakistan and continues to do so in Australia.
The Tribunal is also satisfied that the applicant, as a matter fundamental to his identity and conscience, would continue to practise Islam regularly and openly and in accordance with his understanding of Shia teachings and devotional duties, if he is removed to Pakistan now or in the reasonably foreseeable future.
In relation to both findings the Tribunal will proceed to discuss the evidence and country information it has assessed to be relevant and material to the findings.
The applicant gave comprehensive evidence at hearing concerning his religious beliefs. In summary, the applicant asserted he was born into a Shia Muslim family. He attended Mosque and prayers from an early age. From about the age of 12 he was sufficiently aware of the substance of Shia Islam to be a true Shia Muslim.

According to the applicant’s evidence which, after considering the supporting written evidence and the oral evidence of [Mr A], [an official] of [Organisation 1] (a Shia Muslim religious and welfare organisation), the Tribunal is satisfied the applicant openly and conscientiously practised his religious beliefs in accordance with the precepts and practices of Shia Islam in Pakistan, and that he continues to do so in Australia.
The Tribunal is also satisfied the applicant has conscientiously and consistently prayed in Shia Mosques in Pakistan, and he continues to do so in Australia. The Tribunal is also satisfied the applicant conscientiously and consistently participated in annual Muharram observances and processions in Pakistan and that he continues to do so in Australia.
According to the applicant’s evidence and common knowledge, Muharram processions and observances by Shia Muslims recall the historical circumstances that explain, in large measure, the reasons for the continuing division between Shia and Sunni Muslims.
Relevantly, and consistently with the applicant’s oral evidence, the DFAT Country Information Report – Pakistan – January 2022 (DFAT report) states at [3.59]:
Sectarian tensions often flare during Muharram, when Shi’a mourn the killing of the Prophet Mohammad’s grandson and his family, a key event in the Sunni-Shi’a schism. In 2020, over 40 Shi’a were charged with blasphemy following Muharram, including clerics accused of insulting the Companions of the Prophet during ritual processions. Thousands of Sunni protesters took to the streets in Karachi and Islamabad chanting anti-Shi’a slogans. There were targeted killings of Shi’a in multiple cities. The Karachi head of the TLP openly threatened beheadings for Shi’a ‘blasphemers’. Videos of these incidents circulated on social media. Authorities have attempted to curb sectarian hatred during Muharram, for instance by banning firebrand Sunni and Shi’a clerics from leaving home and by cutting off mobile phone services in major cities during processions.
The applicant said in evidence that he was involved in an altercation with Sunni Muslims [in] April 2014 in which he prominently participated in a procession of Shia Muslims during Muharram. The procession passed a Sunni Mosque. The parade was attacked by a group of armed Sunni Muslims. During the attack one of his companions suffered a non-fatal bullet wound. The applicant and several other Shia Muslims reported the incident to the local police.
First information report
In support of his evidence the applicant relies on a document and translation of the document that purports to be a First Information Report (FIR) of a criminal offence pertaining to the alleged confrontation with Sunni Muslim extremists [in] April 2014 during Muharram. In assessing the evidentiary weight to be given to the FIR the Tribunal has considered the DFAT report which states document fraud is widespread in Pakistan, and that DFAT does not consider the existence of an FIR to be conclusive evidence of the occurrence of the events described in the FIR: [5.52]–[5.54].
Having considered the applicant’s oral evidence, the oral and written evidence of [Mr A], the Affidavits of [Mr B], [Mr C] and [Mr D], and the cited parts of the DFAT report relating to FIRs in conjunction with the contents of the applicant’s FIR, on balance, the Tribunal is satisfied it is reasonably likely the events described in the FIR occurred.
The applicant asserts he was an active member of Majlis Wahdat-e Muslimeen (MWM) a Shia Muslim political organisation, active in Pakistan. The applicant also said the membership of MWM regularly provide welfare assistance to needy members of the Shia Muslim community.
According to the applicant, as a member of MWM, he openly provided welfare assistance to needy members of the Shia community. He also attended meetings of MWM where matters oppositional to the policies of the parties that represented the mostly Sunni population of Pakistan were discussed. The applicant asserts he was against the Taliban and its offshoots in Pakistan such as Tehrik-e Taliban Pakistan (TTP)[17] because he believes them to be terrorist organisations that target the Shia Muslims.
[17] [58]–[66] in this decision.
In this respect the applicant’s evidence is supported either directly or circumstantially, by the oral and written evidence of [Mr A], and newspaper reports and video evidence relating to the political activities of MWM, and violence inflicted on members of MWM,[18] and the Affidavits of [Mr B], [Mr C] and [Mr D]. This evidence also supports the applicant’s claim to have been a member of MWM in Pakistan.
[18] Tribunal file, Doc Id 11430925, Email with attachments and links.
The Tribunal is satisfied the applicant was an active member of MWM in Pakistan and that he would continue to engage with and openly work according to direction from senior members of the MWM, because his conscientiously held religious beliefs demand of him that he regularly performs charitable works for needy Shia Muslims irrespective of whether he is residing in Australia or Pakistan. The Tribunal is also satisfied the applicant actively and contentiously opposes Sunni extremists and organisations such as the TTP and Islamic State Khorasan Province (ISKP)[19] whose activities include targeting Shia Muslims with intimidation and violence because they are Shia Muslims and therefore ‘blasphemers’.
[19] [58]–[66] in this decision.
Deterioration of the security situation in Pakistan
Circumstances in Pakistan have changed significantly since the applicant arrived in Australia as the holder of a student visa in June 2015. That much is demonstrated by the DFAT report[20] and various other authoritative open-source country information reports that the Tribunal will refer to in these Reasons.
[20] DFAT report [2.34]–[2.40].
The country information considered by the Tribunal establishes that following improvement over recent years, the security situation in Pakistan has deteriorated since mid-2021. Causes of the deteriorating security situation include, without limitation, to domestic politics, economic hardship, religious extremism, sectarian hatred, and the Taliban resuming political control of Afghanistan.[21]
[21] In mid-2021 the Taliban returned to power in Afghanistan, and the US and its allies withdrew their military forces from the country: ‘DFAT Thematic Report on Political and Security Developments in Afghanistan (August 2021 to January 2022)’.
The DFAT report states that after a number of years of improvement, the security situation in Pakistan has deteriorated since mid-2021 (p.13) and consistent with that finding, according to the Global Terrorism Index, Pakistan is one of the 10 countries in the world that are most affected by terrorism.[22] The US Department of State maintains that in 2021 terrorist violence and human rights abuses by non-state actors contributed to human rights problems, with terror and violence exceeding that of the previous year.[23]
[22] Institute for Economics and Peace 2022, Global Terrorism Index 2022, 9 June.
[23] US Department of State 2022, 2021 Country Reports on Human Rights Practices: Pakistan, 12 April, Executive Summary, 20220413104804.
In 2021, militant and terrorist groups, including the TTP,[24] Lashkar-e Jhangvi (LeJ)[25] and ISKP,[26] targeted civilians, journalists, community leaders, security forces, law enforcement officers, foreigners, and schools, killing and injuring hundreds of people with bombs, suicide attacks and other forms of violence.
[24] Tehrik-e Taliban Pakistan, commonly known as the Pakistani Taliban or TTP, is an umbrella organisation of various Islamist armed militant groups operating along the Afghan–Pakistani border. Formed in 2007 by Baitullah Mehsud, its current leader is Noor Wali Mehsud, who has publicly pledged allegiance to the Afghan Taliban.
[25] The Lashkar-e Jhangvi or ‘Army of Jhangvi’ or LeJ, is a Deobandi Sunni supremacist and jihadist militant organisation. The organisation operates in Pakistan and Afghanistan and is an offshoot of anti-Shia party Sipah-e-Sahaba Pakistan. LeJ’s objectives are to establish an Islamist Sunni state in Pakistan based on Sharia law, by violent means if necessary; to have all Shias declared non-believers; and to kill Shia, Jews, Christians and other minorities.
[26] Islamic State Khorasan Province is a Sunni fundamentalist Islamist militant group based in Afghanistan as the regional affiliate of Islamic State (or Daesh) seeking to establish a global caliphate and with a sectarian agenda.
According to the United States Commission on International Religious Freedom (the USCIRF), in 2021, religious freedom conditions in Pakistan were reported to have continued their negative trajectory. The USCIRF noted reports of targeted killings, lynching, mob violence, forced conversions and desecration of houses of worship and cemeteries. These violations targeted religious minorities, including the Ahmadiyya Muslim, Christian, Hindu, Sikh and Shia Muslim communities. The government continues to systematically enforce blasphemy, anti-Ahmadiyya and cybercrime laws while failing to protect religious minorities from non-state actors. According to the USCIRF, extremist organisations which espoused intolerance towards religious minorities often acted with impunity. The spread of extremist Islamist ideology in Pakistan has created an environment of increasing intolerance, exacerbating existing prejudices and inducing fear among religious minorities.[27]
[27] United States Commission on International Religious Freedom 2022, Pakistan, 25 April, Key Findings, 20220426134255.
The decline in security conditions in Pakistan has led to a significant increase in fatalities among civilians and security personnel from terror and counterterror-related violence.[28]
[28] See Centre for Research and Security Studies 2022, Annual Security Report 2021, May, p.6, 20220629103851; Pakistan Institute for Conflict and Security Studies 2022, Pakistan Annual Security Assessment Report 2021, 26 January, p.1, 20220209092645.
[29] Centre for Research and Security Studies 2022, Annual Security Report 2021, May, p.6, 20220629103851.
[30] Pakistan Institute for Conflict and Security Studies 2022, Pakistan Annual Security Assessment Report 2021, 26 January, p.1, 20220209092645.
[31] DFAT 2022, DFAT Country Information Report Pakistan 2022, 25 January, p.13, 20220125094359.
Furthermore, according to the Centre for Research and Security Studies (CRSS), in 2021 civilian casualties increased by 32 per cent (316) and fatalities among security personnel increased by 40 per cent (263) compared to 2020.[29] In the same year there was reported to be a 57 per cent increase in terror-related attacks.[30] Most attacks were reported to have taken place in KPK (especially North Waziristan) and Balochistan, although Punjab and Sindh (especially Karachi) were also targeted.^[31]
The Pakistan Institute for Conflict and Security Studies predicts that the trend of increasing violence by terrorist groups is likely to continue throughout 2022, driven by uncertainty over talks with the TTP, the security situation in Afghanistan and the rising threat of ISKP.[32]
[32] Pakistan Institute for Conflict and Security Studies 2022, Pakistan Annual Security Assessment Report 2021, 26 January, p.3, 20220209092645.
On balance, the applicant’s evidence, the oral and written evidence of [Mr A] and the Affidavits made by [Mr B], [Mr C] and [Mr D], are largely consistent with and supported by the country information referenced in these Reasons for Decision.
The cited country information is also consistent with and supportive of the applicant’s claim that he would face a real chance of persecution in Pakistan for reasons of his religion and political opinion, the latter expressed in his participation in MWM sponsored welfare activities among needy Shia Muslims.
Findings
In considering the country information concerning the rising tide of systematic and widespread violence by non-state actors, being the identified violent organisations in Pakistan,[33] against minority sectarian groups, including Shia Muslims, combined with evidence accepted by the Tribunal of the applicant’s faith-related welfare activities in Pakistan and Australia, the Tribunal is satisfied the applicant would be subjected to a real chance of serious harm for reasons of religion, if he is removed to Pakistan now or in the reasonably foreseeable future.
[33] [61]–[64].
The Tribunal is satisfied the applicant’s religious beliefs and practices are matters fundamental to his identity and conscience. The Tribunal is also satisfied modification of the applicant’s faith-based beliefs or practices to avoid the risk of serious harm in Pakistan would conflict with his identity and conscience.
The Tribunal is satisfied the cited country information and evidence demonstrates that consistent, effective and ongoing protection by state or non-state actors would not be available to the applicant in Pakistan, sufficiently to protect him from the real chance of serious harm from Sunni extremists, including the identified organisations,[34] now or in the reasonably foreseeable future.
[34] Ibid.
The Tribunal is also satisfied religious persecution is the essential and significant reason for the real chance of persecution faced by the applicant, and that the persecution would involve systematic and discriminatory conduct by Sunni extremists including the identified violent organisations.[35]
[35] Ibid.
Consequently, the Tribunal is satisfied the applicant has a well-founded fear of persecution for a reason specified in s 5J(1) of the Act, namely religion, and that the applicant meets the definition of refugee as set out in s 5H of the Act.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Peter Haag

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.
…

[2023] AATA 4103

29 August 2023

Key Legal Topics

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Immigration

Statutory Interpretation

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Procedural Fairness

Statutory Construction

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