1814173 (Refugee)

1814173 (Refugee) [2023] AATA 4567 (15 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1814173

COUNTRY OF REFERENCE: Pakistan
MEMBER:Peter Katsambanis
DATE:15 November 2023
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 15 November 2023 at 12:50pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – race – Hazarawal – political opinion – Hazarawal separatist movement – physical assault – communal violence – abduction – employment – delay in applying for protection – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB (2013) FCR 505
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 7 May 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Pakistan, applied for the visas on 16 November 2016. The delegate refused to grant the visas on the basis that the delegate was not satisfied that the applicants were persons in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act.
The first named applicant appeared before the Tribunal on 23 October 2023 to give evidence and present arguments. The other applicants did not attend the hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this case are whether there is a real chance that if the applicants return to Pakistan they will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purposes of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Pakistan, there is a real risk that they will suffer significant harm for the purposes of s 36(2)(aa) of the Act.
Protection Visa Application
The applicants are a family. They claim to be nationals of Pakistan. In their protection visa application forms, the applicants claimed to be of Sunni ethnicity and Sunni Muslim religion. The also claimed to be Hindko language speakers.
The first named applicant is a male born on [date] in Abbottabad, Khyber Pakhtunkhwa, Pakistan. He is the husband of the second named applicant and the father of the third named applicant.
The second named applicant is a female born on [date] in Abbottabad, Khyber Pakhtunkhwa, Pakistan. She is the wife of the first named applicant and the mother of the third named applicant.
The third named applicant is a female child born in Australia on [date]. She is the child of the first name and second named applicants.
The first named and second named applicants were married in Pakistan [in] September 2011.
The first named applicant stated in his protection visa application form that his parents, [and specified family members] were all living in Pakistan. He had first arrived in Australia on a student visa [in] May 2007. Since that time, he had left Australia on three occasions and had returned to Pakistan on each of those occasions. His last arrival in Australia was [in] April 2012 as the holder of a valid Australian student visa. He stated on his application form that his student visa had been cancelled on 29 May 2012 for breaching visa condition 8202.
The first named applicant claimed that prior to his first arrival in Australia he had lived at the same residential address in [a named village in] Abbottabad, Pakistan since birth. He had completed his high school studies in Abbottabad and had then completed a [Qualification 1] at [College 1] in Abbottabad in 2004 and a [Qualification 2] at the [University 1] in Abbottabad in 2006. He had subsequently completed various courses of study in Australia. He listed no previous employment in Pakistan but indicated that he had been employed in various occupations since his arrival in Australia.
In his protection visa application form the first named applicant claimed that he was seeking protection in Australia so that he did not have to return to Pakistan. He claimed that he came to Australia in 2007 intending to study and then return to Pakistan to live and work. But he was now seeking protection in Australia because the situation is not liveable. He claimed that the region where he and his family lived in Pakistan was mainly occupied by Pathans and he belonged to the Hazara community. He stated that the situation between these groups was never stable, and many incidents had happened when he was a student in Pakistan. He claimed that things are getting worse day by day and many people in the Hazara community were killed on different occasions. He stated that there was a direct threat to his family and his community. He claimed that more than 75% of the people in his area were Pathans and there was a fight every day between these communities.
The first named applicant claimed that when he was studying at [College 1], the students from the Hazara community suffered a lot because of the Pathans as most of the management of the college, the students and the teachers belonged to the Pathan community. He claimed that every second day while he was there, people from the Hazara community suffered physical assaults. He decided to step up and form a group among Hazara students to raise their voice against the violence created by Pathans. The student leaders from the Pathan community did not like this and physically harmed the first named applicant and his group members on many occasions. He tried to approach the police and political parties for assistance, but no action was taken.
The first named applicant claimed that after he came to Australia in 2007, he found out the news that the name of his state had been changed by the Awami National Party (ANP) in 2010. This triggered a wave of anger and protests in the Hazara region and many Hazara people had to suffer violence and racism in this region. He had found out that the Pathan group leader from his college had joined the ANP. The first named applicant claimed that when he returned to Pakistan in 2012, he confronted this person in a shop and this person asked him to leave the region or else he would be killed. His parents asked him to leave immediately as this person was very powerful and the authorities would not take action against him.
The first named applicant claimed that his community were still experiencing continuous harm from Pathans, and he had experienced the same harm on many occasions. He claimed that the first time this happened in college, he complained to the management, but they never took any action. After experiencing harm many times, he complained to the police, but they refused to take any action. He claimed all the officials and authorities in his region are Pathans, so the Hazaras are never treated fairly.
The first named applicant claimed that a few of his friends had tried to move to the Punjab region but they had not been accepted there. The people in this area believed that his friends were Pathans, and it was difficult to live there. He claimed the situation in most parts of Pakistan ‘is not fine’ and stated that there was no place in the country where they could live. He does not want to take his family back to a place where they can be harmed.
The first named applicant claimed that he feared he would be harmed or mistreated if he returned to Pakistan because the overall situation in his region was not stable. Many people had been killed on different occasions and he had been threatened by Pathan leaders last time he was in Pakistan. He claimed that the majority of police officers, politicians and people of higher ranks are Pathans, and they believe that his community has no place in their region. He claimed that his community were mistreated at all times and everywhere in the region. His friends and family members had experienced difficulties settling in other parts of Pakistan, so relocation within Pakistan was not an option for him.
Only the first named applicant has made claims for protection with the second named and third named applicants relying on their membership of the first named applicant’s family unit.
In her protection visa application form, the second named applicant stated that her parents, [and specified family members] were currently living in Pakistan. She claimed that she first arrived in Australia [in] April 2012 as the holder of a valid Australian student visa. She had never previously travelled outside Pakistan. She claimed that she had lived at the same residential address in Pakistan from birth until August 2011 and had then lived in her husband’s village from September 2011 until she came to Australia in April 2012. She claimed that she had studied at [a named] University in Abbottabad, where she completed [specified courses]. She claimed that she had never been employed in either Pakistan or Australia.
The applicants provided the Department with various identity documents, including their valid Pakistan passports.
The applicants also provided the Department with a copy of a news article from May 2010 titled ‘Tension and clashes over renaming the NWFP’. This article discussed the background to the renaming of the former North-West Frontier Province as Khyber Pakhtunkhwa province to fulfil an election commitment made by the ANP, the opposition to such renaming and subsequent protests in the Hazara division of the province about this renaming. It was claimed that seven people had died and over 100 people had been injured on 12 April 2010 when police used force to break up one of the protests.
The first named applicant was interviewed by the delegate in relation to the applicants’ claims for protection on 4 October 2017. At this interview, the first named applicant clarified that he was a member of the Hazarawal community that spoke the Hindko language and that he was not a member of the Hazara ethnicity that originated from Afghanistan and had a distinctive East Asian appearance. He further clarified that his claims for protection were centred around his Hazarawal ethnicity and identity, and that his clashes with the Pathan community were because of this ethnicity and identity.
The delegate’s decision record notes that at this interview the first named applicant claimed that he had been abducted by Pathans after school and had been harassed for money. He claimed that they physically harmed him, stripped him and made him sit all night as they asked for money from his family. He could not remember the exact date this event happened, but he believed it was sometime after September 2006. He claimed that his attackers were members of the college Pathans and the broader Pathan community. After these people received money from his family, they released him. He claimed that he did not report this incident to police because there was no point in doing so. The decision record notes that when asked why he had not mentioned this abduction in his protection visa application form, the first named applicant stated that he simply tried to highlight a few things in his application form.
The decision record notes that at the interview the first named applicant claimed that he did not make an earlier application for protection in Australia, despite first arriving in Australia [in] May 2007, because he held a valid student visa and wanted to live on that visa in Australia.
The delegate decided not to grant protection visas to the applicants on 7 May 2018.
Application for review
The applicants applied to the Tribunal for a review of the delegate’s decision on 16 May 2018. They also provided the Tribunal with a copy of the delegate’s decision record and a copy of the accompanying notification letter.
The applicants did not make any new claims and did not provide any submissions in support of their claims for protection prior to the Tribunal hearing.
On 18 September 2023, the first named applicant wrote to the Tribunal requesting that the Tribunal hearing scheduled for 23 October 2023 be postponed to enable the applicants to seek legal advice and legal representation, to prepare submissions for the Tribunal and to arrange witnesses to appear at any scheduled hearing.
Having considered this request for a postponement of the hearing, the Tribunal responded to the applicants on the same date informing them that it would not agree to their postponement request on the basis that the applicants had more than five years from the time they lodged their review application to arrange representation, they had previously advised the Tribunal on 11 September 2023 that there were no dates in the subsequent three months that they or any witnesses would not be able to attend a hearing and that there were still five weeks available before the scheduled hearing for the applicants to seek representation, prepare their case and make submissions. At the commencement of the hearing, the first named applicant stated that he had attempted to find a representative but he had not found anybody who would agree to take on his matter.
Tribunal hearing
At the hearing, the first named applicant confirmed his personal details and stated that he had lived in his local Abbottabad area in Pakistan until he came to Australia. He claimed that his ethnicity was the local Hazarawal ethnicity and clarified that this was a different ethnicity to that of the Hazara people who originate from Afghanistan and who have a distinctive Asiatic appearance. He stated that the province in his region was called Hazara and the people from this area were Hazarawal like himself. He claimed that he was of Sunni Muslim religion, which is the majority religion in Pakistan.
The first named applicant stated that his parents were still living in the family home in the Abbottabad area. His father had been [an occupation 1] in a [business 1] before the era when computers came into use but was now retired and receiving a pension from the [business 1]. His mother had never worked. He had [specified family members] who were all adults. His [specified siblings] were married. All of his siblings were currently living in the Abbottabad area.
The first named applicant stated that the highest level of education he had reached in Pakistan was a [Qualification 2], which he claimed to have obtained from a private college called [College 1]. He denied that he had studied for this degree at the [University 1], as was claimed in his protection visa application form. He claimed that [College 1] had an affiliation with the [University 1], which was why the name of the university appeared on his graduation certificate. However, he insisted that all of his studies for both his diploma and his bachelor’s degree had been conducted at [College 1].
The first named applicant stated that his studies in Pakistan had been funded by his father. He stated that he had studied for his [Qualification 2] in [specified years]. However, in relation to the commencement of his studies at [College 1], the first named applicant provided vague evidence stating that he was not sure whether he had commenced in [earlier year range]. He then added that he studied for a total of four years at this college, including his studies for a diploma and for a bachelor’s degree. He claimed that after he completed his studies in Pakistan, he did not really work there but did an internship at ‘a couple of places’. He then applied to come to Australia and arrived in Australia on May 2007.
When asked if he had experienced any problems in Pakistan before he first came to Australia, the first named applicant responded ‘yes’. When asked to elaborate, the first named applicant stated that his problems related to his race and ethnicity. He had been discriminated against by Pashto speakers, who were the highly dominant group within his state.
The first named applicant claimed that his native language was Hindko. However, he stated that he had completed his university studies in Pakistan in the Urdu and English languages. He then confirmed that he was also adept at using both of these languages.
The first named applicant claimed that the Pashto or Pathan people were a majority in his local area and they were from a different caste or tribe. These people dominate and control everything, they repress the Hazarawal people, and they discriminate against them. If any Hazarawal person raises their voice, they could be persecuted.

The first named applicant was asked to outline what specific problems he had experienced with these people in Pakistan. He responded that he had experienced problems at his college after he had joined a group that was involved in a Hazarawal separatist movement. When asked about the date on which he joined this group, the first named applicant stated that he joined when he started college and then added it was probably in [year].
When asked why joining this group had caused him problems, the first named applicant responded that they were not considered to be part of the place. He claimed that the Pashto or Pathan people considered the Hazarawal to be Punjabi and do not consider them to be local. He stated that these people do not share assets and government services equally with the Hazarawal people. When again asked what specific problems this had caused him, the first named applicant stated that when he was in his local area, he was not considered a part of them and was not recognised as a local person.
It was pointed out to the first named applicant that based on his own evidence he had managed to live for many years in his local area where he had studied and completed a bachelor’s degree at university level. On this basis, it appeared as though he had not suffered any discrimination in relation to access to services, including education. The first named applicant responded that this was correct but that the Pathans control everything, they get the best jobs for themselves and they do not consider the Hazarawal to be a part of them. He claimed that if he stayed in his local area, he would not be able to get a good job and he would not be ‘pushed ahead’.
It was pointed out to the first named applicant that he had been asked on a number of occasions to outline any specific problems he had personally suffered in the past in Pakistan but had only spoken in generalities about discrimination towards his ethnic group. In response, the first named applicant stated that when he was in the separatist movement at college and he was trying to persuade other people to join the movement, the Pathans would chase him and had confronted him a few times. He claimed that he could not remember the exact date, but on one occasion they captured him, tortured him, held him captive for a few days and then released him after that time.
When asked to identify the period when this alleged incident occurred, the first named applicant responded that it was probably around 2003. When asked if he could be more specific, he responded that he had told the Tribunal everything he knew. The first named applicant agreed with the Tribunal that the incident he was describing was a major incident in his life. On this basis, the Tribunal stated to the applicant that it would expect that he would have some recollection about the actual period when it occurred, including perhaps the month and the year on which this incident had occurred rather than suggesting that it ‘probably’ happened in a particular year. The first named applicant responded that it happened in 2003 but he could not remember in which month of that year it had occurred.
It was pointed out to the first named applicant that the delegate’s decision record indicated that the first named applicant had stated to the delegate that this incident occurred sometime after 2006, which was inconsistent with his claim to the Tribunal that the incident happened around 2003. On the basis of this inconsistent evidence over time about when the incident occurred, the first named applicant was asked why the Tribunal should accept that he was ever involved in the separatist movement or had ever been captured, detained and tortured by opponents as claimed. The first named applicant responded that he was active in the movement for around four years and things happened to him ‘on and off’ during this time. He added that the incident maybe occurred in 2003.
On the basis of this response, the first named applicant was asked why he had told the delegate that the incident had occurred sometime after September 2006 if the incident had actually happened in 2003. He responded that maybe it was another incident and maybe he didn’t explain it properly, and claimed that he had experienced a few incidents from his opponents.
However, the first named applicant clarified that he had only ever been captured, held captive and tortured by his opponents on one occasion. He then added that he could not explain the difference between the timeframe he had provided to the delegate and the timeframe he had provided at the hearing about when this incident occurred.
It was pointed out to the first named applicant that the inconsistent evidence he had provided over time about when this incident occurred created credibility concerns about the claims he was making to have been involved in this separatist movement and any of the associated claims of harm he had experienced as a result of his involvement in this separatist movement. The first named applicant responded that these things happened so many times to him and added that he had experienced lots of risks and lots of problems.
It was pointed out to the first named applicant that apart from the incident where he claimed to have been captured by opponents, his other evidence at the hearing about any harm he had suffered as a result of his Hazarawal ethnicity was vague and general rather than specific. The first named applicant responded that most of the problems relating to his ethnicity happened after he had left Pakistan. He claimed that these problems were never in the media because all of the media information was controlled by the Pashtuns or Pathans.
When asked if he had experienced any other problems in Pakistan that he wished to raise with the Tribunal, the first named applicant stated that he had many issues standing up for his basic rights and standing up for his people.
The first named applicant claimed that he came to Australia in 2007 because his parents did not want him to stay in Pakistan. He was too involved in the separatist movement, and he had experienced his abduction issue, so his father told him to go abroad. He stressed that it was his father who had these concerns and added that he personally was too young and too immature to understand the situation that he was in. He left because his father insisted that he should leave to stay away from trouble.
The first named applicant claimed that he arrived in Australia on a student visa but stated that this student visa had been cancelled around four years later in 2012. He claimed that after the cancellation of his student visa he applied for review of the cancellation and the matter eventually ended up in court. He had been represented by a lawyer to prepare his court case but he had represented himself in court. The first named applicant confirmed that he had sought and obtained legal advice in relation to dealing with his student visa cancellation. He stated that the legal process that he engaged in relating to the student visa cancellation was ultimately unsuccessful and finished around 2015 or 2016, before he applied for protection.
The first named applicant claimed that since he first arrived in Australia in 2007, he had returned to Pakistan on three occasions to see his family. He had funded these trips himself through his earnings in Australia. On his second return visit to Pakistan, he married his wife in a traditional arranged marriage. The marriage was celebrated with a small event at home. He had remained in Pakistan for a considerable period of time during the second visit in order to organise the marriage.
The first named applicant claimed that his last return visit to Pakistan was in 2012 and the reason for this visit was so that he could bring his new wife back to Australia after she had obtained a visa to travel here. The couple had a child in Australia in [year].
The Tribunal asked the first named applicant if he had experienced any problems on any of his return visits to Pakistan. He responded that he had not had any problems because nobody knew he was there, and he would spend most of his time at home. He added that he did not want to be highlighted in his local area and even his wedding was conducted at home to avoid being noticed.
The Tribunal again asked the first named applicant if he had experienced any problems on any of his return visits to Pakistan. The applicant again stated that he had not experienced any problems because nobody knew he was there.
The first named applicant was asked what he feared about returning to Pakistan now or in the reasonably foreseeable future. He responded that he could not have a normal life in Pakistan because he would be highlighted to opposition groups as he continued to fight for the Hazarawal cause. He added that he had a young family and he had responsibilities to them, so he did not want to return to Pakistan. When it was pointed out to the first named applicant that he did not necessarily need to become involved in any Hazarawal separatist movements on return to Pakistan, he agreed that he did not have to be involved but people knew him already, so he could not have a normal routine life.
When asked who he feared harm from on return to Pakistan, the first named applicant stated that he feared harm from the Pashtuns who did not want a separate Hazara state. He claimed that he would be directly targeted because he had actively highlighted the discrimination in the past. People knew that he had been involved in this movement in the past and these people try to repress those who may raise their voices. The first named applicant stated that he was one of these people who had raised his voice about these issues so he feared that he would be harmed by the Pashtuns.
The first named applicant claimed that apart from his fears relating to Pashtuns who would target info harm because of his Hazarawal ethnicity and his involvement in Hazarawal separatist groups he did not have any other fears about returning to Pakistan.
The first named applicant stated that he did not have any work rights in Australia and that he survived in Australia with funds sent to him by his parents and funds that he borrowed from friends. He and his family were living in their own rented property in [Suburb 1].
The first named applicant was again asked if he wanted to mention any other incident or issue that he may have experienced in the past in Pakistan or any other fears about returning to Pakistan. He responded that he did not have anything else to add and that all he could say was that he had safety concerns if he had to return to Pakistan.
It was pointed out to the first named applicant that in his protection visa application form he had stated that in 2012, during his last return visit to Pakistan, he had been confronted and threatened in a local shop by a Pathan leader who had known him from his college days. It was further stated that this person told the first named applicant to leave the area, or he would be killed. However, at the Tribunal hearing the applicant had been asked on a number of occasions if he had experienced any problems at all on his return visits to Pakistan and he had clearly stated that he had not experienced any problems at all on these return visits because he kept his presence low key. Given the inconsistent evidence he had provided over time about whether he had experienced problems on any of his return visits to Pakistan, the first named applicant was asked why the Tribunal should accept that he was being a witness of truth in relation to these claims. In response the first named applicant stated that he thought the Tribunal had asked him about any incidents of physical harm and added that he did raise the 2012 incident with the Department.
The applicant was asked why he had chosen to raise this incident in 2012 with the Department but had not chosen to raise it with the Tribunal until it had been specifically mentioned to him. He responded that he thought the Tribunal was asking him about physical harm, but the 2012 incident was only a threat that did not involve any physical harm.
It was pointed out to the first named applicant that the Tribunal had asked the applicant on a number of occasions to outline any problems he may have experienced on his return visits to Pakistan. The term ‘physical harm’ had not been used by the Tribunal and the ordinary meaning of the term ‘problems’ was not limited to physical harm. The first named applicant responded that he had spoken about the abduction incident, so his mind was on physical harm.
The Tribunal pointed out to the first named applicant that despite his claimed problems with, and discrimination from, Pathans or Pashtuns when he was studying at college, he had managed to complete his studies and graduated from university which may indicate that he had not experienced any ongoing problems or other issues with these people as claimed. The first named applicant responded that he had to continue his studies and what he did outside of those studies with his movement was a separate cause.
The first named applicant confirmed that the reason why he returned to Pakistan on three occasions was because he wanted to visit his family, get married and bring his wife with him to Australia.
The Tribunal stated to the first named applicant that his three return visits to Pakistan after his first arrival in Australia may indicate that he did not have any fears of harm in Pakistan from Pashtuns or Pathans or anyone else. The first named applicant responded that when he returned to Pakistan he stayed at home with his family, and he did not go out and about. He was not living a normal life and on his third visit he went to the shops where he was caught by an opponent who threatened him.
It was pointed out to the first named applicant that he had not raised this issue about a threat he allegedly received during his last visit to Pakistan until it was directly raised with him by the Tribunal. On this basis, the Tribunal asked the first named applicant why it should accept that this incident ever happened. The first named applicant again stated that he thought the Tribunal was only interested in any physical problems he had experienced in Pakistan.
It was pointed out to the first named applicant that based on his own claims he was already fearing harm in Pakistan when he came to Australia in 2007. He had been actively engaged in the Australian migration system, including using the services of a lawyer, from May 2012 onwards after his student visa had been cancelled. Yet he did not apply for protection in Australia until November 2016 when it appeared as though his other options to stay in Australia had been exhausted. This timeframe and delay in applying for protection for more than nine years after his first arrival in Australia may indicate that he did not hold the fears he claims to hold about returning to Pakistan but that he only applied for protection as a means of extending his stay in Australia. The first named applicant responded that he had consistently told both the Department and the Tribunal that he wanted his student visa to be returned to him. He fought this issue to the extent that he could, and he even continued studying after his visa had been cancelled. His wish was that he could get his student visa back, but it didn’t work out that way.
The Tribunal pointed out to the first named applicant that he had the opportunity to lodge a protection visa in Australia from 2007 onwards but he delayed his application for more than nine years, which raised questions about his motivation for eventually lodging such application. The first named applicant responded that he had a student visa already when he came to Australia. He was told he could apply for a protection visa, but he was focused on getting his student visa returned to him. He added that he put so much effort into that process.
The Tribunal stated to the first named applicant that his family had continued to live in Pakistan since the applicant came to Australia in 2007 and there was no evidence before the Tribunal that his family had suffered any harm for their ethnicity or for any other reason. This may indicate that the first named applicant may also not suffer any harm for any reason if he returned to Pakistan. The first named applicant responded that he joined the Hazarawal ethnic group because his ethnicity were being discriminated against. He had therefore been identified or highlighted as an activist and he would be targeted by opponents. His family just live in their village, have a quiet life and are different to him.
The Tribunal pointed out to the first named applicant that the Department of Foreign Affairs and Trade produced the regular country information reports about Pakistan where issues relating to discrimination against ethnic minorities and political issues within the country are identified. However, the most recent such report did not highlight any ongoing tensions between Hazarawal people and other groups or any targeting or discrimination of Hazarawal people in his local area or elsewhere in Pakistan. The first named applicant responded that the Pashtuns controlled the police and other authorities in his local area and across Pakistan, so they control what information is released in the media and through other sources. He claimed that there was only one report in the media when there was a significant event relating to his ethnicity and added that he had provided a copy of this report to the Department.
It was pointed out to the first named applicant that the reports the Tribunal were referring to were from the Australian Department of Foreign Affairs and Trade rather than from Pakistan authorities. From the contents of the latest report, it was clear that the Australian authorities were prepared to report on political and ethnic discrimination issues within Pakistan without fear or favour, but they had not highlighted any issues relating to Hazarawal people. The first named applicant responded that it was a political issue, and that Pashtuns controlled the whole state. He added that the Australian authorities would only report things that they saw in the media.
When again asked why the Australian authorities would choose to highlight discrimination against many ethnic groups in Pakistan but choose to not report about any alleged discrimination against Hazarawals, the first named applicant responded that the Pashtuns control things and stop the media reporting about Hazarawal people because they did not want a new state in his local area. He repeated his claim that these issues had only appeared in the media on one occasion (which he claimed was around 2008) and that he had provided one news report about this matter to the Department.
After a short break in the hearing the Tribunal attempted to contact [named witnesses], who the first named applicant had indicated would be prepared to give witness evidence on his behalf at the hearing. The Tribunal attempted to contact each of people on three separate occasions on the telephone numbers supplied by the applicant. On each occasion, these telephone calls were unsuccessful.
In conclusion, the first named applicant stated that in his local area the Hazarawal people were considered to be Punjabi but if they went to Punjab, they would be called Pashtuns, so they were discriminated from all sides which was why he joined the Hazarawal Qomi Movement, which he explained stood for Hazarawal homeland movement. He added that things had only got worse since he left Pakistan and since the Pashtuns had changed the name of the state where the applicant lived in Pakistan.
FINDINGS AND REASONS
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
There is no issue as to identity or nationality. The first named and second named applicants arrived in Australia on valid Pakistan passports and as the holders ofvalid Australian student visas. The third named applicant is a child who was born in Australia but given that his parents are not Australian citizens or Australian permanent residents, he has assumed the Pakistan nationality of his parents at birth. The Tribunal therefore accepts the identity and the Pakistan nationality of the applicants and has assessed their claims accordingly.

There is no evidence before the Tribunal to indicate that the applicants have any right to enter and reside in any other country. Therefore, the Tribunal finds that the applicants are not excluded from Australia’s protection obligations pursuant to s 36(3) of the Act.
The first named applicant
As only the first named applicant has made direct claims for protection, the Tribunal will assess these claims before making any assessment on the secondary applicants.
For convenience, in this section the Tribunal will refer to the first named applicant as ‘the applicant’ where appropriate to do so.
Based on the consistent claims that the applicant has made over time since he lodged his protection visa application, the Tribunal accepts that the applicant is of Sunni Muslim religion and of Hazarawal ethnicity, race or nationality. As clarified with the applicant at the hearing, this racial origin is separate and distinct from the ethnic or racial group known as Hazaras who are assumed to originate from Afghanistan, have a very distinctive Asiatic facial appearance and many of whom live in some parts of Pakistan. The Tribunal also accepts that the applicant grew up and lived in the area of Abbottabad within the province of Pakistan formerly known as North-Western Frontier province but now known as Khyber Pakhtunkhwa province.
The applicant has claimed that whilst he was a student at [College 1] in Abbottabad, where he completed his tertiary studies in Pakistan, he joined and became active in a group that supported the Hazarawal separatist movement. Through his claimed involvement with this Hazarawal movement, the applicant claims that he was regularly targeted for harm by opponents of Pathan or Pashtun ethnicity.
The applicant has over time interchangeably used the terms Pathan, Pashtun or Pashto to describe his opponents in the rival ethnic group that were opposed to Hazarawals. The Tribunal accepts that when using any of these terms, the applicant is referring to the same ethnic group and distinguishing this group from his own ethnic group.
The applicant has provided claims over time that he suffered two particular instances of direct harm from these ethnic opponents or rivals in Pakistan due to his involvement with the Hazarawal separatist movement. The first instance is an incident where the applicant was allegedly captured, detained and tortured by Pathan rivals until the applicant’s family paid a ransom for his release. The second instance is an incident when the applicant had returned to Pakistan from Australia in 2012 and he was confronted in a shop by an activist from the rival Pathan or Pashtun based political party who knew the applicant from their university days. This activist alleged threatened the applicant and told him that he would be killed unless he left the area.
As discussed with the applicant at the hearing, the Tribunal would expect that the applicant would be able to provide consistent and detailed evidence about these incidents as the details would be known to him from his own personal knowledge and because they were significant incidents relating to his own personal safety. However, the applicant has provided inconsistent evidence over time about each of these claimed incidents.
In relation to the claims that the applicant was captured, detained and tortured by Pathan rivals until the applicant’s family paid a ransom for his release, the delegate’s decision record states that the applicant claimed at the interview with the delegate that this incident happened sometime after September 2006. However, at the hearing the applicant initially provided some vague evidence about when this incident occurred then eventually stated that it probably happened around 2003. He was unable to recall in which month the incident occurred, but he was clear that the incident happened in 2003. He also confirmed at the hearing that he had only ever been captured and held for ransom by his political opponents on one occasion and that he had not experienced any other similar incident in the past.
When asked at the hearing to explain the two versions he had provided over time about when this alleged incident occurred, the applicant initially suggested that he may have been talking about different incidents but after he stated clearly that he had only ever experienced one such incident of this nature or type in Pakistan, the applicant eventually stated that he had no explanation for the discrepancy. Given that this incident involving the applicant being held for ransom is a major incident which would have a significant impact on the applicant. It would be expected that he would have an accurate understanding of when this incident occurred and would be able to recount at least the year on which it occurred (if not the date or month) consistently over time.
On the evidence before it, given that the applicant has provided inconsistent evidence over time about when this major incident occurred in circumstances where he would know these details from his own personal knowledge, the Tribunal finds that the applicant has not been a witness of truth in relation to this claim and that his evidence in this regard lacks credibility.
In relation to the alleged incident in 2012 where the applicant claims he was confronted by a political opponent from a rival ethnic group, the applicant stated in his protection visa application form that this incident occurred in a shop on his last return visit to Pakistan in 2012. However, at the hearing the applicant was asked on multiple occasions whether he had experienced any problems in Pakistan on any of his return visits to Pakistan, including the visit in 2012. On each occasion, the applicant stated that he had experienced no problems on any of his return visits because he had kept a low profile on each occasion, so nobody knew he was back in Pakistan. He only made reference to the incident in the shop where he was alleged confronted by a political and ethnic rival after the omission of this incident was directly raised with him as an issue by the Tribunal itself.
The Tribunal does not accept the applicant’s explanation at the hearing that he did not mention this incident when the Tribunal asked him if he had experienced any problems on his return visits to Pakistan because he thought the Tribunal had confined its questioning to any physical harm he had experienced. The Tribunal did not use the term physical harm in any of its questions to the applicant. Instead, the Tribunal asked the applicant if he had experienced any problems on his return visits. At the hearing the ‘physical harm’ explanation appeared to be offered by the applicant as a convenient excuse for the failings in his evidence rather than as a genuine or plausible explanation for those failings.
On the evidence before it, given the applicant did not raise this incident that he ought to have known about from his own personal knowledge when the Tribunal asked him on a number of occasions about any problems he may have experienced on his return visits to Pakistan, the Tribunal finds that the applicant has not been a witness of truth in relation to this claim and that his evidence in this regard lacks credibility.
Based on the evidence before it, including the evidence provided by the applicant about his claimed past harm in Pakistan where the Tribunal has found that the applicant was not a witness of truth and that this evidence lacks credibility, the Tribunal does not accept that the applicant was ever a member of any Hazarawal separatist group or movement, that he was ever perceived by any person to be a member of such group or that he suffered any harm whatsoever from political and ethnic rivals opposed to the Hazarawal ethnic group or to the Hazarawal separatist movement. This includes the direct claims that he had once been captured, detained, tortured and held for ransom and that he had been confronted and warned that he would be killed by a political and ethnic rival on his 2012 return visit to Pakistan.
The applicant has made some general and somewhat vague claims that Hazarawal people like himself are discriminated against and held back in his area of Pakistan because they are an ethnic minority and that the majority Pathans or Pashtuns dominate the provision of government services, employment and media in the area. The Tribunal accepts that the Hazarawal people are an ethnic minority. Based on the news article from 2010 submitted by the applicant, the Tribunal accepts that there is rivalry and some enmity between the Hazarawal ethnic group and the majority Pathan or Pashtun ethnic group in the applicant’s local area and that there may be some discrimination directed by members of the majority ethnic group towards the Hazarawal.
However, as was pointed out to the applicant at the hearing, he managed to live in this area for many years and he was able to finish a bachelor’s degree at university level in Pakistan before he came to Australia. His family have lived in the same area for many years and continue to live there without any evidence that they have suffered any particular harm either whilst the applicant was living in Pakistan or since that time.
Therefore, on the evidence before it and in the applicant’s own personal circumstances the Tribunal finds that the applicant did not suffer any harm in the past because of any general level of enmity and discrimination against the Hazarawal etnnic group from the rival majority Pathan or Pashtun ethnic group.

100. Apart from these claims, the applicant has not claimed that he has suffered any other harm in the past in Pakistan and no other claims arise on the information before the Tribunal.
101. The applicant has claimed that if he returned to Pakistan now or in the reasonably foreseeable future, he fears that he would be harmed by political and ethnic rivals from the majority Pathan or Pashtun ethnic group for reasons of being a known or high-profile member of the Hazarawal separatist movement and for reasons of his Hazarawal ethnicity more generally.
102. The applicant has claimed that if he returned to Pakistan, he would again engage in the Hazarawal separatist movement as he had done in the past. However, the Tribunal has found that the applicant was never a member and was never perceived by any person to be a member of any Hazarawal separatist group or movement. On the basis of this finding about his past activity in Pakistan, given that he had no involvement in such movement in the past, the Tribunal does not accept that the applicant would not become involved in any such movement on return to Pakistan. Accordingly, based on these findings, the Tribunal is not satisfied that if the applicant returned to Pakistan now or in the reasonably foreseeable future that there is a real chance that he would suffer any harm for reasons of being a known or high-profile member of the Hazarawal separatist movement or for any involvement in such movement.
103. The Tribunal does accept that there is some level of discrimination against people of Hazarawal ethnicity from the majority Pathan or Pashtun ethnicity in the applicant’s local area. However, as discussed with the applicant at the hearing, the applicant managed to live in this same local area for many years, managed to complete his tertiary studies there and chose to return to this local area 3 times after his first arrival in Australia. In addition, the applicant’s family have lived in this same area for many years and have continued to live there since the applicant first arrived in Australia in 2007 without any apparent incident or harm. The Tribunal has considered the applicant’s claims at the hearing that he can be distinguished from his family members because of his high-profile involvement in the Hazarawal separatist movement. However, the Tribunal does not accept this is the case in the applicant’s circumstances as the Tribunal has already found that the applicant was never a member and was never perceived by any person to be a member of any Hazarawal separatist group or movement.
104. Given the applicant was able to study and work in Pakistan before he came to Australia without suffering any apart harm despite some level of discrimination against Hazarawal people and given his family continue to live in the same area without suffering any harm, the Tribunal does not accept that if the applicant returned to Pakistan now or in the reasonably foreseeable future that any discrimination he may suffer as a Hazarawal would amount to persecution for the purposes of of s 5J. Accordingly, on the evidence before it, the Tribunal is not satisfied that if the applicant returned to Pakistan now or in the reasonably foreseeable future that there is a real chance that he would suffer any serious harm for reasons of his Hazarawal ethnicity.
105. The applicant has not made any other claims that he fears harm in Pakistan for any other reason and no other claims arise on the facts before the Tribunal.
106. Having considered the first named applicant’s claims individually and cumulatively, the Tribunal is not satisfied, on the evidence before it, that the first named applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion.
107. For the reasons given above, the Tribunal is not satisfied that the first named applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).

109. The Tribunal has already found that the first named applicant would not face a real chance of serious harm on return to Pakistan for reasons of being a known or high-profile member of the Hazarawal separatist movement or for reasons of any involvement in such movement or for reasons of his Hazarawal ethnicity. As the test for real risk is the same as the test for real chance (see MIAC v SZQRB (2013) FCR 505), the Tribunal therefore finds that if the applicant returned to Pakistan there is no real risk that he would suffer any significant harm for these reasons.
110. Apart from these claims, the first named applicant has not made any other claims that he fears harm on return to Pakistan and no other claims arise on the facts before the Tribunal.
111. Having considered the first named applicant’s claims individually and cumulatively, the Tribunal is not satisfied that the first named applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

There is no suggestion that the first named applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the first named applicant does not satisfy the criterion in s 36(2).
The secondary applicants

113. The second named and third named applicants have not made any claims for protection, instead relying on their membership of the first named applicant’s family unit.
114. In his protection visa application form, the first named applicant did make a vague and undetailed statement that he did not want to take his family (being the second and third named applicants) back to a place like Pakistan where they could be harmed. However, this comment was made in the context that they are family members of the first named applicant and may be harmed because of his profile. The first named applicant did not raise or expand on this claim at the hearing despite the opportunity to do so. Accordingly, on the information before it, the Tribunal considers this statement as an expression of fear that the second and third named applicants would be targeted for harm as members of the first named applicant’s family unit rather than in their own right.
115. As the Tribunal has already found that the first named applicant does not satisfy s 36(2)(a) or s 36(2)(aa), the Tribunal therefore finds that the second named applicant and the third named applicant each do not satisfy the criterion in s 36 (2) on the basis of their membership of the first named applicant’s family unit or for any other reason.

For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.
DECISION

117. The Tribunal affirms the decision not to grant the applicants protection visas.
Peter Katsambanis
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 4567

15 November 2023

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction