Background
Background to the litigation
There is no dispute that the applicant is a citizen of Pakistan. The applicant travelled to Australia on an apparently genuine Pakistani passport; a copy of which is contained on the departmental file along with copies of her Pakistani national identity card and birth certificate. She has at all times stated that she is a citizen of Pakistan and she has been assessed on that basis by the Department. The Tribunal finds she is a Pakistani citizen and has assessed her claims against Pakistan as the country of nationality and the receiving country.The applicant’s personal background At hearing, the applicant gave evidence that she did not know her date of birth, but believed she was [age] years old. Her passport and birth certificate record her date of birth as [date]. She states she was born in Parachinar, Kurram Agency, and her identity documents confirm this to be the case. The applicant gives her occupation as housewife in the protection visa application. The visa applicant states that she does not read or write in any language and she signed that visa application with a fingerprint. She entered Australia [in] February 2016 as the holder of a visitor visa and applied for the protection visa on 25 May 2016. The Tribunal accepts each of the above matters to be true. There is a dispute about some aspects of the applicant’s personal history. In the visitor visa application, she stated she wanted to visit Australia to see her niece, [Ms C]. In the protection visa application, she states she was married to [Mr D] (deceased) and had two sisters, [Ms E] and [Ms F], and a brother [Mr G]. She states that she and her deceased husband had one child, a daughter, [Ms H], who is now a permanent resident of Australia. However material on the departmental file indicates that the applicant and her husband had other children who are now resident in Australia. In light of this material, the Tribunal wrote to the applicant in the following terms, pursuant to s 424A of the Act:You have stated that your late husband was [Mr D], that you have a daughter [Ms H] who is a permanent resident of Australia and that [Mr A], [Mr I], [Mr B], [Ms J] and [Ms C] are your nephews and nieces. Information on the departmental file indicates that you may be the mother rather than the aunt of [Mr A], [Mr I], [Mr B], [Ms J] and [Ms C]:·the birth certificate presented by [Ms C] states that her parents are [Mr D] and [applicant’s name variant 1]; ·[Mr I] stated in his visa application that his parents were [Mr D] born [year] and [applicant’s name variant 2] born [year]; ·[Mr B] stated in his visa application that his mother’s name was [applicant’s name variant 3].Information on the departmental file also indicates that your children stated that their mother [applicant’s name variant 2] was deceased in their own visa applications and that they declared themselves to be Afghan nationals when they may be Pakistani nationals. The department believes that your family are Turi Pashtuns from Pakistan, rather than Hazaras from Afghanistan.
Evidence
Evidence Before The Court
The issue in this case is whether the applicant is 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. For the following reasons, the Tribunal has concluded that the decision under review should be remitted to the Department for reconsideration.Capacity of the applicant to give evidence The Tribunal had some concerns about the applicant’s capacity to give evidence and meaningfully participate in the hearing, given her age and medical issues. A psychologist’s report dated 15 August 2023 records that she is diagnosed with anxiety, depression and PTSD and that she has not received any treatment for these conditions in Australia or Pakistan. The assessing psychologist noted that she did not speak to the applicant directly, but with her niece [Ms C] and nephew [Mr A]. The applicant is described in that report as visibly aged and distressed, presenting more as a 90-year-old woman than her biological [age]. It is noted that she had a ‘withdrawn and disassociated disposition, hunched over, rocking, not blinking’. At hearing, the applicant presented as fragile but cooperative, endeavouring to understand and respond to the Tribunal’s questions. However she was visibly frail, struggling to stay upright in her chair and she became distressed at times during the hearing. Even after the change of interpreter, there were difficulties with communication and these increased as the hearing progressed until the interpreter announced he could no longer understand her responses.Non-disclosure certificate The Tribunal has before it the applicant’s departmental file relating to the refusal of the visa. The delegate has placed restrictions on some of the material given to the Tribunal by the Department under s 438 of the Act by issuing a certificate dated 9 May 2018. A copy of that certificate was provided to the applicant, together with an invitation to comment on its validity. No submissions as to the validity of the certificate were received. The Tribunal accepts that certificate to be valid. Where a valid certificate is issued under s 438, the Tribunal may, if it thinks appropriate after having regard to any advice given to it by the Secretary, disclose the material to the applicant or another person. In this case, the material the subject of the certificate was relevant and adverse to the applicant’s claims. For these reasons, the Tribunal wrote to the applicant pursuant to s 424A of the Act, setting out a brief summary of that information and inviting her comments. The certificated information has not otherwise been disclosed to the applicant.Country of nationality There is no dispute that the applicant is a citizen of Pakistan. The applicant travelled to Australia on an apparently genuine Pakistani passport; a copy of which is contained on the departmental file along with copies of her Pakistani national identity card and birth certificate. She has at all times stated that she is a citizen of Pakistan and she has been assessed on that basis by the Department. The Tribunal finds she is a Pakistani citizen and has assessed her claims against Pakistan as the country of nationality and the receiving country.The applicant’s personal background
Decision
Reasons for decision
For these reasons, the Tribunal is satisfied that the applicant faces a real chance of persecution if she returns to Pakistan, now or in the reasonably foreseeable future. Therefore, she is a person in respect of whom Australia has protection obligations under s 36(2)(a).DECISION The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.Alison MurphyMemberATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…
Ratio Decidendi
Legal Principle Established
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 issue in this case is whether the applicant is 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. For the following reasons, the Tribunal has concluded that the decision under review should be remitted to the Department for reconsideration.Capacity of the applicant to give evidence The Tribunal had some concerns about the applicant’s capacity to give evidence and meaningfully participate in the hearing, given her age and medical issues. A psychologist’s report dated 15 August 2023 records that she is diagnosed with anxiety, depression and PTSD and that she has not received any treatment for these conditions in Australia or Pakistan. The assessing psychologist noted that she did not speak to the applicant directly, but with her niece [Ms C] and nephew [Mr A]. The applicant is described in that report as visibly aged and distressed, presenting more as a 90-year-old woman than her biological [age]. It is noted that she had a ‘withdrawn and disassociated disposition, hunched over, rocking, not blinking’. At hearing, the applicant presented as fragile but cooperative, endeavouring to understand and respond to the Tribunal’s questions. However she was visibly frail, struggling to stay upright in her chair and she became distressed at times during the hearing. Even after the change of interpreter, there were difficulties with communication and these increased as the hearing progressed until the interpreter announced he could no longer understand her responses.Non-disclosure certificate