1815815 (Refugee)

1815815 (Refugee) [2023] AATA 2903 (2 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Ibrahim Safi (MARN: 1464015)
CASE NUMBER:  1815815
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Mark O'Loughlin
DATE:2 June 2023
PLACE OF DECISION:  Adelaide
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 02 June 2023 at 9:36am

CATCHWORDS
REFUGEE – protection visa – Pakistan – religion – Shi’a Muslim – fear of harm from Taliban – family members killed, applicant wounded and shop burned down – ethnicity – Pashtun – mental health and treatment, and presentation in hearing – honest but substantially inconsistent claims and evidence – country information – Taliban now control Afghanistan – limited help available for people with mental health disorders – relocation requires financial and social support – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36(2)(a), 46A, 48B, 65
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 16 May 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 23 February 2017. The delegate refused to grant the visa on the basis that they did not accept the applicant’s claims to face a relevant risk or chance of harm.
The applicant appeared before the Tribunal on 4 October and 15 November 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto (Pakistan) and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal 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 issue in this case is whether, based on what is accepted of the claims made by the applicant or arising on the evidence, the applicant is a person to whom Australia has protection obligations.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Preliminary Issues
The applicant had made a previous Protection Visa Application on 30 August 2012, having arrived in Australia after the boat he had boarded in [Country] was intercepted by the Australian Navy.
Although his first application was refused, the then Minister exercised power under s46A and s48B of the Act to allow the applicant to make the subject application for a Temporary Protection Visa.
The subject Temporary Protection Visa Application (“PVA”) was lodged on 23 February 2017.
Claims
The applicant’s claims were set out in the PVA and were supported by a statement of 16 October 2017, the submissions of his representative of 22 August 2022, a further statement in the form of a Statutory Declaration apparently executed on 7 September 2022, the applicant’s evidence to the Tribunal, and in further submissions of 10 January 2023.
The applicant sets out his claims in his answers to questions 88 to 96 of the PVA form.
He says that he left Pakistan because his life was in danger there and that he had lost family members to explosions from Taliban mortar strikes. He said he is a Shia Muslim and the Taliban want to kill them, and will stop at nothing in the effort.
He claims he will be killed by the Taliban if he returns to Pakistan. He says he was wounded in an explosion and was also kidnapped by the Taliban.
He says the authorities in Pakistan could not help and that his people in his home are in constant danger.
He says he could not relocate in Pakistan because he is Pashtun and would be discriminated against in other parts of the country.
He says he would be killed and tortured if he returns to Pakistan and that the Taliban want to kill all Shia.
He does not believe the authorities in Pakistan would protect him because the Taliban has insurgents in the police and the police are corrupt.
Submissions on the applicant’s behalf further state that there has been an increase in “terroristic activity” in Pakistan by the Taliban who have been encouraged by their seizure of power in Afghanistan on 15 August 2021 so the situation is even riskier than it was when the applicant left.
The submissions say that the applicant has already experienced harm at the hands of the Taliban when his [shop] was burned down by them in 2007.
The submissions say he was abducted and held by the Taliban in 2007.
The submissions say the applicant survived a bomb attack on a Shi’a mosque although he suffered injuries to his [Body part 1] and the [Body part 2].
The submissions say the applicant lost two cousins to a Taliban mortar attack on a Shi’ite cemetery and that Taliban missiles damaged his family home causing some injuries and the deaths of livestock.
The submissions also state that the applicant believes he has a heightened profile with the Taliban due to his uncle’s status as a tribal elder and member of [a Shi’a civil rights movement].
The submissions also address the question of state protection available to the applicant in Pakistan.
They refer to an article from The Print[1], an Indian news service, as support for the contention that Sunni-Shi’a conflict had been suppressed but as early as 2020 political commentators were predicting a resurgence of that conflict.
[1] Siddiqa, Ayesha (28 September 2020)
The submissions contemplate the possibility of a tripartite conflict in Pakistan between Taliban, IS and pro-Iranian elements and suggest that the applicant would lose in those circumstances, as his tribe would need to defend its position against the Taliban.
The Tribunal notes that this submission is largely speculation.
The applicant’s representative provided a copy of a statutory declaration apparently signed on 7 September 2022.
The statement says the applicant is of Pashtun ethnicity and of mixed Bangash-Turi tribal identity.
He says he was born in [Location] near Parachinar.
He says if family were farmers and had a [shop]. He would work in the shop in the morning and manage his crops in the afternoon.
He says fighting broke out between the Taliban and the local tribesmen in 2007. He says his family shop was burned down and the family could not afford to rebuild it.
He says the Taliban kidnapped him and he was assaulted numerous times. He says that he was assaulted because the Taliban considered him an opponent of their rule.
He says there were several other incidents involving his family being targeted by the Taliban.
He says two of his cousins were killed by the Taliban who were firing missiles at a cemetery.
He says that the Taliban fired missiles at his family home causing damage and injuries.
He says he was injured in a grenade attack on a Shi’a mosque by the Taliban.
He says that after the fighting started in 2007, his father [Mr A] and his uncle, [Mr B] have been threatened numerous times. The applicant says if his father and uncle are attacked he will also be in the firing line.
Applicant’s Evidence Before the Tribunal
The applicant gave evidence that he understood that, in part, his application had been refused because the delegate was not satisfied that he had been abducted by the Taliban as he claims.
He also understood that the delegate did not accept that he had been the subject of a grenade attack after Friday prayers at the mosque.
The applicant said he is at risk as a Bangash Shi’a and said that there had been a recent attack by the Taliban and some boys were injured.
The applicant said that if he goes back to Pakistan he will have to stay in a single room because of the risk of being killed by the Taliban. He said there is no threat from anyone else.
The Tribunal told the applicant it has a report about the way he is feeling. The applicant said that he was not feeling very well in his senses.
He said that there are so many atrocities he has seen that when they are discussed his mind sometimes stops working.
The Tribunal explained that he should take his time and that he could ask for a break in his evidence if he was having difficulty.
The applicant told the Tribunal he was born and lived around Parachina in Pakistan near the Afghan border. He said that the trouble with the Taliban started in 2007 and has remained bad since then.
He said he was the eldest of [Number] children and is responsible for the whole family.
His brothers still live on the family farm and [some of his sisters] still live there too as they are not married.
He says that most of the people in the area are Shi’a Bangash Turi like him.
He said the farm is big enough to feed the family and that they grow wheat, rice and maize and have 2 cows for milk.
He told the Tribunal that there had been a shop but it was burned after the fighting started in 2007.
He said hearing about the Taliban makes him forget things.
The Tribunal asked if he lost family members in an attack by the Taliban. He said there was an attack on his house. He said two of his cousins and his cousin’s daughter were killed, some cattle were killed and the house was damaged.
He was not sure when that happened but believed it was at the end of 2010.
He said that the Taliban fired a missile at their house from a mountain about one or two kilometres away.
The applicant’s evidence about this seemed confused and variable and was only generally consistent with the statutory declaration of 7 September 2022.
The applicant was also asked whether he had been injured in an attack after Friday prayers at the mosque.
He said he had been, and lifted his [Clothing] to show scars on his [Body part 2].
The Tribunal noted fairly extensive scarring that suggested old lacerations across the applicant’s [Body part 2]. The applicant indicated one of these scars and said that it was from the Taliban attack.
He was unable to remember anything else about the attack on the mosque than that it was before the shop was burned down in 2007. He remembered that because he had gone to the mosque from the shop.
The Tribunal asked the applicant about his mental health and about his consultation with [Professor C].
He said that he had seen her by video because she is in [City] and he lives in Melbourne. He saw her in August 2022.
The applicant told the Tribunal that his GP in [Suburb] had been treating him for his mental state for about a year and that he had sought help because he is short tempered.
The applicant said he was put on medication for about a year and had been sent to another doctor, but did not pursue further treatment because he understood that he was to be given electric shocks. He said he was concerned that if he had to have electric shocks he would not be able to work and send money back to Pakistan.
The applicant said his GP is [Dr. D] who he likes and who speaks Urdu, which the applicant can understand.
The Tribunal advised the applicant that it has a report prepared by the Australian government about Pakistan which discussed mental health disorders[2].
[2] DFAT C ountry Information Report Pakistan 25 January 2022.
At 2.14 that report says that mental health disorders are common in Pakistan and that there is limited help available for people with mental health disorders. The applicant agreed and said that those with resources will be treated and others will go insane.
The applicant was concerned that people in Pakistan would treat him poorly because of his mental problems.
The Tribunal observed that the applicant’s presentation seemed eccentric. His speech was flat and he presented as anxious and mentally unsettled.
The Tribunal formed the view that an element of mental trouble is evident in the applicant and would be apparent to others if he returned to Pakistan.
The applicant said that the danger is in his home area because it borders Afghanistan and the danger is more tangible because Imran Khan was assassinated.
The applicant said that there had been no deaths or injuries since the injury he had suffered when he was returning from the mosque. He said that while he had stayed in Pakistan he had been scared and careful to keep a low profile.
It is not possible to exclude the suggestion that the applicant was the target of the Taliban attacks given that there have been none since he left.
The Tribunal asked the applicant whether he could move elsewhere in Pakistan to avoid the danger. He said that no matter where he went, the Taliban could track him down.
He said they would track him down because one of his [Relatives] was a prominent member of the Shia assembly so his whole family is in danger.
The Tribunal observed that there had been no attacks on his family for many years. He said that the whole family takes precautions such as avoiding the city and staying on the farm for safety.
The applicant also said that he could not move within Pakistan to avoid danger because it would be too expensive to move and that would not be practical or feasible.
The Tribunal advised that the DFAT report it had referred to earlier says that relocation within Pakistan is widespread and common but require financial and tribal support[3]. The applicant said that he has neither. The Tribunal accepts this evidence.
[3] DFAT Country Information Report Pakistan 25 January 2022 5.23.
The applicant was asked whether there was anything else he wanted to tell the Tribunal. He said that he had removed his children from school in Pesharwar. He said he had done that because threats had been made to kidnap and kill the children.
He said he was not quite sure of the date of the threats or who had made them but he understood that they had been made to people who work at the school. He said that the threats were directed at his children specifically.
The applicant’s representative made further submissions in January 2023 and provided country information to the Tribunal.
The submissions say that the applicant faces real threats and persecution in Pakistan due to his Shi’a religion and Bangash-Turi tribal affiliation.
The submissions state that the threat to the applicant is heightened by the fact that the Taliban now control Afghanistan and they will support the Sunnis in violence against the Shi’a in the applicant’s hometown. The submissions refer to a report from 20 November 2022 about seven people being injured in an attack from the nearby Afghan territory[4].
[4] 1 Javid Hussain, Dawn, 20-11-2022, “ 7 injured near Kurram border following firing from Afghan side over land dispute: officials”, >
The submissions also refer to inter-tribal clashes which occasionally flare up over family or property disputes.
The applicant’s representative submits that the country information suggests ongoing instability and that a risk of harm for the applicant exists into the foreseeable future. The submissions refer again to the DFAT report and note the trend of increased religious conservatism referred to on pages 26 and 27 of that report.
The Tribunal notes that at paragraph 3.62 and following the report assesses the risks faced by Turi tribe members. It notes that militants frequently stopped and killed Turis travelling on roads until 2014 and that a series of bombings killed 120 Turis in 2017.
The report says at 3.64 “The security situation has improved considerably in recent years, although local experts say the underlying triggers for conflict in Turi areas remain.”
The report relevantly refers to a blast in Parachinar in 2020 in which one person was killed and 14 injured.
The report concludes at 3.66 that Turis in Kurram face a similar risk of official and societal discrimination to other Pashtuns based on ethnicity. At 3.18 the report describes Pashtuns in conflict affected areas (which probably includes the area where the applicant lived) as facing a moderate risk of violence by state security forces but generally a low risk in other areas of Pakistan although that risk is heightened for Shi’a Pashtuns.
Although there is some chance that the applicant faces relevant persecution in Kurram agency, and the Tribunal is satisfied that it is not realistic to expect the applicant to move somewhere else in Pakistan, the Tribunal is reluctant to find the applicant is owed protection for that reason alone.
The Tribunal accepts that the applicant was captured by the Taliban and accepts that there is a real chance he would be targeted by them if he returned.

The Tribunal is unable to assess the likelihood of that happening but is not required to do so if it is satisfied that the chance is real.
The Tribunal is satisfied that the applicant faces a real chance of relevant persecution in his home in Pakistan.
Mental Health Claims

100. The Tribunal noted the evidence contained in [Professor C]’s report. She observes that he has seen a psychologist, although that was not therapeutically fruitful, and she observes that his GP has prepared a mental health plan for him.
101. She recommended that he seek the input of a psychiatrist and a psychologist and notes that he appears severely distressed and traumatised.
102. She believes he is at risk of suicide.
103. She appears to attribute his condition to Post Traumatic Stress, depression and anxiety requiring daily management[5].
[5] Report [Prof. C], Mental Health Practitioner, [Specialisation], 4 Sept 2022 at 8.2.
104. The Tribunal has taken the applicant’s mental health problems into account in assessing his evidence but is not satisfied that it forms the basis for a protection obligation.
105. However, the fact that he has been found to suffer Post Traumatic Stress carries with it the indication that he has been subjected to relevant trauma.
106. Given that his condition results in him being unable to discuss detail of his kidnapping by the Taliban, this suggests that the event did occur.
FINDINGS
107. The applicant has provided several accounts of his experiences in his homeland and of the events he says drove him to flee.
108. There are substantial inconsistencies between some of the versions.
109. In particular, the applicant’s claim that he was kidnapped by the Taliban who held him prisoner and sought a ransom has been the subject of more than one version and there have been some important differences in what he has said.
110. The Applicant’s testimony to the Tribunal about this issue was limited.
111. The Tribunal has regard to the expert evidence in relation to his mental health and to the diagnosis of PTSD and anxiety in his Mental Health Plan. The applicant himself said that he had trouble remembering his own interactions with the Taliban because thinking about it was difficult for him.
112. The Tribunal assessed the applicant as having tried to give an honest account of his experiences.
113. The Tribunal accepts that the applicant’s mental health may have prevented him from being able to provide more testimony about having been kidnapped by the Taliban.
114. The lack of testimony and the inconsistencies in the versions provided do not demonstrate that the applicant is lying about having been kidnapped by the Taliban.
115. The Tribunal had the benefit of independent evidence about the applicant’s mental health which suggests that he suffered PTSD. That is consistent with him having trouble giving a clear and consistent account of what happened to him.
116. The Tribunal notes that the first time the applicant was assessed (just after he arrived in Australia) he was found to be owed protection obligations. The second time he was assessed he was found not to be telling the truth, due in part to inconsistencies in his story.
117. The ministerial delegates who made those assessments did not have the benefit of evidence about the applicant’s mental state, which does offer an explanation for the inconsistencies without detracting from the likely truth of the applicant’s story in a broad sense.
118. The applicant’s story has always been that he was kidnapped and identified by the Taliban.
119. The Tribunal is satisfied that the applicant was kidnapped by the Taliban and held hostage. The Tribunal is not able to make a finding about how long he was held, how he escaped or whether a ransom was sought.
120. The Tribunal has had regard to the definitions of “refugee” at S5H of the act and the guidance about the meaning of a “well founded fear of persecution” at S5J.
121. The Tribunal is satisfied that the applicant has a “well founded fear of persecution” as contemplated, by reason of his race, religion and his membership of the particular social group of people who have been identified and targeted by the Taliban.
122. The Tribunal is satisfied that the applicant is a refugee as contemplated by s36(2)(a).
123. 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).
DECISION
124. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Mark O'Loughlin
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 2903

2 June 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Statutory Construction

Remedies