1816224 (Refugee)

1816224 (Refugee) [2023] AATA 4543 (2 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr George Vassiliou (MARN: 0746634)
CASE NUMBER:  1816224
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Paul Noonan
DATE:2 November 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Statement made on 2 November 2023 at 3.38pm

CATCHWORDS
REFUGEE – protection visa – Pakistan – political opinion – associated with the Balochistan independence movement – Baloch Students Organisation Azad (BSO Azad) – protest activity in Australia – credibility concerns – voluntary returns to country – dob-in information – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 423A, 424A
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
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 dependant.
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 1 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 30 December 2015. The delegate refused to grant the visa on the basis that the applicant’s claim to fear harm for reason of his political opinion was not credible. Further, the delegate found that there was no evidence indicating that there was a real chance of persecution for any refugee reason nor that there was a real risk of significant harm to the applicant as a necessary and foreseeable consequence of being returned to Pakistan.
The applicant first applied for a student visa on 1 February 2011. After grant he entered Australia [in] August 2011. He departed Australia for Pakistan [in] December 2012. He arrived back in Australia [in] January 2013 using a student visa. He departed Australia for Pakistan [in] August 2015 and arrived back in Australia [in] September 2015 using a student visa. On 30 December 2015 he lodged his claim for a protection visa.
The delegate was satisfied that the applicant’s country of nationality is Pakistan, and the Tribunal is also so satisfied, on the basis of his Pakistan passport, a copy of which is retained on the Department file, and accordingly has assessed his claims with respect to Pakistan as the country of reference or receiving country for the purposes of this appeal. The applicant has not made claims nor is there any evidence to indicate that he has a right to enter and reside in any third country. The Tribunal finds the applicant has no such right.
On 16 August 2023 the Tribunal wrote to the applicant with respect to a non-disclosure certificate pertaining to him that was contained on his brother’s Departmental file, which has been separately decided upon by a differently constituted Tribunal. The Tribunal also set out to the applicant that information under s 4242A of the Act, as follows:
I write firstly to inform you about a certificate issued pursuant to s 438 of the Migration Act 1958 (the Act) which is on the Department of Home Affairs’ (the Department’s) file. Secondly, I write to inform you about potentially adverse information on the Department's file and to invite you to comment on or respond to that information.
The certificate issued in accordance with s 438
The Tribunal forwards a copy of a non-disclosure certificate contained on your brother’s Departmental file for your comment (if any) as to its validity. The information which is the subject to the certificate was received in confidence and alleges that you and your brother have engaged in an orchestrated campaign to provide fake documents to prove yourself refugees. The Tribunal invites your response to this information either in writing prior to the hearing or at the hearing.
Invitation to comment on or respond to information pursuant to s 424A
In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.
Please note, however, that we have not made up our mind about the information.
The particulars of the information are:
In your submission to the Tribunal, you claim that Pakistan authorities have an adverse interest in you because of your protest activities in Australia. In support of your contention that the authorities are aware of your activities you have submitted a purported copy of the newspaper [Newspaper 1], dated [in] 2014, in which a photo of you protesting in Australia is reproduced. However, country information reflects that [Newspaper 1] has been blocked and banned by the Pakistan authorities since 2010.[1] This evidence is relevant to the review because it may reflect that the evidence submitted by you with respect to [Newspaper 1] report dated [in] 2014 is a forgery.
This information is relevant to the review because it may cause the Tribunal to doubt the truthfulness of your evidence and to consider that your claims lack credibility. It may also lead the Tribunal to not accept that you were ever of adverse interest to the Pakistan authorities. This would be the reason, or part of the reason, why the Tribunal would affirm the decision under review.
If we rely on this information in making our decision, we may not accept that you have a well-founded fear of persecution if you return to Pakistan or that there is a real risk that you will suffer significant harm as a necessary and foreseeable consequence of you being removed from Australia to Pakistan. This would be the reason, or part of the reason, why the Tribunal would affirm the decision under review.
[1] [Source redacted]
In a response, received in writing on 15 September 2023, the applicant contended that [Newspaper 1] article was not a forgery. In support he provided a [social media] post @[Newspaper 1], which stated that “after six years if reporting on Balochistan that we are truly proud of, [Newspaper 1] (2009-2016) would finally …[link redacted]”. The post says it was posted at [time] on [date]/2/2015 from earth and was liked by one person. He also submitted a purported screenshot of [Newspaper 1] dated [in] 2014 containing a report of Victorian based protests about Balochistan human rights violations with a picture of the applicant and two others holding a sign that says “[text redacted]”, as well as a larger, more general and more indistinct photo of a larger group of protestors. In addition, he submitted a further screen shot of [Newspaper 1] dated [in] 2014, which reports on the same protest and uses the same larger photo in the other report but does not contain the separate shot of the applicant and the other two protestors. Neither report names the applicant.
The applicant also submitted, in response to the non-disclosure certificate, that he has always acted with direction from the BSO-Azad central committee in Balochistan while in Australia and protests were organised in this manner. Further country information and a psychological report with respect to the applicant were also supplied.
The applicant’s representative made a written submission dated 15 September 2023. The representative submitted that [Newspaper 1] is banned, however, he contended this was after May 2015 with respect to “any part of the world”. He submitted that the article submitted by the applicant was obtained from the direct website of the [Media 1] where it had been republished and was accessible outside of Pakistan (when the applicant submitted his protection claim). While [Newspaper 1] may have been banned from 2010, this does not reflect that it was not accessible outside Pakistan, which the article cited by the Tribunal does not clarify. The cited protest was also covered by other news outlets in Balochistan. Pictures of the protests were also widely circulated social media. He submitted a [date] 2014 post from the BSA Azad [social media] account of the protest.
The Tribunal has considered the psychological report dated 14 September 2023 by [Mr A], Psychologist, and accepts on this basis the applicant is suffering from a range of mental health conditions including depression, anxiety and insomnia.
The applicant appeared before the Tribunal on 22 September 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Brahui and English languages. The applicant confirmed that he was feeling well enough to participate in the hearing and the Tribunal was satisfied that at all stages of the hearing the applicant was able to engage with and answer the questions asked of him to the best of his ability.
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). 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Summary of claims
In his written claim for protection, lodged with the Department on 30 December 2015, the applicant stated that in 2015 he left Pakistan with his brother following a raid by authorities on their house. He fears he is of adverse interest to the authorities due to an adverse political opinion profile as he is associated with the Balochistan independence movement by the Pakistan authorities.
He provided a written statement with the standard claim form. In this form, he stated (in summary) that:
·He suffers from depression as a result of his past experiences in Balochistan.
·He belongs to the Mengal tribe which has traditionally been at the forefront of the independence movement.
·His family have been targeted in the past by the authorities for reason of their association with the independence movement. He has two brothers who have been granted asylum in [Country 1] and Australia for this reason.
·His father’s business in Balochistan has been blacklisted by the authorities since 2012 and as a result has been unable to obtain any government contracts in its area of [industry].
·He set out a detailed history of the Balochistan independence movement actions and reprisals by the authorities and the past deep involvement of his maternal grandfather and uncle in the independence movement.
·He has two cousins who were disappeared by the authorities in 2014 for reason of their support of the Balochistan independence movement.
·While studying at high school he joined the Baloch Students Organisation Azad (BSO Azad) in 2008. His two brothers, now granted asylum, also joined around the same time. His duties were to recruit members and to facilitate discussions about independence. He was soon elected as a BSO Azad unit [position] and assisted country students to assimilate into the college and to organise meetings. He also distributed independence pamphlets and participated in protests. He did not retain any such pamphlets.
·In 2009 the authorities instituted a brutal crackdown in Balochistan and the President of his local BSO Azad unit was abducted and tortured by the authorities. The vice chair was also abducted and disappeared. He also listed several other senior leaders of independence organisations who were abducted and tortured or killed at that time. He also listed incidents of general protests being attacked by the authorities at that time.
·Due to the instability and fear in Balochistan, it was decided he would study in Australia in 2011. He returned to Balochistan in 2013 but kept a low profile and had no trouble. Also in 2013, he established contact with other Baloch students in Australia and they started holding discussion groups and organising protests about atrocities at home. In 2014 he became [position within] BSA Azad – Australia. He organised two demonstrations outside Parliament House, Melbourne and he gave a speech. At this time, he was in regular contact with BSA Azad leadership in Balochistan. These protests were reported on in the press.
·He returned to Balochistan in 2015 due to his mother’s health and kept a low profile, however his family house was raided by the authorities who stated they were looking for him and his other brother from Australia, who had travelled with him, because they were aware they had been participating in Balochistan human rights protests in Australia.
·They arranged for safe passage using an uncle’s contact, who was a friend working at Karachi airport, and left the country as soon as possible.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is owed protection by Australia. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Issue – Is the applicant’s fear of persecution for reason of his political opinion well-founded?
A useful starting point when considering this issue is to consider country information with respect to political opinion in Balochistan.
In a 2020 article, the Manohar Parrikar Institute for Defence Studies and Analyses in India stated:
In Balochistan, human rights violations have become the norm. The Pakistan state and its security agencies have habitually trampled on the human rights of the Baloch people in the name of security and territorial integrity. The Pakistan state has been extremely sensitive to all expressions of ethnic autonomy and resistance, and more so in the case of Baloch leaders championing their rights. They are often charged with treason, branded as terrorists, and killed in encounters or picked up by security forces at will only to be added to the ever expanding list of missing persons. In many cases, their dead bodies are either found in a badly mutilated condition by the roadside or their skeletal remains are discovered in mass graves.
In recent months, going by the reports in social media and online portals run by the Baloch diaspora, there has been a spike in military operations in Baloch areas like Kech, Panjgur, and Awaran districts. These areas were reportedly shelled by helicopter gunships and massive raids were carried out afterwards. This is all happening amidst the COVID-19 lockdown. In April alone, in the military raids, 16 Baloch were killed and as many as 73 people were picked up by the Pakistani forces, including students, women, children and infants. However, 28 people were later released.
The Baloch have never felt safe inside Balochistan and now they do not feel safe even outside Pakistan. The case of the disappearance of Rashid Hussain Baloch from the United Arab Emirates (UAE) in December 2018, and the recent discovery of the dead body of Sajid Hussain Baloch in Sweden after he went missing in March 2020, only serves to demonstrate that the Baloch rights activists are being trailed even when they have quit Pakistan and are meeting the same fate as their ethnic cousins back home. According to Baloch forums worldwide, Pakistan’s intelligence agencies are extending their influence and operations even in distant shores, especially in countries where the Baloch diaspora is actively propounding the case of Baloch marginalisation in Pakistan.[2]
[2] Dr Nazir Ahmad Mir, ‘Abysmal Human Rights Situation in Balochistan’, Manohar Parrikar Institute for Defence Studies and Analyses, 30 May 2020. Accessed at: >
The Tribunal notes that the pursuit of overseas Balochistan activists by the Pakistan authorities has also been discussed in a 2020 article by the Manohar Parrikar Institute for Defence Studies and Analyses, and this suggests the diaspora from this area is being monitored.[3]
[3] Dr Nazir Ahmad Mir, ‘Abysmal Human Rights Situation in Balochistan’, Manohar Parrikar Institute for Defence Studies and Analyses, 30 May 2020. Accessed at: >
In the most recent DFAT report it is noted that in general, human rights activists, NGO workers and civil society actors face a high-risk official of discrimination and moderate risk of violence in Balochistan from the authorities in Pakistan and that this harassment and monitoring can occur anywhere in the country.[4] The UNHCR has also reported in 2020 of a long history of enforced disappearance of those critical of the authorities.[5] In 2019 the United States Department of State noted there had been a surge in military raids and abuses in Balochistan.[6]
[4] DFAT Country Information Report, Pakistan, 25 January 2022, sections 3.112 – 3.113.
[5] United Nations Human Rights Office of the High Commissioner (UNHCR), 2020, ‘Pakistan: UN experts appalled by the enforced disappearance of activist Idris Khattak’.
[6] United States Department of State, 2019, ‘2019 Country Reports on Human Rights Practices: Pakistan’.

The Tribunal notes reporting of significant and egregious levels of human rights violations by the authorities in Pakistan carried out in Balochistan have been noted for many years now.[7]
[7] Aljazeera, Pakistan’s unending battle of Balochistan, 17 April 2013, aljazeera.eom/indepth/features/2013/04/2013415113250391656.html.
On the basis of the above country information, the Tribunal accepts that a person who is of adverse interest to the authorities for reason of an association with Balochistan independence or human rights causes, either actual or imputed, is at risk of persecution by the authorities. This extends to all areas of the country as DFAT assesses that groups facing official discrimination will face this in all parts of the country.[8]
[8] DFAT Country Information Report, Pakistan, 25 January 2022, section 5.24.
As discussed, pursuant to s 423A, the Tribunal must consider whether the applicant undertook his protest activity in Australia solely for the purpose of strengthening his refugee claims. The applicant submitted that he had commenced this protest activity in response to increasing revelations of significant and widespread human rights violations perpetrated by the authorities in Balochistan. Further, he asserted that he had done so well before applying for asylum and before he had again returned to Pakistan. The Tribunal accepts that the applicant’s protest activity was not undertaken solely for the purpose of strengthening his refugee claims.
The Tribunal discussed credibility concerns it had with respect to the applicant’s claim to have escaped adverse interest from the authorities while in Balochistan in 2015. In particular, it was concerned that he had evaded what appears to have been an active search by Pakistan intelligence authorities for him and his brother by using connections at the airport but had needed no such assistance to enter the country. The Tribunal noted that the 2016 DFAT report, relevant to this period of time, sets out that the authorities maintained exit-control lists of people deemed to have committed anti-state activities, including espionage and terrorism.[9] There is some ambiguity about the extent of the list as it was noted that it had been drastically downsized and was contingent on a court order or adverse finding from the security agencies, however, if the applicant was wanted in the manner described it is likely he would have been the subject of such an adverse finding. The applicant continued to agitate his claims, however, the Tribunal considers it is implausible that he was able to escape an active search by the Pakistan authorities in the manner claimed and finds that he was not actively sought by the authorities in 2015.
[9] DFAT Country Information Report, Pakistan, 15 January 2016, section 5.25-5.26.
The Tribunal has carefully considered the response provided to its concerns with respect to adverse information put to the applicant under s 424A regarding [Newspaper 1] report. The Tribunal considers it plausible that reports under the heading [Newspaper 1] may have remained accessible outside of Pakistan until 2015 as argued, based upon the evidence submitted. It is clear that internally [Newspaper 1] was banned from 2010 and as such the photo of the applicant at the protest would not have been accessed internally in Pakistan. However, this does not preclude, with certainty, the possibility of the protests in Australia and associated photos coming to the attention of the Pakistan authorities at some stage, given country information reflects that the diaspora from Balochistan is now being actively monitored.
This active monitoring of the Balochistan diaspora, and the significant levels of monitoring and ongoing severe violence perpetrated by the Pakistan authorities against Balochistan persons known to be critical of the authorities, causes the Tribunal to consider the applicant’s overall cumulative profile should he be required to return.
It is accepted that the applicant’s brother, who departed Pakistan with him after the claimed raid in 2015, has been granted asylum in Australia. He also claims to have another brother who has been granted asylum in [Country 1], which the Tribunal accepts to be the case. The Tribunal accepts that the applicant has participated in some rallies in Australia that protested egregious human rights violations in Balochistan and that this was not undertaken solely for the purpose of strengthening his refugee claims. The Tribunal also accepts that in his student days he was associated with the BSO Azad.
Balanced against these considerations in favour of the applicant’s claims are the Tribunal’s concerns with respect to the credibility of the applicant’s arrival and departure from Pakistan in 2015 and the dob-in information that he and his brother engaged in a campaign of false claims and created documents in support of their refugee claims.
In this matter, there is country information reflecting a significant level of risk of serious harm to the applicant should he have any adverse profile with the Pakistan authorities associated with the Balochistan independence movement. The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
The Tribunal finds that the weight of material in this case lends itself to a finding that there is some chance the applicant will be adversely profiled upon his return to Pakistan by the authorities for reason of his political opinion. This is because of the applicant’s cumulative profile, being that he has brothers who have been granted asylum for the same reason and because there is some online evidence of him participating in public protests against human rights violations in Balochistan while in Australia in conjunction with one of these brothers. This is important because, as noted, there is country information that reflects the Balochistan diaspora is being monitored by the Pakistan authorities and that anyone identified as linked to the independence movement is likely to be subjected to serious harm by the authorities if they are detained. While the real chance of persecution may be small, it is not (given the seriousness of the country information and the length of time the persecution has been sustained by the authorities) one that, in the Tribunal’s view, could be described as an insubstantial or far-fetched possibility given this cumulative profile.
The Tribunal is satisfied that the well-founded fear of persecution is because of the applicant’s political opinion as a supporter of Balochistan independence. The Tribunal finds that the applicant’s political opinion (actual or imputed) would be the essential and significant reason for the harm feared, that it involves serious harm and that it involves systematic and discriminatory conduct. Therefore the applicant meets the criterion set out in s 5J(4).s for the persecution. Further, the Tribunal finds that the real chance of persecution relates to all areas of Pakistan as per s 5J(1)(c).
The Tribunal is satisfied that it is the Pakistan authorities that the applicant fears persecution from and has already noted that DFAT assesses that groups facing official discrimination will face discrimination in all parts of the country. As such, the Tribunal is satisfied the applicant would be unable to access state or non-state actor protection. Therefore the applicant satisfies s 5J(2). The Tribunal also finds that behaviour modification is not an option for the applicant as he will be adversely profiled based upon his family and political beliefs, which are immutable characteristics of the applicant and as such the exception at s 5J(3)(c)(iii) is satisfied.
Accordingly, the applicant’s fear of persecution is well-founded.
Conclusion
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
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Paul Noonan
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 4543

2 November 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Natural Justice

Procedural Fairness

Standing

Jurisdiction