1820814 (Refugee) - [2019] AATA 1632

1820814 (Refugee) [2019] AATA 1632 (29 January 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1820814
COUNTRY OF REFERENCE:                  Pakistan
MEMBER:Anne Grant
DATE:29 January 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 29 January 2019 at 1:38pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – religion – Ahmadi Muslim – officially sanctioned discrimination and societal vilification – threshold of serious harm – serious criminal charges in Australia unresolved – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
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 Immigration on 17 July 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Pakistan, applied for the visa on 23 October 2017.
The applicant attended a hearing on 1 November 2018. The applicant was represented by [Ms A] and supported by his brother and nephew. An Urdu interpreter assisted at the hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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 themself 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.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this case are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm.
The applicant has established that he is a citizen of Pakistan and his claims have been assessed against that country as his receiving country.
The applicant’s written claims are contained in his application for protection and in a statutory declaration provided to the department entitled ‘Statement of Claims’. The applicant’s claims are (in summary) that he fears persecution (being assaulted, killed, harassed and discriminated against) in Pakistan due to his faith as an Ahmadi Muslim. He described past experiences of members of his family being abused and beaten frequently and submits that the situation for Ahmadis in Pakistan has worsened since he departed the country, and that state sanctioned discrimination and even murder of religious minorities continues unabated throughout the country.
In his written application and at hearing, the applicant described his family history. His parents were landowners in Punjab but due to harassment from anti-Ahmadi community members there, they were unable to successfully farm their land. They sold up and moved to Golarchi, near Badin in Sindh Province. Golarchi is near the southern border of Pakistan with India. There, they purchased [properties]. The family has lived in Golarchi from around the mid-eighties. They have made a successful living in Golarchi as [land-owners]. They were able to live there and make a living.
The applicant’s claims are that in Golarchi, he and his children have faced constant insults, social exclusion, threats of harm and death and abuse (including throughout the education system), simply due to their Ahmadi religion over many years. At hearing, the applicant described delays in registering his children for school, teachers who openly viewed Ahmadi students as inferior, throwing of rubbish at their home, and bullying of his children by other school children. The applicant also described abusive messages written on the walls of their home, calling them Kafirs, and calling for them to be killed. He said that there have been occasions when members of the Sunni community have gathered outside Ahmadi homes in their town and hurled abuse and stones. He said this had happened a number times over the years. He also said that in the past on one occasion in Golarchi, water rights to one property they were farming had been impeded, causing them hardship. The applicant gave evidence that when that happened, he was helped by members of his community to resolve the problem.
The applicant said that there are other Ahmadi families in Golarchi and they all experience the same societal discrimination. The community does have a local mosque, which is where they meet and attend prayer. The applicant said that when attending mosque, they feel fearful and are always alert for someone following them who may wish to harm them. He did not describe any incidents of attacks on him and his family on their way to or at the mosque.
The applicant in his claims and in his evidence described an incident in 2012 when a mob gathered outside his home, chanted abuse and threw rocks at his family home. The mob was seeking his arrest for a perceived blasphemy after a page from one of his daughter’s text books (which contained quotes from the Quran - which is forbidden to be used by Ahmadis) blew off the roof and came to the attention of a local cleric. The applicant was taken by the police, held for a few days and then released after paying a fee of [amount] rupees. Although the Police said his arrest was for his own safety, at the time he was afraid that the mob would hurt him and also that he would actually be charged with blasphemy ‘for nothing’. The police did not harm him whilst he was in custody, and he was not charged with any offence.
The applicant has also provided photographs and evidence that anti-Ahmadi community members ( which he said included people from an anti-Ahmadi extremist group Khatme Nabuwaat) had put posters up on the wall of their home, advising people to murder them with God’s blessing, and scrawled abusive writing on the wall in chalk and paint.
At hearing, I discussed with the applicant that, according to the delegate’s decision provided by the applicant with his application for review, the applicant had told another tribunal member (in a visitor visa review hearing in 2015) that he had not faced ‘significant’ problems in Pakistan due to his Ahmadi faith. The applicant responded that at the time he gave that evidence, ‘things were good and it was true’. He said that there have been long periods where the family has not been attacked, and has been left alone, even though during that time the social discrimination continued. He said that ongoing discrimination is just a fact of life for Ahmadis in Pakistan so he would not describe it as significant. I raised with the applicant my concern that “having no significant problems” might be considered inconsistent with being attacked by a mob, and having people scrawl abuse on your walls and call for your murder, as he had described. I put to the applicant that he may have been downplaying his experiences in giving evidence to the tribunal for his visitor visa. The applicant said that he was not - at the time he gave the evidence, things were peaceful, and there have been many years when things are calm.
Nonetheless, the applicant reiterated that acts of discrimination and violence against him and his family home as he described have happened both before and after he left the country. The applicant gave evidence that members of his family have been told that the applicant will be killed when he returns to Golarchi. He could not give any reason why he had personally been singled out in that manner after so many years living in Golarchi and while he was actually away from the country. I found his inability to give reasons behind this alleged threat and his evidence about it to be unconvincing. I find that the applicant was exaggerating in giving this evidence to strengthen his claims, and I do not accept that he has received threats in the period that he has been in Australia that he will be killed if he returns to his home because of his Ahmadi faith.
The applicant had provided a letter which he said was a threat letter directed at his brother by Anti-Ahmadi extremists with his evidence on the department’s file. According to the delegate’s decision, the applicant had said it was ‘written by the opposition’ and targeted his elder brother. The content of that letter, a copy of which is on the departmental file, refers to his brother ‘being involved in the [criminal] case of Golarchi’ and ‘giving donation etc in Golarchi’, and demands that he leave immediately and go away, but then says ‘We shall search and find you from anywhere you go.’ The letter is dated in 2011. I accept the letter was sent to his brother but, given its’ content and the specific dispute to which it apparently relates on its’ face, I do not accept that it is evidence tending to support the applicant’s claim that he has been or will be personally targeted. I give it some weight only as evidence tending to support his claim that members of his family have been called Qadyani (a derogatory term for Ahmadis) in the past and that his brother received a letter demanding he leave the area in 2011.
The applicant’s evidence is that, since he departed for Australia, the land they [own] has become derelict, partially because of a lack of water and partly because he is not there to farm it. He has a large family including a wife and [number] children (some of whom are adults) and all still live in and around Golarchi. His children are all still in school or university. His oldest son, aged [age], manages the [properties] as best he [can.] The applicant said that the properties do not ‘really’ make enough money really to support his family and they receive some assistance from the local Ahmadi community.
At hearing, the applicant also gave evidence that he had historically been active within that local Ahmadi Community, and had a role [in organising events] for the Ahmadi.
The applicant noted in his written declaration and at hearing that even politicians have been involved in pushing hate for Ahmadis and referred to a speech given by Captain Safdah on 10 October 2017 (the son of the former Prime Minister) in Parliament. It was noted that the particular politician who he was referring to had lost his seat in the recent election. The applicant stated that there are plenty more anti-Ahmadi politicians to take his place.
At hearing, the applicant’s representative noted that I had some concerns about whether there would be a real chance of “serious” harm in this case, based on the applicant’s life experience and residence in a ‘quiet’ part of the country. She submitted that, in making my assessment, I must take into account the fact that the country information clearly discloses that the level of institutional and legal discrimination against Ahmadis across Pakistan is severe and is actually ‘legitimised’ by offences which apply to Ahmadis only in the penal code. The representative further submitted that it is not ‘far-fetched’ that a mob may attack the applicant on a mere allegation of blasphemous conduct. She noted that across the country Ahmadis have been targeted for charges of blasphemy merely on unsubstantiated allegations by members of the Sunni community. The applicant’s representative submitted that this level of institutional discrimination should be considered to meet the complementary protection provisions if I was not satisfied that there was a real chance of serious harm under the refugee provisions.
In support of his application for review, the applicant had tendered a number of reports which I have considered. These are:
·Freedom House: Freedom in the World 2017 dated 19 May 2017
·United States Department of State Country Report on Terrorism 2016 – Pakistan 19 July 2017;
·Human Rights Watch report 27 May 2012 Pakistan: Prosecute Ahmadi Massacre Suspects.
·Newsline Magazine article entitled The Outsiders October 2018 describing challenges and struggles faced by the Ahmadi community in Pakistan;
·International Human Rights Committee Incident report entitled: Provincial Minister for Religious Affairs warns that he will personally strangle any Ahmadi Muslim who distributes a copy of the Holy Quran. (27 January 2018)
·International Human Rights Committee article entitled ‘Ahmadi Muslim’; The two words that still can’t be said, written or broadcast in Pakistan (17 October 2017)
·International Human Rights Committee article entitled Minorities packing their bags as religious freedom plunges in Pakistan. (16 January 2018)
·Article from unknown source entitled Forbidden truth: Ahmadis in the social fabric of Pakistan dated 13 March 2018.
·Article from Dawn.Com entitled Under pressure govt backtracks on Atif Mian’s appointment; removes economist from advisory council. 7 September 2018.
·International Human Rights Committee article entitled Why is Pakistan against its Ahmadi community? 12 October 2017
·Article from unknown source entitled Ahmediyya community complains authorities using election law issue to deprive them of voting rights. 30 April 2018
·Forum for Religious Freedom Europe open letter: PAKISTAN: Threats against Ahmadiyya Community on the Rise dated 3 February 2018
·Dawn news article 28 November 2017: Teacher allegedly terminated for being Ahmadi approaches high court.
·Reuters report entitled Pakistan’s Ahmadi community releases damning persecution report 28 April 2018
·Discussion forum from unknown source discussing various State sponsored persecution issues
·AlJazeera article Three Ahmadis sentenced to death for blasphemy. 12 October 2017
The Department’s file contained information about some serious criminal charges being faced in Australia by the applicant which could potentially prohibit his eligibility for a protection visa. There were three charges of [specified offence] pursuant to [specified section] of the Crimes Act. According to that section, a person who commits an offence under this section is liable to Level 5 imprisonment (10 years maximum). Despite requesting updated information about the charges, I did not receive any further information about them prior to the hearing. At hearing, the applicant advised that he is fighting those charges and they have been listed for a [contested hearing].
According to s.36(1C), a criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds: is a danger to Australia’s security; or, having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community. The charges faced by the applicant are potentially ‘a particularly serious crime’ (which includes, as described in s.5(1), an offence against a law in Australia where the offence involves violence against a person and which is punishable by imprisonment for a fixed or maximum term of not less than three years.) Similar provisions have effect in relation to s.36(2)(aa) when considering complementary protection. As at the date of my decision, those charges have not been resolved and the applicant has not been “convicted by a final judgement” of any offence. I therefore do not make any finding about section 36(1C) and it does not form part of my reasons for making the decision in this review.
It is well documented that the Ahmadi community in Pakistan faces significant official discrimination and social difficulties arising from their faith. DFAT’s Country Information Report on Pakistan, dated 1 September 2017 contains the following assessment:
AHMADIS
3.75 Ahmadiyya is a religious movement based on Islam and founded in the Punjab region in the late 1800s by Mirza Ghulam Ahmad. Ahmadis consider themselves to be Muslims, and follow the teachings of the Quran. The Ahmadiyya believe that Ghulam Ahmad was the Mahdi (a prophet who, according to the hadith, would appear at the time of the second coming of Jesus Christ, and fill the world with justice and equity prior to the Day of Judgement). Sunni and Shi’a Muslims believe that the Prophet Muhammad was the last of the prophets, and many consider Ahmadis to be heretics.
3.76 Estimates on the number of Ahmadis in Pakistan vary, but most estimates lie between 2-4 million. Ahmadis live predominantly in Punjab province; Rabwah in Punjab is the location of the movement’s Pakistani headquarters. A larger number of Ahmadis live outside of Pakistan, including in Africa, Indonesia, the UK and the US. Leaders of the movement, including the current Supreme Head, Hazrat Mirza Masroor Ahmad, have resided in the UK since 1984.
3.77 Unlike some other minority groups in Pakistan, Ahmadis are not readily identifiable by their appearance, language or names. Many Ahmadis choose to maintain a low profile in the community to avoid societal discrimination and violence, although community leaders and organisations are very active and vocal. Pakistan’s Ahmadi community is relatively well educated and prosperous.
3.78 While Ahmadis self-identify as Muslims, in 1974 the Pakistan government amended the Constitution to state explicitly that Ahmadis were considered non-Muslims. In 1984 the government of General Muhammad Zia-ul-Haq promulgated Ordinance XX, which banned Ahmadis from: publicly practising their faith; using non-Ahmadi mosques or public prayer rooms for worship; using Islamic texts for their prayers; performing the Muslim call to prayer; producing, publishing or disseminating religious materials; using the traditional Islamic greeting in public; seeking converts; or publicly quoting from the Quran. Ordinance XX also banned Ahmadis from identifying themselves or ‘posing’ as Muslims. Punishment for these activities is up to three years of imprisonment and a fine. Ahmadis are, however, exempt from the 2.5 per cent zakat deductions on personal income that are mandatory for Muslims in Pakistan.
3.79 Ahmadis face high levels of official discrimination in Pakistan. Ahmadis are required to register to vote on a separate Ahmadi-specific list, which specifies that they are non-Muslim. Non-Muslim groups such as Christians, do not face such restrictions. In the lead-up to the 2013 elections many Ahmadis refused to register as non-Muslims on this list, and were therefore unable to vote. Applications for official documentation such as passports and national identity cards must contain information about religious affiliation (recorded on passport documentation). People who identify as Muslim have to explicitly denounce Ghulam Ahmad as a false prophet and Ahmadiyya followers as non-Muslims.
3.80 Ahmadis are also not able to practise their religion freely. Credible sources told DFAT of cases where authorities, including police, have entered Ahmadi places of worship to dismantle minarets (symbols of Islamic mosques) and to remove Arabic inscriptions of Islamic texts from the walls. The Ahmadi community has told DFAT of examples where mobs have set fire to Ahmadi places of worship, desecrated graves and disinterred their dead. There are also credible reports of Ahmadi places of worship being given over to non-Ahmadi imams and their communities, and of authorities closing down Ahmadi publications. On 5 December 2016, officers from the Counter Terrorism Department of the Punjab Police raided the Ahmadi headquarters in Rabwah, arresting four Ahmadis on suspicion of publishing banned magazines. One security guard was reportedly beaten in the attack. On 12 December 2016, a crowd estimated at around 1,000 people attacked an Ahmadi place of worship in Chakwal, burning religious books and other items. One Ahmadi man died from cardiac arrest during the attack, while one non-Ahmadi man was killed by a stray bullet.
3.81 DFAT assesses that Ahmadis in Pakistan face a high level of official discrimination, which affects their ability to practise their religion freely and limits the extent of their political engagement. Ahmadis are also subject to a moderate level of societal discrimination, including accusations of blasphemy (see Blasphemy, below).
3.82 Violence against Ahmadis by militant groups has been relatively rare in recent years. As well as the general improvement in the security situation, particularly in Punjab province where the Ahmadi community is concentrated, the levels of violence faced by Ahmadis is somewhat mitigated by their relatively high socio-economic status, as well as the fact that they tend not to be able to be easily identified as Ahmadi from their appearance. However, violent attacks on Ahmadis can occur. According to the SATP, three Ahmadi men were shot dead in three separate sectarian attacks in Punjab province between March and May 2017. While noting that the Ahmadi community remains vulnerable to religious-based violence, as well as violence stemming from accusations of blasphemy (see Blasphemy, below) DFAT assesses that the overall risk of violence currently faced by Ahmadis in Pakistan is low.

The Asylum Research Centre Pakistan Country Report 18 June 2018 usefully summarises information about Ahmadi and sectarian issues from a variety of sources and is of recent publication:
In February 2017 the Hudson Institute reported that “Over the last week, jihadi offshoots claiming links to the Islamic State (IS) have demonstrated their capacity to strike in each one of Pakistan’s four provinces. Jamaat-ul-Ahrar, a faction of the Taliban, publicly claimed responsibility for some of the attacks and threatened to attack further Shia, Ahmadi and Pakistan military targets as part of its ‘Operation Ghazi’. Simple research on Jamaat-ul-Ahrar and other similar groups reveals that their members are homegrown Punjabi jihadis ideologically convinced of their narrow sectarian worldview”.
Reuters noted in an August 2017 article that “’ISIS (Islamic State) has no formal structure (in Pakistan). It works on a franchise system and that is the model that is being used in Pakistan,’ senior Counter Terrorism Department (CTD) officer Raja Umer Khattab told Reuters. By that he said he meant Islamic State could claim attacks as its own, even if it had no direct role in coordinating them”.
…
The Heidelberg Conflict Barometer for 2017 recorded that “Sunni militants continued to attack security forces and civilians, especially religious minorities, in Pakistan. In the middle of February, an IS-affiliated suicide bomber killed 88 people and injured another 343 at the shrine of a Sufi saint in Sehwan, southern Sindh province […]. The conflict over secession in Balochistan province continued. Militants specifically targeted civilians from other provinces or laborers working on construction sites linked to the China Pakistan Economic Corridor, which is opposed by separatists for allegedly exploiting the Baloch province and its people […].”
The same source further noted with regards to Islamist Militant Groups in Pakistan that:
The war over national power and the orientation of the political system between various Islamist groups, most prominently the Tehrik-e-Taliban (TTP), its splinter group Jamaat-ul- Ahrar (JuA), Lashkar-e-Jhangvi (LeJ), and al-Qaeda, on the one hand, and the government, supported by the United States, on the other, de-escalated to a limited war for the first time since 2008.
A total of at least 576 people were killed and 435 injured throughout the year. Most fatalities were counted in the Federally Administered Tribal Areas (FATA), followed by the provinces Punjab, Khyber-Pakhtunkhwa (KP), Sindh, and Balochistan.
The report documented with regards to Sunni militants-religious groups that “The violent crisis over subnational predominance between Sunni militant groups and religious minority groups, especially Shiites, Ahmadis, Sufis, and Christians, continued. Lashkar-e-Jhangvi (LeJ), Jamaat-ul-Ahraar (JuA) and the so- called Islamic State (IS) claimed responsibility for a majority of the attacks. Throughout the year, at least 240 people were killed and at least 809 injured, mostly in IEDs attacks or shootings.
IS claimed responsibility for two attacks against Sufi Muslims”.
…
The U.S. Department of State report for 2017 explained that “NGOs differed in their definitions of sectarian violence, leading to differences in accounting for the number of attacks and deaths. According to SATP, 15 sectarian attacks from January to mid-December resulted in the deaths of 229 individuals, compared with 132 deaths in 31 incidents in 2016. Kurram Agency, FATA, which is the only part of FATA that has a majority Shia population, was the target of three separate bombings that claimed the lives of more than 120 individuals. On January 21, a bomb was detonated in a vegetable market in Parachinar, the capital of Kurram Agency, killing 25; Lashkar-e-Jhangvi and the TTP claimed responsibility. On June 23, twin blasts hit the Turi Market in central Parachinar, killing 72. Lashkar-e-Jhangvi claimed the attack. On October 10, a suicide bomber killed at least 24 worshippers at a shrine in Balochistan. Multiple Ahmadiyya community members died in what appeared to be targeted killings. Unknown gunmen killed three Ahmadis in three separate attacks on March 30, April 7, and May 3”.
In its August 2017 report on the security situation EASO described ethnic and sectarian violence thus: Sectarian violence across Pakistan continues to be a threat to the security situation in Pakistan and the broader region, according to The Diplomat. Shias, but also Sunnis (including Barelvi and Sufis), Ahmadis, Christians and Hindus are victims of religiously motivated violence, especially carried out by radical militant groups. Most of the victims of sectarian violence are members of the Shia branch of Islam, who comprise approximately 25 % of the population in Pakistan. Various Deobandi militant groups, such as Lashkar-e-Jhangvi (LeJ), Jundullah and factions of the TTP, target the Shia community. According to one source, the violence that was originally limited to Shias now extends to moderate Sunnis as well, if they are seen as not being sufficiently orthodox. Also the Christian community in Pakistan is a frequent target of sectarian violence, whilst Ahmadis continue to be targeted by militant extremists. They are often the victims of legal, institutional and social discrimination, according to USCIRF.
Interethnic violence has been a problem in the province of Sindh in recent years. Tensions between Mohajir and the Pashtun population in Karachi have increased; especially the power struggle between both groups led to numerous political murders of members of the Muttahadi Qaumi Movement (MQM), Awami National Party (ANP), Pakistan People’s Party (PPP) and Pakistan Tehreek-e-Insaf (PTI).
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Amnesty International reported in June 2017 on the assassination attempt of a minority rights journalist in Pakistan:
Pakistani minority rights journalist Rana Tanweer faced an assassination attempt on 9 June. He was attacked in a hit and run accident and fractured his leg. Days before, his home was vandalised and he was threatened for his writing. The authorities have not provided him and his family with adequate protection nor held the perpetrators to account.
Rana Tanweer, a reporter for Pakistan’s Express Tribune who reports mainly on minority rights issues, including discrimination against the Ahmaddiya community and blasphemy laws, is at risk. On the afternoon of 9 June, he faced a failed assassination attempt when a car tried to run him over in Lahore, the capital of Punjab, Pakistan’s largest province. He was thrown off his motorbike as the car rammed into him from behind. His leg was fractured in the accident. At the end of May, Rana Tanweer’s landlord received a phone call pressurising him to evict his tenant due to his alleged ‘anti-Islam’ stance. This was followed a few days later by a spray-painted message on the front door of his home reading “Qadiani supporter Rana Tanweer is an unbeliever who deserved to be killed”. ‘Qadiani’ is a derogatory term used for Ahmadis, a minority Muslim community facing entrenched discrimination in Pakistan, both in law and in practice.393
The Pakistan Institute for Conflict and Security Studies (PICSS) recorded in its Security Assessment Report for 2017 with regards to targeted killings that:
There was no respite in deaths caused by targeted killings in 2017 as exactly same number of people (156) were killed in this type of attacks. However, number of incidents declined by 37 percent which implies that the targeted killing incidents were more lethal than previous year. Most lethal targeted killing incidents took place in Balochistan where non-Baloch labourers were targeted at a number of times. Fifteen people were killed in at least two such incidents in Gawadar and Kech districts of the province. Shia Hazara community in Balochistan also remained one of the main targets of such attacks. […]
People from Ahmadiya community also came under attack during 2017. Highest number of target killing incidents and resultant deaths took place in Balochistan followed by KPK.
The US Department of State reported in its annual report on religious freedom in Pakistan that “According to Ahmadiyya Muslim Community leaders, authorities continued to target and harass Ahmadi Muslims for blasphemy, violations of “anti-Ahmadi laws,” and other crimes”.
The UN Human Rights Committee’s August 2017 concluding observations with respect to the International Covenant on Civil and Political Rights stated that:
While noting the adoption of quotas for women and minority persons in the national and provincial parliaments and in public services and quotas for persons with disabilities in public services, the Committee is concerned that the minority quota is applied only to religious minorities, and regrets the absence of sufficient information on the implementation of these quotas. It is also concerned by the removal of Ahmadis from the general electoral list and their registration on a separate voting list, the low level of exercise of the right to vote by women and remaining obstacles to effective access to voting for persons with disabilities and persons belonging to minorities, including gypsies (arts. 2, 25, 26 and 27).
… The annual religious freedom report by the U.S. Department of State covering 2016/2017 noted with regards to access to education “Minority religious leaders stated discrimination against Christians, Hindus, Sikhs, and Ahmadis in admission to higher education institutions persisted. They reported their communities continued to face restrictions in securing admissions into colleges and universities”.
The UN Committee on the Elimination of Racial Discrimination stated in October 2016:
The Committee is concerned at violence against minorities, particularly Ahmadis, Hazaras and Dalits, and their de facto segregation in isolated areas without fair access to employment, health care, education and other basic services, which is exacerbated by growing violence against them.
The following Ahmadi-related incidents of concern were located by me and had been reported over 2017 and 2018 in Pakistan: (only those which were reported by more than one source have been included)
·In October 2017, in an address to the National Assembly, Captain Safdar Awan, the son-in-law of deposed PM Nawaz Sharif, demanded strict restrictions against Ahmadis, calling for complete curbs on Ahmadis in government, army, and private employment. He similarly questioned whether Ahmadis could be loyal to Pakistan.
·On 12 October 2017, 3 Ahmadis from a village 22 kilometres southwest of Lahore (Punjab province) were sentenced to death for blasphemy after tearing down posters that allegedly contained anti-Ahmadi slogans, though prosecutors argued the posters carried religious significance.
·On 20 October 2017, an anti-Ahmadi rally in Rabwah (Punjab Province) attracted 10,000 people where Ahmadis were denounced as "infidels" and "enemies of the state". After a row regarding barriers to Ahmadi's participation in elections, the Pakistani government took out ads reaffirming a religious oath requiring elected officials to vow that they do not follow anyone claiming to be a prophet after Mohammad and "nor do I belong to the Qadiani group", using a common derogatory term for Ahmadis.
·On 6 February 2018, the Azad Jammu and Kashmir Legislative Assembly (AJK-LA) and Kashmir Council approved an amendment declaring Ahmadis as non-Muslims ^ "Ahmadis are not Muslims, decides AJK". TheNews. 7 February 2018.
·On 8 March 2018, Islamabad's High Court launched a judgement against Ahmadi Muslims and minorities which resulted in four major incidents against Ahmadis in Pakistan. The High Court ordered all citizens applying for any type of government job to declare their religious beliefs. Western human rights organisations have stated that this order is an attack on persecuted minorities in Pakistan, as well as a method to intercept Ahmadi politicians.
·On 24 May 2018 a mob of several hundred people in Sialkot, (Punjab) attacked and demolished a historic and culturally significant 100-year-old Ahmadi mosque. Reports of collusion between the mob and local government officials were published, but police denied such accusations. A video on social media showed a crowd cheering on a local cleric who stated “I want to thank the Sialkot administration, the DPO (District Police Officer), DC (District Commissioner), the TMA (Town Municipal Corporation), from the bottom of my heart". The US, UK and international community strongly condemned this attack. "Mob demolishes mosque belonging to Ahmadi sect in Pakistan's Sialkot, no one injured – Firstpost".
·On 27 June 2018, in a hate crime linked to the March High Court judgement, an Ahmadi was killed in Nishtar Colony, Lahore. (Punjab province) "Five Ahmedis shot, injured in two incidents – Daily Times". Daily Times.
·On 9 July 2018, five Ahmadi Muslims in Karachi, Pakistan were shot in two incidents of hate crime. Three were injured and two were killed. In the first attack in Jaranwala (Punjab), an Ahmadi couple were attacked in their home, the wife was shot in the thigh by attackers. In the second attack in Karachi (Sindh Province), Mubeen Ahmed, 20, was killed by robbers entering his office, and two colleagues were injured. >
The country information discussed above and also as provided by the applicant reveals that the Ahmadi community in Pakistan faces ongoing moderate to high levels of official and social discrimination, and that sectarian violence against members of the community does occur in Pakistan. I have considered DFAT’s assessment, the country information as a whole, the applicant’s assertion that multiple unreported incidents of violence against Ahmadis are occurring ‘all the time’, and the specific Ahmadi related incidents of violence reported above. I note the acts of violence referred to above, but must consider them in the context of the population and general security situation of Pakistan as a whole, which can reasonably be described as troubled and susceptible to acts of generalised violence against various targets, including government and military forces. I am satisfied and accept DFAT’s assessment that overall, whilst incidents of targeted violence against Ahmadi community members can potentially occur throughout Pakistan, the risk of sectarian motivated violence to members of the Ahmadi community is generally low, particularly in the context of the country’s general security situation. I note too that all bar one of the recent acts of violence which were reported and noted above occurred outside Sindh, where the applicant resides. That incident in Sindh in July 2018 was in Karachi, a city of more than 15 million persons.
In relation to the risk of discrimination on the basis of faith, I accept that there is a high risk of an Ahmadi in Pakistan facing a moderate to high level of officially tolerated discrimination and vilification from both the government and society. I consider that the level of discrimination faced depends on factors such as location, establishment within communities and the social and financial status of individual Ahmadis.
The applicant fears that he will be killed, attacked, harassed and discriminated against by Anti-Ahmadi extremists and agents of the state (Government or police) if he returns to Pakistan. In relation to the discrimination and vilification, I do note the country information about the extent of state sanctioned discrimination against the Ahmadi community and entrenched country wide anti-Ahmadi sentiment and the potential for that to have a negative impact on Ahmadi’s capacity to subsist, and consider that, at its’ worst - (discrimination which restricts his capacity to find employment, practice his faith or contribute within his society) the harm the applicant fears, if experienced at that level, would constitute ‘serious harm’. I find that the harms that the applicant claims to fear (being killed and physically attacked, facing high level discrimination and vilification) each constitute serious harm. I find that the persecution feared by the applicant involves serious harm as required by s.5J(4).
The applicant fears being harmed because of his religion. I find that religion is the essential and significant reason for the persecution feared, and is therefore one of the reasons given in s.5J(1)(a).
Is the applicant’s fear of persecution well founded?
The applicant’s representative provided a written submission on 25 October 2018 along with the variety of documents listed above. The representative’s submission includes the following:
If he returns to Pakistan, he fears he will be imprisoned, tortured, shot and killed by the Pakistani government or anti-Ahmadi extremist groups, on the basis of his Ahmadi Muslim faith. He fears being oppressed as he will never be allowed to practice his religion without being arrested or persecuted. He also fears harm from other radical groups, who target persecute, oppress and kill practicing Ahmadi’s. He has been oppressed, persecuted, beaten, looted and protested against, for decades. His identity and faith are known to the community and he fears the persecution will continue.
The applicant’s evidence before me did not reflect that he ‘would never being allowed to practice his religion without being arrested or persecuted’. He expressed a fear of being targeted whilst practising his faith, referring to an attack on a mosque in Lahore where many were killed, saying that this made him and his family fearful of attending their own mosque. This attack occurred in 2010, and I note the applicant continued to attend mosque, on his own evidence, after that occurred. I also note that nothing in his oral evidence suggested that he feared being targeted and killed by the Pakistani government, though he referred to it in his written claims.
Bearing in mind the applicant’s presentation at hearing and the evidence he gave, and the consistency with which the written and verbal claims about his personal experiences have been maintained throughout the application and review process, I consider that the applicant was generally credible and was (with one exception) describing genuine experiences of harassment and discrimination he and his family had experienced over his life time in Golarchi. I have not accepted that he personally has received recent threats, stated to his family since he left the country, that he will be killed if he returns. I do accept that, over the thirty years that he and his family have lived in Golarchi, he has experienced discrimination in enrolling in education for his children, social vilification of himself and other family members, some physical attacks, instances of abuse written on their external walls and that on one occasion in 2012, a mob descended on his home, resulting in him being taken into protective custody and forced to pay a ‘fine’ for his release without charge. In the applicant’s written claims, he implies that this has happened on more than one occasion but based on his oral evidence, I consider that it only occurred on that one occasion in 2012. I also accept that the Ahmadi community members have sometimes been the target of angry protests in Golarchi. I do not accept that the applicant or members of his community have ever been prohibited or barred from practicing their faith in Golarchi, or that the applicant has ever been targeted for specific harm by police or the Pakistan government because of his faith.
The applicant did not agree with the information in DFAT’s report which reflected that “Violence against Ahmadis by militant groups has been relatively rare in recent years. As well as the general improvement in the security situation, particularly in Punjab province where the Ahmadi community is concentrated, the levels of violence faced by Ahmadis is somewhat mitigated by their relatively high socio-economic status, as well as the fact that they tend not to be able to be easily identified as Ahmadi from their appearance. However, violent attacks on Ahmadis can occur.” He gave an opinion that a number of killings have happened and knowledge and reporting of them is rarely allowed, meaning that more deaths are occurring than allowed by DFAT’s assessment. He asserted that the community lives in a state of consistently being harassed and intimidated. They are vulnerable to volatile situations which can quickly get out of hand, like the incident that occurred at his house. According to the applicant, the community lives in fear.

I have taken into account the applicant’s evidence that he has lived in southern Sindh for more than thirty years, and has farmed there as well as running a number of [properties] throughout that time. He told me that the family (including other family members) has more than [number] properties in the area. He gave evidence that he still owns multiple properties. His wife and children all still live in Golarchi. His children all attended school there, have achieved good results and some are continuing their education at university level. By his own evidence, the applicant has lived a relatively prosperous life, and the level of discrimination he has encountered has not impeded his capacity to succeed. I accept that the applicant has experienced some incidents of sectarian hate speech (writing on his walls/posters,) and one incident (the mob incident in 2012) where he was targeted by citizens claiming he had breached blasphemy laws because of his faith. I accept that he and his family members have also been the victim of bullying, discrimination and harassment on a number of occasions over the more than thirty years during which he and his family lived and worked in Sindh. He described various incidents of oppressive conduct, such as restrictions on his children attending some schools, physical bullying of himself and his children, and incidents in Punjab many years ago where his parent’s capacity to earn a living was interfered with. Apart from that one incident where the police held him after the mob threatened him, the applicant described no incidents where he was targeted by either the police or the government of Pakistan for harassment, harm or discrimination. I do not accept that he fears being killed or any other harm from agents of the Pakistani government. I also do not accept that he fears being or has ever been prevented from practising his faith or that he has ever been arrested or persecuted by the government or agents of the State because of his faith.
I also recognise, (as acknowledged by the applicant and his representative at hearing) that, compared to the volatility of Pakistan’s security situation for Ahmadis in other states, (and particularly Punjab), based on the applicant’s evidence, Golarchi might be reasonably considered to be one of the safer parts of the country when it comes to acts of militants and extremists targeting Ahmadis. I do not accept the applicant’s assertion that attacks and killings targeting Ahmadis (in Golarchi or elsewhere) are often ‘unreported’ and thus more significant a risk than referred to by DFAT. I consider that the applicant himself has provided a number of freely published reports about violence and discrimination against Ahmadis which do not support his assertion on this point.
I accept that the incident where a mob threatened his family due to false claims of blasphemy based on their faith did occur in 2012, that he was taken into custody (ostensibly for his own protection) and required to pay a ‘fine’ before he could be released without any charge. This incident is wholly consistent with the country information, which quite explicitly describes that, according to Pakistani law, Ahmadis are not ‘entitled’ to consider themselves Muslims and are prohibited from quoting the Quran. A belief that they were referring to the holy book (or worse, discarding quotes from the book) could plausibly enrage and be perceived by anti-Ahmadi community members as blasphemy. In relation to the applicant’s reports of abuse, bullying of his children at school, vilification and writing on the walls of their home at different times over many years and the plastering of pamphlets urging their death, I find that such incidents are plausible and consistent with the country information. I accept that the applicant has experienced such events a number of times over many years, including writing on his family home in the period since the applicant has been in Australia. The group referred to by the applicant as posting hate pamphlets (Khatme Nabuwaat) is renowned for their anti-Ahmadi hatred and urging that Ahmadi’s be killed as Infidels. In 2017 they were instrumental in successfully opposing a change to legislation and calling for the sacking of the Justice Minister and it has been noted that this success will no doubt have ‘emboldened’ them.
I observe that the assessment of a ‘real chance’ is a forward looking test, and concerned with now or the reasonably foreseeable future. As submitted by the applicant’s representative, the fact that a person has not been the subject of serious harm in the past does not necessarily mean that there is no chance that he will face a risk of being so in the future, should he return.
I have also taken into account the applicant’s own evidence that he and his family have lived in Golarchi since the 1980’s, and that he described ‘long periods of security and peace’ in that time where no ‘significant’ problems were encountered due to his faith. I observe that the applicant did not give any examples of restrictions on the practice of his faith or the freedom of his Ahmadi community to practice and function within the Golarchi community, a problem which is reported in the country information as being experienced by Ahmadis in some parts of Pakistan. He and his family have lived with and participated in their religion and community there with no specific incidents provided by him where societal or official discrimination impeded their capacity to practice their faith or their social progress. The applicant confirmed that the community has its own mosque, and that he and his family freely attend there. He described being [involved in] Ahmadi events. I consider that, based on his actual historical experience and taking into account his evidence overall and the country information, there is only a remote chance that the applicant will face the high level of institutional and societal discrimination and harassment he says he fears on return to Golarchi.
Section 5J(5) sets out a non-exhaustive list of the type and level of harm that will meet the serious harm test. The following are listed as instances of ‘serious harm’:
(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.
I am satisfied that the applicant has experienced and would continue to face some (officially sanctioned) discrimination and societal vilification if he was to return to Pakistan, as do all Ahmadi in Pakistan. However in the particular circumstances of this applicant’s long term accepted experience in Golarchi, I consider that the level of discrimination, harassment and vilification he has faced and would have a real chance of facing if he returns to his home is moderate, in the form of some social discrimination and vilification and sporadic incidents of abusive conduct and writing on external walls of his home, and possibly community anti-Ahmadi protests such as he described, from time to time. I note the incident where the mob descended on his home targeting his family specifically, but note that this was the only such incident in more than thirty years, and was resolved immediately by intervention by police and without any formal charges of blasphemy being laid against the applicant (though I acknowledged there was some cost to the applicant financially and emotionally).
I am not satisfied that the applicant has established that he faces a threat to his life or liberty, significant physical harassment or ill-treatment because of his faith on return to Pakistan. Based on his past experience, I find that he has not experienced significant economic hardship threatening his capacity to subsist, the denial of access to basic services which threaten his capacity to subsist, or denial of a capacity to earn a livelihood of any kind. After taking into account the applicant’s evidence, I find that the moderate level of discrimination, harassment and societal vilification that he has faced and that there is a real chance that he will face on return to Golarchi is not at a level which amounts to serious harm, even when considering such actions cumulatively.
I have carefully considered the applicant’s claim to fear that he will be assaulted and killed, threatened and harassed by anti-Ahmadi extremists if he returns to Pakistan. I have taken into account the incident in 2012 and the ‘lifetime’ of smaller acts of discrimination and harassment against him and his family due to their Ahmadi faith that he described. I have also considered the written abusive graffiti and the letter sent to his brother, and his own evidence before me that he was being truthful when giving evidence at a visitor visa review that he did not consider that he had faced ‘significant’ experiences of persecution because of his Ahmadi faith whilst living in Golarchi. I have also considered the country information, (including the relatively low number of acts of violence against Ahmadis reported during 2017 and 2018 as noted above, only one of which occurred in the applicant’s region of Pakistan (and even that incident was in the city of Karachi) and DFAT’s assessment that there is a low level of risk of violence for Ahmadis in Pakistan generally and a high level of official and moderate social discrimination.
Taking into account his evidence as a whole, and even allowing for the general experiences described in the country information for Ahmadis in other parts of Pakistan, I am not satisfied that there is a real chance that the applicant will be assaulted and killed or threatened with such harm if he returns to Golarchi. I am satisfied that he may be subjected to some harassment as part of the pattern he has experienced in the past, but I find that the level of such does not and would not amount to serious harm. I am not satisfied that the applicant has established that there is a real chance that he will be seriously harmed (assaulted, murdered, threatened or subjected to discrimination, vilification and harassment at a level which would amount to serious harm) either by anti-Ahmadi extremists or agents of the State of Pakistan if he was to return to Golarchi, where he has an established and supportive local community, family and significant property assets. Whilst he is likely to face some officially tolerated discrimination, harassment and societal vilification, I do not consider that, even when the applicant’s claims are considered cumulatively, there is a real chance that the applicant will suffer serious harm if he were to return to Pakistan and live where and how he has lived for many years. I consider that he could and would, in fact, return to his former home region, could continue to carry out his business and farming activities, and to practice and participate in his faith; and that he could do so without facing a real chance of serious harm, now or in the reasonably foreseeable future.
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.
The applicant did not raise any reason why he feared significant or other harm in Pakistan save for the reasons discussed above related to his fear of persecution because of his Ahmadi faith. He claims that he will be the subject of ongoing discrimination, vilification and harassment at a high level and which would impact on his capacity to subsist, and that he will be killed, assaulted and threatened by extremists because of his faith. I find that the harms he fears (if there was a real risk that he would suffer same) would amount to significant harm as described in s.5(1).
I have not accepted that there is a real chance that the applicant will face serious harm in Pakistan now or in the reasonably foreseeable future when considering the provisions of s.36(2)(a). I note that the same test applies in considering whether there is a ‘real risk’ of the applicant suffering significant harm. I refer to and rely on my discussion and findings above.
I do not consider that the facts of this case raise any risk of the applicant being tortured or subjected to the death penalty on his being returned to Pakistan. The substance of his claims is that he fears being arbitrarily deprived of his life, or subjected to cruel or inhuman or degrading treatment or punishment.
Cruel or inhuman treatment or punishment is defined in s.5(1) of the Act:
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 that does not include an act or omission;
(c)That is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR); or
(d)Arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR.
Degrading treatment or punishment is defined in s.5(1):
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 ICCPR, or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR.
I refer to my findings above in considering the real chance test. I am not satisfied that the applicant has established that there is a real risk that he will arbitrarily deprived of his life as a necessary and foreseeable consequence of him being returned to Pakistan. I have found that the applicant has established that he has experienced and would continue to face some entrenched discrimination, harassment and societal vilification if he was to return to Pakistan. However, as noted above, in the particular circumstances of this applicant’s long term and accepted experience in Golarchi, I consider that the level of discrimination, harassment and vilification he has faced and would be likely to face if he returns to his home is moderate, in the form of some social discrimination, harassment and vilification and sporadic incidents of hate speech and abusive writing on external walls of his home. I have considered the applicant’s evidence and my findings, and I do not consider that the level of discrimination, harassment and vilification which he will encounter in the future is properly considered as causing and intending to cause the applicant ‘severe’ pain or suffering, whether physical or mental, that will be intentionally inflicted on the applicant, or that they are at a level such that they cause him extreme humiliation. I acknowledge that the experiences of discrimination, vilification and harassment have caused and will cause the applicant some mental and physical distress and humiliation. I consider that the moderate discrimination, harassment and vilification faced by the applicant if he is returned to Pakistan would be at a level which he has faced throughout his life, and despite which he has prospered. Bearing in mind his own evidence, and taking into account his physical location in Pakistan, his established standing within his community and his lifetime experience, I am not satisfied that the level of pain or suffering the applicant will face (as he has in the past) is at a level which could be regarded as cruel or inhuman in nature, or as cruel or inhuman or degrading treatment or punishment causing or intended to cause severe pain or suffering or extreme humiliation, even when considered cumulatively.
I am not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm (including being arbitrarily deprived of his life or subjected to cruel or inhuman or degrading treatment or punishment), as a necessary and foreseeable consequence of him being returned to Pakistan.
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa). I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Anne Grant
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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 them 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.
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36Protection visas – criteria provided for by this Act
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(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.
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