1820874 (Refugee)

1820874 (Refugee) [2022] AATA 3923 (18 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Sanmati Verma (MARN: 1276020)
CASE NUMBER:  1820874
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Denis Dragovic
DATE:18 August 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(c) of the Migration Act.

Statement made on 18 August 2022 at 8:23pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – fear of harm from Taliban as relatives of members of village defence committee – grandfather killed, family members threatened and car shot at – returnee from the West – mental health – joint hearing with and cousins’ separation applications – country information – variable and uncertain security situation – young age, no direct involvement and passage of time – no well-founded fear of harm – not eligible as member of family unit of uncle but eligible as member of family unit of female cousin – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1), 5J, 36(2)(a), (aa), (b), (c), (2A), (2B), 65(1), 91WB
Migration Regulations 1994 (Cth), rr 1.03, 1.12(4)(d), Schedule 2
CASE
AIB16 v MIBP (2017) 254 FCR 457
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 2 July 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants claim to be citizens of Pakistan, and I accept this to be the case. The applicants, who are twins, applied for the visas on 23 October 2017. In brief, in their application they claimed to fear harm, if they were to return to Pakistan, from the Tehrik-e-Taliban Pakistan (TTP) based upon past threats and experiences.
The delegate refused to grant the visa based on credibility concerns, firstly arising from documentation provided pertaining to the claimed role of the applicants’ uncle (the uncle) in the Village Defence Committee (VDC) and secondly, because of general concerns regarding the evidence provided by the applicants’ family members.
The applicants appeared before the Tribunal on 7 and 8 April and 16 June 2022 in a joint hearing with three other applicants to give evidence and present arguments. The other applicants were their three cousins who each have single applications, [Mr A] (the cousin), [Master B] (the younger cousin) and [Ms C] (the female cousin). The Tribunal also received oral evidence from the applicant’s uncle and the parents of the four applicants participating in the joint hearing..
The applicant was represented in relation to the review.
Preceding the three hearing days, the applicant’s legal representative appeared before this Tribunal in a directions hearing on 28 February 2022 in which procedural matters were discussed, including the presence of non-disclosure certificates and how to approach the then forthcoming hearing, noting the ages of the applicants and their mental health status. With regards to the latter, it was agreed that regular breaks would be taken and that the hearing would be spread across what was initially anticipated to be two days, allowing for everyone to raise relevant issues. The third day of hearings was conducted by video from the applicants’ home and was shorter.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Preliminary matters
Mental health
The applicants submitted two psychologist’s reports, which found the following:
·The first named applicant has been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD), in addition to generalised anxiety. It is recommended that he see a paediatrician and continue with psychology sessions.
·The second named applicant has several symptoms associated with ADHD, though the lack of attention features more prominently than hyperactivity. He would benefit from ongoing psychological intervention with regards to his anxiety management.
As the applicants are children, and being aware of the challenges they have faced, I re-appraised myself of the Tribunal’s Guidelines on Vulnerable Persons including, but not limited to, paragraphs 66 to 86. In addition, I conducted a preliminary hearing with the applicant’s legal representative to discuss how to approach the combined hearings. During this discussion, it was agreed that the applicants would be provided regular breaks.
Non-disclosure certificates
Two non-disclosure certificates (NDC) were on the family members’ files. As the matters were heard as a joint hearing with evidence submitted in one being considered in all, I now turn my mind to the information behind those certificates.
Firstly, I find both certificates to be valid. Nevertheless, I initially discussed them both at the preliminary hearing with the representative.
The first NDC covered the Document Examination Unit’s analysis and findings on the [Township] Welfare Society card of the applicants’ father. The delegate’s decision included the findings of the document examiner, and as such the material behind the certificate is known to the applicant.
The second certificate covered Guardianship Policy advice for the three children who travelled to Australia without their parents. The issue of guardianship is not relevant to the matters before this Tribunal. This was discussed with the applicant’s legal representative without objection.
I invited the representative to provide any submissions regarding my tentative findings regarding the validity of the certificates and the decision to provide a general overview of the documents behind them at the first hearing. No submissions were received.
At the hearing, with the applicants present, I briefly covered the documents behind the certificates, providing the gist of the information in those documents.
CONSIDERATION OF Claims and evidence
For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
The applicants are [Age 2]-year-old boys. At the time they flew out of Pakistan they were [Age 1] years old. The feared harm the applicants rely upon arises from a time before they were born or when they were very young. As such, the uncle, who is their father’s brother, provided detailed written submissions and evidence at the hearing as did their cousins.
Evidence regarding the applicants and their family’s place of abode
The uncle explained at the hearing that he has four sisters, [Ms D], the mother of the other applicants in the joint hearing, and [Ms E], [Ms F] and [Ms G]. [Ms E] married in Swat District but moved to [Country 1] in the [Decade]. [Ms F] also married in Swat at the same time but is now living in [Country 2]. [Ms G] is also married and has been living in [Country 3] for more than [Number] years.
The uncle has two brothers, the applicants’ father, [Mr H], who remains in Pakistan and appeared as a witness in the proceedings, and [Mr I], who continues to live in Swat.
The uncle explained that the applicants have another cousin, [Ms J], a sibling of the three cousins appearing in the joint hearing, who remains in Pakistan. She is married and lives in Swat, in her husband’s house, which lies between [Location 1] and [Location 2].
The uncle said that he and his sister, [Ms D], along with [Mr H], grew up in [Location 3], which is about 10km away from [Location 1], a town in Swat District, Pakistan. They left [Location 3] in [Year 2] at which time the applicants were born. He recalled that they were all forced out of the Swat Valley due to the conflict and as a result they moved to Islamabad. When they returned, they found that their house had been destroyed. As a result, they all moved together into a house in [Township], a larger town in Swat District. According to his evidence, they initially rented a house and then, after a couple of years, around [Year 4] or [Year 5], they bought a house. The uncle said that the three families bought the house together. The three families are those of these applicants’ parents, the family of the uncle, and the cousins’ family. The house was described as being about [Number 1] squares (about [Number 2] square metres) spread across three storeys with [Number 3] bedrooms. He said that there are many similar houses in the area.
The same narration of events was provided in a 2022 statutory declaration by the younger cousin. In summary, he mentioned that the army gave orders for all of the families to leave their homes in April [Year 2]. As a result, they moved, choosing to go to Islamabad where they stayed for four months waiting for their home area to become safe. Then they heard reports that it was safe to return but found that their house had been destroyed. As the uncle had rented a house in [Township], they all moved there.
It is not in dispute that the family remained in [Township] until 2017.
The younger cousin said that in 2017 he and other members of the family left [Township] and moved to Islamabad for a few weeks before leaving Pakistan for Australia in late June 2017.
There was some confusion over the location of the applicants’ family subsequent to the applicants’ departure for Australia. At first, the uncle stated that the ‘family’ are now back in Swat living in their house. He claimed that he only learned about their return to the house in Swat the day before the first day of the hearing.
On the second day of hearings, the cousin gave evidence that he had spoken to father of the applicants the night before and asked when he had returned to Swat. He said that the response was that he didn’t want to speak about it because of the security situation.
In a post hearing submission, it was submitted that the applicants’ father had communicated to the uncle that he had only been in Swat for one day and that he was passing through to collect his belongings as he was planning to move to [Country 1]. It was claimed that he had been interviewed for a visa and was awaiting an outcome. Evidence was provided of the applicants’ uncle being invited to an interview in October 2021.
The cousin said that he spoke with his family regularly using WhatsApp video but that there would always be a non-descript wall behind them. I asked if he had ever enquired about their location, to which he responded that he would sometimes, but they would ignore the question. He said that the night preceding the hearing, when the children talked to their parents together, they were told that they weren’t informed about the parents’ return to Swat so as not to upset them. I note that ‘parents’ was communicated in the plural.
The female cousin also added that she didn’t know where their parents were and that when they would ask, they would say that they are in different places. She said that lately they didn’t tell them anything when they asked.
In post hearing submissions, rental agreements were provided that show a rental agreement for a property Rawalpindi from 18 June 2018 to 17 June 2019. Another shows a rental agreement from Karachi with a tenancy running from 1 August 2019 to 1 July 2020. Another shows a one-year lease in Islamabad from 28 August 2020 to 27 August 2021.
At the third day of the hearing, the parents of the applicants appeared by video to give evidence regarding their movements. When I asked for them to list their places of residence since 2017, they provided the following: Karachi, Lahore, Islamabad, [Town] Rawalpindi, Karachi, [Town] Rawalpindi, Islamabad, Lahore and Islamabad.
This did not align with the rental agreements and as such I asked them again, but this time to provide it backwards, most recent first. This recollection aligned with the rental agreements: Islamabad, Karachi, Rawalpindi, Lahore and Islamabad; then it was added that in total they were twice in Karachi, once in Lahore and once in Rawalpindi.
The parents initially said that they can’t stay in the same place and have to move because of the fears they harbour. I asked why they keep coming back to the same cities, particularly Islamabad. [Mr H] responded that when they feel unsafe in one place they leave. I asked the same question again. He again did not answer, but instead said that they can’t go to Swat. I asked a third time. [Mr H] said they prefer Islamabad, as it’s better for them. Other cities have a lot of Pashtuns and they are known to them, he claimed.
I have serious reservations about the claim that the children, but particularly the uncle, did not know where the parents and other family members were living over the past five years. I find it implausible that the uncle, who has taken care of his sister’s and brother’s children, would not discuss with them where they are living.
While the information before me is concerning regarding the parents’ movements since 2017, I give the applicants the benefit of the doubt and accept that they have not lived in Swat for the period covered by the lease agreements. I also accept that they have not permanently returned to Swat for the period subsequent to the lease agreement. With regards to why they were moving and whether it is for reasons arising from their claimed fears, I consider this holistically together with the other evidence provided below.
Imputed political opinion arising from past events and relatives’ activities
According to the uncle, the applicants’ grandfather (the grandfather) was shot and killed by the Taliban in [Year 1]. He was affiliated with the Awami National Party (ANP) and had joined a local defence committee. The uncle’s decision record from his successful appeal for a protection visa at the then Refugee Review Tribunal was provided by the applicant’s lawyer as part of a submission to this Tribunal.
In the uncle’s decision, the following details about the grandfather’s death were provided. The uncle was approached by a group of Taliban in March [Year 1] while he was heading home from the [workplace] where he [worked]. They asked him to join them and confronted him as to why he supported the ANP. Upon returning home the uncle told his father about it and they went to the police together to report the incident. The police told them not to lodge a report as the Taliban would harm them. The grandfather persisted by contacting a high-ranking official who responded that he’d contact the police to investigate the matter. Two days later the Taliban knocked on his door and shot and killed the grandfather.
The uncle claimed that he received a threatening call in February [Year 3] demanding one and a half million rupees. He said that he was specifically accused of pointing out the homes of the Taliban and for opposing them. He refused to pay and instead came to Australia in April [Year 3]. At that time he said that they were living in a rented house in [Township]. He said that no one in the family was harmed or threatened subsequently nor did the Taliban follow up with other families to get the money. Because the uncle left Pakistan the cousin was asked to join the Peace Committee.
The uncle’s statutory declaration from [Year 3], which was provided to the Tribunal, also identifies him as being an active member of the local ANP. He claims to have been a member of the Pukhtoon Students Federation, a body affiliated with the ANP. He claims to have attended meetings and assisted the grandfather.
The cousin wrote in his statutory declaration of 2022 that the uncle was the most politically active in their family and used to be very active in the ANP.
The cousin said that he is a supporter of Wakar Ahmed Khan, an ANP Member of the National Assembly, but that he is not a party member of the ANP.
I accept the descriptions provided above including that the grandfather was killed by the Taliban and that the uncle was threatened with kidnap for the reason that the evidence aligns with a particularly brutal period in western Pakistan’s history, which is described further below. I also accept that both the uncle and grandfather were involved with the ANP as described. I also accept that the cousin is not a member of the ANP but is a non-active supporter of an ANP member of parliament.
Relatives’ involvement with the VDC/Peace Committee
Between [Year 2] and [Year 3] the uncle was the family’s sole secondee to the Peace Committee. Following the uncle’s departure in [Year 3] and there being a perceived obligation for the family to find a replacement, the cousin joined the local Peace Committee, alongside his father and [Mr H]. These men remained members of the Peace Committee through to 2017.

The cousin described his work as beginning with a roster that was distributed once a week. He submitted that:
We lived in an area called [Sector]. There were approximately 180 houses in our Sector. The VDC members were only from selected houses-not every house had members who would serve in the VDC...Every week, my father, uncle and I would perform armed night patrols around [Sector]…Several times during my patrols, I heard firing and had to hide. Thankfully each time when I listened closely, it turned out that the firing was from the neighbouring village. Whenever I would hear firing I would contact the Army and let them figure out the direction that it was coming from.
The rotation involved eight people working together on a shift beginning at 9pm and running through to 5am.
The younger cousin explained that there were six sectors in [Township] and their family had contributed one person to the nightly patrols. These patrols consisted of eight men in total.
Throughout the six-year period the cousin said that they did not encounter the Taliban directly. He said that he did not receive any threats throughout the period.
The cousin listed [Mr K] and [Mr L] as Peace Committee members from his region who he remembered being killed during his time on the Committee. The younger cousin noted that the latter was a Peace Committee member in another township in Swat District near them named [Location 4].
I accept that the three men were members of the [Township] VDC from [Year 3] through to 2017 and that as described above, they did not encounter the Taliban through this period.
In addition to being members of the Peace Committee, the same three family members were also members of the [Township] Welfare Society. The society is described as a local council that brings together members of the community to seek their opinion on disputes and local issues and make representations on these matters to the government.
Threatening calls in [Year 6]
In the joint hearing, the cousin said that in [Year 6] his uncle, [Mr H] (the applicants’ father), received a threatening phone call. The caller is claimed to have said that he was from the Taliban and that he knew about their family and their ongoing work with the Peace Committee. He is claimed to have added that he knew that the uncle was wanted by the Taliban and had escaped to Australia. It is claimed that he warned the applicants’ father to leave the Peace Committee or he would face the same consequences of another Peace Committee member from [Township], who had been killed. Following this, the uncle tried to get the extended family to Australia but was refused visas.
In the statutory declarations submitted by the applicants’ family members detail how, a few months later, the father of the cousins received a call. The statutory declaration of the younger cousin continues the narrative:
This time they informed him that they had killed [Mr K], who was another peace Committee member in [Location 1]. I remember hearing the adults in our family talking about this. I remember that they looked scared. My aunty and mother were crying. I remember how scared I was at the time. I remember thinking, if the adults are scared, then it means they can’t protect us. My mother was so scared that she contacted my uncle [Mr M] in Australia. She hoped that he might be able to do something at least bring some of us to Australia so that we could be safe. I don’t know how many applications he made in total.
At the hearing the uncle said that he received a call from his sister, the mother of the cousins, who told him that her husband had received a threatening call from the Taliban and that she wanted to flee and so the uncle tried to get her out of Pakistan. The uncle said at the hearing that other VDC members had been killed and that the threat included mention of another VDC member who was known to have been killed.
The uncle said that he first tried to get his sister out as he said that it was hard to get visas for the males.
The cousin said that he remembered being informed that his father had received the threatening call from the Taliban and that it included mentioning the death of [Mr L]. I note in the statutory declarations that it was [Mr K] who was named in the call to the applicant’s father and that [Mr L] was mentioned in the call to applicants’ father. I find this inconsistency concerning but nevertheless I accept that it may have arisen from confusion or the passage of time and as such place little weight on it. The cousin said that there was nothing else that they could do other than continue with the Peace Committees and look after themselves.
Despite receiving these threats, in [Year 6] the three family members continued to work with the Peace Committees through to 2017. They reasoned that others were risking their lives and that were they to stop the military would become suspicious of them.
I accept that the cousin’s father and applicants’ father received these threats as described above as they align with country information, namely that members of VDCs are threatened. I also accept that they continued to work as peace committee members despite receiving those threats.
The 2017 [Bridge] incident
At the hearing the cousin described an incident in May 2017 which occurred near [a] Bridge. He said that he was in a car heading home from [Location 5], together with the applicants and his two siblings, along with his father and the applicants’ father, who was driving. Just before crossing over [the] Bridge, in an area close to the entrance to [Township] there was a ‘very large’ army checkpoint. He said that the army was checking each car. When their turn came the adults gave their IDs.
The cousin said that the soldiers at the checkpoint let them pass and they eventually entered the road to the township. According to the cousin, this was a bushy area. He said that he saw two people on the right side of the road carrying guns and that he said to the applicants’ father to speed up and keep driving. He said that the two men tried to come to the road pointing their guns. As they passed the gunmen, he said that they started to shoot. He believes that their intention was to stop them and kill them. He believes that they were Taliban as they were wearing clothes that resembled those worn by Taliban, including the traditional Taliban hat, and that they were dirty looking and had beards. I asked if they could be criminals based on that description. He said no, as he has seen Taliban and how they look so he knew that they were Taliban.
According to the cousin, none of the bullets hit their car. The cousin said that this was because they were travelling very fast. I put to the applicants that the attackers would have had time to position themselves and shoot considering that the cousin had enough time to spot them, tell the applicants’ father to speed up, and for him to speed up and then pass them, before they started to shoot, and yet no bullet hit them. The cousin said that they were ‘some distance’ from them on the side of the road but this claim is contradicted by the cousin’s statement in his statutory declaration where it is written ‘But that day from a distance we saw that the road was blocked by men standing on the road’ (italics added).
The cousin said that there were no other cars on the road at the time.
We referred to Google Maps. The two male cousins of the applicants described on the map where the incident occurred, showing a road cutting through farm land with some houses between the two urban areas of [Location 6] and [Location 1]. This particular stretch of road runs for less than 1km.
I accept that the applicants witnessed gunmen by the side of the road and that shots were fired at some stage after they had passed them. I accept that none of the bullets hit their vehicle.
The cousin said that when they got home, they locked the doors and were very afraid. They believe that it was a planned attack because the information concerning where they were going was given to the army at the checkpoint and they then gave it to the Taliban. I put to them that it could have been a random attack. The cousin rebutted this by saying that two days later they received a threatening letter.
The cousin said that he was the one who picked up the letter and saw that it was written in Pashto with TTP letterhead. The letter said that they were lucky to have survived and it mentioned that they knew which schools the children went to and that they would be kidnapped.
I pressed the applicants on this, asking why the Taliban would leave a letter showing that they knew where the children were and yet set up an ambush point between two urban areas and lay in wait. I said that if they wanted to kill them, they could have done so at the front steps of their house where the letter was delivered. I asked why the Taliban wouldn’t just come at night and kill them all (an example of such a tactic was provided in country information by the applicants’ legal representative)[1]. The cousin said that their home is surrounded by other homes so others would know that the Taliban had killed them, and so they wouldn’t do that. I put to the applicants that it had been said that the threat was to kidnap the children from their schools, which is also an area with a lot of people. The cousin said that they would have their own plans, indicating that he didn’t know why events had transpired as they had. I again pressed that the Taliban have been known to kill people in their homes. He said that during [Year 2] there were not many army personnel around and so they couldn’t all be protected and so it was true, but later on they were stopping Taliban from going into their homes at night with more army checkpoints. I note that this does not align with the above mentioned article from 2020, submitted by the applicants’ legal representative.
[1] Page 3 of the post hearing submissions, see footnote 8 (DAWN, ‘Two terrorists among four target killers arrested in Swat,’ 30 April 2020 >
I note that in the younger cousin’s statutory declaration he writes, ‘The letter said, you escaped this time, but we will find you. They said we are going to take your sons, [Mr B, the younger cousin], [the first applicant] and [the second applicant], and then it listed their school names.’ This reinforces my concern. It does not make sense that they would write what was paraphrased or summarised by younger cousin as ‘we will find you’ when they delivered the letter to their doorstep. If the letter was to be believed, the Taliban clearly knew where they lived, and they knew where the children went to school.
I asked if anyone had a copy of the letter. They said that they had destroyed it.
I have doubts about the existence of this letter. It is difficult to comprehend that a letter would refer to finding the family although they already knew where they lived, or that it refers to an intent to kidnap children when they could kidnap them without warning, especially when, only two days earlier, they had apparently shown no qualms in attempting to assassinate all of them. Furthermore, in the cousin’s statement he wrote that the letter arrived two days after the incident. This adds to my concern. For two days the family remained in their home and yet nothing happened. No one attacked their home. No one lay in ambush for them when they would eventually leave their home. The only action after a claimed targeted attack on them was the delivery of a strangely worded letter.
I find that there was no letter, based upon the concerns I have raised above. For this reason, I find that it is speculative to assign the identity of Taliban to the gunmen by the side of the road, despite the clothes appearing similar in nature. I also do not accept that they were targeted by these men who had guns. I find that this was a random incident, possibly opportunistic, or possibly the shots fired were intentionally wide of the mark or into the air. It is impossible at this stage to determine the intentions of those firing the weapons but based upon the circumstances, I am satisfied that their actions were not targeting the applicants.
I find that the mental health concerns of the witnesses who gave evidence play no role in potentially explaining the facets of the claims that led to this finding.
It is claimed that based upon this incident and fear that the authorities were involved, they packed their bags and moved to Islamabad.
I asked if anyone received any further threats following this incident. The female cousin mentioned the 2018 call discussed below. Others did not mention any other threats. I note that at the start of the hearing the cousin said that he had received a threatening call while he was in Lahore in 2017. He did not mention this when asked later. I note that there is no mention of a 2017 threatening call in any of the written statutory declaration submissions by the cousin. I raised this at the third day of the hearing and the cousin said that a few months after the [Bridge] incidents he received a phone call. He stated that he apologised if it was not in the written submissions. He said that they told him that wherever they go they would be captured, tortured and killed. He said that he cancelled his phone number after the call, and that he mentioned this call to his parents, and after this they felt unsafe.
Further threats in 2018
The applicants arrived in Australia in June 2017.
The female cousin provided oral evidence that in April 2018, following the applicants’ departure for Australia, her father received a phone call from the Taliban telling him they knew that, despite the father sending his children abroad, they were aware that a girl remained in the house. She claims that they told her father that they would not spare the girl and that they would kill her wherever they saw her. She said that this threat was referring to her and not her sister, who was living with her husband by that stage. Following this, she too left Pakistan, [in] November 2018.
The female cousin said that she was staying in Rawalpindi before she left Pakistan. I asked why their father hadn’t changed his phone number after getting a number of threatening phone calls. She said that he had changed his number but still received the calls.
I do not accept that the cousins’ father received any threatening phone calls. At this stage he was no longer on the VDC. According to the witnesses they left Swat in 2017 and as such he was not even in the vicinity of those who knew him for about a year. The last threat that I accept took place occurred in [Year 6], and there is little reason to explain a three-year silence, especially following his departure from Swat.
Consideration of claims
The cousin stated in his statutory declaration dated 1 April 2022 that, ‘The family of my father, [Mr N ], and our uncle [Mr H] [father of the applicants], all lived together in the same household. We lived together in township Swat. This meant that whatever threat we faced was experienced by our families as a whole. We are all subject to the same threat together.’ In addition, the younger cousin, in his statutory declaration of 2022, writes that the statement he makes is also on behalf of his younger cousins and notes that ‘we all face the same thing on return to Swat KPK.’
The applicants had agreed to a joint hearing and at the beginning of the hearing I had explained that evidence provided by one applicant would be considered as evidence in each of the other applicants’ cases. Throughout the hearing the applicants were asked whether they wanted to add any evidence to that provided by the previous member of their family to respond.
For these reasons I have drawn from the claims made by all of the family members where relevant and considered how they apply to each applicant.
Prior to considering the specific claims of harm I will look at the security situation in Swat District. The reason for turning to this consideration at this early stage is that a perilous security environment amplifies certain risks, including many of the type the applicants fear, whereas a more secure environment mitigates them. When there is chaos that accompanies conflict, as there was during the height of violence in 2009 and 2010, targeted killings, retribution, political assassination and other forms of violence could and did occur with virtual impunity. With greater security these events are constrained if not eliminated. To undertake this assessment of the security environment, I shared with the applicants information including the number of terrorist incidents and civilian deaths, and discussed qualitative assessments. I also considered country information presented by the applicant’s legal representative.
Country information
I presented to the applicants a graph from the Carnegie Endowment for International Peace, which consolidates the conflict related fatalities in Pakistan from three different databases. The graph shows a peak in deaths at around 12,000 per year in 2009, reducing to about 6,000 per year from 2011 through to 2014, and then dropping to under 1,000 and in the few hundreds by 2019. I put to the joint hearing that the security situation when the uncle was living in Pakistan was at its worst and continued to be bad for a number years, but the current rate of fatalities would suggest that the security situation has substantially improved. [Mr A, the cousin] responded that the situation is not good, and that this graph didn’t represent the most recent large incident of a blast in Peshawar that killed a lot of people. [Mr A, the cousin] was referring to the 4 March 2022 blast in a Shia mosque killing 56 people.[2]
[2] >
I acknowledge that there has been an uptick in incidents in the past two years, noting the security situation in Swat District as an example. I put to the joint hearing that country information shows that whereas, at the peak of the violence in 2008 and 2009 there were, respectively, 402 and 298 civilians killed, this petered down to zero in 2018, but then in 2019 and 2020 there was one civilian death in each year and two civilian deaths in each of the two subsequent years.[3]
[3] South Asia Terrorism Portal, >
The cousin responded that there are a lot of people who have been killed and they are not included in the data. He said that poor people can’t afford to go to the media and so there is no media to record the death. Only famous cases get coverage. He said that there is no record of how many people live in a house, from which he inferred that when there is an incident it is not known how many people may have died.
The uncle added that no one knows what the future holds.
I put to the applicants that the Pakistan government is undertaking active military operations against terrorist groups:
4.1.1 Military/Security Operations: Compared to 47 in the year before, security forces and law enforcement agencies conducted 63 anti-militant operational strikes in 2021 in 22 districts and regions of Pakistan. These actions killed a total of 197 people, as compared to 146 in 2020, and injured 13 others. Among those 197 killed were 177 militants, 17 Pakistan Army soldiers and three FC men.[4]
[4] Pak Institute for Peace Studies, ‘Pakistan Security Report 2021’, PIPS Research Journal Conflict Studies, available at >
The cousin responded that he doesn’t believe that the military are undertaking operations.
I added that the same information regarding military operations suggests that Swat District was not one that warranted a security operation.[5]
[5] Ibid
In a submission following the final day of the hearing, the legal representative provided two articles, one an opinion piece about the merits of peace talks with the Taliban and the other a news piece on the influx of Taliban into Swat and several incidents with local police. I acknowledge that the Taliban have a presence once again in the rural areas of Swat District as described in this article.

The cousin responded that there are a lot of Taliban there; they move from one place to another and come from the mountains. He said that he is not sure how many members of the security forces die; they don’t tell that to the local community. He claims that the army and Taliban are all together.
I put to the applicants that ‘the TTP has moved away from targeting civilians – which was undermining its popular support – to focus on attacks against the Pakistani military and other government representatives.’[6] This view of the situation from DFAT is supported by another report that looks at the TTP code of conduct, including the overall strategy regarding target selection:
TTP’s code of conduct, released on its website in September 2018, is largely directed towards its members.
…
The section ‘On Targets’ identifies broad categories of legitimate targets and those that members are prohibited from attacking. The guidelines in this section illustrate another attempt to unify the factions within TTP by providing a standardized target list, as well as resolving the controversy surrounding the permissibility of targeting children and educational institutions.
…
State institutions including the military, police, judiciary, non-government organisations (NGOs) and institutions that promote ‘obscenity’ and civilian government are identified by the TTP as enemies, and are consequently considered legitimate targets for attacks.’
…
In what seems to be an effort to rebrand itself, and especially stop its association with indiscriminate attacks, TTP distinguishes between hard and soft targets and affirms that educational institutions will not be attacked. In addition, the document specifies that religious seminaries, public gatherings, and markets will be avoided as targets to prevent mass casualties and loss of civilian life. Again, any disobedience in this regard warrants punishment for those held responsible. This explicit policy seems to be a direct outcome of the backlash TTP received after its attacks on Army Public School and the Bacha Khan University.[7]
[6] DFAT Country Information Report: Pakistan, 25 January 2022 at 2.40
[7] 'Fixing the Cracks in the Pakistani Taliban's Foundation: TTP's Leadership Return to the Mehsud Tribe', Amira Jadoon and Sara Mahmood, CTC SENTINEL, 01 December 2018, 20210831103242
The cousin said that they are on the target list and live close to Afghanistan. He said that if the Taliban crossed the mountains it would be bad for them.
The uncle said that the situation is not permanent and could change at any time.
I put to the applicants that since the 2009 military operations in Swat, when two million people were displaced, including the applicants and their families, independent reporting suggests that ‘Most of them have returned to their homes.’[8]
[8] Islamuddin Sajid, ‘Swat city center: From bloody square to business hub’, AA, 23 May 2019, I asked the applicants what is preventing them from returning. The cousin said, that ‘if you want to take a risk and put your life in doubt you can return’. He said that they don’t want to take that risk.
101. The above information was discussed at the hearing with the applicants. In addition, the applicants’ legal representative provided submissions.
102. Country information submitted by the representative included a section from the DFAT Country Information Report for Pakistan of January 2022 (the DFAT report):
TTP attacks within Pakistan have increased since the Taliban seized power in Afghanistan in August 2021. These attacks have occurred mostly in Khyber Pakhtunkhwa and Balochistan, but also Punjab and Sindh. After several years of declining influence under former leader Maulana Fazlullah, the TTP began regrouping in 2020 under the leadership of Noor Wali Mehsud. Since then, several splinter groups have repledged allegiance. Under the leadership of Mehsud, the TTP has moved away from targeting civilians – which was undermining its popular support – to focus on attacks against the Pakistani military and other government representatives … Besides conducting terrorist attacks, the TTP acts as an ‘alternative state’ in some parts of Pakistan, collecting taxes and customs duties, and acting as police and courts. Areas of particular TTP influence include (but may not be limited to) Waziristan and surrounding districts, Tank, Quetta, Kuchlak Bypass, Pashtun Abad, Ishaq Abad, Farooqia Town and parts of Karachi.
103. From another source, the applicants’ lawyer submitted in their pre-hearing submission that, ‘In 2018 and 2019, it was reported that the networks of the TTP were still active either in Afghanistan or in districts of KP such as Tank, Dera Ismael Khan, North and South Waziristan.’ I note that Swat is not included in this list.
104. Looking into the future, the pre-hearing submission included a view by Fahad Nabeel in a Pakistan Institute for Peace Studies report on the main trends evidenced in 2020 and 2021: ‘Moreover, deterioration of security situation in Afghanistan will continue to provide TTP with an opportunity to increase its activities in the region. Pakistani authorities are also fearful of TTP militants entering the country under the disguise of refugees in near future.’
105. In assessing the security situation, it is important to distinguish between the security situation in Khyber Pakhtunkhwa (KP) in general and Swat District specifically. Referencing statistics of incidents in KP is less valuable when alternative figures for Swat District are available.
106. Overall, it is widely acknowledged that the security situation in 2009 to 2011 was perilous. The question before me is to consider what the future holds and how such an environment will impact upon the fears of harm the applicants have. While I acknowledge that there has been an uptick of violence over the past two years, it has come from a very low base, it is location specific, and it is more targeted than the random violence of the past. Referring to percentage increases in violence over the past two years or percentage decreases since 2009 is not useful. Specifically, for Swat, the number of civilian deaths is low, indicating improved security. There is some evidence of recent arrivals of the Taliban in the rural areas of Swat. I note that reporting speaks of a return to business as normal in the townships. While I acknowledge the arguments put to the Tribunal including, but not limited to, that not all attacks and deaths are reported or that the future is difficult to foresee, overall, I find that the security situation in Swat District is relatively safe and that this influences the applicants’ fears in that it provides a less forgiving environment for potential persecutors to harm them. In making this finding I acknowledge and take into consideration the Taliban’s success in neighbouring Afghanistan and that this has led to a degree of uncertainty for the situation in Pakistan, including diminishing the value of using the past to inform the future.
Harm arising from being associated with family members who are/were ANP supporters in Swat Valley
107. The applicants’ lawyer in her pre-hearing submission provided a summary of the reasons for the possibility of harm arising from the family’s association with the ANP:
the ANP is a Pashtun nationalist party, which seeks to foreground the interests of the ethnic residents of Pakistan’s long-neglected ‘tribal’ regions. In 2008, the ANP formed provincial government in Swat Valley, having campaigned to end militancy and seek military intervention in the region. Later that year, an ANP delegation from Swat Valley met with President Zardari to call for military intervention in the region. In subsequent years, prominent ANP office-bearers and members in Swat fell target to Taliban sympathisers, in retribution for the military operation. ANP membership or association thus carries a unique anti-militant and pro-military valence in Swat Valley.
108. I accept this historical and political analysis. I also accept the DFAT country information referenced in the pre-hearing submission, namely that, ‘ANP members face a moderate risk of terrorist violence based on the ANP’s opposition to the TTP. The risk may be higher for ANP leaders.’[9]
[9] DFAT Country Information Report: Pakistan, 25 January 2022 at 3.75
109. The uncle joined the student Pukhtoon Students Federation, a body affiliated with the ANP, while in college. He said that he held ANP membership since a young age but that he didn’t do anything political other than be a member. He said that no other family members of his generation were involved with then ANP.
110. The uncle believes that this involvement could have some impact on the children. The cousin stated that as soon as someone is affiliated with the ANP they are targeted. The younger cousin agreed, saying that there are a lot of cases where ANP members’ families are targeted.
111. The uncle recalled that one night the Taliban came to the house of a cousin of someone who was in the ANP and brutally killed him. He believes that this was because he was related to the ANP member. When pressed as to why he thinks that it is for that reason, he said that he saw articles in a newspaper saying that it was. No articles were provided in post-hearing submissions to support this view.
112. The country information on the risk to ANP members is clear and the background provided by the legal representative provides a logical basis from which to understand the existence of the animosity. Having said that, the applicants are not members of the ANP and never were. Their grandfather and uncle’s involvement has been variously described as being active through to simply being a member, but even accepting that the uncle was an active member, his involvement was over a decade ago. For six years of that decade the applicants continued to live in Swat and were not harmed or threatened in such a way that could be linked to their extended family’s involvement with the ANP.
113. While I have accepted that the applicants’ cousin has sympathies with the ANP, he has not shown any inclination towards becoming active or joining as a member while in Pakistan or in Australia.
114. I find that neither the family’s past association with the ANP nor an extended family member’s affinity with an individual ANP member of parliament will lead to the applicants facing a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of return.
Being related to a VDC/Peace Committee member and whether they would, into the reasonably foreseeable future, be joining a VDC/Peace Committee
115. The applicants’ lawyer provided country information on what a VDC was. Extracted from the DFAT report at [3.83], the description shows a range of pathways through which the various committees throughout Pakistan were established and the diverse range of powers they held. The extract provided notes that peace committees and their families ‘were targeted for violence by militant groups’.
116. The applicants’ legal representative presented a collection of incidents involving VDCs in the post-hearing submission. I acknowledge that VDC members in Swat District and in areas close to Swat in neighbouring Tehsil Matta have experienced attacks over the past three years. From the data provided by the representative I note that some are high profile individuals and have profiles dissimilar to the applicants’ profiles, and further their deaths do not indicate any association with the VDC (Firoz Shah, Javeedullah Khan, Emran Khan). Nevertheless, one or two others, depending upon how the reporting is understood, could be similar to the profile of the applicants. (The sixth reference is to an individual who is reported as being alive.)
117. The applicants’ concern regarding VDCs encompasses both their family’s past involvement with them and the risks associated with joining the VDC if they were to return Swat.
118. I put to the applicants that their cousin had been a member of the Peace Committee for six years and hadn’t encountered the Taliban and hadn’t had any problems and so I asked why they thought that they would face problems moving forward. The younger cousin said that he was attacked once in the Ayoub Bridge incident and received a letter containing a kidnap threat and so he feared that the same would happen again.
119. In considering the risks arising from both the past and future, I place considerable weight on the cousin’s personal experience of being a VDC member for six years, during which time he did not experience an encounter with the Taliban, nor was he threatened for his involvement with the VDC. I also note that the security situation has improved demonstrably from this previous period. While I acknowledge the DFAT report, I note that it is generic, covering all of Pakistan’s VDCs, but as noted above, there are considerable variations in the security situation in different districts. I find that the applicants do not face a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of return for reasons arising from their family members’ past involvement with the VDC or their family members’ possible future involvement.
120. In turning my mind to whether the applicants would face a real chance of serious harm or a real risk of significant harm from their possible involvement in VDCs, I note that they are [Age 2] years old. Their younger cousin left Pakistan at the age of [Age 3] and was not involved and their elder cousin became involved at the age of [Age 4]. It will be several years from now that the applicants may be considered of an age that they can carry a weapon, and I find that this is beyond the purview of the reasonably foreseeable future. This issue was raised at the hearing and no objections or submissions were received relating to it. Similarly, I find that the consideration of the necessary and foreseeable consequences of removal do not extend that far in advance. As such, I have not considered further issues arising from their future possible involvement in VDCs.
Returnee from the West to Swat Valley
121. I put to the applicants country information from DFAT regarding the conditions facing returnees:
returnees to Pakistan do not face a significant risk of societal violence or discrimination purely as a result of their attempt to migrate.[10]
[10] DFAT Country Information Report: Pakistan, 25 January 2022 at 5.31
122. The uncle responded that the statement is general and that each individual is different. He claimed that for the simple reason of returning from Australia, the applicants will be at risk as people returning face poverty, but it will also be assumed that ‘you have money even if you don’t’.
123. With regards to the fear of kidnapping, I put to them that their family have money anyway. I note that they own a substantial home in [Township] and their submissions indicate the ownership of two other properties. They described themselves as middle class. Based upon this scenario, if wealth was a motivator for kidnappings, then the risk would exist regardless of being a returnee from the West. When this was put to the applicants, the uncle responded that he doesn’t know and he can’t explain it.
124. I added further that there is no information on returnees being kidnapped, which is indicative of this not being an occurrence.[11] The uncle responded that Pakistan doesn’t want to disclose the reality.
[11] Searched DFAT reports, Google, CISNET
125. Based upon there being no information to suggest that being returnees enhanced the risk the applicants would face of kidnappings and given that the applicants’ extended family had not faced any threats or experiences of kidnapping (noting the uncle’s kidnapping threat was made by the Taliban) during a time when the security situation was notably worse, I find that the applicants do not face a real chance of serious harm into the reasonably foreseeable future on this basis, nor do they face a real risk of significant harm as a necessary and foreseeable consequence of return.
Mental health
126. I note that the first named applicant’s psychologist’s report explains that the first named applicant can be emotional at times when he speaks with his biological parents over the telephone and that he has found it hard to adapt to living in Australia.
127. I note that both have been diagnosed as having ADHD and anxiety to varying degrees.
128. I accept that the options for the treatment of mental health issues in Pakistan are limited:
Mental health disorders are reportedly common in Pakistan, and options for treatment are limited. According to a 2020 article in the medical journal The Lancet, Pakistan has fewer than 500 psychiatrists serving a population of 200 million. More than 90 per cent of people with common mental health disorders go untreated.[12]
[12] DFAT Country Information Report: Pakistan, 25 January 2022 at 2.14
1. But I also note that there needs to be a refugee nexus, which includes a specific persecutor, for any harm that may arise to trigger Australia’s protection obligations under s 36(2)(a). Similarly, when considering s 36(2)(aa) there needs to be an intentionality behind some actions to cause significant harm. In the applicants’ case there is no evidence to suggest that there is either a refugee nexus by way of a persecutor or someone who is claimed to intentionally want to cause significant harm to the applicants.
  Other considerations
130. As accepted above, three family members were also members of the [Township] Welfare Society: the cousin, his father and [Mr H]. No claims were raised relating to a fear of harm from their past engagement with this society, nor any future possible engagement. None arises from the materials. As such I find that the applicants do not face a real chance of serious harm or a real risk of significant harm arising from their family members’ past involvement with the Welfare Society.
131. I have also considered whether the applicants face a residual risk from the [Year 6] threats and those made to their family members before then, including the killing of their grandfather. In considering this situation I note that the cousin continued to work as a Peace Committee member for another two years without incident after the most recent of this series of threats that I have accepted as occurring. The applicants and their family continued to live in the same house without incident during this period. Now that seven years have passed since the latest of these threats that had been directed at the family were made, which I find diminishes the level of risk further, I find that the applicants do not face a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm on this basis, as a consequence of removal from Australia.
132. I have also considered whether the applicants could receive future threats even without there being a real chance of physical harm. I accept that into the reasonably foreseeable future, the applicants could receive some form of a threat. It could be a generic threat to all people associated with VDC members or a specific threat. While threats may in some circumstances rise to the level of serious harm, I find that in the applicants’ cases, taking into account their mental health states, and as boys who have had previous experiences of threats and have the experience of living through them, and the knowledge that not all threats are fulfilled, they do not face a real chance of serious harm or a real risk of significant harm arising from any future threats.
Cumulative considerations
133. I have considered the applicants’ risks arising from their family’s past and their potential future involvement with the VDC and their family’s ties to the ANP, as well as being returnees from the West and their family having received some threats in the past and potentially receiving threats in the future. I now turn my mind to considering whether these and other risks identified above could, in some combination, trigger Australia’s protection obligations.
134. I note that the applicants’ risk profile could be compounded when these risks are considered cumulatively. In other words, the risks are not necessarily present at different times or places or conveyed by different persecutors. When considering the applicants’ risk profile when all of the risks are present, I still find that the applicants do not face a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of removal from Australia.
135. For the reasons given above, the Tribunal is not satisfied that the applicants are people in respect of whom Australia has protection obligations under s 36(2)(a).
1. Having concluded that the applicants don’t meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is also not satisfied that the applicants are people in respect of whom Australia has protection obligations under s 36(2)(aa).
137. I now turn my mind to consider whether the applicants are members of the same family unit as a person who satisfies s 36(2)(a) or (aa). Section 36(2)(b) of the Act relates to members of the same family unit as to those to whom Australia has protection obligations because the person is a refugee:
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…
138. Similarly, s 36(2)(c) relates to members of the same family unit as those to whom Australia has protection obligations because the Minister is satisfied that the person faces a real risk of significant harm.
139. Section 5 of the Act defines a ‘member of the same family unit’ as:
one person is a member of the same family unit as another if either is a member of the family unit of the other or each is a member of the family unit of a third person.
140. Regulation 1.12(4) defines the term ‘Member of the family unit’ for protection visas as:
A person is a member of the family unit of another person (the family head) if the person is:
(a) a spouse or de facto partner of the family head; or
(b) a dependent child of:
(i) the family head; or
(ii) a spouse or de facto partner of the family head; or
(c) a dependent child of a dependent child of:
(i) the family head; or
(ii) a spouse or de facto partner of the family head; or
(d) a relative, of the family head or of a spouse or de facto partner of the family head, who:
(i) does not have a spouse or de facto partner; and
(ii) is usually resident in the family head’s household; and
(iii) is dependent on the family head.
141. The applicants are neither the spouse nor the de facto partners of the ‘family head’, who in this case would be the uncle. As such they do not meet reg 1.12(4)(a).
142. It could be argued that the applicants are dependent children of the uncle. Even were I to accept this, we must turn to s 91WB regarding an application for a protection visa by a member of the same family unit, which states that the section applies to a non-citizen who applies for a protection visa and who is a member of the same family unit as a person who has been granted a protection visa. This section, though, goes on to note:
Despite anything else in this Act, the Minister must not grant the protection visa to the family applicant on the basis of a criterion mentioned in paragraph 36(2)(b) or (c) unless the family applicant applies for the protection visa before the family visa holder is granted a protection visa.
143. I note that the uncle was granted a protection visa a decade earlier, and as such the exclusion under s 91WB applies.
144. I have also considered whether the applicants meet s 36(2)(b) or (c) as members of the same family unit as their female cousin, noting that this Tribunal has remitted the application for reconsideration by the Department, having found that she is owed Australia’s protection.
145. In this instance, the applicants’ representative assisted the Tribunal by way of setting out the relationships and how their situation relates to the relevant clauses.
In this case, it is self-evident that [the first applicant], [the second applicant], [Mr A, the cousin], [Mr B, the younger cousin] and [the female cousin] are all members of the family unit of [Mr M], their uncle. They are all relatives of [Mr M], as his nephews and nieces. They are all unmarried. As the Tribunal heard in evidence, they live in the same household. And all are financially dependent upon [Mr M] for their day-to-day expenses. [Mr M] gave evidence of this at the hearing and in his statement, [Mr A, the cousin] – the eldest of the siblings and the only one to work – observed as follows:
I [do a job task] sometimes – it is enough money to be able to support myself, given that my rent and other expenses are covered. It is not enough money to be independent. I do not know how I would survive if I did not have my uncle supporting me. (emphasis added)
As [the first applicant], [the second applicant], [Mr A, the cousin], [Mr B, the younger cousin] and [the female cousin] are all members of the family unit of [Mr M], they are therefore members of the same family unit as each other, noting that concept is defined at reg 1.03 to mean ‘one person is a member of the same family unit as another if either is a member of the family unit of the other or each is a member of the family unit of a third person.’
146. The evidence provided by the uncle and the applicants does support the view that they are: dependent on the uncle; related to the uncle; unmarried; living in the same household; and are wholly or substantially reliant upon the uncle for financial, psychological or physical support.
1. It therefore follows that the applicants are able to satisfy the criterion set out in s 36(2)(c) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(aa) and who holds a protection visa. Accordingly, the applicants are persons in respect of whom Australia has protection obligations.
  decision
148. The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(c) of the Migration Act.
Denis Dragovic
Deputy President

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.
…

Key Legal Topics

Areas of Law

Immigration
Administrative Law

Legal Concepts

Judicial Review
Procedural Fairness
Statutory Construction
Jurisdiction
Natural Justice
Remedies

[2022] AATA 3923

18 August 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Remedies