1825991 (Refugee)

[2024] AATA 1368

1825991 (Refugee) [2024] AATA 1368 (29 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1825991

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Nora Lamont

DATE:29 January 2024

PLACE OF DECISION:   Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 29 January 2024 at 11:23am

CATCHWORDS
REFUGEE – protection visa – Pakistan – religion – Shia Muslim – Noha reciter – state protection – internal relocation – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 August 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Pakistan, applied for the visa on 6 October 2015.

3. The applicant appeared before the Tribunal on 8 September 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

4. The applicant provided the Tribunal with the following submissions.[1]

   [1] AAT File 1825991

   ·Copy of the applicant’s Pakistan passport biodata page.

   ·Copy of the Department’s Refusal Decision Record and Notification letter dated 17 August 2018.

   ·Ceremonial Marriage Certificate dated [in] May 2019.

   ·Victoria Marriage Certificate registered [in] June 2019.

   ·Reference letter from [Mr B] (Shia Ulema Council) dated [in] May 2021.

   ·Reference letter from [Mr C] (World Azadar Organization (WAO)) dated [in] May 2021.

   ·Newspaper article, ‘[Article 1]’, in [Newspaper 1] dated [in] 2019 showing the applicant with [named Sikh Guru].

   ·Newspaper article, ‘[Article 2]’, in [Newspaper 1] dated [in] 2019 showing the applicant with [named Sikh Guru].

   ·Newspaper article, ‘[Article 3]’, in [Newspaper 2] dated [in] 2019 showing the applicant with [named Sikh Guru].

   ·Newspaper article, ‘[Article 4]’, in [Newspaper 2] dated [in] 2019 showing the applicant with [named Sikh Guru].

   ·Applicant statement regarding the Chronological Record of his visa and nomination applications dated 27 August 2023.

   ·DFAT Country Information Report Pakistan (25 January 2022).

5. The applicant’s migration history is as follows: [2]

   [2] Department File [number], folio 69.

26/08/2011	Applicant nominated for 457 Business Sponsorship visa
08/09/2011	Nomination approved
26/08/2011	Applicant lodged Temp Work (Skilled) Offshore (UC 457) visa application
10/10/2011	Applicant granted Temp Work (Skilled) Offshore (UC 457) visa application, which was in effect until 10/10/2015
[date]/11/2011	Applicant arrived in Australia on UC 457 visa
27/03/2014	Applicant nominated for Employer Nomination Scheme
29/07/2014	Employer Nomination Scheme refused
[date]/03/2016	Review of the refusal decision affirmed by the Administrative Appeals Tribunal (AAT)
06/10/2015	Applicant lodged Permanent Protection (XA 866) visa application and granted an associated Bridging Visa A (BVA)
30/08/2017	Applicant interviewed in regard Permanent Protection (XA 866) visa application

1. Based on copies of the applicant’s passport which was provided to the Department along with the applicant’s oral and written evidence and in the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of Pakistan and has assessed his claims against that country in relation to s36(2)(2) and s36(2)(aa) of the Migration Act.

   CRITERIA FOR A PROTECTION VISA

2. 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.

3. 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.

4. 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).

5. 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.

6. 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

7. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The applicant’s claims as outlined in his protection visa application are as follows: [3]

   [3] Department File [number], folios 16-20.

   ·Being a Shia Muslim, i have had serious death threats from sectarian terrorist groups "Tahreek-e-Taliban Pakistan and "Lashkar-e-Jhangvi" and their supporting groups.

   • If I will return to my country these sectarian terrorist groups "Tahreek-e-Taliban Pakistan and "Lashkar-e-Jhangvi" will definitely kill me because of their strong networks.
   • I was attacked two times personally, as well as one at the time when a suicide bomber attacked at the Mosque and killed many people when they were busy in Namaz prayers including myself & I luckily saved my life.
   • I seek for help many times but didn't receive any favourable / positive response.
   • I went to Police Station, but the Police replied we ourself are not saved, how we can provide you the security.
   • The other parts of the country are more dangerous because I will be more easily identified by the terrorist groups because of my language difference and as I will be new in that location.
   • Two times I moved to my reliable friends for a little period of time, I was safe there but the terrorist groups detect me because they have strong information networks all over the country.
   • Yes, because I am Shia Asna Ashari Muslim definitely the terrorist groups Tahreek-e-Taliban & "Lashkar-e-Jhangvi" will search / detect and kill me after severe torture.
   • No way, the Army, Rangers, Police and all other law enforcement agencies are themselves under attack by these sectarian terrorist groups so how they can protect me.
   • No way, because of my language difference the sectarian terrorist groups will more easily trace me and as well as because I will be new in other parts of the country.

   Tribunal Hearing

9. The Tribunal asked the applicant how he became a Zakir/reciter, and he said he took courses to learn the poetry and Noha and it is lamenting over the son of the profit. His whole family is very involved as they are descendants of the holy profit Imam Jafri Sadiq (the 6^th Imam).

10. The Tribunal asked him how many reciters were in Karachi and he said thousands are men and about fifty percent less are women. The Tribunal then asked that if there were thousands of reciters why was he targeted? He said that they were active in grooming young people and helping people with their welfare needs.

11. The applicant said that he was out the front of a women only Majlis on 10 December 2010 and that he was in a tent out the front of the house where there was food. The Lashkar-e-Janhgavi arrived, and the women were being injured. His cousin tried to stop them. The Lashkar-e-Janghavi told him that he should join their ranks, or that he would be killed. The Tribunal asked how many were at this event and he said that there was around 400 people. You must report that you are holding the Majlis to the police, but they did not patrol like they were supposed to.

12. The Tribunal asked how they went about advertising these events and he said that they already knew they would provide messages. The Tribunal asked that if there are a lot of reciters, why was he targeted? He said that he provided welfare to the people and that is why he was targeted and his family. The Lashkar-e-Janghavi were telling him to come join them. When questioned as to why they would ask for him to join when he is a Shia, he said that they were saying you either join us or you will be killed.

13. After this happened, the applicant said that they stopped going out as often and that they would change places when they had these events so that they wouldn’t find them. The applicant then said that in March of 2011, men on a motorcycle fired at him and that he had to hide behind a car to save himself. In April, he was shot at again and was able to escape by running into some shops. In June, he was in a Mosque and in the front row when a bomber came into the Mosque, and he was caught by the guards, but four men died at the back of the Mosque, and his car was damaged, and he said that he knew they had come to kill him.

14. The applicant said that as he has been in Australia since 2011, his brother told him about the terrorists stealing their electricity in 2014 and in 2015 the phone. His brother still lives in Pakistan and although he had been in Australia, he chose to go back although he must live a nomadic life. He only gets in contact when he is able, and he can afford his own guards.

    Country Information

15. Current country information from DFAT states that Shi’a in Pakistan face a moderate risk of sectarian violence, although the situation has improved considerably in recent years. Seventy per cent of blasphemy accusations, which carry the death penalty, are against Shi’a. They face a moderate risk of societal discrimination in the form of anti-Shi’a protests and community violence. Some Shi’as face specific, heightened risks (see Hazaras, Turis, Bangash).[4]

    Shi’a

    3.55 Pakistan is home to the world’s second-largest Shi’a population (after Iran). An estimated 20-40 million Shi’a live throughout the country, constituting 10-20 per cent of the population. There are significant Shi’a communities in Karachi, Lahore, Rawalpindi and Islamabad. Shi’a are in the majority in the sparsely populated autonomous region of Gilgit-Baltistan but are a minority in Pakistan’s other regions. 3.56 Most Pakistani Shi’a (except Hazaras) are not physically or linguistically distinguishable from Sunnis, and national censuses do not distinguish between them. NADRA collects sectarian information during the application process for identity documents, but CNICs do not identify a cardholder’s religion, and passports do not distinguish between Sunni and Shi’a. Some Shi’a may be identifiable by common Shi’a names, such as Naqvi, Zaidi or Jafri. Similarly, ethnic or tribal names can reveal a person’s ethnicity or tribal affiliation: nearly all Hazaras and Turis are Shi’a, as are many Bangash. Ritual self-flagellation during Shi’a religious festivals can leave distinctive, permanent scars, which have been used by militants to identify Shi’a for execution.

    3.57 Shi’a are generally able to establish places of worship and practise their religion without overt state interference. They are well represented in parliament and regularly contest elections for mainstream political parties. Shi’a and Sunnis can legally intermarry, although a 2018 report by the Immigration and Refugee Board of Canada found such marriages were ‘not easy, and the difficulty factors may range from social disdain or discouragement to life threats, depending on the locality and region, social stratum, and particular family circumstances.

    3.58 Shi’a face rising religious intolerance and official discrimination in the form of blasphemy accusations. Over 70 per cent of blasphemy cases are against Shi’a. Anti-Shi’a sentiment is seen in politics: in July 2020, the Punjab Provincial Assembly passed a law to ‘protect the foundation of Islam’ which would criminalise Shi’a beliefs about the Companions of the Prophet (the Governor returned it for revision).

    3.59 Sectarian tensions often flare during Muharram, when Shi’a mourn the killing of the Prophet Mohammad’s grandson and his family, a key event in the Sunni-Shi’a schism. In 2020, over 40 Shi’a were charged with blasphemy following Muharram, including clerics accused of insulting the Companions of the Prophet during ritual processions. Thousands of Sunni protesters took to the streets in Karachi and Islamabad chanting anti-Shi’a slogans. There were targeted killings of Shi’a in multiple cities. The Karachi head of the TLP openly threatened beheadings for Shi’a ‘blasphemers’. Videos of these incidents circulated on social media. Authorities have attempted to curb sectarian hatred during Muharram, for instance by banning firebrand Sunni and Shi’a clerics from leaving home and by cutting off mobile phone services in major cities during processions.

    3.60 Shi’a have historically been targeted by sectarian terrorist groups such as the TTP, LeJ and IS (see Security Situation). These groups have attacked Shi’a individuals, places of worship, shrines and religious schools, as well as Shi’a travelling to Iran or Iraq for religious pilgrimage. The frequency of these attacks has steadily declined since 2013. Terrorist attacks targeting Shi’a killed five and injured 14 in 2020 (not including attacks targeting Shi’a Hazaras, see Hazaras), compared with 32 deaths in 2019 and 471 deaths in 2013. This is a result of the overall improvement in the security situation in Pakistan, as well as increased security provided by the Pakistani police for Shi’a places of worship and processions. Nevertheless, sectarian terrorist groups retain the capacity and intent to carry out attacks against Shi’a anywhere in the country. At least three people were killed and 50 injured in the bombing of a Shi’a procession in Bahawalnagar, Punjab in August 2021.

    3.61 DFAT assesses Shi’a in Pakistan face a moderate risk of sectarian violence, although the situation has improved considerably in recent years. Seventy per cent of blasphemy accusations, which carry the death penalty, are against Shi’a. They face a moderate risk of societal discrimination in the form of anti-Shi’a protests and community violence. Some Shi’as face specific, heightened risks (see Hazaras, Turis, Bangash).

    Noha

    [4] DFAT Country Information Report Pakistan 25 January 2022.

16. Noha is common and the applicant performed Noah.

17. Noha are poems, usually relating to the martyrdom of Muhammad’s grandson Hussain and his followers at the battle of Karbala in AD 680, recited during the month of Muharram.[5] While Noha are recited during Shia processionals by groups of mourners, professional performers also exist, with ‘around 250 artists’ reportedly releasing Noha ‘albums’ in 2010, and 100 in 2011.[6] Information on the number of professional Noha performers releasing albums for the period 2012 to 2015 could not be found. A November 2013 Dawn report provides the following definition of a Noha, its place in Shiism, and its popularity:

    One of the most significant components of a majlis, a noha is a series of verses that lament the tragedy of Karbala. Most Nohas are recited by professional Noha khwaans, and it is their CDs and DVDs that people await eagerly as the first month of the lunar Islamic calendar commences. Most like to listen to them while many recite these in majalis during Muharram and Safar. At the same time some singers and amateurs also recite Nohas[7]

    Noha Performers Targeted in Karachi

    [5] Reza, S 2013, ‘Selling songs of sorrow’, Dawn, 10 November

    [6] Mahmood, R 2011, ‘Nohas: Sales to dust’, The Express Tribune, 05 December. For noha being recited by a group of mourners during a Shia procession see: Ali, K 2014, ‘Islamabad observes Imam Hussain’s Chehlum’, Dawn, 13 December

    [7] Reza, S 2013, ‘Selling songs of sorrow’, Dawn, 10 November

18. The following incidents of Noha performers being targeted in Karachi were found:

    • On 4 November 2014 Dawn reported that, three months earlier, Ali Raza, a Shia who was reportedly a ‘very good Noha Khwan’ was killed inside his shop in Lyari, Karachi. The report quotes a ‘caretaker’ of the local Imambargah who claims that the killing was sectarian in nature, despite the police suggesting that it was related to extortion.[8]
      
      

    [8] Baloch, S 2014, ‘Pluralism takes a back seat in Lyari’, Dawn, 04 November

    • On 19 March 2013 The News International reported that Professor Sibte Jafar was killed by two men riding a motorcycle in Liaquatabad, Karachi. Jafar was reportedly a ‘prominent educationist’, the ‘principle of a college in Qasimabad’, and a ‘renowned noha khwan of the Shia community’, reportedly writing ‘thousands of marsiyas and nohas’.[9] A 20 March 2013 report by Press TV, an Iranian State-owned news channel, gives the victim’s name as Syed Sibt-e-Jaffar Zaidi, and states that, in addition to being a ‘Shia scholar’, he was ‘one of the country’s renowned soz and marsiah reciter[s]’, which the report describes as a ‘genre of Urdu literature about mourning-poems that commemorate the martyrdom of the Prophet Muhammad grandson Imam Hussain’. The report also suggests that Jafar taught students to recite the poems.[10]
      
      
    • On 10 January 2012 The Daily Times reported that Syed Qalb-e-Abbas Rizvi was killed by ‘armed motorcyclists while at a general store’ in Surjani Town, Karachi. The report introduces Rizvi as ‘a famous Noha Khwan’ as well as a member of the Muttahida Quami Movement’s (MQM) ‘Elders Committee’. According to the report police were treating the attack as sectarian in nature, although they were reportedly ‘investigating…from all angles’[11]
      
      
    • On 24 December 2011 The Daily Times reported that Kashif Ali, a 25 year old ‘Noha Khwan’ and musician, was killed in Bhim Pura, Karachi, when ‘two armed men on [a] motorcycle opened fire on him’. Police reportedly ‘believed that personal enmity might be the motive behind the murder’.[12] A 23 December report by The Express Tribune has similar information, but adds that, in addition to ‘personal enmity’ police also stated that ‘religious identity may have been a factor’.[13]

    Profile of Noha Performers

    [9] ‘Educationist Sibte Jafar shot dead’ 2013, The News International, 19 March

    [10] ‘Shia Muslims mourn death of university teacher’ 2013, Press TV, 20 March

    [11] ‘Six, including policeman and MQM worker, killed in violence’ 2012,The Daily Times, 10 January

    [12] ‘4 killed in separate acts of violence’ 2011, The Daily Times, 24 December

    [13] ‘Out of the blue - Outlet of telecommunication franchise attacked’ 2011, The Express Tribune, 23 December

1. The reports cited above do not indicate whether the victims were targeted on account of their activities as Noha performers, or whether they were targeted for simply being Shia. It should be noted, however, that their activities as Noha performers merit attention in each report, with police on at least one occasion referring to this aspect of the victim’s identity.[14] Moreover, three reports introduce the victim via their activities rather than name. A 10 January 2012 report by The Daily Times states:

   Meanwhile, a famous Noha Khwan and also the member of MQM Elders Committee Syed Qalb-e-Abbas Rizvi, son of Haider Abbas Rizvi succumbed to his injuries at the ASH during medical treatment.[15]

   [14] ‘Out of the blue - Outlet of telecommunication franchise attacked’ 2011, The Express Tribune, 23 December

   [15] ‘Six, including policeman and MQM worker, killed in violence’ 2012,The Daily Times, 10 January

2. Similarly, a 24 December 2011 report, also by The Daily Times, states:

   Separately, a Noha Khwan was shot dead near his house in Bhim Pura, Nishtar Road within the limits of Risala police station. The incident took place on Nishtar Road where 25-year-old Kashif Ali son of Zafar Ali was standing in front of his house when two armed men on motorcycle opened fire on him; resultantly he received two bullets and died on the spot. The body was shifted to CHK for medico legal formalities.[16]

   [16]  ‘4 killed in separate acts of violence’ 2011, The Daily Times, 24 December

3. An 18 July 2014 report by the Shia Post, a pro-Shia news portal covering Pakistan, Iran and the rest of the Middle East, reports on the attack on a Shia in Peshawar with the following headline:

   Shia Noha reciter martyred in takfiri terrorist attack in Peshawar.[17] 

   [17] ‘Shia Noha reciter martyred in takfiri terrorist attack in Peshawar’ 2014, Shia Post, 18 July

4. These reports suggest that the performance of Nohas by individuals carries significance within the Shia community, with some Shias afforded prestige within their community on account of their recitals. This is similar to what the applicants expressed to the Tribunal, that they had some status in the community, and this made them more attractive to extremist groups.

5. Further country information suggest that Shia’s are being targeted in 2023 and that since 2000 close to 3000 Shias have been killed and another 2393 have been injured.

6. On September 7, 2023, at least 11 people were injured in an attack at Shaheed Chowk in the Khipro town of Sanghar District in Sindh, in a Shia mourning procession which was being carried out in observance of Imam Hussain’s Chehlum (the 40th, concluding, day of ritual mourning). The procession was taken out by participants of a majlis, held in the Asgharia Imambargah. The trouble started when operatives belonging to the banned Ahle Sunnat Wal Jamaat (ASWJ) tried to block the path of the procession, claiming that mandatory permission had not been obtained. Sanghar Senior Superintendent of Police Abid Baloch stated that tensions in Khipro had been brewing for a few days, after the organisers of the majlis made public their intention to take out a mourning procession.

7. On July 8, 2023, at least five people were killed and 21 suffered injuries in an attack on Shias in the Boshera village in the Kurram District of Khyber Pakhtunkhwa (KP). 

8. On May 4, 2023, assailants entered a school staffroom in a Kurram District school, where students were taking exams, and selectively killed seven Shia teachers.

9. According to partial data collated by the South Asia Terrorism Portal (SATP), three incidents (above) of attacks on Shias, resulting in 12 Shia fatalities, have been reported in 2023, so far (data till September 17).  In 2022, there was one such incident which had resulted in 63 fatalities.  According to the SATP database, since March 6, 2000, when SATP started compiling data on conflicts in Pakistan, at least 2,790 people belonging to the Shia community have been killed in Pakistan, in 480 incidents, and another 2,393 people have been injured. [18]

   Findings

   [18] Pakistan: Targeting Shias – Analysis – Eurasia Review

10. The Tribunal accepts that the applicant is a Shia Muslim from Pakistan. It further accepts that the applicant is a reciter and attended performances/meetings in Karachi. The applicant’s evidence was compelling and believable. This combined with the country information as above, that Shia Muslims are targeted and that reciters are also targeted as they are well known or famous within their circles, further strengthens the applicant’s claims for protection. The Tribunal finds that the applicant has a well-founded fear of persecution based on his religion as Shia Muslim and reciter in Pakistan.

11. In the case of the applicant, the Tribunal considers that the subjective fear that he has for his future is objectively made out on the available country information. The Tribunal considers that the violence that the applicant would face does constitute serious harm. The Tribunal therefore considers, based on the evidence before it, that the applicant has a real chance of serious harm arising out of his religion as a Shia Muslim in Pakistan.

12. The Tribunal finds that the applicant has a real chance of serious harm on return to Pakistan based on his religion as a Shia Muslim and the Tribunal finds he has a well-founded fear of persecution for this reason.

13. The Tribunal has considered whether the applicant could avail himself of state protection. State protection is limited as there is not only a lack of resources, but state protection is also limited due to discriminatory grounds: [19]

    Pakistan’s formal legal framework provides for state protection of people’s property, lives, places of worship and religious beliefs. However, DFAT assesses that state protection in Pakistan is limited due to under-resourcing, corruption, socio-economic factors at the individual level, and lack of political will. Some groups are denied adequate state protection on discriminatory grounds (for example, Ahmadis).

    Despite measures introduced to curb violence across the country under the NAP – including strengthened powers for military and paramilitary security forces and the establishment of military courts – successful prosecution for politically motivated or sectarian violence is rare. This is due to ineffective police investigations, a lack of forensic capabilities and prosecution and judicial legal understanding, and threats against judges, lawyers, witnesses, and their families.

    [19] DFAT Country Information Report Pakistan January 2022.

14. The Tribunal considers that the applicant would not be able to avail himself of the state for protection, given he is Shia Muslim, upon return to Pakistan.

15. With respect to the consideration of relocation, the Tribunal has considered that as a Shia Muslim the applicant would not be able to relocate outside his home area to avoid their fear. DFAT assesses that: [20]

    DFAT assesses that groups facing official discrimination (see relevant sections) will face discrimination in all parts of the country.

    [20] Ibid page 43.

16. The Tribunal finds that the applicant has a real chance of serious harm arising out of his religion as a Shia Muslim. The Tribunal finds that the applicant has a well-founded fear of persecution for this reason.

17. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has a protection obligation. Therefore, the applicant satisfies the criterion set out in s36(2)(a).

18. Given these findings it is unnecessary to consider the other grounds and criterion in s36(2)(aa).

    DECISION

19. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

    Nora Lamont
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation

    …

    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)     that is not inconsistent with Article 7 of the Covenant; or

    (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)     that is not inconsistent with Article 7 of the Covenant; or

    (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)     for the purpose of intimidating or coercing the person or a third person; or

    (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    receiving country,  in relation to a non-citizen, means:

    (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    5J     Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K    Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L    Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (2A)A non‑citizen will suffer significant harm if:

    (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)     the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …