1829583 (Refugee)

1829583 (Refugee) [2023] AATA 4098 (28 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Steven O'Dor (MARN: 1175628)
CASE NUMBER:  1829583
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Nora Lamont
DATE:28 August 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 28 August 2023 at 12:58pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – Peshawar region – imputed political opinion – father was member of the National Peace Committee for Interfaith Harmony (NPCIH) – father and brothers murdered by the Taliban – applicant stabbed by the Taliban – another brother gone missing – 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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 September 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Pakistan, applied for the visa on 9 June 2015. T
The applicant appeared before the Tribunal on 16 August 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto and English languages.
The applicant was represented in relation to the review.
There are no non-disclosure certificates on the applicant’s file.
Based on copies of the applicant’s passport which was provided to the Department, the applicant’s written and oral 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)(a) and s36(2)(aa) of the Migration Act.
There is no evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any safe third country for the purposes of s36(3) of the Act.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant is a [age]-year-old male born in Peshawar PK Pakistan. His mother and [number] sisters remain in Pakistan. His father and [number] older brothers were killed in 2015 and his younger brother has been missing since 2019. The applicant is married with one child, and both remain in Pakistan. The applicant first arrived in Australia [in] January 2014 on a student visa and has remained in Australia since that time.
Claims
The applicant’s claims as summarised from his protection visa application are as follows:
·His father was a member of the National Peace Committee for Interfaith Harmony (NPCIH). His father always spoke in public and attended meetings. His comments were reported in the papers.
·His father became a target of the Taliban.
·The applicant was stabbed by 2 unknown men on a motorbike in January of 2013. He thinks it was the Taliban.
·On 14 February 2014 his family received a letter from the Taliban warning his father to stop his peace committee role or he would be killed.
·His father and [number] brothers were murdered in their car by the Taliban on the [named] Road in Peshawar in April of 2015.
·In April of 2015 the applicant’s family received a letter from the Taliban taking responsibility for his father’s murder.
·The applicant’s wife, child, mother and sisters moved to his uncle’s house for safety.
The Tribunal has before it the following submissions and documents:
Submissions received for 1829583 – [the applicant]
- Representative Submission dated 4 December 2018
- Letter from National Peace Committee for Interfaith Harmony dated 7 August 2017
- National Peace Committee membership card of the applicant’s father [Mr A]
- Letter from the Taliban dated 14 February 2014 and translation
- Letter from the Taliban dated [in] April 2015 and translation
- Newspaper article reporting on killing of father and brothers dated [in] April 2015 and translation
- Article reporting about father’s comments against the Taliban dated [in] December 2012 and translation
- Article reporting about father’s comments against the Taliban dated [in] December 2013 and translation
- Article reporting about father’s comments against the Taliban dated [in] July 2014 and translation
- Article reporting about father’s comments against the Taliban dated [in] February 2013 and translation
- Article reporting about father’s comments against the Taliban dated [in] June 2013 and translation
- Article reporting about father’s comments against the Taliban dated [in] April 2012 and translation
- Copy of letter from the applicant’s mother [Ms B] dated 27 May 2015
- Copy of First Information Repot dated 5 April 2015
- Copy of Death Certificate issued by Nadra for applicant’s father [Mr A] dated [in] April 2015
- Copy of Death Certificate issued by Nadra for applicant’s brother [Mr C] dated [in] April 2015
- Copy of Death Certificate issued by Nadra for applicant’s brother [Mr D] dated [in] April 2015
- Copy of applicant’s son [Child E]’s Birth Certificate issued [date]
- Certified copy of the birth registration certificate of [Child E] issued [date]
- Certified copy of the birth certificate of [Ms F] (the applicant’s wife) dated [in] April 2015
- Certified copy of marriage registration certificated issued [in] April 2015
- Letter from National Peace Committee for Interfaith Harmony dated [in] March 2019
- Certified copy of First Information Report dated [in] February 2019 regarding the abduction of [Mr G] (the applicant’s brother) and translation
- Certified copy of letter from [Mr H], the Editor in Chief of [Newspaper 1], dated [in] January 2019
- Certified copy of letter from [Mr I], the Admin Officer of [Hospital 1], dated [in] November 2018
- Certified copy of letter from [Mr J], the Editor in Chief of [Newspaper 2], dated [in] January 2019
- A variety of newspaper articles from Pakistani newspapers regarding the disappearance of [Mr G] and translations
- Psychological Report by [Ms K] (Psychologist) dated 24 January 2020
- Representative Submission dated 17 July 2023
- Letter from Afghan Islamic Centre & Omar-Farooq Mosque Inc (AICOM) dated [in] July 2023
- Psychological Report by [Ms L] (Psychologist) dated 8 August 2023
The applicant also sought to rely on the following documents from the Department File [number] which were not submitted separately to the Tribunal:
- Applicant’s Pakistani passport
- Applicant’s Pakistani ID card
- Applicant’s Pakistani birth certificate
- Statutory declaration by the applicant in support of his protection claims dated 9 June 2015
Tribunal Hearing
At the Tribunal hearing the applicant spoke about his childhood and said his father had an appliance store and they lived a comfortable middle-class life. He said now his wife and mother live with his uncle and they rarely go out.
The applicant said in 2013 he was walking to his friend’s house when he was approached by two men on a motorbike. They stabbed him two times out of nowhere. The Tribunal asked him if they were Taliban and he said that it is hard to differentiate between the Taliban and others. He said he was unconscious then taken to the hospital where he received stitches, but he did not have any surgery. He said there was no police report.
We spoke about the applicant’s father and his peace committee work with the National Peace Committee for Interfaith Harmony (NPCIH). He said he was young and did not get involved in his father’s affairs, so he didn’t know that much about it. He said his father wanted the children to focus on their education. His father went back to his home village to give speeches and attend meetings. He talked about how the Taliban is opposed to the NPCIH. As his father wanted both girls and boys to get an education, and education was his focus the Taliban were against him.
In February 2014 the family received a letter from the Taliban, and it stated that the applicant’s father was involved in the killing of a prominent Taliban leader. However, the applicant’s father was no where near where the killing occurred. [In] April 2015 the applicant’s father and two of his brothers were murdered by machine gun on the [named] Road in Peshawar.
[In] April the Taliban sent a letter claiming responsibility for his fathers killing and it was noted in the letter that the applicant was overseas. When asked how they knew where his father was when he was driving on the [named] Road, he said he didn’t know how they would know, and he said he didn’t know how they knew he was overseas.
The applicant’s younger brother went to the shops one morning in 2019 and disappeared. He has not been seen or heard from since.
The Tribunal spoke to the applicant about the documents that were provided to both the Tribunal and the Department, including death certificates and FIR reports, as the delegate did not believe that they were genuine documents. The applicant stated they were all genuine including the letters from the Taliban and that he did not have any knowledge of how or why the Taliban issue letters, or what form they use. Country information notes that the Taliban use letters as a traditional means of threatening and intimidating people. [1]
[1] taliban: Taliban use traditional Afghan method of 'night letters' to intimidate - The Economic Times (indiatimes.com)
The Taliban in Pakistan was formed and operates as below: [2]
Tehrik-e Taliban Pakistan (TTP) is an alliance of militant networks formed in 2007 to unify opposition against the Pakistani military. TTP’s stated objectives are the expulsion of Islamabad’s influence in the Federally Administered Tribal Areas and neighbouring Khyber Pakhtunkhwa Province in Pakistan, the implementation of a strict interpretation of sharia throughout Pakistan, and the expulsion of Coalition troops from Afghanistan. TTP leaders also publicly say that the group seeks to establish an Islamic caliphate in Pakistan that would require the overthrow of the Pakistani Government. TTP historically maintained close ties to senior al-Qa‘ida leaders, including al-Qa‘ida’s former head of operations for Pakistan.
[2] National Counterterrorism Center | Groups (dni.gov)
The Pakistani Taliban are strong in the applicant’s home area of Peshawar and in 2014 massacred school children killing over 150 people mostly children. [3]
Country Information
[3] Children massacred in Pakistan school attack | Pakistan Taliban News | Al Jazeera
Current country information from DFAT notes the following in reference to Peace committees, extremists and Pashtuns in Pakistan. [4]
[4] DFAT Country Information Report Pakistan (25 January 2022)
Peace committees
3.83 In some conflict-affected areas, including Khyber Pakhtunkhwa and Balochistan, local communities or the Pakistani government have empowered local councils called ‘peace committees’ (aman jirga) to help oppose militant groups such as the TTP. According to a 2017 working paper by the Secure Livelihoods Research Consortium, members of these committees ‘are appointed by the military or police in order to deal with security issues and to bring peace in an area, with the government giving them authority for out-of-court arbitration’. Villages may also form peace committees of their own accord. Despite their name, peace committees take many guises, ranging from ‘keeping an eye on’ terrorist activities to actual engagement against terrorist groups as armed tribal militias.
3.84 Multiple sources told DFAT that members of peace committees and their families were targeted for violence by militant groups (especially the TTP). Peace committees have themselves sometimes been accused of violence or human rights abuses (see Judiciary, Cruel, Inhuman or Degrading Treatment).
3.85 DFAT assesses members of peace committees, and their families are at moderate risk of violence by militant groups.
Domestic jihadist groups
2.39 A number of domestic jihadist groups and networks operate in Pakistan. Some are sectarian while others mainly oppose the Pakistani state. The most prominent is the TTP, an umbrella group established in 2007 that is responsible for some of Pakistan’s most notorious terrorist attacks, including the attack on the Army School in Peshawar in 2014 and the attempted assassination of prominent female education advocate Malala Yousafzai in 2012. The TTP’s short-term goal is to undermine the influence of the Pakistani state, especially in Pashtun areas. Its long-term goal is to overthrow the state and establish Sharia (Islamic law) and an Islamic caliphate. The TTP is independent from the Afghan Taliban, although they are ideologically aligned. Pakistan wants the Taliban to deny hostile militants a presence in Afghanistan. In October 2021, the government announced it was conducting negotiations with TTP elements. In November 2021, it announced it had agreed to a one-month ceasefire with the TTP.
2.40 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 re-pledged 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. It has also continued to assassinate political and religious leaders and to target religious minorities, including Shi’a, Ahmadis and Christians. 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.
2.41 Various anti-Shi’a sectarian groups operate in Pakistan, among them Lashkar-e-Jhangvi (LeJ), a radical Sunni militant group that follows the Deobandi school of Islam. LeJ seeks to eradicate Shi’a influence from Pakistan. The group has carried out numerous deadly attacks on Shi’a communities (including targeted attacks against Hazaras), places of worship and leaders, as well as against other religious minorities including Christians, Hindus and Ahmadis. The LeJ is closely aligned with Al Qaeda and shares Al Qaeda’s goal of driving Western influence from the region. It is primarily active in Punjab province, the former FATA, Karachi and Balochistan. It also trains fighters in Afghanistan. See also Race/Nationality and Religion.
Violent and organised crime
2.49 Violent crime occurs across Pakistan, including armed robbery, assault, carjacking and kidnapping. According to UN Office on Drugs and Crime data, Pakistan has a homicide rate of 3.1 murders per 100,000 population, about average for the region and lower than the global average of 6.1 murders per 100,000 population. Islamabad has a lower crime rate than other major cities due to its large security presence. Crime rates in Lahore and Karachi have also dropped in recent years due to police crackdowns. Violent crime in rural areas and in Gilgit-Baltistan is generally lower.
2.50 Criminal gangs exist in Pakistan. Their activities include drug trafficking, kidnapping, extortion, human trafficking, and child sexual exploitation. Some are politically connected.
Pashtuns
3.13 The Pashtuns are an ethnic group native to Afghanistan and northwest Pakistan. Pashtuns are stereotypically fair-skinned with light-coloured hair and eyes that distinguish them from other Pakistanis, although in reality Pashtuns are physically diverse. Pashtuns may also wear distinctive clothing, such as the red-and-black ‘Pashteen hat’, which has reportedly become a symbol of the Pashtun Tahafuz Movement (PTM). Pashtun culture emphasises tribal and family relations, as well as customary norms known as Pashtunwali. Pashtuns speak an Eastern Iranian language called Pashto. Most, but not all, follow Sunni Islam (see Turis, Bangash).
3.14 There are an estimated 20-25 million Pashtuns in Pakistan, the second largest ethnic group after Punjabis (see Demography). Pashtuns traditionally live among their own tribes and sub-tribes in Khyber Pakhtunkhwa and the former FATA, though many migrate to urban areas. The largest Pashtun community in the world lives in Karachi. Pashtuns also live in Balochistan, Islamabad, Lahore and elsewhere.
3.15 Pashtuns are represented at all levels of society in Pakistan. They dominate employment in the transport sector in Pakistan and Afghanistan, and are well represented in Pakistan’s security forces. The governing PTI party has a strong support base among Pashtuns in Khyber Pakhtunkhwa. Pashtun-majority areas have historically experienced high levels of tribal, intra-communal and politically motivated violence, a high concentration of military operations, and conflict-related displacement. However, the overall security situation for all Pakistanis, including Pashtuns, has (until recently) been improving in line with increased security across Pakistan.
3.16 Until 2018, those living in the FATA were governed under separate, extra-constitutional arrangements, which denied them some fundamental rights (see Political System). Residents of Khyber Pakhtunkhwa, including the former FATA, now have access to the regular judicial system, although the option remains to voluntarily refer disputes to traditional jirgas/panchayats under the Khyber Pakhtunkhwa Alternate Dispute Resolution Act (2020) (see Judiciary). In 2017 civilians living in the FATA were injured and lost access to land due to landmines left over from security operations.
3.17 Across Pakistan, ethnic stereotyping and the association of Pashtuns with the TTP has led to official discrimination and ethnic profiling. In February 2018, the Punjab government issued a notice asking ‘the population of Punjab to keep an eye out for suspicious individuals who look like Pashtuns or are from the former FATA, and to report any suspicious activity.’ In areas where they are a minority, low-level societal discrimination against Pashtuns is common in the form of slurs and ethnic stereotypes. Pashtuns report frequent blocking of their CNICs when relocating (see CNICs and SNICs), which impedes access to property and assets. There are credible reports Pashtuns have been targeted for enforced disappearances, especially in conflict-affected regions such as Khyber Pakhtunkhwa and Balochistan.
3.18 DFAT assesses Pashtuns in conflict-affected areas such as Khyber Pakhtunkhwa and Balochistan face a moderate risk of violence by state security forces, including enforced disappearance and extrajudicial killings. Elsewhere in Pakistan, Pashtuns generally face a low risk of official and/or societal discrimination and a similar risk of violence to other ethnic groups in the same locations, although the risk increases if they come to the attention of authorities for any reason. Pashtuns involved with the Pashtun Tahafuz Movement (PTM) or the Awami National Party (ANP) face specific, heightened risks, as do Shi’a Pashtuns (see Turis, Bangash).
The question that everyone is asking themselves is how this was possible in the Red Zone of the city. It’s not clear whether it was a suicide bomber or if a bomb was planted inside the mosque. Either way, most people agree that there must have been a degree of inside help to execute this terrorist act successfully. Several suspects connected have since been arrested. Not only does this attack point to an utter failure in security and intelligence, but it reaffirms the TTP’s message: “we can kill you anywhere, anytime, including in mosques, and the army and government cannot protect you.” [5]
Findings
[5] Pakistan, Terror, and Politics: The 30 January Peshawar Terrorist Attack - Australian Institute of International Affairs - Australian Institute of International Affairs

The applicant appeared depressed and low during the Tribunal hearing but nonetheless he was open and engaging with the Tribunal. The Tribunal did not detect any deceit or that the applicant was embellishing his claims for migration purposes. For example, he was honest when asked to expand on what his father did for the peace committee, he was honest and said his father told him to study and get an education and did not involve him in his peace committee work. He was further honest about not knowing the workings of the Taliban and why they send letters the way they do. He only knows they do it, not how or why.
Given this and the fact that the applicant has not changed or embellished his original claims, the Tribunal accepts that the applicant’s father was a member of the peace committee and that he and his two sons were murdered by the Taliban, that he was stabbed, and that the Taliban have further threatened him by indicating they know he is overseas. As for the applicant’s brother who has gone missing one can only assume that the Taliban have taken him as there is little room for any other explanation.
Given these findings the Tribunal does not consider that the applicant’s documents are fraudulent and accepts that they are copies of original letters from the Taliban, birth and death certificates and letters.
The Tribunal considers that the country information supports the applicant’s contention that he will face harm arising from his imputed political opinion should he return to Pakistan. The Tribunal considers that the country information both from DFAT and independent sources demonstrates that the Taliban in Pakistan in the Peshawar region are strong and target their attacks. The applicant has been stabbed once already, his father and two brothers were gunned down and killed and his brother is missing indicating the applicant would be at great risk should he be returned to Pakistan.
Whilst the applicant was in Australia when his father and brothers were killed, and his brother has disappeared leaving little doubt as to what would happen to the applicant upon return. The Tribunal notes that the assessment for protection is a forward-looking assessment, what would happen to the applicant upon return to Pakistan.
In the circumstances of the applicant, the Tribunal considers that the subjective fear the applicant holds for his future is objectively made out on the country information. The Tribunal considers that the violence the applicant faces does constitute significant harm. The Tribunal therefore considers, based on the information before it, that the applicant has a real chance of serious harm arising from his imputed political opinion.
The Tribunal finds the applicant has a real chance of serious harm on return to Pakistan for his imputed political opinion and the Tribunal finds that the applicant has a well-founded fear of persecution for this reason.
The Tribunal has considered whether the applicant can avail himself of state protection. Given the Taliban has been operating within the applicant’s home area for many years and the state cannot control them, the Tribunal does not consider that the applicant can avail himself of state protection.
With respect of relocation, whilst the applicant could move to another area, the Taliban has people everywhere in Pakistan and the applicant would not be safe in any area of the country.
The Tribunal finds that the applicant has a real chance of serious harm arising from his imputed political opinion. The Tribunal finds that the applicant has a well-founded fear of persecution for this reason.
For the reasons above, the Tribunal is satisfied that the applicant is a person to whom Australia has protection obligation. Therefore, the applicant is a refugee within the meaning of s36(2)(a) of the Migration Act.
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal 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.
…

[2023] AATA 4098

28 August 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Remedies

Natural Justice