1832603 (Refugee)

[2024] AATA 3928

1832603 (Refugee) [2024] AATA 3928 (15 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Karyn Anderson (MARN: 9685990)

CASE NUMBER:  1832603

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Rachel Westaway

DATE:15 July 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

that the first named applicant satisfies 36(2)(a) of the Migration Act; and(i)

the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.(ii)

Statement made on 15 July 2024 at 5:34pm

CATCHWORDS
REFUGEE – protection visa – Pakistan – membership of particular social groups – Pashtun, secular/liberal university-education teacher, NGO volunteer and advocate for girls’ education – threats by phone and in person from Taliban and others – conservative, patriarchal area – delay in applying for protection – original intention to gain permanent residency through study and work – mental health and treatment – documentation and submissions – consistent and credible claims and evidence – country information – members of family unit husband and Australian-born children – one child in home country not an applicant – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (b)(i), 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 31 October 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants who claim to be citizens of Pakistan applied for the visas on 3 April 2017. The delegate refused to grant the visas on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s36(2)(a) or s36(2)(aa). The Delegate stated that they were not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Pakistan, there would be a real risk that they would suffer significant harm as defined in s36(2A) of the Act.

3. The applicants, [the first and second applicants] appeared before the Tribunal on 15 November 2023 to give evidence and present arguments. The two dependent children did not attend or provide evidence. The Tribunal also received oral evidence from [Ms A], the primary applicant’s psychologist and [Mr B], the primary applicant’s brother-in-law. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

4. The applicants were represented in relation to the review.

   CRITERIA FOR A PROTECTION VISA

5. 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.

6. 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.

7. 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).

8. 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.

9. 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

10. 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

11. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act.

    Applicant’s identity and country of reference

12. The review applicant is [Age] years old and claims to be a citizen of Pakistan.

13. Th secondary applicants are the review applicant’s husband and two children. They all claim to be citizens of Pakistan.

14. The secondary applicant is a [Age]-year-old male from Pakistan.

15. The third applicant is an [Age]-year-old female who was born in Australia. She is a citizen of Pakistan by descent.

16. The fourth applicant is a [Age]-year-old male who was born in Australia. He is a citizen of Pakistan by descent.

17. All four applicants provided their Pakistani passports as evidence.

18. There is no evidence to suggest that the applicants have a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the documents provided by the applicants, the Tribunal finds that they are citizens of Pakistan and as such their protection claims will be assessed against Pakistan as the country of reference and receiving country.

    Applicant’s history

19. On 2 June 2009 the review applicant lodged an application for a TU-573 Student visa.

20. On 24 October 2009 the TU-573 visa was granted.

21. [In] February 2010 the review applicant and her husband (the secondary applicant) arrived in Australia as the holders of a TU 573 visa valid until 15 March 2012.

22. [In] November 2011 the applicants departed Australia

23. [In] January 2012 both applicants arrived in Australia

24. On 8 March 2012 the applicant lodged a Skilled (VC 485) Graduate visa

25. [In] October 2012 the review applicant departed Australia

26. [In] October 2012 the review applicant arrived back in Australia.

27. [In] December 2012 both applicants departed Australia.

28. [In] February 2013 both applicants arrived in Australia.

29. On 12 April 2013 the review applicant was granted a VC 485 visa which was valid until 12 October 2014.

30. [In] September 2013 the review applicant departed Australia.

31. [In] December 2013 the secondary applicant departed Australia.

32. [In] January 2014 both applicants arrived in Australia.

33. On 14 October 2014 the review applicant lodged a Student Higher Ed (TU 573) visa.

34. On 14 October 2014 the Student TU-573 visa was granted valid until 15 March 2017.

35. [In] December 2014 the secondary applicant departed Australia.

36. [In] January 2015 the secondary applicant arrived in Australia.

37. On [Date] the third named applicant was born in Australia.

38. On [Date] the fourth named applicant was born in Australia.

39. On 16 February 2017 the review applicant lodged a Student - Higher Ed (TU 500) visa.

40. On 6 March 2017 the Department of Home Affairs sent the review applicant a request for more information in regard to the Student TU-500 visa application.

41. On 3 April 2017 the review applicant lodged a protection visa application.

42. On 21 April 2017 Cessation of Studies/Enrolment Cancelled – Education provider notified department - Student failed to re-enrol. Reason - Unknown

43. On 10 May 2017 the applicant withdrew their application for a Student - Higher Ed (TU 500) visa.

    Applicant’s claims for protection

44. The applicant first made claims for protection when she lodged her protection visa application to the Department.

45. The applicant claims that she is at risk if returned to Pakistan from the Taliban. The applicant is from [City] in the province of Khyber Pakhtunkhwa (previously known as N.W.F.P).

46. She was the first female in her family who reached University and completed a master’s degree.

47. In September 2008, she was appointed as a Lecturer at [a girls’] College [Location], [Division] KPK. During that time, the applicant claims that the Taliban banned girls from getting an education and did not allow them to go schools in [District] [Division] KPK and she volunteered with an NGO in [Division] KPK which was looking for teachers to help them in its campaign to raise awareness of the need for education.

48. The applicant claims that in January 2009, her father received a threatening call from Taliban advising him that his daughter should stop promoting vulgarity and obscenity otherwise she would be killed.

49. In December 2009, she received a call advising her that she should start counting her days.

50. Two days after her arrival back in Pakistan in 2014, two women covered in Burqas knocked on the door of her family home and advised that it would be good for her if she left the country.

51. The applicant claims to be part of the following social groups:

    • Educated and highly qualified girls’ schoolteacher from [District].
    • NGO worker.
    • Known activist against Taliban ideals and values.
    • Secular/liberal residents of [District].

52. The applicant claims that she fears for her safety and that of her family if she is returned to Pakistan due to the ongoing terrorist threat.

53. The applicant claims that the Taliban will kill her for her work of motivating females to get an education. She states that she doesn’t feel safe in any part of the country.

    Applicant’s supporting documentation.

54. The applicant provided the following additional material to the Department in support of his protection claims:

    ·Experience certificate from [Organisation 1] dated 2008/2009

    ·Applicant’s daughter Australia birth certificate dated [Date].

    ·Applicant’s son’s Australian birth certificate dated [Date].

    ·Statement from the applicant in relation to her background, claims and current situation.

    ·Psychologist report from [Ms A] at [Psychological services] dated March 17, 2018.

    ·Notification letter from the Government of NWFP [department] dated [September] 2008.

    ·Letter from the applicant detailing her studies and future plans.

    ·Copies of the applicant’s Pakistani passport.

    ·Copies of the applicant’s husband’s Pakistani passport.

    ·Copy of the applicant’s daughter’s Pakistani passport.

    ·Copy of the applicant’s husband’s Pakistani National ID card.

    • Copy of the applicant’s Pakistani National ID card.

    ·Translated copy of the applicant’s Nikah Nama Marriage Certificate dated [2007].

55. The applicant provided the following additional material to the Tribunal in support of her protection claims. On 9 January 2020 the applicant’s representative submitted the following documents

    ·Written submission from the representative outlining the applicants claims, background and legal submissions.

    ·Website link to a new article and photos of the applicant’s husband’s relative murder by the Taliban.

    ·A photo of the applicant with other people at an Event.

    ·Discharge summary from [a hospital] in [City] in the name of [the applicant’s mother in law] dated 12 July 2019.

    ·Statutory declaration from the applicant dated 14 November 2019.

    ·Word document about recent incidents in Islamabad.

    ·Word document about [Institution] colleague statement documenting [Social media] audio messages between the applicant and a former colleague.

    ·A cut and paste screenshot word document titled ‘Unison of Another kind’ dated 10 February 2017.

    ·Experience certificate from [Organisation 1] dated 2008/2009.

    ·Notification letter from the Government of NWFP [department] dated [August 2013].

    ·Elementary school enrolment confirmation letter dated 20 September 2019.

    ·Photos of the applicant with other people at a claimed event by [Organisation 2].

    ·Document naming applicant as lecturer at college.

    ·[Social media] screenshots from the [Organisation 2] event.

56. On 29 July 2020 the applicant’s authorised representative made the following submissions to the Tribunal:

    ·Newspaper cut-outs and screenshots relating to the Taliban and its involvement in Pakistan.

    ·Flight confirmation booking from Melbourne to Islamabad in the applicant’s name from 2012/2013.

    ·Written submission from the applicant’s representative detailing the region that the applicant would have to return to in Pakistan and that no part of Pakistan is safe for the applicant to relocate to.

57. On 31 August 2020 the applicant’s authorised representative made the following submissions to the Tribunal:

    ·Department of Home Affairs documents relating to the applicant’s non migrating daughter.

    ·Department of Home Affairs documents relating to the applicant’s non migrating mother-in-law.

    ·The applicant’s husband’s academic transcripts from [a named university].

    ·Psychological report from [Ms A] at [Psychological services] dated March 17, 2018.

    ·Psychological report from [Ms A] at [Psychological services] dated July 3, 2019.

    ·Notification letter from the Government of NWFP [department] dated [September] 2008.

    ·Notification letter from the Government of NWFP [department] dated [January] 2009.

    ·[Named] hospital discharge summary dated 4 November 2011.

    ·Email correspondence between applicant and the [Local government] dated November 2018.

58. On 21 September 2023 the applicant submitted an email with the Decision record and Notification letter for her son who isn’t a part of this review.

59. On 9 November the applicant’s authorised representative submitted the following in support of their review with the Tribunal:

    ·The applicant’s [Volunteer provider] identity card.

    ·Remittance advice from [Volunteer provider] dated 29 September 2023 and 29 November 2019.

    ·Untranslated statement from [Mr B].

    ·Document titled “Why relocating to Islamabad is not possible “containing extracts and links to articles.

    ·Psychological report from [Ms A] dated 9 November 2023.

    ·Document titled “Taliban and their facilitators/affiliates are in Pakistan “containing extracts and links to articles.

    ·Document titled “Ethnic of racial profiling of Pashtuns in other parts of Pakistan “containing DFAT country information, as well as extracts and links to articles.

    ·Document titled “Threats/attacks on female teachers and girls’ school by Taliban and extremist groups in different cities in Pakistan “containing extracts and links to articles.

    ·Detailed written information from the applicant’s representative discussing the applicants claims and evidence towards those claims.

60. On 10 November 2023 the applicant’s authorised representative submitted a translated version of the statement made by [Mr B] dated 2 November 2023.

    Hearing Evidence

61. The applicant stated she was born in Pakistan KPK province [City] district. The 2^nd largest city in KPK. Her father moved them to Karachi when she was a child and she claims she was in [grade] when they returned.

62. Her father has passed away and mother sister and brother live in [City] and one sister in [Country 1] and a brother in [Country 2]. She stated that her mother was not educated, and her father was [working].

63. She claims her siblings are not educated and no one from her mother’s or father’s side have reached a master’s level of education. She claims to be the first female in her area to attain such qualifications.

64. She said that she was obsessed with getting an education to the degree she was almost fanatical. She is the [birth order] child in her family and attended school in Karachi and then [specialised] school and always achieved awards. She claims she endured difficult conditions whist studying but was determined to achieve her goals. She stated she speaks English and is now married however her husband has limited English.

65. She always wanted to be a teacher and her teachers inspired her. She wanted to teach like them and has completed a master’s degree in [Subject]. She wanted to be a government lecturer and it is a path which is not straight forward. She explained that the area in KPK province has a department called the [Department] and she initially worked for them.

66. She completed her Masters in 2006 after a teaching qualification and started teaching in 2003. Her first job was as [a Subject] teacher at [Institution].

67. She said it was a college which took students and did not have an age limit and she taught for free in both English and [Subject] from 2003 to 2005. She stated that students from [grade] through to the age of 40 attended.

68. The applicant claimed that it was here that she started to promote education to girls and sent video links about the school and education.

69. She said that there were outside banners advertising the school [near the girls’] College, so they saw it that way as well as through word of mouth.

70. She explained the detail of the lecturers and the structure of the day for students.

71. She was awarded Awards in [Subject] for her studies and left in 2008 and started a job as a lecturer at another Government organisation and remained there until February 2010 when she came to Australia.

72. She has been working in Australia. Initially she started studying and then went for training and went to [Country 3] for a week and had children and stopped work. She works as [a volunteer] for women which is part time.  She has no support or relatives so can’t leave her children and as such does not work full time.

73. She claims that the first time she worried about her safety was in October in 2008 at [a girls’] College. At that time the Taliban started broadcasting that girls should stop going to school. She explained that her students would talk to her. There was an NGO which wanted a volunteer who would talk to the girls and secretly ask parents to keep sending them to school. She became involved in this activity because she was passionate about female education. She said her father received a call to tell him that she should stop.

1. She claims that in their society women do not share their phone numbers with people. It was an indirect threat towards her. She started to fear for her safety. When she started as a lecturer around November 2008, she commenced this voluntary work as well. She did this for one year until December 2009 when she transferred to [another employer].

2. The Tribunal asked for further detail about her work encouraging girls to enrol in education and she stated that she had flexibility in her wok day and if she was not lecturing then she would go out to villages and talk to families. Her father would accompany her and then an NGO van would take them.

3. The response from Pashtun families was mixed. It was sometimes positive and sometimes unwilling due to the adverse pressure from men.

4. She explained the phone call came in January 2009 and so she transferred employment in February 2009. The Tribunal enquired about other threats, and she explained that in December 2009 she received a direct telephone threat from a call at her father in law’s home. When her transfer was made to [another employer] she lived there.

5. She and her younger brother-in-law were at home and he was making breakfast and she picked up the call and he was there and it lasted for 1-2 minutes. The caller said we warned you before and you have not stopped so start counting your days. They asked who it was and she inadvertently said her name. She asked what was wrong with what she was doing. She had no chance to respond as they hung up.

6. She was very upset, and her brother in law reassured her. The college was closed over January, and she stayed at home – when she returned to college she would go at different times not during peak times.

7. She blended with the girls and her husband would drop her off and it was a local college. The applicant provided a copy of the NGO reference to support her work in this field.

8. In January 2014 she returned to Pakistan and two women visited her father stating she had left and said it is good for her she has left, and she surmised they were sent by Taliban. She said that after that she never went back on her father’s advice. She stated that the first threat she didn’t take seriously as maybe it was because she was working, and she upset someone and made an enemy and she never wore a burka and her clothing was never totally covered and short sleeves in considered offensive. ‘She would often be criticised and thought it might be family.

9. However, she said that the second threat was far more serious, and she had no doubt.

10. She had relied upon her father and then father-in-law and following his death her husband for advice. She explained that in Pashtun culture men make decisions for women and it was her father-in-law and husband who discussed the threats and were concerned, and this is why they moved to Australia. She claims it was the first time she had travelled outside of Pakistan, and she has no family support here.

11. It was a considered decision over time. She said that she left great employment, her family and a house and had to start from scratch.

12. The Tribunal asked the applicant why she did not apply for a protection visa immediately when she came to Australia and she explained that she felt that it was for people coming on boats.  The Tribunal stated she is educated and nowhere does protection imply it is for people on boats. She explained that she understands she is educated and could have applied however she had confidence in herself she could obtain PR through study and her husband and father had confidence in her. She felt she would meet the requirements for PR.

13. If she came and applied directly for protection, she believed it would go against the hard work she had put in regarding her career and study.

14. The applicant stated that she did study however her health condition deteriorated when she would sit for tests, and she had no concentration and blames her mental condition. She had no idea what depression was until this. She was not prescribed medication. When she could not sleep, she was then given antidepressant medication.

15. The Tribunal discussed relocation for the applicant and discussed Karachi. The applicant provided detailed submission about why she could not live in a larger city and the KPK have links there. She stated that she is fearful about returning in general.

16. She discussed attacks in Islamabad in schools. She discussed Malala Yousafzai and likened her plight to that. She claims her husband’s relative died in an attack and claims that recently 100,000 Taliban detainees were released, and common people will become the target. She said that female teachers are burnt alive.

17. The Tribunal proceeded to obtain evidence from the applicant’s witnesses.

    Psychologist evidence over the phone

18. The applicant’s psychologist confirmed she has been obtaining treatment since 2017 and sees her regularly once a month. To date she has had 44 sessions. She is diagnosed with depression and PTSD and her psychological situations would be exacerbated by stressful situations.

19. She has been prescribed medication and has had suicidal tendencies.

20. The psychologist stated that she comes from an area where there is a strong presence of the Taliban and social media or news articles trigger her episodes.

21. The psychologist confirmed she has practiced in Pakistan for 8 years. She said there is not much scope in Pakistan for mental health issues and treatment as it is not recognised in Pakistan and taboo and hard to access support with the additional complications of a social stigma. The psychologist stated that the area the applicant is from is one of the most backward and traditional and male dominated and harder for someone like her to get treatment.

    Evidence from the applicant’s husband.

22. The applicant’s husband stated that he was aware she had received three threats and worried about actions. He stated her career is in teaching and if she was to live in Pakistan this is what she is passionate about and he would support her. He stated that she is [an award recipient] she can’t leave; she has always helped people.

23. The Tribunal stated that in Australia she hasn’t worked as a teacher and the witness stated that in Pakistan, she has family support, and they could assist her.

24. He stated that suicide bombings have increased are prevalent.

25. The witness provided media examples of a police officer who was abducted and killed and examples of extortion and an ex-prime minister’s son abducted and he stated that no place is safe from these people.

26. He confirmed that he was not with his wife when the threats were made however, she came into the room and told him and then his brother came in and confirmed the situation. She looked pale and was speaking quickly.  She was very upset.

100.   Her father received the first threat and he told the witness and the second was in front of the brother and the third was when his wife had returned to Australia and they were asking her about her.

101.   He confirmed that his wife has been seeing a psychologist. Her condition worsened in 2016 when she was pregnant and he had no idea what it was and nor did she and can be treated and once her son was born she expressed greater mental health issues.

102.   The witness said that his wife is stressed by being away from her daughter and becomes angry quickly and does not speak normally and prefers to be left alone. He explained that he is often at work when this happens however it happens frequently.

103.   The witness confirmed that he [works].

Witness: [Mr B]

104.    [Mr B] confirmed he was with his sister-in-law in December 2009 and they were preparing breakfast. She picked up the phone and he stated that his brother was upstairs.

105.   He provided consistent evidence and he stated she was very worried and anxious when they were talking to her. They told her to stop promoting education for women.

106.   He explained his knowledge of her activities and stated she was active in girl’s educational and studying for women’s rights however he was unable to state the name of the NGO she volunteered for and he said it was a long time ago and so he doesn’t recall.

107.   They asked her to remain in the house and made sure she can go overseas and get admission elsewhere.

108.   She wanted to go abroad and study. His family believed she would be safe overseas and have protection as a woman. He thinks it is dangerous if she returns to Pakistan.

109.   She has subsequently returned to Pakistan and the Tribunal asked if they had any concerns and he stated that she did not leave the house and came very early in the morning and was undetected.

110.   The applicant explained that her daughter is being cared for by her parents in law because she didn’t want to come to Australia at the time her mother came. She explained that her mother-in-law applied three times to bring her to Australia with no success and the decision to come to Australia was made by her father- in-law.

111.   She is terrified of Pashtun terrorists and has discussed the racism she has faced.

112.   [The applicant] told her daughter that she will complete her studies and then bring her daughter to Australia however this has not been possible to date.

113.   The Tribunal discussed the option of his wife and he relocating to Islamabad however he stated that it is 1.5 hours away and his family will want to visit her and the Taliban are active there as well so he believed she can’t relocate. He also provided examples of police being kidnapped from Islamabad.

114.   The witness discussed the discrimination the face as Pashtuns. He stated that his wife wants to work and needs to work, her mental health is not strong, and she may have to review her teaching requirements again to work. She has medical support in Australia and [volunteers]. He said that she undertakes this voluntarily and wants to help other Pashtun women. It gives her happiness, and it takes her away from her mental state. He explained that she assists them in filling out their forms.

115.   Further, the witness stated that his wife dresses in a contemporary manner and in KPK it is very conservative.

116.   The witness stated that even in Australia his wife has become well known in her support for other women and some people have accused her of being a spy.

117.   The applicant’s lawyer gave an oral submission regarding her time in Australia, her education and teaching work and reinforced the KPK’s heightened activity pertaining to the Taliban. She reinforced the country information pertaining to Pakistan and education of women and working with NGOs as well as her work promoting women’s rights and the manner in which she dresses.

118.   The oral submission reinforced the applicant’s social rejection and discrimination as a Pashtun.

119.   She stated that her client is unwilling to cover herself entirely and as such is perceived to be loose women.

120.   Areas of concern regarding the applicant’s brother-in-law who was unable to name the NGO the applicant worked for was asked to be considered in the context of the detail he provided in regard to other information. The applicant’s lawyer also stated that a legitimate explanation was provided regarding the delay in applying which was her area of study however her decline in her mental health prevented her from further studies in Australia and that protection visa applications for boat arrivals was simply based in her basic understanding of Australian migration law.

121.   The Tribunal discussed the applicant’s daughter who was not on the visa application, and it was explained that her daughter was one when the applicant left and she thought she could get PR and there was many applications however they may consider a child visa if protection claims are accepted. They currently remain in daily contact via Skype.

CREDIBILITY

122.   The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

123.   The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible and must not run counter to generally known facts.

124.   When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

125.   The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

126. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.

127.   The information pertaining to the applicant is consistent with her oral and written claims and supported by her witnesses and documentary evidence. The Tribunal had no concerns with the credibility of the applicant.

128.   COUNTRY INFORMATION

129.   The Tribunal has considered the DFAT Country Information Report 25 January 2022 pertaining to the relevant claims outlined by the applicant. The Tribunal notes the following relevant material in the reports.

Security Situation

130.    2.34 Following improvement over recent years, the security situation in Pakistan has deteriorated since mid-2021. Causes of insecurity include domestic politics, religious extremism, ethnic conflicts, gender-based issues, sectarian hatred, economic hardship, petty and organised crime, tensions with India and the situation in Afghanistan.

131.    2.35 Terrorist attacks increased in 2021, following a six-year downward trend noted by the Pak Institute for Peace Studies. There were 146 terrorist attacks in 2020, killing 220 people and injuring another 547. PIPS recorded 97 terrorist attacks from January-July 2021, which killed 300 people and injured another 765.

132.    2.36 Most terrorist attacks target civilians or security forces, vehicles and outposts. Places of worship, schools, and other buildings have also been targeted.

Pashtuns

133.    3.13 The Pashtuns are an ethnic group native to Afghanistan and northwest Pakistan.

134.   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.

135.   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.

136.    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.

137.   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.

Women

138.    3.89 Pakistan has one of the worst records for gender equality in the world. According to the World Economic Forum’s 2021 Global Gender Gap Report, Pakistan ranked 153 out of 156 countries for female economic participation and opportunity, educational attainment, health and survival, and political empowerment.

139.   3.98 Female journalists, activists and opposition politicians are frequently subjected to online harassment, including threats of physical and sexual violence, on the basis of their sex. Women who participate in the annual Aurat (Women’s) March have been condemned for promoting ‘vulgar’ behaviour and threatened with violence. In 2020, doctored photos of women holding placards deemed insulting to Islam were circulated online, drawing threats and hate speech. See also NGOs, Media and Journalists.

140.   3.99 Militant groups such as the TTP have attacked female teachers and school students due to their ideological opposition to female education. The 2012 shooting of prominent female education activist Malala Yousafzai while she was travelling on a school bus in Swat was a direct response to a series of media interviews in which she argued that girls had a right to education and condemned the TTP. Attacks on girls’ schools continue, particularly in the former FATA, Khyber Pakhtunkhwa and Balochistan. A significant attack occurred against 12 schools in Gilgit Baltistan in August 2018.

141.   3.100 DFAT assesses that women and girls in Pakistan face a high level of official discrimination in the form of inadequate state protection from gender-based violence. Women also face significant legal discrimination on issues such as inheritance, property rights, family law, and civil and traditional judicial processes. DFAT assesses that women and girls in Pakistan face a high risk of societal discrimination and violence, particularly domestic violence, because of their sex. Poor, marginalised, minority, and rural women are particularly vulnerable and lack access to support services.

Non-Government Organisations (NGOs)

142.    3.110 The political environment in Pakistan is generally hostile to international and local NGOs, which are often perceived as a national security threat. Those that can operate face challenges including onerous registration requirements, and restrictions on movement and funding sources. The situation has worsened in recent years. In 2019, memos leaked from the Ministry of Interior claimed international NGOs were involved in ‘anti-state activities’ and worked ‘against Pakistan's security and solidarity’.

143.    3.111 NGOs must register with the Ministry of Interior to operate in Pakistan. The ministry has the power to cancel or deny the registration of any NGO deemed not to be acting in Pakistan’s strategic, security, economic or national interest. This restricts operations in sensitive geographic areas and limits the ability of NGOs to work on sensitive issues. Registration processes are opaque and onerous, and applications are frequently rejected without explanation. According to the US Department of State, international NGOs are required to obtain no-objection certificates (NOCs) before undertaking in-country travel, commencing certain project activities or initiating projects. Long wait times impede operations. International NGOs including Save the Children, the International Crisis Group and the Norwegian Refugee Council have been forced to cease operations in Pakistan in the face of these requirements. Human Rights Watch and Amnesty International no longer maintain offices in Pakistan for the same reasons.

144.    3.112 Human rights activists face threats of violence and harassment from the military, government and militant groups. In September 2020, a group of independent UN human rights experts called on the Pakistani government to end the secret detention of Idris Khattak, an activist and former consultant for Human Rights Watch and Amnesty International who had investigated disappearances in Pakistan’s Federally Administered Tribal Areas. According to Amnesty International, activists, journalists and human rights defenders have been forcibly disappeared by authorities in Balochistan. Among them are Hasaan and Hizbullah Qambrani, who were picked up in February 2020 after participating in protests against enforced disappearances in Quetta. The pair were freed in May 2021 after the Baloch Missing Person’s Camp met with Prime Minister Imran Khan to plead for their release.

145.    3.113 DFAT assesses NGO workers, human rights activists and civil society actors face a high risk of official discrimination and a moderate risk of violence, especially in conflict areas (including Khyber Pakhtunkhwa, DFAT Country Information Report – PAKISTAN - January 2022 35 the former FATA and Balochistan). NGO workers and activists that work on religiously sensitive issues face a moderate risk of societal discrimination and violence, as well as violence from militant groups. Harassment and monitoring by security forces can occur anywhere in the country.

State Protection

146.    5.1 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).

147.    5.2 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.

Internal relocation

148. 5.23 Article 15 of the Constitution guarantees the right to freedom of movement in Pakistan. Internal migration is widespread and common, but it depends on having both the financial means and family, tribal and/or ethnic networks to establish oneself in a new location. Single women find it especially difficult to relocate. For some groups (such as Hazaras), travel by road is unsafe in certain parts of the country, and those who must travel and can afford to fly do so.

149.   5.24 Large urban centres such as Karachi, Islamabad and Lahore have ethnically and religiously diverse populations, and offer some anonymity for people fleeing violence by non-state actors (see relevant sections). Some groups, such as Pashtuns, occupy enclaves in these cities, while others, such as Ahmadis and Hazaras, avoid living in enclaves to reduce the risk of being targeted. Certain types of threats (such as honour killings) are persistent, and even if people relocate they can be tracked down and killed years later. DFAT assesses that groups facing official discrimination will face discrimination in all parts of the country.

Mental Health

150.   The Tribunal has also considered the country information summary report –Pakistan – claims/issues mental health & threat of infanticide – March 2022 which outlines the following:

151.   In 2001, Pakistan enacted the Mental Health Ordinance 2001. Four provinces have passed the ordinance into law, including Kyber Pakhtunkhwa in the North-West of Pakistan and Islamabad.1 Islamabad having enacted the Islamabad Mental Health Act in 2020. According to the WHO Mental Health Atlas 2017 profile for Pakistan, there were 11 psychiatric hospitals in the country, 800 psychiatric units in general hospitals and 578 residential care facilities, all offering in patient care.2 There are a further 3,729 outpatient mental health facilities, of which only 3 are for children or adolescents only. Most mental healthcare is provided in the public healthcare sector; not private.3 Most psychatrists work in urban centres. And the cost of mental health services and medications are subsidised, with people paying approximately 20% of the cost of those provisions.

152.   Although, DFAT disagrees with this assessment. DFAT believes the cost is closer to 70%. It is estimated around 50 million people in Pakistan suffer from mental disorders, including anxiety, depression, bipolar disorder and post-traumatic stress disorder.6 The UK Home office, in its September 2020 report, suggested the conversations regarding mental disorders in Pakistan were limited. Many families believed mental disorders were the result of supernatural matters.

153.   In 2019, the Pakistan Association for Mental Health declared January the month to ‘raise awareness about mental health and erase the long-standing societal stigma against mental illness’. This indicates whilst there are societal problems with mental illness, authorities are actively seeking to assist those with mental health issues and dispel negative perceptions of mental disorders in general.

154.    According to the most recent DFAT Country Report, the overall standard and availability of healthcare in Pakistan is low. In relation to mental health, DFAT said: 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 percent of people with common mental health disorders go untreated. Those who cannot access conventional psychiatric treatment sometimes turn to traditional spiritual healers known as baba, pir or sufi. COVID-19 has reportedly worsened the mental health situation in Pakistan.

FINDINGS

155.   After carefully considering the evidence, the Tribunal accepts that the applicant is an educated Pashtun female from [City] in the province of Khyber Pakhtunkhwa and that she is tertiary educated having completed a masters degree.

156.   The Tribunal accepts that the first and second named applicants are a married couple born in Pakistan and the third and fourth named applicants are children born to the couple in Australia and of Pakistan by descent.

157.   Based on the evidence before it, the Tribunal accepts that the applicant was appointed as a Lecturer at [a girls’] College [Location], [Division] KPK.

158.   Given the references and evidence provided by witnesses the Tribunal accepts that the applicant also worked in a voluntary capacity with an NGO in [Division] KPK which was looking for teachers to help them in its campaign to raise awareness of the need for education for females.

159.   Given the applicant’s work and country information available to the Tribunal, the Tribunal finds it plausible that in January 2009, the applicant’s father received a threatening call from the Taliban advising him that his daughter should stop promoting vulgarity and obscenity otherwise she would be killed. It also accepts as plausible that in December 2009, she received a call advising her that she should start counting her days and that given the plausibility of the two threats and the applicants profile as an NGO worker and female teacher that in 2014, two women covered in Burqas knocked on the door of her family home and advised that it would be good for her if she left the country.

160.   Given the detailed and extensive treatment the applicant has received in Australia, the Tribunal accepts that the applicant suffers from depression and anxiety and relocation of the applicant to anywhere in Pakistan would prove problematic for her ongoing treatment and she would be without family support.

Does the applicant have a well-founded fear of persecution if she returns to Pakistan?

161.   The applicant claims that she fears for her safety and that of her family if she is returned to Pakistan due to the ongoing terrorist threat and her claim that she is a member of a particular social group – namely women coupled with her views that are political – that she believes and has actively sought the education of females and has worked for an NGO in the promotion of these views. Her submissions provided detailed information about her fear of death from the Taliban for her involvement in educating females and her voluntary work with an NGO. Further, the Tribunal accepts based on the country information that these threats are real based on the applicant’s profile.

162.   The applicant claims that the Taliban will kill her for her work in motivating females to get an education. She states that she doesn’t feel safe in any part of the country.

163.   Considering the relevant country information, the Tribunal considers the well-founded fear of persecution extends across all of Pakistan. The Tribunal also finds that, as the agents of persecution are the intelligence and security authorities of Pakistan, the applicant is unable to avail herself of the protection of the Pakistani authorities. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore, the applicant satisfies the criterion set out in s.36(2)(a).

164.    For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

Conclusion

165.   For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations. Therefore, the applicant satisfy the criterion set out in s 36(2)(a).

1. The Tribunal is not satisfied that the other applicants are persons in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, the Tribunal is satisfied that the second, third and fourth named applicants are members of the same family unit as the first named applicant for the purposes of [s 36(2)(b)(i). As such, the fate of their application depends on the outcome of the first named applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.

   DECISION

167.   The Tribunal remits the matter for reconsideration with the directions:

i.that the first named applicant satisfies 36(2)(a) of the Migration Act; and

ii.the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Rachel Westaway
Senior 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.

…