1900900 (Refugee)

1900900 (Refugee) [2024] AATA 1404 (23 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Sophie Vaughan
CASE NUMBERS: 1900900
2005358

COUNTRY OF REFERENCE: Pakistan
MEMBER:Kate Millar
DATE:23 February 2024
PLACE OF DECISION: Adelaide
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 23 February 2024 at 11:43am
CATCHWORDS
REFUGEE – protection visa – Pakistan – arrival by sea – not ‘unauthorised maritime arrival’ or ‘fast track applicant’ as defined and statutory bar does not apply – refusal reviewable by tribunal – duplicate applications combined – ethnicity and religion – Hazara Shi’a Muslim born in Pakistan to Afghani-born parents – incorrect information – brother in Australia not declared – brother had claimed Afghani citizenship – previous deportation from third country to Afghanistan not declared – fear of harm from anti-Shi’a militias – present at suicide bombing and one friend killed – threatened by crowd and reported one named individual to police – increasing claims over time – mental health and treatment – capacity to subsist – wife and young children in Australia – country information – real chance of harm – relocation not reasonable and protection measures limited – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5AA, 5H(1)(a), (b) 5J(1), (5), 36(2)(a), (2A), 65, 427(2)
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan v MIEA (1989) 169 CLR 379
DBB16 v MIBP [2018] FCAFC 178
MICMSAMA v CBW20 [2021] FCAFC 63
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

The applicant is a citizen of Pakistan who arrived in Australia at Ashmore Reef [in] October 2012 and claimed he will be harmed if returned to Pakistan because of his Hazara ethnicity and Shi’a religion.
On 6 December 2012, the applicant was granted a Humanitarian Stay (Temporary) (Subclass 449) visa. At the time he was granted this visa, this was thought to trigger a statutory bar that prevented him making certain other visa applications. Following the decision of the Full Federal Court in MICMSAMA v CBW20 [2021] FCAFC 63, this is not the case.
The applicant applied for a Temporary Protection (Subclass 785) visa on 10 December 2015, and this is the applicant that is the subject of this review. His arrival at Ashmore Reef has affected the progress of this application. Ashmore Reef, or the Territory of Ashmore and Cartier islands, was originally thought to be outside the migration zone, which resulted in arrivals at Ashmore Reef being considered unauthorised maritime arrivals. A refusal of an application by an unauthorised maritime arrival is reviewable by the Immigration Assessment Authority (IAA). However, the Full Federal Court has since determined that arrival at Ashmore Reef does not mean the person is an unauthorised maritime arrival,[1] and the jurisdiction to review the decision to refuse his application lies with the Tribunal.
[1] DBB16 v MIBP [2018] FCAFC 178
At the time his application for the Temporary Protection (Subclass 785) visa was refused, this was thought to result in him being a fast-track applicant, meaning that the decision to refuse his visa was reviewed by the Immigration Assessment Authority (IAA). The IAA reviewed the decision and affirmed the decision to refuse his visa application.
[In] November 2018, the then Federal Circuit Court declared that the applicant is not an unauthorised maritime arrival within the meaning of s 5AA of the Migration Act 1958 (Cth) (the Act), and quashed the decision of the IAA. On 14 January 2019, the applicant applied to the Tribunal for a review of the decision. This is the application to the Tribunal in matter number 1900900.
As a result of the decision in DBB16, the applicant was not properly notified of the decision because he was advised it would be reviewed by the IAA. He was re-notified on 18 February 2020. This resulted in the application to the Tribunal in matter number 2005358.
Both matters before the Tribunal relate to the same decision, that is, the decision made by a delegate of the Minister for Immigration and Border Protection on 25 August 2016 to refuse to grant the applicant a protection visa under s 65 of the Act. The two applications are duplicate applications. Under s 427(2) of the Act, the Tribunal must combine the reviews made in respect of the same non-citizen, and this is the decision in relation to both applications for review.
The applicant appeared before the Tribunal on 6 October 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages and the applicant was represented in relation to the review.
For the following reasons, the Tribunal finds that the applicant is a refugee as defined in s 36(2)(a) of the Act, and the application should be remitted to the Minister for reconsideration.
BACKGROUND
The applicant was born in Quetta, Pakistan. His parents were born in Afghanistan and obtained Pakistani citizenship, and he obtained Pakistani citizenship on his birth. His father is a retired [Occupation 1], and his mother is now deceased.
The applicant’s father is in Quetta. His oldest brother, [Mr A], is in in Australia, and his sister [Ms B] is also in Australia. His brother, [Mr C], and sisters [Ms D] and [Ms E], are in Quetta. [Mr C] has a drug addiction and often disappears for periods of time.
[Mr A] came to Australia in 1999 or 2000 and was in Australia when the applicant arrived. The applicant did not say his brother was in Australia because he did not want to have a negative effect on his brother’s case. His brother had claimed to be Afghan because at the time a claim from Afghanistan was stronger.
The applicant attended school from five or six years of age until he was 18 or 19 years old. After leaving school, he was unemployed for a few months before his father bought a [Vehicle] for him to start working as [an Occupation 2], which he did for about a year before his father wanted him to return to study and the [Vehicle] was sold. He studied at a language school for a period before his father had financial problems and he left his study to work in a [shop]. In 2006 or 2007 his father purchased another [Vehicle] and he recommenced working as [an Occupation 2].
The applicant first left Pakistan in 2009 and travelled to [Country]. He was detained by [Country] authorities on arrival. He gave the authorities in [Country] a false name and told them he was from Afghanistan. He was deported from [Country] to Afghanistan in approximately April 2009, and his father arranged for someone to drive him back to Pakistan. The applicant said his father told him to be deported to Afghanistan because if he returned to Pakistan he would be detained for six months. Other people from Pakistan were deported back to Pakistan and were detained or money was demanded as a bribe.
Since arriving in Australia, the applicant has worked, initially as [Occupations], but now in [other Occupations].
He said he has married in Australia and has two children. His wife [came] to Australia on a spouse visa and divorced her previous husband. He said they have two children, one born in [Year] and one born in [Year].
LEGISLATION
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). 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).
Under s 5J(1), a person has a well-founded fear of persecution if:
·     The person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
·     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 meet the criteria for the grant of the visa in s 36(2)(aa) of the Act 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.
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal must take into account the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs. It must also take into account, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The current country information report prepared by DFAT is the DFAT Country Information Report Pakistan dated 25 January 2022 (the DFAT report).
CLAIMS
In a statutory declaration dated 18 October 2013, the applicant claimed that when he first left Pakistan in 2009, he left because incidents were occurring every two to three months, with anti-Shi’a militias targeting and killing Hazara Shi’a people. He states the militias also target taxi drivers travelling on Karani Road and Hazara Town Road, the main roads going into the Hazara areas. The militias are now coming into the Hazara areas and killing Hazaras in suicide bombings and targeted killings, and that Laskar-e-Jhangvi (LeJ) has used the media to warn Hazara people to leave Pakistan.
In his statutory declaration dated 20 January 2021, the applicant adds that he was at an Ashura Day parade at [Location] in March 2004 when a suicide bomber attacked the parade in front of him. He claims to have seen the body of the attacker after he was killed by police and that one of his friends was killed in the attack.
In his 2021 statutory declaration, he adds that the security situation deteriorated further for Hazaras in 2011 and a car driving in front of his taxi exploded which he was caused by a bomb. He was highly traumatised, and returned home but could not leave the house for three days. He later claimed that he was taking medication to assist with trauma but had not yet seen a psychologist.
As a taxi driver he was always afraid something would happen to him. After the killing of Hazara people in 2011 he went to the mosque, waiting for dead bodies to be brought to the mosque. [Mr G], the chief of [named] Imambargaah Society, received a call from a Pashtun man [Mr H] who could not get home through the Hazara men protecting the mosque, and asked for some Hazara men to escort him home. [Mr G] asked the applicant and another man, [Mr I], who is a well-known former [occupation], to assist [Mr H]. When they went to collect him in the taxi, there were 200-250 Pashtun people around [Mr H]. About 25 people followed [Mr H] to the taxi when he called him over and surrounded them and started searching them. A man called [Mr J] told others to hit them because they were Hazara. The crowd started hitting them and broke the glass in the windows and doors of the taxi. The man called [Mr J] pulled out a gun and fired at the windows, which created a path for them to run. They ran off. The police heard the firing and came out from a nearby police station and fired into the air, allowing them to get away.
They went to the police station and reported what had happened, telling the police [Mr J]’s name. The applicant is afraid this will happen again because the police recovered the taxi, and he fears that people will know who he is from the taxi number plate. After this happened, he was always afraid when he drove his taxi. He was also afraid [Mr J] would find out he had been named in the police report and kill him.
There is a different account of these events in the applicant’s 2021 statutory declaration, where the applicant claims [Mr G] called [Mr I], who was a well-known community leader and retired [occupation], who then called him to use his taxi, as [Mr I] often used his taxi services. He claims [Mr I] was the head of Tehrik-e-Nafaz-fiqh-e-Jafaria (TNFJ) in Balochistan at the time. In this account he states a shot was fired through the windscreen and as they were running away he saw the person who tried to shoot him and heard that person called by the name [Mr J]. While they were running, [Mr J] continued to try to shoot them and others chased them, throwing bricks and stones. [Mr J] continued to try to fire at them until the police at [named] Road fired into the air and the crowd ran away.
He adds in his 2021 statutory declaration that in 2012 he received two phone calls from an unknown number. The person who called identified themselves as representing LeJ and stating it was their duty to kill him because he is Hazara and Shi’a. At the time he suspected it was [Mr J] who tried to shoot him in September as he thinks [Mr J] is a member of the LeJ.
He further claims in his 2021 statutory declaration that relocation in Pakistan would involve living without his family, ethnic or religious support and would exacerbate his trauma related mental health symptoms. He claims that experiencing hypervigilance and traumatic stress will severely impact his ability to function, including his ability to obtain employment. As a result, he claims he will be unable to obtain employment and without employment will not be able to rent or purchase a property. He will be required to live in slums and would not have access to necessities.
The applicant said at the hearing that his father, sisters and brother are safe when they are in Quetta if they do not go outside the Hazara area, however he and his brother support them, and he would not be able to get work in the area other than unreliable shop work. He could not get a [job]. He says his family in Australia will not financially support him if he returns to Pakistan, and his brother will only support his father.
The applicant said he had mental health problems in the past and was prescribed medication. He is not on any regular medication now and only takes medication when he is anxious. He has not seen a doctor for his mental health since he moved to South Australia in 2021. His medication has lasted a long time without seeing a doctor as he doesn’t take it regularly.
He cannot live elsewhere in Pakistan as people who are Hazara are recognised, and they are at risk from the LeJ.
ASSESSMENT OF CLAIMS
The applicant acknowledged his brother [Mr A] has lived in Australia since 1999 or 2000 and was in Australia when he arrived. On being asked why he did not tell the Department his brother was in Australia, he said that he did not want to have a negative effect on his brother’s case as his brother had claimed to be a citizen of Afghanistan to make his case stronger.
The applicant was deported from [Country] to Afghanistan, and said he was deported to Afghanistan because his father told him he would be at risk of being imprisoned for six months if he returned to Pakistan. This account is contrary to the DFAT report on Pakistan which states that people who are returned involuntarily or returned on emergency travel documents and those who left Pakistan on valid travel documents and who have not committed any other crimes are generally released within a couple of hours. If there were examples of lengthy detention following return to Pakistan, this is likely to be reported, and the Tribunal could not locate any such reports.
The applicant was returned to Afghanistan and claimed to be Afghani. Given his brother’s experience, the Tribunal considers the claim to be Afghani was to help the applicant bolster his claims for protection at that time.
As a result of the applicant’s past untruthfulness about his relationship with his brother in Australia and his past claims to be a citizen of Afghanistan the Tribunal places less weight on his oral evidence where it is not supported by other evidence.
The applicant’s claims to fear harm from the LeJ have increased over time. In his statutory declaration of 18 October 2013, [Mr J] was the man who fired at his taxi and who he reported, with no reference to [Mr J] having a connection with the LeJ. In his statutory declaration dated 5 December 2015, he again states [Mr J] is the person who fired on his taxi, again without mention of the LeJ.
In his 2021 statutory declaration, the applicant claims he received calls after this incident from people saying they were representing the LeJ and he suspected it was [Mr J].
At the hearing on 6 October 2023, he claimed [Mr J] is a member of the LeJ and he knows this because [Mr J] had an LeJ flag outside his shop. He said he had not mentioned this before because he had never been asked this specific question. He does not know if [Mr J] is still in Pakistan. He claimed that even after a period of over 10 years, “they will know me or recognise me”.
The Tribunal rejects his claims that [Mr J] is a member of the LeJ and his claims that he is sought by members of the LeJ, or of any interest to the LeJ separate to his Hazara ethnicity and Shi’a religion.
As he did not know the full name or specify that [Mr I] is the head of the TNFJ in his ealier claims, the Tribunal also rejects this claim.
The account that [Mr G] called the applicant, and that a person named [Mr I] went with him in a taxi to assist [Mr H] has been consistent over time. The applicant provided a copy of what he said was a police report, but which was not translated, with his application for the visa. He provided a translation of this document prior to the hearing. The document itself does have any letterhead. It is expressed as a letter from the applicant to police. This account is different again, stating a group of people went with the applicant in the taxi. This account claims a pistol was drawn and fired at [Mr I] and the window of the applicant’s taxi. There is an attached map of the incident which has a date of [September] 2011, and which has a signature but no designation of the signatory, and there is nothing on the handwritten document to indicate its source, such as a letterhead or stamp.

While the only corroborating account is a handwritten statement and map, this claim has been consistent over time, and is also consistent with reports of heightened tension in the community following the shooting of Hazara people on a bus travelling in the Mastung District, with the LeJ claiming responsibility for these deaths.[2] I accept a crowd had gathered at the collection point, and shots were fired. On balance, I accept he reported this to police and named a person “[Mr J]”. I accept that his taxi was damaged and returned later, but I do not accept that he is at any increased risk of harm because he would be associated with the taxi or because he reported this to the police.
[2] Pakistan’s minority Hazaras live in fear | Features | Al Jazeera
There is no material corroborating his claim that he was called later by [Mr J], and this claim was only made prior to the hearing. I reject that claim.
For the reasons given above, I do not accept that [Mr J] has a particular role with the LeJ or would target the applicant on his return.
The Tribunal accepts the applicant may have been present for other incidents in Quetta including a taxi in front of him exploding and the bombing of an Ashura day march. While this does not add to his claim that he faces a specific risk from [Mr J], it does contribute to the claims that he has suffered trauma.
The applicant provided a letter from [Dr K] dated 9 February 2021. [Dr K] is a general practitioner who practises in Western Australia. [Dr K] states he has been seeing the applicant on a regular basis since November 2013 for depressive anxiety due to PTSD. [Dr K] reports the applicant is easily frightened and startled, has trouble sleeping and concentrating and becomes irritable. [Dr K]’s opinion is that if the applicant leaves Australia his PTSD and depression will become severe and there will be a risk of suicide if his PTSD is exacerbated and is not controlled by medication.
The applicant’s condition has stabilised, and at the hearing he said he has not seen a doctor for this condition since 2021. He states he occasionally takes medication but has not required a prescription for medication since he left Western Australian over two years prior. While his condition may be exacerbated if he leaves Australia, his condition is currently stable, and the risk of his condition deteriorating, while real, is slightly lower given this period of stability.
The Tribunal accepts the applicant is Hazara and Shi’a and has experienced traumatic events including the firing of shots in his vicinity and through the community response to the killing of of members of the Hazara Shi’a community and attacks on the community.
Risk of harm to those who are Hazara and Shi’a in Pakistan
The circumstances in Pakistan have been unsettled with the Taliban taking power in Afghanistan and the arrest of former Prime Minister Imran Khan on corruption charges. The arrest of Imran Khan led to his supporters attacking police officers and the military, and thousands of members of his political party are reported to have been arrested.[3] People considered to be Afghan nationals are being expelled from Pakistan to Afghanistan in large numbers.[4] Elections were delayed before being held on 8 February 2024, with allegations of vote-rigging.[5] A coalition of six parties seems likely to form government, but independent candidates associated with Imran Khan claim to have won a majority and to be the victim of vote rigging and manipulations of results.[6]
[3] Human Rights Watch World Report 2024.pdf
[4] ‘What’s wrong?’: The silence of Pakistanis on expulsion of Afghan refugees | Refugees News | Al Jazeera
[5] Pakistani Official Admits to Helping Rig Vote - The New York Times (nytimes.com)
[6] ‘Mandate thieves’: New Pakistan government takes shape amid slew of jabs | Elections News | Al Jazeera
Hazaras are reported by DFAT to be an ethnic group of distinct East Asian appearance, and most are Shi’a Muslim, although some are Sunni.[7] Most live in enclaves in Quetta due to the security situation.[8] Shi’a Muslims constitute approximately 10-20% of the population. Except for those who are Hazara, most are not physically or linguistically distinguishable from Sunnis.[9] As Hazaras can be identified both by their physical features and by their language, the ethnicity and actual or presumed religion are irretrievably intertwined, and people who are Hazaras must be considered both by ethnicity and by actual or presumed Shi’a religion.
[7] The DFAT report [3.3]
[8] Ibid
[9] Ibid [3.55]
DFAT reports that the most prominent domestic jihadist organisation operating in Pakistan is Tehrik-i-Taliban Pakistan (TTP). While the majority of the attacks are to undermine the influence of the Pakistani state, the long term goal is reported to be to overthrow that state and establish Shi’a law and an Islamic caliphate.[10] While separate from the Taliban in Afghanistan, it is ideologically aligned, and TTP attacks in Pakistan have increased since the Taliban seized power in Afghanistan.[11] DFAT reports the TTP focuses on attacking the miliary and government representatives but has continued to assassinate political and religious leaders and target religious minorities including Shi’a, Ahmadi and Christians.[12]
[10] Ibid [2.39]
[11] Ibid [2.40].
[12] Ibid
DFAT reports that anti-Shi’a sectarian groups including the LeJ operate in Pakistan. The LeJ is a radical Sunni militant group that seeks to eradicate Shi’a influence from Pakistan.[13] The LeJ is reported to have carried out targeted and fatal attacks on Shi’a communities and Hazaras.[14]
[13] Ibid [2.41]
[14] Ibid
DFAT reports that:
Militant groups including, LeJ and IS (see Armed Groups) consider the Hazaras ‘infidels’ who are ‘worthy of killing’. A 2019 report by the NCHR said at least 2,000 Hazaras had been killed by militants in Pakistan since 1999 ‘in various incidents including bomb blast, suicide attacks and target killings’. No one has been held accountable for these attacks. Hazara political and religious leaders have been targeted for assassination. In April 2019, a bombing in Hazarganji market killed 24 people, many of them Hazaras. In January 2021, IS militants killed 11 Hazara miners in Mach. While there have been no attacks outside Balochistan since 2014, Hazaras have previously been targeted in Karachi, Peshawar and elsewhere. Militant groups retain the intent and capacity to attack Hazaras throughout Pakistan.[15]
[15] Ibid [3.5]
The overall assessment of DFAT in 2022 was that:
Hazaras in Balochistan face a high risk of violence from militants on the basis of their ethnic and sectarian identity. Outside Balochistan the risk of violence for Hazaras is moderate. Hazaras face a higher risk of violence than other Shi’a due to their distinctive appearance and segregation. Outside Balochistan, DFAT assesses Hazaras face a low risk of societal or official discrimination, but notes relocation to these areas is difficult or impossible for many.[16]
[16] Ibid [3.12]
The situation for people who are Shi’a has deteriorated since the DFAT report. Human Rights Watch, in its 2023 World Report,[17] states that “Blasphemy-related violence against religious minorities, fostered in part by government persecution and discrimination laws, intensified.” Attacks by Islamist militants, notably the Islamic State Khorasan Province (ISKP), targeting law enforcement officials and religious minorities, have killed dozens of people in 2023.
[17] World Report 2023: Pakistan | Human Rights Watch (hrw.org)
People who are Shi’a are disproportionately accused of blasphemy, which requires the death penalty to be imposed, with DFAT reporting 70% of blasphemy cases in 2020 were against Shi’a.[18]
[18] Ibid [3.34]
The Centre for Research and Security Studies[19] reports that violence-related fatalities in Pakistan in 2023 were at a six-year high, with a 56% increase in violent attacks It is reported Balochistan and Khyber Pakhtunkhwa account for 90% of fatalities and 84% of attacks.
[19] crss.pk/wp-content/uploads/2024/02/CRSS-Annual-Security-Report-2023_Full-Version_MM-V5_SAP.pdf
The New York Times[20] reports that in September 2023 a suicide bomb blast killed 52 people in a religious procession in Mastung, a district of Balochistan. This can be seen in the context of the killing in 2011 of a group of 26 Hazaras in Mastung after being taken off a bus, separated from Sunni passengers and shot.[21] This is similar to the circumstances in which the applicant’s taxi was attacked.
[20] 'Blast Kills at Least 52 at a Religious Gathering in Pakistan', Zia ur-Rehman and Christina Goldbaum, The New York Times, 29 September 2023, 20231003105924
[21] 'Pakistan: The Unabated Killings of the Hazaras', South Asia Terrorism Portal (SATP), Undated (accessed 8 May 2023), 20230508133921
The Tribunal finds that because of the applicant’s Hazara ethnicity and Shi’a religion, and as people who are Hazara are readily identified by their facial features in Pakistan, there is a real chance the applicant would suffer harm if he were to return to Quetta. This is heightened by the likelihood that he would have to leave the Hazara areas to obtain work.
The types of harm that the applicant may suffer include a threat to his life and a denial of capacity to earn a livelihood of any kind in such a way that threatens his capacity to subsist. These are types of harm that are serious harm in s 5J(5) of the Act.
As the applicant fears being persecuted for reasons of his race and ethnicity, s 5J(1)(a) is met. As there is a real chance that if the applicant is returned to Pakistan he would be persecuted for these reasons, s 5J(1)(b) is also met.
Can the applicant relocate in Pakistan?
Under s 5J(c) of the Act, to have a well-founded fear of persecution, the real chance of persecution must relate to all areas of the receiving country.
The applicant is from Quetta, which is in Balochistan province. DFAT reports that outside Balochistan, the risk of violence for Hazaras is moderate. The term “moderate” is explained in the DFAT report to be that DFAT is aware of sufficient incidents to suggest a pattern of behaviour.
A real chance does not need to be a 50% chance or some percentage,[22] and DFAT states that there is a moderate risk of violence against Hazaras should they move outside of Balochistan. The applicant cannot relocate, and he has a well-founded fear of persecution in all areas of Pakistan.
[22] Chan v MIEA (1989) 169 CLR 379
Effective protection measures
The applicant will not have a well-founded fear of persecution if effective protection measures are available to him in Pakistan (s 5J(3) of the Act).
Effective protection measures will be available if the applicant can access the protection, the protection is durable, and if the protection is provided by the State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
DFAT reports that state protection in Pakistan is limited due to under-resourcing, corruption, socio-economic factors at the individual level, and a lack of political will;[23] Prosecution for sectarian violence is reported as rare 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.[24]
[23] The DFAT report [5.1]
[24] Ibid
The Tribunal finds that effective protection measures are not available to the applicant.
CONCLUSION
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Kate Millar
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.
…

[2024] AATA 1404

23 February 2024

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