1905032 (Refugee)

1905032 (Refugee) [2024] AATA 3630 (20 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Simon Leske (MARN: 5511195)
CASE NUMBER: 1905032

COUNTRY OF REFERENCE: Pakistan
MEMBER:Andrew Verduci
DATE:20 May 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 20 May 2024 at 9:46am

CATCHWORDS
REFUGEE – protection visa – Pakistan – political opinion – Village Defence Committee member – opposition to the Taliban – race – Pashtun – attack on home – threat letter from Taliban – fear of killing – car shooting – mental health issues – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424, 499
Migration Regulations 1994, Schedule 2
CASES
SZBYR v MIAC (2007) 235 ALR 609
SZTGV v MIBP (2015) 318 ALR 450
WAGP of 2002 v MIMIA (2002) 124 FCR 276
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 [an age]-year citizen of Pakistan who does not have the right to enter and reside in any other country. He arrived in Australia [in] May 2018 as the holder of a Class ZM Subclass 988 Maritime Crew visa on board a merchant vessel which he deserted the following day.
He applied for a protection visa which a delegate of the Minister for Home Affairs refused to grant under s 65 of the Migration Act 1958 (Cth) (the Act). This is a review in relation to that application.
Protection visa application
The applicant applied for a protection visa on 19 June 2018. He claimed to fear harm for the following reasons which I have summarised:
·He was a member of the Village Defence Committee (VDC) in [Village 1], a village in the Swat Valley of Khyber Pakhtunkhwa in Pakistan. He helped the army identify Taliban and did night patrols when he was not at sea.
·He received a warning letter in March 2017, followed by a raid on his residence in May 2017. Masked men entered and he jumped over the wall and escaped unharmed.
·A car he was travelling in was shot at in March 2018. He escaped unharmed but his friend was injured.
·He was attacked by masked men with a knife in Karachi but managed to escape.
·He attempted to desert his ship in the past but was unable to due to tight security. He deserted due to ongoing threats to his life.
·There is no state protection or place to relocate as the Taliban have networks everywhere.
·As a Pashtun he would be deemed a terrorist if he moved to Punjab.
Delegate’s decision
The delegate did not accept that the applicant was ever actively involved in a VDC or that he had an anti-Taliban political profile of any sort. The delegate did not accept that his claims to have been targeted were credible. The delegate found that the applicant did not have a real chance of serious harm, or a real risk of significant harm and did not satisfy the criteria in s 36(2) of the Act.
Application for review
The applicant applied for a review with this Tribunal in March 2019. This application was only constituted to me in March 2024, but the length of time it has taken this application to be considered by this Tribunal overall is regrettable.
I received submissions from the applicant prior to the hearing. They included:
·A legal submission prepared by his representative with accompanying country information;
·A statutory declaration of the applicant dated 2 May 2021;
·A psychological report by [Doctor A] dated 5 May 2024;
·A letter [Doctor B] dated 3 April 2023; and
·A copy of the bio-data page of the applicant’s passport.
I have considered and placed some weight on this material.
Tribunal hearing
The applicant appeared before me on 13 May 2024 to give evidence and present arguments. The applicant’s representative was also present and made oral submissions. The applicant also had a support person with him during the hearing.
We were assisted by an interpreter in the Pashto and English languages. The applicant’s ability to communicate via the interpreter, and the quality of the interpretation, was confirmed with the applicant at the beginning and end of the hearing. His representative also made submissions that he was told that the quality of interpretation had been very high which and that the interpreter had a dialect very close to the applicant’s own village.
Mental health
The report from [Doctor A] and the letter from [Doctor B] raised issues about the applicant’s mental health. The report from [Doctor A] in diagnosis the applicant as experiencing major depression, severe anxiety, panic attacks and Post Traumatic Stress Disorder. The report says that the applicant is likely to give incomplete and fragmented responses in any extended interview situation. It also gives the applicant a cognitive assessment below the ‘conventional threshold of a “disability”’ based on an ‘actual’ score, a matter also noted by his representative during oral submissions. The report elevates the applicant’s ‘potential’ score to slightly above the disability threshold once additional factors are considered.
I have placed weight upon the diagnosis and recommendations in this report. I have also placed some weight upon the fact that [Doctor A] has only been treating the applicant since September 2023, and that prior to this the applicant was only seeing a G. P. for his physical and mental health needs. I have also placed some weight upon other factors, such as how the applicant engaged and participated during the hearing. It was necessary for a question to be repeated or rephrased at times, however the applicant was attentive and engaged throughout the hearing. The hearing was also adjourned twice to provide the applicant with mental health and comfort breaks as I considered necessary. He was not prevented from discussing his case in private with his representative and/or support person during those breaks, and no request was made to adjourn the review because of mental health concerns.
I have also placed some weight upon the applicant’s previous employment in Australia and his expressed desire for ongoing employment in the future. This demonstrates some ability to be engaged with his surroundings, albeit not in the same context as appearing at a hearing and giving evidence. He is not currently employed, and I place some weight upon his evidence that he worries about his mental health and his family overseas, as well as takes medication. At the beginning of the hearing the applicant confirmed that he had taken a Panadol that day but no medication that might impair his memory or ability to recall information and give evidence.
Weighing up all the circumstances I am satisfied that the applicant was provided a genuine and meaningful opportunity to give evidence and present arguments. For reasons explained below, I do not find some of his evidence persuasive. I do not accept that my concerns about his evidence are reasonably explained by his mental health. I have not drawn an adverse inference from vague or disjointed evidence about peripheral or inconsequential matters. I have drawn an adverse inference where his evidence to me at hearing about key claims and events is inconsistent with the claims and evidence that he has given elsewhere about those same matters.
Inconsistent evidence
I have also considered to what extent, if any, the applicant’s inconsistent evidence engages the Tribunal’s procedural code in s 424A of the Act. I am guided by what the High Court has said in relation to this.
For example, in SZBYR v MIAC, the Court held:
However broadly ‘information’ be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence… the relevant ‘information’ was not to be found in inconsistencies or disbelief as opposed to the text of statutory declaration itself (emphasis added).[1]
[1] SZBYR v MIAC (2007) 235 ALR 609 at [18].
And in WAGP v MIMIA:
A conclusion on the part of the [Tribunal] that there is an inconsistency between two pieces of information is not, of itself, ‘information’ for the purposes of s 424A(1). It is no more than an observation made by the [Tribunal] in dealing with a conflict between information given by the appellant, and a claim made by him in support of his application (i.e. his assertion that he had received repeated ultimatums to leave Iran).[2]
[2] WAGP of 2002 vMIMIA (2002) 124 FCR 276 at [33].
Also, in SZTGV v MIBP,[3] the Full Federal Court confirmed that ‘information’ is related to the existence of evidentiary material or documentation and not the existence of doubts, inconsistencies or an absence of evidence. In that case, what had not been said at a compliance interview, the assertion of a forensic principle that if the applicant’s version were true then he would have mentioned it at that time, and a deduction by the Tribunal that because it was not mentioned at that time the account was false, was found not to constitute information within the meaning of s 424A.
[3] SZTGV v MIBP (2015) 318 ALR 450 at [102], [103] and [134].
I have raised inconsistencies in the applicant’s evidence with him during the hearing and I have considered his responses and the submissions made by his representative in response.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
I accept that the applicant is approximately [age] years of age. He is a citizen of Pakistan who was born in [Village 1] in the Swat Valley, Pakistan. He is Pashtun and a Sunni Muslim. His family includes biological parents and [specified family members]. His father, mothers and most of his siblings are alive and live in [Village 1]. One brother lives in [Vountry 1].
He married his wife in, or around, 1999 and they have [number] children together. His wife and children live in [Village 1].
He speaks regularly with his family. He last spoke to his wife and children two days before the hearing and his father approximately 15 days before. He also talks regularly with his siblings.
I accept that the applicant has been employed as seafarer since approximately 2003. He would travel to Karachi seeking seafaring contracts. A contract would take him to sea for around eight to nine months and he would travel to a number of different countries whilst on board the vessel. He would return home to [Village 1] and stay for two to three months before going away on another seafaring contract.
Threat from Taliban / anti-Taliban opinion
Member of a Village Defence Committee
I do not accept that the applicant is, or was, a member of a Village Defence Committee (VDC) in [Village 1].
Village Defence Committees, peace lashkars or peace committees exist in Khyber Pakhtunkhwa. These committees are empowered to help oppose militant groups, deal with security issues and bring peace in area. Activities may range from watching for terrorist activity to actual engagement against terrorist groups as armed tribunal militias. A member of a VDC or peace committee, and their families, are assessed as facing a moderate risk of violence by militant groups.[4]
[4] DFAT Country Information Report: Pakistan (January 2022) (DFAT Report), at para [3.83] – [3.85] (>
I do not accept that the applicant is or was the person representing his household in the VDC. If he joined a VDC in 2009, he was already six years into his career as a seafarer. He was aware that he would be away from [Village 1] for extended periods of time and would therefore have a very limited ability to participate. He was also living in a household with this father and siblings, including [specified family members]. His father and brothers lived in the village and, unlike the applicant, were available all year round.
According to the delegate’s decision, a copy of which the applicant gave to the Tribunal, the applicant and his uncle were members of the VDC. He did not suggest that any members of his immediate family were involved. In evidence to me, he said that his father and a brother were involved and would replace him when he was not there. I am concerned about the inconsistency of such a critical matter such as which family members were involved. It is not a discrepancy about a specific date or sequence of events that might reasonably be explained by poor mental health and the applicant has not been able to provide a reasonable explanation why this evidence is inconsistent.
I have placed some weight upon the VDC membership card before me. However, and as discussed with the applicant during the hearing, I have also placed weight on the prevalence of document fraud which exists in Pakistan and the apparent ease at which genuine documents can be altered or fraudulent documents created.[5] The mere existence of this purported membership card does not outweigh the remainder of my concerns about the evidence in this application.
First warning letter – March 2017
[5] DFAT Report, para [5.52] – [5.55].
I do not accept that the applicant was sent a letter in, or around, March 2017 warning him to leave the VDC.
I have concerns that he would not have come to any adverse attention from militants until March 2017 if he were actively involved in the VDC since 2009. He did not identify any particular event that might have caused him to become of interest in 2017 but not before. I have considered, and do place some weight upon, country information which indicates a surge or escalation in violence since around 2021, particularly as it applies to the Khyber Pakhtunkhwa region.[6] I also place some weight on the fact that he would be away from [Village 1] for long periods of time when on a seafaring contract.
[6] DFAT Report. See, for example, para [2.34] – [2.37] and [2.38] – [2.41].
I am also concerned about the plausibility of his response to this warning letter. He claims to have received a warning letter under his door, objectively demonstrating that the militants knew who he was and where he lived. This scared him enough to report the letter to the VDC leader and to adopt what he described as a ‘low profile’ but did not scare him enough to report the threat to the police or army. If he were concerned that he had been identified by militants and feared being harmed from them, I do not accept that he would continue his involvement with the VDC or that he would reasonably consider himself safe because he was only doing night patrols. I do not accept that it was not reported to the police or army because they would be unable to help. I have also placed some weight upon the applicant not having, or being able to produce, a copy of the warning letter he said that he received.
Home attack – May 2017
I do not accept that militants came to the applicant’s home in May 2017 looking for him.
In his visa application, his written claims refer to ‘masked men’ entering his residence. His statutory declaration also describes three masked men entering his house.[7] In his oral evidence to me, the militants did not have their faces covered. The applicant caught a glimpse of them as they entered his house. His wife and children also saw their faces but did not recognise them. I am concerned about, and place some weight upon, this inconsistency.
[7] Statutory declaration of the applicant dated 2 May 2021, para [32] and [33].
He gave oral evidence to the delegate that he was able to escape because his children were playing outside, saw that militants were coming and came inside and warned him. He escaped by jumping a side wall to his house. This is inconsistent with his oral evidence to me that his children opened their front door because there was hard knocking on it. He caught a glimpse of the militants when the door was opened so he fled. He identified them as Taliban because they had long beards and were carrying guns. Whilst either version of this account, if accepted, would be a reason for finding that the applicant is owed protection obligations, I am concerned about, and place some weight upon, the internal inconsistency in his narrative of events.
If the Taliban came to the applicant’s home, carrying weapons, after having already warned him to leave the VDC, I am concerned about his evidence that they took no action against the applicant’s family just because the applicant himself managed to escape. After entering the applicant’s home and talking with his wife and children about his whereabouts, I do not accept that armed Taliban members, who had already sent a warning letter and were now going to his house in person, would leave just because the applicant was not there. It is not plausible, and I do not accept, that threats or harm would not have been directed to his wife and/or children if he were not there.
There is also inconsistent evidence about what happened next. In his statutory declaration, he says that he contacted the army checkpoint and was asked to come to the check post. He went and informed the army about the incident. The army conducted a search operation in the area but did not locate the militants. In oral evidence to me, he said that he went to his cousin’s house but did not report the incident to the police or the army. He returned home the following day because he assumed it would be safe. His later explanation that the VDC reported the incident to the army because they reported all incidents to the army is also inconsistent with his earlier evidence and I do not accept it. I place some weight upon this significant inconsistency.
This incident would also demonstrate a significant escalation of attention being given to the applicant and his involvement in the VDC. He received no threats for the first seven years, but then receives a warning letter and visit at his home in the space of a few months. Despite this, the applicant continued his involvement in the VDC. I do not accept that he was at less risk because he was keeping a low profile or only engaging in night patrols. It is difficult to reconcile the act of keeping a low profile, and staying indoors during the day, with voluntarily continuing night patrols with the VDC. His ongoing involvement in the VDC included patrols with up to five other people at a time. His ongoing involvement with the VDC was therefore known to other villages. It is implausible, and I do not accept, that it was not clear to others who was involved in a night patrol or that he would not have been worried about what the other people he was patrolling with might say.
Car attack – 2018
I do not accept that the applicant was targeted and shot at by the Taliban in 2018 when he was travelling in a car.

First, it is implausible that the applicant would have continued his involvement with the VDC if he had already received a warning letter and visit to his home from Taliban members in 2017.
His evidence about this incident is also vague and speculative. The incident is said to have occurred in 2018 when he was travelling in a car with two other people. He said to the delegate that they were driving to the VDC office but said to me they were not going anywhere in particular. In any event, they were driving along a road with small houses on the side. Their car was shot at by people he did not see. He admits that he does not know if they were Taliban or anyone else, such as opportunistic criminals. He is not sure how the Taliban would have known to target him in the car on the road, except to suggest that someone in the village might have seen him leave and gave that information to the Taliban. This would require me to accept that another person in the village either knew, or guessed, where the applicant was going, noting that he was not the driver of the car, that this person communicated this to the Taliban who were then able to position themselves in the right place to be able to shoot at the applicant in a moving motor vehicle. I do not accept this as plausible.
After being shot at and having one passenger wounded, his statutory declaration records that he went to the nearby village [named] and spoke with the army.[8] The army informed them to go to the hospital. It also records that the army searched the area again as per their routine but could not locate any of the militants. In his oral evidence to me, he claimed that his friend needed medical attention at two different hospitals because he was hit and injured. However, he says that the incident was not reported to the police or army. He returned home afterwards and continued with the VDC. I am concerned about, and place weight upon, these inconsistencies which he was unable to explain.
[8] Statutory declaration of the applicant dated 2 May 2021, para [38].
I find his evidence about this incident to be inconsistent, implausible and speculative. I do not accept it.
Attack in Karachi – 2018
I accept that the applicant would go to Karachi for seafaring contracts and stay in hostels when there.
I do not accept that he went to Karachi in 2018 because he was fleeing the Taliban, that he received threatening phone calls or that he was attacked by Taliban members whilst there.
I draw no adverse inference from his inability to recall when these incidents occurred beyond saying that it was 2018.
His statutory declaration records that he was attacked by two half-masked men. After escaping and seeking medical treatment he reported the incident to the police.[9]
[9] Statutory declaration of the applicant dated 2 May 2021, para [44].
His oral evidence to me is that he was approached by two men on a crowded street. Their faces were not covered but he did not recognise them. They identified themselves as Taliban and tried to attack him with knives. People in the crowded street came together and he was able to escape with his friend. After escaping the attack he returned to his hostel before eventually returning to [Village 1]. He did not report the incident to police or the army. He is not sure why, he just did not.
I place no weight on the small inconsistency about whether his attackers’ faces were half-masked or not. I do place weight upon whether the incident was reported to police and the inconsistent evidence given about this.
I also consider it implausible, and I do not accept, that the applicant would be so readily identifiable on a crowded street in Karachi. His evidence requires me to accept that he was identified, in a crowded Karachi street, by unknown assailants who tried to slit his throat with a knife. He does not live in Karachi, although I accept that he has spent some time there either before or after seafaring contracts. I do not accept he would have been so readily identifiable to his attackers, or that they would choose to attack him in a crowded Karachi street when they know where he lives in [Village 1] because they have visited his home before.
I also do not accept that he received a telephone call from a prominent Taliban commander before this claimed attack. Having regard to the applicant’s claimed profile as a relatively low member of a VDC who went without attention for many years, is implausible that a prominent Taliban commander would know the applicant’s telephone number and personally call him to say that the Taliban knew he was in Karachi and were going to kill him there. A warning like this might reasonably cause the applicant to flee Karachi and thereby deny them the opportunity to harm him.
Summary
Despite claiming to have had the Taliban visit his family home in the past, to have shot at him in a car, to have threatened him on the telephone and attacked him in a crowded street, there is no evidence that the Taliban or any other militant has contacted, threatened or harmed his wife, children, parents or siblings still living in [Village 1]. He has regular telephone contact with all of his family in Pakistan and there is no suggestion they are approached or questioned by members of the Taliban and/or militant groups who are looking for him.
I do not accept that the applicant is, was or will be a member of a VDC in [Village 1].
It follows that I do not accept that the Taliban and/or militants sent him a warning letter, visited his house, shot at a car he was travelling in, gave him a warning by telephone or attacked him in Karachi.
I do not accept that the applicant has supported the Pakistan army by giving them information about Taliban and/or militant members, or that he is, was, or will be perceived as anti-Taliban. I do not accept that he had a dispute with Taliban members in 2008 in the presence of [Leader A], or that he has actively opposed the Taliban and/or militants in [Village 1] either before or after that. I do not accept that he has had disputes of any kind with village or community members who do support the Taliban and/or militant groups. I do not accept that the applicant has, or will be imputed to have, an opposition to the Taliban and/or militant groups within Pakistan.
I find that the applicant does not face a real chance of serious harm, or a real risk of significant harm, now or in the reasonably foreseeable future for these reasons.
Failed asylum seeker
I accept that the applicant will return to Pakistan as a person who has lived in Australia since 2018 and has had an application for a protection visa refused.
The applicant gave evidence that he continues to practice his religion and attends mosque in Australia. I accept that he lawfully departed Pakistan as a seafarer, and his evidence that he has not committed crimes in Pakistan, Australia or any other country. I explained that these are matters which country information suggests are relevant to a returning person’s profile.[10] I also explained his application for a protection visa is a confidential process and information about his application is not made public in any way that might identify him.
[10] DFAT Report. See, for example, para [5.25] – [5.30] and DFAT’s assessment in para [5.31].
In these circumstances, and as discussed with the applicant during the hearing, I find that he does not face a real chance of serious harm, or a real risk of significant harm, now or in the reasonably foreseeable future for this reason.
Access to health services
The applicant has claimed that he will be unable to subsist outside of his home area in Khyber Pakhtunkhwa because of his mental health. As I find that the applicant does not face a real chance of serious harm, or a real risk of significant harm, in [Village 1], I find that the principle of relocation does not arise. I find that the applicant will return to his home village in [Village 1] and will live there in the same way as he did prior to his departure in 2018.
However, I have considered the applicant’s ability to subsist and his mental health needs more broadly.
I have considered the available country information before me, including the material in the applicant’s legal submission dated 6 May 2024.
I accept that the applicant is a person with mental health needs, although I have not accepted a sub-stratum of facts which are said to give rise to his mental health issues.
I also accept that the accessibility and quality of heath care generally, and mental health care specifically, may be higher in Australia than it is in Pakistan.
As stated above, I find that the applicant will return to his home region of [Village 1] in Swat Valley. He will have access to the support of his wife, children and extended family. I have also placed some weight on his ability to be employed, particularly during the time he has lived in Australia. I accept this has been part-time employment in the past, but I also note that he would work chose to work full-time if the opportunity arose and his health permitted.
There is also no suggestion in the evidence before me that there is any discrimination in the provision of health services. The evidence does not suggest to me that health services will be withheld from him for a persecutory reason mentioned in s 5J(1)(a) of the Act, or that there is any element of intention in withholding health services from him.
I find that he does not face a real chance of serious harm, or a real risk of significant harm, now or in the reasonably foreseeable future for this reason.
Pashtun
I accept that the applicant is ethnically Pashtun. However, he does not claim to fear harm on the basis of his Pashtun ethnicity. He was asked about this during the hearing and said that, apart from his involvement in the VDC, a claim which I have not accepted, there is not such a big problem for Pashtuns in Pakistan. This is consistent with my assessment of the available country information generally[11] and my findings about the applicant more specifically. This includes his evidence, which I accept, to have completed middle school and to have been employed for a significant length of time as a seafarer.
[11] DFAT Report. See, for example, para [3.13] – [3.18].
I find that the applicant does not face a real chance of serious harm, or a real risk of significant harm, now or in the reasonably foreseeable future for this reason.
Land acquisition by the army
The applicant’s statutory declaration dated 2 May 2021 raises the presence of a military cantonment in his village and the forced acquisition of land. When asked about this during the hearing, the applicant said that he did not recall what was written in his statement.
I accept the evidence that he gave to me during the hearing that there is (or was) an army checkpoint and that some land may have been purchased for what he considers was a low price. However, I also accept the applicant’s evidence that the army did not acquire any of his land and that he does not fear the Pakistan army.
I find that he does not face a real chance of serious harm, or a real risk of significant harm, now or in the reasonably foreseeable future for this reason.
Summary and conclusion
I have considered the applicant’s claims individually and cumulatively. This includes the applicant being a Pashtun male who follows the Sunni branch of Islam, residing in [Village 1] in Swat Valley with the support of his wife, children and extended family. It also includes him having mental health needs considered in the context of the findings which I have made. It includes him being a person who departed Pakistan lawfully as a seafarer and deserted ship in Australia.
Considering all of the accepted facts and evidence, I find that the applicant does not face a real chance of serious harm, or a real risk of significant harm, now or in the reasonably foreseeable future.
I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or (aa) of the Act.
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa, and I find that he does not. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Andrew Verduci
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 3630

20 May 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice