1905193 (Refugee)

1905193 (Refugee) [2023] AATA 502 (3 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr MD Nurul Huq (MARN: 0005656)
CASE NUMBER:  1905193
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Andrew McLean Williams
DATE:3 January 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first-named Applicant satisfies s.36(2)(a) of the Migration Act; and
(ii)the other Applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first-named Applicant.

Statement made on 03 January 2023 at 11:43am
CATCHWORDS
REFUGEE – protection visa – Pakistan – religion – Ahmadiyya Muslim – applicant’s husband persecuted by employees, customers, and local community when religious identity revealed – forced sale of business – State-sanctioned and constitutionally enshrined religious persecution – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [20 March 2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
Preliminary

This is an Application for Review of a Decision made by a Delegate of the Minister for Home Affairs on 27 February 2019, thereby refusing to grant the Applicants protection visas pursuant to s.65 of the Migration Act 1958 (Cth) (‘the Act’).
The Applicants, who each claim to be citizens of the Islamic Republic of Pakistan, applied for Protection (Subclass 866) visas on 7 June 2017. The Delegate refused to grant the visas on the basis of his having concluded that the primary visa Applicant is not a person to whom Australia owes protection obligations, as outlined in either s.36(2)(a) or s.36(2)(aa) of the Act, such that the secondary visa Applicant was not a ‘member of the same family unit’ as a protection visa eligible person; such that she could not satisfy the requirements of s.36(2)(b) or (c) of the Act.
The Applicants appeared together before the Tribunal on 28 October 2022. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
The Applicants were represented in relation to the review by Mr MD Nurul Huq of ‘EastWest Immigration Services’. Mr MD Nural Huq also attended the Tribunal hearing, and had prepared detailed written submissions, dated 3 March 2019, and 12 September 2019.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are as 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 other 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 qualifies as 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’, they are either 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 qualify as a refugee if they are outside the country of their former habitual residence and, owing to ‘a well-founded fear of persecution, they are either unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1) of the Act, 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 then set out in ss.5J(2)-(6) and ss.5K-LA, of the Act, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
The meaning of significant harm for purposes of the complementary protection criterion, 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) of the Act, which are also extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The issue in this case is whether the primary review applicant [named] is owed protection obligations under either of s.36(2)(a) or s.36(2)(aa) of the Act, and whether the secondary review Applicant, [named] is a member of the same family unit as [the primary applicant], such that she is now owed protection obligations because of s.36(2)(b), or s.36(2)(c). As a preliminary matter, the Tribunal is satisfied that [the secondary applicant] is the daughter of [the primary applicant], and as such [the secondary applicant] readily qualifies as a member of the same family unit as [the primary applicant].
For the following reasons, the Tribunal has concluded that the matter here under review by the Tribunal should now be remitted, for reconsideration by a Delegate.
Factual Background
The Primary [Applicant] born [date] and the secondary [Applicant], born [date] are each female citizens of the Islamic Republic of Pakistan, each of whom are also Ahmadiyya Muslims. Each of them arrived in Australia [in] March 2017 on Sponsored Family (Subclass 600) visitor visas, that had been issued on 13 March 2017.
On 7 June 2017 each of the Applicants lodged Protection (Subclass 866) visas.
The Primary Applicant’s protection claims may be summarised, as follows:
·The Applicant is an Ahmadiyya from Jacobabad in the Sindh Province;
·The Applicant witnessed her own parents and other members of her family suffer persecution because of their religious faith;
·The Applicant also suffered regular persecution for her religious faith and this ultimately caused her to abandon any thought of a pursuit of higher education, after the conclusion of her high school education, in [year];
·On 8 April 1981, the Applicant married her husband [Mr A] (deceased) who was from [Village 1], in Gujrat. [Mr A] was also Ahmadiyya and had suffered many persecutions in consequence of his religion. The majority of [Mr A]’s siblings have since escaped Pakistan and successfully obtained refugee status in [specified countries]. Those who remain in Pakistan continue to face persecution.
·Upon their marriage the Applicant and her husband [Mr A] relocated to [Village 1] in Gujrat City, so as to lessen the chances of further religious persecution. They also took other measures to hide their Ahmadiyya identity. The Applicant and her husband had the good fortune to be able to avoid persecution for many years, and [Mr A] was able to run a successful business as a [occupation], with approximately [number] employees working over two separate [sites]. Together, the Applicant and her husband raised [number] daughters. The Applicant says that they were able ‘fly under the radar’ because their immediate neighbours were Christians, and hence indifferent to the question of their religion. Meanwhile, the Applicant kept to the home, while her husband went to work each day at the [worksites], which were located a good distance away from their home. The Applicant and her husband also travelled to another location altogether for their religious worship, in order that their Ahmadayyi status would remain undisclosed in their local community in [Village 1].
·In 2015, [Mr A]’s religious identity was somehow exposed, and he and his family (including the Applicant) thereafter faced immediate persecution from his employees, customers, and the local community, led by the local Mullahs. Customers, in particular, started to refuse to pay outstanding invoices, and [Mr A]’s employees started to refuse to work, yet still demanded their wages. The family’s financial circumstances quickly worsened.
·In June 2016, [Mr A] was forced to sell his business at a substantial undervalue so as to be put in sufficient funds to be able to appease his creditors, and also pay his workers. At this juncture the Applicant’s daughter in Australia supported both the Applicant and [the secondary applicant] (who is reliant on a wheelchair for [mobility]), to obtain a visitor visa, to come to Australia. [Mr A] elected not to travel with his wife and daughter to Australia, as it was perceived by him that this may jeopardise their prospects for obtaining an Australian visitor visa.
·Once the Applicants had departed for Australia, [Mr A] moved to an even more remote village called [Village 2], in the district of Gujrat, to live with two other daughters, and their husbands.
·In 2018, [Mr A] suffered a heart attack and died, while living with one of his daughters in [Village 2].
In a decision dated 27 February 2019 a Delegate of the Minister refused the primary Applicant a protection visa. Although accepting the Applicant‘s status as an Ahmadiyya, and noting the fact of State-sanctioned and constitutionally enshrined religious persecution of Ahmadiyya in Pakistan, the Delegate concluded the evidence before him was still not enough to establish that there was a real chance that, if the Applicant returned to Pakistan, she would be persecuted. In that light, the Delegate determined that the Applicant’s claims were not enough to meet the requirements of s.5J(2) (b) & (c) of the Act. To this end, the Delegate recorded it to be significant that:
·the Applicant’s husband had managed to relocate to [Village 2], whereupon he was able to maintain a low profile, and had seemingly managed to avoid further persecution;
·the Applicant’s son-in-law apparently managed to operate a business in [Village 2], notwithstanding his also being an Ahmadiyya; and
·the Applicant had managed to successfully hide her religious faith for 34 years whilst still living with her husband and daughters in [Village 1], thus suggesting that the Applicant could practice her religion in Pakistan in a manner so as to avoid persecution.
As to the complementary protection criteria found in s.36(2)(aa) of the Act, the Delegate found that the ‘real risk’ of significant harm required by the provision could not be made out: by reason that this requirement is substantially the same as the ‘real chance’ of harm test in s.5J(1)(b) of the Act for purposes of s.36(2)(a);[1] in circumstances where the available evidence did not portend any real risk, and for each of the same reasons, as summarised by the bullet points in the immediately preceding paragraph.
[1] MIAC v SZQRB [20 March 2013] FCAFC 33.
The Status of Ahmadiyya in Pakistan:
The population of Pakistan is 207.7 million people, with a 2.4 per cent annual growth rate (as of 2017 census). The Jacobabad District has a total population of 1,007,009 (as at 2017).[2] Pakistan contains five major ethnic groups and many smaller ones. Muslims comprise 96.47 per cent of the Pakistan population (as of 2017 census), and Ahmadis as 0.09 per cent (which are officially counted separately from Muslims). The Pakistan Constitution establishes Islam as the state religion, and Article 260 of the Constitution defines ‘Muslim’ to explicitly exclude Ahmadis.
[2] 07501.pdf (pbs.gov.pk)
The Constitution of Pakistan theoretically outlaws discrimination based on religion, however these rights are frequently not respected, in practice. Pakistan is also part of several international human rights instruments including the International Convention on the Elimination of All Forms of Racial Discrimination, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, however full implementation of these instruments lag. The core human rights commission in Pakistan is the National Commission for Human Rights, established in 2015, which investigates human rights complaints, provide policy advice and monitors the government’s human rights efforts.
The Ahmadiyya, otherwise known as Ahmadis, are members of an Islamic messianic movement that began in the late 19^th century in British-controlled India. Estimates of the number of Ahmadis in Pakistan range between 500,000 to 4 million; yet the Ahmadis are not readily identifiable and do not publicly identify as Ahmadi due to their fear of discrimination. Ahmadis consider themselves Muslims, taking their founder Mirza Ghulam Ahmad to be their messiah and prophet, and follow the Quran, however many other Muslims consider Ahmadis as heretics. As indicated above, Ahmadis have been explicitly identified as non-Muslims in the Pakistan Constitution, since 1974.
According to DFAT Country Information on Pakistan, the mistreatment of Ahmadis in Pakistan is pervasive, and now well-documented. Ahmadis are banned from publicly practicing their faith, using non-Ahmadi mosques, using Islamic greetings in public, seeking converts, and publicly quoting from the Quran. Ahmadis are also banned from identifying or ‘posing’ as Muslims. Ahmadis experience official discrimination due to their constitutional designation as non-Muslims. This includes barriers to registering marriages, voting, accessing education and other services. As recently as 30 July 2022, the newly elected Punjab government representative, Chief Minister Pervaiz Elahi, instructed all marriage registrars to obtain an oath from brides and grooms that they believe in Finality of Prophet-hood, rather than Ghulam Ahmed as a prophet. High school examinations, passports, and other official documentation that contain information about religious affiliation require declarations that Ahmadis are non-Muslims and that Ghulam Ahmad is a false prophet. Ahmadis are referred to in official documentation as ‘Qadiani’, an offensive and derogatory term for Ahmadis.
As part of her written materials before the Tribunal, the Applicant also provided several submissions on religious discrimination in Pakistan, including the 2013 Annual Report of the U.S. Commission on International Religious Freedom chaired by Dr Katrina Lantos Swett. That report found that the government of Pakistan continues to engage in the toleration of systemic, ongoing, and egregious violence to freedom of religion or belief, and that the government has failed to protect members of religious minority communities. Pakistan has developed repressive blasphemy laws and anti-Ahmadi laws which fostered an environment of violent extremism and vigilantism.
The security situation for Ahmadis in Pakistan has not changed significantly, and Ahmadis remain at risk of mob violence and terrorist attacks. Ahmadis are still subject to violence and organised hate campaigns due to their faith, and Ahmadi treatment has worsened in recent years. At least five Ahmadis were killed and seven wounded in targeted attacks in 2020. Protests against weakening existing legal discrimination against Ahmadis have been organised, and religious scholars and lawyers have brought blasphemy charges against Ahmadis. Ahmadis also experience discrimination and ostracism in employment and other aspects of everyday life. According to the 2021 Pakistan State of Human Rights Report, as prepared by the Human Rights Commission of Pakistan, the Ahmadiyya community continued to suffer human rights violations in 2021. For example, in 2021 30 Ahmadis were charged for ‘posing’ as Muslims, three Ahmadis were killed allegedly for their faith, and 25 Ahmadis were charged for preaching. Further, Ahmadis have been excluded from the National Commission for Minorities, established 5 May 2020, aimed at safeguarding minority rights.[3] As such, the Ahmadiyya community remain excluded from participating in any potential body of reparation.[4] Ultimately, DFAT makes the assessment that Ahmadis are at ‘high risk’ of official and societal discrimination, and at ‘moderate’ risk of violence, throughout Pakistan.
[3] 'Pakistan: Ahmadis Kept Off Minorities Commission', Human Rights Watch, 8 May 2020, 20200511100816; ‘Pakistan excludes religious sect from minority commission', Gibran Naiyyar Peshimam, Reuters, 7 May 2020, 20200508095340; see also 'Endemic anti-Ahmadiyya discrimination - Pakistan's "Commission for Minorities" without the Ahmadis', Mohammad Luqman, Qantara, 10 July 2020, 20200713104412.
[4] South Asia State of Minorities Report 2020: Minorities and Shrinking Civic Space', The South Asia Collective, November 2020, p. 177, 20201215123557; and United States Commission on International Religious Freedom Annual Report 2021', United States Commission on International Religious Freedom (USCIRF), 20 April 2021, pp. 36-37, 20210422095313
Consideration:
The Tribunal accepts the DFAT assessment regarding the plight of the Ahmadis in Pakistan, and notes there being no contrary evidence (that being evidence of a kind that might reasonably found a basis to refute, contradict, or otherwise depart from the official DFAT assessment regarding the plight of Ahmadis in Pakistan) has been brought before the Tribunal for its consideration, during the determination of this Application for Review.
During the hearing conducted by the Tribunal on 28 October 2022, and for completeness, the various conclusions previously reached by the Delegate in his reasons dated 27 February 2019 as to why the Applicants were not owed protection under the Migration Act were put to the primary Applicant, and to her representative Mr MD Nural Huq, for their further comment.
When distilled to an essence, the Delegate had concluded that the Applicant was not owed protection in Australia because:
i.the Applicant’s husband had managed to relocate to [Village 2], whereupon he was able to maintain a low profile, and had seemingly managed to avoid any further persecution;
ii.the Applicant’s son-in-law apparently managed to operate a business in [Village 2], notwithstanding his also being an Ahmadiyya; and
iii.the Applicant had managed to hide her religious faith for 34 years whilst still living with her husband and daughters in [Village 1], thus suggesting that the Applicant could practice her religion in Pakistan, and in a manner to avoid persecution.

As to the first of the Delegate’s postulations, the Applicant was at pains to point out (and as is amply confirmed in the DFAT Country Information) that no part of Pakistan could reasonably be regarded as safe for Ahmadi, and the Applicant’s husband was only able to remain comparatively safe in [Village 2] during the short period prior to his untimely death on the basis of his restricting himself to the confines of his daughter’s home.
As to the second, the Applicant informed that her son-in-law’s business was a small retail concession, situated within the perimeter of a Pakistani military base. A maintained regime of military discipline on the base prevented attacks on the business, yet this relative safety ended at the gates to the base, and her son-in-law still faced daily discrimination and risk when travelling between his home and the base each day; and both of the Applicant’s daughters in [Village 2] and their husbands were actively engaged in seeking protection overseas, and were intent to remain in Pakistan only for as long as was necessary.
As to the third basis postulated by the Delegate when concluding that the Applicant did not require protection, the Tribunal notes that ground to overlook the undeniable fact of 34 years of comparative safety in [Village 1] abruptly ending, just as soon as the religious identity of the Applicant’s family had been revealed. Given the information contained in the DFAT country information reports regarding the official identification of Ahmadiyya in Pakistan on documents such as passports, it now appears as inescapable to the Tribunal that the Applicants will be unable to cloak their identity, if they return to Pakistan.
Ultimately, the Tribunal considers that each of the reasons why the Applicants do ‘not’ qualify for protection under the Migration Act, as previously postulated by the Delegate, do not afford grounds that are objectively maintainable, such that the Tribunal comes to a contrary assessment. The DFAT country information, in and of itself paints a compelling picture as to why the Applicant and her daughter ought be eligible for protection.
Disposition:
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 and satisfies the criterion set out in s.36(2)(a). In these circumstances [the secondary applicant] now satisfies the ‘member of the same family unit’ criteria, as specified in s.36(2)(b).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) and s.36(2)(b) of the Migration Act.
Andrew McLean Williams
Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 502

3 January 2023

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Immigration

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Natural Justice

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