1907058 (Refugee) - [2024] AATA 4365

1907058 (Refugee) [2024] AATA 4365 (29 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Fayyaz Ali Shah (MARN: 1570276)
CASE NUMBER:  1907058
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Bryn Butler
DATE:29 August 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.

Statement made on 29 August 2024 at 10:20am
CATCHWORDS
REFUGEE – protection visa – Pakistan – religion and political opinion – member of village defence committee opposed to Taliban – patrols and searches – threatened and attacked – periods of working away from home areas – previous arrivals in Australia without applying for protection visa – mental health and treatment, with practitioners’ reports provided – brief but consistent, detailed and credible evidence – authenticity of documentary evidence – country information – recent increase in extremist activities – real chance of persecution does not relate to all areas of country – complementary protection – no financial means or support networks – relocation possible but not practicable – ethnicity – Pashtun – low-level discrimination – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), (2B)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
ABAR15 v MIBP (No 2) (2016) 242 FCR 11
BBK15 v MIBP (2016) 241 FCR 150
Chan Yee Kin v MIEA (1989) 169 CLR 379
FCS17 v MHA (2020) 276 FCR 644
MIAC v MZYYL (2012) 207 FCR 211
MIAC v SZQRB (2013) 210 FCR 505
MZAAJ v MIBP [2015] FCA 478
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
SZSPT v MIBP [2014] FCA 1245
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
BACKGROUND

The applicant is a [Age]-year-old man and citizen of Pakistan. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant him a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant arrived in Australia on [Day 1] September 2018 by sea vessel as the holder of a [Specified] visa. He left the vessel on [Day 2] September 2018 and reported to Australian Border Force Officers. The applicant has entered Australia multiple times on [Specified] visas from 2007 to 2018.
Protection visa application
The applicant applied for the protection visa on 5 October 2018. In his protection visa application, he set out his claims for protection, which can be summarised as follows:
·He was born in [Village 1] in the Swat Valley in the Khyber Paktunkhwa region of Pakistan. He is married and has [children]. The applicant’s [siblings] live in Pakistan.
·He worked as [an occupation] from 2002 and has travelled to many countries, including Australia, as part of his job.
·He was affected by the increase in militancy in the Swat Valley from 2007 and his home was looted in 2009 by militants.
·He joined the Village Defence Committee (VDC) in 2010 as he opposed the Taliban’s ideology and wanted to help eradicate militancy in the Swat Valley. He exposed the hiding places of former militant fighters and their supporters in his village to the Pakistan Army. He also took part in night patrols in his village. He carried out his duties when he was residing in his village.
·He was threatened in January 2015. A letter was thrown outside his residence. The letter demanded that he cease all his VDC activities and his cooperation with the Pakistan Army otherwise they would punish him severely. Following receipt of the letter, the applicant continued his duties with the VDC more cautiously and was also away at sea for periods.
·In November 2017, when he was returning from a VDC meeting in the evening, he was attacked. He could not see who the attackers were or how many there were. He hid in a local residence, and when the situation was calm, he returned home. He reported the incident to the Army. An officer told him that he should take care of his own safety and the Army could not provide bodyguards to all members of the VDC. He decided from that moment that he would find a way out of Pakistan at the first opportunity and not return.
·A few days after the attack, he went to Karachi to be safe and wait to be called for sea duty. He was called for a job [in] January 2018, and went about a [ship] which arrived in [Port]. After the attack, he had determined that he would desert the ship and, given his first opportunity, he did so when the ship was docked in [Port] port [in] September 2018.
·He believes that due to the Taliban's direct attack and him being shot at, he would get seriously harmed by the Taliban, if he returned to Pakistan. He claimed that the Taliban had warned him in 2015 to cease his VDC activities, or he would face worse consequences, however, as he had been traveling as part of his job, the militants only had the chance to attack him in about November 2017.
At the interview with the delegate, he provided two VDC membership cards in the name of [the applicant]. After the interview, the applicant submitted the letter purporting to be from the Taliban, which is dated 10 January 2015, with a translation.
Delegate’s decision
The delegate refused to grant the visa on 13 March 2019 on the basis that he was not satisfied that the applicant engaged Australia’s protection obligations. The delegate did not accept that the applicant was a member of the VDC, that he received a threat letter from the Taliban, or that he was fired upon by the Taliban when he was returning from a VDC meeting. The delegate did not accept the applicant’s reasons for why he was unable to make a protection visa application earlier than October 2018, as the applicant had entered Australia four times between the claimed incident in November 2017 and making the protection visa application.
Application for review
The applicant applied for review on 25 March 2019. The applicant is represented in relation to the review. The applicant was invited to a hearing on 19 August 2024, by letter dated 4 June 2024.
I have received submissions from the applicant prior to the hearing, which I have considered. These submissions include:
·Submission from the representative outlining the applicant’s situation, including relevant country information.
·Applicant’s statement dated 12 August 2018 which set out his claims for protection.
·A Psychosocial Treatment Report from [Dr A], a Senior Practitioner at [Organisation 1], dated 27 October 2023. The report compiles information from his assessment documents and case notes held at [Organisation 1]. The applicant has attended 10 counselling sessions with [Organisation 1] since March 2022.
·A letter from [Ms B] dated 14 June 2024 noting that the applicant has been accessing torture and trauma counselling services at [Organisation 2] since 10 April 2024.
·A letter from [Dr C], Consultation-Liaison Psychiatry Registrar [Health Service] dated 29 July 2024. [Dr C] saw the applicant on 25 June 2024 for the purpose of an evaluation for depressive symptoms.
·A letter purporting to be from the head of the VDC of [Village 1] Swat, [Mr D], dated 15 August 2024. The letter states that the applicant has been a member of the VDC since 2010 and that [Mr D] is personally aware of the applicant’s situation, and he knows that he has been threatened and attacked by the Taliban.
Tribunal hearing
The applicant appeared before me on 19 August 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto and English languages. The applicant’s representative also attended the hearing.
Applicant’s mental health
The applicant is reported to be suffering from Post-Traumatic Stress Disorder (PTSD) and has displayed symptoms of depression.
In the Psychosocial Treatment Report dated 27 October 2023, [Dr A] reports that, based on her observation of the applicant throughout the year, he interprets questions in a simplistic manner, and further questions are needed to elicit details in his counselling sessions. She notes that the applicant’s participation in protection interviews may be impacted by this and it may be necessary for the interviewer to be very specific with questions to elucidate sufficient information to explain his previous risks of safety and continued threat to his family and himself if he were to return.
I have had regard to the reports on the applicant’s health and the Migration and Refugee Division Guidelines on Vulnerable Persons. At the start of the hearing, the applicant said that he is nervous when being interviewed and apologised in advance if he couldn’t give evidence. The applicant was offered breaks throughout the hearing and had his representative with him in the hearing room for support.
I have had regard to the information provided about the applicant’s mental health and the Guidelines and am satisfied that the applicant was able to meaningfully participate in the review. I found that the applicant was able to understand my questions and provided answers addressing my questions throughout the hearing. I acknowledge that the hearing process can be stressful for applicants. I found that he remained attentive throughout the hearing. During the hearing when he was unsure of a question, he asked for clarification before responding. I did not observe the applicant disengaging from the hearing process, as his responses indicated that he was listening to my questions, and he responded accordingly.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, I have 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.
CLAIMS, EVIDENCE AND CONSIDERATION
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or under the complementary protection criterion.
For the following reasons, I have concluded that the matter should be remitted for reconsideration.
Applicant’s family and current situation
At the hearing, the applicant confirmed that his wife, two younger daughters and his sister live in [Village 2] in Pakistan, with his wife’s parents. He described [Village 2] as being one village away from [his village]. His eldest daughter is married and lives in a nearby village, and the other two daughters are at school. He said that his wife and children in [Village 2] are well, and noted that because they are women and live with his wife’s parents, they are not regularly in danger as they cover themselves when outside, and it can be difficult to know the identity of each individual.
His son went to [Country 1] prior to 2022 to study [subject] however because of the war in [Country 1] he returned to Pakistan and is currently studying in [Town], another town in Swat and resides in a student hostel. He said that his son’s hostel has security which he considers provides some protection for his son.
One of the applicant’s brothers lives in [Country 2] and the other brother lives in [Village 1]. He speaks to his brother in [Village 1] every three to six months, and his brother has not reported facing any difficulties while living in [Village 1].
He said that his property in [Village 1] has been vacant since 2018 when he left Pakistan. His wife and son return to [Village 1] every three months or so to check on the property and spend about 30 minutes at the property on each visit.
Claim to have joined VDC
The applicant has claimed to have joined the VDC in 2010. I asked him why he joined. He said that the Swat Valley was a very peaceful area but when the Taliban came, they brought war and destruction to the area so after seeing this, he considered his only option was to cooperate with the military. I noted that he was often away from home because of his work on ships which may have made it difficult for him to participate in VDC activities. He said that when he came back to his village, he worked with the VDC so that he could protect his environment and his people.
I asked him what type of work he did for the VDC. He described it as volunteer type work, and that he did not receive any training. He said that the village was divided into zones and that there were 50 to 60 houses in one zone, and there was a list of people who volunteered for the committee, and each night four people were selected for night watch. During night watch, they would look for Taliban and strangers in the town, or entering the town. I asked him if he ever saw strangers or members of the Taliban. He said that if they saw strangers, they would contact the chairperson of the VDC, and the stranger would be questioned. I asked again whether he had to report seeing a stranger or Taliban, and he said it happened three times. He said that if they face strangers, it was hard for them to run away because the next zone was adjacent and there was a whistle which could be used to alert others in the neighbouring zone if someone was trying to run away, and they could also contact the neighbouring zone’s watchman by mobile phone. I asked him how often he did the night shifts. He said it depended on the zone and if it was a big zone, for some people it would be every 10th or 12^th night, which was the case for him.
Apart from night watch, I asked him what other tasks he completed for the VDC. He said that he met with the military to identify Taliban supporters in the area and identified their houses. I asked him how he knew who was a Taliban supporter and who should be reported. He said that because they are from the same area, it is easy to know who is in the Taliban. I asked him to explain how it was easy to know who was a member of the Taliban. The applicant repeated that because they lived in the same village, they knew about them and their mentality. I asked him again how they would know who was a member of the Taliban. He then said that they knew some people who had come from outside. I asked whether he knew they were in the Taliban from an earlier time, and that I would like some more information to understand how he could tell who was part of the Taliban. He said that when outsiders enter the village and loiter in the village, some guys from the village would hang around with them. I asked how he knew they were Taliban from outside the village. He said that if there are members of the Taliban and some people accompany them, it is easy to know.
I asked him what he would do if he suspected someone of being part of the Taliban. He said that he would report to the chairman of the VDC and the chairman would report it to the Pakistani Army. I asked what happened to people he reported. He said that once they were arrested, he didn’t know what happened to them.
I asked him whether there were any other activities he was involved in with the VDC. He said he went on search operations with the military, and during Friday prayers, they kept a look out for the people who were praying in the mosque.
I asked him whether his brothers were involved in the VDC. He said that his brother had been in [Country 2] for a long time, and he wouldn’t return to Pakistan during an unstable time, and his other brother worked on ships frequently, which meant he didn’t worry about joining. I noted that he, the applicant, was also away on ships frequently. The applicant said their work was different and that for him, he remained in the village for four to seven months at a time, but his brother was frequently away and only had one to two months in the village. He noted that his brothers didn’t want to take a risk.
Threat from Taliban
I asked the applicant about the letter he received from the Taliban. He said that it was around 11am, and he was at home, and when he left his home, he saw the envelope on the ground. He said he picked it up and saw that it had the Taliban movement logo on it. I asked him whether he could recall what the letter said. He said that he can recall that they said he was spying on them, that he was cooperating with the Army, and the life of those who performs these activities would not be spared.
I asked him how he responded to receiving the letter. He said that it scared him, and he was fearful. Following receipt of the letter, he was extra cautious about spending time in the village but he continued his work with the VDC when he was in Pakistan.
I read the translation of the letter to the applicant, which states that the applicant will be killed. The applicant said that his understanding of the letter was similar. I asked him why he continued working for the VDC after receiving such a letter which stated that he would be killed because of his past involvement with them. He said that despite the threat, he was cautious and continued working with the VDC. He said that it was his house, his home, his land and his children lived there so he couldn’t leave them.

I asked him what extra precautions he took. He described it as taking extra care such as limiting his movements and staying at home and not going ‘here and there’. However, he continued his work with the VDC, such as attending meetings and continued with the night patrols.
I asked him why the Taliban wouldn’t harm him in 2015, as they said they would do, and instead they left a letter at his house stating that he was to be killed. He said that the letter was delivered by spies or supporters of the Taliban, and not the Taliban themselves. I asked him how he knew it was their spies or supporters, and he said that it was his understanding that if the Taliban get close to the person, they would kill them (so he would have been killed if the Taliban had entered the village at that time). I put to the applicant that, because he had received the letter, the Taliban and its supporters must know where he lived. He agreed and acknowledged that the Taliban’s supporters were in the area at the time.
After the applicant received the letter, he left Pakistan on a job on a ship and later returned and continued his work with the VDC. I asked him why he returned after receiving such a threatening letter. He said that at that time, he was optimistic and had a great hope that things would settle down in Swat Valley (as the security situation was generally improving), but after he came under attack in 2017, that was the time that he decided not to return.
November 2017 incident
I asked the applicant to describe the incident where he claimed he had come under attack. He said that it was in the evening and he had finished attending a committee meeting and suddenly there was gunfire in his vicinity. He said that he was under attack from gunfire so he dropped to the ground quickly. He couldn’t see how many people were firing at him. He snuck into a nearby property and people inside started shouting and screaming, and that he had also shouted. I asked him where the gunshots had come from. He said that he was walking in the direction of his home and the shots came from the other side of the road. He said that, because he was fearful, in shock and on the ground, he couldn’t see the people shooting at him, but he shouted at them before entering the property to escape. I asked whether he thought the shots were coming from above him or at street level. He said it was from the same level as him but reiterated that he couldn’t see the people shooting at him. I asked whether he knew the people in the house he entered. He responded that he knew the males of the household but not the women, and that he entered because he had to escape the situation, so he didn’t have any other option but to enter the house. I asked him whether the people said anything to him as they were shooting. He said that he was the one who shouted and screamed, but those shooting did not say anything. Other people in the area also started screaming. He added that the military came to do a search of the area and couldn’t find the culprits.
He said that he remained in the house he had escaped to for about 30 to 40 minutes before returning home. His family started screaming and crying when they heard what had happened to him. The next day he went to the military office to report what had happened, and to ask for protection. He said he wanted protection because of how his family had reacted to the news of the incident. However, he was told that the Army would not provide protection for an individual. He was disappointed by the response, felt helpless and hopeless, and decided that if he were to go overseas again, he wouldn’t return to Pakistan.
I asked him to provide further details about how he approached the Army. He said that he told a military officer who was an administrator. I asked whether he had told anyone in the VDC. He said that they were aware because there had been gunfire and so everyone knew. He said that it in his area, it was a village and everyone in the area knew if there is gunfire and a security incident.
The applicant’s actions after the November 2017 incident
The applicant said that, after the gunfire, he saw his death in front of his eyes. He said that he restricted himself to his house because he didn’t want to cause a risk to others in his vicinity, and watched his house during the night. During the day he would rarely come out. Around two and a half weeks later, he made his way to Karachi to find work as [an occupation]. He said that inn Karachi he did not stay in one place and spent one or two nights in a location before moving to another location.
He said that he has not formally quit his job in the VDC. Before he left, he reported the incident to the military and was disappointed with their response, which prompted him to find work on a ship.
Applicant’s entry into Australia
The applicant acknowledged that on his fourth entry into Australia, he left the ship and sought protection. He said that during the other three times that the ship was in port in Australia, he didn’t have an opportunity to leave the ship. I expressed to the applicant that I found it difficult to understand how he had been able to leave on the fourth entry but not earlier, and he had claimed that he had determined that he would not return to Pakistan after the incident so it may be expected that he would leave the ship earlier than he did. He explained that there is a gangway on the ship with a gate, and that gate is watched by three security guards. He said there is a remote on the gangway which is used to lower a lift to the ground level which is used to enter the ship from the ground, but only authorised people can get in and out. The applicant’s representative said that while crew on the ship have visas which would allow them entry into Australia, it is a decision of the company which owns the ship as to whether crew can leave the ship when it enters port.
I asked the applicant whether he had tried to leave the ship earlier than he did. He said he tried a lot by checking whether there were security guards at the gangway, and whether the gate was open. He said on his fourth entry into Australia, it was after midnight and there was a delivery to the ship consisting of cartons which were being loaded onto the ship and people were busy carrying the delivery into the ship. while this was occurring, he snuck into the gangway and left the ship. He said that Australian Border Force officers found him when he left the ship, and he told them that he will not return to Pakistan because of a risk to his life. I asked him whether other people had left the ship with him. He acknowledged that there were other crew who left the ship with him, but he didn’t know their reasons for leaving the ship, but his reason was because he had come under fire from the Taliban.
Reports on applicant’s mental health
The applicant has sought treatment for his mental health and has obtained counselling. The report from [Organisation 1] notes that his intake was processed in March 2022, and he received treatment between September 2022 and September 2023 over 10 sessions. It is recorded that upon presentation to [Organisation 1], the applicant was assessed as presenting with symptoms consistent with post-traumatic stress disorder (PTSD), including nightmares, constant worry, anxiety, panic attacks, sleep disturbance, poor concentration, a mood of hopelessness, fearfulness, feelings of detachment from everyday activities and a sense of guilt for not being able to protect his family in Pakistan. He reported to [Organisation 1] that he slept for two to three hours at night.
He was assessed by [Organisation 1], and the author of the report, a Senior Practitioner, states that the applicant has experienced panic attacks, nightmares and flashbacks of running from the Taliban and continued anxiety linked to fears for his family in Pakistan.
The report details that the first five counselling sessions focused on addressing his sleep difficulties and high levels of anxiety and rumination, and included recommendations to seek medical support from his GP. The later sessions included trauma counselling focused on discussing his experiences of defending the village from the Taliban, which were represented in his nightmares. It is noted that when he spoke about his experiences as a guard in the VDC, he responded with a sense of urgency with heightened arousal and rapid speech, which the author found to be consistent with the fear and danger that he described of living in Pakistan. The author states that the counselling process required patient questions to promote elaboration of his experiences for the counsellor to understand the extent of his traumatic experiences and the impact on it for him and his family. In the author’s opinion, this is because the applicant interprets questions literally and assumes that a brief, uncomplicated answer is preferred.
The report from [Health Service] notes that the applicant is currently taking two medications which are for depression and anxiety. The author’s impression is that the applicant is suffering from PTSD, and that major depressive disorder is in partial remission.
Findings
Having regard to the applicant’s presentation at hearing and detailed account of involvement in the VDC and the types of activities they provide to the village, I accept that he participated in the VDC in [Village 1]. While the applicant was regularly away from Pakistan and working on ships, I accept that when he was at home, he assisted the VDC by going on night patrols. He was able to recount how he went about his duties and how often he went on duty. While I acknowledge that information about the VDC and their activities would be available to the applicant, when he spoke about his experiences he spoke confidently and quickly, and responded to my questions without hesitation, indicating that he was speaking from a lived experience. This is also consistent with the report from [Organisation 1] which notes that he spoke with a sense of urgency when discussing the VDC.
I had some doubts about how the applicant knew who to report to his superiors for being involved with the Taliban. The applicant gave succinct responses that he knew who was part of the Taliban and that it was easy to know, but did not elaborate as to how he had formed a view that someone was part of the Taliban. I accept that, based on the report from [Organisation 1], that the applicant’s nature is to give brief answers. After I rephased the question on a couple of occasions, the applicant said that he would observe people who were outside the area coming into the village and would note who they spoke to. I accept that the applicant’s role in the VDC was to monitor people coming into his zone and, in this way, he may suspect outsiders to be linked to the Taliban.
The applicant described working at sea as his duty to provide financially for his family, and that his duty while at home was to be part of the VDC. I accept the applicant joined the VDC because he considered the Swat Valley was a peaceful area prior to 2007 and that he wanted to assist in ensuring the security of the region for himself and his family. In this regard, I also accept that the applicant’s home was raided by militants in 2009. The applicant was able to list what items were taken from his home, and also discussed how he repaired his property when he was able to return after he and his family had been displaced by the Pakistan Army’s operations in the Swat Valley. I accept that the applicant’s experience of having his home raided when he was away at sea, combined with being displaced because of militant activity, also motivated the applicant to join the VDC to try to prevent future destabilisation of the region.
I have some doubts about the genuineness of the letter received in 2015 which is purportedly from the Taliban. The letter was provided to the Department after the interview with the delegate. In the visa application, the applicant claimed that he received a letter in January 2015 in which the Taliban demanded that he cease all his VDC activities and his cooperation with the Pakistan Army. However, the translation of the letter says that the applicant cannot hide and will be killed, and that it is an obligatory act of a Muslim to kill him because of his cooperation with the Army. The letter states that the applicant will be killed (the decision had already been made by the Taliban), whereas he had claimed that he would be killed if he didn’t cease his work with the VDC.
DFAT reports that document fraud is widespread in Pakistan, other than for identity documents issued by NADRA, which are generally reliable.[1] Due to the relative ease in acquiring fraudulently obtained genuine documents, such documents are common in Pakistan.[2] I discussed with the applicant that the letter he provided may not be genuine. He said that he has nothing to do with forgeries in Pakistan and that he had a simple life, and a simple family, and that if he didn’t have any kind of difficulty, he wouldn’t have left Pakistan.
[1] Department of Foreign Affairs and Trade, Country Information Report – Pakistan (25 January 2022) (DFAT Report), para 5.52.
[2] DFAT Report, para 5.53.
I also raised with the applicant my concerns that, after receiving a death threat from the Taliban delivered to his residence, that he would continue working with the VDC. I also queried why the Taliban would wait from January 2015 to November 2017 to target him, considering they knew where he lived. He reiterated that he was cautious and there was a period when he went on a job for 10 months, so he was away from Pakistan. Records indicate that the applicant arrived in Australia on 27 May 2015, 26 July 2015, 27 October 2015, 3 December 2015,16 January 2016, 27 August 2016, and 27 November 2016, which is consistent with the applicant’s account that he spent a significant period of time outside Pakistan after he received the letter. I accept based on these records that the applicant spent time outside of Pakistan working on a ship in the period after he claims to have received the letter. I consider that he did this for financial reasons rather than to escape the Taliban, although it may explain why he was not harmed immediately after receiving the letter.
He also acknowledged that the threat meant he was being told by the Taliban to not work in the VDC, but he queried how he could leave his job because he had to protect his family’s area in the village, and he considered that it was his responsibility.
I find that there is a difference in the applicant’s understanding of the letter he received and the translation: he claimed in his visa application and at hearing that the letter warned him to stop working with the VDC otherwise he would be killed, whereas the translation of the letter states that it had already been decided that he would be killed. I note that the translation of the letter was completed by the applicant’s representative who assisted him with his visa application (who is not the applicant’s current representative).
Notwithstanding my doubts about the genuineness of the letter, the applicant otherwise presented as a credible witness at the hearing. Given his presentation at the hearing, I accept that the applicant was warned by the Taliban to cease his activities with the VDC. He claimed in his visa application and at hearing that he was warned by the Taliban to stop his work, and his understanding was that he was told that he would be killed if he didn’t stop his activities. This explains why he spent a significant time abroad and limited his activities with the VDC when he was at home in his village but thought he could continue with his activities provided he did so in the evenings. I have accepted that he worked with the VDC, given his sufficiently detailed account of his activities with them. I accept that the applicant wanted to continue his work with the VDC and, following receipt of the threat, completed the work mainly as a night guard. I also note that following the threat in 2015, the spent a significant time abroad, and he had hope that the situation would improve.
I accept that the applicant was fired upon in November 2017 in the evening when he was leaving a VDC meeting. The applicant’s account of being fired upon was reasonably detailed and, when describing the account his demeanour changed. He sat alert on his chair and was visibly upset at recounting what happened. This is consistent with the report from [Organisation 1] about the applicant’s manner when describing what happened to him in Pakistan. I have placed significant weight on the report from [Organisation 1], including their assessment of the applicant having PTSD, and accept that he is suffering from PTSD. He was unable to verify that the people who attacked him were Taliban. However, the applicant appeared as an earnest man with a sense of obligation to his family and his village and confirmed that he did not have any other enemies. I accept that the applicant was fired upon by the Taliban or people associated with the Taliban, and that this was because of his involvement with the VDC. I also accept that the Army told him that they could not protect individuals from the Taliban, and accept that the Army would not have resources to protect all members of the VDC.
I acknowledge that in his visa application, he stated that a few days after the attack he went to Karachi. He told the delegate that it was a couple of weeks before he departed for Karachi and he also told me that it was a couple of weeks. I accept that his visa application was prepared with the assistance of a representative and I have not placed any adverse weight on the imprecise statement in the visa application. I accept that, following the incident, he took steps to depart Pakistan for his safety and that during the time he remained in his village, which I accept was approximately two weeks, he remained at home and kept watch at night. There may have been some confusion about whether the applicant stayed at his home or other people’s homes. I have listened to the applicant’s interview with the delegate and the applicant states that he could not remain at other people’s houses because this would put others in danger. At the hearing, he also said he remained at his home and expressed this as a duty to protect others, because he considered being in their vicinity would bring others into danger.
I had a significant concern about the applicant’s claim that he was not able to leave the ship earlier than he did. He has consistently stated that he decided to leave Pakistan and not return because he was informed by the Army that they could not protect him from the Taliban. After departing Pakistan, he entered Australia on the ship [in] January 2018, [April] 2018 and [May] 2018. It wasn’t until the fourth time he entered Australia on 13 September 2018 that he left the ship and sought protection in Australia. It may be expected that if he genuinely feared returning to Pakistan that he would seek to enter Australia, or another country, at the first available opportunity.
The applicant described not being able to leave the ship because he didn’t have shore leave. The representative explained that this was because the shipping company did not allow crew to leave the ship. As noted above, I have listened to the applicant’s interview with the delegate. There was some confusion when the applicant explained the process of being able to leave the ship, and at the hearing the applicant said the interpreter for the interview with the delegate may have said that there were no stairs on the first three visits to Australia. During that point in the interview there is some discussion about the word the applicant was using to describe the process of leaving the ship. At the hearing, the applicant described in detail the process of leaving the ship, and demonstrated with his hands how the gangway operated. He stressed that it was guarded at all times which prevented him from leaving earlier than he did. He was able to describe how he was able to leave the ship on the fourth visit because the guards were distracted. He had clearly studied how the gangway operated, indicating he had observed the gangway in preparation for exiting the ship. He was able to describe how to operate the remote which was used to access the gangway and leave the ship.

Given I have accepted that the applicant was a member of the VDC, and that he was fired upon by the Taliban and found him to be generally credible in relation to his oral evidence, I accept that he did not have an opportunity to leave the ship earlier than he did. I do not consider that his earlier entries into Australian ports undermine his claims about what happened in Pakistan. I accept that, because of the shipping company’s policy about shore leave, the applicant was not able to leave the ship and had to exit when the guards were distracted.
Does the applicant face a well-founded fear of persecution in Pakistan?
I have accepted that the applicant was of adverse interest to the Taliban because of his involvement with the VDC in [his village]. I have also found that he was fired upon in November 2017 and I am satisfied that he was fired upon because of his involvement in the VDC.
The applicant’s family, his wife, three daughters and his sister, all remain in the area, in the neighbouring village [Village 2] and have not been targeted by the Taliban. His brother remains in [Village 1] and has not been harmed. The applicant’s son has also not been harmed, although he has spent time abroad in [Country 1] and is studying in [Town].
DFAT reports that in Khyber Pakhtunkhwa (where the Swat Valley is located), local communities or the Pakistani government have empowered local councils called ‘peace committees’ (aman jirga) to help oppose militant groups such as the Tehreek-e-Taliban Pakistan (TTP).[3]
[3] DFAT Report, para 3.83.
According to a 2017 working paper by the Secure Livelihoods Research Consortium, members of these committees ‘are appointed by the military or police in order to deal with security issues and to bring peace in an area, with the government giving them authority for out-of-court arbitration’. Despite their name, peace committees take many guises, ranging from ‘keeping an eye on’ terrorist activities to actual engagement against terrorist groups as armed tribal militias.[4] I accept that the VDC is a form of a peace committee.
[4] DFAT Report, para 3.83.
DFAT reports that multiple sources have told them that members of peace committees and their families were targeted for violence by militant groups (especially the TTP, or Taliban, which is the group I accept the applicant was targeted by).[5] DFAT also assesses that members of peace committees and their families are at moderate risk of violence by militant groups.[6]
[5] DFAT Report, para 3.84.
[6] DFAT Report, para 3.85.
While the applicant’s family in Pakistan have not been harmed, his family members remaining in the area are women and the applicant said that women are generally not targeted. His son is no longer in the region, although he is studying in Swat Valley in another town. I have considered whether his family’s relative safety since the applicant’s departure indicates that the Taliban are not interested in harming him now. I do not find that their safety detracts from the risk he faces, as someone who has participated in a VDC and was targeted previously for his involvement. His wife and son minimise their time spent in their village and check on the property every few months.
The DFAT Report is dated 25 January 2022. It reports that the security situation in Pakistan generally has deteriorated since mid-2021 with numerous causes listed for the deterioration.[7] The TTP and other domestic jihadist groups are reported to have carried out terrorist attacks since 2021.[8] The Pakistan Armed Forces have responded to the increase in terrorist attacks and have increased operations commensurate with the increase in attacks.[9] However, there have also been reports that the TTP’s presence in north-western Pakistan has been exaggerated and are misleading, with the Pakistan Army saying that militants will be dealt with by force, if required, and that safety and security measures are in place.[10]
[7] DFAT Report, para 2.34.
[8] DFAT Report, para 2.35.
[9] DFAT Report, para 2.37.
[10] For example, Military says reports of TTP's large presence in northwestern Pakistan ‘grossly exaggerated’ Arab News PK ( 14 August 2022.
Notwithstanding these reports, there are also recent media reports indicating that there has been an increase in fear and unease about the Taliban returning to the Swat Valley, with the return of the Taliban to power in neighbouring Afghanistan leading to the TTP to retake positions in areas along the border and that targeted killings and kidnappings occur regularly.[11] There have been more reports that the Pakistani Taliban are regrouping in the area and have targeted security forces in Khyber Pakhtunkhwa.[12]
[11] For example, Pakistani Taliban's reign of terror returns to Swat Valley - Focus ( 11 January 2023. The report focuses on Mingora, a town 8 kilometres from [Village 1], and refers to the killing of a peace committee member. See also Taliban has successfully returned to Khyber Pakhtunkhwa's Swat Valley: Report (aninews.in) ( 8 May 2023.
[12] Pakistani Taliban target police in northwestern province, kill 2 officers and guard at a local bank | AP News ( 8 June 2023.
The South Asia Terrorism Portal has recently assessed that the TTP and its affiliated groups are growing in strength in Khyber Pakhtunkhwa and that terrorism in the province is unlikely to be controlled in the near future.[13] The South Asia Terrorism Portal finds that the surge in terrorism-related violence in the province can be attributed to three principal facts: the US/Western withdrawal from Afghanistan, the fall of Kabul to the Taliban on 14 August 2021 and the collapse of talks between the Pakistan Government and the TTP on 28 November 2022.[14] This led to an increase in violence in the region in 2023.
[13] Terrorism Assessment, Khyber Pakhtunkhwa, accessed 28 August 2024.
[14] Terrorism Assessment, Khyber Pakhtunkhwa, accessed 28 August 2024.
The South Asian Terrorism portal reports that on 2 January 2024, the Federal Ministry of Interior informed the Senate (Upper House of Parliament) that the continuous influx of TTP cadres in significant numbers, with recruitment, training and deployment of suicide bombers, in some districts of Khyber Pakhtunkhwa was ‘cause for concern’ and that the TTP had significantly increased its capacities for violence.[15]
[15] Terrorism Assessment, Khyber Pakhtunkhwa, accessed 28 August 2024.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
Given the available information, I accept that there has been an increase in TTP activity in the Swat Valley, including violent activity, and that members of peace committees face a moderate risk of violence. While the region’s security improved following previous military action by the Pakistani Army, the situation has recently deteriorated. Given the applicant’s history in the VDC, past threats and the incident in November 2017, I find that he faces a real chance, in the sense that there is more than a remote chance that, if he were to return to the Swat Valley, he would be targeted by the TTP because of his involvement in the VDC and harmed. I accept that the applicant faces a real chance of serious harm in [his village], and the Swat Valley more broadly from the Taliban. I also accept that this is because of his membership of a particular social group of people who are, or have been, members of a VDC or peace committee and his political opinion, as a person who does not support the Taliban.
Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. The Full Federal Court has held that the reference to ‘all areas of a receiving country’ means all areas ‘where there is safe human habitation and to which safe access is lawfully possible’, and that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’: FCS17 v MHA (2020) 276 FCR 644 at [80]–[81].
While I accept that the applicant faces a real chance of serious harm in the Swat Valley, I do not accept that the real chance relates to all areas of Pakistan. There is no indication that the Taliban would target the applicant outside the Swat Valley, or would have the means to do so. Pakistan is a country of 207 million people,[16] which has four provinces: Sindh (capital: Karachi), Punjab (capital: Lahore), Khyber Pakhtunkhwa (formerly the North-West Frontier Province and now including the former Federally Administered Tribal Areas; capital: Peshawar) and Balochistan (capital: Quetta), and Islamabad has its own status as a 'Federal Capital Territory'.[17] Most attacks are carried out by the TTP and other domestic jihadist groups,[18] and most terrorist attacks happen in in Khyber Pakhtunkhwa and Balochistan (although other areas, such as Karachi, are also targeted).[19] Accordingly, I do not accept that there is a real chance that the TTP or other groups would target the applicant outside the Swat Valley, given they do not largely operate outside that region and I find that chance that they would target an individual VDC member outside his local area to be remote. The real chance of harm does not relate to all areas of the receiving country, Pakistan, for the purposes of s 5J(1)(c). Accordingly, the requirements of s 5J(1) are not satisfied.
Does the applicant face a real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia to Pakistan?
[16] DFAT Report, para 2.5.
[17] DFAT Report, para 2.24.
[18] DFAT Report, para 2.36.
[19] DFAT Report, para 2.36.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180]). Given I have found the applicant faces a real chance of home in his area of [Village 1] and the Swat Valley of Pakistan, I find that he also faces a real risk of harm in the same area.
‘Significant harm’ is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act. I find that the harm the applicant faces amounts to significant harm, in the form of being shot at, and/or killed by the Taliban. This treatment amounts to him being arbitrarily deprived of his life and/or being subjected to cruel or inhuman treatment or punishment.
Could the applicant relocate?
Under s 36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. I have drawn guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
Internal migration in Pakistan is widespread and common, but it depends on having both the financial means and family, tribal and/or ethnic networks to establish oneself in a new location.[20] It is therefore possible for the applicant to relocate within Pakistan. However, I do not accept that it is reasonable, in the sense of practicable, for the applicant to relocate based on his particular profile.
[20] DFAT Report, para 5.23.
He is a Pashtun. DFAT reports that Pashtuns are stereotypically fair skinned with light-coloured hair and eyes that distinguish them from other Pakistanis, although Pashtuns can be physically diverse.[21] I acknowledge that the applicant is recognisable as a Pashtun man. DFAT reports that ethnic stereotyping and the association of Pashtuns with the TTP has led to official discrimination and ethnic profiling.[22] In February 2018, the Punjab government issued a notice asking ‘the population of Punjab to keep an eye out for suspicious individuals who look like Pashtuns or are from the former FATA, and to report any suspicious activity.’[23] In areas where Pashtuns are a minority, low-level societal discrimination is common in the form of slurs and ethnic stereotypes. Pashtuns report frequent blocking of their Computerised National Identity Cards when relocating, which impedes access to property and assets. Therefore, if the applicant were to relocate to another area of Pakistan, I accept that he may face some barriers and low-level discrimination. Low-level discrimination on the basis of his ethnicity and barriers to registering in another area of Pakistan would not in and of themselves does mean it is not reasonable for the applicant to relocate.
[21] DFAT Report, para 3.13.
[22] DFAT Report, para 3.17.
[23] DFAT Report, para 3.17.
I have also considered the applicant’s mental health. The applicant has received treatment for PTSD and depression in Australia, and continues to obtain counselling and take medication for his conditions. I accept that the applicant has vulnerabilities, such as PTSD, anxiety, and depression, which would make it difficult for him to relocate outside of his village to another part of Pakistan where he does not face a real risk of significant harm. Given these diagnoses are linked to his previous experiences in Pakistan, it is likely that these conditions would continue in Pakistan or be exacerbated by returning to the country where he faced harm. Further, I accept that it would be difficult for the applicant to obtain treatment for his PTSD, anxiety and depression in Pakistan. DFAT reports that mental health disorders are reportedly common in Pakistan, and options for treatment are limited, and more than 90 per cent of people with common mental health disorders go untreated.[24] Those who cannot access conventional psychiatric treatment sometimes turn to traditional spiritual healers known as baba, pir or sufi. His untreated mental health conditions may make it difficult for him to find suitable employment in Pakistan, although I note that he has been able to work in Australia, but this has been in the context of receiving regular counselling and medication.
[24] DFAT Report, para 2.14.
The applicant’s employment has largely been on ships which transport [products], although I accept that he would no longer be able to easily obtain employment on ships because he has deserted a ship and would be considered a risk to any potential employer. He has also been a farmer in his village.
The applicant provides financially for his wife, two of his daughters and his sister, and given cultural considerations, I accept that his wife and his daughters (if they are unmarried) would be required to relocate with him and so the applicant would be required to relocate with up to four women. He would be required to find accommodation and find employment to support himself and up to four other people.
Given his age, number of dependents, employment history in one particular industry, ongoing mental health conditions and ethnicity, I accept that it would be difficult to relocate within Pakistan. No one particular factor on its own would mean that it would not be reasonable for him to relocate but when considering his mental health diagnoses in particular, and his characteristics cumulatively, I am not satisfied that it would be reasonable, in the sense of practicable, for him to relocate.
Could the applicant obtain protection from an authority?
Under s 36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL (2012) 207 FCR 211. The provision requires consideration of the source and nature of the harm faced, the nature and degree of protection able to be afforded by the authorities from the specific harm faced, whether that protection could be obtained, and whether, upon obtaining that protection there would still be a real risk of significant harm: ABAR15 v MIBP (No 2) (2016) 242 FCR 11 at [60]–[61].
The applicant has previously tried to obtain protection from the Pakistan Army because he was threatened in connection with the assistance which he had provided them as a VDC member. However, they informed him that they could not protect individuals. I do not accept that he would be granted protection from the Pakistan Army.
In respect of obtaining protection from the police, DFAT reports that police capacity and effectiveness in Pakistan is limited by a lack of resources, poor training, insufficient and outmoded equipment, and competing pressures from superiors, political actors, security forces and the judiciary.[25] The police, like the Army, would not provide ongoing protection to the applicant. While the applicant may be able to report any future attacks to the police, I do not accept that this would mean he would have protection such that there would not be a real risk. He would only report to the police after he had been harmed or attacked, and this would not prevent the attack or reduce the risk to below a real risk.
Is the risk faced by the population generally?
[25] DFAT Report, para 5.9.
Under s 36(2B)(c) of the Act there is taken not to be a real risk that an applicant will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally. The term ‘population of the country generally’ refers to the commonly understood concept of the general population, such that there is no requirement that the risk be faced by all members or every citizen of a country’s population for s 36(2B)(c) to apply: BBK15 v MIBP (2016) 241 FCR 150 at [32]. The reasoning in BBK15 and other Federal Court judgments (SZSPT v MIBP [2014] FCA 1245; MZAAJ v MIBP [2015] FCA 478) indicates that s 36(2)(c) will apply where a real risk is faced by an individual applicant, but is the same as the risk faced by the general population. However, s 36(2B)(c) requires a decision-maker to determine whether the risk faced by an applicant is a risk faced by the population of the country generally, not to the population in a particular area of the country such as a particular city or province.

The risk of harm is not faced by the population of Pakistan generally. It is a risk faced by the applicant personally because he is someone has been a VDC member and has been targeted in the past by the Taliban because of his work with the VDC.
Conclusion
I have concluded that the applicant faces a real risk of significant harm in the Swat Valley of Pakistan, and that none of the exceptions in s 36(2B) apply.
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa). I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.
Bryn Butler
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.
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