1912425 (Refugee)

1912425 (Refugee) [2024] AATA 2408 (28 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Mohammad Ajmal Malik
CASE NUMBER:  1912425
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Rodger Shanahan
DATE:28 June 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 28 June 2024 at 12:36pm
CATCHWORDS
REFUGEE – Protection Visa – Pakistan – feared being killed by the police or government – political opinion – involved in political activities against the corrupt PPP government – do not accept that the applicant was ever politically active – a supporter of Mr AD Khawaja the Inspector of Police – delay in applying for protection in Australia – applicant does not have a well-founded fear of persecution –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, r 1.12, Schedule 2
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
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 May 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Pakistan, applied for the visa on 20 September 2017.
The applicant appeared before the Tribunal on 6 June 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu (Pakistan) and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
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, 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.
CLAIMS AND EVIDENCE
Protection Visa Application
The applicant made the following claims as part of his application:
a.Why did you leave Pakistan? I came to visit my brother and holiday to Australia on [date] September 2017. I received telephone from my wife in Krachi that police have been several time looking for me. I have been involved in political activities against corrupted Pakistani People’s Party government in Sindh. Sindh government unlawfully terminated very honest police Inspector general AD Khuwaja. I have been supporter of AD Khawaja. He appealed to High Court, the High Court re-installed him. Since then last month police have been arresting Mr Khawaja supporters therefore police looking for me also;
b.What will happen to you if you return to Pakistan? I would be arrested and harm, detain unlawfully under police custody without charges at an unknown location, or may be killed which is common practice of police in Pakistan;
c.Did you experience harm in Pakistan? I have been harm detained in jail in police custody without any charges in the past due to my political activities against government;
d.Did you seek help in Pakistan? Government and police corrupt therefore there is no safety for political activist in any state of Pakistan to move;
e.Do you think you would be harmed if you return? I would be harm by police or PPP government instruction kept in police custody without any charge for long period or may be killed;
f.Will the authorities protect you? I have been against the government therefore police cannot protect any political worker involved against government;
g.Can you relocate? If I move to any state government can find to harm me therefore it is extremely difficult to move any other state.
AAT Hearing
The applicant was asked if he knew everything in protection visa application and that it was true and correct and he said that he did. He said he feared being killed by the police or government because he was a supporter of Mr AD Khawaja the Inspector of Police because he was against corruption.
Asked what he meant by being a supporter, he said he meant being generally supportive. He was asked what being a supporter of a police officer actually involved, he stated that he meant he liked the police officer because he was from a good caste and he could explain further. He supported the police officer because he was against corruption. He likened support to being a supporter of a sporting team. This was his only claim.
He said that in September 2017 he came to Australia and after a couple of days his wife got calls in Pakistan and the police came to their house asking after the applicant. He had previously received some threatening letters, and been in custody for a couple of days. He moved his family but they were still getting threats and the police knew where his kids were at school, and they knew he was in Australia. The police would have known from the time that he left Pakistan that he had gone to Australia.
He was asked why the police would go to his house asking after him if they knew he had left. He said that perhaps it was because they wanted to disturb his wife. He said that in September 2017 they asked his wife where he was – he said they may not have known he had left at this stage.
He received threats around 2014/15 and the parties such as the Pakistan People’s Party were active in the government. He was put in custody because of his support for AD Khawaja. The police came to his house asking about him and after a couple of months people came and put threat letters in his mail box or under his door. He didn’t know who did this.
Asked about the police visit, he said they asked where he was because perhaps they hadn’t tracked him down. Asked where he was, he said that he was at work at his [business]. He said they also came there as well but he didn’t meet with them. The police came and spoke to his employee and told him to tell the applicant to visit the police station. Asked where he was when the police came to his business, he said there was a partition in their big office and he was sitting on the other side. He was asked why he didn’t see them when they visited and he said that he feared being arrested by the police.
He said he feared arrest because he was a supporter of AD Khawaja, who was the Deputy Inspector-General and was so from 2014-2022. He was asked why the police would know he was a supporter of AD Khawaja and even if they did, why the police would seek to arrest him. He said they may have known based on him telling someone in the community that he liked AD Khawaja.
He was asked why support for a police officer would come up in general conversation and even if it did, why it would be an issue given the applicant just ran a [business]. He said that things were different in Pakistan and people had political opinions.
He was asked how the police couldn’t find him in his own office, and he claimed that if the police came and wanted to come in they would need a search warrant. They only came to ask about him. His employer didn’t tell the police he was on the other side of the partition because he had given instructions to his employee previously that if the police or other people came asking for him he was not to tell them where he was. He agreed that he was afraid of the police from 2014.
He continued to receive threat mails demanding money saying they knew where his children went to school and they could kidnap them. He didn’t know who made these threats but thought it was because of his support for AD Khawaja. Asked who he should pay the money to, he said that he moved from house to house 5-7 times and closed his business. Asked if he had mentioned this previously, he said that he mentioned this in the interview with the Immigration Department. He was certain that he had.
They were asking for 10-15 laks but didn’t say where or how he should pay it. He was asked how he could pay it if there were no instructions as to how to pay or nobody followed it up. He said this was the practice in Pakistan. He was asked how he could contact someone if he wished to pay and he said that perhaps they would drop in contact details – asked if they ever did, he said they hadn’t. It was put to him that this didn’t make much sense as they were allegedly extorting money but not giving him any indication as to how to pay.
Asked how many letters he received, he said there were 10-15. They never gave him a means of contact. It was put to him that they continued to give him these threatening letters about asking for money and kidnapping his children but they never said who they were or how to give them the money. They never did anything to him or his children and yet still sent these letters.
He reported this to the police. It was put to him that he said that he was hiding from the police. He said that he was now hiding from the police. It was put to him that he had claimed to be hiding from the police since 2014 and yet now he was reporting to the police. The Tribunal was confused.
He said that there were some police stations that he wanted to hide from but others that he could report issues to. He was aware of how police worked in Pakistan. He was asked why he was hiding and reporting from the police at the same time. He said that if he couldn’t convince the Tribunal he was sorry for this.
He was detained by the police in 2012/13. He met with the police because they came to his workplace [and] asked him to go with them. He wasn’t arrested but he was put in the police van. He had some talks with them and was detained for a couple of hours. This occurred in 2013. He was detained later in 2013 when they came to his workplace again and they put him in custody for two days. He couldn’t be detained without being arrested and he said they could. It was put to him that they couldn’t enter his office without a search warrant yet they could detain him without arresting him. This appeared inconsistent – he said they didn’t follow the rules and perhaps sometimes they needed it and other times they don’t. There could also be differences in different areas.
He was not detained any other time as he would never interact with the police. They came to his house 12-14 times to home and workplace. It was put to him that this was a lot of police effort to focus on one individual who didn’t have any profile. He was asked why they focused on him so much, and he said that there may have been political pressure placed on the police
He said a resourceful person may ask the police to keep pressuring a person like the applicant as well as his family. He was asked if he had mentioned any of these threatening letters in his protection visa application, and he said that he had not prepared the statement. It was a person who may or may not be a registered solicitor – he never signed the statement. It was put to him that he had said at the start of the hearing that he knew everything in his claim and that it was true and correct.
It was put to him that this person would have written what he had been told and the applicant said that he had advised [Mr A] (the author) about the threatening letters. Asked if [Mr A]’s name appeared in the application he said that it did. He said that he tried to contact [Mr A] but he was out of town or he was not able to be contacted.
Asked why he left Pakistan at the time that he did, he said he came to Australia to meet his brother. He had travelled to [Country 1] prior to this, just to have a break. He returned to Pakistan. It wasn’t dangerous when he went to [Country 1] in March 2017 and he was asked when it came to be dangerous. He said he was still getting threats to his children at the time. Asked if he took his family to [Country 1] he said that he didn’t. It was put to him that it was strange that he would take himself to [Country 1] for a break but leave his family in Pakistan if his children were still receiving threats of kidnapping. This raised questions in the Tribunal’s mind as to the truthfulness of the claim.
He said his parents and in-laws were still in Pakistan who could look after them. He just went to [Country 1] for a short period of time. He said it was more expensive to take his family and he closed his [business] in 2015 because of the threats and the need to move his family from house to house. The business required investments and he became a manager in a [workplace]. He came to Australia on a visitor visa. Asked if he had outlined his work history in his visitor visa application he said that he had.
He got his visa to Australia in July 2017. Asked why there was a delay in leaving Pakistan after getting his visa, he said that he had to give his employer notice as he would be away for a month. Asked if he tried to bring his family to Australia for tourism when he came in 2017, after previously having left them in Pakistan when he went to [Country 1] given this was unusual behaviour for the father of children allegedly under the threat of kidnapping.
He said that he was the one being targeted. It was put to him that he had told the Tribunal that his children were being threatened with kidnapping. He said they were threatening his children because he wasn’t there. From 2012-2017 they never hurt his children or family members. He believed that he was the target.
Asked why the police coming to his house in Pakistan led to him claiming protection in Australia, given they had come to his house before. He said his life had been threatened in Pakistan so he applied for protection. Asked if his family had been threatened since he left Pakistan, he said the threats had happened to his family and his wife had signed a document to that effect. It was put to him that the document didn’t say much. He claimed that his family received threats two to three times a year since he had left. His family had moved three times since he left. The threats followed them asking where the applicant was. The threats were verbal threats from the police who came to the door of their house. It was put to him he said that the police knew he left Pakistan and he said that this was his opinion and that it may have happened.
The police could find him through the family ID. It was put to him that the other people were able to track his family down when they moved yet they no longer did. He said that perhaps they didn’t know their current address or because the police were coming.
Asking if he had any evidence as to the threats or police reports, he said he had them in Urdu and needed to translate them. It was put to him that his DIBP interview was in 2019 but he had not had them translated because they only gave him seven days. It was put to him he had five years after the interview so he had plenty of time to have them translated. He said that he understood this.
Asked if he had applied for any other visas in Australia he said he had applied for a 482 visa which was denied and he hadn’t applied for any visa since then.
He had his parents, in-laws and wife in Pakistan. His siblings were in Australia and [Country 2]. Asked if he had belonged to any political party in Pakistan, he said he wasn’t. He supported the police officer just through general conversation. It was put to him that this minor level of support seemed out of proportion to the threats and interest that he claimed to have received from the police.
It was put to him that in his statement he said he had been involved in political activities against the corrupt PPP government in Sindh. He said this involved the support he gave to AB Khawaja and his name had been highlighted as a result. It was put to him that saying something in general conversation did not reflect his oral evidence. He said that perhaps this was written by the person who wrote his statement. He was asked why the person would write this if he hadn’t told him, given the specific nature of the words. He said that he didn’t dictate his claim, he just told him his story. He didn’t even sign the form.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia on a visitor’s visa on [date] September 2017, the visa having been granted on 24 July 2017. He applied for a protection visa on 20 September 2017.
The applicant is a [age] year-old married male Pakistani citizen. I have seen a copy of his passport and accept that he is a genuine Pakistani citizen. He claimed that if he returned to Pakistan he would be detained without charge by the police or possibly killed because he had been politically active against the PPP state government.
In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not expected to accept uncritically any and all claims made by an applicant.

Overall I found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be a credible, reliable or truthful witness, and find that he fabricated his claims in order to be granted a protection visa.
Political Activity
The applicant’s protection visa application described himself as someone involved in political activities against the PPP government. In his hearing he described himself as a supporter of a senior police officer (Khawaja) who had been dismissed by the government. When he was asked specifics regarding the level of his activism or support, he stated that he spoke approvingly of Khawaja in general conversations.
This falls well short of what anyone would consider to genuinely be political activism. Rather, even if his claim is accepted it would amount to no more than expressing a view in general conversation about a current domestic political topic. He claimed that the person who filled out his application form used the term ‘political activism’ and the applicant simply recounted what he had done.
Yet in his post-hearing submission the applicant’s adviser also claimed that the applicant had been ‘involved in political activities’ and was a member of a particular social group of people ‘who are against corruption and injustice’. I do not accept that in the Pakistani context simply passing remarks in general conversation in support of a senior police officer constitutes political activism, or qualifies someone as being a member who is against corruption and injustice. Indeed, most people if asked would consider themselves to be against corruption and injustice.
Because I do not accept that the applicant was ever politically active, it follows that he was never of any interest to the police or people opposed to the police inspector Khawaja. Indeed, the account of the interest allegedly shown in him by the police and unknown miscreants is extraordinary given the non-existent political profile the applicant has.
His accounts of the visits by the police and threatening letters also lacked credibility. To begin with, he claimed that he received 10-15 letters threatening to kidnap his children and demanding money not to do so. Yet he didn’t know who they were from, and the people who allegedly demanded money never told him how he could actually pay the money if he agreed to do so, or how to contact them if he decided to pay. His claim that they would eventually give him payment details is completely implausible.
I also do not accept that the applicant had to close down his [business] because of police interest in him and threats to him. His account of the police interest in him lack credibility. At one point he claimed that the police came looking for him at his business and he was in the front office separated from his employee by a partition and the police came to the office, but his employee did not tell them where he was under instruction from the applicant. He claimed that the police could not come into the office without a search warrant.
Yet he later also claimed that he went to the police when he allegedly received threatening letters. He also claimed that he was detained for two days without being arrested. It lacks credibility that one the one hand police wouldn’t enter his office to look for him without a search warrant, yet would detain him for two days without arresting him first. It is also inconsistent that on the one hand he would hide from the police and order his employee not to tell them of his whereabouts and yet then report to a police station to complain about threatening letters. I do not accept that this was due to police inconsistency or because he wanted to hide from some police stations but not others. He did not explain how he could discern what police station had sent officers to ask for his whereabouts or who went to his car business.
His actions in twice leaving his family behind in Pakistan while he travelled first to [Country 1] to have a break, returned to Pakistan and then to Australia to visit his brother is not indicative of someone who fears of his children being kidnapped or of harm against himself. I do not accept that he did this because he had parents and in-laws in Pakistan to look after the children, because it was expensive to take the whole family, it wasn’t dangerous in Pakistan when he went to [Country 1] in March 2017 or because they never hurt his children between 2012-17 and that he was the one being targeted.
The applicant variously stated that he had been receiving threats from 2014/15 and that he was afraid of the police from 2014 so his decision to return to Pakistan from [Country 1] in 2017 is inconsistent with his claimed fear of being killed by them. His willingness to leave his family behind even though he claimed that he had to move his family from house to house 5-7 times is also inconsistent with his claimed fear. Given the alleged presence of hostile police and miscreants that was sufficient for him to move himself and his family up to 7 times, it also appears inconsistent with the role of a concerned father that he would leave his wife and children in the care of parents while he went to [Country 1] simply to have a break.
Other Issues
I have taken into account a letter from the applicant’s wife that he provided as part of the hearing that supports his claim that the police have been asking his whereabouts and that the applicant was a supporter of AD Khawaja. I lend it little weight given it was written by his wife who is not an objective witness – I also note that the letter makes no mention of threats of kidnapping of their children, which it is reasonable to believe that a concerned mother would have done.
I have also taken into account a letter provided by the applicant post-hearing. It purports to be a photocopy of a confidential letter from 5 June 2024 from the Assistant Director (Policy) saying that anyone claiming asylum in foreign countries would not be issued passports. I lend the letter no weight. It is a poor quality photocopy of a document that could have been produced on any home computer. There is no publicly available information that supports such a policy shift from Pakistani authorities, no explanation of how the applicant came to be in possession of an allegedly confidential internal policy document, nor how the Pakistani government could identify people who had claimed asylum overseas given the process is confidential.
As the applicant hasn’t raised any other claims to fear persecution, and having regard to all the evidence and his claims both singularly and cumulatively, the Tribunal finds that there is not a real chance that the applicant will face serious harm for any s 5(J) reason either now or in the reasonably foreseeable future.
Complementary Protection
Because I do not accept that the applicant was ever known as a supporter of AD Khawaja, was ever involved in political activities, was ever or is of interest to the police, or ever received threatening letters, I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.
As a consequence, I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, that there is a real risk that the applicant will suffer significant harm on the basis of these claims as set out n the complementary protection criterion set out in s. 36(2)(aa).
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is 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), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rodger Shanahan
Member

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

[2024] AATA 2408

28 June 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction