1915034 (Refugee)

1915034 (Refugee) [2023] AATA 1197 (20 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1915034
COUNTRY OF REFERENCE: Pakistan
MEMBER:Denis Dragovic
DATE:20 February 2023
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 20 February 2023 at 1:45pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – membership of particular social group – unmarried relationship and child with citizen of third country while living in fourth country – later married in third country and wife and child currently living there – threats by maternal uncles – no violence or harm to any family member – limited relationship with wife, who is not willing to move to Pakistan – no further visits to her country and limited efforts to investigate moving there – religion – non-religious from very religious family – not outspoken or activist – country information – risk of harm to atheist activists or organisers – risk profile for honour crimes – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J, 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), 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 dependants.
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 27 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 2 August 2017.
The delegate refused to grant the visa on the basis that although the applicant does face a real chance of serious harm from his extended family for having a child out of wedlock and marrying a non-Muslim were he to return to Faisalabad, he could nevertheless relocate to other parts of Pakistan where his family would not find him. With regards to the claims of harm as a result of his non-belief in Islam, the delegate found that there was no information to suggest that the applicant would practise his lack of religious beliefs in a manner that would make him a target to the society or the authorities.
The applicant appeared before the Tribunal on 11 January 2023 to give evidence and present arguments.
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.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF Claims and evidence
Evidence and findings of fact
The applicant is a [Year]-year-old accomplished [Occupation] from Faisalabad, Pakistan. In [Year] he moved to Karachi where he started his apprenticeship as [an Occupation] working for [Employer]. After completing his apprenticeship in Karachi in [Year] he was offered a job in [Country 1]. He remained there until 2016 and then moved to Australia, where he has worked in amongst other places [Location], [City] and [Region].
Based on the evidence before the Tribunal I am satisfied that the applicant’s country of nationality and his receiving country for the purposes of the refugee and complementary protection considerations is Pakistan.
The applicant’s parents and siblings were described as being very religious. He said that his parents were more religious than the general community. He also described his family and upbringing as middle class.
While in [Country 1] the applicant met a [Country 2] woman, he estimated it was in [Year] while he was working as [an Occupation] and she was working in front office roles for a [Workplace]. He said that she became pregnant and due to the laws in [Country 1] not acknowledging child birth out of wedlock, she moved back to [Country 2] to have the child in [Year].
According to the applicant she is now in [Country 2] with their [child]. She never returned to [Country 1] and he only visited [Country 2] once in 2016 when they married ([September] 2016). He has not visited since then as, he claimed, he was on a Bridging Visa and believed he would not be able to leave Australia, but he acknowledged that he had not asked the Department whether there was a way he could travel out of Australia. He added that he was between jobs at the time and as such he had other responsibilities. Since borders opened following the Covid pandemic, the applicant has not asked his wife and child to visit him in Australia. He said that he has limited time and savings.
He said that he has not thought about what would happen if he had to return to Pakistan, but he knows that his wife would not travel to Pakistan, in part due to her being Catholic and the fear of being persecuted.
The applicant said that he looked into whether he could move to [Country 2] in 2019 but said that he couldn’t. I put to him that it is easy to find on the internet information that once someone is married to a [Country person] a visa is readily accessible.[1] I explained that it is issued to foreign nationals and allows for the visa holder to work even while it is being processed. He responded that it was the language barrier that kept him away from pursuing that avenue. I put to him that English is spoken widely alongside [Language], and that English is one of [the] official languages of the country.[2] He said that he had talked to one of his [Work superiors] who put him off the idea.
[1] [Reference deleted]
[2] [Reference deleted]
The applicant said that over the last two years his marriage has been on the rocks. He said that they are barely on speaking terms. He said that he doesn’t blame her as he has been in Australia for six years. The last time he talked, either with his wife or son, was six months ago.
He said that after the birth of his child in [Year] he went to Pakistan and explained to his parents what happened. He was not married at the time. He claims that in response to the news, they were shocked. He said that the extended family had a meeting about it and conveyed to him that he had brought shame to his family. He claims that he was threatened by his uncles on his mother’s side. I noted that he had written in his statement that his immediate family were not happy with him, but they were not mad at him. When I asked him of this at the hearing, he confirmed that they were not angry. The applicant noted that he continues to be in touch with his family.
He said that his uncles believe that no one would marry their daughters because of the shame that he had brought to the family. He recalled that they said that either he leaves the country, or he would be 6ft under. I asked why they didn’t kill him then. He said that he had to buy a last-minute ticket to escape and hence they couldn’t harm him.
He then went back to [Country 1]. He said that he wasn’t sure of what to do and at the same time someone reached out through LinkedIn about working in Australia.
The applicant stated that his father has not been harmed but the uncles continue to call for his return. In describing the family, he said that his father is the elder of the extended family. Regarding his siblings, he has one sister who is married, currently living in Faisalabad, and another sister who is [Age] years old and is not married along with a [Age]-year-old brother who is not married. He believes that his unmarried sister is not married because of his actions. He said that in his society the family arranges for the marriage and what he did was wrong. He believes that in the eyes of other families they don’t want to marry his sister for that reason.
The applicant said that his unmarried sister has hinted at his responsibility for her situation.
I put to him that marriage that is arranged through the family is about finding a preferable partner and that it just may mean that his family will have to lower their standards for his sister to marry. He responded that this explanation is possible. The applicant said that he hasn’t had that discussion with his sister.
The applicant has not been contacted by his uncles. He said that they don’t have his phone numbers and that he blocked them from his social media accounts as soon as he left Pakistan.
I asked if his uncles have been known to be violent for other reasons. He said that they have an ongoing land dispute since he was born. His grandfather had the land in the great-grandfather’s name, and when he died the inheritance then moved down to the uncle of his mother who cut off the rest of the family from the land. The case went to the courts and is ongoing. It has included tribal discussions. He said that some family members have exchanged gun fire over the land.
The applicant said that he is not involved in any way with the land dispute.
Regarding the applicant’s faith, he self-described as not being associated with any religion. He said that his problems arose due to religion in Pakistan along with culture. I put to him that in Islam it doesn’t state that the family must arrange a marriage but rather it is a cultural trait. He said that it is intertwined with religion.
He fears harm due to his non-religion and the Pakistani laws against blasphemy and the consequences of being seen as an apostate. He fears being harmed for saying things that he would say such as that you don’t need to follow a religion. He recalls asking his father questions about God and the children who die without knowing God. He said that he was a curious kid that was shut down by his father. He claims that his questioning of religion has continued.
I put to him that one in ten Pakistanis identify as non-religious and asked whether all of them are at risk of being harmed.[3] He said that there is a difference between leaving Islam and being non-religious. I noted that the vast majority of people in Pakistan would have been born and raised in a Muslim family and hence the one in ten figure would be overwhelmingly those who left Islam. He said that they are not voicing their concerns, he said that he asks questions of his parents and may say something to his friends. He said that word will get out that he left Islam.
[3] ‘Losing Our Religion? Two Thirds of People Still Claim to Be Religious’, Gallup International (Bulgaria), 8 June 2015, 20190304114559
He noted that a former chief minister was killed because he was defending people of other faiths. The applicant was referring to the assassination of the governor of Punjab who was killed by his own bodyguard in 2011 because the bodyguard believed the governor had committed blasphemy.[4]
[4] Governor of Pakistan's Punjab province assassinated, CNN, January 5, 2011 >
The applicant provided an article The Defiance of Pakistani Atheists which describes the situation for atheists who are active online seeking out chat groups and for those who debate religion in public. The article references a Gallup poll as suggesting that as of 2012 two percent of the Pakistani population was atheist, a doubling since 2005. While this report describes some of the atheists who have been harmed, they are people who are dissimilar to the applicant in that they are organisers or activists. While an example was given of a student and a professor who were also caught up by the blasphemy laws their prominence is more a reflection of the exception in the application of the law rather than a norm.
The apparent difference in figures between the two referenced Gallup estimates of Pakistani religiosity can be explained by looking more clearly at the question Gallup asked. One in ten refers to those who identify as not religious, whereas one or two percent are those who are ‘convinced atheist’. The applicant’s description of his situation was self-described as non-religious and based upon the evidence he provided his profile would better be described as non-religious as opposed to convinced atheist.
Despite this nuanced difference, I noted that there is a high percentage of Pakistanis who are not practicing Muslims, they may believe in Allah and the Prophet but don’t practice the faith.[5] I asked him why he would be harmed if he didn’t practice a faith that many other Pakistanis don’t practice. He responded that he not only doesn’t practice but does not believe. He acknowledged that it is possible that no one would find out. He said that he wouldn’t be forced to attend prayers, but people would place social pressure on him. He said that he attends religious services such as weddings in churches, but he doesn’t pray.
[5] The World’s Muslims: Unity and Divergence Chapter 2: Religious Commitment >
He fears that religious extremists would harm him. I put to him an article from the BBC which quotes one atheist as saying, ‘If you're willing to do certain things - have etiquette, respect your parents and be appropriate in public - you can get away with being a disbeliever.’[6] I asked for his thoughts on that to which he said, that once word gets out the consequences are harmful.
[6] Pakistan’s secret atheists, BBC, >
I noted to the applicant at the hearing that there is no information available from DFAT to suggest that there is a risk to those who are non-believers but only that those who speak up against Islam would be harmed.[7] He said that there is a possibility for people to find out.
[7] Reviewed current and past DFAT reports along with questions and answers from COISS
He said that he has posted questions about his religion on his [Social media] page though he has deleted it now and he’d made comments on friend’s posts, but no one had said anything about it nor had he received any abuse arising from it.
Considerations
The applicant fears that because of having a child out of wedlock to a non-Muslim his family and society will harm him. He also fears harm arising from the state and society for reasons of his lack of religious belief.
The applicant provided an article about the practice of Karo-Kari, a form of honour killing, from which I discussed the following extract with him:
Victims of Karo-Kari are most often married adult females (HRCP, 2006). Nevertheless, those who are single or male may also be affected… Thus women who are unemployed, illiterate and live in impoverished conditions have a higher risk than others of becoming a karo-kari victim… Almost all perpetrators of karo-kari are male family members, most commonly husbands, followed by brothers.
I put to him that his profile doesn’t align with the type of victims described in the article noting that he is middle class, on good terms with his immediate family and male not female. I put to him that this an unlikely cultural tradition to be used against him. He said that the possibility is there. He acknowledged that he could escape it.
I note that in a pre-hearing written submission he made similar claims that did not align with his own profile, for example in describing honour crimes he wrote:
The overwhelming majority of the victims are in remote rural areas, while the offenders are, mainly, the uncle, fathers, or brother. The reasons for this cruel practice, are related to the alleged extramarital relations of the women and Man or exercise of the choice of marriage by the victims, and very rarely the disputes of the property. The majority of the crimes remained unregistered, hence no question of the trial or the punishment.
In the applicant’s pre-hearing submission, he referenced a journal article, ‘Reasons and Victims of Honour Killing in Pakistan: An Analysis’, Journal of Political Studies that included statistics on honour killings over a period of five years. The results showed that the overwhelming majority are female victims, particularly for those committed in the applicant’s province of Punjab, and the offenders are immediate family members. But I acknowledge that the article does show that some victims were male, and some perpetrators were ‘other relatives’.
The applicant believes that he faces a significant risk based upon what the uncles have said in the past. I put to him that it’s one thing to voice opinions as opposed to doing something which carries risks such as imprisonment or family retribution. He said that his uncles would take such a risk because of the lack of protection from law enforcement in Pakistan.
He said that there would be zero consequences to his uncles were they to choose to do something. I asked upon what basis he makes that claim as country information shows there are arrests and prosecutions of honour crimes.[8] I acknowledged that it doesn’t stop them all but there is sufficient action that it provides some degree of hindrance to those contemplating it. He said that in rural areas they work through a jirga without the involvement of law enforcement. I said to him that he lives in Faisalabad, where there is law enforcement. He said that his family is from the edges of Faisalabad in the semi-rural areas.
[8] An example that shows that police do take action in some instances: Sisters allegedly murdered by husbands in Pakistan ‘honour’ killing, The Guardian, 24 May 2022. In addition the applicant’s submissions prior to the hearing also include articles showing police action against honour crimes.

I asked the applicant that as Pakistan is a patriarchal society and the woman marries into the male’s family, what right do the maternal uncles have to interfere in the affairs of his father who is the male head of the family.[9] He said that they are still family, and the family marriages are all distantly related anyway.
[9] Daily life and social customs, >
In considering the applicant’s claims of fearing harm from his family I place considerable weight on there being a difference between threats, voiced some time in the past, and the willingness of people to follow through on threats. As noted above, the tradition that the applicant referred to that he claimed would put him at risk appears uncommon for the circumstances he is in. No other information was provided of some custom or tradition that would motivate or justify harm against him. Nevertheless, I accept that he has brought shame to his family. But this was evident at the time of his presence in Pakistan and yet nothing was done to him. He was not harmed. The applicant said that he escaped by buying a ticket to leave the country but there was a period when threats were made and yet not followed through. I find it vexing that his uncles threatened him and told him he had to leave but he is now claiming that they are calling for him to return. I note that none of his family has been harmed or threatened since.
While I accept that some members of the family may have suffered some harm in the form of a loss of honour or fewer options to find a husband, there is no evidence to suggest that the family have in the past followed their disputes through with violence. On the contrary, they have turned to the state for adjudication on a land dispute. While shots were fired in one instance, there is no claim that they were fired at someone or that anyone was injured.
I note that the applicant’s immediate family and his father in particular are not making the threats and that his father is the elder in the extended family; the uncles are through the maternal side, which diminishes their role; and there hasn’t been any act that would suggest the uncles are either intent on harming the applicant or capable of harming the applicant. That the applicant lives on the edge of a major city does not diminish the presence of police unlike in remote areas where tribal law prevails. For these reasons, I find that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from his marriage and having a child. To be clear, this includes for reasons of marrying a non-Muslim, for marrying a non-Pakistani, for having a child out of wedlock and for any other reason that the applicant claims angered the uncles or other family members.
I have also considered the applicant’s claims of fearing harm for reasons of his non-religious stance. The applicant does not practice any faith. He has ideas that he has described as being contrary to Islam. He fears that these ideas and his lack of practice would become known, and he would be harmed as a result. In considering his circumstances it is important to first acknowledge that the applicant is from Faisalabad, a major city in Pakistan. If he was from a small village where everyone knew the activities of everyone else and the absence of someone from Salatul-Jumu'ah (Friday prayers) would be noticed, it would be a different starting point for this consideration, but he is not. The applicant has not claimed to have embraced any activities in any place that he has lived that would identify him as being outspoken or having an activist view against religion, rather his examples of how he shares his thoughts include when he was a child speaking to his father or subsequently with friends either in person or on social media.
When he did communicate with his father and friends about his thoughts no harm came to him not even threats. No country information was provided, nor any found that would indicate that people who have thoughts that they share with friends about religion is a likely pathway towards being identified as an apostate or blasphemer. This is not to say that it may not happen, as the country information showing the case of the student and professor shows, but the pathway to being harmed from a private conversation with someone he trusts to then facing serious harm or significant harm is remote.
The applicant also fears harm for reasons of not practicing his faith. I provided information at the hearing that a substantial minority of Pakistanis are in a similar situation. The applicant’s responses did not challenge the statistics but rather reverted to a claim that it is possible that people will find out. Considering that the applicant has acknowledged that he attends religious institutions for other reasons such as a wedding but simply doesn’t pray in them, noting that many other Pakistanis don’t maintain their obligations to their faith and that the applicant is not actively advocating against Islam, I find that based upon the available country information the applicant faces a remote chance of serious harm and a remote risk of significant harm arising from his non-practicing of Muslim religious obligations.
The applicant did not claim that his family who are religious may harm him for his lack of religiosity. As such I find that the applicant does not face a real chance of serious harm or a real risk of significant harm from his family for reasons of his lack of religiosity.
The applicant also mentioned the ongoing court dispute over the land stating that it had once escalated to shots being fired. He did not claim that he faced harm arising from this source. In turning my mind to this situation, noting that he has stated that he has nothing to do with the claim and as such will not pursue the claim and that it is proceeding through a formal pathway through courts and has not led to any harm to date to anyone, I find that the applicant does not face a real chance of serious harm or a real risk of significant harm as a result of his extended family’s land dispute.
I have also considered the situation of his wife and note that she is said not to be willing to move to Pakistan for fear of being harmed due to being Catholic. She is not an applicant in this review and as such any consideration that I make is through the lens of the applicant and how his circumstances would change. I note that the applicant has said that he and his wife are barely on speaking terms and that they haven’t spoken for the past six months. I note that the applicant has undertaken very limited effort to look at opportunities or pathways to join his wife and child in [Country 2] despite the means being available. Based on the information before me I find that even free from fear the applicant’s wife and son would not move to Pakistan to be with the applicant. As such I find that there is no impact upon the applicant’s profile arising from the circumstances of the applicant’s wife not wanting to move to Pakistan.
I have also considered the applicant’s combined claims including that his extended family have expressed threats against him for reasons of his relationship with his wife, that he is no longer a practicing Muslim and has views that align with his lack of religiosity and that his family have a land dispute. In considering the combined circumstances of all three claims and their multifaceted subclaims and focusing on situations in which there may be overlap amplifying the applicant’s risks or harm, I still find that through no combination does the applicant’s risks rise above a remote chance of serious harm or a remote risk of significant harm.
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.
Denis Dragovic
Deputy President

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

[2023] AATA 1197

20 February 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction

Natural Justice

Standing