1915130 (Refugee)

1915130 (Refugee) [2024] AATA 4211 (15 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Imogen Hines
CASE NUMBER:  1915130
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Denis Dragovic
DATE:15 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 15 August 2024 at 3:14pm
CATCHWORDS
REFUGEE – Protection Visa – Pakistan – race – Hazara ethnicity – religion – Shia – mental health struggles – faces a real chance of serious harm into the reasonably foreseeable future – not reasonable for the applicant to relocate to Karachi – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
FCS17 v MHA (2020) 276 FCR 644
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
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 22 May 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a citizen of Pakistan.
He applied for the visa on 19 March 2015.
The delegate accepted the applicant’s claims of being a Hazara from a Hazara enclave in Quetta and that he faces a well-founded fear of persecution were he to return but found that the circumstances in Karachi were such that he would not face a real chance of persecution. As such the delegate found that the applicant did not meet s 36(2)(a).
With regards to Complementary Protection, the delegate found that while the applicant faces a real risk of significant harm in Quetta but less than a real risk of significant harm in Karachi, when considering whether it would be reasonable for him to relocate to Karachi, the delegate found that it would be and as such found that the applicant did not meet s 36(2)(aa).
The applicant appeared before the Tribunal on 26 July 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
The applicant was represented in relation to the review.
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 remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant is a [age]-year-old practicing Shia of Hazara ethnicity. He is from one of the two Hazara enclaves in Quetta, generally known as Mariabad.
The applicant recited a number of incidents that occurred to him, his family or in the vicinity of his neighbourhood. These include:
a.The 2004 ‘Quetta Ashura massacre’ occurred in an area close to his house.
b.His uncle, [name] was killed while working at his [shop] in 2009.
c.While attending an eid prayer congregation near his home a suicide bomber exploded ordnance killing 10 people and injuring hundreds in 2011 killing friends and neighbours.
d.He saw the beheading of two Hazara men
e.Mob threats from neighbouring Pashtun areas calling for Shia to leave and be killed and personal threats from unknown people
The applicant first arrived at Australia in October 2012 on a UF 309 offshore partner visa. But in January 2013 there was a bomb blast near his house that damaged his house. His mother had suffered a major heart attack and had a physical injury to her face and his father suffered from hearing impairment. Fearing for the safety of his parents he left Australia and returned to Quetta to help his family on [date] March 2013.
The applicant claimed that the incident led to over a hundred people dying, this was confirmed by independent country information that indicates the blasts killed at least 81 people and wounded more than 170.[1] Following the bomb blast the shop owned by the family had to close. The applicant’s family became partially dependent financially on the applicant’s brother who was living in Australia.
[1] >
In 2013 while in Quetta the applicant claims that he was called over by two Pashtun men but ignoring them he continued with a quickened pace and shortly after heard gun shots and saw two bullets hit a wooden wall near him.
In April 2013 he recalled sitting with a group of Hazara men and not far in the distance he saw the Frontier Constabulary check point and a man approach and then blow himself up killing one of the policemen.
Also, in 2013 he recalled spending time in the market with a businessman who hours later was killed as he was closing his shop.
He recalled seeing dead bodies of adults and children from the ‘Mustang Pilgrim’. He described the bodies as being in pieces.
In November 2014 he was attacked by a group of Baluch men, they kicked and hit him and spoke abusive words.
The applicant was able to legally return to Australia on [date] March 2015 holding a different visa. He applied for the visa currently being considered on 19 March 2015.
The applicant remained in Pakistan throughout the violence described above. The reason being that the family of his fiancé who had sponsored him on an offshore partner visa, had falsely told him he could not return because the relationship had ceased, and that his visa had been cancelled. It wasn’t until he received an email from the Australian government regarding his visa that he realised that it had not been cancelled and that he still had a valid visa.
The applicant has one brother and two parents who reside in Quetta. They currently run a small shop from their house but according to the applicant ‘often cannot get items to sell from it so even earning enough money to pay for food is difficult.’
Country information on the situation of Hazara in Pakistan
The following information from diverse sources including international observers and the Pakistan national human rights body paints a bleak picture of the circumstances facing Hazara in Pakistan. I have extracted direct quotes as being representative of the views contained in the extensive material reviewed for this decision:
a.‘Medical, education and other services inside the enclaves are basic. Food and other essentials must be brought in from outside, and prices are reportedly double those elsewhere in Quetta. Those who can afford to travel to Karachi for medical treatment do so, while others must attend Quetta hospitals outside the enclaves, where they have been attacked in the past. Sectarian militants have also attacked Hazara religious processions, places of worship, and pilgrims on their way to Iran.’[2]
b.‘DFAT assesses Hazaras who live in the enclaves in Quetta face a moderate risk of societal discrimination in the form of impeded access to higher education, medical services, employment and affordable food. Within and outside the enclaves, Hazaras face a moderate risk of official discrimination, including by government officials and security forces, in the form of obstruction at checkpoints and denial of or delay in access to identity documentation, employment and services. DFAT assesses such discrimination reflects widespread individual prejudice rather than official policy.’[3] [DFAT defines moderate risk as: ‘DFAT is aware of sufficient incidents to suggest a pattern of behaviour’]
c.DFAT assesses Hazaras in Balochistan [the province in which Quetta is situated] face a high risk of violence from militants on the basis of their ethnic and sectarian identity.[4] [High risk being defined as: ‘DFAT is aware of a strong pattern of incidents’]
d.‘The Hazara Shia have been targeted over many years by Sunni extremists, such as Lashkar-e-Jhangvi, Sipah-e-Sahaba and now ISIS. According to a 2019 report by Pakistan’s National Commission for Human Rights, an independent watchdog, at least 509 Hazara have been murdered for their faith since 2013. The non-profit Human Rights Commission of Pakistan says that from 2009 to 2014, nearly 1,000 Hazaras died in sectarian violence. Thousands have been injured. ‘Our men and young can’t go outside. If they go, they will be killed. Our graveyards are full of young men.’ [said Masooma Yaqoob Ali]. To curb attacks on the 600,000 Hazaras living in the towns of Mariabad and Hazara Town in Quetta, authorities have built military checkpoints, roadblocks and walls around the areas.’[5]
e.‘Iqbal Nasiri, a social activist belonging to the Hazara community, said Hazaras were not even safe in Karachi, as “a large number of community members have been killed in recent years”’.[6]
f.‘Groups designated as terrorist organizations by the United States and other governments, such as ISIS, also committed violent acts. Among the targets of these attacks were Shia Muslims, particularly the predominantly Shia Hazara community.’[7]
g.‘The threat of sectarian violence against the Shia Hazara community in Balochistan remained omnipresent. Even with 10 check posts and 19 FC [Frontier Corps] platoons in the two main Shia Hazara settlements of Quetta, more than 500 Hazaras had been killed and 627 injured in just five years. In April 2019 an explosion in a vegetable market frequented by Hazaras killed 20 people, including 10 Hazaras. A report released by National Commission for Human Rights (NCHR) in March 2018 stated that 509 members of the Hazara community had been killed and 627 injured in various targeted incidents of terrorism in Quetta over the previous five years. Security measures for Hazara areas have recently been referred to as extreme ghettoization of the community. The ghettoization appeared to be cost of relative safety for the Hazaras. Between 75,000 and 100,000 Hazaras were said to have been forced to relocate elsewhere in the country or abroad in search of safety.’[8]
h.‘The existing situation of [the] Hazara community is precarious, [as they] are facing enormous difficulties in exercising their fundamental human rights i.e. right to life, freedom of movement, right to higher education, and right to participate in the earning of their daily living and access to necessities of life. They are also having limited social opportunities due to fear of violence.’[9]
i.‘There are only two main hospitals of Quetta, situated in the unsafe zone with history of attacks against Hazara Shia patients seeking emergency care or other health services (Zarak et al., 2020). Thus, Hazara Shias face both access and cost barriers to seeking healthcare or emergency health services at the time of the attacks.’[10]
[2] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Pakistan’, January 2022 at [3.7]
[3] Ibid at [3.11]
[4] Ibid at [3.12]
[5] Shah Meer Baloch, 'Every year we dig mass graves': the slaughter of Pakistan’s Hazara’, The Guardian, 5 April 2021
[6] Zia Ur Rehman, ‘After Machh tragedy, Karachi's Hazaras fear for their safety as well,’ Geo News, 6 January 2021 2020 International Religious Freedom Report
[8] PIPS/FES - Pak Institute for Peace Studies/Friedrich-Ebert-Stiftung Pakistan: Strengthening
[9] National Centre for Human Rights in Pakistan, quoted from Document #2025210; IRB – Immigration and Refugee Board of Canada, ‘Pakistan: Situation and treatment of Shia [Shi'a, Shi'i, Shiite] Muslims, including Hazaras and Turi, particularly in Lahore, Karachi, Islamabad, and Hyderabad; state response to violence against Shias’ (2017-January 2020) [PAK106393.E]
[10] ‘The migrant Hazara Shias of Pakistan and their social determinants for PTSD, mental disorders and life satisfaction,’ 2023, >
There is an alternative narrative emerging and that is of the situation for Hazara improving. A research report for the Poresh Policy Research Institute by Bismellah Alizada and Maisam Iltaf[11] records the number of incidents and deaths of Hazara from 1998 through to 2022. The violence peaks in 2012 but since then has steadily declined with 2022 having two incidents leading to two deaths and 21 injuries. The year before one incident and prior to that zero incidents.
[11] Bismellah Alizada and Maisam Iltaf, ‘We will Make Pakistan Their Graveyard: Systematic Attacks Against Shia Hazaras of Quetta, Pakistan (1999-2022)’, Poresh Policy research Institute. 2022
This reduction in violence against Hazara has been put down to the Pakistan government’s willingness to enter into talks with militant groups, its army operations against terrorists and the National Action Plan that was devised as a concerted effort to curb terrorism. In addition, there has been an increasing national and international spotlight on the plight of the Hazara which has forced the Pakistan government to take additional measures to protect the minority group.
This same report compares the alternative data collated by groups such as the Human Rights Commission of Pakistan (referenced above) and Human Rights Watch, but it notes that the former organisation has not provided its sources nor any details about its methodology. The authors of the report stress that their far lower figures of deaths are low ball figures as there were a number of limitations on their methodology.
Aligned with this alternative view are the words of the former Senator, Usman Kakar, a Pashtun, who was suspected to have been murdered in 2021:
While addressing the issues of migration of Hazara community he said that, ‘immigration to foreign countries is a common trend in our society. Mostly, Hazara people want asylum in other countries for a better future rather than because of genuine security vulnerability.’ He reiterated that in Quetta Hazaras are not the only target, but Balochs, Pashtuns and other communities are unsafe too. This view was supported by some of the Hazara representatives, who were of the view that they should focus on collective struggle for their emancipation from violence, rather than migrating place to place which adversely affects their identity.[12]
[12] Quoted in ‘UK Home Office Report: Country Policy and Information Note Pakistan: Hazaras’, 2022 at [7.1.8]
In considering this alternative narrative, I note firstly, that serious and significant harm is not exclusively physical harm. While the Alizada report shows a significant improvement for Hazara in terms of physical safety the limitations for those living in Quetta on their liberty and access to services such as education and health as well as access to goods remains.
Secondly, the nature of the threat to the Hazara is not temporal. They are a minority with facial features that make them easily identifiable as Shia, which in turn makes them targets of extremist Sunnis. This is because the underlying belief amongst certain extremist Sunni groups is that Shia are not Muslims and as such blaspheme in their beliefs. The nature of this animosity is deeply rooted and not easily changed. While Hazara and Shia in other localities in Pakistan may be less prominent and so not easily identified, the two Hazara enclaves in Quetta present a target rich environment for Sunni extremists.
For these reasons, when considering the information available to the Tribunal and noting the competing data, I favour the view that the unique circumstances of the Hazara in Quetta, and particularly someone with the profile of the applicant, is such that he faces a real chance of serious harm into the reasonably foreseeable future.
I find that race and religion are the essential and significant reason for the harm (s 5J(4)(a)) based on the evidence detailed above.
In considering whether the harm he faces would be systematic and discriminatory (s 5J(4)(c)) I find that it is because the evidence indicates a long-standing intent by Sunni extremists to target Hazara in Quetta.
While the state has undertaken efforts to protect the Hazara, including by way of army operations against the Taliban, it has also contributed to the harm by establishing ghettos that limit their freedom of movement. This includes building walls and checkpoints that improve security but impact liberty. The risk to the applicant isn’t from a lack of will by the Pakistan authorities but rather a lack of ability to deal with the threat that Sunni extremism poses to Hazara. For these reasons I find that the applicant cannot seek protection from the state (5J(2)).

I also find that the applicant cannot modify his behaviour as it is the applicant’s facial features and location of his residence that will lead him to face serious harm (s 5J(3)).
With regards to the possibility of the applicant relocating away from Quetta (s 5J(1)(c)), 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].
The applicant said that while other cities afford a safe location for Hazara living there such as Karachi, Lahore and Islamabad, the Hazara who live there moved there a long time ago. He said that they live in very small groupings and so are integrated among Pashtuns.
He nevertheless added that he knew a Hazara who was killed in Karachi while driving a rickshaw. That a person was killed who was Hazara does not necessarily mean that the person was killed because they were Hazara. For this reason, I rely on the independent analysis of targeted killings of Hazara rather than such anecdotes.
Country information on the situation of Hazara outside of Quetta indicates limited number of attacks. DFAT states, ‘there have been no [targeted] attacks outside Balochistan since 2014’. While the report states that militants retain ‘the intent and capacity to attack Hazara’ the reality is that they have not done so for a decade. This weighs heavily in any consideration of the level of risk the applicant would face in relocating to another city.
The applicant fears that in other parts of Pakistan he would be perceived to be an Afghan due to his features and that he risks being deported as the Pakistan government has been rounding up and forcibly deporting hundreds of thousands of Afghan citizens. This claim of deportation of Afghans is supported by independent country information which indicates that the authorities have already deported over half a million and plan in a second phase to send another 800,000 to Afghanistan.[13]
[13] >
He wrote in a statement, ‘Even those of us with Pakistani citizenship with families that stretch back 100 years in Pakistan, people believe we should be sent back to Afghanistan. This is one of the big reasons for discrimination for Hazaras living in Pakistan from the general population and it is only getting worse with the Taliban takeover in Afghanistan.’
While I accept that Afghans are being forcibly repatriated, the only indication that there are some who are mistakenly rounded up is of Afghans with valid visas.[14] There is no information before the Tribunal that suggests that Pakistan citizens are being mistakenly deported. For this reason, I find that the applicant does not face a real chance of serious harm arising from the risk of deportation to Afghanistan.
[14] 'Pakistan sends back hundreds of Afghan refugees to face Taliban repression', Zofeen T Ebrahim, Guardian (Australia edition), 09 January 2023
Engaging with the above information and specifically whether the applicant faces a real chance of serious harm into the reasonably foreseeable future in Karachi, I place considerable weight on the quantitative evidence discussed at the hearing, namely that there have not been any targeted attacks on Hazara outside of Baluchistan since 2014. I note that the applicant acknowledged that Karachi ‘affords a safe location for Hazara living there.’
I also note that considering that Karachi is a city of 15 million people and there have been no reports available to the Tribunal that suggest that those residents lack safe access or face an inability to access safe human habitation I find that the applicant does not face a real chance of persecution in all areas of Pakistan and in turn that the applicant does not meet s 36(2)(a).
Having found that the applicant has not met the threshold for protection under s 36(2)(a), I now turn my mind to complementary protection. 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. The Tribunal draws 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.
For the same reasons given above when considering relocation to Karachi I find that the applicant does not face a real risk of significant harm in Karachi.
I now turn my mind to consider the other limb of this threshold question, namely whether it would be reasonable for the applicant to relocate to Karachi.
We discussed the reasonableness of relocation. I asked whether he could work as a labourer in Karachi. He said that he doesn’t have the skill set and that because of his race he wouldn’t be employed. He explained that other Hazara may be highly educated but the rest live in very poor conditions. He said that for government jobs there is an age limit which he doesn’t qualify for any longer. He described his brother who is well educated and yet can’t find work. He said that due to his [medical condition] he can’t work for extended periods of time.
With regards to his claim of not being employed due to his race, I note country information that supports this view, ‘the presence of Hazaras places non-Hazaras at risk of violence. Private sector organisations either released or denied hiring Hazaras as they believed that their office or vehicles could be targeted if a Hazara was there.’[15]
[15] 'The Multi-Layered Minority: Exploring the Intersection of Gender, Class and Religious-Ethnic Affiliation in the Marginalisation of Hazara Women in Pakistan', Sadiqa Sultan, Maryam Kanwer and Jaffer Abbas Mirza , Institute of Development Studies, December 2020, p. 29
The applicant is currently homeless in Australia. He stays in a shelter when required. He has mental health challenges. The most recent report provided to the Tribunal is dated 10 July 2024. It notes that a further ‘diagnostic assessment’ was requested from [a medical] team pertaining to the possibility of ‘obsessive compulsive disorders, trauma, dissociative/delusional disorders, somatic disorders and neurocognitive disorders.’ This report was not received prior to the decision being made.
The applicant has previously been diagnosed with depression and anxiety. He takes medication for these conditions as well as for [a medical condition]. He noted that he also has heart issues. He fears that he would be unable to access medication as it is expensive.
The applicant made the point that if relocation was possible, his brother who is better educated than him or his other family members would have relocated by now. He noted that as he and his family don’t have much money, he would be unable to establish himself.
He said that he does not have family support in other locations and that such support is critical were he to relocate. The National Commission for Human Rights Pakistan in a report on Hazara published in 2018 similarly noted, ‘Hazara respondents share that Quetta have become a prison for them, everyone tries to escape if they get an opportunity.’[16]
[16] 'Understanding the Agonies of the Ethnic Hazaras', National Commission for Human Rights Pakistan, February 2018, pp. 10-13
Relevantly DFAT notes that for Hazara, ‘relocation to these areas [outside Balochistan] is difficult or impossible for many.’[17] In a 2023 search of information on the issue of relocation by Hazara, the Country of Origin Information Service found, ‘no information which indicated an individual who is Hazara can relocate to a larger city and engage with any other Hazara group who are not known or family members.’[18] The UK Home Office concluded that, ‘Hazaras can face difficulty in accessing employment because of discrimination by employers within the non-Hazara population.’[19]
[17] DFAT [3.12]
[18] COISS notes the sources consulted include: Sources consulted included CISNET, European Country of Origin Information Network (ECOI), Factiva, eResoures, US Department of State, NGO and human rights organisations, local news sources and major international newspapers. Databases searched include Google, Bing and DuckDuckGo
[19] UK Home Office, ‘Country Policy and Information Note Pakistan: Hazaras’, July 2022 at [4.2.1]
On the other hand, another source noted that ‘due to the violence faced in Quetta, some Hazaras, particularly youths, felt inclined to relocate to Punjab or Islamabad.’ This is indicative of relocation being a possibility. Similarly, the National Commission for Human Rights Pakistan quoted a man who had relocated:
I was running a good business in Quetta but due to deteriorating situation of peace in Quetta, my business suffered losses as I could not open my shop daily. My son was attacked by unknown persons, they snatched his motor bike but fortunately he remained safe.
This tension forced me to migrate to Islamabad. I started a new business here and set up a general store in Barakhu. In Quetta my sale was 10 to 20 thousand per day but here it is hardly 2 thousand a day. A good business was lost because of the extremists who destroyed us socially, economically and psychologically.” He further explained that “I am living in a rented house here and cannot meet my household expenses. I was forced to leave and now am facing the worst days of my life.
When considering the reasonableness of the applicant’s move to Karachi, I place front and centre the applicant’s mental health and the challenges that this may pose to him and how it may impact the reasonableness of relocation.
I accept that due to his mental health struggles he would face added hurdles in establishing himself by way of finding work or shelter. In addition to his mental health, which has contributed to him becoming homeless in Australia, and as such indicative of an individual who is unable to manage complex and challenging circumstances, the applicant faces other hurdles common to Hazara in general.
As noted above, while some have relocated including youth and businessmen, the applicant is neither. In other instances, family connections are identified as being necessary, but he does not have any. He is not educated, and he lacks money personally but even through his network. His brother in Australia does not support him and his family in Quetta are struggling as it is. All of these factors will limit the applicant’s ability to establish a new life in Karachi.
For these reasons I find that it is not reasonable for the applicant to relocate to Karachi. As such the applicant meets the criterion in s 36(2)(aa).
I have also considered whether according to s 36(3) the applicant has a ‘a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.’ There is no evidence before me that citizens of Pakistan such as the applicant have a right to enter and reside in another country apart from Australia. As such I find that the exception to Australia’s protection obligations under s 36(3) is not met.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.
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.
…

Governance in Pakistan - Assessing the National Action Plan to counter Terrorism and
Extremism, December 2020

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Immigration
Administrative Law

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Citations

1915130 (Refugee) [2024] AATA 4211

Cases Citing This Decision

Cases Cited

Statutory Material Cited

ABT16 v Minister for Home Affairs [2019] FCA 836

SZATV v MIAC [2007] HCA 40

SZFDV v MIAC [2007] HCA 41

[2024] AATA 4211

15 August 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Remedies