1917347 (Refugee)

1917347 (Refugee) [2023] AATA 1515 (3 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1917347
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Ann Duffield
DATE:3 April 2023
PLACE OF DECISION:  Canberra
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 03 April 2023 at 12:33pm

CATCHWORDS
REFUGEE – protection visa – Pakistan – fear of harm from uncle after not entering arranged marriage with cousin – uncle’s attempt to kill applicant – relationship with Christian woman killed in church bombing – conversion to Christianity in Australia – credibility – applied for protection after further student visa refused and affirmed – vague and unpersuasive claims – no further evidence provided and consent to decision without hearing – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 5H(1)(a), 5J(1), 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 21 June 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 19 July 2017. The delegate refused to grant the visa on the basis that he was not a person to whom Australia owed protection obligations.
The Tribunal wrote to the applicant on 1 February 2023 informing him that his file was being prepared for allocation to a tribunal member and that this may result in a hearing being scheduled. He was asked to provide any additional evidence relevant to his application and the details of his representative, if any. The applicant sought information about any dates he might not be available to attend a hearing. The applicant did not respond.
On 6 February 2023 the Tribunal invited the applicant to a hearing scheduled for 3 April 2023. The Tribunal received no response. The Tribunal wrote to the applicant again on 23 March 2023 noting that it had not received any response from him, or indeed any engagement with him since he lodged the application for review on 30 June 2019. The Tribunal sought his confirmation that he received the invitation and his advice about whether he was planning to attend. The Tribunal followed up this email with a call to the applicant on the same day. The applicant told the Tribunal that he had only found the email in his inbox the day before and felt unprepared to attend. The Tribunal explained how to return the hearing response form and informed him that the Tribunal would consider rescheduling the hearing but only for a good reason.
The Tribunal received the response to the hearing invitation from the applicant on Sunday 2 April at 12.59pm. The applicant indicated that he did not want to attend the hearing and consented to the Tribunal making a decision on the papers without taking further steps to allow him to appear. The Tribunal has received no other information or advice or evidence from the applicant.
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.
CONSIDERATION OF Claims and evidence
The issue in this case is whether the applicant is a person to whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
BACKGROUND
The applicant provided the Tribunal with a copy of the delegate’s decision record along with his application for review.
The applicant is a citizen of Pakistan born in [Year] ([Age] years old). He first arrived in Australia on a student visa on [in] May 2014. That visa had been granted on 31 March 2014. He has been here almost nine years. The applicant applied for a further Student visa onshore in February 2016 however that was refused on 2 August 2016. He applied for a review of that decision on 18 August 2016 and that was affirmed by a differently constituted Tribunal on 27 June 2017. He applied for the protection visa subject to this review on 19 July 2017 and has been on a bridging visa in relation to that since then.
The Department had no evidence before it that any of the identity documents provided by the applicant are bogus. The Tribunal likewise has no evidence before it to indicate that the applicant is not who he says he is. For the purposes of this assessment the Tribunal accepts that the applicant is a citizen of Pakistan and therefore that Pakistan is the receiving country.
Protection claims
The applicant’s protection claims as set out in the delegate’s decision are summarised as follows:
a.The applicant is part of the Qureshi Tribe and part of a Sunni Muslim family.
b.The applicant believes the concept of an arranged marriage is troubling. When he was born his grandfather arranged a marriage with his first cousin [Ms A] who was five at the time. He was expected to marry [Ms A] in [Year] when he completed his high school studies. The applicant managed to delay this by continuing his studies.
c.He continued his studies at [university] and met a Christian woman named [Ms B]. She spoke to him about Christianity, and he felt an inner peace learning about Jesus.
d.The applicant fell in love with [Ms B] and felt he could not live without her. However, as he was engaged to [Ms A] he was unable to seek consent to marry [Ms B]. He states that breaking a commitment to an arranged marriage is more serious than divorce.
e.The applicant sought employment opportunities overseas believing that he could marry [Ms B] after he had converted to Christianity. He secured a job as [an Occupation] in [Country 1].
f.As [Country 1] is an Islamic State, he decided against asking [Ms B] to travel to the country so that they could marry. He returned to Pakistan. While he was in [Country 1], he performed the Umrah (pilgrimage) twice on the instruction of his parents.
g.In July 2010 a tribal council meeting was held to discuss the applicant’s marriage to [Ms A] and he refused to marry her and attempted to leave the meeting on his bike. He claims he was run over by His uncle ([Ms A]’s father). He suffered serious injuries requiring surgery and took around one and a half years to recover. If he reported the incident to the police, he would be killed.
h.The applicant sates that [Ms A]’s branch of the family have severed ties with his immediate family. Since he arrived in Australia he has stopped talking to his parents. He fears that his uncle will kill him. He cannot move to another part of Pakistan because his tribe has a vast network and would be able to find him.
i.The applicant states that he reconnected with [Ms B] in 2012.
j.On 22 September 2013 [Ms B] was attending Church in Peshawar when there was an attack by the Taliban resulting in hundreds of casualties, including [Ms B], who was killed along with her family.
k.He was able to leave Pakistan with the help of his father. He obtained a student visa and hoped to be able to learn more about Christianity.
l.Because of his mental health issues, he was unable to concentrate on his studies and he claims his main focus was to study and learn about Christianity. He watched online videos and participated in daily lessons.
m.The applicant states that he did not attend church openly as he was concerned about how people would react. In 2014 he first visited [a] Catholic Church in Melbourne and has attended church in [City].
n.The applicant is concerned that he will face discrimination in the Muslim community if he attends church openly. He wants to be able to study the bible openly and learn more about the religion before he can explain and convince his Muslim friends to convert. He said he intends to spread the message of Jesus. He states that he identifies as a Christian.
o.The applicant states that he cannot go back to Pakistan because he will not be accepted as a Christian convert. He says that all homes owned by Christians in Khyber Pakhtunkhwa province are burnt. He fears he will be harmed and killed for changing his religion. He will be identified as Christian because he will not be practicing the Islamic faith. He will be used as an example and be burnt alive in a marketplace before a gathering of people. His family will consider that he committed a shameful act, and they will be obligated to have him beheaded. Whoever learns of his conversion will punish him with death.
p.The applicant states that he departed Pakistan to protect his life.
At the interview with the delegate on 15 May 2019, the applicant provided three photographs of himself with a woman he claims was [Ms B]. He also provided a letter of support from [Father C] of the [Church] in [location] in Pakistan along with some education certificates from Australia.
The applicant declined an invitation to attend a hearing at the Tribunal and therefore an opportunity to make arguments and present evidence in support of his claims. The applicant has not engaged with the Tribunal since he lodged his application for review on 30 June 2019. His first engagement was on a phone call on 23 March 2023 and his response to the hearing invitation on 2 April 2023.
Applicant’s opposition to arranged marriage and his refusal to marry [Ms A]
The applicant has claimed that he doesn’t agree with arranged marriage and refused to marry his first cousin, [Ms A] (the daughter of his uncle). He states that because of this his uncle tried to kill him and he will be killed if he returns to Pakistan.
The Tribunal accepts that arranged marriages are common in Pakistan and more common in smaller villages in more remote regions such as where the applicant’s family reside.
The applicant claims that he was hospitalised for 11 months after his uncle hit him with the jeep he was driving. This allegedly occurred after a Jirga in July 2010 discussed the applicant’s refusal to marry [Ms A]. The applicant told the delegate that his family still pressed for him to marry [Ms A].
The applicant said that his uncle and his family lived next door to himself and his family. When the delegate asked him why, if his uncle wanted to kill him, he hadn’t done so given the close proximity of the families. The applicant stated that he was in hospital for a long time and his uncle would not attack him when he was injured. He said that his uncle would wait for him to completely recover before harming him.
The delegate put to the applicant some country information which indicates that honour killings are carried out by family members who perceive that a relative has brought dishonour to the family. The majority of these victims are female, but men have also been the target of such killings. The delegate went on to cite relevant information indicating that a ten-member jirga in Khyber Pakhtunkhwa were arrested when they tried to enforce an arranged marriage between a 13-year-old-girl and an older man. Further, in 2016 the Pakistan government introduced the Anti-Honour Crime Bill, however it was noted by the delegate that there had been a lack of enforcement of the Bill.
The delegate however was not satisfied that the applicant’s claims about his uncle’s attempt on his life was credible. The delegate noted that it seemed improbable that, despite living next door to him, his uncle would wait until the applicant was fully recovered before attempting to harm him again. The delegate also observed that it seemed unlikely that the applicant would remain living next door to his uncle if he had a concern for his safety. The delegate formed a view that whilst the applicant’s family may have a negative opinion of his decision not to marry [Ms A], they felt that the applicant’s claim that the harm he feared from his uncle was overstated.
The applicant did not respond to the delegate’s findings and has not provided the Tribunal with any additional information or evidence about his claims, for example hospital records. The Tribunal also notes that the family allowed the applicant to travel and work overseas and defer his marriage from 2006 to attend university. This seems to indicate a degree of flexibility in the arrangement as there was no action taken against him for his failure to marry [Ms A] in 2006, until 2010.
The applicant declined to attend a hearing despite being informed that the Tribunal was unable to make a favourable decision based on the information he has already provided.
On the basis of the evidence before it, the Tribunal is not satisfied that the applicant’s uncle attempted to kill him because he withdrew from an arranged marriage with his cousin [Ms A], or for any other reason, or that he will be killed for this reason if he returns to Pakistan either now or in the reasonably foreseeable future. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution by reason of being the subject of an honour killing.
Relationship with [Ms B]
The delegate noted that the applicant’s discussion about his relationship with [Ms B] was limited. He said they would meet in the café, park and during class and discuss religion, particularly things common to both Christianity and Islam. However, when asked about these commonalities, the applicant’s responses were vague and unpersuasive. The Tribunal notes that he did not see [Ms B] for around two years between the time of his accident and hospitalisation and 2012 however he states that they spoke on the phone.
The applicant claimed that [Ms B]’s family were devoted Christians who practised their faith regularly. The Tribunal notes that the applicant has provided three photographs of himself together with a woman whom he claims is [Ms B]. The Tribunal notes that the woman in the photographs is wearing a Hijab.
The applicant stated that [Ms B] was killed on 22 September 2013 at a bomb attack at St Joseph’s Church in Peshawar. He said following her death in the bombing he was depressed and unable to properly grieve her passing and attempted suicide. He said that his father was concerned for his wellbeing, and this is why he helped the applicant to leave Pakistan and travel to Australia to study.
The delegate records in their decision that the applicant was unable to recall many details about [Ms B] or the bombing. He did not know for example the location of the attack on the Church.
The delegate put to the applicant that there was no media reporting about a bomb attack on St Josephs church on that day but there was a bomb attack on All Saints Church in Peshawar on that day where over 100 worshippers were killed. The applicant told the delegate there were three churches at the Kohati Gate where All Saints Church was located. The Tribunal notes that St Josephs is more than a kilometre away from All Saints.
The applicant did not respond to the delegate’s invitation to comment and has not provided the Tribunal with any additional information or evidence about his claimed relationship with a Christian woman named [Ms B] or her influence upon him to convert to Christianity. Given that this woman was the reason that the applicant had allegedly abandoned his religion and a commitment to honour an arranged marriage, there would be a reasonable expectation for the applicant to provide more relevant detail about her and her life and the nature of her profound influence on him.
Be that as it may, the applicant declined to attend a hearing to make his arguments and present additional evidence to support his claims despite being informed that the Tribunal was unable to make a favourable decision based on the information before it.
If the applicant did have a friendship/relationship with a Christian woman named [Ms B], there is insufficient evidence before the Tribunal for it to form a view that the applicant’s relationship with her was such that he was influenced to abandon his religion, or an arranged marriage, so that he could convert to Christianity and marry her. The applicant does not appear to have discussed his friendship/relationship with [Ms B] with anyone else.
On the basis of the evidence before it, the Tribunal is not satisfied that the applicant will suffer harm if he returns to Pakistan because he had a friendship or relationship with a Christian woman named [Ms B]. Nor is the Tribunal satisfied that the applicant would be imputed as being a Christian because of that association and face persecution on that basis.
Conversion to Christianity
The applicant was unable to persuade the delegate that he had converted to Christianity or that he even had a genuine interest in Christianity. He was not able to discuss Christianity with any insight or detail despite claiming to have studied and discussed it with [Ms B] since around 2010. He has not been baptised. He does not talk openly about Christianity because he is afraid that the Muslim community would condemn him. He stated that he wanted to proselytise Christianity and convert others but did not know enough to be able to talk to them about it. He claimed to have attended church in [City] every fortnight and discussed baptism but was unable to provide further relevant detail.

The applicant was given time to provide more information to the delegate and produced a letter from [Fr C] of the Catholic Church. The letter states that the applicant had been referred to him by [Father D] at [a church] in Rawalpindi in Pakistan. [Father C] states that the applicant has embraced Christianity and is studying the bible. The delegate considered this and formed a view that it contained insufficient relevant information for it to be given much weight.
The applicant was also asked by the delegate to provide some additional information regarding the Christian course he claimed to be completing online and documentation regarding his plans to be baptised. He did not provide any additional information or evidence at the time the delegate made their decision.
The applicant declined to attend a hearing despite being informed that the Tribunal was unable to make a favourable decision on the basis of the information before it. The applicant has had since June 2019 to gather evidence to support, and indeed strengthen his claims that he has made a genuine conversion to Christianity and would be persecuted upon his return to Pakistan as a result.
The Tribunal accepts that there is discrimination against Christians in Pakistan and that those who convert to Christianity from Islam are accused of apostasy. Those who do convert, face accusations of blasphemy and suffer from discrimination, violence, and intimidation.
However, based on the evidence before it and the applicant’s unwillingness to engage with the Tribunal in providing written or oral evidence to support his claims, the Tribunal is not satisfied that the applicant has converted to Christianity or has any genuine interest in converting to Christianity. The Tribunal is therefore not satisfied that the applicant will proselytise if he is returned to Pakistan. For the same reason, the Tribunal does not accept that the applicant will be beheaded by his family or burnt alive in the marketplace.
The Tribunal is not satisfied that the applicant has a well-founded fear of persecution by reason of his religion or religious conversion, or by reason of him being imputed as being a Christian or as a convert to Christianity.
On the basis of the evidence before it, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution by reason of actual or imputed Christianity, or for any other convention-related reason.
CONCLUSION
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). The applicant is not a refugee.
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 has considered whether the applicant would face a real chance of significant harm for any other reason should he be returned to Pakistan either now or in the reasonably foreseeable future. The Tribunal has considered all the claims made by the applicant and made findings that the applicant’s claims are not supported by the evidence before it.
Having considered the claims individually and cumulatively and on the basis of the evidence before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Pakistan, there is a real risk he will suffer significant harm for the reasons stated or for any other reason.
The Tribunal is therefore 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.
Ann Duffield
Senior Member

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

[2023] AATA 1515

3 April 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Jurisdiction

Standing