1922128 (Refugee)
[2025] ARTA 731
•31 January 2025
1922128 (REFUGEE) [2025] ARTA 731 (31 JANUARY 2025)
DECISION AND
REASONS FOR DECISION
Representative: Mr Mahalingam Sutharshan (MARN: 0961664)
Respondent:Minister for Immigration and Multicultural Affairs
Tribunal Number: 1922128
Tribunal:General Member G Weeks
Date:31 January 2025
Place:Sydney
Decision:The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(aa) of the Migration Act.
Statement made on 31 January 2025 at 4:40pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – religion and ethnicity – Shi’a Muslim and Turi – fear of harm from Sunni extremists – father and relative community leaders in small city, with applicant expected to succeed them – father, relative and applicant threatened and applicant and friend attacked – country information – possibility of relocation to city with large Shi’ite population – complementary protection – relocation not reasonable – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Appellant S395/2002 v MIMA (2003) 216 CLR 473
MIAC v SZQRB (2013) 210 FCR 505
MZANX v MIBP [2017] FCA 307
SZATV v MIAC (2007) 233 CLR 18
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs (delegate) on 19 July 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
BACKGROUND
The applicant is a [Age]-year-old man and is a citizen of Pakistan. He is a Shi’a Muslim of the Turi tribe and his family are from Parachinar, close to the border with Afghanistan.
The applicant was born in [City 1] in [Country 1], where his father was working at that time. The applicant’s family returned to Pakistan in 2001 and resided in Parachinar, the city in which the applicant’s parents were born. The applicant’s [relative] is [a tribal leader] who mediates disputes and sits on the ‘jirga’, a local tribal council. Both the applicant’s father and [relative] are considered community leaders in Parachinar and exercise significant influence.
The applicant completed his secondary schooling in Parachinar and then lived and studied in [City 2] for two years. He completed a qualification in Intermediate [Subject] from [College], [City 2] in May 2008. The applicant then moved to [City 3] where he studied for a Diploma in [Related subject] between March and October 2010 and later graduated from [University], [City 3] with a Bachelor [degree] at the end of 2014. During his last year of study, the applicant worked remotely for [Company 1] of [Country 1]. [Company 1] later approached him to work for them permanently. [Company 1] were impressed with the applicant’s work and the applicant asked for their support to move to [Country 1]. He moved from [City 3] to live in [Country 1] in April 2017.
[Company 1] sent the applicant to a conference to be held in Sydney in December 2017. The applicant obtained a visitor visa to enter Australia on [date] November 2017 and arrived in Sydney [in] December 2017. He stayed in [City 3] for about two weeks between leaving [Country 1] and arriving in Australia. Upon his arrival in Sydney, the applicant was informed by [Company 1] that he was unable to return to [Country 1] but would be able to work remotely from Pakistan.
The applicant married by telephone (an acceptable procedure under his religion) [in] June 2019. Between [April] and [June] 2023, he toured sites in [Country 2] which are sacred to Shi’a Muslims with his [brother], father and wife. The applicant and his wife became parents to a [child] born on [Date].
Procedural history
The applicant applied for a protection visa on 29 December 2017. The Tribunal has been provided with a copy of the applicant’s application for a protection visa (PV application).
The applicant attended an interview with the delegate on 5 June 2019.
The delegate refused to grant the visa on the basis that he was not satisfied that there was a real chance that the applicant would suffer harm in Pakistan in the reasonably foreseeable future. The delegate gave his reasons for that decision in a document dated 19 July 2019 (decision record).
The applicant appeared before the Tribunal on 13 January 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto (Pakistan) and English languages, although the applicant gave his evidence in English.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
Evidence before the Tribunal
The applicant’s representative made written submissions dated 10 December 2024 (pre-hearing submissions) to which Attachments 1 to 11 were attached.[1] Those attachments include the following documents:
[1] The numbering of the attachments below reflects the list in the pre-hearing submissions. The attachments themselves did not reflect that numbering.
(i)Attachment 1 is a statutory declaration made by the applicant on 10 December 2024 (statutory declaration);
(ii)Attachment 2 is a letter dated 5 December 2024 from the Secretary, [Organisation 1], Parachinar;
(iii)Attachment 3 is a series of documents recording the applicant’s educational qualifications since his arrival in Australia;
(iv)Attachment 4 is a series of medical records relating to the applicant’s [child];
(v)Attachment 5 is a letter dated 4 December 2024 from the applicant’s employer, [Company 2];
(vi)Attachment 6 is a collection of social media posts made by the applicant;
(vii)Attachment 7 is a letter dated 10 May 2019 from the President, [Organisation 2], Sydney;
(viii)Attachment 8 is an undated letter from the Secretary, [Organisation 3], Sydney;
(ix)Attachment 9 is a certificate dated [June] 2023 recording the registration of the applicant’s marriage to his wife [in] May 2023;
(x)Attachment 10 is a certificate dated [June] 2019 recording the death of the applicant’s mother [in] May 2019; and
(xi)Attachment 11 is a certificate dated [April] 2024 recording the birth of the applicant’s [child] on [Date].
I alerted the applicant to the fact that I could neither read nor understand the extensive medical documentation relating to his [child] and his representative told me that they are relevant only to the question of internal relocation.
The pre-hearing submissions attached country information in the form of various news reports. I have considered that country information.
Following the hearing, the applicant submitted a handwritten and undated letter from his [relative]. A copy of the National Identity Card belonging to the applicant’s [relative] was attached to the letter and I accept that it was written by him. The letter sets out the applicant’s personal qualities and educational achievements. It states that the applicant’s [relative] has actively considered who will succeed him as [a tribal leader] and that the applicant “stands as a natural successor to the position” because he has the qualities essential to the role. The letter states that the applicant’s [relative] is confident that the applicant “will lead with wisdom and honour” as [tribal leader].
Claims for protection
Claims considered by the delegate
The decision record indicates that the delegate considered the claims in the PV application along with further details which the applicant set out in his interview with the delegate.
In the PV application, the applicant claimed that he was presented with a silver medal at the end of his Bachelor of [Subject] degree. There was a presentation ceremony in March 2015, after which he “attracted adverse concerns from the Sunni people who could not digest that a Turi Shi’a male” had won it. He claimed to have “received some threatening calls”, which he put down to jealousy.
After university, the applicant did an internship for [a] company and then joined [a work sector] firm in [City 3] as [an occupation]. The applicant claimed that, a couple of months after joining the [work sector] firm, he and a friend were attacked by people on bikes and the friend was injured with a knife. The friend was admitted to hospital for two days. They lodged a First Information Report (FIR), an initial police record of a complaint or reported crime, with the police who thought it might have been “random criminal activity”.
The applicant claimed that, a week after the attack, he received a “threatening letter” which mentioned that he had been lucky to survive the attack but that luck would not protect him every time and that “they were monitoring [his] activities”. The applicant claimed that he became scared because Sunni extremists used to target Shi’a intellectuals and wealthy people to extort money and kill them. He lodged another FIR but claimed that the police took no constructive steps to investigate the matter. He claimed to have been “mentally sick and disturbed and depressed” at this time. After the attack and threatening letter, he was allowed to work from home and also worked remotely for [Company 1].
The applicant claimed that the elders of his village in Parachinar approached the applicant’s father to reopen [a community centre] which had closed in response to threats from Sunni extremists, including the Taliban. The applicant claimed that his father became [official position] of the [community centre] [in] April 2016, after which he and his family
came under the threats of the Taliban and other Sunni extremists. They warned my father not to involve [himself] in restoration of the [community centre] to promote Shi’a Islam. They warned that they would target the family members as well. Since it was difficult for Taliban or Sunni extremists to infiltrate into Parachinar to attack us, my father feared that I would be the one who would become the target of the Sunni extremists because my other brothers returned to Parachinar and live with my father.
The applicant claimed that his father lodged an FIR with the police but claimed that it was not reasonably investigated. The [community centre] reopened and the applicant claimed that the Taliban then threatened his father to stay away from the [community centre] or “they will harm my father and his family”. The [community centre] remained open.
The applicant told the delegate that his father received a letter from the local Taliban Movement in October 2016 (the Taliban letter). A translation of that undated letter was submitted by the applicant. It is addressed to the applicant’s father “and his sons” and threatens to kill them for reopening the [community centre] in Parachinar. The Taliban letter ends with a “note” which reads:
Your son who is studying in the University he is being rewarded a gold medal he is our first target. He will not be able to perform any duty in Pakistan. We are determined to kill him. [sic]
The applicant claimed that Sunni Muslims throughout Pakistan will seek to take revenge on him as a Turi Shi’a, including because of his “father's involvement in restoring the [community centre] and promoting Shi’a Islam” and his [relative]’s profile as [a tribal leader], which in turn makes his entire family a target for Sunni extremists. The applicant claimed that, as the most educated person in his family, “it is natural that [he] would be perceived as … the natural heir of [his] [relative] as a [tribal leader] and would promote Shi’a Islam.”
The applicant claimed that he fears harm if returned to Pakistan for the reasons of his race as a Turi, his religion as a Shi’a Muslim and his actual political opinion as an opponent of Sunni extremist groups. He claimed that he “cannot get adequate protection in Pakistan because the authorities are either unable or unwilling to protect Shi’as, particularly Turi Shi’as”.
Statutory declaration
The applicant’s statutory declaration reiterated the claims for protection which were considered by the delegate. The applicant further claimed that his life is in danger from “extremists and law enforcement authorities” for reasons which include the applicant’s social media activities, including sharing his religious views as a Shi’a Muslim, his “thoughts about Pakistan's corrupt leadership” and his opinion that the Pakistani authorities fail to protect Shi’a people.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for 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 (the refugee criterion).
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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
For the following reasons, I have concluded that the matter should be set aside and remitted for reconsideration.
I find that the applicant is a citizen of Pakistan and assess the applicant against Pakistan as both his country of nationality and the receiving country. I find that the applicant does not have a right to enter and reside in any country apart from Pakistan.
I accept certain aspects of the applicant’s claims. In particular, I find that he would succeed his [relative] as [a tribal leader] in Parachinar if returned to Pakistan. I note in this regard the fact that the current [tribal leader] is not only the applicant’s [relative] but also his [relative 2] and the clear indication in his letter is that the applicant will succeed him if he returns to Parachinar. I further accept that the applicant is viewed as the likely successor to the [tribal leader] by others, including those opposed to him as a Turi Shi’a.
I accept on the basis of country information available to me that Parachinar is affected by sectarian violence to a greater degree than other parts of Pakistan.[2] I further accept that Kurram, the region in which Parachinar is found, has been effectively cut off from the rest of Pakistan and that convoys, including those which carry “essential food and medical supplies”, are subject to ambushes.[3] I accept that groups aligned with the Afghani Taliban are responsible for the violence against Shi’a Muslims in Parachinar.[4]
[2] SE Mehdi, “Understanding attacks on Shi’as in Parachinar”, International Centre for Peace Studies (14 December 2024), “Rocket attack on aid convoy in Pakistan's violence-hit Kurram; over 6 people, tortured, killed”, Hindustan Times (18 January 2025), A Gul, “UN: Afghan Taliban increase support for anti-Pakistan TTP terrorists”, VOA (11 July 2024), >
During the hearing, I put country information to the applicant which indicates that Tehreek-e-Taliban Pakistan (TTP) is the most prominent domestic jihadist group in Pakistan and that it has been responsible for some of Pakistan’s most notorious terrorist attacks. TTP attacks within Pakistan have increased since the Taliban seized power in Afghanistan in August 2021, mostly in Khyber Pakhtunkhwa and Balochistan, but also Punjab and Sindh. The TTP has generally moved away from targeting civilians[5] but has targeted Turi Shi’as. Turis in Kurram face a moderate risk of sectarian violence from militant groups because of their Shi’a faith.[6] Country information also indicates that various anti-Shi’a sectarian groups operate in Pakistan, among them Lashkar-e-Jhangvi (LeJ), a radical Sunni militant group that seeks to eradicate Shi’a influence from Pakistan. The group has carried out numerous deadly attacks on Shi’a communities, places of worship and leaders. The applicant agreed with that information and I accept that it is accurate.
[5] DFAT, Country Information Report: Pakistan (25 January 2022), [2.39]-[2.40].
[6] DFAT, Country Information Report: Pakistan (25 January 2022), [3.62]-[3.66].
The applicant also agreed with country information which indicates that Shi’a face religious intolerance and official discrimination in Pakistan. For example, over 70% of blasphemy cases are against Shi’a. Sectarian tensions often flare during Muharram, when Shi’a mourn the killing of the Prophet Mohammad’s grandson and his family. In 2020, over 40 Shi’a were charged with blasphemy following Muharram. I accept that Shi’a in Pakistan face a moderate risk of sectarian violence.[7]
[7] DFAT, Country Information Report: Pakistan (25 January 2022), [3.58]-[3.61].
The applicant gave evidence at the hearing, and I accept, that his family are relatively safe from sectarian violence while they remain in Parachinar because of the protection afforded by being part of the Turi tribe. However, I accept country information which indicates that the violence in Kurram is widespread and that it is far from a safe place to live. I accept the evidence in the applicant’s statutory declaration that a significant number of people known to him have been killed or injured as a result of sectarian violence in the recent past. I also accept that Parachinar is frequently affected by the loss of electricity and internet connections and that the people there lack adequate food and other essential supplies.
During the hearing, I put country information to the applicant that document fraud is widespread in Pakistan and that fraudulently obtained genuine documents are also common.[8] I asked him to comment on my concern that the undated Taliban letter may not be genuine. The applicant replied that the delegate had raised the same issue. The applicant stated that he agrees that it is difficult to be sure that documents like FIRs are genuine. The applicant did not disagree with my characterisation of the Taliban letter as a strange item of correspondence and did not take issue with my concern that it may not be genuine. I do not accept that it is a genuine document.
[8] DFAT, Country Information Report: Pakistan (25 January 2022), [5.52]-[5.54].
It does not follow that I find that the applicant does not face a real chance of harm from the Taliban or other Sunni organisations. I accept the applicant’s evidence that he is at risk of abduction or death as a member of a prominent Shi’a family in Parachinar, especially given the fact that he is seen as the successor to his [relative], the [tribal leader].
The applicant gave evidence that his [child] suffers from [an] illness. Notwithstanding my incapacity to understand the submissions which purportedly support that evidence, I accept the applicant’s evidence on this issue.
Does the applicant satisfy the refugee criterion for protection?
On the basis of the findings of fact set out above, I accept that there is a real chance that the applicant would suffer harm in the reasonably foreseeable future if he were returned to Parachinar. I accept that that harm would be serious harm for the purposes of s 5J(5) of the Act on the basis that it constitutes a threat to the applicant’s life. I accept that the harm would be for the essential and significant reasons of the applicant’s race and religion as a Turi Shi’a and also for the essential and significant reason of the applicant’s actual or imputed political opinion as an opponent of Sunni extremism in Kurram.
I put country information to the applicant which indicates that Turis can and do relocate to other parts of Pakistan and that the Pakistani Government has increased security in major cities for the Shi’a community in recent years, both during Shi’a religious events and on a daily basis. Although the applicant disagreed and referred to suicide attacks in big Pakistani cities, I accept the country information which indicates that the security situation for Shi’a Muslims has improved considerably in recent years.[9]
[9] DFAT, Country Information Report: Pakistan (25 January 2022), [3.58]-[3.61].
The applicant lived for several years in [City 3] before leaving Pakistan and returned there for 15 days on his way to Australia in 2017. The only example that the applicant gave of having suffered harm in [City 3] was when he and his friend were attacked by assailants on bikes in 2015. The applicant claimed that a “threatening letter” suggested that the attack might have been directed at him but that, in any case, luck would not protect him from another attack. However, the applicant did not give evidence that he was attacked again. He did not give evidence which supported the contention that the authors of the letter “were monitoring [his] activities”. The applicant did not make a convincing argument that the attack was not “random criminal activity”, as the police thought. I do not accept that this attack targeted the applicant specifically.
I asked the applicant to comment on whether he could live safely in [City 3], given that he had done so before and that it is a densely populated city with a large Shi’ite population. The applicant denied that he could do so but his reasons for reaching that conclusion were essentially that he does not feel safe anywhere in Pakistan.
I accept that Turis live safely in parts of Pakistan outside Parachinar and that Shi’a Muslims are extensively protected from sectarian violence in large Pakistani cities like [City 3]. I do not accept that the applicant’s family connections, prospective appointment as [tribal leader] or political opinions against Sunni extremist groups would present a real chance of harm if the applicant were to live in [City 3]. I find that the applicant does not face a real chance of harm in the reasonably foreseeable future if he were to live in [City 3].
I do not accept that the real chance of persecution faced by the applicant relates to all areas of Pakistan. Consequently, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa).
Does the applicant satisfy the complementary protection criterion for protection?
I have accepted that the applicant faces a real chance of harm if he is returned to Parachinar. The ‘real risk’ element of the complementary protection criterion has been held by a Full Court of the Federal Court of Australia to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[10] I therefore accept that there is a real risk that the applicant will suffer harm in the reasonably foreseeable future if returned to Parachinar.
[10] Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505, 551 [246] (Lander and Gordon JJ). That reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act: Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp170-1 at [1169], [1180].
I accept that there is a real risk that the applicant will suffer significant harm if returned to Parachinar, as that term is exhaustively defined in s 36(2A) of the Act. Specifically, I accept that there is a real risk that the applicant will be arbitrarily deprived of his life as the result of an intentional or deliberate act committed by a person or persons opposed to the applicant for the reason of his identity as a Turi Shi’a. That risk is exacerbated by the applicant’s close relationships to the secretary of the [community centre] and the [tribal leader] and by the expectation that the applicant will succeed his [relative] as the [tribal leader].
Given the nature of the risk to the applicant if he is returned to Parachinar, I do not accept that there is protection available to him from an authority that would reduce the risk of significant harm to less than a real risk for the purposes of s 36(2B)(b), nor do I accept that the real risk faced by the applicant is faced by the population of Pakistan generally for the purposes of s 36(2B)(c).
I have found above that the real chance of harm to the applicant in Parachinar does not exist in [City 3]. For the same reasons, I do not accept that there is a real risk that the applicant will suffer significant harm in [City 3]. However, the question of whether the applicant can relocate for the purposes of s 36(2B)(a) of the Act differs from the considerations in the refugee criterion in an important respect. Having made the finding above, I must then consider whether it would be reasonable for the applicant to relocate to [City 3]. Mortimer J (as she then was) said of that task:
In order to determine whether, as a conclusion, relocation is “practicable” and “reasonable” for a particular individual, a level of comfortable satisfaction based on probative material must be reached by the decision-maker about what will face that particular individual and how she or he will cope.[11]
[11] MZANX v Minister for Immigration and Border Protection [2017] FCA 307, [55] (Mortimer J).
Notwithstanding that he has lived for extensive periods outside of Parachinar, I accept that the applicant has strong family ties to that place, as do his wife and [child], who I accept will live with the applicant if he returns to Pakistan. While, for example, the applicant’s [child] would benefit from better medical facilities in a bigger city, the applicant and his wife would no longer have access to the family support that they would enjoy in Parachinar. The applicant gave evidence, and I accept, that he has faced mental health difficulties over the course of several years and first obtained treatment when he was still living in Pakistan. Although he did not present evidence on this point directly, it is reasonable to conclude from the evidence he did give that the applicant’s mental health would be adversely affected by removing him from the support of his family.
A further consideration is that, if the applicant returns to Parachinar, he will succeed his [relative] as [tribal leader] and take on a significant role as a community leader and quasi-judicial figure. The applicant gave evidence that, if he were to live outside Parachinar, the role of [tribal leader] is likely to be filled by a “political agent” appointed by the government. I accept that evidence. While he could continue to work as [an occupation] if he lived in [City 3], the applicant would not be able to become [tribal leader].
The applicant’s position is analogous to that of the appellant in SZATV,[12] who had been assessed by a predecessor to this Tribunal to be at risk of harm in his hometown but able to live safely in a major city. The Tribunal’s conclusion was premised on the appellant no longer working as a journalist but obtaining work in the construction industry, as he did when he came to Australia. The High Court held that:
The effect of the Tribunal's stance was that the appellant was expected to move elsewhere in Ukraine and live “discreetly” so as not to attract the adverse interest of the authorities in his new location, lest he be further persecuted by reason of his political opinions. By this reasoning, the Tribunal sidestepped consideration of what might reasonably be expected of the appellant with respect to his “relocation” in Ukraine. It presents an error of law, going to an essential task of the Tribunal. This was determination of whether the appellant's fear of persecution was “well-founded” in the Convention sense and thus for the purposes of s 36(2) of the Act.[13]
[12] SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18; [2007] HCA 40.
[13] SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18; [2007] HCA 40, [32] (Gummow, Hayne and Crennan JJ).
The High Court had rejected in an earlier decision the proposition that an applicant for a protection visa could avoid persecution by living “discreetly”.[14]
[14] Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71.
One reason that the applicant would face a real risk of harm if returned to Parachinar is because he is from a prominent local family and would one day become [tribal leader]. Similarly to the appellant in SZATV, he may be able to avoid that risk of harm by moving to [City 3] and removing himself from that association. However, I do not accept that relocation on that basis would be reasonable in all the circumstances.
For the reasons above, I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(aa) of the Migration Act.
Date of hearing: 13 January 2025
Representative for the Applicant: Mr Mahalingam Sutharshan (MARN: 0961664)
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.
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36 Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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