1929327 (Refugee)

1929327 (Refugee) [2024] AATA 4304 (13 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Mahalingam Sutharshan (MARN: 0961664)
CASE NUMBER:  1929327
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Carolyn Wilson
DATE:13 September 2024
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 13 September 2024 at 2:22pm
CATCHWORDS
REFUGEE – Protection Visa – Pakistan – religion – race – Mohajir Muslim – political opinion – an active supporter of the MQM – family supported the MQM – could be perceived by the Pakistani authorities as associated with political violence – real chance of persecution relates to all areas of Pakistan – applicant has a well-founded fear of persecution for reason of political opinion – state protection is not available to the applicant – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 46, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 October 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 18 February 2019. The delegate refused to grant the visa on the basis that ordinary members of the Muttahida Qaumi Movement (MQM) were not of adverse interest to the Pakistani authorities.
The applicant appeared before the Tribunal on 23 August 2024 to give evidence and present arguments. The Tribunal also received oral evidence from two witnesses. 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. The representative attended the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant claims to be a citizen of Pakistan and provided copies of his Pakistani passport and other identity documents as evidence of this. I accept he is a Pakistani citizen and find Pakistan is his receiving country.
Background and claims
The applicant first came to Australia in May 2008 as the holder of a Student visa. He remained in Australia on Student visas until 2014 and then applied for Partner visa. His Partner visa was refused and his relationship ended. He applied for the Protection visa in February 2019, providing the following information and claims:
·He is a Mohajir Muslim from Karachi. His parents were originally from India. And moved to Pakistan during the partition.
·Mohajirs faced discrimination in Pakistan and for this reason Altaf Hussain formed the MQM to fight for the rights of Mohajirs. His family supported the MQM.
·In 1992 the Pakistani authorities commenced Operation Clean Up to eliminate the MQM. In 1995 his older brother was killed under this military operation. His family are viewed as a martyr family.
·In 2001, when he was a college student, he joined the MQM student wing known as All Pakistan Muttahida Students Organisation (APMSO). He worked with the senior leaders and was heavily involved with political activism to promote MQM ideologies. He would brief young Mohajirs about the MQM and encourage them to join. He assisted in drafting pamphlets and attended protests and meetings.
·In 2003 he went to university and joined the APSMO there. He faced harassment and intimidation from other students and authority figures for his political affiliation.
·After graduating in 2008 his parents encouraged him to study abroad.
·He has been active in the MQM Australia and has become known for his vocal opposition to the current Pakistani administration. In Australia he organises meetings and protests and welcomes MQM leaders. He is on [a] committee and from June 2016 to September 2018 he held [a position] for the MQM in NSW.
·He only applied for the Protection visa in 2019 because prior to that he held student visas and he believed he would get a partner visa, however his relationship ceased.
·The situation for MQM activists has deteriorated in Pakistan with prominent leaders being killed. If he returns to Pakistan he faces harm for reason of his political opinion and activities with the MQM, his ethnicity as Mohajir, and the perception that as a Mohajir he is a spy for India.
In support of his claims the applicant provided a number of photographs and videos showing him at meetings, protests, and other MQM events in Australia dating from 2011.
The delegate interviewed the applicant in September 2019. Following the interview the applicant provided more evidence of his involvement with the MQM in Australia, and responded to the delegate’s concern of why he had returned to Pakistan in 2013. The applicant said at that time the MQM had a good relationship with the Pakistan Muslim League, who were in power. The situation deteriorated for MQM supporters of Altaf Hussain from 2016 when there was a split within the movement leading to the formation of MQM Pakistan, which he does not support.
Application for review and hearing
On review the applicant provided a statutory declaration dated 16 August 2024 repeating his claims and providing information about his engagement with the MQM since 2019. He declares he has participated in over 1000 rallies, gatherings, and meetings for the MQM over the years. He provided country information and further photographic and video evidence of his public activities with the MQM in Australia. He also provided a number of statements from persons involved in the MQM to attest to his longstanding active engagement with the movement. These included statements from leaders and members in the MQM in Australia and also in the UK.
At the hearing the applicant talked about his involvement with the MQM and his interest in Altaf Hussein and the work he was doing for Mohajirs. He talked about his older brother’s death in 1995, and that although his family in Pakistan are all MQM supporters they are not actively involved like the applicant. He said the MQM Australia has about 50 active members. They organise meetings and rallies, and in between larger events he also organises informal meetings every weekend with like-minded MQM members. The major events they hold include Altaf Hussein’s birthday, the date of the inception of the party, and the day of martyrs dating from the commencement of Operation Clean Up in 1992. When asked if he could similarly become involved with the MQM-Pakistan, a legitimate party in Pakistan, he said he could not as he viewed that party as corrupt and not aligned with Altaf Hussein, who is banned in Pakistan. When asked about the reports of arrests of MQM members with criminal or militant associations he claimed this was propaganda and such reports are not true.
The applicant said he fears he will be harmed if he returns to Pakistan because he is well-known in his neighbourhood to be an active supporter of the MQM and in particular of Altaf Hussein. His profile has increased with his work in Australia. He has given a promise to MQM that he will keep working and protesting against the Pakistani authorities who are creating problems for the Mohajirs. He’s been working on this for the last 22 years and will continue to work for the MQM every day. In addition to his activism, he believes the Pakistani authorities view him as a spy for India because of his ethnicity, and the Taliban and other Sunni extremists are also adversely interested in him because the MQM are a secular party.
Two persons from the MQM Australia gave oral evidence in support of the applicant. [Mr A] provided a written statement saying he had been affiliated with the MQM since 1986 and was currently a member of [a committee] of MQM Australia. He confirms the applicant’s involvement with them and provided details of events the applicant has [been involved with]. He believes the applicant may be arrested and killed if he returns to Pakistan because of his political affiliation. At the hearing [Mr A] said he has known the applicant since he came to Australia in 2008 and approached the MQM here. [Mr A] has been associated with the MQM Australia since it commenced in 1992. [Mr A] does return to Pakistan occasionally and last went in 2023. He says he does not feel at risk on these visits because he is an older man, he only goes for a week, and stays at home when he is there. He believes the applicant however would be at risk because he is more vocal and has stronger views that [Mr A] does, and the applicant would want to get involved and organise things for MQM-London which he cannot do in Pakistan. Another MQM member, [Mr B], provided a written statement saying he has known the applicant for more than 10 years and provided details of events he has seen the applicant [in]. He describes the applicant as an enthusiastic and active MQM member and he believes he would be at risk in Pakistan because the authorities target young activists like him. At the hearing [Mr B] said he has lived in Australia since the early 1990s and is an Australian citizen. He does occasionally return to Pakistan for family reasons, and last went about 18 months ago. When asked why he was able to visit Pakistan as an MQM member but the applicant would risk harm if he did, [Mr B] said he travels on an Australian passport, stays for short visits, and keeps a low profile. [Mr B] said the applicant would be more at risk as a Pakistani citizen without the protection of an Australian passport. He said there are thousands of MQM-London supporters in Karachi, but they are not active. The applicant however is very active and would want to be even in Pakistan.
The applicant’s representative emphasised the applicant’s long committed history to the MQM and that he is well-connected to leaders in the movement in Australia and the UK. The representative submitted the applicant would be viewed as a leader in MQM because of his level of engagement and activity. The representative submitted the Tribunal should have regard to the significant split in the MQM in 2016 that triggered the applicant’s visa application and the danger to the applicant because of his support for Altaf Hussein and how the Pakistani authorities view the MQM-London.
Following the hearing the applicant provided further video evidence of his public activities with the MQM in Australia, a submission containing country information, and an expert report obtained from [a] human rights lawyer in Pakistan. [The lawyer] states the MQM-London is currently not able to open their office in Pakistan or conduct any political events in Pakistan because the police view them as working against Pakistan’s solidarity. He referred to and attached copies of reports of arrested and missing MQM-London members in Karachi, and actions taken by the authorities to crush MQM-London protests in Pakistan.
Country information
In 2022 DFAT reported the following regarding the MQM in Pakistan:
3.76 The Mutahidda Qaumi Movement (MQM) is a Karachi-based secular political party which advocates for the rights of Muhajirs (Urdu-speaking Muslim migrants from India and their descendants). Formed in 1984, the MQM rose to become a major political force in the 1980s and 1990s. During this period, MQM was involved in widespread political violence in Karachi as its militants fought government forces, breakaway factions and militants from other ethnic political movements. The US Department of State, Amnesty International and others accused MQM of assassinations, torture and other abuses. In September 2020, two MQM workers were sentenced to death for starting a fire at a garment factory that killed over 260 people in 2012, after the factory owner refused to pay a bribe.
3.77 In 2016, MQM leader Altaf Hussein made a speech from London that allegedly spurred violence in Karachi and resulted in a split between MQM-London and MQM-Pakistan. Soon afterwards, the paramilitary Rangers commenced operations in Karachi that significantly reduced political violence, but which MQM claims involved arbitrary arrests, extrajudicial killings and enforced disappearances of its members. These abuses allegedly still occur. In June 2020, an MQM worker and a member of a Sindh nationalist group were found shot dead in Karachi. The MQM worker had gone missing in 2019. In December 2020, an MQM worker who went missing four years earlier was found dead on the outskirts of Karachi. His body was covered in bruises. The MQM has also been targeted by the TTP because of its secular ideology and support for the US-led ‘War on Terror.’
3.78 DFAT assesses MQM members face a low risk of violence from militant groups and criminal elements in Karachi, and that this risk has significantly reduced since security operations began in 2013. DFAT assesses that MQM members who are associated with (or perceived to be associated with) political violence and/or criminal activities face a moderate risk of violence from security forces.[1]
[1] DFAT, Country Information Report Pakistan, 25 January 2022.
The UK Home Office (UKHO) reported in May 2023 that:
3.1.15 In November 2020 the Federal Investigation Agency [Pakistan] included AH [Altaf Hussein] on its ‘most wanted terrorists’ list, although MQM-L is not a proscribed organisation in the UK or Pakistan. AH was arrested in London in June 2019 on charges of encouraging terrorism in Pakistan (from London) through hate speech. Following a trail at the Old Bailey, he was acquitted on 15 February 2022…
10.2.8 The USSD HR Report 2020 noted ‘The Muttahida Qaumi Movement-London alleged that security forces abducted its members and others expressing support for their founder, Altaf Hussein’…
10.2.10 There were numerous media reports of arrests of MQM-L members suspected to be involved in criminal activities and ‘target killings’…
10.2.12 On 2 August 2019 a Karachi Anti-Terrorism Court (ATC) sentenced 2 MQM-L workers to 11 years’ imprisonment for possessing illegal weapons and engaging in police encounters. On 19 March 2020 a former MQQM worker was sentenced to life imprisonment by an ATC after being convicted of murder. In July 2020 an MQM-L worker was sentenced by an ATC for 5 year for money laundering.
10.2.13 Reporting on 3 February 2021, 24 News stated that the security forces shut down MQM-Ls election office in Gulistan-e-Jauhar, Karachi, after it was reported that MQM-L’s anthem song was played during a soundcheck.
10.2.16 On 4 April 2022, Dawn reported that the MQM-L ‘resumed its organisational activities in Karachi after a lapse of over 5 years and named two senior leaders as members of its coordination committee, party’s top decision making forum’…
10.2.17 Less than a week later Dawn reported that the MWM-L’s 2 leaders, Kunwar Khalid Yunus and Momin Khan Momin, were put under house arrest for at least 3 months under the Maintenance of Public Order Ordinance after they were declared by Sindh security forces as a ‘threat to peace’ and accused of ‘engaging in illegal activities. Following their arrests, the London-based coordination committee of MQM-L said the pair were ‘relieved of their responsibilities on account of their poor health’. [2]
[2] UKHO, Pakistan: Country policy and information note: political parties and affiliation, 24 May 2023.
The applicant provided a number of recent media reports referring to arrests and crackdowns arising from MQM-London affiliated protests in Pakistan[3], and of extra-judicial killings of people associated with the MQM.[4] In his statutory declaration dated 16 August 2024 he referred to the recent death in custody in Karachi of an MQM activist.[5]
[3] Dawn, Ex-lawmaker among 17 held as police thwart MQM-L protest in Karachi, 15 August 2022; The Express Tribune, MQM-London workers detained for protest outside KPC, 16 August 2022; The Express Tribune, Crackdown continues as police arrest 28 MQM-London workers in Karachi, 10 July 2024; ANI, Pakistan: Security institutions to intensify crackdown on MQM London, 10 July 2023; Arab News, Candidates backed by Altaf Hussain’s MQM arrested ahead of national polls in Pakistan’s southeast, 6 February 2024; Voice Pakistan, Son of MQM’s Nisar Panhwar urges authorities to release his father and brother, threatens street agitation, 17 February 2024.
[4] The Print, Pakistan: Three missing MQM workers tortured brutally killed, 15 September 2022.
[5] Voicepk, Court order was disregarded before MQM activist’s death under jail custody, 24 August 2024.

In relation to political violence and protests generally in Pakistan, DFAT reports politically motivated violence has historically occurred across Pakistan, but especially in Karachi and Balochistan. Protests are common but are conducted with varying levels of violence by both protestors and police.[6] The US Department of State (USDOS) reported in 2024 that political, sectarian, criminal and ethnic violence continues in Karachi.[7]
[6] DFAT, Country Information Report Pakistan, 25 January 2022.
[7] USDOS, Country Report on Human Rights Practices for 2023 Pakistan, 23 April 2024.
In relation to past political violence and recent elections in Pakistan, Agence France Presse recently reported as follows:
The Muttahida Qaumi Movement (MQM) ran the city through a pervasive network of street enforcers and elected lawmakers, with its founder Altaf Hussain calling the shots from self-exile in London.
In 2016, the MQM was dismantled in a security crackdown by the military –- its headquarters were sealed off and its offices bulldozed, followed two years later by a collapse in votes at the polls.
But the party's disbanded cadre unified ahead of February's elections, winning enough seats in the city of more than 20 million people to become the third-largest partner in the national coalition government, after an election marred by vote-rigging allegations.
"The (MQM) brought cruelty to the people of Karachi, everybody was crying in pain," said 76-year-old Abdul Sajid, who lived through the worst days of the party's urban warfare with its rivals. "I don't think people will tolerate that kind of violence again."
Under new leadership, MQM swept up most of the seats in Karachi in a success analysts say was engineered by the military to keep out MPs loyal to jailed former prime minister Imran Khan -- whose opposition party has been subject to a sweeping crackdown.
In return for supporting the military-backed Pakistan Muslim League-Nawaz (PML-N), analysts predict the MQM will be rewarded with a handful of federal ministries and its choice of governor of Sindh province, where Karachi sits.
Analyst Tauseef Ahmed Khan told AFP the MQM no longer has the support of its previous voter base, and was "brought in as the only possible alternative to (Khan's) PTI" party…
Founder Hussain forged MQM from the fires of Karachi's ethnic discontent in the 1980s when frustration was raging among the majority Mohajir population, who are descended from Indian Muslims who crossed into newly founded Pakistan after Partition in 1947.
MQM workers clashed with other ethnic groups and the security forces, unleashing a wave of bloodshed that regularly shut down Karachi.
Hussain fled to London in 1992 before the first of many military operations against his party, but ran the city from a multi-million dollar UK office.
"Every day there was violence, businesses had to shut down, gunshots were going off all around you and strikes were called all the time," street vendor Shakir Khan, 48, told AFP.
"With one call (from the MQM), the whole city was shut down."
Police retaliation saw scores of MQM workers killed in extrajudicial murders, exacerbating the cycle of violence.
For a time, Karachi became one of the most dangerous cities in the world.
Hussain's downfall came after a televised speech to supporters in 2016, where he criticised the country's powerful military and sparked violent protests.
Charges of treason forced the MQM to disown its founder and a poor showing in the 2018 polls signalled Karachi was poised for a shift in political allegiance. Analysts say the party now has little popular support left…
MQM leader Mustafa Kamal insisted his party had the backing of Karachi's voters, and denied that a deal with the military was behind their rapid return to power.
"Here in this country, it's not an ideal democracy," he accepted, however.
Kamal won his parliamentary seat from Karachi's Baldia Town neighbourhood, where a 2012 factory fire that killed more than 200 people was blamed on the MQM.[8]
Analysis of claims and findings
[8] Saad Sayeed and Ashraf Khan, Agence France Presse, Party with violent past reborn in Pakistan’s disillusioned metropolis, 9 March 2024.
After interviewing the applicant the delegate accepted the applicant was a member of the MQM and that he had publicly engaged in political activities with the MQM in Australia. I too accept the applicant is an active member of the MQM and has been since his college days in 2001.
The applicant is clearly passionate about the movement’s ideology and in particular is a strong follower of Altaf Hussain. I consider the applicant’s written and oral evidence demonstrated an almost cult-like devotion to Hussein.[9] It was clear from the evidence the applicant has devoted his adult life to the MQM, and is indoctrinated to the point he refuses to accept any criticism of the movement, at least not of the MQM-London, or to acknowledge any violence committed by it. The applicant contends any allegations of violence by the MQM, or by Altaf Hussein, or allegations Hussein incites violence, are untrue and are mere propaganda by the Pakistani authorities. I do not accept this contention. There is a wide variety of sources reporting on both violence committed by and in the name of the MQM.[10] There is no evidence before me to suggest the applicant engaged in criminal activities for the MQM or that he was a member of the militant arm of the movement. However, given his outspoken support for Altaf Hussein I accept he could be perceived by the Pakistani authorities as associated with political violence and as such a person of adverse interest.
[9] An academic from the State University of New York describes how members of the MQM are indoctrinated into what effectively amounts to a cult-like following of Altaf Hussain. Niloufer Siddique, Political Parties and Violence in Karachi Pakistan, Comparative Political Studies 2023 Vol 56(5), p. 742-743.
[10] Including reports referred to in this decision but also reports from Amnesty International, the US Department of State, and the Human Rights Commission of Pakistan.
I accept the applicant is a genuine political activist for the MQM and that this is an important part of his identity. I accept he has been publicly active for more than 20 years, and some of his activities with the MQM Australia are available on social media. Much of this publicly available content clearly aligns him with Altaf Hussein. The MQM-Pakistan continues as a political party in Pakistan, and currently has 17 seats in the National Assembly of Pakistan.[11] Were the applicant an ordinary member of the MQM-Pakistan I may not be satisfied his profile was such that he would attract adverse attention. However, the applicant strongly identifies himself as a supporter of MQM-London and of Altaf Hussain, and is opposed to the MQM-Pakistan. I accept he will want to continue to publicly support Altaf Hussain, and could not express his political opinion by taking part in activities of the MQM-Pakistan party. I give weight to the oral evidence of his witnesses, who both expressed the view that the applicant would not be safe in Pakistan because he is so outspoken and committed.
[11]
Having regard to the applicant’s evidence and country information before me, I accept the applicant faces more than a remote chance of harm in Pakistan for reason of being an outspoken activist for MQM-London. I base this finding on the applicant’s longstanding and active involvement in the MQM, his alignment in particular with Altaf Hussein who has been designated as a terrorist by the Pakistani authorities, the country information regarding the periodic crackdowns by the Pakistani authorities on the MQM-London, and reports of arbitrary detentions and extrajudicial killings of persons involved with MQM-London. I rely on DFAT’s assessment that MQM members perceived to be associated with violence face a moderate risk of violence from security forces.
I find the harm the applicant fears involves serious harm, as it may involve significant physical harassment, arbitrary detention, or even death. I find if he is returned to Pakistan he faces a real chance of persecution for reason of his political opinion, and that this is the essential and significant reason for the persecution. I find the persecution would involve systematic and discriminatory conduct.
I have considered whether the applicant could take reasonable steps to modify his conduct to avoid a real chance of persecution. However, such steps would require him to alter his political activities and conceal his true political beliefs. Such a modification is impermissible under s 5J(3)(a) and (c)(iii). In the applicant’s situation I find there are not reasonable steps he could take to avoid a real chance of persecution.
As the state is one of the agents of persecution I am satisfied that effective protection measures are not available. I accept the applicant would be an activist for the MQM-London wherever he may go in Pakistan, and that the real chance of persecution relates to all areas of Pakistan.
There is nothing before me to indicate the applicant has a right to enter and reside in any other country such that Australia would be taken not to have protection obligations: s 36(3).
For these reasons I find the applicant’s fear of persecution is well-founded and I find he meets the refugee criterion.
Conclusion
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Carolyn Wilson
Member

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

[2024] AATA 4304

13 September 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

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Natural Justice