1932489 (Refugee)

1932489 (Refugee) [2023] AATA 3443 (25 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Mahalingam Sutharshan (MARN: 0961664)
CASE NUMBER: 1932489

COUNTRY OF REFERENCE: Pakistan
MEMBER:Ann Duffield
DATE:25 July 2023
PLACE OF DECISION: Canberra
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 25 July 2023 at 10:21am

CATCHWORDS
REFUFEE – protection visa – Pakistan – particular social group – refusing arranged marriage – race – Pashtun – honour killing – perceived mixed religious marriage – internal relocation – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 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 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 31 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 24 February 2019. The delegate refused to grant the visa on the basis that he was not a person to whom Australia owed protection obligations.
The applicant appeared before the Tribunal on 21 July 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sister via telephone to Pakistan. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
The applicant was represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person to whom Australia owes protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
BACKGROUND
The applicant is a citizen of Pakistan born in [specified year]. There is no evidence before the Tribunal that his identity or nationality are in question. The Tribunal has proceeded to make its assessment on the basis that the applicant’s country of return is Pakistan, and he is who he claims to be.
The applicant did not provide a copy of the delegate’s decision, as he was required to do, when he made his application for review. The Tribunal sent him a copy of that decision with its invitation to the hearing.
Information before the Delegate
The applicant first arrived in Australia on a student visa in 2013 when he was [age] years old. That visa ceased in September 2019. He applied for an was refused a [student] visa. He departed Australia in January 2018 and returned in February 2018 on a bridging visa. He commenced judicial review of the refusal of his [student] visa in April 2018 and became unlawful [in] April 2018. He applied for another bridging visa in June 2018 which was granted. He lost his appeal in relation to his application for a [student] visa in February 2019 and applied for a protection visa shortly thereafter. He has been on a bridging visa associated with that applicant since that time.
The applicant is a Sunni Muslim [details deleted]. He has [specified family members]. The family belong to a conservative Pashtun tribe and their caste is [specified].
The applicant claims that at the end of 2015 he met and fell in love with a woman from [Country 1] whilst he was living in Canberra. He wanted to marry her, but she wasn’t ready and they separated. He had told his family about the relationship, but they disapproved. His family persuaded him to return to Pakistan and marry a woman they had chosen for him. He returned to Pakistan and he and [Ms A] were engaged [in] February 2018. He only saw her at the engagement party and when he departed Pakistan. They did not have a chance to get to know each other. He returned to Australia [in] February 2018 without [Ms A], but they continued to communicate with each other.
Over time the applicant found [Ms A] to be very possessive and he decided not to continue with the relationship and communicated this to her and to his family in December 2018. [Ms A’s] family had demanded that he pay $[amount] for the marriage however he claimed that he was unable to do so. His family also pressured him to continue with the marriage as not doing so would negatively affect the family’s honour and reputation. He refused. He eventually took matters into his own hands and called [Ms A’s] mother in January 2019 to tell her that he was ending the relationship. She was very angry and [Ms A’s] brother called him a couple of days later and told him that he would kill him for bringing dishonour on the family.
The applicant claims that [Ms A’s] family are very active in the Pakistan Muslim League and have a [product] business. They hold positions of influence in society. The applicant claims he was warned that he would be killed and that [Ms A’s] family would use their influence to trace him in any part of Pakistan.
Before the Tribunal
The applicant provided the Tribunal with some other documents and information in relation to honour killings of men in Pakistan, along with statements from himself and one from his sister who lives in Pakistan.
In his statement, the applicant restates the claims he made to the delegate. He also states that he developed a relationship with an Australian citizen, [Ms B], sometime towards the end of 2020. She is Christian but converted to Islam prior to their marriage. They decided to commit to a relationship and entered a Nikah [in] February 2021. His sister and mother attended the Nikah via video. His father was still opposed to the union despite the fact that [Ms B] had converted to Islam.
The applicant states that despite [Ms B] being a Muslim, he is still viewed as having dishonoured the tribe and the community have turned against his mother and will kill him if he returns to Pakistan. His father has also threatened to kill him. [Ms B] and he broke up after 4-5 months and never registered their marriage or lived together. The applicant states that his father and other relatives believe that he married a Christian and would kill him if he returned to Pakistan because he has ruined the reputation of his family.
In the meantime, the applicant states that [Ms A] married another man in February 2020 and they had a child together. However, they subsequently divorced because [Ms A’s] husband believed that [Ms A] still loved the applicant, The applicant maintains that he will be a victim of an honour killing because of his failed relationship with [Ms A]. He states that his father will kill him.
The applicant’s sister states that if the applicant returns to Pakistan he will be blamed for the divorce of [Ms A] and her former husband. She states that [Ms A’s] family would force the applicant to marry [Ms A].
The Tribunal Hearing
The applicant restated to the Tribunal the claims he had put in writing without any change. He added that he cannot relocate to any other part of Pakistan because it would be unreasonable. He stated that he would have to go to his hometown to apply for a new identity document and he would be killed if he returned. He stated that without a new identity document he would not be able to live in another part of Pakistan.
The applicant maintains that he will be killed by his father or [Ms A’s] family if he returns to Pakistan for refusing to marry [Ms A] which brought shame upon the family.
The applicant told the Tribunal that he came to Australia as a student in 2013 and completed his [Qualification 1] in 2015. He did another two semesters of a [related] course but because of financial issues with his family, there was no money to continue his studies. Asked why he did not return to Pakistan at this time he said that he hoped things would change. He was working part-time and was in a relationship with a woman whom he met when she was working at [Business 1].
The relationship eventually ended around the end of 2017 because she was not ready to settle down. The applicant told his mother and sister about the relationship, and they were supportive. No-one told his father, and the applicant claims that his father still does not know.
The applicant then entered into another relationship with an Australian woman named [Ms B]. She was Christian. They met on a dating app at the end of 2020 and entered into a Nikah in February 2021. He told the Tribunal they did not live together because they could not find appropriate accommodation but sometimes spent the night at each other’s house. The relationship ended in around June 2021. He said that his mother and sister were ok with the relationship because [Ms B] had converted to Islam. He said that his father was furious when he found out and does not believe that [Ms B] converted to Islam but was still a Christian. The applicant said that his father and the elders would kill him because he married a Christian woman.
The Tribunal put to the applicant that his relationship with [Ms B] had all the appearance of being a marriage contrived for the purpose of making a partner visa application as he appeared determined to remain in Australia. The applicant denied this.
The Tribunal put to the applicant that since [Ms A] had married and had a child with someone else it was difficult to accept his claim that he was responsible for bringing the family into disrepute. He said that his father blamed him because their family was still suffering because he ended the engagement with [Ms A].
The applicant told the Tribunal that [Ms A] and her husband were divorcing because [Ms A] was still emotionally attached to him and told her husband this. The applicant’s sister also made this claim when the Tribunal spoke to her at the hearing. The Tribunal asked the applicant why a woman such as [Ms A], from a conservative family in a strongly tribal area, and given the level of domestic and family violence perpetrated against women, would tell her husband that she was emotionally attached to another man. Both the applicant and his sister told the Tribunal that this is what a family member who was close to both [Ms A] and their family had told them.
The Tribunal asked the applicant whether [Ms A] had been threatened or harmed in any way, putting to him that it seemed, on the information before the Tribunal, that a woman in [Ms A’s] position would more likely be the subject of an honour killing or subject to harm than he would be. The applicant said that [Ms A] had returned to live with her family and had custody of her [child]. He said that everyone blamed him for not marrying [Ms A] and his father would make him marry her in order to restore the family’s reputation. If he did not, his father would kill him.
The Tribunal put to the applicant that it found it very difficult to accept that [Ms A] would risk her own life and reputation by confessing to her husband that she was still emotionally attached to a man who broke of his engagement with her. The Tribunal also put to the applicant that given his description of his family’s traditional values, it seemed unlikely that they would pressure him to marry a divorced woman with a child. The applicant said that everyone blamed him for [Ms A’s] divorce and marrying her was the only way to restore the family’s reputation.
The Tribunal asked the applicant about the counselling sessions he attended between 2-28 June 2023. The applicant said that he was suffering from anxiety. The Tribunal put to him that he only made the appointments after he received an invitation to attend the hearing and asked if that was the reason he suffered anxiety. He agreed.
The Tribunal spoke to the applicant’s sister via telephone, and she restated the remarks she made in her written statement. Asked why she believed that the applicant would suffer serious harm should he return to Pakistan she said that the pressure comes from their caste, and he has to comply with their decisions. She said that they had decided that her brother had to marry [Ms A].
The applicant told the Tribunal that he could not relocate to another part of Pakistan as Pashtuns are discriminated against. The applicant’s adviser made a submission arguing the harm he would suffer should he return to his village. The adviser stated that the applicant’s identity card had expired, and he would be required to return to his village in order to apply for a new identity document. He argued that without the document he would not be able to relocate. Cumulatively, the impact of the applicant’s situation meant that he met the criteria for complementary protection.
Country Information – DFAT Country Report January 2022
5.23 Article 15 of the Constitution guarantees the right to freedom of movement in Pakistan. Internal migration is widespread and common, but it depends on having both the financial means and family, tribal and/or ethnic networks to establish oneself in a new location. Single women find it especially difficult to relocate (see Women). For some groups (such as Hazaras), travel by road is unsafe in certain parts of the country, and those who must travel and can afford to fly do so.
5.24 Large urban centres such as Karachi, Islamabad and Lahore have ethnically and religiously diverse populations, and offer some anonymity for people fleeing violence by non-state actors (see relevant sections). Some groups, such as Pashtuns, occupy enclaves in these cities, while others, such as Ahmadis and Hazaras, avoid living in enclaves to reduce the risk of being targeted. Certain types of threats (such as honour killings) are persistent, and even if people relocate they can be tracked down and killed years later (see Women). DFAT assesses that groups facing official discrimination (see relevant sections) will face discrimination in all parts of the country.
Pashtuns
3.13 The Pashtuns are an ethnic group native to Afghanistan and northwest Pakistan. Pashtuns are stereotypically fair-skinned with light-coloured hair and eyes that distinguish them from other Pakistanis, although in reality Pashtuns are physically diverse. Pashtuns may also wear distinctive clothing, such as the red-and-black ‘Pashteen hat’, which has reportedly become a symbol of the Pashtun Tahafuz Movement (PTM). Pashtun culture emphasises tribal and family relations, as well as customary norms known as Pashtunwali. Pashtuns speak an Eastern Iranian language called Pashto. Most, but not all, follow Sunni Islam (see Turis, Bangash).
3.14 There are an estimated 20-25 million Pashtuns in Pakistan, the second largest ethnic group after Punjabis (see Demography). Pashtuns traditionally live among their own tribes and sub-tribes in Khyber Pakhtunkhwa and the former FATA, though many migrate to urban areas. The largest Pashtun community in the world lives in Karachi. Pashtuns also live in Balochistan, Islamabad, Lahore and elsewhere.
3.15 Pashtuns are represented at all levels of society in Pakistan. They dominate employment in the transport sector in Pakistan and Afghanistan, and are well represented in Pakistan’s security forces. The governing PTI party has a strong support base among Pashtuns in Khyber Pakhtunkhwa. Pashtun-majority areas have historically experienced high levels of tribal, intra-communal and politically motivated violence, a high concentration of military operations, and conflict-related displacement. However, the overall security situation for all Pakistanis, including Pashtuns, has (until recently) been improving in line with increased security across Pakistan.
3.16 Until 2018, those living in the FATA were governed under separate, extra-constitutional arrangements, which denied them some fundamental rights (see Political System). Residents of Khyber Pakhtunkhwa, including the former FATA, now have access to the regular judicial system, although the option remains to voluntarily refer disputes to traditional jirgas/panchayats under the Khyber Pakhtunkhwa Alternate Dispute Resolution Act (2020) (see Judiciary). In 2017 civilians living in the FATA were injured and lost access to land due to landmines left over from security operations.
3.17 Across Pakistan, ethnic stereotyping and the association of Pashtuns with the TTP has led to official discrimination and ethnic profiling. In February 2018, the Punjab government issued a notice asking ‘the population of Punjab to keep an eye out for suspicious individuals who look like Pashtuns or are from the former FATA, and to report any suspicious activity.’ In areas where they are a minority, low-level societal discrimination against Pashtuns is common in the form of slurs and ethnic stereotypes. Pashtuns report frequent blocking of their CNICs when relocating (see CNICs and SNICs), which impedes access to property and assets. There are credible reports Pashtuns have been targeted for enforced disappearances, especially in conflict-affected regions such as Khyber Pakhtunkhwa and Balochistan.

3.18 DFAT assesses Pashtuns in conflict-affected areas such as Khyber Pakhtunkhwa and Balochistan face a moderate risk of violence by state security forces, including enforced disappearance and extrajudicial killings. Elsewhere in Pakistan, Pashtuns generally face a low risk of official and/or societal discrimination and a similar risk of violence to other ethnic groups in the same locations, although the risk increases if they come to the attention of authorities for any reason. Pashtuns involved with the Pashtun Tahafuz Movement (PTM) or the Awami National Party (ANP) face specific, heightened risks, as do Shi’a Pashtuns (see Turis, Bangash). Country Portals - DFAT Country Information Report Pakistan (25 January 2022).pdf - Standard View (sharepoint.com).
Findings and reasons
The Tribunal found the applicant’s evidence to be evasive and unconvincing and his claims contrived solely for the purpose of supporting a protection visa application.
The Tribunal does not accept the applicant’s claims that he will be harmed because he broke off a relationship with a Pashtun woman, [Ms A]. She subsequently remarried and had a child and whilst now, apparently, divorced (the applicant provided no evidence of this), she is living with her family along with her [child] and has not been harmed or threatened with harm.
Nor is the Tribunal satisfied that the applicant would be harmed by his father, the elders or anyone else because he entered into a Nikah with an Australian woman who had converted to Islam. That relationship in any case ended within a few months without the applicant and his Australian partner ever having lived together. The applicant’s mother and sister witnessed the marriage via video, thus indicating their support of the marriage.
The Tribunal notes that the applicant’s sister confirmed the applicant’s account that their father would kill the applicant for marrying a Christian woman and that is how the rest of the village would consider this. As the Tribunal has found the applicant’s evidence to be untruthful, it follows that the Tribunal does not accept his sister’s evidence as truthful.
Credibility
The Tribunal accepts that inconsistencies in evidence can occur, particularly in circumstances of high stress and when applicants are being asked to recount events which may have occurred several years prior. The Tribunal is also mindful that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.
The Tribunal was very clear with the applicant about the aspects of his and his sister’s evidence which it was finding lacked credibility or to have been implausible. The applicant was given the opportunity to respond at the hearing and did so including with the assistance of his adviser. The applicant was unable to allay the Tribunal’s concerns to its satisfaction. In the Tribunal’s mind, the lack of relevant detail and corroborating evidence, along with his responses to queries and concerns indicated to the Tribunal that the applicant was reciting a wholly contrived account of events rather than recalling memories from a lived experience. The Tribunal is not in any doubt that the applicant has not been truthful.
CONCLUSION
For the reasons given above, the Tribunal finds that the applicant is not a witness of truth and that all his claims are contrived solely for the purpose of supporting a protection application. On the basis of the evidence before it the Tribunal is not satisfied that the applicant will be subject to an honour killing, or serious harm, or any kind of harm or discrimination for the reasons claimed, or for any other Convention-based 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)(a) for the reasons claimed, or for any other reason.
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’s claims, cumulatively, would give rise to a claim for complementary protection. However, as the Tribunal does not accept any of the applicant’s claims in relation to his fear of returning to his hometown, it has not gone on to consider whether it would be reasonable for him to relocate to another part of Pakistan. The Tribunal finds that the applicant would be able to return safely to his own home without fear of persecution, significant or other harm, for the reasons stated, or for any other reason.
On the basis of the evidence before it, the Tribunal has formed a view that the applicant has the protection of his family, including his father and can safely reside, without any fear of persecution from anyone in his hometown or anywhere else, for a Convention-related or for any other reason.
The Tribunal has found the applicant’s account of the harm that he fears to be entirely contrived and lacking in credibility. Considering all the evidence before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Pakistan, there is a real risk the applicant will suffer significant harm for the reason stated, or for any other reason. The Tribunal therefore is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
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 3443

25 July 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Jurisdiction