1934963 (Refugee)

1934963 (Refugee) [2023] AATA 2787 (12 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Mohammed Mirza (MARN: 0747557)
CASE NUMBER:  1934963
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Nora Lamont
DATE:12 June 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 June 2023 at 12:17pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – ethnicity and religion – Hazara Shi’a – work for NGOs and association with journalists/activists – threatened and family forced to hide – credibility – application made after working visa refused, short return to home country and Federal Circuit Court application withdrawn – inconsistent evidence about ethnicity and no public record of NGOs – no evidence of change of travel plans due to fear of harm – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1)(a), 5J(1), 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIMA v Rajalingam (1999) 93 FCR 220
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 14 November 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 25 April 2019.
The applicant appeared before the Tribunal on 29 May 2023 to give evidence and present arguments.
The applicant was represented in relation to the review. The representative did not attend the hearing.
The applicant’s migration history as in his decision record is as follows: [1]
[1] [Reference]
·[April] 2015 arrived in Australia.
·7 June 2016 the applicant lodged a nomination and visa application for a 457 visa.
·23 September 2016 the nomination was refused.
·31 March 2017 the 457 visa was refused.
·23 November 2018 the AAT affirms the refusal decision for the nomination and the 457 visa.
·19 December 2018 lodged an appeal in the Federal Circuit Court for the 457 and nomination.
·[February] until [March] 2019 the applicant returns to Pakistan.
·29 March 2019 withdraws the Federal Circuit Court application.
·25 April 2019 applicant applies for protection visa.
The applicant travelled to Australia on a valid Pakistani passport and claims to be a national of Pakistan. The delegate had no concerns with the applicant’s identity. Therefore, the Tribunal has assessed the applicant’s claims against Pakistan as his country of nationality and his receiving country.
There are no non-disclosure documents on the applicant’s file.
The issues in this review is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s 5J(1) and if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Pakistan there is a real risk that he will suffer significant harm.
For the reasons that follow the Tribunal has concluded that the decision under review should be affirmed.
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 is a [Age]-year-old male born in Lahore Pakistan. He is now married with a child. His parents and siblings remain in Lahore. He currently works at a [Workplace]. He has been in Australia since 2015 and returned to Pakistan for a visit in 2019.
The applicant’s claims as summarised from his protection visa application are as follows:[2]
[2] [Reference]
·The applicant is Shia Muslim.
·The applicant worked for an NGO that helped Hazara people.
·The applicant worked for [Organisation 1] and [Organisation 2] (both NGO’s).
·He was threatened due to his work with these NGO’s.
·The applicant claims he was unlawfully detained.
·His friend died whilst working at the NGO and he decided he needed to leave Pakistan.
·The applicant continued working for the NGO whilst in Australia campaigning online.
·He went back to Pakistan in 2019 and was fearful so he flew out of Karachi instead of Lahore.
·He went to the police, but they wouldn’t help him.
·He claims he was questioned about his relationship with the murdered journalist [Ms A].
·The family had to abandon their home to avoid illegal arrest and he doesn’t know if they are alive or dead.
The applicant stated at the hearing that he worked from 2010-2014 with an NGO called [Organisation 3] and they were located on [Road] in Lahore. He said he worked providing welfare assistance to women and that he gave them [Products] and shelter, as he would find them houses to live in. He said it was like a fulltime job. He saw an ad in the newspaper for the position and his family had told him to get a job, so he applied. He was paid 12,000 to 15,000 Rupees and he could also get a commission.
The Tribunal asked the applicant why he said his father was Hazara in his application and at the Department interview, but he told the Department he was not a Hazara himself. He said that his parents told him not to tell anyone he was Hazara and during his interview with the Department he was nervous, so he said he wasn’t a Hazara. He said that was a misunderstanding. The Tribunal asked if he spoke Dari or Hazaragi he said no he only spoke Urdu. However, in his application for protection he stated he spoke Hazaragi. The Tribunal does not accept that the applicant is a Hazara. The Tribunal has considered that the applicant has stated his father was Hazara, but it wasn’t until the Tribunal hearing that the applicant said his mother was also Hazara. The Tribunal has trouble understanding how he and his family denied their ethnicity.
The applicant had many inconsistencies in his evidence before the Tribunal. First, he said that he worked for two charities one called [Organisation 1], and [Organisation 2] in his protection claims and at the Department interview. When the Tribunal asked him the names of the organisations, he was working for during the Tribunal hearing the applicant said he worked for “[Organisation 3]” which was based on [Road] in Lahore. The Tribunal was unable to find any [Organisation 3] on the internet other than a popular Pakistani song. Further there is no record of any NGO’s called [Organisation 1 or 2].
The applicant was asked about being a Shia Muslim in Pakistan as Shia’s are not well accepted in Pakistan. When asked about being a Shia in Pakistan he said he never had any issues with it. He said when he worked at the NGO there was no discrimination. The applicant was asked to explain the difference between a Sunni and a Shia, and he said as a Shia he follows Ali, and that Sunnis think that Shias prioritise Ali. He said he went to school with Sunnis, and he never had any issues. He said his wife is a Syed. The Tribunal accepts on the evidence before it that the applicant is a Shia Muslim.
DFAT states the following about Shia’s in Pakistan: [3]
Shi’a
3.55 Pakistan is home to the world’s second-largest Shi’a population (after Iran). An estimated 20-40 million Shi’a live throughout the country, constituting 10-20 per cent of the population. There are significant Shi’a communities in Karachi, Lahore, Rawalpindi and Islamabad. Shi’a are in the majority in the sparsely populated autonomous region of Gilgit-Baltistan but are a minority in Pakistan’s other regions.
3.56 Most Pakistani Shi’a (except Hazaras) are not physically or linguistically distinguishable from Sunnis, and national censuses do not distinguish between them. NADRA collects sectarian information during the application process for identity documents, but CNICs do not identify a cardholder’s religion, and passports do not distinguish between Sunni and Shi’a. Some Shi’a may be identifiable by common Shi’a names, such as Naqvi, Zaidi or Jafri. Similarly, ethnic or tribal names can reveal a person’s ethnicity or tribal affiliation: nearly all Hazaras and Turis are Shi’a, as are many Bangash. Ritual self-flagellation during Shi’a religious festivals can leave distinctive, permanent scars, which have been used by militants to identify Shi’a for execution.
3.57 Shi’a are generally able to establish places of worship and practise their religion without overt state interference. They are well represented in parliament and regularly contest elections for mainstream political parties. Shi’a and Sunnis can legally intermarry, although a 2018 report by the Immigration and Refugee Board of Canada found such marriages were ‘not easy, and the difficulty factors may range from social disdain or discouragement to life threats, depending on the locality and region, social stratum, and particular family circumstances.
3.58 Shi’a face rising religious intolerance and official discrimination in the form of blasphemy accusations. Over 70 per cent of blasphemy cases are against Shi’a. Anti-Shi’a sentiment is seen in politics: in July 2020, the Punjab Provincial Assembly passed a law to ‘protect the foundation of Islam’ which would criminalise Shi’a beliefs about the Companions of the Prophet (the Governor returned it for revision).
3.59 Sectarian tensions often flare during Muharram, when Shi’a mourn the killing of the Prophet Mohammad’s grandson and his family, a key event in the Sunni-Shi’a schism. In 2020, over 40 Shi’a were charged with blasphemy following Muharram, including clerics accused of insulting the Companions of the Prophet during ritual processions. Thousands of Sunni protesters took to the streets in Karachi and Islamabad chanting anti-Shi’a slogans. There were targeted killings of Shi’a in multiple cities. The Karachi head of the TLP openly threatened beheadings for Shi’a ‘blasphemers’. Videos of these incidents circulated on social media. Authorities have attempted to curb sectarian hatred during Muharram, for instance by banning firebrand Sunni and Shi’a clerics from leaving home and by cutting off mobile phone services in major cities during processions.
3.60 Shi’a have historically been targeted by sectarian terrorist groups such as the TTP, LeJ and IS (see Security Situation). These groups have attacked Shi’a individuals, places of worship, shrines and religious schools, as well as Shi’a travelling to Iran or Iraq for religious pilgrimage. The frequency of these attacks has steadily declined since 2013. Terrorist attacks targeting Shi’a killed five and injured 14 in 2020 (not including attacks targeting Shi’a Hazaras, see Hazaras), compared with 32 deaths in 2019 and 471 deaths in 2013. This is a result of the overall improvement in the security situation in Pakistan, as well as increased security provided by the Pakistani police for Shi’a places of worship and processions. Nevertheless, sectarian terrorist groups retain the capacity and intent to carry out attacks against Shi’a anywhere in the country. At least three people were killed and 50 injured in the bombing of a Shi’a procession in Bahawalnagar, Punjab in August 2021.
3.61 DFAT assesses Shi’a in Pakistan face a moderate risk of sectarian violence, although the situation has improved considerably in recent years. Seventy per cent of blasphemy accusations, which carry the death penalty, are against Shi’a. They face a moderate risk of societal discrimination in the form of anti-Shi’a protests and community violence. Some Shi’as face specific, heightened risks (see Hazaras, Turis, Bangash).
[3] DFAT Country Information Report Pakistan 25 January 2023.
The applicant had given a document to the Department which was purportedly a membership certificate from [Organisation 2]. The Tribunal pointed out to the applicant that the word Hazara was misspelt and that the symbol in the corner stated that it was the Awami Party. The applicant said that after ten years he wouldn’t give the Tribunal these documents.
The applicant said that he continued to work for the NGO’s when he arrived in Australia however, the associations he claimed to have worked for do not have any online presence and there is no website. The applicant said that it was in a WhatsApp group that he helped.
In the applicant’s application for protection, he said that he was detained on two occasions. The Tribunal asked him about these two times. He said that he was taken to a police station and asking him if he knew these people the journalist and activists. He didn’t know who they were they didn’t show their faces. On another occasion they came to the house looking for him, but he wasn’t home. The applicant was not detained two times as he had written in his protection claims.
The Tribunal asked about his friend who disappeared or was murdered. He said it was someone he worked with who was Shia but not Hazara and he vanished. He also said he was questioned about the two women ([Ms A and Ms B] and told not to have contact with them.
The applicant was questioned about his family disappearing. He said they hid themselves for 15-20 days after someone called his father. He said after this he rebooked his flight from Karachi instead of from Lahore. The applicant has given the Tribunal no documents or evidence to any of his claims. The Tribunal had access to the Department file and the documents that were provided to them but the applicant has provided no new evidence or documents to the Tribunal to back up his claims.
Country Information
Current country information from DFAT about Hazaras in Pakistan and NGO’s is as follows:[4]
[4] DFAT Country Information Report Pakistan 25 January 2023.
Hazaras
3.3 The Hazaras are an ethnic group of distinctive East Asian appearance, native to the Hazarajat region of Afghanistan. Their language, Hazaragi, is a variety of Persian that is mutually intelligible with Dari. There are an estimated 600,000 to 1 million Hazaras in Pakistan. Most are Shi’a Muslims of the Twelver Sect, although some belong to the Ismaeli sect and a small number are Sunni.
3.4 Large groups of Hazaras migrated to Pakistan from Afghanistan in the late 19th century, during the 1978-89 Afghan War, and following the Taliban takeover in 1996. Most live in enclaves in Quetta due to the security situation in Balochistan. Smaller populations live in Karachi, Lahore and Islamabad. Hazaras outside Quetta tend not to live in enclaves to reduce the risk of ethnic profiling, discrimination and attack. Hazaras participate in regional politics, and there are two MPs from the Hazara Democratic Party (HDP) in the Balochistan provincial assembly. Some Hazaras are documented Pakistani citizens or possess other forms of documentation that permit them to legally reside in Pakistan. Others are undocumented. Whether a Hazara is legally entitled to access public services and the like depends partly on their documented status (see also Afghans and National Identity Cards), although other factors may curtail access regardless, including the security situation for Hazaras in Pakistan.
3.5 Militant groups including, LeJ and IS (see Armed Groups) consider the Hazaras ‘infidels’ who are ‘worthy of killing’. A 2019 report by the NCHR said at least 2,000 Hazaras had been killed by militants in Pakistan since 1999 ‘in various incidents including bomb blast, suicide attacks and target killings’. No one has been held accountable for these attacks. Hazara political and religious leaders have been targeted for assassination. In April 2019, a bombing in Hazarganji market killed 24 people, many of them Hazaras. In January 2021, IS militants killed 11 Hazara miners in Mach. While there have been no attacks outside Balochistan since 2014, Hazaras have previously been targeted in Karachi, Peshawar and elsewhere. Militant groups retain the intent and capacity to attack Hazaras throughout Pakistan. DFAT Country Information Report – PAKISTAN - January 2022 19
3.6 The Hazara community in Quetta lives in two enclaves: Hazara town and Mariabad. The Pakistani government provides security in these communities, including vehicle checkpoints and searches on entry and exit. Government forces also provide security for Hazara religious processions (see Shi’a) and Hazarganji market. Hazaras who leave Quetta are required to notify the security agencies. Local sources report Frontier Corps routinely harass Hazaras at checkpoints. Human Rights Watch has reported that retired members of the Frontier Corps have described Hazaras as ‘agents of Iran’ and ‘untrustworthy’.
3.7 Medical, education and other services inside the enclaves are basic. Food and other essentials must be brought in from outside, and prices are reportedly double those elsewhere in Quetta. Those who can afford to travel to Karachi for medical treatment do so, while others must attend Quetta hospitals outside the enclaves, where they have been attacked in the past. Sectarian militants have also attacked Hazara religious processions, places of worship, and pilgrims on their way to Iran.
3.8 Schools exist within the enclaves, but there is little opportunity for higher education. Many Hazara students have abandoned the hope of higher education due to the risk of travelling. A small number of wealthier Hazaras send their children to study at universities in Lahore or Islamabad, where they reportedly feel safer.
3.9 Many Hazaras in Quetta provide services to their own communities within the enclaves; others move to other cities across Pakistan to work. Whether a Hazara can relocate strongly depends on their personal resources and family connections. In the past Hazaras were often employed in the military and public service, but few now apply for these jobs due to discrimination and fear of attacks. Since the IS attack in Mach in January 2021, Hazaras are reportedly too scared to work in the Baloch mining industry, previously an important source of income. High rates of unemployment and limited prospects have reportedly led to a sense of hopelessness among Hazara youth in Quetta.
3.10 While most Hazaras in Pakistan can obtain formal identification such as Computerised National Identity Cards (CNICs), Hazaras claim National Database and Registration Authority (NADRA) officials at times cause delays for Hazaras. Hazaras have suffered lethal attacks outside the NADRA office in Quetta while trying to obtain passports and CNICs. As a result, many Hazaras do not feel safe leaving the enclaves to apply for documentation.
3.11 DFAT assesses Hazaras who live in the enclaves in Quetta face a moderate risk of societal discrimination in the form of impeded access to higher education, medical services, employment and affordable food. Within and outside the enclaves, Hazaras face a moderate risk of official discrimination, including by government officials and security forces, in the form of obstruction at checkpoints and denial of or delay in access to identity documentation, employment and services. DFAT assesses such discrimination reflects widespread individual prejudice rather than official policy.
3.12 DFAT assesses Hazaras in Balochistan face a high risk of violence from militants on the basis of their ethnic and sectarian identity. Outside Balochistan the risk of violence for Hazaras is moderate. Hazaras face a higher risk of violence than other Shi’a due to their distinctive appearance and segregation. Outside Balochistan, DFAT assesses Hazaras face a low risk of societal or official discrimination, but notes relocation to these areas is difficult or impossible for many (see Internal Relocation).
Non-Government Organisations (NGOs)
3.110 The political environment in Pakistan is generally hostile to international and local NGOs, which are often perceived as a national security threat. Those that can operate face challenges including onerous registration requirements, and restrictions on movement and funding sources. The situation has worsened in recent years. In 2019, memos leaked from the Ministry of Interior claimed international NGOs were involved in ‘anti-state activities’ and worked ‘against Pakistan's security and solidarity’.
3.111 NGOs must register with the Ministry of Interior to operate in Pakistan. The ministry has the power to cancel or deny the registration of any NGO deemed not to be acting in Pakistan’s strategic, security, economic or national interest. This restricts operations in sensitive geographic areas and limits the ability of NGOs to work on sensitive issues. Registration processes are opaque and onerous, and applications are frequently rejected without explanation. According to the US Department of State, international NGOs are required to obtain no-objection certificates (NOCs) before undertaking in-country travel, commencing certain project activities or initiating projects. Long wait times impede operations. International NGOs including Save the Children, the International Crisis Group and the Norwegian Refugee Council have been forced to cease operations in Pakistan in the face of these requirements. Human Rights Watch and Amnesty International no longer maintain offices in Pakistan for the same reasons.
3.112 Human rights activists face threats of violence and harassment from the military, government and militant groups. In September 2020, a group of independent UN human rights experts called on the Pakistani government to end the secret detention of Idris Khattak, an activist and former consultant for Human Rights Watch and Amnesty International who had investigated disappearances in Pakistan’s Federally Administered Tribal Areas. According to Amnesty International, activists, journalists and human rights defenders have been forcibly disappeared by authorities in Balochistan. Among them are Hasaan and Hizbullah Qambrani, who were picked up in February 2020 after participating in protests against enforced disappearances in Quetta. The pair were freed in May 2021 after the Baloch Missing Person’s Camp met with Prime Minister Imran Khan to plead for their release.
3.113 DFAT assesses NGO workers, human rights activists and civil society actors face a high risk of official discrimination and a moderate risk of violence, especially in conflict areas (including Khyber Pakhtunkhwa, the former FATA and Balochistan). NGO workers and activists that work on religiously sensitive issues face a moderate risk of societal discrimination and violence, as well as violence from militant groups. Harassment and monitoring by security forces can occur anywhere in the country (see Military and Intelligence Services).
Credibility

The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482: - stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that 'if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt'. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. 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 must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
Findings and Conclusions
The Tribunal does not accept that the applicant is a credible witness. For the reasons set out above the Tribunal does not accept that the applicant is Hazara, that he worked for a Hazara charity, or that he was threatened by unknown people. Given these findings, the Tribunal does not accept that his family was forced to hide or that people came to his house looking for him but that he wasn’t home at the time.
Further, given the above findings the Tribunal does not accept that if the applicant returns to Pakistan, he will face a real chance of persecution from anti Hazara groups, their associates or anyone. The Tribunal finds that the applicant does not face a well-founded fear of persecution as per s5J(1) of the Act and therefore the applicant is not a refugee within the meaning of s5H(1).
Nor does the Tribunal accept that there are grounds for believing that as a necessary and foreseeable consequence of being retuned to Pakistan, there is a real risk that the applicant will suffer significant harm from anti Hazara groups or their associates. The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in 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.
Nora Lamont
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 2787

12 June 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice