1936108 (Refugee)

1936108 (Refugee) [2022] AATA 2770 (27 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1936108
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Nora Lamont
DATE:27 June 2022
PLACE OF DECISION:  Brisbane
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 27 June 2022 at 1:19pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – particular social group – female social workers – work with minority groups – targeted by Jamat-Ud-Dawa members – similar claims to brother’s application – credibility issues – inconsistencies and discrepancies down to nerves and fear – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36(2)(a), 65, 424AA, 499,
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 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 26 June 2019. The delegate refused to grant the visa on the basis that the applicant’s claims of facing serious harm if removed to Pakistan could not be substantiated based on the evidence provided and therefore the applicant is not a person in respect of whom Australia has protection obligations.
The applicant appeared before the Tribunal on 15 June 2022 at 11 am to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
The Tribunal hearing was adjourned after the Tribunal put adverse information before the applicant under 424AA and the applicant requested time to consider her response. The hearing resumed on Monday 27 June at 10 am and was conducted with the assistance of an interpreter in the Urdu and English languages.
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
Background
The applicant is [an age]-year-old female who is a national of Pakistan. She was born in the town of Gujranwala in the province of Punjab, Pakistan.
She first arrived in Australia on a Visitor visa (Subclass-600) [in] April 2012. She has since departed and arrived in Australia multiple times on the same visa subclass and has been onshore since her last arrival [in] May 2019.
The applicant is married and has two children. Her husband and children are currently in Pakistan.
The applicant applied for a Protection Visa (Subclass-866) on 26 June 2019 which was refused by the Department on 27 November 2019.
The applicant applied for a merits review of the delegate’s decision to refuse her the Protection Visa on 21 December 2019.
The applicant travelled to Australia on a valid Pakistani passport and states they are a national of Pakistan. In the absence of any evidence to the contrary, I accept the applicant is a national of Pakistan and had assessed her claims against that country in relation to s.26(2)(a) and s.36(2)(aa) of the Migration Act.
There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any safe third country for purposes of s.36(3) of the Migration Act.
There are no non-disclosure certificates on the applicant’s file.
A summary of the delegates decision is as follows: [1]
• The applicant’s recollection of the event from February 2019 were not consistent and the fact that she stayed in Pakistan for three months without any incident after receiving the threats was indicative that she was not a person targeted by members of Jamat-Ud-Dawa ; AND
• Based on the above and the applicant’s vague and inconsistent testimony the delegate concluded that the applicant or her family had not received any threats from members of Jamat-Ud-Dawa; AND
• Due to lack of credible and persuasive information from the applicant, it could not be concluded that the applicant matched the profile of a human rights activist or NGO worker which could have attracted the attention of militant groups; AND
• As the applicant failed to provide evidence of any social work undertaken in Australia, it could not be concluded that social work was something fundamental to her beliefs which she would continue to do if she were to return to Pakistan and therefore attract the attention of militant groups.
[1] –[Deleted].
Cumulatively the delegate found that:
• The applicant did not meet the definition of refugee as defined in s 5H(1) of the Act and therefore is not a person in respect of whom Australia has protection obligations as provided for in s 36(2)(a) of the Act; AND
• The applicant will not suffer serious harm as defined in s5J(5) of the Act at the hands of militant groups as a result of her social work and being removed to Pakistan and therefore is not person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.
Claims
The applicant’s claims are summarised in her visa application and the delegate’s decision and are as follows:[2]
• She has been an active member of a social group which promotes rights of minorities and helps poor people in Pakistan since 2013; AND
• The social group does not have a name and has three members only who operate from [a] hospital in Gujranwala, Pakistan; AND
• Due to her active involvement in this kind of work she has been threatened with harm and death by those who do not agree with her work and these people belong to the militant group Jamat-Ud-Dawa; AND
• That the people threatening her are powerful people who think that the applicant is not supposed to be doing the kind of social work in Pakistan; AND
• She was verbally threatened with harm on 14 February 2019 and was shot at [in] February 2019; AND
• She cannot relocate internally in Pakistan due to lack of sufficient living and safety arrangements; AND
• Since she escaped to Australia members of the Jamat-Ud-Dawa group have threatened her husband and children and has advised them that the applicant be told not to return to Pakistan; AND
• That if she was to be removed to Pakistan she would be tortured and killed.
Tribunal Hearing
[2] –[Deleted].
At the beginning of the hearing the applicant discussed her family. She was married in 2000 and has [children]. They remain with her husband in Pakistan. Her husband is [an occupation] and has a home-based [business]. She has five brothers, two have passed away and one lives in Sydney, one in Brisbane and the other one remains in Pakistan. Both her parents have passed away.
The applicant went to University and is highly educated, she holds a Bachelor of Arts and a Bachelor of Education, along with a teacher’s certificate. She became a teacher and taught at [a] School from [1999] until [2015]. She also had a small business that did not work out after she stopped teaching and she was working (voluntarily) as a social worker.
Since being in Australia she has been employed [in a] shop and she lives with her brother and sister-in-law.
The applicant said in 2013 she started doing social work. She said there were a lot of employees at her school who were Christians and she felt bad for the way they were treated. They were the cleaners etc and she said they were treated like trash and looked upon unfavourably. She said she had a feeling she needed to help them. A small group of women got together to help them.
I asked her if she started the group and she said she did. They worked out of the [Hospital] which was a trust. She said she just approached them about doing this work. I asked how often she said 2 days a week with ladies named [names deleted]. I asked if she had contact with them and she said no. I asked what it was that she did exactly? She said they would visit different areas and make a list of the needs the people had, then gather donations and divide it amongst the people. I asked where the donations came from and she said they went door to door, and to factories, mostly rich people and they would collect a bit especially during Ramadan. She said they had cash but would also buy groceries for older people who couldn’t get out.
I asked if she was paid, and she said no. I asked her how it was that she went from a full-time paid position to a 2 day a week voluntary position? She said she did a lot of work for 15 years and she just wanted to help.
I asked her why she came to Australia 6 times in between 2012 and 2019 and she said her brother invited her as she was tired. She said her husband came two times but never her children.
I said I found it odd that 3 ladies in Pakistan were randomly going door to door asking for donations. I asked if they had security and she said no and that they went about 25 to 30 kms out. I asked about the other ladies and she said they were friends before they joined as a group, but I said I found it strange she has not kept in touch with them. She said I am working fulltime now. I asked about her husband and how he felt about it all. She said he told her to stop it and he was angry about it, but she says she had a feeling about it. I asked if the other ladies continued to do it and she said she didn’t know.
I asked her about her claim that she was verbally abused on 14 February 2019. She said that two people came, and they told her to stop it or there would be consequences. I asked if this was inside the office and she said yes. They said you shouldn’t work with minorities and you should help Muslims. They threatened her as she was the leader. But I said, the hospital does charity work, they would have hundreds of staff and workers how would they even know where your office is? She said these people are well connected and they know everything.
I asked if she reported it to the hospital or the police and she said to the hospital and she went to the police, but they just told her to stop doing what she was doing.
I then asked about the [February] 2019 incident and she said she was going home and these guys with their faces covered on motorbikes and they tried to kill her for a third time. I said I only know about 2 times and she said the second time they just said to her we will not leave you alone. She didn’t know if it was the same people as their faces were covered. They followed her for two or three minutes then they shot at her. I said with shotguns. She said some type of guns. She had to flee into a random person’s house.
She wasn’t certain of the date and she said to her brothers she couldn’t stay there any longer.
I told her this did not match up with her claims. She said they were Jamat ud Dawa and she said no, but in her claims, she said they told her they were Jamat ud Dawa. She said she cannot remember she misses her children. I asked her to tell me who is Jamat ud Dawa and she said they want Islam to be the dominant religion. I asked if they were in her neighbourhood and she said there was not a lot.
I asked the applicant what happened between [February] and May when she arrived in Australia. She said that they would come to her house and threaten her. I asked her how they would know where she lived, and she said they were following her. Her husband was angry about this. She said she was scared, terrified as they were threatening her so much.
I asked the applicant about the Sahiwal killings and her involvement in protests. She said what she was talking about was the children being killed and she was a voice.
She said if she went back, they wouldn’t leave her alone. I asked her why she didn’t move to another location in Pakistan, and she said it wasn’t possible they are everywhere. They are threatening her family whilst she is in Australia.
424AA
At this point in the hearing, I put adverse information formally to the applicant under 424AA.
During the hearing today we have talked about some of the concerns I have about aspects of your claims. The Migration Act requires me to put some of those matters to you more formally. I am going to put to you now information that I consider would be the reason or part of the reason for affirming the decision to refuse to grant you a protection visa.
I am going to explain why it is relevant and ask you if you want to comment on or respond to this information. You should tell me if you do not understand the information or why it is relevant. If you want further time to comment on or respond to that information, you should inform me, and I will consider that.
Your brother has the exact same written claims and his application for protection was put into the Department the very next day after your application. The application of your brother’s is word for word exactly the same. He is claiming he did the exact same work as you at the exact same time. He is also claiming he was threatened as well.
This information is relevant because it may lead the Tribunal not to accept that you are credible. It may lead the Tribunal to doubt the truthfulness of your evidence. It may also cause the Tribunal not to accept that you have a well-founded fear of persecution if you were to return to Pakistan or that you will suffer significant harm if returned to Pakistan from Australia
This would be the reason or part of the reason why the Tribunal would affirm the decision under review.
The applicant asked for time to consider this information, so I adjourned the hearing and gave the applicant until Monday 27 June to respond to the adverse information at the resumption of the hearing.
Hearing Resumption
At the resumption of the hearing the applicant responded verbally to the 424AA from the adjourned hearing. She stated that her brother and her both worked in social work and they came to Australia together. She said that her cousin was the one who filled out the applications as she and her brother only had limited English. She said he worked in a different organisation and her father had also been a social worker. The family background is in the social work area so there are a lot of people against the family.
I asked her why she didn’t just tell me at the beginning why didn’t she tell me that her brother was here and had similar claims? She said she didn’t know anything about it and that her brother had gone to Sydney. She didn’t know that her cousin had cut and pasted the same claims.
I accept that the applicant did not know that her cousin had done the same claims, that although they are similar, they are different, but her cousin just did both the same. I accept that the applicant’s English is poor and that when she arrived, she would have had worse English skills than she does now so she would not have known what was happening.
Although the applicant should have told the Tribunal her family background and that her brother was in a similar situation, I accept that she did not knowingly do it to for migration purposes.
Country Information
County information for Non-Government Organisations or NGO’s and Women is as follows:[3]
[3] Country Information Report Pakistan January 2022
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).
Women
3.89 Pakistan has one of the worst records for gender equality in the world. According to the World Economic Forum’s 2021 Global Gender Gap Report, Pakistan ranked 153 out of 156 countries for female economic participation and opportunity, educational attainment, health and survival, and political empowerment.
3.90 Article 25 (2) of the Constitution prohibits ‘discrimination on the basis of sex,’ subject to a caveat enabling the state to make laws to ’protect women and children.’ Nevertheless, discriminatory laws exist: a man can legally seek a divorce at any time, while a woman cannot; the legal marriage age for men is 18, while for women it is 16 (except in Sindh where it is 18); and marital rape is not criminalised.
3.91 There has been significant legislative progress on women’s rights at the provincial and federal levels in recent years. Laws against domestic violence in Punjab, Sindh, Balochistan and Khyber Pakhtunkhwa, as well as federal laws, have been introduced that criminalise honour killings and acid attacks. The enforcement and effectiveness of these laws varies. Some, such as the acid attack law, have been very effective: once common, acid attacks have decreased by about 80 per cent since 2014, according to in-country sources.
3.92 Women’s participation in society in Pakistan can be heavily curtailed depending on their social circumstances. Observation of the purdah (literally ‘curtain’, an Islamic practice of segregating women from unrelated men) restricts many women’s personal, social and economic activities outside the home. While women in cities such as Lahore, Karachi and Islamabad often enjoy relative freedom, conservative rural communities are much stricter. There are reports of widespread sexual harassment of women and girls in public places, schools and universities. Some, mostly wealthy, Pakistani women have attained senior positions in public life, but their experience is not representative of the general population.
3.93 Rates of gender-based violence are high. The Pakistan Demographic and Health Survey 2017-18 found 27.6 per cent of ever-partnered women aged 15-49 had experienced physical violence, mostly at the hands of their husbands. NGOs claim the actual prevalence is much higher. NGOs and government officials report domestic violence has risen sharply during COVID-19.
3.94 Gender-based violence often goes unreported due to stigma and a lack of privacy for victims, even when they are wealthy and well-connected. Victims of rape often avoid reporting for fear they will be blamed or killed for ‘dishonouring’ their family, and because attending police stations may put them at risk of further violence. Extremely low conviction rates also discourage reporting of rape and other forms of GBV, as does a lack of female police officers. Domestic violence is commonly seen as a private family issue, and police are often reluctant to intervene. Federal and provincial governments have tried to improve official responses to gender-based violence, including through establishing GBV courts and women’s police stations, available in some major cities. In May 2021, police opened a Gender Protection Unit with a 24- hour hotline in Islamabad, which handled more than 500 complaints in its first three months.
3.95 Without support it is extremely difficult for a woman to relocate to escape an abusive relationship. Women who leave their families face physical risk, stigma and steep economic barriers. State-run women’s DFAT Country Information Report – PAKISTAN - January 2022 32 shelters (darul aman) require a court order to enter and leave, and are described as having ‘prison-like’ conditions. Private and NGO-run shelters exist, but they are unable to meet demand. Families often pressure victims to return to their abusers; in some cases victims are lured into returning and are killed. In Punjab it is possible to obtain a restraining order under the Punjab Protection of Women against Violence Act, 2016. Elsewhere in Pakistan a judge may issue a ‘protection order’ (denial of bail) to protect any victim or witness of a crime, but these are rarely granted.
3.96 So-called ‘honour killings’, in which family members murder relatives perceived to have brought dishonour on the family, are common in Pakistan. Human Rights Watch estimates there are about 1,000 honour killings in Pakistan each year. Honour killings can be carried out in response to behaviour including refusing an arranged marriage, forming an unapproved romantic attachment, or ‘immodest’ dress or behaviour, including social media posts. While young men can be targets of honour killing, most victims are female. Once a threat of honour killing is established, the victim remains at risk even if he or she relocates. In some cases, victims have been killed years after the initial transgression. In tribal areas honour killings are sometimes ordered by traditional jirga councils (see Judiciary, Cruel, Inhuman and Degrading Treatment).
3.97 Forced and underage marriage is a widespread problem in Pakistan. Religious minorities are at particular risk (see Christians, Hindus). A frequently quoted estimate is that about 1,000 forced marriages take place in Pakistan each year. While the marriage age for girls is technically 16, Islamic jurisprudence provides for girls to be married once they reach puberty. Girls as young as 12 have been abducted, raped, threatened with violence and, in some cases, forcibly converted to Islam. In tribal areas, forced marriages are sometimes ordered by traditional jirga councils under a custom known as badal-e-sulah, where girls and young women are given away to settle blood feuds or land disputes among men.
3.98 Female journalists, activists and opposition politicians are frequently subjected to online harassment, including threats of physical and sexual violence, on the basis of their sex. Women who participate in the annual Aurat (Women’s) March have been condemned for promoting ‘vulgar’ behaviour and threatened with violence. In 2020, doctored photos of women holding placards deemed insulting to Islam were circulated online, drawing threats and hate speech. See also NGOs, Media and Journalists.
3.99 Militant groups such as the TTP have attacked female teachers and school students due to their ideological opposition to female education. The 2012 shooting of prominent female education activist Malala Yousafzai while she was travelling on a school bus in Swat was a direct response to a series of media interviews in which she argued that girls had a right to education and condemned the TTP. Attacks on girls’ schools continue, particularly in the former FATA, Khyber Pakhtunkhwa and Balochistan. A significant attack occurred against 12 schools in Gilgit Baltistan in August 2018.
3.100 DFAT assesses that women and girls in Pakistan face a high level of official discrimination in the form of inadequate state protection from gender-based violence. Women also face significant legal discrimination on issues such as inheritance, property rights, family law, and civil and traditional judicial processes. DFAT assesses that women and girls in Pakistan face a high risk of societal discrimination and violence, particularly domestic violence, because of their sex. Poor, marginalised, minority, and rural women are particularly vulnerable and lack access to support services.
Findings

The applicant was visibly shaken during both hearings and crying a lot. She was soft spoken and nervous. For the following reasons, I have concluded that the decision under review should be remitted.
Despite inconsistencies and discrepancies with the applicant’s evidence I accept that she was a social worker who was targeted for her work in the community. I accept that she went to homes and businesses and asked for money and goods and that this caused her to become a target of others in the community. I attributed her inconsistencies and discrepancies down to nerves and fear.
I accept that she was targeted as a social worker by men on motorcycles whether they were Jamat ud Dawa or not and that she was targeted not only for her social work but also because she was a woman who was doing social work.
I accept that she was visible enough to the wider community and that she attracted attention as an NGO worker and as a woman. As a woman in Pakistan, she is subjected to discrimination and violence as DFAT reports:
DFAT assesses that women and girls in Pakistan face a high level of official discrimination in the form of inadequate state protection from gender-based violence. Women also face significant legal discrimination on issues such as inheritance, property rights, family law, and civil and traditional judicial processes. DFAT assesses that women and girls in Pakistan face a high risk of societal discrimination and violence, particularly domestic violence, because of their sex. Poor, marginalised, minority, and rural women are particularly vulnerable and lack access to support services.
I consider that the applicant’s work with minority groups such as Christians caused outrage and the following DFAT country information supports the applicant’s claims:
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.
I find that the applicant is a member of a particular social group women social workers and accept that she fears persecution due to this membership.
Conclusion
Having considered the applicant’s claims individually and cumulatively, the Tribunal accepts that the applicant fears being persecuted for one or more of the five reasons mentioned at s.5J(1)(a) of the Act, and that there is a real chance that the applicant will suffer persecution for one or more of the five reasons mentioned in s.5J(1)(a) if he were to return to Pakistan, now or in the foreseeable future.
Specifically, the Tribunal finds that the applicant is a member of a particular social group women social workers and she would face a chance of real harm from religious (Muslim only) groups, Jamat ud Dawa or their associates. The Tribunal is satisfied that this would be the essential and significant reason for the persecution and involves serious harm and systematic and discriminatory conduct.
The Tribunal accepts that this chance of harm exists throughout Pakistan, such that relocation would not mitigate it, Moreover, it is not satisfied that there are effective protection measures available to the applicant to avoid this harm.
Accordingly, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has a protection obligation under s.36(2)(a). In [52], having concluded that the applicant meets the refugee criterion in s.36(2)(a), it is unnecessary for the Tribunal to consider the alternative criterion in s.36(2)(aa).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
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.
…

[2022] AATA 2770

27 June 2022

Key Legal Topics

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Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

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