2005266 (Refugee)

2005266 (Refugee) [2022] AATA 5122 (19 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr MD Nurul Huq (MARN: 0005656)
CASE NUMBER:  2005266
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Peter Haag
DATE:19 December 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the first-named applicant satisfies s 36(2)(a) of the Migration Act.
The Tribunal finds it has no jurisdiction to determine the application of the now deceased, second-named applicant.

Statement made on 19 December 2022 at 2:58pm
CATCHWORDS
REFUGEE – Protection Visa – Pakistan –religion – Ahmaddi Muslims – membership of Ahmadiyya Muslim Community – exceptionally vulnerable applicant – chronic state of health – State protection is not available to the applicant – second-named applicant is now deceased – no jurisdiction – applicant has a well-founded fear of persecution – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5H, 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 dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 February 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, who claim to be citizens of Pakistan, applied for the visas on 8 March 2017. The delegate refused to grant the visas on the basis that the applicants were not persons in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and are not members of the same family unit as non-citizens in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicants (s 36(2)(b) and s 36(2)(c) of the Act).
On 16 December 2020, the Tribunal was made aware of the death of the second-named applicant, and her Death Certificate was provided to the Tribunal via its online document system.
After considering the medical evidence relevant to the applicant, the written evidence before the Tribunal and the applicant’s request that the hearing be conducted by telephone, the Tribunal determined the hearing was suited to being determined by means of a video conference hearing. The Tribunal also determined that no prejudice to the applicant’s cause was likely to arise from the hearing being conducted in that manner.
No objection was made to the hearing being conducted by means of a video conference rather than by telephone or an in-person hearing.
The first-named applicant (‘the applicant’) and his witnesses appeared via a video conference hearing before the Tribunal on 16 December 2022 to give evidence and present arguments.
During the hearing the Tribunal also received oral evidence from [Ms A], the applicant’s granddaughter, and [Mr B], the applicant’s son, a New Zealand permanent resident. Mr [B] was granted a New Zealand permanent protection visa.
The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
The applicants were 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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. For example, the Tribunal has taken account of relevant parts of the DFAT Country Information Report Pakistan with the date 25 January 2022.
CONSIDERATION OF Claims and evidence
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
The Tribunal read the copy of the record of the delegate’s decision dated 24 February 2020 that the applicant provided to the Tribunal for the purposes of this review.
Applicants’ evidence
The applicant
In his application for a protection visa, the applicant claimed to be a citizen of Pakistan, born on [date], in Ambala, Haryana Province in India. He stated that he is Pakistani and an Ahmaddi Muslim. He claimed to be able to speak in Urdu, and unable to write in any language.
He was married to the second applicant in June 1960 in Pakistan. At the time of application, he listed that his family consisted of his wife (now deceased), and his seven children, four of whom reside in [Country 1], one residing in [Country 2], one residing in Pakistan and one residing in Australia.
The applicant lived in Karachi and Punjab in Pakistan before arriving in Australia. He stated that he is currently retired, but listed his previous employment as [occupations] in Pakistan. He lists no education history.
The second-named applicant
In her application for a protection visa, the second-named applicant claimed to be a citizen of Pakistan, born on [date], in Gujrat, Punjab in Pakistan. She stated that she is Pakistani and an Ahmaddi Muslim. She claimed to be able to speak in Urdu, and unable to write in any language.
She claims that she was married to the first-named applicant in 1956 or 1957 in Pakistan. At the time of application, she listed that her family consisted of her husband, and her seven children, four who reside in [Country 1], one who resides in [Country 2], and one who resides in Australia.
The applicant lived in Karachi and Punjab in Pakistan before arriving in Australia. She stated that she is a housewife. She stated that she completed up to [a specified year] only for her education in Pakistan.
Applicants’ identities
The applicant provided the Department with a certified copy of his Pakistani passport, expiry [2016], and a certified copy of his national identity card.
The second-named applicant provided the Department with a certified copy of her Pakistani passport, expiry [2026], and a certified copy of her national identity card.
The documents provided by the applicants are consistent with their evidence to the Tribunal in relation to their identities. There is no evidence to suggest that the applicants have a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information by the applicants, the Tribunal finds that they are citizens of Pakistan, and as such their protection claims will be assessed against Pakistan as the country of reference and ‘receiving country’ respectively.
Migration histories
The applicant and second-named applicant arrived in Adelaide on [date] January 2017. They held visitor visas at time of their arrival.
At the time of the visa applications on 8 March 2017, the applicants held the same visitor visas, which expired on [date] April 2017. They have not been unlawful for any period whilst residing in Australia.
The applicant lists his previous visa history as including visiting [Country 2] to see his son and family in 2015 for three months, transiting through [named country], and attending two community religious events in [Country 3] and India in 2008 and 2007 respectively. He has not previously visited Australia prior to arriving in 2017.
The second-named applicant listed her previous visa history as including visiting her son and his family in [Country 2] in 2015 for 3 months, transiting through [named country], a previous visit to Australia for four months in 2011 to visit her daughter and family, transiting through [named country], and attending two community religious events in [Country 3] for two months in 2007 and 2008.
Both the applicant and the second-named applicant have been refused visitor visas to [Country 1] in 2016, and the second-named applicant was also refused a visitor visa to [Country 1] in 2014.
Claims for protection and supporting documents
As part of his application for a protection visa, the applicant submitted a statutory declaration, signed, dated and witnessed 7 March 2017. In this document he made the following claims:[1]
1. There are various reasons for our claim, which we will highlight in this letter. We are Ahmaddi Muslims and it is anything but safe for us to live in Pakistan, no mater what city we go to. Ahmadi Muslims have been subject to various forms of religious persecution and discrimination. We are considered non-Muslims by many mainstream Muslims. Constitutional amendments passed in 1974 and 1983 deprived Ahmaddis of their identity as Muslims in Pakistan. In summary it states that any person who calls himself an ahmaddi and declares himself as a muslim will be punished with imprisonment for a term which may extend to three years, and shall also be liable to fine. And this is simply when we declare our selves as Muslims. We have lost the right to attend our mosques, it is no longer safe for us to gather as a community, attend community events or pray openly in our mosque Pakistan. We are restricted to our four walls to be able to practice our religion. There are countless incidents that have occurred in Pakistan where our mosques and offices have been attacked. Again, I have attached various newspaper clippings and online articles.
2. My family has also personally faced many problems in regards to our identity and the one thing that forms the structure of our lives, our religion. Initially, we owned a house in [Town 1] Town, where the local community persecuted us from the start. We were constantly harassed and mistreated. Slowly it escalated and hence we were forced to move to another [location]. Three of my sons lived with me at the time. One of my son owned a [shop], one was ill and stayed home and one was a [contractor]. I had retired and my wife continued with home duties. Where ever we go, we gather together as a community and hence it's quite difficult to remain hidden and keep our religion hidden from our neighbours. Therefore soon the neigbours and local community were aware of our identity as Ahmadi Muslims. Following this, the maulvis 9religious fanatics) that lived in the area were able to identify us. They began to harass us and threatened us on a regular basis. They insisted that we leave our religion and become 'muslims'. They would visit my sons shop and threaten him regularly. This continued for a while.
3. One night, during January 2012 my son closed his shop and went to the local Ahmaddi mosque for the nightly prayer. As he was heading home after mosque, it was a dark night and he was suddenly stopped by a car/van in front of him. A few men got out and tried to drag him off his bike and tried to get him into their car. Just as they had gotten him closer to the car another vehicle came from the back, forcing the men to leave him lying on the floor and running away from the scene. He was left with deep wounds and was bleeding quite heavily. After taking him to the hospital he slowly recovered. At the time we were quite shocked and terrified and we did not let our son leave the house. We tried seeking help from the police however we were left helpless. At the station they took down notes on a sheet of paper and told us they would get back to us soon. However when we tried to contact them again they said they could not help us at all and refused to take further action. And they did not contact us again.
4. That's when we decided that for his future we had to let him go to a safe country, far away from our home. In June 2012 he applied for a visa in [Country 1]. On [date] June 2012, he entered the Country and sought protection from the [Country 1] government. When the local community found out that my son had left for [Country 1], they started to harass and mistreat my other son who was a [contractor]. I did not leave the house much at all during this time as I was scared for my family and hence they took advantage of my son. Again I was worried for the life of my son and his family and it seemed quite difficult to afford the whole family to be sent to a safe country. So after careful consideration and advice from close friends and family we sent them to [Country 2] so they could seek protection for the UNO there.
5. Now that the local community new that both my sons had moved out to another country, they harassed me instead. I tried to stay home most of the time, but of course I couldn't stay trapped in the house or we would run out of food and basic supplies. Hence each time I left the house I was threatened or harassed by a group of men. They would claim that we leave our religion or otherwise we would not be able to stay here for long. They told us that they have already forced our sons to leave the country, now it won't be so easy for you to do so hence, leave your religion or we will harm you. On one occasion, I was heading home one day when I was suddenly followed by a group of men. They just followed me and stared as though they would like to kill me. I was terrified and quickly rushed home. Again we tried to seek help from the police, but they refused to do anything for us. After this incident I couldn't bare to leave the house and I was so terrified of what might happen to me that I couldn't even eat. I got quite sick during this difficult time.
6. After realizing that it was quite dangerous for my wife and I to stay in this city, we decided to move to Punjab. Again, it was quite difficult to sell our house here, as everyone knew we were ahmadi and hence we had to sell our house for a much lower price than acceptable. Finally we moved to [City 1], Punjab. Shortly after we had moved there, I was told that a good friend of mine, [name], who lived on the same street as us, [had] been killed along with his neighbour, [name], who was also ahmadi (See attached articles for details).
7. Pakistan is anything but safe for my wife and I and we decided that it is our turn to find a place that is safe for us. I have been through many tough times with my family and it is time for me to find a place where I am not scared and terrified of expressing who I am. A place where I am not worried about my life and my family when I'm walking down the street. This is when my daughter sponsored me to come visit Australia and now that I am here, I understand that this is what it feels like to be safe and protected.
[1] Department File [DELETED], folios 124–127.
The applicant also submitted to the Department:[2]
a)Article dated 28 May 2016, ‘PAKISTAN: Investigation failure leads to the killings of Ahmadis’, published by Stop the Persecution.
b)Article dated 16 June 2016, ‘Investigations underway: Same group behind recent Ahmadi Killings’, published in The Express Tribune;
[2] Department File [DELETED], folios 118–123
The applicant attended an interview with the Department on 21 January 2020.
The applicant submitted further documents to the Department in response to a s 56 Request for More Information and s 57 Invitation to Comment on Information:
a)Undated copy of certificate verifying applicant’s membership of Ahmadiyya Muslim Community;[3]
[3] Department File [DELETED]
b)Response to s 57 request:[4]
[4] Department File [DELETED]
You have travelled to [Country 2], [Country 3] and India. On top of this, your spouse has also travelled to [Country 3] a second time and Australia in 2011. These previous instances of international travel my lead me to doubt the credibility of your claimed fear of harm in Pakistan as you have been able to return there on numerous occasions. Please provide reasons why you did not seek protection on any of these previous travels.
I have travelled to [Country 2], however my son has been in [Country 2] since 2013. They have sought protection from the UNO in [Country 2] and have been faced with very difficult times. They still are waiting for a final decision and have no benefits from the government at all. They are not allowed to work and have to somehow manage to feed the family and provide themselves with shelter. Even after seeking protection they are not safe and are facing very difficult times in terms of having everyday necessities including food, health care, shelter, clothes, etc. Seeing this my wife and I could not stay there as we would have no health care. We are both are very old and need constant care from health professionals. Here in Australia we go to the doctors at a minimum twice per month. If we had sought protection in [Country 2], we would be there for years on end, I know many families are there without any benefits for more than 10 years and are living very tough lives. I could not do that o my wife and we would not have been able to afford health care or even everyday living expenses.
In terms of seeking protection in [Country 3], our beloved [current] leader of the Ahmaddiyya community) has strongly advised us against seeking protection there when travelling to attend the Jalsa Salana (Annual Conference). And as you know already we are strong followers of our religion and faith and cannot go against our Caliph.
Furthermore, the status of Muslims in India is also very unbalanced. The current media has been discussing how the Indian government does not want Muslims in India and they do not have the same rights as the Hindus in India. There has been various news about the difficulties and violence faced by Muslims in India. I also travelled there for a short period of time to attend the annual Jalsa.
Members of your family, who are also Ahmadi Muslims, have travelled back to Pakistan regularly for extended periods of time. This also reflects poorly upon your claimed fear of harm in Pakistan due to your religion. Would you like to comment?
I know that my children have visited Pakistan a few times. One of my son still lives in Pakistan and the other children have visited extended family members as well. However, they only go for short amount of time and lay low. Because they are there for a short period, the outside world, ie neighbours and the society do not know that they are Ahmadis, they don’t know who they are at all and can get by unnoticed before their return. They only travel to Pakistan to attend events such as funerals or weddings of very close family members. Other than that they came to visit us and leave quickly when we were still in Pakistan.
Please provide additional information regarding incidents of harm occurring after 2015 and prior to your travel to Australia in 2017.
“Two gunmen riding on a motorbike shot dead a cardiac surgeon, Dr. Mehdi Ali outside the Ahmadi graveyard in Chenab Nagar,” said local police official Ahmed Ali. He said the incident occurred early on Monday morning when the doctor was going to the graveyard with his family. The doctor was in Pakistan on a short visit to do voluntary work at the Tahir Heart Institute, a private institution that he himself helped build a few years back.
An Ahmadi man was killed in Chenab Nagar (Rabwa), the headquarters of Jamaat-e-Ahmadiyya, late on Monday. Two motorcyclists intercepted him and one of them shot him three times, said Amir Mahmood, a member of public relations department of Ahmadiyya Muslim Community.
The first incident occurred in May 2014 and the second occurred in January 2016. This incidents had a huge impact on my mental wellbeing as I had met both these individuals briefly in [City 1]. From these incidents I fesared my own life and my wifes as we now knew that we were not safe not even in [City 1]. We had to find a safer place to live. We did not want what is left of our lives to live in fear.
Please provide further details of harm feared if you were to return to Pakistan including type of harm, reasons for harm, and who you fear may harm you.
As mentioned previously in the statement that I provided you the Pakistani society and government does not regard Ahmadi Muslims as MUSLIMS. We cannot practise our religion freely and have to hide our identities if we wish to live in Pakistan. If the people of Pakistan find out we are ahmadis, this includes our neighbours, the government even the police, they discriminate against us, threaten us. The threats from our neighbours include threats of death and we truly fear for our lives. This happens only because we call ourselves Muslims.

On 16 March 2020 the applicant submitted the following documents to the Tribunal:
a)Copy of the Department’s decision record;[5]
[5] Tribunal file 2005266, Doc ID 7051468
b)Amended statement by [the applicant] dated 15 March 2020. This statement elaborates on details provided in the statutory declaration made on 7 March 2017. The applicant added the following details:[6]
[6] Tribunal file 2005266, Doc ID 7051470
1. My background:
I was born on [date] in India. During the Inda-Pak partition in 1947, our family migrated to Pakistan in the outskirts of Bahawalpur in a village called [Village 1] in the Punjab Province of Pakistan and I was [age] years old at that time and ever since we are settled in Pakistan. After migrating to Pakistan, my parent's main source of income was farming. To my knowledge, there were only two or three other Ahmadiyya families settled in that village. I attended the local primary school for couple of years and dropped my study before learning much about religious persecutions. After leaving school, I joined my parents in farming and that's how I started my life. I got married in 1958 with my wife [who] is also an Ahmadiyya from a village [in] Gujrat, Pakistan. When our family migrated from India, our family was comprised of my parents, two of my brothers and myself. Both of my brothers are still alive while one brother has moved to [a country] many years ago who has been granted protection visa there and the other brother and one of my sons [Mr D] is currently living in Karachi, Pakistan when both of my parents are deceased. Members of my family faced tremendous religious persecutions in Pakistan and that's how a number of my children and family members had to escape out of Pakistan and got their protection visas granted. Due to facing religious persecution, we were living a fearful life in Pakistan and finally I and my wife [arrived] in Australia on [date] January 2020 and applied for our protection visa in Australia on the ground of our religious persecutions faced in Pakistan so that we do not have to return back to Pakistan to face religious persecutions anymore.
2. Our Religion Background:
All of our family member's religion background is Ahmadiyya for generations and I am proud to be born as Ahmadiyya and remained steadfast to our religion of choice no matter how much of religious persecutions we faced in Pakistan.
3. My Educational Background:
I have completed only primary level of education in India and in Pakistan and that way I have a very limited educational qualification. However, I learned to read Quran in home and I do regularly practice my Ahmadiyya religion along with all other members of my family.
4. My Marital Background:
While I had been working in the agricultural farm in [Village 1] in Bahawalpur, I got married with my wife [in] 1958 who is also an [Ahmadiyya].
5. My family composition:
My family is comprised of nine members such as- four sons, three daughters, me and my wife. All of our children are currently married and having their own families either in Pakistan or in overseas. Our son [Mr E] is living in [Country 1] who has been granted protection visa there on the ground of his religious persecution in Pakistan. Our son [Mr F] is living in [Country 1] where he has been also granted protection visa. Our son [Mr G] is in [Country 2] since 2013 with his wife and children and they are registered with UNHCR waiting to get their protection visas approved. Our son [Mr D] is the only one amongst all my children living in Karachi, Pakistan with his wife and children. Again our daughter Mrs. [H] is living in [Country 1] for many years by way of her marriage with her Pakistani background Ahmadiyya husband who has been granted protection visa. Our daughter [Ms I] is also settled in [Country 1] through her marriage as her husband got his protection visa granted in [Country 1]. Also our daughter Mrs. [J] and her husband Mr. [K] and their family members were granted Subclass 201 Humanitarian Refugee visa to Australia granted by Australian High Commission in Islamabad given to the seriousness of their religious persecutions in Pakistan. Currently all of their family members are Australian citizen living in Adelaide where my wife and I are living in Adelaide since we arrived in Australia on [date] January 2020. Prior to our arrival in Australia, my wife and I were living in [City 1], Pakistan in a rental place since January 2014.
6. Religious Persecutions my family members and I faced in Pakistan:
As mentioned earlier that I studied only up to primary level of education and started working in the family agricultural farm at a very young age and worked in the farm till 1971. Ever since our family was settled in Bahawalpur in 1947, I have witnessed how much of religious persecutions members of our family have confronted during the entire period of our living in Bahawalpur. During our stay in Bahawalpur, our persecutions were from our next door neighbour and from our other neighbouring farmers who were sharing the same boundary of our agricultural land as well as from other mainstream Muslims in the region. Our neighbour was a Sunni family and as soon as they found out that we were Ahmadiyya migrated from India, we were receiving endless religious persecutions from them in the form of discrimination, boycott, non-cooperation, hatred, abuse and assaults. None of our neighbouring farmer's family members ever bothered to say hello to us for any reason and even if we wanted to talk to them just for courtesy, always they turned their back to us with no response. Our next door neighbour was throwing their garbage at the front of our house and that was because of their hatred toward us as we were Ahmadis and if my mother or father was asking them politely not to throw their smelly garbage in front of our house, they would abuse my parents in naked language calling us 'Mirzai' or 'Kafir' 'infidel' etc degrading and insulting us and our religion. When our next door farmer was cultivating their land, often used to push their boundary line to our side and in 10/15 years of time we noticed our block of land was much smaller than the size was 15 years ago. Our neighbour was often deliberately damaging our irrigation sprinkler to ruin our crops out of their hatred on us. If my father or any of us were simply asking them to stop damaging our sprinklers, we were abused, insulted and assaulted and unfortunately we couldn't challenge them being members of the minority Ahmadiyya community. Finally my father died in 1966 suffering many years of endless religious persecutions. In 1968, two years after the death of my father, our next door neighbour occupied a block of land close to our house producing some copies of false and fabricated documents claiming that my father sold that block of land to them before his death whereas we had the original documents of that block of land and there was no reason why our father would be selling that block of land without our knowledge. However, as my brother and I challenged our neighbour producing our documents in front of some local people in a meeting to resolve our dispute, I was beaten in front of everyone in the meeting and also my brother was assaulted reiterating that if we ever try to create any issue with that block of land, we would pay a serious consequence whereas that was our land. Our neighbour exactly knew that we wouldn't be able to fight them being members of the Ahmadiyya community and that's why they have fraudulently and forcefully and intentionally occupied our block of land by producing some false documents. We were obviously devastated for taking away our block of land in such a fraudulent way but we couldn't do anything about it because we were defenceless Ahmadiyya in that area. We went to the police to report our assault incident by our neighbour however police did not show any interest to write the report as because the incident was between the Ahmadis and Sunnis and that is the usual attitude of police in Pakistan if there is anything to do with Sunnis and Ahmadis. However, after our land was taken away and my brother and I was assaulted, we decided to move out of the area. Again, as our property was for sale, no one wanted to buy our property with the actual price. Finally we sold our property in 1971 at a very cheaper price to one of the local farmer in Bahawalpur. By then anti-Ahmadiyya resentment was growing in Pakistan and many Ahmadis were displaced and killed especially in the remote areas of Pakistan and we brothers decided that would be an idea to move to the urban areas or big cities for our safety. My oldest brother decided to move to [City 1] with our mother when my other brother and I decided to move to Karachi. I with my wife and children moved purchased a cheap house at [Town 1] Town in Karachi in February 1972 and lived there till 1995. While my brother moved to another part of Karachi. After moving to [Town 1] town, I was in a financial difficult situation with all those relocation expenses and the children in home. I was working as a [worker] in a [industry] for over a year for my family's support. In 1973, I started working as a contractor in [Town 1] Town area [and] I continued to run that business for about 15 to 20 years. During my work as a [contractor], I was harassed and mistreated time to time by some of the customers once my Ahmadiyya religion background was discovered. In occasions, part of my payment was deliberately hold up by customers taking advantage of my region background. Moreover, some of the customers threatened me that I would be reported to the Khatme Nubuwat members if I make too much of noise for payments matter and in that way some of the customers avoided making part of their payments which means I was [working] for no profit because I was an Ahmadiyya. After living so many years and working in the [industry], my Ahmadiyya religion background was not a secret in [Town 1] Town anymore and as a result I was often facing discrimination and hatred from people one way or the other and that's when I decided to move out of [Town 1] Town to [another location] before facing any serious harm. However, after relocating to [this location] in 1995, our Ahmadiyya religion background was again somehow discovered to the local Moulavis. Our residence was close to our Ahmadiyya prayer centre and I was regularly praying and often volunteering longer hours in various activities for our Ahmadiyya community complex and that way probably I have drawn the attention of the local religious fanatic Moulavis that I was an Ahmadiyya. The local fanatic Moulavis often were asking me questions about Ahmadiyya religion on my way to and from our prayer centre and also were trying to find out what was my role in the community and as I was not keen to discuss with them anything about my religion, they were having their eye sore on me and my family members. In a few occasions those fanatics or their fellows visited my residence inviting me to join them in the Mosque to pray with them instead of remaining as an infidel Ahmadiyya which was very irritating to me being an Ahmadiyya. I tactfully tried to avoid them but they informed our Sunni neighbours Sunni that we were Ahmadis and as a result we started to face persecution in our neighbourhood in the form of discrimination, boycott and non-cooperation once again by our neighbours. In January 2012, my son [closed] his [shop] and went to the local Ahmadiyya prayer centre for his nightly prayer and on his way home, a group of men dragged his bike of and my son received deep injury. We went to report the incident to the police and also they wrote our report advising us that police would contact us for any reason but they never contacted us with regard to our report nor the police took any action to our complain. After waiting for a while, we contacted the police however police flatly denied to proceed with this matter anymore and we were greatly disappointed by the police attitude which is a common practice by the police to Ahmadiyya community members in Pakistan. After that incident, my son [Mr F] was fearful to run his business rather tried to escape out of Pakistan. In June 2012, my son [Mr F] went to [Country 1] and he has been granted protection visa there. As my son [Mr F] escaped to [Country 1], the anti-Ahmadiyya local Moulavis attention was on my son [Mr G] and that's when [he] left for [Country 2] with his wife and children in 2013 and registered themselves with the UNHCR currently waiting for his protection visa. As both of my son escaped out of Pakistan, the full force of the religious persecution was on me and my wife. More often we were threatened and harassed and insulted. In that circumstance before any serious harm happens to us, I decided to move out of Karachi and rented a place in [City 1] in January 2014 with our expectation to live a safer life in [City 1] to practice our religion peacefully. However, after moving to [City 1] we found out [City 1] was not a safer place for Ahmadis anymore as expected. So many anti-Ahmadiyya elements are operating in [City 1] [and] any Ahmadiyya is found to be actively involved in religious activities are often in trouble directly or indirectly. As I was attending [a] Centre in [City 1] for my daily prayers, a number time I was shouted and abused by those anti-Ahmadiyya elements in the street to and from my home in [City 1]. Once I was stopped and asked to leave practising Ahmadiyya religion rather I should convert to Islam. I avoided them a number of time however I remained in constant fear. Few months prior to my arrival in Australia which was sometimes in the month of June or July 2017, a group of 4/5 people came to the front door of our residence in [City 1] and as I opened the door, they introduced themselves that they were members of the Khatme Nubuwat Organisation to investigate a preaching allegation against me. In fact, I recognised them as they were the same people shouted and abused me in the streets as I was either on my way to the Ahmadiyya centre or to the shops. I tried to find out who alleged me for preaching and it was revealed that I was preaching Ahmadiyyat to a grocery shop owner in [City 1] where I do my daily groceries and his name was [Mr L]. In fact I didn't even know anyone in that name in [City 1]. I realised straightway that it was a made up allegation to take on me in the name of a preaching allegation. But I was sure that they have targeted me for some reason which I didn't know. In that circumstance, I politely explained them that as I don't even know that [Mr L] in [City 1], how I can possibly preach him without even knowing that person. I requested them to take me to that person and if it is proven that I was preaching him Ahmadiyyat, I am prepared for any punishment. In that situation, they left my place with an excuse that they would further find out about the allegation and they would return back with a warning that I have to be prepared for a serious consequence if the allegation is found to be true. Whereas they knew that was a made up allegation and that's what they often purposefully do when they target anyone. I was shocked and panicked and also wondering why an [age] years old man like me should be a target when I did not do anything wrong to anyone other than simply holding my faith in a religion of my choice. On the other hand, I was extremely fearful knowing what has happened to people of our Ahmadiyya community in the past with similar false preaching allegation especially when Khatme Nubuwat members are involved. In that circumstance, I spoke to my daughter in Australia explaining our circumstance in Pakistan and that's when my daughter [advised] us that escaping out of Pakistan would be the safest course for us and also she assured to support our visa application to Australia. Therefore, we applied for our visa to Australia with our daughter's support and the visa application was approved and we arrived in Australia on [date] January 2017 and applied for protection visa on 08 March 2017 so that we do not have to return back to Pakistan to face religious persecutions anymore. Please note, if there was no religious persecutions or didn't fear any harm in Pakistan, there was no need to escape out of Pakistan to Australia at my [age] years of age to apply for refugee status when I tried all my life to live in Pakistan and relocated a number of time to live safely whereas we couldn't remain safe in Pakistan because of our religion faith Ahmadiyya.
7. My family members Relocation history:
My family members relocated from India to Bahawalpur in Pakistan in 1947. Being religiously persecuted in Bahawalpur, I with my wife and children relocated to [Town 1] Town in Karachi in February 1972 and we lived there till April 1995. Again, I relocated from [Town 1] Town to [a location] in Karachi in April 1995 and lived there till February 2013. In January 2014, we relocated to [City 1] and lived there till January 2017. In January 2017, we relocated to Australia. My elder brother previously moved to [City 1] and from [City 1] he went to [a country] many years ago where he has been granted protection visa while another brother moved to Karachi is still living there as he couldn't manage to get a visa to escape out of Pakistan. My son [Mr E] is living in [Country 1] with his wife and children as he has been granted protection visa on the basis of his religious persecution in Pakistan. My son [Mr F] is living in [Country 1] where he has been also granted protection visa. Our son [Mr G] is in [Country 2] with his wife and children registered with UNHCR waiting for the last six years to get his protection visa approved. Our son [Mr D] is the only one amongst all my children living in Karachi, Pakistan with his wife and children. Again our daughter Mrs. [H] is living in [Country 1] for many years by way of her marriage with her Pakistani background Ahmadiyya husband who has been granted protection visa in [Country 1], Our daughter [Ms I] is also settled in [Country 1] through her marriage and her husband got his protection visa granted in [Country 1]. Also our daughter Mrs. [J] and her husband Mr. [K] and their family members were granted Subclass 201 Humanitarian visa to Australia granted by Australian High Commission in Islamabad given to the seriousness of their religious persecutions in Pakistan. Currently all of her family members are Australian citizen living in Adelaide where my wife and I are living since we arrived in Australia on [date] January 2017.
My wife and my Travel History:
My wife and I visited [Country 3] and India to attend our [event] and also [Country 2] together and also my wife visited Australia previously which are as follows:
• My [wife] attended [a] Convention in [Country 3] on [date] July 2007 and returned back to Pakistan on [date] August 2007-
• I attended [a] Convention in Qadian in India on [date] December and returned back to Pakistan on [date] January 2008-
• My wife and I attended [a] Convention in [Country 3] on [date] July 2008 and returned back to Pakistan on [date] August 2008-
• My wife visited Australia on [date] March 2011 and returned back to Pakistan on[date] June 2011 on the occasion of attending [a] Convention in Sydney and to visit daughter's family and sightseeing-
• My wife and I travelled to [Country 2] on [date] July 2015 and returned back to Pakistan on [date] September 2015 to visit their son [Mr G] who is registered with UNHCR and waiting in [Country 2] for six years with his wife and children to get their refugee status approved-
• Me and my wife's visitor visa to Australia was granted offshore on 30 December 2016 and arrived in Australia on [date] January 2017 and on 08 March 2017 our application for protection visa was lodged and that application was refused by the department on 24 February 2020-
8. What is likely to happen if we return back to Pakistan:
As mentioned above that my family members and I have suffered religious persecutions in the past in Pakistan which has been explained above. Therefore, there is always a possibility of confronting serious harm being members of the Ahmadiyya community if we return back to Pakistan as there is no safe haven for Ahmadis in any corner of Pakistan. We have relocated to various places within Pakistan a number of time to avoid our religious persecution however we couldn't avoid. The level of religious persecutions we have experienced for so many years in Pakistan as explained earlier, we are likely to experience the same if not more upon our return back to Pakistan. So, there is no point of returning back to Pakistan where there is always a possibility of serious harm for us being a members of the Ahmadiyya community. We do not have to die to prove that we had religious persecution in Pakistan. Similar level of religious persecutions were faced by our sons in Pakistan making them escaping out of Pakistan to [Country 1] where they have been granted protection visas and still our son [Mr G] is waiting in [Country 2] to get his protection visa justifies the level of religious persecution we have in Pakistan otherwise there was no reason for my son [to] live in [Country 2] for six years and us to move out of Pakistan to Australia to apply for protection visa in our old age.
9. Protection of Ahmadis in Pakistan by the Authority:
Pakistani authority does not protect any Ahmadis in Pakistan in any way. Authority is the one introduced the anti-Ahmadiyya blasphemy law through the constitutional amendment to punish and persecute the Ahmadis. Authority is the one changed the Pakistan penal code by inserting 295a, 295b and 295c to persecute Ahmadis declaring Ahmadis non-Muslim. Persecution of Ahmadis in Pakistan is a state sponsored persecution.
c) DFAT Country Information Report: Pakistan, dated 20 February 2019;[7]
[7] Tribunal file 2005266, Doc ID 7051471

On 15 December 2020, the applicant submitted to the Tribunal:
a) Death Certificate issued by the State of South Australia reporting the death of [the] applicant’s partner, on [date] March 2020;[8]
b) Submissions by the applicant’s Authorised Representative making legal arguments in support of the applicant’s review and incorporating a previous statement submitted by the applicant to the Department described in paragraph 30(b).[9]
[8] Tribunal file 2005266, Doc ID 7943783
[9] Tribunal file 2005266, Doc ID 7943784
On 3 December 2022, the applicant submitted to the Tribunal:[10]
a)    A letter from the applicant’s son, [Mr G], who lives in New Zealand, stating his willingness to take the applicant back with him to New Zealand;
b)    Copy of Visitor (subclass 600) visa granted to his son, [Mr F], currently living in [Country 1], dated 29 November 2022;
c)    Copy of [Mr F]’s passport;
d)    List of applicant’s children, including their dates of birth and country of residence.
[10] Tribunal file 2005266, Doc ID 10513200
On 9 December 2022, the applicant submitted to the Tribunal:
a)    Letter from the applicant’s granddaughter, [Ms A], addressing the request by the Tribunal for updated details of the applicant’s medical condition;[11]
b)    Letter from the applicant’s son, [Mr G], re-stating his willingness to bring the applicant to live with him in New Zealand, as per the submission noted in paragraph 33(a);[12]
c)    The applicant’s Representative provided general comments on the Tribunal’s request for further information and restated the applicant’s previous protection claims.[13]
[11] Tribunal File 2005266, Doc ID 10533189
[12] Tribunal File 2005266, Doc ID 10533190
[13] Tribunal File 2005266, Doc ID 10533192
Priority hearing
The applicant applied for and was granted a priority hearing. This decision was justified by written medical opinion evidence supported by copies of the applicant’s medical records held in [a] Medical Centre, Adelaide, in the State of South Australia. The medical records are on the letterhead of the Government of South Australia, SA Health. The Tribunal accepts the medical records to be genuine documents and evidence of the truth of their contents.
The applicant’s hospital records were the subject of an overarching medical report provided by [a named doctor]. The Resident’s report was consistent with the applicant’s hospital medical records. The report was written on the letterhead of the ‘Government of South Australia, SA Health.’ In summary, the medical report opines that the applicant has a ‘life limiting illness with a poor prognosis of weeks to months.’
The Tribunal was also provided with a medical report from [a named doctor]. The report is consistent with the other medical evidence. The report refers to the applicant suffering from [a medical condition] for which he is undergoing treatment and [an illlness], which is being treated with medication. The applicant is suffering depression and paranoia. These conditions are being treated with medication. [The doctor] provided an extensive list of medications and injections that comprise the applicant’s treatment plan. It is unnecessary for the Tribunal to reproduce that list in this decision.
DFAT assessment of societal and official discrimination of Ahmadis in Pakistan
Current DFAT information on Pakistan states that discrimination of Ahmadis in Pakistan is ‘pervasive and well-documented’[14] and that Ahmadis are at high risk of official and societal discrimination and moderate risk of violence throughout Pakistan.[15]
[14] DFAT Country Information Report Pakistan, 25 January 2022, 3.41
[15] DFAT Country Information Report Pakistan, 25 January 2022, 3.44
As a religious minority they are officially designated as non-Muslims and are banned from publicly practising their faith. Due to this official designation as non-Muslims, they face many barriers in accessing government services, including having to officially denounce the Ahmadi faith to procure official documents such as passports.[16]
[16] DFAT Country Information Report Pakistan, 25 January 2022, 3.42
Non-state-based violence and organised hate campaigns against Ahmadis have worsened in recent years, including killings, public rallies by Tehreek-e-Labbaik Pakistan (TLP) protesting any weakening of legal discrimination against Ahmadis and ‘discrimination and ostracism in employment and everyday life.’[17]
[17] DFAT Country Information Report Pakistan, 25 January 2022, 3.43
Although some large urban areas contain enclaves for religious minorities that provide some refuge from violence by non-state actors, DFAT states that Ahmadis generally avoid these in order ‘to reduce the risk of being targeted’, whilst official discrimination remains countrywide.[18]
[18] DFAT Country Information Report Pakistan, 25 January 2022, [5.24]
The evidence at hearing
The Tribunal determined in accordance with the Guidelines published by the President of the Administrative Appeals Tribunal for the conduct of review hearings, that the applicant is a vulnerable person due to his chronic and life limiting medical conditions. The demeanour of the applicant and his appearance during the hearing was consistent with the medical evidence. Nevertheless, the applicant endeavoured to apply himself to the proceeding within the constraints imposed on him by his evident poor state of health.
Having considered the evidence, including the written evidence the applicant provided to the Department and the Tribunal, the Tribunal is satisfied the applicant is a lifelong practitioner of the Ahmadi faith. According to the DFAT report (25 January 2022) Ahmadis consider themselves Muslims and follow the teachings of the Qur’an. The Ahmadis believe Ghulam Ahmad was the prophet. This belief puts the Ahmadis into direct conflict with the beliefs of the vast majority of Muslims in Pakistan,[19] the applicant’s home country.
[19] DFAT Country Information Report Pakistan, 25 January 2022 [3.28]
Sunni and Shi’a Muslims believe the Prophet Muhammad was the last prophet. Consistently with this belief, the Constitution of Pakistan discriminates against Ahmadis: it declares Ahmadis are non-Muslims. People who identify as Muslim, that is Sunni and Shi’a Muslims, are legally justified by operation of the Constitution of Pakistan to discrimination against and to denounce Ahmadiyya followers as non-Muslim followers of a false prophet: DFAT report [3.39]–[3.44]. In this context DFAT assesses that Ahmadis are at high risk of official and societal discrimination and moderate risk of violence throughout Pakistan.
The Tribunal gives significant weight to the DFAT assessment about the high risk of societal and official discrimination and the moderate risk of violence to which Ahmadis are subjected throughout Pakistan.
The medical evidence relied on by the applicant clearly establishes the applicant would be unable to fend for himself if he is returned to Pakistan, and he would be dependent on the good will of others, particularly medical personnel if he is returned to Pakistan. The Tribunal will now consider further the evidence and country information that is relevant and material to this conclusion.
The Tribunal summarised the relevant medical evidence at [40]–[42] of this decision. The applicant’s granddaughter [Ms A] gave evidence that the applicant is largely dependent on a walking frame and family members with whom he lives, to assist him to dress and move about the house. The applicant is no longer able to regularly attend the Mosque – previously in Australia he attended daily – due to his illness, he is confined to daily prayers and worship at home.
[Ms A]’s evidence is consistent with the medical evidence as to the progressive nature of the applicant’s medical conditions. It is consistent with the applicant’s prognosis as it was described by the Medical Registrar [in] these terms: [a] ‘life limiting illness with a poor prognosis of weeks to months.’ The Tribunal found [Ms A] to be a reliable witness in this review, and the Tribunal gives significant weight to her evidence, considered in conjunction with the applicant’s medical evidence.
The Tribunal is satisfied the applicant, if he is removed to Pakistan now or in the reasonably foreseeable future, would be subjected to a real chance of being denied access to necessary medical assistance because of his religion, a factor the applicant may be unable to hide when seeking palliative care. In this regard, it is important to recall an earlier observation in this decision: that Muslims throughout Pakistan – the great majority of the population – are officially encouraged to denounce, and in effect, discriminate against and deny people of the Ahmaddiya faith access to basic services: see [43]–[46] above. This conclusion also draws on the DFAT country information report assessment that Ahmadis are at high risk of official and societal discrimination and moderate risk of violence throughout Pakistan.
The DFAT country information report provides an instructive example of societal and official discrimination against Ahmadis on religious grounds., In the following example the government of Pakistan dismissed from a position on a senior economic advisory council, a Princeton educated economist because of his Ahmaddiya faith. The government made that decision to satisfy the demands of a religiously motivated political organisation that was calling for all blasphemers, including Ahmadis be punished. DFAT reports at [2.46]–[2.47]:
Tehreek-e-Labbaik Pakistan (TLP) is an influential Sunni extremist political party and sectarian religious movement founded by Khadim Hussain Rizvi in 2015. TLP rose to prominence in 2018 after organising massive street demonstrations to protest the acquittal of accused blasphemer Asia Bibi (see Blasphemy). Their goals include punishing ‘blasphemers’ (especially Shi’a and Ahmadis) and pursuing the imposition of Sharia law throughout Pakistan.
TLP has organised multiple large street protests and sit-ins, some of which have turned violent. They are also alleged to have been involved in extrajudicial killings and attempted assassinations. Their tactics have won concessions from the government, including the removal of Princeton economist Atif Mian from the Prime Minister’s Economic Advisory Council on the basis of his Ahmaddiya faith.
The medical evidence, written statements in the Department and Tribunal files, and the oral evidence, considered in combination with the DFAT assessment ‘that Ahmadis are at high risk of official and societal discrimination and moderate risk of violence throughout Pakistan’ and the supporting information,[20] is sufficient evidence to establish to the satisfaction of the Tribunal this conclusion:
· the existence of a real chance that the applicant’s religion, combined with his diagnosed chronic medical condition – a condition that has rendered him vulnerable and unable to effectively assert himself in day to day life – would result in him being denied access to basic medical services such as palliative care, and being subjected to significant physical ill treatment and harassment, in the context of him seeking necessary medical assistance, support and to subsist in the final phase of his life.
[20] Ibid [2.47] and [3.39]–[3.44]
The Tribunal is satisfied the real chance of harm the applicant would face if he were returned to Pakistan amounts to serious harm.
The Tribunal is also satisfied the essential and significant reason for the existence of the real chance of harm is the applicant’s religion.
The Tribunal is also satisfied that the real chance of serious harm would derive from systematic and discriminatory conduct directed against the applicant owing to his religion. The Tribunal is also satisfied that the evidence considered in conjunction with the DFAT country information report, establishes to the satisfaction of the Tribunal that the real chance of serious harm relates to all areas of Pakistan.
The applicant’s chronic state of health, his poor prognosis and the high risk of societal and official discrimination faced by Ahmadis throughout Pakistan, leads the Tribunal to find that effective protection measures would not be available in Pakistan to this exceptionally vulnerable applicant.
Furthermore, the Tribunal is satisfied the applicant’s religion is fundamental to his identity and conscience, and that in this final stage of his life, his daily worship is essential to his conscience. It would not be reasonable for the applicant to modify his faith-based practices, to deny or not disclose his religion when seeking medical care, or to hide his faith in Pakistan to avoid being identified as a person of the Ahmaddiya faith.
Having considered the applicant’s claims individually and cumulatively, and having considered the evidence as a whole and in combination with the cited country information, the evidence is sufficient to establish to the satisfaction of the Tribunal the existence of a real chance the applicant would be subjected to serious harm for reasons of his religion, that being a reason that meets the provisions of s 5J(1)(a) of the Act, if he is removed to Pakistan now or in the reasonably foreseeable future. Accordingly, the applicant satisfies s 36(2)(a) of the Act.
The Tribunal is also satisfied religious discrimination is the essential and significant reason for the real chance of persecution to which the applicant would be subjected if he is removed to Pakistan now or in the reasonably foreseeable future.
Consequently, the Tribunal is satisfied the applicant has a well-founded fear of persecution for a reason specified in s 5J(1) of the Act, namely religion, and that the applicant meets the definition of refugee as set out in s 5H of the Act.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
The second-named [applicant]
According to the Death Certificate that pertains to [the applicant’s wife] that was issued on
[date] July 2020 by the relevant authorities in the State of South Australia, the second-named [applicant], died in South Australia on [date] March 2020. The Tribunal accepts the Death Certificate as evidence of the truth of the contents of the document.
The fact that the second-named applicant is now deceased is determinative of her application for a protection visa. Her death means that by operation of law, her visa application is no longer extant, and that the Tribunal has no jurisdiction to determine her application. Accordingly, no further consideration of her application is necessary.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the first-named applicant satisfies s 36(2)(a) of the Migration Act.
The Tribunal finds it has no jurisdiction to determine the application of the now deceased, second-named applicant.
Peter Haag
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 5122

19 December 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Jurisdiction

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Remedies