2008366 (Refugee)

[2023] AATA 2878

2008366 (Refugee) [2023] AATA 2878 (20 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Muhammad Iqbal Chaudhry (MARN: 1174774)

CASE NUMBER:  2008366

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Wayne Pennell

DATE:20 June 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the matter for reconsideration with the direction that the Applicants satisfy section 36(2)(a) of the Migration Act.

Statement made on 20 June 2023 at 8:18am

CATCHWORDS

REFUGEE – Protection Visa – Pakistan – religion – Sunni Muslim – attempted recruitment by extremist group – threatened by extremist group – gender-based recruitment – best interests of children – delay in applying for protection – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5H, 5J, 36, 65

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

1. This is an application for a review of a decision made by a Delegate of the Minister for Home Affairs (‘the Delegate’) to refuse to grant the Applicants Protection visas under section 65 of the Migration Act 1958 (Cth) (‘the Act’).[1]

   [1]The Delegate’s decision was provided to the Applicant on 14 May 2020.

2. The Applicants, who claim to be citizens of Pakistan, applied for Protection visas.[2] The Delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicants being removed to Pakistan, there was a real risk they would suffer significant harm. The Delegate refused to grant the visas[3] on the basis that the Applicants were not a refugees as defined by the Act[4] and therefore they were not persons in respect of whom Australia has protection obligations.[5] 

   [2]The Applicants’ application was received by the Department of Home Affairs on 21 October 2017.

   [3]The Delegate’s refusal was made on 14 May 2020.

   [4]Migration Act 1958 (Cth), s 5H.

   [5]Migration Act 1958 (Cth), s 36(2)(a), s 36(2)(aa).

3. The Applicants were represented in relation to the review, and they filed an application with the Tribunal for a review of the Delegate’s decision.[6] At a subsequent time, the Tribunal wrote to the Applicants and advised that it had considered all the material relating to their application but was unable to make a favourable decision on that information alone.[7] 

   [6]The Applicant’s review application was filed with the Tribunal on 17 May 2020.

   [7]The Tribunal advised the Applicant on 31 March 2023.

4. The Tribunal invited the Applicants to attend an in-person review hearing which was originally scheduled for 4 May 2023. On the Tribunal’s own initiative, the hearing was rescheduled to 12 May 2023. The Applicants responded to the hearing invitation,[8] however only the first Applicant attended the hearing at the time, date and place of when it was scheduled. 

   [8]The Applicants returned the hearing invitation form to the Tribunal on 9 May 2023.

   CRITERIA FOR A PROTECTION VISA

5. The measures for a Protection visa are set out in the Act[9] and Schedule 2 to the Migration Regulations1994 (Cth). An Applicant for the visa must meet one of the alternative criteria as provided in the Act.[10]  That is, the Applicant 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.

   [9]Migration Act 1958 (Cth), s 36.

   [10]Migration Act1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).

6. The Act 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, or the Tribunal at a review hearing, is satisfied Australia has protection obligations because the person is a refugee.[11]

   [11]Migration Act1958 (Cth), s 36(2)(a).

7. 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.[12]  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.[13]

   [12]Migration Act1958 (Cth), s 5H(1)(a).

   [13]Migration Act1958 (Cth), s 5H(1)(b).

8. The Act also provides that 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, and 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.[14] 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 the Act, which are extracted in the attachment to this decision.[15]

   [14]Migration Act 1958 (Cth), s 5J(1).

   [15]Migration Act 1958 (Cth), s 5J(2) – s 5J(6) and s 5K – s 5LA.

9. If a person is found not to meet the refugee criterion in the Act,[16] that person may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm (‘the complementary protection criterion’).[17] 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 expressly provided in the Act, which are extracted in the attachment to this decision.[18]

   [16]Migration Act 1958 (Cth), s 36(2)(a).

   [17]Migration Act 1958 (Cth), s 36(2)(aa).

   [18]Migration Act 1958 (Cth), s 36(2A) and s 36(2B).

10. The Act makes provision for, and clearly defines that a non-citizen will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on that person; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.[19]

    [19]Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhuman treatment or punishment and degrading treatment and punishment are further defined in the Migration Act 1958 (Cth), s 5(1).

11. Notwithstanding that, the Act goes on to provide certain circumstances where it is taken not to be a real risk that they will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm ; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.[20]

    [20]Migration Act 1958 (Cth), s 36(2B).

    COUNTRY OF REFERENCE AND APPLICANTS’ IDENTITY

12. The Applicants claim to be citizens of Pakistan and provided copies of their passports to authenticate this claim. The Tribunal accepts their identity and based on the evidence they provided, and in the absence of any other evidence to the contrary, the Tribunal finds that Pakistan is their country of nationality and their receiving country for the purposes of the refugee and complementary protection assessments.[21] 

    [21]Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).

13. Based on the evidence, the Tribunal is satisfied the Applicants do not have a right to enter and reside in any other country. Therefore, the Tribunal finds that they are not excluded from Australia’s protection obligations.[22]

    [22]Migration Act 1958 (Cth), s 36(3).

    MANDATORY CONSIDERATIONS

14. In accordance with Ministerial Direction No. 84 made under the Act,[23] 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 (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    [23]Migration Act 1958 (Cth), s 499.

    CONSIDERATION OF APPLICANTS’ CLAIMS AND THE EVIDENCE

15. The issue in this matter is whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicants being removed to Pakistan, there exists a real risk that they will suffer significant harm or there is a real chance they would suffer serious harm; and whether they are persons in respect to whom Australia has protection obligations as defined in the Act.[24]

    [24]Migration Act 1958 (Cth), s 36(2).

16. The mere fact that the Applicants claims they have a fear of persecution for a particular reason does not establish either the genuineness of their asserted fear or that it is well-founded or that it is for the reason claimed. Similarly, because they claim that they face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to significant harm. It remains for the Applicants to satisfy the Tribunal that all the statutory elements are made out.

17. The Tribunal is not required to make the Applicants’ case for them. It is their responsibility to specify all particulars of their claims to be persons in respect of whom Australia has protection obligations and to provide sufficient evidence to establish their claims.  The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of their claims, or to establish or assist in establishing their claims.[25] Nor is the Tribunal required to accept uncritically any and all the allegations made by the Applicants.[26]

    [25]Migration Act 1958 (Cth), s 5AAA.

    [26]Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596; Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169–170.

    APPLICANTS’ BACKGROUND AND CLAIMS

18. The first Applicant told the Tribunal that her religion is Islam and since birth, she has always been a Sunni Muslim. Her husband is of the same religious faith and they have each become more devoted to their religion since arriving in Australia.

19. The first Applicant’s parents and her brother remain living in Pakistan.  She completed High School in [year] and later worked as an [Occupation 1] until just prior to travelling to Australia.

20. In 2014, she married the second Applicant and they have three children. On [date] September 2016, the first, second and third Applicants arrived in Australia. At that time, the third Applicant was only [age], however he is now aged [age]. Their visas were only valid for a month and were due to expire on [date] October 2016.  Since the Applicants arrived in Australia, the fourth Applicant was born onshore. He is aged [age].

21. The first Applicant told the Tribunal that she was not currently employed, however her husband operates a [business]. When asked if she had travelled to any other overseas destinations apart from Australia, she said that in April 2015, she and her husband travelled to [country]. They stayed for a month before returning to Pakistan.

22. When discussing her protection claims, the first Applicant told the Tribunal that her life, and the lives of her husband and family, were in danger if she returned to Pakistan. She explained that when she married her husband, they lived together. However, when she got pregnant, she moved in to live with her own parents because she did not have any parents-in-law. 

23. When she fell pregnant with the third Applicant, she was advised by her doctor to exercise daily and get plenty of fresh air. There was a park nearby to her parent’s house and she took her daily walks to the park. It was there on one of her walks that she saw a group of women gathered. She went over and engaged with them and they were discussing deen (religion) and undertaking tabligh (proselytising Islam). She said that the ladies did this in a way which made her feel that ‘they sounded like they were right’. 

24. The first Applicant went on to claim that in the beginning, she was attracted to what the women were saying because they were quoting everything from the Quran. They were urging all the women who attended the gathering to follow the strict Islamic scripture. She said that without realising it, this became the preaching of extremists.

25. At approximately mid-2016, the first Applicant was convinced by the group that she needed to learn how to defend herself. She started travelling out of town with the women in vehicles to an open area which was located about 10 to 15 minutes from the city. Although, she claimed that she did not actively participate in any of these classes because she was pregnant, she was merely an observer. For the first two to three weeks, only self-defence classes such as Karate instructions were given. After that, the women progressed into teaching the others how to shoot guns, and then progressed to teaching the women how to put on suicide belts and become martyrs. The first Applicant said that the women showed their true colours, and they wanted her and the others to convince their partners or husbands to participate in terrorist activities. This was when she stopped attending the meetings.

26. The first Applicant claimed that she mentioned this to her husband, and he forbid her to attend any more of the gatherings. As a consequence of not going to the gatherings, she received messages from the women who told her that she should still follow them or at least keep quiet and not tell anyone what they had been preaching.  She claimed that they made threats that she could end up losing everyone’s life including her own and her family’s life.

27. The first Applicant went on to say that after a number of days of not attending the meetings, some women involved in those park meetings came to where she was living and spoke to her. They asked her why she had not been attending their meetings. She gave the excuse that she had not been feeling well because of her pregnancy.

28. After about another two to three weeks, the women returned to see her. They again asked her why she had not returned to their meetings. This time she told them that she did not agree with what they were doing and no longer wanted to be a part of their group. The first Applicant was told by the women that she knew too much, and they could not leave her alone. She had to join them or they would ‘finish’ her. If she did not come to the meetings, someone will come and kill her. The first Applicant said that this scared her.

29. After being visited by the women for the second time, she told her husband about the threats. The first Applicant said that her husband was scared by what she told him, and they went to the police to report what had happened, however the police did not take them seriously and declined to help.

30. The first Applicant said that sometime after her son was born in June 2016, the women returned to her house. They told her that they knew she had reported them to the police. Their threats got more serious after that.

31. It was after that visit that she and her husband considered that because their lives were threatened, they would travel to Australia, and in September 2016 the left Pakistan.

32. The first Applicant claimed that there was no safety in Pakistan as anarchy and restlessness was on the rise and Pakistan as a state did not have enough resources to cope with all those problems. She said that the authorities get so many complaints like hers that they do not take them seriously and she claimed that she cannot expect help from the police.

33. She claimed that she was applying for protection because she believes that Australia is a peaceful and peace loving country and she can live here peacefully without being harmed or threatened by others.  She also claimed that she strongly believes that her life, as well as the lives of her family, would be at risk if she returned to Pakistan.

34. In summary, the claims outlined within the application are that the first Applicant was born and raised as a Sunni Muslim in a well-off family in Faisalabad. She worked as an [Occupation 1] in Faisalabad. She is very religious and attended a religious school for approximately three years in her late teens. She did not complete her studies and stopped studying in [year] after she got married. It was when she was pregnant with her first child in Pakistan that she became involved with a religious group in Faisalabad which turned out to be extremist in nature.

35. When she tried to dissociate and distance herself from this group, she was threatened by members of the group on more than one occasion. She and her husband attempted to report the group to the police, but the authorities were not interested in the matter.

36. It was the Applicants’ fear that they returned to Pakistan, members of this group will harm them. The first Applicant believes they will target her because she is a liability to them: she knows too many of their secrets. She believes that relocation within Pakistan is not an option as the group will be able to track her and her family wherever they might go in Pakistan.

37. In regard to the specifics of the claims she had earlier raised in the application and within her interview with the Delegate, the Tribunal found that when she testified before Tribunal, there were some inconsistencies in her evidence to her earlier explanations of the circumstances. 

38. However, the Tribunal accepts that given that it is several years since she visited that park and interacted with the women, and given the passage of a considerable amount of time between her application, her interview with the Delegate and the review hearing, it is understandable that from time to time her recollections of the events may differ and be inconsistent. Although there are some inconsistencies identified, overall, the Tribunal found that her evidence was satisfactorily consistent with her earlier disclosures and the claims she raised. 

39. In consideration of the claims as they are outlined within the Protection visa application, the first Applicant’s interview with the Delegate and her testimony at the review hearing, the Tribunal considers the importance of an accurate timeline of the events which have transpired as per the claims made, along with other relevant information or evidence.

DATE

EVENT DETAILS

[date]

The first Applicant was born. She is currently aged [age].

[date]

The second Applicant was born. He is currently aged [age].

12 March 2008

The second Applicant applied offshore for a Tourist visa.

2 May 2008

Tourist visa granted to the Second Applicant. The visa ceased on 4 November 2011.

[date] May 2008

The second Applicant arrived in Australia.

[date] November 2008

The second Applicant departed.

[year]

The third Applicant was born. He is currently aged [age].

11 August 2016

Offshore applications made for Visitor visas for the first, second and third Applicants.

7 September 2016

Visitor visas granted to the first, second and third Applicants. Those visas ceased on 10 October 2016.

[date] September 2016

The first, second and third Applicants arrived in Australia. Upon their arrival, the first Applicant was aged [age], the second Applicant was aged [age] and the third Applicant was aged [age].

6 October  2016

Visitor visa granted to the second Applicant. That visa ceased on 7 December 2016.

8 October  2016

Bridging visas granted to the first and third Applicants. Those visas ceased on 7 December 2016.

11 October 2016

Visitor visa granted to the first Applicant. That visa ceased on 7 December 2016.

18 October  2016

Visitor visa granted to the third Applicant. That visa ceased on 7 December 2016.

07 December 2016

The first Applicant lodged as application for [Temporary Skilled worker (457 visa)]. The second and third Applicants were nominated as her dependents.

Bridging visa granted to the first, second and third Applicants. Those visas ceased on 10 February 2017.

10 February 2017

Bridging visas granted to the first, second and third Applicants. Those visas ceased on 1 November 2017.

15 May 2017

The fist Applicant’s employer withdrew from the Business nomination for her application for a 457 visa.

The Department wrote to the Applicant inviting her to comment on the withdrawal of the business sponsorship.  She did not respond to the Department.

[date]

The fourth Applicant was born. He is currently aged [age].

1 August 2017	The Delegate made a decision to refuse the first Applicant application for a 457 visa.
11 August 2017	The first Applicant lodged an application with the Tribunal to review the Delegate’s decision to refuse the 457 visa.
23 August 2017	The Tribunal wrote to the Applicant noting that her application to review the Department’s decision to refuse her 457 visa did not appear to be valid.  She was invited by the Tribunal to comment on or respond to that information by 6 September 2017.
6 September 2017	The first Applicant’s representative wrote to the Tribunal requesting an extension of two weeks to respond to the Tribunal’s invitation.
7 September 2017	The Tribunal granted the first Applicant an extension of two weeks to respond. The date for responding was 21 September 2017. No response was received.
26 September 2017	The Tribunal’s decision that there was no jurisdiction for the Tribunal to decide her review application lodged with the Tribunal on 11 August 2017.
21 October  2017	Protection visa application lodged with the Department.
20 November 2017	Bridging visas to the Applicants. Those visas ceased on 15 May 2018.
15 May 2018	Bridging visas granted to the Applicants.
28 March 2019	The Delegate interviewed the first Applicant.
14 May 2020	The Delegate refused the Protection visa application.
17 May 2020	Application filed with the Tribunal to review the Delegate’s decision.
22 March 2023	The Tribunal wrote to the first Applicant’s representative advising that the first Applicant’s file was being prepared for allocation to a Tribunal member and this may result in a hearing being scheduled.
31 March 2023	The Tribunal wrote to the Applicants’ representative advising that a hearing had been scheduled for 4 May 2023.
11 April 2023	The Tribunal wrote to the Applicants’ representative advising that a hearing scheduled for 4 May 2023 had to be postponed to 12 May 2023. The Tribunal asked that the response to the hearing invitation be returned within 7 days of the receipt of the Tribunal’s letter. No response was received by the first Applicant’s representative.
09 May 2023	Applicants’ response to the hearing invitation received.
12 May 2023	Tribunal’s review hearing of the Applicants’ application.

Country information

1. It is the first Applicant’s claim that attempts were made to recruit her by an extremist group in Pakistan and the available credible country information lends support to those claims.

2. Since 2015, Pakistan has witnessed increased incidents of women’s participation in transnational jihadist groups.[27] It has been reported that it is not a new phenomenon at a global level for women to be involved in acts of terror. This has gained significant attention in Pakistan, particularly in recent times, amidst the resurgence of extremist activities in that country. It has been described that the role of women in acts of terrorism can be analysed at two distinct levels: direct participation or as enablers and facilitators. In Pakistan, women are actively involved in various aspects of terrorism, such as intelligence gathering, recruiting individuals for suicide bombings, and, in certain cases, even direct engagement in acts of terror.[28] 

   [27]The Diplomat, Pakistan’s Women Jihadis, Understanding the nexus between women and terrorism in Pakistan, Mahmood S, 6 April 2017, Diplomacy, Gender-based Terrorism in Pakistan, Khan A U, 21 May 2023, >

   It is further reported that:

   Terrorist organisations plan their recruitment process very smartly. The recruitment of members is often based on their objectives, ideology, and gender. Considering these factors, no single and uniform recruitment policy or method has ever been identified. In the case of Pakistan, extremist organisations are primarily focused on recruiting individuals who align with their objectives and ideologies. However, there is a growing recognition among these groups regarding the significance of gender-based recruitment. The prevailing trend indicates that extremist groups within the country are actively seeking to recruit females, aiming to inflict profound and enduring damage while making the reversal of this process challenging.

   Pakistan’s disproportionately low representation of women in the workforce, with only 20 percent participation, not only falls behind international standards but also lags within South Asia. This gender imbalance leads to the underutilisation of women’s potential energies, leaving them with idle hours that may make them more susceptible to recruitment by terrorist/extremist organisations, particularly through online platforms and social media. It is crucial to recognise that these women also bear the responsibility of shaping the next generation. If influenced by extremist narratives, their presence as primary caregivers have a tendency to increase the likelihood of nurturing a vulnerable generation predisposed to violence and terrorism. This cycle perpetuates the potential for further recruitment and poses a long-term threat to societal stability and security.[29]

   [29]Modern Diplomacy, Gender-based Terrorism in Pakistan, Khan A U, 21 May 2023, >

   The Tribunal accepts that the country information indicates that women can be, and are being targeted for recruitment by extremist groups. The country information provides clarification and support for the claims made by the first Applicant that there were attempts to recruit her in a radical group or organisation. This tends to solidify her claims with respect to what she had outlined within her applicant and the Tribunal accepts that there is a basis to her claims in that regard. 

   Delay in making application

3. During the hearing, the Applicant was asked to explain the significant delay between when she arrived in Australia on [date] September 2016 to when the Protection visa application was made 13 months later in October 2017. She explained that when they arrived, it was a relaxing time as her husband’s family were already living here. She also explained that when she made her 457 visa application, she had the assistance of a representative, however, did not mention the issues she experienced in Pakistan. Her focus was on gaining employment.

4. The Tribunal acknowledges that for a period of the first Applicant’s delay in making her application, she was pregnant with the fourth Applicant, and was at the same time juggling the parental responsibilities of the third Applicant who, at that point, was still only a very young child. The Tribunal is also aware that her health suffered, and the medical records she provided show that she suffers from chronic dizziness and imbalance. She also experiences anxiety and significant stress related symptoms. It seems that she has experienced those conditions for some time.  

5. In respect to any consideration by the Tribunal about the delay between the Applicant’s arrival in Australia and her application for a Protection visa, guidance can be found by the judgment in Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997 that even a three-month delay in lodging a Protection visa application is a legitimate matter to consider when assessing the genuineness or depth of an Applicant’s fear of persecution.[30]  Therefore, the significant delay in the Applicant seeking a Protection visa can support an adverse credibility finding as well as a finding that the Applicants do not have a well-founded fear of harm. 

   [30]Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997. 

6. The Tribunal acknowledges that there was a significant delay of about 13 months between the Applicants’ arrival in Australia to when their application was made for Protection visas. The first Applicant claimed that throughout that period her focus was on securing employment, and as the Tribunal has already identified that she was trying to secure employment, and at the same time deal with the pregnancy and the birth of the fourth Applicant during that period. 

7. The Tribunal has carefully considered the Applicants’ delay in making their application for a Protection visa, and although the Tribunal recognises the delay, there are also mitigating circumstances which persuaded to Tribunal to give the delay neutral weight in respect to the determination of this matter.

   REFUGEE FINDINGS

   Real chance of serious harm

8. In determining that fear can be well-founded without any certainty, or even probability, or that it will be realised, the High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs recognised the principle determined by the United States Supreme Court in Immigration and Naturalization Service v Cardoza-Fonseca that a statutory provision reflecting the relevant phrase in the Refugee Convention did not require the probability of persecution, and:[31]

   That the fear must be 'well-founded' does not alter the obvious focus on the individual's subjective beliefs, nor does it transform the standard into a 'more likely than not' one.  One can certainly have a well-founded fear of an event happening when there is less than a 50 per cent chance of the occurrence taking place.[32]  

   [31]Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, 397.

   [32]Immigration and Naturalization Service v Cardoza-Fonseca (1987) 94 L Ed 2d 421, 431.

9. A fear of persecution may be well-founded for the purposes of the Refugee Convention even though the persecution is unlikely to occur. A real chance of something happening equates to a risk that is more than remote, that is, being a risk that could not be described as being remote, farfetched or fanciful,[33] and the test for ‘real risk’ test imposes the same standard as the real chance test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[34]

   [33]Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, 429.

   [34]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.

10. When carefully considering the facts, circumstances and the evidence of the Applicants’ case, the Tribunal was afforded the opportunity to monitor and assess the first Applicant’s responses to the Tribunal’s analysis of the evidence, and to gauge the genuineness, or the credit of the responses she provided during the review hearing. The Tribunal recognises that there were variances within her evidence at the review hearing compared to her comments made to the Delegate some years earlier, and indeed within her claims. However, the Tribunal respects that at the time of the review hearing, it has been over seven years since she interacted with the women in the park in Pakistan. The Tribunal acknowledges and accepts that given the passage of that considerable amount of time, the possibility of variances in her recollection of events remains high. Notwithstanding those observations, the Tribunal finds that the first Applicant’s evidence was generally credible. In that regard, the Tribunal recognises that where a decision maker finds an applicant to be generally credible, they should be given the benefit of any doubt where they are unable to fully substantiate all of their claims.[35]

    [35]SZLPN v Minister for Immigration and Citizenship [2010] FCA 202, [17].

11. When applying an overall balanced assessment of the evidence and the claims made by the first Applicant, along with applying careful consideration to the totality of the evidence, the Tribunal is satisfied enough to make a finding that if the Applicants returned to Pakistan there is a real chance of her experiencing serious harm, and those responsible for that harm would be the group who attempted to recruit her.

    Best interests of children

12. The United Nations Convention on the Rights of the Child provides that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community.  It is recognised that for the full and harmonious development of a child’s personality, the child should grow up in a family environment, in an atmosphere of happiness, and with love and understanding. There is a legitimate expectation that the principle relating to the best interests of a child as provided within the United Nations Convention on the Rights of the Child[36] shall be treated as a primary consideration by the decision-maker in matters where the best interests of children whose interests could be affected by decisions.[37]

    [36]Article 3(1).  The Convention was ratified by Australia on 17 December 1990 and entered into force for Australia on 16 January 1991.  By an instrument of declaration made 22 December 1992, the Commonwealth Attorney-General declared the Convention to be an international instrument relating to human rights and freedoms for the purpose of the Human Rights and Equal Opportunity Commission Act 1986 (Cth).

    [37]Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273.

13. The Tribunal recognises that at the time of arriving in Australia, with his parents, the third Applicant was only aged [age]. He is now aged [age] and for almost all of his life he has only known the western culture and education curriculum he experienced in Australia. In respect to the fourth Applicant, he was born in Australia and is now aged [age]. The circumstances just described in regard to his brother apply equally to the fourth Applicant.  

    DECISION

14. The Tribunal remits the matter for reconsideration with the direction that the Applicants satisfy section 36(2)(a) of the Migration Act.

    Wayne Pennell
    Senior Member

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation

    …

    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)     that is not inconsistent with Article 7 of the Covenant; or

    (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)     that is not inconsistent with Article 7 of the Covenant; or

    (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)     for the purpose of intimidating or coercing the person or a third person; or

    (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    receiving country,  in relation to a non-citizen, means:

    (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    5J     Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K    Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L    Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a Protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a Protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a Protection visa of the same class as that applied for by the applicant.

    (2A)A non‑citizen will suffer significant harm if:

    (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)     the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …