2011902 (Refugee)

2011902 (Refugee) [2024] AATA 3973 (4 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Besmellah Rezaee (MARN: 1281396)
CASE NUMBER: 2011902

COUNTRY OF REFERENCE: Pakistan
MEMBER:Katherine Harvey
DATE:4 September 2024
PLACE OF DECISION: Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 04 September 2024 at 12:14pm

CATCHWORDS
REFUGEE – protection visa – Pakistan – religion – Shi’a – race – Tajik – threats from terrorist groups – fear of killing – threats from former wife’s family – honour killing – remarriage – separation from Australian citizen family – mental health issues – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
GLD18 v MHA [2020] FCAFC 2
SZRSN v MAIC [2013] FCA 751
SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 July 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of the Islamic Republic of Pakistan (Pakistan), arrived in Australia travelling on a Pakistani passport as the holder of a visitor visa [in] November 2017.
He applied for a protection visa on 16 January 2018.
On 7 July 2020, a delegate of the Minister refused to grant the visa and the applicant sought a review of that decision on 21 July 2020.
The applicant appeared before the Tribunal on 5 July and 17 August 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Wife A], the applicant’s Australian citizen wife. The hearings were conducted, with the assistance of an interpreter, in the Urdu and English languages.
The applicant was represented in relation to the review and his registered migration agent attended the hearings.
For the following reasons, the Tribunal has concluded the decision under review should be affirmed.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The current country information report prepared by DFAT is the ‘DFAT Country Information Report Pakistan’ dated 25 January 2022 (DFAT report).
CONSIDERATION OF CLAIMS AND EVIDENCE
Summary of claims
In his application for protection, the applicant set out the following claims.
·     He is a Tajik (Kandahari) and Shi’a Muslim born in Quetta, he has [number] siblings and a wife, who is from Karachi and is a Tajik (Kandahari) Shi’a.
·     His father was an [occupation 1] in a [business 1] in [a location], until [a named] office opposite was attacked and there was a huge blast, which marked the end of his father’s work there.
·     He worked as [an occupation 2] for eight years.
·     When the situation for Shi’as started to turn genocidal it immensely affected his family. His [specified family members] were threatened by a [neighbour] and sought protection in Australia in 2012.
·     Quetta is home to around 800,000 Shi’as. In 2001, terrorist groups such as the Taliban, Lashkar-iJhangvi (LeJ) and Sepah Sahaba started the systematic targeting and killing of Shi’as and 3000 Shi’as have been killed and more than 3000 permanently incapacitated in the last decade. Shi’as have been warned their settlements in Hazara Town and on Alamdar Road will be transformed into graveyards if they don’t leave Pakistan where they are regarded as infidels.
·     He left Pakistan because his life was in danger from the terrorist groups, their associates and agents. He grew up wanting a peaceful life but despite making good money and having property and assets, he did not find peace in Pakistan. Everywhere they went, they feared being targeted and every day he left for work he did not know if he would return home in the evening.
·     [In] September 2017, he was driving to Karachi with his wife for his brother-in-law’s engagement when they were stopped in [Town 1], about [distance] from Quetta, by some armed men whose faces were covered. The men spoke Baluchi and demanded their national identity cards (NICs) and then questioned why his name included ‘[name]’ and his wife’s included ‘[name]’, which are both [Shi’a names]. His command of Baluchi and Pashto saved their lives as he told them they were not Shi’as but Pashtuns. The commander took photos of their NICs and said that they would do some checks. They threatened that if he reported them to the police they would shoot him dead anywhere in Pakistan as they know where he lives and works.
·     When they reached Karachi, they told his father-in-law about the incident and he recommended selling the car, and within the week they returned to Quetta by air. Everyone in Karachi told them to report the incident when they got back to Quetta so that the police could do something and prevent potential loss of life. When he returned to Quetta, he lodged a first instance report (FIR) as he feared that they would come after him and he wanted the police to prevent it. He did not go back to work after the incident as he was too fearful.
·     At his workplace on a number of occasions Sunni customers abused him and urged him to convert.
·     A Sunni Madrasa has been established next door to his home and clerics preach anti-Shi’a sermons. His father transferred the certificate of title to him because his father was constantly approached to sell or gift the property to the mosque. Anti-Shi’a slogans are graffitied on the walls and they have dropped night letters warning them to leave the area.
·     He could not practise their religious activities openly and his father has confined himself to the house most of the time.
·     He fears terrorist groups will seriously harm him if he returns to Pakistan and he is easily recognisable throughout Pakistan as a Kandahari Shi’a. In 2017 there were 9 incidents of sectarian violence against Shi’as and 112 were killed and 306 injured.
·     He does not have relatives or family anywhere except Quetta and Karachi and his wife’s uncle was killed in Karachi. Terrorist groups like LeJ operate across Pakistan and are becoming more powerful day by day.
The applicant provided copies of his Pakistani Computerised National Identity Card (CNIC), birth certificate, passport biodata page, marriage certificate and his first wife’s NIC.
After the applicant’s interview with the delegate on 22 June 2020, the applicant’s representative provided a post-interview submission claiming that it would not be reasonable for the applicant to relocate within Pakistan. The applicant also provided:
·   a screenshot of part of a gas bill in his father’s name showing his family’s new address in Quetta
·   an article by Jawad Syed and Faiza Ali, ‘A pyramid of hate perspective on religious bias, discrimination and violence’, Journal of Business Ethics (13 April 2020)
·   Amiera Sawas, Daanish Mustafa, Nausheen Anwar, Humeira Iqidar and Sarwat Viqar, ‘Urbanisation, Gender and Violence in Rawalpindi and Islamabad: A scoping study’ (2013) Department of Geography, King’s College London, paper 67.
Before the first Tribunal hearing, the applicant provided two versions of a submission from his migration agent dated 28 June 2023 together with:
·a copy of his certificate of divorce from [Wife B] [in] July 2021
·his marriage certificate with [Wife A] [in] February 2022, and
·his daughter’s birth certificate.
At the hearing, the applicant also claimed to fear harm from his first wife’s family and that he suffers from mental health issues and hair loss.
On 31 August 2023, the applicant provided:
·   a post-hearing submission dated 22 August 2023
·   a photograph and translation of a sign on the Shia Mosque [at a location on][Road 1 in] Quetta
·   a copy and notarized translation of a certificate of title certifying that the applicant is the registered proprietor of an Estate House [at a Road 1][location in] Quetta.
·   a copy and certified translation of a Land Record, being an extract from the Revenue Record relating to Estate: [specified in] Quetta dated [in] March 2017 showing that [the applicant] son of [his father’s name], Caste: Yousufzai is listed as owner of a plot with a house, residential class.
·   a certified translation dated 12 February 2013 of a certificate of registration for children below the age of 18 years naming the applicant and his siblings and showing the [Road 1] address
·   a photograph of part of the front of a building including a ‘foundation stone’ and a notarized translation of the foundation stone, stating in summary that the foundation stone of [Mosque 1] was laid [in] 2017, that the sole owners have devoted the same property for [the mosque], that the owners also own [other properties] which their close relatives are using and that none can sell out of the said property.
·   a copy and notarised translation dated 6 July 2023 of a certificate dated [date] showing the applicant’s father is of Caste Yousafzai and resident of [a location in] Quetta. The original document is hand written with a black and white photograph of the applicant’s father as a young man. Subsequent handwritten additions to the document name the applicant’s mother, the applicant and his [siblings].
·   a copy and notarized rental letter, a copy and notarized translation of a rent agreement from 1 May 2018 and a copy and notarized translation of a rent agreement from 1 May 2023 for [an address in] Quetta naming the applicant’s father as the renter.
·   consultation notes from [Doctor A] dated 1 March 2022 regarding hair loss and diagnosing alopecia.
·   a letter, consultation notes and mental health plan from [Doctor A] dated 1 August 2023 referring the applicant to a psychologist for an opinion and management with a diagnosis of depression/anxiety.
·   a letter dated 2 August 2023 from [Psychologist A], Psychologist to the Tribunal, providing a provisional diagnosis of depression and anxiety based on the applicant’s DASS-21 score and information from the applicant, noting that the DASS-21 is not a diagnostic tool.
·   a letter dated 3 August 2023 from the applicant’s wife advising that her other children do not appear on the applicant’s daughter’s birth certificate has they have a different father, and that she and the applicant were unaware they needed to include information that they had previously been married on their marriage certificate.
On 1 September 2023, the applicant provided duplicate copies of documents provided previously.
Evidence and findings of fact
Background
The applicant’s personal details are set out in his application for a protection visa. He is [age] years of age and was born in Quetta, Pakistan. At the time he made his application, he claimed that his ethnicity is Tajik (Kandahari), his religion is Shi’a, that he speaks Farsi, Hazaragi, Urdu, Baluchi and limited English. In Pakistan, he worked as [an occupation 2] for eight years, most recently in a [business 1] where he worked in [specified roles]. In Australia he has worked [in specified other occupations].
The applicant provided details of his brother, his brother’s wife and daughter, who live in Australia, and his (then) wife, father and mother who live in Pakistan.
Country of reference
The applicant claims that he was born in Quetta, Pakistan and is a citizen of Pakistan. He provided a copy of the biodata page from his Pakistani passport. I am satisfied that the applicant is a citizen of Pakistan and find that Pakistan is his receiving country.
The applicant claims and I accept that he does not have the right to enter and reside in a country other than Pakistan. I find that s 36(3) of the Act does not apply to the applicant.
Ethnicity and religion
In his protection visa application and at the hearing, the applicant claimed that he is a Tajik (Kandahari) Shi’a. At the hearing, he explained that Tajik is their tribe and Kandahari is the name of the tribe that speaks Farsi. As discussed at the hearing, country information reports that about 95 per cent of Tajiks in Pakistan are Sunni Muslims.[1] The applicant claimed that Tajik Shi’a are recognised by their faces and their looks as they have a fair complexion. He claimed he would be recognised as Shi’a because people see them going to their places of worship and during the days of Muharram when they have processions and rituals like wearing black clothes. He also claimed that most of the people in Quetta have beards but they are clean shaven.
[1] Norwegian Afghanistan Committee, ‘Ethnic Groups’, n.d.
As discussed at the hearing, the country information for Pakistan reports that ‘[a]n estimated 20–40 million Shi’a live throughout the country, constituting 10–20 per cent of the population’ and ‘[m]ost Pakistani Shi’a (except Hazaras) are not physically or linguistically distinguishable from Sunni’ Muslims.[2]
[2] DFAT, ‘DFAT Country Information Report Pakistan’ (25 January 2022) (‘DFAT Report’) 26.
As discussed at the hearing, the documentary evidence provided by the applicant (the land record, the certificate dated [date] and his divorce certificate) record his and his father’s ethnicity as Yousafzai. When the details on his divorce certificate were first raised, the applicant said that his caste was not Yousafzai but his ex-wife could belong to the Yousafzai caste. As was put to the applicant, his divorce certificate that states he is ‘caste Yousafzai’. He responded that if it is on the document then most likely his father would have been asked and his father’s caste is Yousafzai. He advised he had limited understanding. At the resumed hearing, the applicant claimed that his father was registered as Yousafzai for job opportunities when he came to Pakistan and that he was originally a Tajik (Kandahari). As was discussed, Pakistan is a patrilineal society and the applicant agreed his caste would be the same as his father’s.
I accept that the applicant is Shi’a and that he is identifiable as a Shi’a Muslim by his religious practise, such as participating in Muharram activities and attending Shi’a mosques. I give greater weight to the country information that Shi’a who are not Hazara, such as the applicant, are not physically or linguistically distinguishable from Sunni Muslims. As beards and the absence of facial hair are physically distinguishable features, I do not accept that Shi’a are distinguishable by their facial hair. I do not accept that the applicant is physically or linguistically distinguishable as a Shi’a.
I am concerned with the credibility of the applicant’s oral evidence given its inconsistent and changing nature about whether or not he and his father are Yousafzai and for this reason I give greater weight to the documentary evidence provided by the applicant about his ethnicity. Based on the evidence before me, including the official land record from 2017 and the applicant’s divorce certificate from 2021 that record his ethnicity as Yousafzai, I do not accept that the applicant is Tajik (Kandahari) and I find that the applicant is considered to be Yousafzai in Pakistan.
Militants
At the hearing, the applicant explained that he and his then wife were stopped by armed people with covered faces in the [Town 1] area [in] September 2017 when they were driving from Quetta to Karachi. The militants asked for their CNICs.[3] He said the militants were speaking to each other in Pashto and Balochi and he can speak and understand Pashto, so he responded in Pashto. He explained where they were going. They asked if they were Shi’a because their names ‘[name]’ and ‘[Wife B name]’ are popular Shi’a names. He denied that they were Shi’a. The militants took pictures of their CNICs, which record an individual’s addresses, and told them they could go but if the militants find out they are Shi’a or if they informed anyone about them, the militants will find them anywhere in Pakistan. He said that he and his then wife were really scared because the militants had a flag of LeJ[4] and they were armed. He thinks they only let them go because he spoke to them in Pashto.
[3] Computerised National Identity Cards.
[4] Lashkar-e-Jhangvi, a Sunni Muslim extremist group.
The applicant claimed that they sold their car in Karachi and flew back to Quetta, where they reported the incident to police [later in] September 2017 because he feared the militants would come after him and the police should prevent it. He said the police initially refused to take the report but when they gave references of their families and that their lives were in danger as Shi’a, the police then filed the report. The applicant said that after the incident he could not leave the house as often as usual as he was scared they would recognise him or find out he had reported the incident to the police. He continued to go to work in the [business 1] in Quetta city but only for very short periods of time.

As was put to the applicant, even with their Shi’a names the militants let the applicant and his ex-wife go. The applicant responded that they were suspicious that he was Shi’a but they did not check his back for self-flagellation scars and he told them he was Pashtun not Shi’a, and Shi’a cannot speak Pashto. Self-evidently this is not correct as the applicant is a Shi’a who claims that he speaks Pashto.
He said his visa for Australia was granted on 25 August 2017 and he came to Australia in November 2017. The applicant did not claim that anything happened to him or his ex-wife in September, October or November 2017 following the incident or his reporting of it to the police. I note that while the applicant said he did not leave the house as often, he continued to go to work, albeit for ‘a very short time’.
Based on the evidence before me, I accept that the applicant and his then wife were stopped by militants in the vicinity of [Town 1] [in] September 2017, I accept that the militants took pictures of their CNICs and I accept the militants threatened the applicant and his then wife not to report them. I also accept that the militants allowed them to resume their journey despite their distinctively Shi’a names and that there was no further action taken by the militants.
Based on the applicant’s evidence at the hearing that he continued to go to work, I do not accept the applicant’s claim in his 20 December 2017 statement that he did not go back to work after the incident.
I carefully considered whether there was a residual threat to the applicant from the incident, noting that a photo was taken of his and his then wife’s CNICs that displayed their Quetta and Karachi addresses and the applicant reported the incident to the police. The incident occurred more than six years ago. There is no evidence that the militants have taken any action since September 2017 against the applicant or his ex-wife. Given the passage of time and the lack of action in more than six years, I am not satisfied that there is a real chance or a real risk that the applicant will experience serious or significant harm as a result of a photo being taken of his CNIC and him reporting the incident to the police if he returned to Pakistan now or in the reasonably foreseeable future.
Applicant’s home
At the hearing, the applicant explained that people connected with a Sunni mosque near his house are putting pressure on his family to give or sell them their house so that the mosque can expand. He said they used to annoy his father and say please give us this house. He said that the Sunnis also tell them to come and pray in their mosque even though they go to their own Shi’a mosques, and on Fridays the Sunnis give sermons about their religion. He claimed that his family had received night letters and their house was graffitied. He said that his father, mother and sister have moved to a predominantly Shi’a area in Quetta where they are renting a house. His family home is closed and his father does not go there anymore.
At the first hearing, the applicant explained that because the house is close to the city, it is worth more than AUD1 million. At the resumed hearing, the applicant revised the value to AUD400,000–450,000 after speaking with his father.
The applicant claimed in his statement that the family house was a little detached from the Shi’a enclave of Alamdar Road. As was put to the applicant, Alamdar Road is [distance] from his family home. He agreed that it was between [distance range] from the family home.
Based on the land records provided, I accept that the applicant has owned the family home at [Road 1] since at least [March] 2017. The applicant said that his father told the Sunnis that the house was not in his name but the applicant’s name, and the Sunnis have told his father to get the applicant to go back to Pakistan so the house can be donated or sold to the mosque. The applicant said this put him at risk.
As discussed at first hearing, a Google search of mosques [in the Road 1 area] did not identify a Sunni mosque and only located a Shi’a mosque. The applicant claimed that there was only one madrassa [in the Road 1 area], which is the one close to his house. He said the Shi’a mosque [Mosque 2] was the one his family attended. In post-hearing submissions, the applicant claimed the Shi’a mosque is a registered mosque, which is why it can be found on Google, whereas the Sunni mosque [Mosque 1] is unregistered.
At the resumed hearing, the applicant claimed they were the only Shi’a family in the street. The Shi’a mosque [Mosque 2] is the only mosque that appears [in the Road 1 area] as a result of a Google search for mosques or madrasa. Given the presence of a Shi’a mosque [in the Road 1 area], I do not accept that the applicant’s claim that his family is the only Shi’a family on [Road 1].
The applicant said that one floor of the neighbouring building is a mosque and there is a house on the other floor. At the resumed hearing, the applicant provided a photograph he claimed was taken early one morning by his mother and sister of a building entrance and part of an upper storey that he claims shows the mosque and its foundation stone. I asked where the minarets were and the applicant said that was the difference between Shi’a mosques and Sunni mosques. He said Shi’a places of worship are known by their decorations. He said there was a speaker at the top of the building however this is not apparent in the photograph. He said that the Sunnis do not decorate their mosques. When I asked if he was saying that Sunnis do not have minarets, the applicant said that Shi’a usually have more decorations and that the mosque was just open for prayers, especially for Friday prayers. The applicant also claimed that there was a madrasa where they educate children. He claimed that the foundation stone says in 2007 the owners gave the building to make a mosque.
After the resumed hearing, the applicant provided a copy of the photo and a notarized translation of the foundation stone, which includes that the foundation stone of [Mosque 1] was laid [in] 2017, that the sole owners have devoted the same property for [the mosque], that the owners also own [other properties] which their close relatives are using and that none can sell out of the said property.
Based on the evidence before me, I accept that part of the building has been devoted/donated for a mosque and that the remainder of the building is used for residential and commercial purposes and the building cannot be sold. However, based on the appearance of the building, that no mosque [Mosque 1] has been registered, that [Mosque 1] does not appear on a Google search and that there is no Sunni mosque or madrasa registered [in the Road 1 area], I do not accept that a mosque has been established in the building.
I next considered whether the applicant’s father, mother and sister had moved from the family home because of threats from Sunnis. The applicant provided copies and notarised translations of rental agreements from 2018 and 2023 in his father’s name as evidence that his parents and sister no longer live in the family home.
At the hearing, the applicant said that his divorce [in] July 2021 took place at the family home in [Road 1]. As was put to the applicant, he provided inconsistent evidence about why the divorce took place in the family home. He evidence included that this was because his parents were living at the old residence at that time and that his ex-family members arrived at the old house; that maybe his former in-laws were not aware of the new address; that his parents were the owners of the house, which is probably why they kept going to the address; and that they probably decided to go back to the old house because it is an empty house. When these inconsistencies were discussed, the applicant said that his mind was very occupied. I have already accepted that the applicant has owned the family home at [Road 1] since at least [March] 2017, so his parents were not the owners at the time of his divorce. Based on the evidence provided, including that the divorce took place at the family home in 2021, I do not accept that the family home is closed or that the applicant’s father does not go there anymore.
As discussed at the hearing, the applicant did not provide any information from a third party to support his claim that his family had to leave their home. The applicant claimed that his family had received ‘night letters’ and that their home had been graffitied. He did not provide copies of any night letters nor photographs or other evidence of the graffiti with his application or in his later submissions. Based on the absence of supporting evidence, that the applicant’s divorce took place at the address [in] July 2021, and the applicant’s inconsistent and changing evidence about the occupation and ownership of the house at [Road 1], I do not accept that his family has received night letters or that they have been the target of anti-Shi’a graffiti on their walls or that the applicant’s father, mother and sister left the family home because of threats from Sunnis. I do not accept that the applicant’s father transferred ownership to him on or before [a date in] March 2017, when the applicant resided in Quetta, following threats or requests from Sunnis associated with the neighbouring property or to thwart the Sunni community gaining ownership of the house. I do not accept that there is a real chance that the applicant will experience serious harm or a real risk that he will suffer significant harm from his Sunni neighbours as the owner of the family home if he returns to Pakistan now or in the reasonably foreseeable future.
Ex-wife’s family
The applicant claims and I accept that he and his first wife divorced [in] July 2021. The applicant claimed that his in-laws demanded a divorce because he did not return to Pakistan after the Department refused his application for a protection visa.
The applicant claimed that when his protection visa application was refused by the Department, he was under a lot of pressure from his ex-wife’s family. He said they demanded he come home and live with her and threatened that, if he did not come back, they would not spare him. He claimed that once you get married in his culture you cannot leave your wife and you cannot get divorced. They were upset that he was in Australia and she was in Pakistan. The applicant said that if you leave someone’s young daughter in Pakistan it has serious implications and consequences. He said they could hit him, they could kill him, they could be very cruel to him, and they could get a proxy to kidnap him and hold him hostage. At the resumed hearing, he described his ex-family as his biggest risk.
At the hearing, the applicant claimed he not to know whether his ex-wife had remarried. He said her family used to call him through the internet before they were divorced and after the divorce, when things got complicated, he blocked everyone.
As was put to the applicant, his in-laws requested the divorce. The applicant responded that was only after they asked him to return to Pakistan. As was discussed, while divorce is regrettable it is permissible. The applicant agreed it was permissible and said that no-one would marry his ex-wife because she would be looked down upon as someone who is inferior.
The applicant said that if he returned to Pakistan, he would have to travel via Karachi, where his ex-wife’s family reside. As discussed, he could also fly into Islamabad. He responded that if he goes to Quetta via Islamabad, they will know he is there as Quetta is very small and there is no privacy. As Quetta is a city of a million people, including 800,000 Shi’a according to the applicant’s submission, I do not accept that Quetta is very small.
When asked why he thought his ex-family had any ability to carry through with their threats, the applicant said that his ex-wife had told him her father had resources and connections with the big people and whenever he comes to Pakistan they will kill him. The applicant was invited to make a post-hearing submission about his ex-wife’s family’s ability to follow through on the threats. In the post-hearing submission, the representative claimed that the divorce certificate was evidence that the applicant’s ex-wife’s family perceived him to have brought shame and dishonour to their family. As the applicant’s ex-wife’s family requested the divorce, I do not accept that the divorce certificate is evidence that the ex-wife’s family perceived the applicant to have brought shame and dishonour to their family.
As discussed at the hearing, country information reports that women who get divorced may be harmed but the Tribunal had not located information about men who get divorced getting harmed and the applicant was invited to make a post-hearing submission. In the post-hearing submission, the representative claimed that although most victims of the repellent practice of ‘honour killings’ are women, men are also victims of honour-related crimes. An article cited by the representative explains ‘[i]n most cases, the woman is killed by her father, brother, uncle and even husband’ and causes include ‘divorce or marriage against the will of the family’.[5] No information was provided about men who get divorced being harmed or killed because of the stigma attached to divorce. The country information provided in the submission makes clear that the divorce stigma is carried by the woman.[6] Based on the evidence before me, I accept that men accused of having illicit relationships or marrying against the wishes of their families may be harmed or killed along with the accused woman, however I do not accept that men who divorce their wives are harmed or killed because they have divorced.
[5] Qian Hongdao, Muhammad Khaskheli, Hafiz Saleem, Rehman Saleem, Jonathan Mapa, Sughra Bibi, (2018) ‘Honour Killing Phenomena in Pakistan’, Journal of Law. Policy and Globalization Vol 73, 169–170.
[6] Ahmad Nasim, ‘The divorce stigma in Pakistan’, Daily Times (7 January 2020).
No further evidence was provided about the applicant’s ex-wife’s family. Based on the evidence before me, I am not satisfied that the applicant’s ex-wife’s family have the resources, connections or capability to follow through on their threats. As discussed at the hearing, there was no information before the Tribunal that there is a current threat from the applicant’s former in-laws. The applicant has not spoken to his ex-wife’s family members since his divorce in 2021, he has not maintained contact with them, and he does not know his ex-wife’s marital status. I do not accept that a current threat exists from his ex-wife’s family and for that reason I am not satisfied that there is a real chance or a real risk that the applicant will experience serious or significant harm from his ex-wife’s family if he returned to Pakistan now or in the reasonably foreseeable future.
Wife and child
At the first hearing, the applicant said he has a happy life, a good life with current his wife and daughter. He explained that his wife is not really aware of his visa and she does not know a lot about his protection claim.
The applicant said he would never take his wife and daughter with him if he returned to Pakistan. I asked how it would affect him, being separated from them. He said that he cannot live without his child and wife. He explained that since he has had a wife and child he feels like he has been blessed with happiness. Before his relationship he used to be very stressed and worried and not happy but since he married, he has been happy. He said he feels more happy and safe because his wife is always supporting him. He said being separated would have a substantial impact on him because if he goes back to Pakistan and his ex-wife’s family finds out he is there and he does not have anywhere to live. He asked how he could return without his wife and child. At the resumed hearing, the applicant explained he has not asked his wife if she would go back to Pakistan with him if he returned. As was put to the applicant, he owns a house in Quetta and I do not accept that he would not have anywhere to live.
The applicant’s wife also gave evidence. She said that her big fear is how she will suffer and survive with her daughter. She said she and the applicant love each other so much and he loves their daughter so much. She said that if he is here, he can help look after their daughter and she has no family here at all, she is living here by herself.
The applicant’s wife said she did not think she would ever go to Pakistan because it is not safe for her at all. She has already experienced domestic violence and the applicant’s ex-wife’s family want to kill him. She said she would not be allowed to travel outside and it is safe for her to stay in Australia. She said that she knows there is nowhere safe to go back there, given the way they call him and harass him. I asked who was calling and she said from his ex’s family, she thinks it was the brother who said if you come back here we will kill you and the applicant was scared. She said they harass the applicant a lot.
For the following reasons, I did not find the applicant’s wife a credible witness and I give little weight to her evidence. The applicant’s wife claimed that she has no family in Australia and that she has been living here by herself for almost 20 years. However, at the resumed hearing the applicant gave evidence that she had [number] children by her first husband and the children live with the applicant, his wife and their daughter. The applicant’s wife also claimed that the applicant’s ex-wife’s family call and harass him, whereas the applicant gave evidence that he had blocked everyone in ex-wife’s family since the divorce in 2021.
As discussed at the second hearing, the applicant’s wife is from [Country 1] and has never lived with the applicant in Pakistan and thus cannot provide first-hand evidence of what the applicant experienced in Pakistan. I give greater weight to the applicant’s evidence, including that his wife does not know a lot about his protection claim, that she has [number] children and that he has blocked communications from his ex-wife’s family.
I asked the applicant why his Australian marriage certificate said that neither he nor his wife had previously been married. The applicant said the mullah did not ask them this question, but had he asked, he would have definitely disclosed it. When asked about the forms they filled in to be allowed to get married, the applicant said that his wife filled in the forms. At the resumed hearing, the applicant said that his wife wanted to keep her previous marriage a secret and he had not told his family she had children. He said that he had escaped his family and there would be a big problem if they knew he had married a woman with children. I note that following the hearing, the applicant and his wife corrected the information on their marriage certificate and I accept that their daughter’s birth certificate is correct as birth certificates only record full siblings, not half siblings.
I accept that the applicant’s wife and daughter are Australian citizens and the applicant’s wife has [number] other children who live with her in Australia, where she has lived for nearly 20 years. I accept that the applicant has not asked his wife if she would go with him if he returned to Pakistan and that he would return without his wife and daughter.
I considered the non-exhaustive list of the type and level of harm that are considered serious harm set out in s 5J(5) of the Act. For the purpose of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (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; and (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist. On the information before me, I am not satisfied that the disappointment and distress the applicant would experience being separated from his wife and daughter meets the threshold of serious harm. I do not accept that the applicant’s distress would rise to a threat to his life or otherwise amount to serious harm.

I considered the exhaustive list of significant harm set out in s 36(2A): (a) a person will suffer significant harm if he or she will be arbitrarily deprived of their life; or (b) the death penalty will be carried out on the person; or (c) the person will be subjected to torture; or (d) the person will be subjected to cruel or inhuman treatment or punishment; or (e) the person will be subject to degrading treatment or punishment. The harm or suffering brought on by the cruel or inhuman treatment or punishment, or degrading treatment or punishment, must be intentionally inflicted by a person or persons with an actual subjective intention to bring about the suffering by their conduct.[7] I note the judgements in SZRSN v MAIC [2013] FCA 751 at [47]–[49] and GLD18 v MHA [2020] FCAFC 2 at [36]–[58] confirm that separation from one’s family members in Australia or another country, where the claimed harm arises from the act of removal itself, will not meet the definitions of significant harm in s 36(2A) of the Act. On the information before me, I do not accept that the disappointment and distress the applicant would experience being separated from his wife and daughter is significant harm as defined in s 36(2A).
[7] SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362 at [26]–[27] and [114].
The applicant’s claim at the resumed hearing that he had escaped from his family and that there would be a big problem if they knew he married a woman with children was a new claim. When asked why he had not raised this claim earlier, the applicant said he was so depressed, so in distress and he got confused and that is why he could not say everything. I note that the applicant has had competent representation from a legal practitioner and migration agent from the time he applied for a protection visa and the information was not contained in his application or submissions to the Department or Tribunal. The applicant did not provide further evidence about his ‘escape’ from his family or the ‘big problem’ at the resumed hearing or in his post-hearing submissions. At the first hearing, the applicant claimed that his parents miss him, his wife and child. Also, the applicant was in contact with his father about his evidence and his mother and sister obtained photographs for him to submit to the Tribunal. For these reasons, I do not accept the applicant’s claim that he escaped from his family or that there would be a big problem if they knew he married a woman with children. It follows that I am not satisfied that there is a real chance or a real risk that the applicant will experience serious or significant harm from his family for marrying a woman with children if he returned to Pakistan now or in the reasonably foreseeable future.
Mental health
The applicant claimed that in Quetta he used to think a lot about his religion and his people as he was very concerned about the groups that were trying to kill them. He said he was always scared and had sympathy in his heart and he did not want to leave the house or talk to anyone. He claimed he became mentally sick or mentally ill.
At the hearing, the applicant said that since he got married, his second wife has been giving him hope and, since they have a daughter, they have a happy life, a good life. He said they’re living a happy life since they got a daughter. Later in the hearing, when I indicated the applicant’s evidence was inconsistent with that given earlier (discussed at [47]), the applicant said that his mind is very occupied and he forgets a lot of things and he gets very stressed out and has a lot of tension. I reminded him that at the beginning of the hearing, when asked if there were any medical or accessibility issues that would prevent him participating fully in the hearing, he said no. The applicant explained that he was not taking any tablets or pills but when he thinks about incidents in the past it affects his mind. He said he does not have a medical condition but stress builds up and he gets a lot of stress. At this point in the hearing, the representative explained he was shortly due in court and the hearing was adjourned.
At the resumed hearing, the country information about the conditions for returnees was discussed, namely:
DFAT assesses that returnees to Pakistan do not face a significant risk of societal violence or discrimination purely as a result of their attempt to migrate, or purely because they have lived in a Western country. Nevertheless, DFAT notes societal or official discrimination or violence can still occur due to the reason they attempted to migrate, or because of behaviour or opinions they displayed while living abroad…[8]
[8] DFAT Report (n 2) 44.
The applicant responded that Pakistan was not a safe country for him because of the accident (the incident with the militia) and they damaged his life. He said he is always thinking of that accident stuff and he got depressed and got anxiety. He claimed in the four to five years living in Australia he has lost everything in Pakistan. He said he would not feel safe going back. As accepted earlier, the applicant’s father, mother and sister live in Pakistan and he is the owner of a home with an estimated value of AUD400,000–450,000 and I do not accept that he has lost ‘everything’.
He claimed he had not asked his wife if she would go back with him and that no one is safe in Pakistan, whether they are Shi’a people or Sunni people. He claimed that even if he lived with his parents, he would be scared to go out because people would know that he had returned from Australia. I give greater weight to the country information. The applicant has not claimed and I do not accept that he has displayed any behaviour or opinions while living abroad that would attract adverse attention. I do not accept the applicant would face a significant risk of societal violence or discrimination as a result of his attempt to migrate or because he has lived in Australia if he returned to Pakistan now or in the reasonably foreseeable future.
As discussed at the resumed hearing, the applicant had not provided a medical report or assessment about mental health issues. His representative said that he had discussed this with the applicant and that there was entrenched stigmatisation and denial of mental health issues in the community. The representative said he had urged the applicant to see a psychologist and get a mental health plan in place and he requested and was granted time to provide a mental health plan.
The applicant said that when he stresses too much, his wife said to go to a psychologist but he was scared. He said he wanted to forget about this stuff and to live without fear and that he could go to a psychologist to get a certificate that he is always thinking about the accident (the incident).
As discussed at the hearing, the applicant applied for a protection visa in 2018. He has a representative. In the time from January 2018 to July 2023, he has been able to work, he has got married and he has had a child. As was put to the applicant, he has been able to function completely well with his existing mental health. He agreed that he has a child and a wife and he is happy in his life with his wife and daughter, but the accident stuff is still on his mind. He said he went to the GP once and the GP just gave him sleeping pills. As discussed with the applicant, there is no medical report before the Tribunal of this consultation. The applicant said it was during COVID time and he could provide that medical report. No medical evidence that the applicant had been prescribed sleeping pills was provided.
The correspondence from [Doctor A], General Practitioner, indicated that the applicant consulted him on 1 March 2022 and was diagnosed with Alopecia (hair loss) and prescribed Elocon (for redness and itchiness) and Regaine for Men (for pattern baldness).
After the hearing, on 1 August 2023, [Doctor A] administered a K10 assessment tool and diagnosed the applicant with depression/anxiety and developed a mental health care plan. He also prescribed Valium twice a day as required and referred the applicant for blood studies. The results of the blood studies were not provided to the Tribunal.
[Psychologist A] advised that after consultations on 1 and 2 August 2023, she had formed a provisional diagnosis of depression and anxiety based on the applicant’s DASS-21 scores and the information provided by the applicant. She advised that his DASS-21 scores indicated severe levels of depression, anxiety and stress and that caution has to be exercised as DASS-21 is not a diagnostic tool. She advised the applicant self-reported feeling depressed since June 2020 and that he did not seek treatment because his Medicare card expired and he was only able to get it late 2020. He also cited financial constraints and language barrier and confidence as reasons for not seeking help and advised that his wife insisted that he seek help.
I carefully considered the evidence of the applicant at the hearing and the evidence from [Doctor A] and [Psychologist A]. At the hearing, the applicant provided evidence that he has a happy life and a good life and he does not have a mental condition but discussing the past was stressful. He later provided evidence to [Psychologist A] that he has felt depressed since June 2020, when he found out that his Protection Visa was denied. As noted earlier, the changing nature of the applicant’s evidence is problematic. While noting [Psychologist A’s] caution, based on the evidence of [Doctor A] and [Psychologist A], I accept that the applicant has been diagnosed with depression and anxiety and has been prescribed Valium.
As discussed with the applicant at the hearing, his mental health has not prevented him from functioning in society and, in the time he has claimed to be experiencing depression, he has worked, married and fathered a child. I accept that the applicant will experience distress at being separated from his wife and daughter. However, the applicant did not claim and I do not accept that this distress would be so debilitating as to prevent him from working in Pakistan. Nor did the applicant claim, and I do not accept, that anyone will deny him medical treatment for his depression, anxiety or stress. Based on the evidence before the Tribunal, including that the applicant has a house to live in and that he will have the familial support of his parents and sister in Quetta, I do not accept that the applicant’s mental health will so impact his ability to work and care for himself as to amount to a real chance of serious harm or a real risk of significant harm if he returned to Pakistan now or in the reasonably foreseeable future.
Shi’a
I accept that the applicant is a practising Shi’a, that he has continued to practise his religion and attend religious activities in Australia and that he would participate in religious activities in Pakistan. Despite his distinctively Shi’a name, the applicant was able to convince militants that he was not Shi’a because of his language skills. However, he would be known as Shi’a through his religious practise. As discussed at the hearing, an estimated 20–40 million Shi’a live in Pakistan, constituting 10–20 per cent of the population, and they are generally able to practise their religion without overt state interference.[9] The applicant did not claim and I do not accept that the state would interfere in his religious practise.
[9] Ibid 26.
DFAT defines ‘moderate risk’ as one where DFAT is aware of sufficient incidents to suggest a pattern of behaviour.[10] As was put to the applicant,
Shi’a have historically been targeted by sectarian terrorist groups such as the TTP, LeJ and IS (see Security Situation). These groups have attacked Shi’a individuals, places of worship, shrines and religious schools, as well as Shi’a travelling to Iran or Iraq for religious pilgrimage. The frequency of these attacks has steadily declined since 2013. Terrorist attacks targeting Shi’a killed five and injured 14 in 2020 (not including attacks targeting Shi’a Hazaras, see Hazaras), compared with 32 deaths in 2019 and 471 deaths in 2013. This is a result of the overall improvement in the security situation in Pakistan, as well as increased security provided by the Pakistani police for Shi’a places of worship and processions. Nevertheless, sectarian terrorist groups retain the capacity and intent to carry out attacks against Shi’a anywhere in the country. At least three people were killed and 50 injured in the bombing of a Shi’a procession in Bahawalnagar, Punjab in August 2021.
DFAT assesses Shi’a in Pakistan face a moderate risk of sectarian violence, although the situation has improved considerably in recent years. Seventy per cent of blasphemy accusations, which carry the death penalty, are against Shi’a. They face a moderate risk of societal discrimination in the form of anti-Shi’a protests and community violence. Some Shi’a face specific, heightened risks (see Hazaras, Turis, Bangash).[11]
[10] Ibid 6.
[11] Ibid 26–27.
The applicant responded that targeted killings were still taking place in 2017 and in the days of Muharram they are provided with security but there is still a lot of fear and anxiety and a lot of incidents have taken place. He said the fear and anxiety is always going to be in their hearts. He said he would still not trust anything as it is unpredictable for Shi’a and if they can kill police and lawyers, they can kill Shi’a. As was put to the applicant, data from the South Asia Terrorism Portal (SATP), which reports on yearly fatalities in Pakistan, shows an improving security situation. In 2022, in all of Pakistan there was one attack on Shi’a civilians that resulted in 63 people being killed and 194 injured in Peshawar, Khyber Pakhtunkhwa (KP) province.[12] The applicant responded that if the situation is a little bit good now it will get worse in the future. The applicant did not provide evidence to support his claim, which I find is mere speculation. In the post-hearing submission, data from the SATP about attacks in KP and Balochistan in August 2023 was provided showing a would-be suicide bomber, a policeman and one other were killed and 9 people injured in four incidents. However, there is no evidence that these attacks targeted at Shi’a civilians. The SATP reports one civilian was killed in Balochistan in targeted attacks on Shi’as in 2023.[13] I give greater weight to the country information that the situation regarding sectarian violence has improved considerably in recent years. Based on the country information, I find that there is a very low level of risk of random or targeted attacks against Shi’a.
[12] South Asian Terrorism Portal, ‘Civilian Data: Attacks on Shi’a, Pakistan’ < Ibid.
In his application, the applicant claimed that on a number of occasions Sunni customers abused him and urged him to convert and at the hearing he claimed Sunnis invited him to prayers. Noting that the country information reports incidents of blasphemy laws being used against Shi’a and that of the 200 of the people accused of blasphemy in Pakistan in 2020, 70 per cent were Shi’a,[14] I put to the applicant that nothing he had said indicated he was at risk of being accused of blasphemy. The applicant responded that his life is at risk in Pakistan. The applicant said that Shi’a never commit blasphemy against the prophet and that these claims are made to bring Shi’as down in front of the whole population to show they are kaffir and to brainwash people so that they can look down on Shi’as and consider them infidels and to be shot. As discussed, 200 cases of blasphemy in 2020 across the entire country would suggest that this was a rare tactic and, while there will be blameless victims, there is nothing to suggest that there is a risk it could happen to the applicant. The applicant responded that these accusations and propaganda have always been taking place against Shi’a and that it is usually the Sunnis in their sermons who commit blasphemy and insult Shi’a. He claimed that someone in his own country knows more about this stuff and the Pakistan media do not show most of the news and that Pakistan is not a safe country for Shi’as. I note that, as discussed at the hearing, the country information is drawn from DFAT and other sources and I give greater weight to the country information. I find the chance of the applicant being accused of blasphemy to be so unlikely as to be remote.
[14] DFAT Report (n 2) 23, 26.
In the post-hearing submissions, the representative submitted that Quetta was not a safe place for the applicant and his family to reside, that the DFAT Smartraveller website listed Balochistan and the KP provinces as ‘do not travel’ zones and Forbes listed Pakistan as a kidnapping risk for Americans. Having found that there is a very low level of risk of random or targeted attacks on Shi’a, I do not accept that Quetta is not safe for the applicant and his family. As the applicant and his wife are not Americans, I do not accept as relevant the country information from Forbes about countries where Americans are most likely to be kidnapped. I note that Smartraveller advice is for Australians planning to travel, or already travelling or living, overseas.[15] The applicant is a Pakistan national. He claimed, and I accept, that his wife and child will remain in Australia with his wife’s [number] other children. As the applicant is a Pakistan national, I do not accept that the Smartraveller advice pertains to him.
[15] Smartraveller.gov.au, ‘About us’ (Website) <>
Considering the information before the Tribunal and my findings above, I find that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from any group of sectarian terrorists, whether the LeJ or another, for being Shi’a if he returned to Pakistan now or in the reasonably foreseeable future. I also considered whether the applicant would face serious or significant harm in the form of societal discrimination. As the hearing, the applicant claimed he feared harm from the militants, his neighbours trying to take his house and his former in-laws, and these claims have been considered above. Based on the applicant’s evidence and the country information discussed at the hearing, I do not accept that the applicant’s engagements with Sunni customers and being invited to pray is serious or significant harm. I find that the applicant does not face a real chance of serious harm or a real risk of significant harm from societal discrimination of Shi’a if he returns to Pakistan now or in the reasonably foreseeable future.
CONCLUSION
After considering all of the applicant’s claims that I accept, individually and cumulatively, I find that there is no real chance that the applicant will face serious harm in Pakistan for the reason of his race, religion, nationality, political opinion or membership of a particular social group. I find that the applicant does not have a well-founded fear of being persecuted. Therefore, the applicant does not satisfy the criterion set out in s 36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I considered the alternative criterion in s 36(2)(aa) of the Act. I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a)-(e) of the definition of ‘torture’ in s 5(1) of the Act. I am not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the intentional infliction of severe pain or suffering, or pain or suffering, either physical or mental, such as to meet the definition of ‘cruel or inhuman treatment or punishment’ in s 5(1). Nor am I satisfied that there are substantial grounds for believing that there is a real risk that he will suffer such harm as to meet the definition of ‘degrading treatment or punishment’ in s 5(1), which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. Considering my findings above, I am not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of his life or the death penalty. Therefore, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Katherine Harvey
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.
…

[2024] AATA 3973

4 September 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Natural Justice