2013072 (Refugee)
[2024] AATA 4372
•29 August 2024
2013072 (Refugee) [2024] AATA 4372 (29 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Muhammad Raza Ali
CASE NUMBER: 2013072
COUNTRY OF REFERENCE: Pakistan
MEMBER:Nora Lamont
DATE:29 August 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Statement made on 29 August 2024 at 9:48am
CATCHWORDS
REFUGEE – protection visa – Pakistan – religion and ethnicity – Shia Muslim in Sunni-majority country – minority ethnicity with appearance similar to Hazara – discrimination and harassment – in crowd during major bombing attack – fear of harm from extremist groups – mental health – no relatives remaining in home country – country information – official and societal discrimination and increasing intolerance and extremism – no effective state protection and relocation not reasonable – decision under review remittedLEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2Any 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 13 August 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 Pakistan, applied for the visa on 6 July 2018.
The applicant appeared before the Tribunal on 29 July 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
There are no non-disclosure certificates on the applicant’s file.
The applicant arrived in Australia on a valid Pakistani passport and claims to be a Pakistani citizen. The Department had no issues with the applicant’s claimed identity and assessed him as a Pakistani national for purposes of his protection visa application. Therefore, the Tribunal has assessed the applicant against Pakistan as his country of nationality and as his receiving country. The Tribunal also finds that the applicant cannot avail himself of any right to enter and reside in a third country.
The applicant provided the Tribunal with the following submissions:[1]
·Statutory Declaration dated 5 June 2024.
·Awards of Assistance Crime Assistants Tribunal.
·Post Interview (hearing) submission.
[1] See AAT Folio.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant was born in [Year] in Rawalpindi Pakistan. He has one brother and one sister. His father died in 2008 from [cancer], and after his death the family moved to his uncle’s house in Karachi. His mother remarried and moved to [Country 1]. In 2013 the applicant went to [Country 1] to live but he could not attend school and wanted to further his education. Whilst in [Country 1] he worked in a [workplace]. He is no longer considered a dependent on his mother’s visa and is not eligible for permanent residency in [Country 1]. His stepfather assisted him in obtaining a student visa to come to Australia to study.
The applicant’s ethnicity is Balti and his ancestors come from the Gilgit Baltistan region of northern Pakistan. He does not have any relatives remaining in the Baltistan region nor does he speak their language. At this time, he has no remaining relatives in Pakistan as his uncle has since moved to [Country 1].
The applicant’s claims for protection as presented in his application for a protection visa are as follows: [2]
[2] Departmental File [Reference] 26/07/2018 11:03 DOC ID7586890.
- I am belonging to Shia Muslim religious minority in Pakistan. I was sure that if I return, I will definitely face a serious life threat from the Taliban persons and other groups in Pakistan which will result in my death. I am from Balti tribe from Northern areas of Pakistan. I look like I am from the Hazara people which is very dangerous for me.
- I am completely sure that if I return back to that country my life is fully in danger because, of my look and because Shia Muslim and I won't be able to settle and stay in any part of Pakistan. If they find me anywhere in that country, they will kill me because of my profile and appearance.
- Being a young Shia Muslim person with my facial appearance as a Hazara person, I have been completely fearful that I will be targeted and killed in Pakistan.
- The government is helpless against the Taliban and other similar groups in Pakistan.
- It is unsafe all over Pakistan because the groups have their people all over Pakistan.
- I am sure that I will be killed.
- The authorities are helpless in Pakistan.
- It’s unsafe all over Pakistan.
The Tribunal has considered the applicant’s claims as follows below. The applicant’s first claim is: I am belonging to Shia Muslim religious minority in Pakistan. I was sure that if I return back, I will definitely face a serious life threat from the Taliban persons and other groups in Pakistan which will result in my death. I am from Balti tribe from Northern areas of Pakistan. I look like I am from the Hazara people which is very dangerous for me.
The Tribunal spoke with the applicant at the hearing about his religion as a Shia and about the way he looks which he says is like a Shia in the way he dresses, and Hazara in his looks, although he is of Balti ethnicity. The applicant spoke of being a Shia and his religious practices. He goes to Mosque here in Melbourne and participates in religious activities. In 2015 he did a religious pilgrimage to Iran. When he was growing up he was called names and he was targeted and harassed for being Shia and for the way he looks. He felt traumatised from an early age. He always wore Shia style clothing and said he always struggled. He said his life in Pakistan is over and he has no friends in Pakistan. Because he is of Balti ethnicity, he looks different, and people think he is a Hazara which puts his life in danger.
The Tribunal accepts based on the applicant’s evidence both oral and written that he is a Muslim Shia and of Balti ethnicity. The Tribunal further accepts that the applicant looks different and could be mistaken as a Hazara. Given his features and religion the Tribunal accepts he has been traumatised since he was a child and that he fears return to Pakistan based on both his religion and his ethnicity.
The applicant’ second claim is: I am completely sure that if I return back to that country my life is fully in danger because, of my look and because Shia Muslim and I won't be able to settle and stay in any part of Pakistan. If they find me anywhere in that country, they will kill me because of my profile and appearance. This claim is an extension of the first claim and the Tribunal accepts these claims as an extension of his first claim.
DFAT reports that whilst generalised violence and bombings have slowed over the years, blasphemy charges and accusations are on the rise in Pakistan and 70% of these cases are against the Shia population. The latest DFAT report shows that sectarian violence and discrimination against Shia’s is ongoing.[3]
[3] DFAT Country Information Report Pakistan 25 January 2022 pages 22-23 & 26.
Religious extremism and intolerance are on the rise in Pakistan. A record number of blasphemy cases were filed in 2020, and public and online hate speech has increased. While the number of sectarian attacks decreased from 2013-20, in line with an overall improvement in the security situation, violence has recently increased, and attacks on religious minorities, their places of worship and festivities continue. Multiple interlocutors told DFAT the government overlooked religious extremism to avoid antagonising powerful religious lobbies (such as the TLP).
DFAT assesses that people accused of blasphemy are at high risk of extrajudicial violence and the death penalty, and high risk of societal and official discrimination in the form of popular denunciation, unfair trials and inadequate state protection. The risks are especially acute for members of religious minorities, including Shi’a, Ahmadis, Christians and Hindus.
Pakistan is home to the world’s second-largest Shi’a population (after Iran). An estimated 20-40 million Shi’a live throughout the country, constituting 10-20 per cent of the population. There are significant Shi’a communities in Karachi, Lahore, Rawalpindi and Islamabad. Shi’a are in the majority in the sparsely populated autonomous region of Gilgit-Baltistan but are a minority in Pakistan’s other regions.
1.1 Most Pakistani Shi’a (except Hazaras) are not physically or linguistically distinguishable from Sunnis, and national censuses do not distinguish between them. NADRA collects sectarian information during the application process for identity documents, but CNICs do not identify a cardholder’s religion, and passports do not distinguish between Sunni and Shi’a. Some Shi’a may be identifiable by common Shi’a names, such as Naqvi, Zaidi or Jafri. Similarly, ethnic or tribal names can reveal a person’s ethnicity or tribal affiliation: nearly all Hazaras and Turis are Shi’a, as are many Bangash. Ritual self-flagellation during Shi’a religious festivals can leave distinctive, permanent scars, which have been used by militants to identify Shi’a for execution.
1.2 Shi’a are generally able to establish places of worship and practise their religion without overt state interference. They are well represented in parliament and regularly contest elections for mainstream political parties. Shi’a and Sunnis can legally intermarry, although a 2018 report by the Immigration and Refugee Board of Canada found such marriages were ‘not easy, and the difficulty factors may range from social disdain or discouragement to life threats, depending on the locality and region, social stratum, and particular family circumstances’.
1.3 Shi’a face rising religious intolerance and official discrimination in the form of blasphemy accusations. Over 70 per cent of blasphemy cases are against Shi’a. Anti-Shi’a sentiment is seen in politics: in July 2020, the Punjab Provincial Assembly passed a law to ‘protect the foundation of Islam’ which would criminalise Shi’a beliefs about the Companions of the Prophet (the Governor returned it for revision).
1.4 Sectarian tensions often flare during Muharram, when Shi’a mourn the killing of the Prophet Mohammad’s grandson and his family, a key event in the Sunni-Shi’a schism. In 2020, over 40 Shi’a were charged with blasphemy following Muharram, including clerics accused of insulting the Companions of the Prophet during ritual processions. Thousands of Sunni protesters took to the streets in Karachi and Islamabad chanting anti-Shi’a slogans. There were targeted killings of Shi’a in multiple cities. The Karachi head of the TLP openly threatened beheadings for Shi’a ‘blasphemers’. Videos of these incidents circulated on social media. Authorities have attempted to curb sectarian hatred during Muharram, for instance by banning firebrand Sunni and Shi’a clerics from leaving home and by cutting off mobile phone services in major cities during processions.
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.
In a country plagued by Sunni Islamic radicalization, women and ethnic minorities face grave insecurity as well. The Punjab-dominated military-politician complex violates the human rights of various groups including Balochs, Hazaras, Sindhis, Ahmadis, and people of Gilgit-Baltistan. These communities frequently experience violent attacks on their social gatherings and places of worship orchestrated by Sunni extremist groups and individuals. [4]
[4] 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,
In relation to the country information, it is clear that the applicant faces generalised secular violence and violence against him based on his religion as a Shia Muslim who faces being called a blasphemer throughout Pakistan.
The applicant’s third claim is similar in nature to the first two claims. Being a young Shia Muslim person with my facial appearance as a Hazara person, I have been completely fearful that I will be targeted and killed in Pakistan.
At the hearing we spoke about the applicant’s involvement at the Ashura parade in 2009. The applicant was around [Age] years old at the time and whilst in the crowd a bomb went off and 45 people died with many injuries. There still has been no justice for this bombing. [5] Further, the applicant claimed during the hearing that in 2012 he was riding a motorbike when a motorcycle intercepted him and fired two towards him. He was not injured and filed an FIR with the police, but nothing ever came of it.
[5] 14 years on, govt fails to bring culprits of Karachi’s Ashura bombing to justice - Pakistan - DAWN.COM
The applicant claims to be traumatised by the events of 2009 when he was [Age] years old and being shot at in 2012. Combined with his appearance and being discriminated against since he was a child the Tribunal has considered that the applicant does hold a well-founded fear of persecution in his home country.
The applicants fourth claim is in relation to the government of Pakistan and is as follows: The government is helpless against the Taliban and other similar groups in Pakistan. DFAT reports the following in regard to the Taliban and other extremist groups and the governments response: [6]
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.
In a country plagued by Sunni Islamic radicalization, women and ethnic minorities face grave insecurity as well. The Punjab-dominated military-politician complex violates the human rights of various groups including Balochs, Hazaras, Sindhis, Ahmadis, and people of Gilgit-Baltistan. These communities frequently experience violent attacks on their social gatherings and places of worship orchestrated by Sunni extremist groups and individuals. [7]
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,
[6] DFAT Country Information Report Pakistan 25 January 2022 page 26.
[7] type="1">
Given the ongoing threats by Sunni Islamic radicals and groups such as the TTP the state appears powerless to protect the Shia and minority ethnic populations and the applicant would not be afforded effective state protection. DFAT reports: [8]
Pakistan’s formal legal framework provides for state protection of people’s property, lives, places of worship and religious beliefs. However, DFAT assesses that state protection in Pakistan is limited due to under-resourcing, corruption, socio-economic factors at the individual level, and lack of political will. Some groups are denied adequate state protection on discriminatory grounds (for example, Ahmadis).
Despite measures introduced to curb violence across the country under the NAP – including strengthened powers for military and paramilitary security forces and the establishment of military courts – successful prosecution for politically motivated or sectarian violence is rare. This is due to ineffective police investigations, a lack of forensic capabilities and prosecution and judicial legal understanding, and threats against judges, lawyers, witnesses and their families.
[8] DFAT Country Information Report Pakistan 25 January 2022 page 40.
The applicant’s remaining claims are as follows: it is unsafe all over Pakistan because the groups have their people all over Pakistan. I am sure that I will be killed. The authorities are helpless in Pakistan. it’s unsafe all over Pakistan.
The Tribunal has considered relocation within Pakistan as an option for the applicant. However, the country information indicates that for the applicant as a Shia and Balti there is nowhere within Pakistan that the applicant can relocate to avoid the harm, he feels in his home area. DFAT reports the following: [9]
Article 15 of the Constitution guarantees the right to freedom of movement in Pakistan. Internal migration is widespread and common, but it depends on having both the financial means and family, tribal and/or ethnic networks to establish oneself in a new location. Single women find it especially difficult to relocate (see Women). For some groups (such as Hazaras), travel by road is unsafe in certain parts of the country, and those who must travel and can afford to fly do so.
Large urban centres such as Karachi, Islamabad and Lahore have ethnically and religiously diverse populations, and offer some anonymity for people fleeing violence by non-state actors (see relevant sections). Some groups, such as Pashtuns, occupy enclaves in these cities, while others, such as Ahmadis and Hazaras, avoid living in enclaves to reduce the risk of being targeted. Certain types of threats (such as honour killings) are persistent, and even if people relocate they can be tracked down and killed years later (see Women). DFAT assesses that groups facing official discrimination (see relevant sections) will face discrimination in all parts of the country.
[9] DFAT Country Information Report Pakistan 25 January 2022 page 43.
It is clear from the country information that Shia’s and minority ethnic groups such as Balti’s and Hazaras face ongoing threats of sectarian violence and there is little to no state protection available to them.
The applicant also has persistent mental health issues which were exasperated in Australia while he was at work and was assaulted. The Tribunal is required to consider any unarticulated claims that arise ‘tolerably clear’ from the material itself. It was clear from the evidence that the applicant is suffering from PTSD and that he is seeking help for this disorder. As he is seeking help and I have found the applicant to be a refugee I accept his claims of having PTSD both from his oral evidence and the evidence provided to the Tribunal from his psychologist.
For the reasons above, the Tribunal finds that the applicant faces a well-founded fear of persecution on return to Pakistan for reasons of his religion as a Shia and his ethnicity and race as a Balti. Therefore, the Tribunal is satisfied that the applicant has a well-founded fear of persecution in accordance with s5Jof the Migration Act. Further, the Tribunal is satisfied that the applicant is outside their country of nationality and owing to this well-founded fear of persecution is unwilling to avail himself of the protection of Pakistan. Therefore, the Tribunal finds that the applicant is a refugee within the meaning of s36(2)(a) of the Migration Act.
Given that the Tribunal has found the applicant to be a refugee there is no need to consider the alternative criteria in s36(2)(aa) of the Act.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Nora Lamont
MemberATTACHMENT - 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.
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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.
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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.
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Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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Statutory Construction
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Remedies
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Standing
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