2100348 (Refugee)

[2024] AATA 2735

2100348 (Refugee) [2024] AATA 2735 (2 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2100348

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Denis Dragovic

DATE:2 May 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 02 May 2024 at 10:47am

CATCHWORDS
REFUGEE – protection visa – Pakistan – political opinion and ethnicity – volunteer then employed NGO project worker – member of Pashtun student organisation and political party, and family’s political involvement – participated in protests and interviews and organised cultural day – threatened, two friends killed and applicant injured, and family attacked – social media activity – returnee from Western country – low-level profile – family’s political involvement and some incidents accepted – inconsistent, contradictory and implausible claims and evidence of events, places and times – mental health and treatment, passage of time and effects of medication – parents and one brother remain in home area – country information – substantial change in security situation – high risk of discrimination and harassment but no real chance or risk of serious or significant harm – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 January 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a citizen of Pakistan. He applied for the visa on 10 September 2018. The delegate refused to grant the visa on the basis that on the claims accepted as fact the applicant did not trigger Australia’s protection obligations.

3. The applicant appeared before the Tribunal on 22 March and 16 April 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto and English languages.

4. The applicant was represented in relation to the review prior and during the first hearing. The representative subsequently indicated that she was no longer retained by the applicant preceding the second hearing.  

   PROCEDURAL MATTERS

5. This matter was first constituted to a different member in 2023 with a hearing set down for November 2023. The member resigned from his appointment and as such the case was reconstituted to this member with a hearing scheduled for 22 March 2024.

6. A request for postponement was received on 20 March 2024 on the bases of the poor health of the applicant and the representative.

7. The letter explained that the applicant’s mental health had precluded him from attending pre-hearing appointments prior to 15 March 2024. The letter explains, ‘He instructs that when renotified of his hearing date, he became stressed, and his symptoms increased and therefore he could not attend scheduled appointments to prepare for the hearing.’ The letter then goes on to explain that although the applicant met with his representative on 15 March, ‘we still need to finalise his instructions for his statement and his submission. To ensure we can properly assist the applicant prepare for his hearing including providing an updated statement and submission, we request an adjournment of no less than two weeks.’

8. A medical certificate from October 2023 was attached from a General Practitioner which states that the applicant had PTSD, melancholic depression/anxiety, and gross insomnia. A second certificate dated April 2024 was provided to the Tribunal at the second hearing. This certificate contained the same information as the first.

9. Noting that the applicant had been first invited to a hearing in November 2023 the applicant and representative had ample time to prepare for what eventuated to be a hearing in March 2024. I also note that the nature of the applicant’s illness was not a time bound illness and instead the symptoms of such illnesses are such that they would continue regardless of when the hearing would be held. As such I refused the request.

10. The second reason given for the request for postponement that was regrettably overlooked was that the representative wrote that she had a chest infection that began on 18 March and persisted as of the date of the request. It is unfortunate that the representative was required to attend on the 22 March while overcoming an infection. At the hearing this was discussed, and it was agreed to proceed as she was already present but not infectious.

11. A complete and substantial submission was received prior to the hearing including a detailed statutory declaration by the applicant. I noted at the onset of the hearing that the nature of the matter would most likely require a further hearing and that post hearing submissions between the first and second hearing would be welcomed.

12. The representative ceased to represent the applicant after the first hearing. As such, opportunity was given at the start of the second hearing for the applicant to add or clarify any of the evidence he had provided earlier.

13. Two letters were received outlined the general practitioner’s assessment of the applicant’s mental health. As noted, the content of the letters was the same. The content of the letters and the applicant’s mental health were discussed in the context of facilitating his meaningful participation in the hearing. I asked the applicant what approach or adjustments could help the applicant in addition to regular breaks and an opportunity to speak with his representative at any time. The applicant stated that he was on regular medication but that the medication would not affect his ability to participate though it has affected his memory.

14. I also engaged with the applicant on the adequacy of the interpreter arising from the claims of concern during earlier engagements with interpreters. The applicant confirmed that the interpreter was satisfactory. I also noted that he spoke English well enough to be able to identify issues with interpretation and as such should raise them as soon as he identifies them. The applicant did this a few times through the hearings and as such I am satisfied that he was able to adequately identify any issues that arose from interpreting.

    CRITERIA FOR A PROTECTION VISA

15. 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.

16. 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.

17. 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).

18. 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.

19. 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

20. 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.

21. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. The applicant is a [Age]-year-old male. He is a citizen of Pakistan who lived in Karachi prior to moving to Australia. He is ethnically Pashtun.

23. The applicant was born and raised in Karachi. He completed [a Subject 1] degree and began a master’s degree at [University].

24. There was some confusion over the dates of his education. In his protection visa the applicant listed undertaking his Bachelor of [Subjects 1] between 2015 and 2017. A letter he provided from [University] indicated that he was admitted to the Master of [Subject 2] program in the academic session of 2016-2018. In his protection visa application, he writes that his master’s was from 2018 and that he had withdrawn. As this decision does not turn on these specific dates, I place no weight on the conflicting evidence.

25. The applicant claims that one brother is in hiding in Pakistan, though subsequent evidence he provided was that he was living with his wife and [children] in the same area as his parents with the only risk of harm being of his Pashtun ethnicity. Other brothers are living abroad, one in [Country 1] and three in Australia along with a sister in [Country 2] and two in Pakistan. 

26. The applicant’s parents continue to live in Karachi in the family home.

27. The applicant explained at the hearing that he worked as [an occupation] undertaking [project work]. He said that he began this work when he was studying a bachelor’s degree and continued through to while he was studying a master’s degree. He said that he began working on the [project work] in around 2011 or 2012.

28. He explained that he worked intermittently, he would be called to undertake some work by the NGO, [Organisation], who would be contracted by the United Nations, and they would call him when needed. At some points of the hearing, he acknowledged that his outreach work with the [project work] was entirely in Karachi but at others he claimed that he worked in northern Pakistan.

29. During his time in Pakistan the applicant claimed that he was active with the Pashtun Student Federation (PSF) and the Awami National Party. He said that he obtained the [project] work through his political activities.

30. He said at the hearing that he was the president of the PSF in [University] for two years, beginning around 2015. This was not included in his original statement, but it is mentioned in the delegate’s decision as him claiming at the interview that he was the ‘night president’ of a ‘ward’. In his 2018 statement he simply wrote that he joined the PSF.

31. At the hearing he said that the PSF aimed to provide support through volunteer work to all members of the community.

32. At a later point in the hearing, the applicant corrected the claimed timing of his presidency saying that he was still President when he left Pakistan suggesting that he couldn’t recall exactly the dates. He said that while in that role it was common to receive threats and some of his colleagues were killed.

33. The applicant said that two friends of his, Naqeeb Mehsud and [Mr A], were killed.

34. The applicant described at the hearing the circumstances of learning of his friend, Naqeeb’s murder in mid-January 2018. He said that he was in his family home in Karachi when this occurred. He said that he came to Karachi from hiding in the north of Pakistan to undertake his visa application. He said that he had also arranged an event, a Pashtun Culture Day, through his political party to which his claimed friend Naqeeb had attended earlier in January 2018.

35. The death of Naqeeb Ullah Mehsud is widely reported as it is a significant factor in the development of the Pashtun Tahafuz Movement (PTM). The applicant provided an article written by Dr Ishtiaq Ahmed that describes the shift of the movement from the Mehsud Tahafuz Movement that was focused on the issue of clearing landmines, before Naqeeb’s death, to a broad-based Pashtun rights movement named PTM. The article along with many others online detail the role of Rao Anwar, a senior police officer, in the extrajudicial killing of Naqeeb.

36. The applicant noted how Rao Anwar was now free, but I read to him reporting that the case against him was being appealed to the Sindh High Court by the prosecutor.[1] He asked rhetorically how someone who killed so many people, an estimate being 400 people, could remain on the streets.

    [1] December 2023

37. The applicant provided evidence that he then participated in protests arising from the killing. Separately he provided photographs of him among an ANP crowd. I accept that the applicant participated in protests against the Naqeeb killing and at least on one occasion he participated in an ANP public campaign event and that this campaign event is separate to the protests that occurred after Naqeeb’s death.

38. Related to the death of Naqeeb, the applicant submitted articles of the death of Manal Mehsud and Aftab Mehsud. He suggested that they were killed because they were friends of Naqeeb and that they had witnessed the murder of Naqeeb. He feared that as a friend of Naqeeb, he too would be targeted. I noted that they were all from the same tribe and that the sit-in was attributed in reporting provided by the applicant to tribal issues.[2] He initially said that only two were from the same tribe, but I noted that they are all Mehsud to which he acknowledged that it indicated that they were.

    [2] >

    I noted that reporting stated that Manal was murdered because he was in the trucking business and there was some monetary dispute.[3] He said that he didn’t know Manal but that he knew he had a trucking business.

    [3] >

    I asked the applicant how his relationship to Naqeeb would lead to him being killed. He said that had he not run away he would have been killed. I noted that earlier he had said that the two others who were killed had witnessed the murder, but I noted that the applicant was not a witness to the murder as he had said he was at home at the time. He said that Naqeeb was a junior officer in the PSF with him and they were studying together. I put to him that there is no evidence to suggest that Naqeeb was killed because he was an officer of the PSF. He said that all Pashtuns are at risk as they are being suppressed.

39. According to the applicant’s timeline his other friend [Mr A] was killed in late January. The applicant described this incident as being after a visit to a [Public figure]’s office and on the way home at night as he was passing through a [location]. He explained at the hearing that he was travelling together with another three people, two sitting on one of each of two motorbikes. [Mr A] was on the other motorbike, according to the applicant. He said that as shots were fired, the applicant fell from his bike. He said that he was shot in his leg. He offered to show the wound at the hearing, but I noted that I am not qualified to assess whether a scar is a scar from a bullet wound or some other type of wound. I offered an opportunity for the applicant to obtain a professional assessment and to submit it to the Tribunal. No further evidence was provided.

40. I note that in his 2018 statement he does not mention being shot but only that he ‘got multiple injuries by falling down from our motorbike’.  

41. After he fell from his motorbike the applicant said at the hearing that other people came to help him, and they took him to the hospital. He said that at his stay in hospital the police took his statement, and the FIR was written. I read from the FIR which states, ‘the complainant did not take bullets’. The applicant explained this by saying that the bullet didn’t stay within him. He dismissed the details of the report as being written by the Inter-Services Intelligence (ISI) and that they can write anything that they want. 

42. I also noted that the FIR didn’t mention the four men who were riding the motorbikes. It just mentions [Mr A]. He said that [Mr A] and he were sent to the same hospital and the other two to another hospital. He said that he is unsure if there is any media coverage of the incident. He said that he can’t remember if he submitted any. None were available to the Tribunal.

43. The applicant claimed that he received ‘lots’ of telephone threats. He said they spoke in Urdu and warned him that they will do to him what they did to [Mr A]. He said that these sorts of threats were targeted at all Pashtuns.

44. He claims he received a threat letter with a bullet in it and that it was from the ISI. He believes that others who were killed were killed by ISI operatives. He said at the hearing that the letter was received after [Mr A] was killed.

45. But at another time in the hearing, he recalled that he had received the letter with the bullet around 2016 or 2017, suggesting to the Tribunal that it was a period when he was between his bachelors and master’s studies. He couldn’t remember if he was president of the PSF at the time. He said that the medication he has been taking had affected his memory.

46. Following the narrative that it was received in 2017 he said that because of the threat letter his father told him that he had to leave the country as soon as possible. He said that he left for [Country 3] in 2018 to try to get a visa for [Country 1], but he was refused it. He said that he sent all the paperwork to his brother, and his brother managed the process for him.

47. In his protection visa application, he wrote that he was in [Country 3] in March 2017. I put to him that there was a discrepancy in the dates that he was claiming to be in [Country 3]. We confirmed with a copy of his passport that he was in [Country 3] in March 2017. He again referred to his poor memory to explain the discrepancy.

48. The applicant confirmed that he remained in [Country 3] for three weeks because he said that it was too expensive. I asked how it was that none of his brothers in Australia or [Country 1] could support him so that he would remain safe in [Country 3]. He said that his brother in [Country 1] was struggling financially and his other brother in Australia was supporting him at that time. I put to him that three weeks is a short time to remain away from Pakistan if he was fleeing from fear of harm. He said that immediately after returning his father sent him to Gilgit, a city in the Kashmir region. I asked him to confirm this claim, and he said that he was sure that he went to Gilgit immediately after returning from [Country 3] which would make it about April 2017.

1. I put to him that in his 2023 statement he wrote that he went to Gilgit after the January 2018 events where two of his friends were claimed to have been killed, whereas at the hearing he was now suggesting that he went to Gilgit in April 2017. He said that he moved around the Gilgit area during this period and his written reference to Gilgit in January 2018 referred to Gilgit city specifically. He said that twice he moved from Gilgit to other Pashtun areas nearby. He said that he would return to Karachi when he needed to do things for a few days including applying for the visa to Australia. To avoid doubt I asked the applicant to confirm whether he was saying that he was based out of the broader Gilgit area between the period that he returned from [Country 3] and came to Australia. He confirmed this.

2. I put to the applicant that I was doubting his claims. I explained that he initially said that he went to [Country 3] in 2018, when I showed him that it was 2017, he accepted that. I noted that then he claimed that he remained in Gilgit the entire time between [Country 3] and Australia with some short trips to Karachi. Were this scenario correct it would mean that from April 2017 through to July 2018 he was outside of Karachi. Yet, I noted that in his submissions he writes of key events occurring in January and February 2018 that led to him fearing harm and as such needing to move to Australia including the incident in which he was claiming to have been shot at while on a motorbike.

3. The applicant initially said that he was not clear on what my concerns were. He confirmed that the night time incident while riding a motorbike was in Karachi and that he was returning from a political event. I put to him that he had earlier said that he was in Gilgit at that time. He responded that he would go to Karachi to do jobs including important meetings. He said that he was also doing social work with the [project work] in Karachi. I noted that Gilgit is in the north of Pakistan and Karachi is in the south of Pakistan and yet he was claiming to be returning to Karachi to attend political events and do social work even though he was claiming to be fearful for his life.

4. He asked for clarification. I asked if he did any [project] work after he returned from [Country 3]. He said that he did. After repeating this question, the applicant said that he did not. He confirmed that he did only political work. I noted that earlier in the hearing he said that he did [project] work through to 2018, until he came to Australia. He responded that the job was available in any Pashtun area, and that he was doing the same work in the Gilgit area. He said that he was contracted through another NGO in Gilgit. He said that he only did it twice as he was in hiding there. He said that the ANP contacted him online to help as a volunteer.

5. The applicant provided a letter from [Employer] dated 1 January 2018 which states that he was working on [project] activities from June 2016 through to 30 January 2018. I asked how he could be working on that campaign if he was in Gilgit and only returning to Karachi for short periods of time. He said that he was a part of a [project] group, but he wasn’t working and instead was in hiding. He said that since 2011/12 he was doing [project] work with [Organisation], but he first received remunerated work on [projects] when he worked for [Employer] beginning in 2017. In his pre-hearing statement, he wrote that he worked with them for approximately 18 months.

6. I noted that the letter stated he began with them in 2016 which he acknowledged could be possible. He said that it was three days a week. In his statement he writes that he worked with them for 18 months. I noted that on his employment visa application form under the question of whether he had ever been employed, he ticked ‘no’. When this was put to him, he said that he didn’t know why that was the case.

7. I noted that the letter from [Employer] doesn’t say anything about salary, start dates, or other details. I asked for the employment contract. None was provided.

8. I noted to the applicant that he had provided a letter from [University] dated 10 April 2018 that states in the present tense that he is a current student at that time. I asked if he continued to be a student at the University while he lived in Gilgit. He said that he continued to be a student but didn’t go to any classes. But then he said that he sometimes would attend classes when he would return to Karachi. Later he said that he didn’t attend classes. This conflicting information he attempted to clarify by explaining that he attended University for the purposes of going to his political offices but not attending any classes.

9. With regards to his involvement with ANP, he confirmed that he did not hold any positions. He described himself as a ‘simple worker’. He said that he joined the PTM after his friend Naqeeb was killed. He confirmed that he did not hold any positions with the PTM. In considering his various claimed associations with political parties, I give the applicant the benefit of the doubt despite considerable concerns and accept that he was the president of the PSF at [University] for a period of over a year. I find that he was not a member of the ANP in of itself but rather by way of being a member of the PSF which is the student wing. I find that he joined the PTM movement in the months preceding his departure from Pakistan.

10. The applicant claimed that he received threats because of his roles. I accept that he received verbal threats.

11. The applicant had also raised claims arising from the Pashtun Cultural Day that he claimed to have organised during which he was involved in traditional dancing which was filmed. He said that these videos can cause him harm from the Pakistan Taliban. He said that they accept Sharia and that under Sharia you are not allowed to dance. He noted that many of the students at the culture day were female inferring that dancing in front of females was not allowed.

12. The applicant provided a screenshot of a picture on a [Media] app or website with him clearly visible and dressed in traditional clothes. I noted that judging by the dress of others in the photos provided it was a conservative event as the women were covered and there were older, traditionally dressed men that he later identified as including the Vice-Chancellor of the [University], a former General. He responded it was the first time that the University hosted such an event but because of the subsequent threats he didn’t think that they would in the future. He referred to the threats as being his friend, Naqeeb’s, death. He said that the people who would harm him don’t like Pashtuns to fight for their rights, and that it wasn’t just about the dance or the cultural day.

13. I asked the applicant what the chance was that someone saw the video when it was posted or would find it now (a live link was not provided), and then would identify him from that video and then seek him out in a country of 220m and harm him. The applicant responded that he provided the video to show that he was a student, activist, and participant; but otherwise he would be known by name because he was a former president of the PSF.

14. The applicant claimed that he had conducted media interviews while still living in Pakistan. He listed them as being on [a YouTube channel] about the National Cultural Day and a piece that was reported on the [University] website. I asked the applicant why he would be appearing for a radio interview if he was in hiding, in response he said that he only went into hiding after the death of Naqeeb which is contrary to the extensive evidence he had given earlier about being in hiding in Gilgit.

15. The applicant provided a letter from a Pakistan People’s Party member of parliament. The letter states that the applicant comes from a ‘very reputable political social family’, that the applicant ‘belongs’ to the ANP and that ANP members face the worst of the terrorism. The author of the letter wrote that the applicant’s family became targets of extremism because they oppose the Taliban. When this was discussed at the hearing the applicant said that he was known to the politician.  

16. We discussed the applicant’s social media. He said that he had 1,500 followers on [Social media 1] and 400 on [Social media 2]. Numerous posts were provided in submissions. I put to the applicant that they included reposts of news articles; reposting messages by PTM; reposting a post from Voice of America; and basically, retweeting other’s posts and that they don’t seem very contentious. He said that if you translate them, they are risky because they are about Pashtun rights. I accept that some of the posts are about Pashtun rights. 

17. I put to him that his posts did not have many likes or engagement, mainly with single digit figures if any. He said that in addition to the individuals whose accounts saw the posts other family members would also know of the posts he made so his impact is wider than what is evident.

18. I noted that relative to the population of Pakistan having a following of 1,500 on [Social media] would be indicative of a very low social media profile. He said that his posts were targeted at Karachi and as such his following was larger relative to the population of Karachi rather than the whole of Pakistan.

19. Regarding his family’s experiences, he said that in 2012 his father faced an extortion attempt that brought the involvement of the authorities. He said as a result his family had to flee and for that reason are scattered around the world. I noted to the applicant that the event he described was in 2012 and yet he came to Australia in 2018 and I note that his parents remained in the same house during this period through to the present. This would be indicative of the then threat no longer being live. He clarified that it was his response to the general consequences of such incidents that he was discussing and not the immediate aftermath of that specific event.

20. He also claimed that in 2013 or 2014 the family vehicle was shot at while parked in front of their house and that in 2012 a hand grenade was placed on their front gate. He said that these were the major attacks, but other incidents also occur.

21. In the pre-hearing statement and at the hearing the applicant said that about twelve months earlier his house was fired at. I asked if they could have been random shots as people are known to, for example, celebrate soccer matches with gun fire. He responded that such celebrations are usually flagged in advance and can be confirmed afterwards. He believes it was because of his family’s political affiliation. I noted that there was no message conveyed and as such a few random gun shots would seem a very indirect way to convey a threat. He said that this is ‘their’ way of doing things.

22. The applicant had claimed in written submissions that his brother who remains in Pakistan has received ongoing threats. The applicant clarified at the hearing that those threats were from the time of his father when his father was young, and that otherwise he is not politically involved but as a Pashtun he is not safe, adding that the risk is especially acute for those who are educated. The applicant said that his brother is married and has [children] and lives in a mixed area. He believes that the threat to his brother arising from the family’s political activities come via social media and that they are from the military or ISI and that he cannot discuss it directly over the phone. I accept that the applicant’s brother receives some threats via social media relating to being Pashtun and/or his family’s political profile. I do not accept that they come from the government but rather from random users arising from the cut and thrust of social media insults and threats.  

23. Another brother who is currently residing in Australia was once a candidate for a ward (local government) which is the lowest level of elected office in Pakistan. He claimed that his family supported the campaign for the senate of another ANP member in the 2008 elections and that his brothers while in Pakistan were actively involved. The applicant said that his family have had a long history of support of the ANP and that the PTM are closely associated with the ANP in their aspirations and support. I accept these claims.

24. The applicant claimed that he has been involved in the ANP while in Australia including attending three meetings a year, two of which he described as being related to Eid, and a protest but that he held no official role. I accept this as fact.

25. In turning my mind to the applicant’s evidence, I found it often contradictory and vexing. I do not engage with the discrepancies over dates as the applicant claimed that his medication had affected his memory and I accept that a considerable number of years had passed since some of the matters being discussed and under the pressures of a hearing it is very possible that he was unable to correctly recall dates.

26. I now turn my mind to the applicant’s persistent claim that he was in hiding since returning from [Country 3] despite repeatedly being ask about this and noting how it differed from other evidence. There is no mention of the applicant being in hiding in his statement accompanying the protection visa application and he does not list living outside of Karachi under addresses in his protection visa application form.

27. In his 2024 pre-hearing statement, he wrote:

    In March 2018, after I had recovered [from the January 2018 attack], my father sent me to [Country 3]. He was concerned that I would be killed if I remained in Pakistan. I could not stay permanently in [Country 3]. During this time, I continued to recover from injuries. In April 2018, I returned to Pakistan. My father made arrangements for me to go into hiding in Gilgit. I was forced to remain in hiding and limit my movements to avoid further harm until I came to Australia [in August 2018].’

28. But the applicant didn’t return in April 2018, rather April 2017 according to his statement and passport.

29. I have considered whether there could be typographical errors acknowledging that the statement was prepared in a hurry, but I note that preceding this paragraph he explains that this move to [Country 3] was precipitated by the attack on him and [Mr A] which at the hearing he had confirmed occurred after the death of Naqeeb Ullah. This aligns with his original statement in which he dates the [Mr A] shooting event as being [January] 2018 and an ANP letter provided to the Tribunal that reports the applicant being shot at [in] January 2018. As no other incident was claimed to have occurred at the end of January this appears to be referring to the [Mr A] incident. 

30. I have given considerable thought to the possibility of his mental health or the apparent rushed nature of the writing of his pre-hearing statement creating some inconsistency that could set aside any doubts. But even the applicant’s oral evidence was internally conflicting. When considering the large number of conflicting claims and not being able to find some credible explanation despite putting the concerns to the applicant, I find that the applicant did not go into hiding. His claim that he spent over a year in the north of Pakistan while continuing to undertake [project] work there with an NGO based in Karachi, returning to Karachi to attend political meetings and organise a cultural day despite fearing harm is not plausible.

31. I also do not accept that the applicant went into hiding in the north after the events of January 2018. As noted earlier, the original application did not include any reference to going into hiding or alternative addresses, the applicant said that he applied for his visa from Karachi and the letter from [University] dated April 2018 states that he is a current student.

32. For these reasons, I find that the applicant remained in Karachi throughout his period in Pakistan. As such I place no weight on claims that he was in hiding because of a fear for his life.

33. I accept that Naqeeb Ullah was killed as it is widely reported. I accept that the applicant knew the man. I do not accept the applicant’s suppositions that the other Mehsud men were killed because of them being witnesses to his murder as the reporting indicates otherwise. I also do not accept that the ISI were manipulating this reporting as there is no independent evidence before the Tribunal to support this claim. I do not accept that there is any lingering threat to the applicant arising from his claimed acquaintance with Naqeeb Ullah as he was not a witness to the murder and there is no reason that he would be pursued six years later by a police officer who was facing ongoing criminal proceedings against him or any of his associates.

34. With regards to the [Mr A] incident, I note that no reporting was provided and none could be found of such an incident despite reports being available of the deaths of the Mehsud men and there being considerable media and social media coverage of sectarian, terrorist, or political incidents in Pakistan. The FIR provided by the applicant provides some contradictions to the applicant’s oral evidence including whether he was shot and the number of people involved. He provided a letter from the ANP stating that he was involved in shots being fired at him, but this letter does not mention that he was harmed. I have considered whether his mental health could be a factor in the doubts identified earlier arising from this claimed incident but note that if this was the case then I would need to accept the FIR as a contemporaneous account of the circumstances which suggests that the applicant was not shot.

35. In considering the evidence and the nature of the applicant’s mental health, I find that the applicant was present when shots were fired but that he was not harmed. Due to the nature of the circumstances, it would be speculative to deduce that the shots were related to their participation in a political meeting and that the attackers followed them until at some point they chose to fire at them but then that such a political hit job that led to the death of a person attending a political meeting with a Senator would not be reported in the news. I refer to the information discussed below under ‘Country Information’ that there have not been attacks against ANP members in Karachi and as such it adds to the unlikelihood of the attack being politically motivated. There are other possibilities including a random failed attempted robbery or simply random violence.

36. As I have not accepted that the incident leading to [Mr A]’s death was a political hit job, I do not accept his oral evidence that he received a threatening phone call shortly afterwards that referenced the death of [Mr A] and threatening to do the same to him.

37. I do not accept that the applicant received a threatening letter with a bullet inside that he claimed was sent from an ISI operative. The applicant’s narration of the order of events regarding the letter was confusing. At one point it was received after [Mr A]’s death and at another it was what prompted him to leave Pakistan. In addition, the applicant was not an important or influential figure. Based on the applicant’s very low-level profile and the available country information, it is implausible that the ISI would be sending him threatening letters or have any interest in him. This finding of fact is not dependent upon the applicant’s mental health, as it is not based on inconsistent claims but rather the implausibility of his claim.

38. I accept that the applicant’s family have been involved in Pakistan politics and that they have in the past, which the applicant described as being in 2012-2014, experienced pressures including attempted extortion, the family vehicle being shot at while parked in front of their house and a hand grenade being placed on their front gate. I accept this as country information indicates that those years were particularly violent in Karachi and that the violence involved warring political parties. As such it is plausible that such events occurred.

1. With regards to the most recent claimed firing at the family house, I do not accept that it was targeted considering that there was no message or threat. Furthermore, twelve months have passed, and no harm befell any family member. Prior to this incident there is no claim of any other threat for several years. There are many possibilities for why some bullets may hit a building including most likely celebratory gun fire but also wayward gunfire or just accidental firing of weapons. Without any other threat, further action, or message, I find that this was not directed at the family.

2. As noted earlier, I accept the applicant’s narration of his early school years including that he once held the position of Pashtun Student Federation president in [University].

3. Regarding his claim of working on [projects]. I accept that he had volunteered on some and worked in a remunerated manner on a limited number of campaigns through his work with [Employer] from 2016 through to 2018. I accept that he was threatened at times while working on those campaigns because it is widely reported that [project] workers are threatened including as per the information provided by the applicant’s representative. The applicant has not claimed that any harm befell him while undertaking such work. I find that he only worked in the Karachi area. I do not accept that he worked in north Pakistan because I do not accept that he went into hiding.

4. I accept that the applicant was a key figure in the organisation of the Pashtun Cultural Day in January 2018. I accept the descriptions of the day that he provided including the attendance of the Vice-Chancellor. I also accept that the applicant provided some media commentary on matters related to Pashtun issues arising from the cultural day. I find that there were no repercussions to him following the event as I have found that the [Mr A] incident was not politically targeted.

5. Regarding the applicant’s social media, I accept his claims that he has 1,500 followers on [Social media 1] and 400 on [Social media 2]. I do not accept his interpretation of his posts being controversial, nor do I accept that his posts are more widely read than what the numbers indicate. Instead, I find that he has a very small social media footprint based on what are mainly reposts of anodyne issues with some pointed commentary. I find that there is very little engagement with the applicant’s posts.

   Country information

6. I noted to the applicant that a database that tracks terrorist and sectarian violence shows that in Karachi there were 12 civilian deaths in 2022 and 17 in 2023. I suggested to the applicant that this would indicate a very low level of terrorist, political or sectarian violence. I put to him that this would be indicative that it is a safe city from the perspective of terrorist, political and sectarian activity.

7. He said that there were a lot of deaths earlier. I agreed and noted that over 1,000 civilians died in each of the years 2012 and 2013, but less than 20 per year since 2017. The applicant didn’t agree with those statistics. He believes more than 17 have been killed in the four months of this year alone. He gave an example of police clashes with some armed groups, but I noted those deaths were not civilian deaths.

8. I suggested that the reason for the reduced Taliban activity was the change in leadership and its change in focus to avoiding civilian deaths which was deemed to be counterproductive.[4] He said that if there were such good Taliban, why wouldn’t the US government have worked with them. He said that there are no good Taliban.

   [4] >

   We discussed the size of the PTM and that there is evidence to suggest there are a million followers and asked if he thought that they were all at risk of harm.[5] He said that his situation is different as he conducted media interviews, was attacked and was close to other members.

   [5] >

   Country information was provided in the pre-hearing submission of PTM followers protesting in Lahore who were detained in January of this year. I note for completeness that just because some people are detained protesting, which happens in Melbourne and other Australian cities, it does not follow that all PTM followers are being targeted. There is no further evidence about these protests such as whether they were illegal, violent, or involving people who were pushing other agendas. As such I place limited weight on such information as it relates to the applicant’s situation in Karachi.

9. With regards to the situation of Pashtuns, I put to him that there are 35 million Pashtuns and asked whether he believed all were at risk. He said that Pashtuns will fight for their rights when their land is at risk and that this puts them at risk.

100.   We discussed whether there is any evidence of ANP officials or members being harmed in Karachi over recent years as I put to him that research undertaken on this question found that there is no evidence that any incidents have occurred since 2014.[6] The applicant referenced the death of Haroon Bilor who was killed in a suicide bomb, and that not long after his son returned from overseas and was killed. But in the hearing, I noted to the applicant that he was a politician in Khyber Pakhtunkhwa and that he was killed in that province.[7] The applicant gave other names but said that there was no media coverage of their killings. He said that if everything is okay in Karachi, why are PTM meetings banned, noting that the ANP are close to the PTM in their mission. 

[6]  I note that the above data is in contrast to the letter from the Pakistan People’s Party member of parliament who wrote that ANP members face the worse of the terrorism. I accept the data compiled by independent third party sources over the general statement of the PPP member of parliament.

102.   The applicant’s representative provided country information in her pre-hearing submission including extracts from the DFAT report. I note that some of the DFAT material referenced by the representative is specific to Khyber Pakhtunkhwa and not relevant to Karachi as the circumstances of those two geographically distinct regions is very different. Other references are generic references at a national level which I discount if alternate, more specific Karachi based information is available.

Considerations

103.   With regards to the applicant’s [project] work, I asked whether his work from several years ago would be remembered by someone and in turn lead him to face harm. He responded that it absolutely would. He said that the TTP announced openly that [project work] was forbidden and whoever participated would be targeted and that this began in 2007 in Swat and eventually spread to Karachi. That is why he believes that working on the [project work] could expose him to harm including it being associated with Western ideas.

104.   He said that of the 30-40 members of his [project] team only 6-7 are still alive and they are all outside of the country. I do not accept the applicant’s evidence regarding the death of his [project] team and note that any such discrepancy between claim and fact is not related to the applicant’s memory and hence his mental health situation for the following reasons.

105.   The applicant worked on the [project work] in a paid position from about 2016 onwards, a period when the security situation in Karachi had stabilised. There are few deaths recorded of civilians. Were the applicant’s claim to be accurate there would be considerable reporting and their deaths would appear in a database. Alternatively, if he was referring to his team from earlier years, it is possible that many died, but as discussed above, the security situation has substantially changed and furthermore, the applicant remained in Karachi through to 2018 without any harm befalling him. Noting that the applicant concluded his [project] work six years ago I find no reason for people in the communities he visited, the Taliban or any other extremist group, to remember him and years later to pursue an opportunity to harm him for the reason of his past work and any perceptions that may have arisen including an imputed political opinion. As such I find that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from his past work on [projects].

106.   I have also considered whether the applicant will work as a [project] worker in the future were he to return to Pakistan. It would be speculative to assume that positions would be available and that he would be successful in obtaining a role. The applicant acknowledged that he obtained the position because of his political connections which themselves now would be diminished. There may be other job opportunities that could present themselves to the applicant that he pursues above any that may arise in the [project] area. I accept that his [project] work is the entirety of his work experience, but the relevance of this experience is not exclusive to future [project] work. I also note that he hasn’t claimed to have continued to work in some community or [relevant] role in Australia and as such there is no basis to believe that he identifies himself through such specific roles so that he would need to only obtain such a role.

107.   A claim was included by the representative in her submission that the applicant faced harm arising from his time in the West. I put this issue to the applicant and his response was that death awaits him. I paraphrased the question again giving him the opportunity to better understand what was being claimed on his behalf, but he did not engage with the issue of any harm arising from his time in Australia and instead simply said that if he returned, he would be killed. Noting that there is a large Pakistan diaspora that regularly returns to Pakistan from Western countries[8] and that Karachi is a cosmopolitan city[9], facts which were put to the applicant, I find that he does not face a real chance of serious harm nor a real risk of significant harm arising from his time in Australia.

[8] and

[9]

108.   With regards to being Pashtun, I note that there are some 35 million Pashtun in Pakistan and as was put to the applicant, Karachi has a large population of Pashtun to which he concurred but added that they aren’t one hundred percent Pashtun. He said that if there was a safe place, he wouldn’t have spent all these years in Australia.

109.   Noting that the applicant has not faced any direct harm through his life in Pakistan nor have I found that any of his family have and considering the size of the Pashtun population and the concentration of many in Karachi, I find that he does not face a real chance of serious harm or a real risk of significant harm arising from his ethnicity. This finding aligns with country information provided by the representative from DFAT which states that ‘Pashtuns generally face a low risk of official and/or societal discrimination’.

110.   I now turn my mind to the applicant’s political profile which is shaped collectively by his activity in organising the Pashtun Cultural Day, the applicant holding a leadership role in a student wing of a political party while at university, participating in at least one ANP campaign event, in his final few months in Pakistan being involved with the PTM protests and having spoken to the media.

111.   While undertaking these activities I accept that he would have received some verbal threats, but none translated into actual harm despite remaining in Karachi through to July 2018 when he left for Australia. Considering that he did not face actual harm at that time and there being no reason to believe that the risk would increase rather than decrease with the passage of time, I find that he does not face a real chance of serious harm or a real risk of significant harm upon return to Pakistan for reasons of his past political activities and profile.

112.   I note that the applicant has continued his involvement with the ANP while in Australia, but it could be described as minimal, attending one protest and some meetings each year that could be described as social rather than political. Nevertheless, I find that his ongoing association with the ANP will continue through into the future were he free from fear. I find that he would not seek office again as he had while a student for the reason that he hadn’t sought office while in Australia and that being a student politician is different to being involved in politics as an adult.

113.   As such I turn my mind to the situation the applicant would face in a city that I deem to be ‘safe’ from terrorist, political, or sectarian violence. I note that he would be a general member of the ANP, that there have been no attacks on ANP members or office holders reported in Karachi for nearly a decade, and the applicant’s own evidence showed that his family faced some incidents but again, the most recent being nearly a decade ago. I acknowledge that DFAT references ANP members as facing ‘a moderate risk of terrorist violence’, information that was included in the representative’s submission, but that paragraph is in the context of the situation of the ANP in Khyber Pakhtunkhwa as is evidence from the preceding paragraphs. [10]

[10] DFAT 2022 [3.73]-[3.74]

114.   The applicant would also be involved with the PTM as a general member. Country information provided by the representative from DFAT states that Pashtuns involved with the PTM face a heighted risk above the ‘low risk’ of simply being Pashtun. In addition, it states that they are at a high risk of discrimination and harassment (high risk being defined by DFAT as meaning that there is a ‘strong pattern of incidents’[11] which considering the size of the movement is unsurprising but less informative when considering whether the applicant faces a real chance or a real risk).

[11] DFAT 2022 [3.82] and p6

115.   I accept that being active with the PTM raises a Pashtun’s profile above that which they would otherwise have, but how much depends upon their level of activity as there are over a million who support the group, and the risks would greatly vary. The applicant’s social media and physically present activity is limited even when free from fear in Australia. I find that he would be considered a very low level PTM supporter and as such his profile would only marginally be enhanced by his membership of the PTM. When considering the situation overall, both due to his association with the ANP and PTM, I find that he will receive verbal and/or social media threats but that he does not face a real chance of serious harm or a real risk of significant harm as a result of his future political activities.

116.   The applicant has also identified his family’s involvement in politics, an involvement which I accept as fact, as a factor that could lead him to face harm. I note that his parents have been targeted in the past. I accept that the applicant’s siblings have been involved in politics and according to the applicant at least one of his siblings has been granted refugee protection in Australia. But none of these elements override the finding that the applicant remained in Karachi throughout his entire life in Pakistan without being targeted. This is suggestive of the political profile of the family being relatively low. The applicant did not provide a copy of his brother’s protection visa decision, nor did he elucidate on any other reasons for his brother claiming protection other than noting the overlap of them being from the same family and the family being targeted for political reasons. In considering the circumstances of his parents continuing to live in the same home in Karachi, a brother living not far with his family and the applicant having not being harmed while living in Karachi, I find that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from his family’s political activities.

117.   I have also considered whether the applicant’s presence at the time of [Mr A]’s death would lead to him facing harm. Noting that I found it to have not been targeted and that several years have passed since the incident I find that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from being present at the time of [Mr A]’s death.

118.   Having found that there is no lingering threat to the applicant from his relationship to Naqeeb, I find that he does not face a real chance of serious harm or a real risk of significant harm arising from this relationship.

119.   With regards to the applicant’s dancing at the Pashtun Cultural Day, I find that the videos of him dancing would not be known to people into the future as they may no longer be live online, and the likelihood of someone finding them is remote. Furthermore, there is no evidence before me to suggest that Pashtun cultural dancing puts people at risk. This is supported by the applicant not having experienced any harm while still in Pakistan despite being videoed to have been dancing and the finding that Karachi is safe from terrorist activities including situations in which extremists would seek to harm people dancing traditional dances. 

120.   I have also considered the applicant’s claim of being educated as presenting a risk for him, but I note that he was educate in Pakistan and remained in Pakistan for several years after his high school and a few years after his university studies. The applicant did not claim that he experienced any harm arising from being educated. I note that no evidence was provided that would indicate that educated Pakistanis face additional harm and furthermore I note that I have information before me which indicates that he would be returning to a safe city. For this reason I find that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from being educated.

121.   I have also considered the applicant’s health challenges and whether they are grounds for triggering Australia’s protection obligations. The applicant was ‘diagnosed’ by his general practitioner as having PTSD, and ‘gross insomnia’. He was also identified as having symptoms that suggest melancholic depression/anxiety. The letter by the GP refers to himself as a ‘GP/Psychologist’. The qualifications listed in the letter do not indicate any qualifications as a psychologist. This was raised with the representative at the first hearing. She acknowledged the confusion that was created by the question of who had diagnosed him and what their qualifications were.

122.   Regardless of whether the applicant has received a qualified formal diagnosis, the applicant is on medication which was discussed at the hearing as being available in Pakistan. The dosage of the medication has been reduced in the past and not increased and so there is no indication that any adverse changes can be anticipated to occur into the reasonably foreseeable future to the applicant’s mental health.

123.   We also discussed whether there is a stigma associated with mental health to which the applicant said that he doesn’t think that he would be treated differently as his situation is not that bad. He added that his mental health is disturbed because of the uncertainty he faces in Australia.

124.   Noting the applicant’s responses and that the medicine the applicant uses is available in Pakistan I find that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from his mental health condition.

125.   To avoid doubt, I have considered the applicant’s mental health and impact of his medication on his memory in making all of the above findings of fact and whether he faces a real chance of serious harm or a real risk of significant harm.

Cumulative considerations

126.   The applicant has provided multiple claims of harm were he to return to Pakistan. At the heart of his claims are fears of the Pakistan government and non-state actors such as the Taliban but potentially other Islamic extremist groups. He fears these actors for broadly the reasons of his ethnicity, political and social activities, family and being educated. Yet, all of these reasons were present while the applicant remained in Pakistan, and he was not harmed. He was active in student politics and was not harmed, he was involved in [projects] and was not harmed, his family have for years been involved in politics and he was not harmed. This does not necessarily mean that he won’t be harmed in the future, but it provides an important insight.

127.   The applicant has subsequently continued his involvement with Pakistan politics by way of his engagement in Australia with the ANP and by posting material on social media. Were the applicant to have a senior role or post inflammatory material then it may increase his risk profile substantially, but the applicant attends a few events annually and one protest in the six years that he has been in Australia. His social media posts carry very limited risk.

128.   Upon return the applicant has a family and a home to return to, he would continue with his involvement at the same levels as he has in Australia, namely as a general member of both the ANP and PTM. As a Pashtun he faces some level of harm that would be marginally amplified by his membership of these groups and further marginally amplified by his social media activities. That he is from a family that has other members who are known to have been politically active would further marginally increase his profile. I note that his mental health is challenging and any harm that he faces may be exacerbated. For the reasons given above I do not factor in any discriminatory treatment due to his mental health situation. When considered cumulatively, noting how some of these factors would raise his profile and others increase his vulnerability to harm, I find that he would receive some verbal and/or social media threats, but when considered cumulatively overall, the applicant does not face a real chance of serious harm or a real risk of significant harm.

129.   For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

1. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

2. 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

132.   The Tribunal affirms the decision not to grant the applicant a protection visa.

Denis Dragovic
Deputy President

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.

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