Background
Background to the litigation
The applicant had a Pakistani passport but it was taken by the people smuggler on the way to Australia. He departed Karachi by air using his Pakistani passport. He arrived by boat in Australia at Ashmore reef [in] April 2013 without any travel documents.Procedural background According to Departmental records, the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in] April 2013. In DBB16 v MIBP (2018) 260 FCR 447, the Full Federal Court determined that a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Migration Act 1958 (Cth) (the Act)). Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and a decision refusing to grant them a Safe Haven Enterprise visa is a Part 7-reviewable decision in the Migration and Refugee Division of the Administrative Appeals Tribunal. The applicant was granted a Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visa on 26 June 2013. At the time, this was thought to trigger a statutory bar in s 91K which prevents certain visa applications being made in Australia by an applicant who was an unauthorised maritime arrival at that time. However, as determined by the Full Federal Court in MICMSMA v CBW20 [2021] FCAFC 63, s 91K does not apply to a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands. Therefore, the application for a Safe Haven Enterprise visa is not subject to the s 91K bar and the applicant made a valid application for review on 9 May 2021. Evidence before the Department and the TribunalClaims for protection The applicant’s claims for protection are contained in his protection visa application form. These claims, accurately summarised in the delegate’s decision, are as follows:·He is ethnically Hazara and a Shia Muslim. ·He worked from the police force in Pakistan. ·In his spare time, he worked as a volunteer [for] [Organisation 2]’. ·In Pakistan, he was subjected to threats and violence on the basis on his ethnicity and religion. He experienced violence because of these reasons. ·In the last decade, terrorist groups have killed many Hazara Shia Muslims in Pakistan. These groups continuously make public statements about threatening to kill Hazara Shia Muslims. ·During his university studies, he did not attend any classes at the [campus] because its location was not safe and he was afraid. He only attended the campus to take exams. ·In 2011, his mosque [in location] (Quetta) was bombed because the worshippers were Hazara Shia Muslims. About 15-20 people were killed. He was standing behind a wall and was therefore not injured. ·On [date]/01/2012, he survived two consecutive bomb blasts [in location]; the first occurred in a [club] and the second in [location]. More than 100 people, including 5 of his friends, were killed. He was shielded from the blast by his friend who was killed. ·After these two bomb blasts, he decided not to go outside and travel as much. He was afraid to go to mosques in Quetta and would only occasionally go to the mosque near his house. ·Moreover, police officers in Quetta are regularly sent on duty to local marketplaces which were extremely dangerous for the applicant due to his religion and ethnicity. He was vulnerable to being targeted. ·He was assigned by the Balochistan police force to be the bodyguard of [the] former [Official 1] of [Organisation 1], for two years. He was public exposed. ·Due to his public roles, he was too afraid to continue out of risk of being harmed. Terrorist groups issued public threats on television or online. ·Due to his work as a [volunteer], he would often respond to incidents where bombs targeting Hazara Shia Muslims had exploded. He was afraid that he would be targeted for his cumulative profile (occupation, religion and ethnicity). ·It is very difficult to move around in Pakistan as a Hazara Shia Muslim. Terrorist groups control many of the roads and are everywhere. Hazara Shia Muslims can be identified because of their distinctive facial features and by the way that they pray. ·Hazaras cannot seek protection from government authorities because they cannot provide protection. ·He did not move or try to move to another part of Pakistan to seek safety. There is nowhere in Pakistan that is safe for Shia Muslims and Hazaras like him. He did not have family anywhere in Pakistan with whom he could live and be safe. Attacks are carried out on Hazara Shias and police officers all over Pakistan by several terrorist groups. ·He is also afraid that he would be seriously harmed in Pakistan due to his political opinion based on his affiliations with the Pakistani government. His previous work at rallies and conferences have been widely presented in the media across Pakistan. Whilst working as a police officer, photographs on him in uniform have been accessed by terrorist groups which could be used to identify and harm him. ·In regards to relocation within Pakistan to an area where he would not be harmed, nowhere in Pakistan would be safe. Also, he has no specific work experience that could help him find a job in cities such as Lahore and Islamabad. He only has work experience as a police officer. If he was to work as a police officer again, he would be targeted and killed. ·Although he has a Bachelor [degree], this is not important and not helpful in finding him a job in Lahore or Islamabad. It is a common degree, held by many. ·Further, he has had back pain for many years now and this has made him unable to work in Australia. His doctor has told him that his backbone has issues and when he lifts something heavy, it causes him pain. Interview with the delegate and the delegate’s decision
Evidence
Evidence Before The Court
The applicant was granted a Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visa on 26 June 2013. At the time, this was thought to trigger a statutory bar in s 91K which prevents certain visa applications being made in Australia by an applicant who was an unauthorised maritime arrival at that time. However, as determined by the Full Federal Court in MICMSMA v CBW20 [2021] FCAFC 63, s 91K does not apply to a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands. Therefore, the application for a Safe Haven Enterprise visa is not subject to the s 91K bar and the applicant made a valid application for review on 9 May 2021. Evidence before the Department and the TribunalClaims for protection The applicant’s claims for protection are contained in his protection visa application form. These claims, accurately summarised in the delegate’s decision, are as follows:·He is ethnically Hazara and a Shia Muslim. ·He worked from the police force in Pakistan. ·In his spare time, he worked as a volunteer [for] [Organisation 2]’. ·In Pakistan, he was subjected to threats and violence on the basis on his ethnicity and religion. He experienced violence because of these reasons. ·In the last decade, terrorist groups have killed many Hazara Shia Muslims in Pakistan. These groups continuously make public statements about threatening to kill Hazara Shia Muslims. ·During his university studies, he did not attend any classes at the [campus] because its location was not safe and he was afraid. He only attended the campus to take exams. ·In 2011, his mosque [in location] (Quetta) was bombed because the worshippers were Hazara Shia Muslims. About 15-20 people were killed. He was standing behind a wall and was therefore not injured. ·On [date]/01/2012, he survived two consecutive bomb blasts [in location]; the first occurred in a [club] and the second in [location]. More than 100 people, including 5 of his friends, were killed. He was shielded from the blast by his friend who was killed. ·After these two bomb blasts, he decided not to go outside and travel as much. He was afraid to go to mosques in Quetta and would only occasionally go to the mosque near his house. ·Moreover, police officers in Quetta are regularly sent on duty to local marketplaces which were extremely dangerous for the applicant due to his religion and ethnicity. He was vulnerable to being targeted. ·He was assigned by the Balochistan police force to be the bodyguard of [the] former [Official 1] of [Organisation 1], for two years. He was public exposed. ·Due to his public roles, he was too afraid to continue out of risk of being harmed. Terrorist groups issued public threats on television or online. ·Due to his work as a [volunteer], he would often respond to incidents where bombs targeting Hazara Shia Muslims had exploded. He was afraid that he would be targeted for his cumulative profile (occupation, religion and ethnicity). ·It is very difficult to move around in Pakistan as a Hazara Shia Muslim. Terrorist groups control many of the roads and are everywhere. Hazara Shia Muslims can be identified because of their distinctive facial features and by the way that they pray. ·Hazaras cannot seek protection from government authorities because they cannot provide protection. ·He did not move or try to move to another part of Pakistan to seek safety. There is nowhere in Pakistan that is safe for Shia Muslims and Hazaras like him. He did not have family anywhere in Pakistan with whom he could live and be safe. Attacks are carried out on Hazara Shias and police officers all over Pakistan by several terrorist groups. ·He is also afraid that he would be seriously harmed in Pakistan due to his political opinion based on his affiliations with the Pakistani government. His previous work at rallies and conferences have been widely presented in the media across Pakistan. Whilst working as a police officer, photographs on him in uniform have been accessed by terrorist groups which could be used to identify and harm him. ·In regards to relocation within Pakistan to an area where he would not be harmed, nowhere in Pakistan would be safe. Also, he has no specific work experience that could help him find a job in cities such as Lahore and Islamabad. He only has work experience as a police officer. If he was to work as a police officer again, he would be targeted and killed. ·Although he has a Bachelor [degree], this is not important and not helpful in finding him a job in Lahore or Islamabad. It is a common degree, held by many. ·Further, he has had back pain for many years now and this has made him unable to work in Australia. His doctor has told him that his backbone has issues and when he lifts something heavy, it causes him pain. Interview with the delegate and the delegate’s decision
Decision
Reasons for decision
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 satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).DECISION The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.Rachel Da CostaMemberATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…
Ratio Decidendi
Legal Principle Established
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.Analysis, reasons and findings The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. In the hearing, the applicant gave evidence that his lawyer helped him to fill out his protection visa application form and prepare his written statements and that all the information provided was true and correct. In the hearing, the Tribunal obtained detailed information from the applicant about a range of matters including his family, education, employment and training, religious beliefs and practices, health and medical issues, travel to Australia, his life in Australia since arriving here, his financial position and that of his family and why he fears returning Pakistan. Overall, the Tribunal found the applicant to be a credible witness and the evidence he gave about his circumstances was consistent with evidence he had given in the past and where available, supported by documents, which the Tribunal accepts. He was able to elaborate on some matters which he did not explain fully to the delegate and which the Tribunal considers relevant to its findings, which are explained below. The Tribunal does not necessarily agree with the some of the conclusions the applicant draws about the consequences of aspects of his circumstances and, where relevant, the Tribunal addresses this below in its reasons. In response to questions from the Tribunal the applicant’s evidence in the hearing was as follows. The applicant’s family in Pakistan comprise his father, mother, brother and [sisters]. He had two other brothers but one is deceased and the other is presumed deceased because he went missing [in] 2008 when travelling [overseas]. The living brother is called [name deleted]. The applicant’s family live together in the Mariabad district of Quetta. They share a house with the applicant’s uncle and his family, and this house is where the applicant lived before leaving Pakistan. The uncle is his father’s brother and the two men own the house together. The applicant’s father was a police officer for about 34 years and retired in 2009. He receives a government pension. The family has no other source of income apart from money remitted by the applicant. The family have no other assets. The applicant has never lived anywhere in Pakistan except his family’s home. His parents spend most of their time at home. His mother has a knee problem which restricts her and his father goes to the mosque and does a bit of walking. The applicant’s father had a heart attack and received treatment, but otherwise he does not have any medical issues. All the applicant’s siblings are single, uneducated and don’t work. The applicant’s brother has an intellectual disability and is diabetic. He has tried to work but it was not a success. His sisters stay home doing jobs and make clothes for the family. The applicant’s uncle is [self-employed]. The uncle’s son works for him sometimes but he has no employees.