2115158 (Refugee)

2115158 (Refugee) [2022] AATA 2509 (14 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2115158

COUNTRY OF REFERENCE: Pakistan
MEMBER:Denis Dragovic
DATE:14 June 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the following directions:

i.That the first named applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the second named applicant.
ii.That the Tribunal does not have jurisdiction in the matter of the second named applicant.

Statement made on 14 June 2022 at 8:26pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – religion – particular social group – inter-sect marriage – fear attacks by a terrorist group – fear of killing – threatening visits to family – member of the separated family unit – parenting agreement and child support arrangements – substantially reliant – decision under review remitted
LEGISLATION
Family Law Act 1975
Migration Act 1958, ss 5H, 5J, 36, 65
Migration Regulations 1994, rr 1.03, 1.05, 1.12; Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 24 May 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The first named applicant (“the applicant”), who I accept to be a citizen of Pakistan, was added on the 11 October 2016 to an existing visa application that was lodged with the Department on 3 March 2016.
The appeal from that decision was lodged with the Tribunal on the 6 June 2017 (Tribunal file number 1712009).
A submission was received by the Tribunal from the primary applicant of the application lodged to the Tribunal that she and her partner, who was the third listed applicant and had been added to the application after the original application but before the Delegate had refused the visa, had separated.
As noted in the applicant’s statement, an Apprehended Violence Order had in the past been established against him by his partner.
The Tribunal administratively separated the applications but left the child on both the mother’s and the father’s applications.
The mother’s case was heard first and decided on the 4 November 2021. The outcome of that review was that the Tribunal remitted the matter for reconsideration having found that both of the applicants satisfy s.36(2)(a) of the Migration Act for reasons of [the partner, Ms A] and her son’s race as Hazara living in Pakistan and in addition, for the son, for the reason of being unregistered.
As the Tribunal has previously heard the case of the second named applicant when he appeared in conjunction with his mother’s application the Tribunal is now functus regarding his application and claims.
Instead, the applicant was invited to appear before the Tribunal on the 3 March 2022. The applicant did not appear on the day and at the scheduled time and place. Instead, an email was received on the morning of the hearing stating that the applicant was not feeling well.
As a result, the hearing was rescheduled for the 16 May 2022. On the 8 May a response to the hearing invitation was received in which the applicant clearly articulated that he would not be attending the hearing and that he consented to the Tribunal making a decision on the papers without taking further steps to allow him to appear.
Based upon these circumstances this decision was made on the information available to the Tribunal in the form of submissions made to the Department, to the Tribunal and other sources as noted below.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
I accept that the applicant is a Sunni Muslim of Punjabi ethnicity.
He is not married though he has had [number] children with another woman who, along with her son, the second named applicant, was successful at the Administrative Appeals Tribunal in having their application appealing the Department’s refusal to grant them a protection visa remitted for reconsideration.
According to the applicant’s application form he has two parents [and number of siblings], who live in Karachi, Pakistan. He is regularly in touch with them speaking over the telephone three to four times a week. I accept this as fact.
The application form records the applicant as having departed Karachi Airport [in] May 2013 on what he nominated to be a legal Pakistan passport. He travelled to Australia on a student visa issued on the 23 April 2013. I accept this as fact.
At question 87 of the protection application form where it asks whether the applicant is making his own claims for protection, he has ticked ‘no’. Reaffirming this response, the subsequent questions from 89 to 96 were left blank including:
‘Why do you leave that country?’
‘What do you think will happen to you if you return to that country(s)?’,
‘Did you experience harm in that country(s)?’
‘Did you seek help within the country(s) after the harm?’
‘Did you move, or try to move, to another part of that country(s) to seek safety?’
‘Do you think you will be harmed or mistreated if you return to that country(s)?’
‘Do you think the authorities of that country(s) can and will protect you if you go back?’
‘Do you think you will be able to relocate within that country(s)?’
The only documents the applicant submitted at the time of application were his passport and driver’s licence.
The applicant clearly expressed a view that he has no reason to fear returning to Pakistan at the time of his application. This has been made known to various degrees either explicitly or by inference including by the applicant not attending a Departmental interview, in his application form making no claims and by submitting no documents that would attest to any claims.
Subsequently, following the separation of applications, the applicant attached to an email dated 24 February 2022, a statement explaining his claims:
i.He was in a relationship with [Ms A] who is a Shia Hazara and he a Sunni
ii.This relationship and knowledge of the [number] children from the relationship spread back to Pakistan
iii.This news reached a terrorist organisation who are involved in many murders of Shias throughout Pakistan
iv.His parents received threats about his life
v.Due to being afraid and broke he left [Ms A] and the [number] children and didn’t contact his partner and children for several months
vi.Father lodged a First Incident Report regarding the threats
vii.He contacted [Ms A] through a lawyer as she had taken out an AVO against him. They subsequently entered into a parenting plan that includes him agreeing to pay child support.
viii.While [Ms A] has moved to Victoria and he is based in NSW he travels to Victoria ‘every now and then’.
Consideration of the threats to the applicant and his parents
Central to the applicant’s claim is that there is a terrorist group who wants to kill him.
The applicant provided a number of documents in what appear to be in Urdu. I can surmise from the material provided in English that one of the documents in Urdu is a threat letter left by people who had threatened the applicant’s father (referenced in the court petition) and a First Incident Response (referenced in the applicant’s statement).
I note that Practice Direction: Migration and Refugee Matters states at [5.5]:
All documents that are not in English should be translated into English by a translator with a ‘Translator’ level accreditation from the National Accreditation Authority for Translators and Interpreters (NAATI). Both the documents and the translations should be provided.
Only one batch of documents was provided in English. This batch includes a document that appears to be a petition to a court referred to as ‘[Court 1]’ as well as an ‘affidavit in support of supporting affidavit’.
The purported court document is written on a form that has ‘2018’ printed at the header. The First Incident Report (FIR) mentioned by the applicant in his statement and written in Urdu has the year 2018 also on it in numerous locations. Based upon these two documents I take it that the claimed incident is said to have occurred in 2018.
The purported court document refers to an incident where two people threatened the applicant’s father and are claimed to have spoken to him ‘in rude behaviour and threatening manner’ and then apparently ‘left a letter that contains threating language’. I find it vexing that the men who came and threatened the applicant’s father would also then leave a threatening letter. The value of the threatening letter is redundant to a visit and for this reason I place some weight in doubting the veracity of this claim.
Country information indicates that ‘Document fraud is widespread in Pakistan’ including documents such as FIRs.[1]
[1] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Pakistan’ January 2022 at [5.52]
Even were I to give the applicant the benefit of the doubt, ultimately the petition to the court is simply a claim made by the applicant’s father. There is no evidence that the court responded to it in any manner by, for example, instructing the police to investigate or to provide protection as was requested. As such, whether the document is fraudulent or not, I take this submission as evidence provided by the applicant’s father, but without an opportunity to hear from him as a witness I place limited weight on it.
Similarly, the existence of a FIR is nothing more than a complaint made by the applicant’s father to the police:
It is generally a complaint lodged with the police by the victim of a cognizable offence or by someone on his/her behalf. Anyone can report the commission of a cognizable offence either orally or in writing to the police. Even a telephonic message can be treated as an FIR[2]
[2] First Information Report (FIR) (A Guide for Citizens)
As with the purported court document I take the existence of a FIR as being evidence that the father made a complaint to the police. There is no evidence that suggests that the police found the complaint credible and acted upon it or not. Whether the document is fraudulent or not, I take the contents of the submission as evidence provided by the applicant’s father and for the same reasons given above, give it little weight.
The applicant claimed that the threats his father received, including the visit and letter purportedly left by the visitors, were from Lashkar-e-Jhangvi.(LeJ). Country information suggests that one of the objectives of LeJ is to ‘declare Shi‘a a non-Muslim minority’.[3] The question I turn my mind to is whether it is plausible that the group will hear of an inter-sect relationship in Australia and then pursue one of the pair’s father in Pakistan by threatening him physically and then after having made the threat following it up by leaving a threatening letter.
[3] Rafiq, A 2014, Sunni Deobandi-Shiˋi Sectarian Violence in Pakistan: Explaining the Resurgence Since 2007, Middle East Institute, December, p.29
Regarding LeJ I note that the most recent DFAT report states, ‘The group has carried out numerous deadly attacks on Shi’a communities (including targeted attacks against Hazaras), places of worship and leaders.’ The inference is that the targets are leaders or groups. The Australian government’s National Security page provides details of LeJ and lists attacks claimed or reasonably attributable to LeJ. The list includes major attacks against schools, hospitals, markets and against pilgrims collectively.[4]
[4]
In considering whether the applicant and his father’s claims of the LeJ being aware of the applicant’s circumstances and then deploying resources to threaten him, I have considered the limited evidence before me. I note the extremist nature of LeJ as exhibited by the long list of major attacks against high profile Shia targets and the views of specialists who designate the group as ‘one of the world’s most secretive organizations and little information is known about it’[5] and then in contradistinction consider the claim that two men from the group openly threatened the applicant’s father and then followed this up with a threat letter, allegedly in response to learning that in Australia the father’s son had a relationship with a woman who was also living in Australia. I find that the claimed actions are so incongruous with the information about the group, namely that they attack senior leaders or high profile groups such as pilgrims, are secretive and extremely violent, that I find the claims of threats being made in the manner described are contrived.
The marriage and other family members
[5] Center for International Security and Cooperation, Stanford University, Mapping Militants program
Country information on the societal norms and legality of inter-sect marriages suggests that ‘intra-faith marriages within Islam (Shia and Sunni sects) take place but are discouraged’. Marriages between Sunni and Shia sects are legal as both are recognised as sects of Islam. Pakistan’s Constitution establishes Islam as the state religion and makes no distinction between Sunni and Shias.[6] According to its 2013 Thematic Report on Shias in Pakistan, the Department of Foreign Affairs and Trade (DFAT) stated that ‘[t]here are no legal barriers to marriage between sects but often there may be family or societal pressure for the woman to convert to her husband’s sect’.[7]
[6] US Department of State 2013, 2012 International Religious Freedom Report – Pakistan, 20 May, Section II < freedom report&searchin=fulltext&sort=> date Accessed 4 February 2014
[7] Department of Foreign Affairs and Trade 2013, Thematic Report: Shias in Pakistan, 18 December, p6 Section 3.4 <CIS26834 >
According to a 2011 book, by Dr Rakesh Kumar Singh[8], Textbook on Muslim Law, ‘for marriage under Muslim law both parties must be Muslim’. Dr Singh states that ‘[w]here both the parties are Muslims but they belong to different sects (i.e., one is Shia and other is Sunni), the marriage is inter-sect marriage. Inter-sect marriage is perfectly valid.’ In further discussions on inter-sect marriages Dr Singh also noted that Shia and Sunni laws are different in relation to inter-religious marriages. Looking at the situation from the applicant’s faith as a Sunni Dr Kumar writes, ‘Under Sunni law, a boy is allowed to marry a Muslim girl of any sect.’
[8] Associate Professor, Faculty of Law, University of Lucknow, Lucknow, India
Based upon the above information and specifically noting that marriages (acknowledging that the applicant was not in a marriage) are legal even if with members of another sect I find that the applicant’s relationship with a Shia woman in the past will not cause the applicant to face a real chance of serious harm into the reasonably foreseeable future from family members or the community or a real risk of significant harm as a necessary and foreseeable consequence of removal.
There is no information that suggests sexual relations by men outside of marriage while overseas leads to some sort of risk of harm from a family or community in general and none was claimed specifically.[9]
[9] I researched this question through Google, Google Scholar, Refworld and CISNET
As the applicant’s child and mother have had their applications remitted by the Tribunal for reconsideration by the Department based upon a finding that their circumstances trigger Australia’s obligations, I find that they would not be returning to Pakistan and as such the applicant would not face some sort of psychological harm arising from persecution faced by his former partner or children as a result of travelling to see him.
For the reasons given above the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore, the applicant does not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa.
Member of the same family unit
I have also considered whether the applicant could satisfy s 36(2)(b) or (c) based upon being a member of the family unit of his former partner and her child.

Section 36(2)(b) of the Act relates to members of the same family unit as to those to whom Australia has protection obligations because the person is a refugee:
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
Section 36(2)(c) is the reciprocal section for those to whom Australia has protection obligations because the Minister is satisfied that the person faces a real risk of significant harm.
Section 5 of the Act defines a ‘member of the same family unit’ as:
one person is a member of the same family unit as another if either is a member of the family unit of the other or each is a member of the family unit of a third person.
In this case the applicant is not a member of the same family unit as [Ms A]. Instead, I turn my mind to consider whether he is a member of the family unit of a third person, namely the applicant’s son.
Regulation 1.12(4) defines the term ‘Member of the family unit’ for protection visas.
A person is a member of the family unit of another person (the family head) if the person is:
(a) a spouse or de facto partner of the family head; or
(b) a dependent child of:
(i) the family head; or
(ii) a spouse or de facto partner of the family head; or
(c) a dependent child of a dependent child of:
(i) the family head; or
(ii) a spouse or de facto partner of the family head; or
(d) a relative, of the family head or of a spouse or de facto partner of the family head, who:
(i) does not have a spouse or de facto partner; and
(ii) is usually resident in the family head’s household; and
(iii) is dependent on the family head.
In the case of the applicant being a member of the family unit of a third person, the applicant is the family head. Reviewing the subclasses from r 1.12(4) I find that the child is neither the spouse or the de facto partner of the applicant. As such the applicant does not meet (a).
The child may be a dependent child of the applicant, as the family head, to which I now turn my mind to.
The applicant referenced a parenting agreement and paying child support in his statement to the Tribunal. Available to the Tribunal in the separate file of the [Ms A] and the second named applicant, but received only after the file was split and the applicant considered separately, were the parenting agreements and proof of child support arrangement.
The parenting plan was established under the Family Law Act 1975 and is between the applicant and [Ms A]. It includes the following relevant to the question of whether the child is a ‘dependent child’ of the applicant:
i.The relationship had broken down irretrievably and the parties have lived separately and apart since March 2018
ii.The mother has sole custody of the children
iii.The father will spend time with the children in the following manner:
i.For the first two years of the agreement, on Saturdays from 11am to 4pm and on Sunday’s from 11am to 4pm.
ii.After two years the children spend time with their father on weekends with one overnight stay ‘if agreed between the parties’.
iv.The father is allowed to have phone conversations with the children every day between 8pm and 8.30pm.
v.That both parties will consult each other for the long term care and development of the health, welfare and education of the children.
vi.That the father pay child support as mutually agreed between the parties.
vii.Both parties will share all children costs 50/50. The parents will ‘negotiate unforeseen expenses as they come up. Both parties will review financial arrangements at the end of every calendar year.’
The parenting agreement was dated [in] May 2019.
The child support information was a letter from Services Australia introducing the ‘Child Support Info Service’ to [Ms A]. There is no information as to whether she has received any or regular child support from the applicant.
In the applicant’s statement to the Tribunal he writes, ‘Now I regularly paying her child support and meet my children. As she moved to Victoria, and I based in NSW but for sake of my children I travel to Victoria every now and then.’
The applicant provided evidence of bank transfers as follows:
i.$2,016.95 transfer to Services Australia [in] February 2022
ii.$1,973.50 transfer to Services Australia [in] March 2022
iii.$1,973.50 transfer to Services Australia [in] May 2022
At the time the Tribunal contacted the applicant he claimed to be visiting his son in Victoria.
Regulation 1.03 defines dependent child:
dependent child, of a person, means the child or step-child of the person (other than a child or step-child who is engaged to be married or has a spouse or de facto partner), being a child or step-child who:
(a) has not turned 18; or
(b) has turned 18 and:
(i) is dependent on that person; or
(ii) is incapacitated for work due to the total or partial loss of the child’s or step-child's bodily or mental functions.
The term ‘dependent’ is defined in r 1.05 as ‘if the first person is wholly or substantially reliant on the other person for financial, psychological or physical support.’
The parenting order that was available to the Tribunal shows that the applicant is obliged to pay half of all of the costs of the child. This would amount to substantially reliant for financial support in the sense of r 1.05. The applicant claims that he is regularly paying child support. The evidence provided shows that he has been transferring a regular amount over the past several months. I note that the applicant remains on a bridging visa and as such has limited opportunities for work.
I also note that child support under a parenting plan is enforceable by Services Australia. This includes by way of:
·income support payment deductions
·deducting from tax refunds
·working with third parties
·employer or bank account deductions
·issuing overseas travel bans
·litigation
·prosecution[10]
[10] >
For the reason of the applicant having a parenting agreement whereby he is responsible for providing half of the financial support required of his son, having provided evidence of what amounts to a relatively large amount of money being transferred to [Ms A] via Services Australia I find that the second named applicant is is substantially reliant on the first named applicant for financial support.
The Tribunal is not satisfied that the first named applicant is a person in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa).
However, the Tribunal is satisfied that the first named applicant is a member of the same family unit as his son for the purposes of s 36(2)(b)(i).
The son had his case previously remitted for reconsideration (Tribunal file: 1712009) with the direction that he satisfied s 36(2)(a).
It therefore follows that the first named applicant will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
i.That the first named applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the second named applicant.
ii.That the Tribunal does not have jurisdiction in the matter of the second named applicant.
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.
…

Key Legal Topics

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Immigration
Administrative Law

Legal Concepts

Judicial Review
Jurisdiction
Natural Justice
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Citations

2115158 (Refugee) [2022] AATA 2509

Cases Citing This Decision

Cases Cited

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[2022] AATA 2509

14 June 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Remedies

Statutory Construction