2216663 (Refugee)

[2023] AATA 4689

2216663 (Refugee) [2023] AATA 4689 (5 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Mahalingam Sutharshan (MARN: 0961664)

CASE NUMBER:  2216663

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Catherine Carney-Orsborn

DATE:5 December 2023

PLACE OF DECISION:  Sydney

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

Statement made on 05 December 2023 at 3:08pm

CATCHWORDS
REFUGEE – protection visa – Pakistan – Federal Circuit Court remittal ­– high-profile Shia – Imamia Students Organisations (ISO) – family connections and name – Noha reciter – Mohajir ethnicity – interfaith relationship with a Sunni girl – mental health issues – internal relocation – decision under review affirmed

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

CASES
SZATV v MIAC (2007) 233 CLR 18
SZEPZ v MIMA (2006) 159 FCR 291

SZFDV v MIAC (2007) 233 CLR 51

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection (‘the Department’) on 5 May 2017 to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Pakistan, applied for the visa on 5 December 2016. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia owes protection obligations.

   BACKGROUND OF CASE

3. On 5 December 2016, the applicant applied for a Protection visa with the Department. On 5 May 2017, a delegate of the Department refused to grant the applicant a Protection visa. On 22 May 2017, the applicant applied to the Tribunal for review of the delegate’s refusal to grant him a Protection visa. The Tribunal affirmed the delegate’s refusal on 14 June 2022.

4. [In] July 2022, the applicant applied for judicial review of the Tribunal’s decision before the Federal Circuit Court of Australia in [case number] and [in] November 2022, the Court remitted the matter back to the Tribunal to be reconsidered.

   The Court found that the Tribunal failed to properly consider the applicant’s contention, as to why it was not reasonable to relocate to other areas of Pakistan considering the applicant’s claims expressly made by the applicant that he had caring responsibilities for his mother and brother that required him to remain near Karachi and that Covid19 restrictions hindered freedom of movement in Pakistan.

5. The matter is now before the Tribunal pursuant to an order of the Court.

6. The applicant appeared before the Tribunal on 11 October 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu (Pakistan) and English languages.

7. The applicant was represented in relation to the review.

   CRITERIA FOR A PROTECTION VISA

8. 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.

9. 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.

10. 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).

11. 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.

12. Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. The Full Federal Court has held that the reference to ‘all areas of a receiving country’ means all areas ‘where there is safe human habitation and to which safe access is lawfully possible’, and that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’: FCS17 v MHA (2020) 276 FCR 644 at [80]–[81].

13. 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.

14. Under s 36(2B)(a) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm. The Tribunal draws guidance from the judgments of the High Court in SZATV v MIAC and SZFDV v MIAC which held that whether relocation is reasonable, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

    Mandatory considerations

15. 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.

    What information can be considered on remittal?

16. Where a direction is given to reconstitute the Tribunal, the AAT Act requires the reconstituted Tribunal to continue the proceeding.  In completing a reconstituted review, the Tribunal may have regard to any record of the proceeding as previously constituted.  This includes any record of evidence taken in the proceeding. The Tribunal must determine the review by dealing with the issues as they present themselves at the time of its determination and according to the facts as the Tribunal finds them to be at that time.

17. In SZEPZ v MIMA (2006) 159 FCR 291, a Full Court of the Federal Court found that, where an RRT decision has been set aside by a court and the matter remitted for reconsideration owing to a jurisdictional error, it does not follow that all the steps and procedures taken in arriving at that invalid decision are themselves invalid. The Tribunal still has before it the material that was obtained when the decision that had been set aside was made and is obliged to continue and complete the particular review and not to commence a new review.

18. In conducting the review, the Tribunal has considered the material provided to the Tribunal and the oral evidence given at the previous hearing held by the Tribunal, differently constituted.

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations.

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

21. The Tribunal has before it the Department files and the previous and present Tribunal files.

22. The Department file contains copies of the applicant’s application for a Protection visa dated 5 December 2016, copies of police reports in Pakistan dated [in] April 2015 and dated [in] October 2010, a copy of a letter from [Mr B] dated 24 April 2017, undated representative submissions, the applicant’s statutory declaration deposed on 5 December 2016, copies of ID cards for the applicant, copies of the applicant’s foreign passport, and copy of the delegate’s decision record dated 5 May 2017.

23. The first Tribunal file contains a number of documents including, application for review of the delegate’s refusal, letter from a counsellor from a [medical] centre dated 25 January 2020, letter from [Mr C], Imamia Students Organization Pakistan Karachi Division dated [in] July 2021, letter from [Mr A], Board Director, [Organisation 1] dated 19 July 2021, copies of transaction receipts of the applicant’s wire transfers to his girlfriend in [Country 1] dated July, August, September, and October 2020, and August 2021, representative submissions dated 20 July 2021, letter from counsellor from a [medical] centre dated 21 July 2021, letter from [Ms E], undated, statement from [Mr B] dated 6 August 2021, copy of translated document dated [in] August 2021 listing person to be restricted from speaking in the province of Sindh during the month of [specified month], police report dated [in] April 2021, photographic evidence of attack on premises, letter from [Mr F] dated 2021, medical reports of the applicant’s mother dated August 2020, applicant statement of claims dated 16 August 2021, copy of recording of the applicant’s noha recital in Australia, copy of a psychological support and treatment progress report for the applicant dated 29 April 2022 and its addendum dated 18 May 2022, letter from [Mr B] dated 9 May 2022, copy of 2022 country information and news articles.

24. The present Tribunal file contains copy Court orders.

    Applicant’s background

25. In his application for a Protection visa, the applicant provided the following information.

26. He is a citizen of Pakistan, from the Karachi town and identifies with the Mohajir ethnic group. His mother and three siblings reside in Karachi. He returned to Pakistan in January 2013 for three months to visit his family. Later in January 2015, he again travelled to Pakistan for about four months. He has travelled to [Country 2], [Country 1], and [Country 4]. He completed his Year 12 equivalent in Pakistan. In Australia, he completed a Bachelor of [Discipline 1] as well as various diplomas in [Discipline 2]. He has extensively worked in Australia in [positions] in Victoria, the ACT, and NSW since January 2012. He declared having a driving record in Australia.

    Applicant’s migration history

27. The applicant first arrived in Australia [in] April 2011 holding a student visa, with which he travelled from and to Australia three times between April 2011 and April 2015. On 10 December 2015, the applicant was refused a further Student visa. On 26 February 2016, the Tribunal found it had no jurisdiction over the review application of a refusal to grant the applicant a student visa as it was lodged outside the timeframes with the Tribunal. On 24 March 2016, the applicant sought judicial review of the Tribunal’s decision. On 5 December 2016, the applicant applied for a Protection visa.

    Applicant’s claims for protection

28. In his application for a Protection visa with the Department, the applicant claimed he feared harm for reasons of his imputed political opinion against the Taliban as a Shia; because he is a Noha reciter; because he is a member of a prominent Shia family; and because of his interfaith relationship with his long-term girlfriend.

29. The applicant claimed his family name, [Name 1], is a well-known Shia name. He joined the ISO (Imamia Students Organisations) sometime in late 2005 during his studies and was an active member of it. His uncle [Mr B] became his paternal role model after the applicant’s father passed away. He became known as [Mr B]’s disciple as a Shia noha reciter. He claimed this is how he became well-known as an emerging noha reciter and Shia person in his local and other areas of Pakistan. He actively participated at events and was a meetings organiser for ISO. During his university studies, he undertook to work at [Hospital 1] while continuing his work with the needy Shia community and being a reciter. He claimed because of his profile, he received phone threats.

30. He described a blast that occurred on 5 February 2010, where Shia civilians were killed in a bus carrying participants of the Julos of Chehlum (Imam Hussain remembrance) march. His cousin was killed in this blast.

31. He detailed [the] October 2010 incident at the hospital which he was victim of. He stated that two people came to the hospital looking for his uncle who was away. In the absence of his uncle, the people started bashing the applicant who screamed for help. The security guards stationed at the hospital heard him from downstairs and came to his aid. The following day, he quit working at the hospital and started applying for student visas.

32. A few months after arriving in Australia, he joined [Organisation 2] and eventually became involved with them. He had recited noha and manqanat in different occasions all over Australia.

33. His intention was to complete studies in Australia and apply for another Australian visa via the Skilled labour visa scheme. However, his plans did not unfold as desired due to his driving record, which led to refusal of his fifth Student visa application. He was advised by Parish Patience Lawyers to apply for a Protection visa.

34. He feared being targeted and harassed because he has a relationship with a Sunni girl named [Ms E]. He claimed he commenced a long-distance relationship with [Ms E] who lives in [City 2] and that for seven years they had been in contact. They have never met in person. Her sisters support the relationship but not her mother. She belongs to a well-known Sunni family in [City 2], is trying to come to Australia, and has expressed interest in becoming Shia. She told the applicant not to travel to her area because if male relatives of her realise he is a Shia they would kill him.

35. On both occasions he returned to Pakistan to visit his ill mother, his uncle had armed guards protect him. That on the last occasion he was caught, bashed and threatened to be killed.

    Evidence submitted to the Department

36. In support of this claims for protection, the applicant provided the following evidence.

    a.Non-certified English translation of report ‘application’ dated [in] April 2015 to The Station House Officer (SHO). The applicant reported an incident that took place [in] April 2015 at around 10:30PM where four people attended the premises the applicant was housed in – two on a motorcycle, and upon seeking confirmation of the applicant’s name pointed guns at him and shot at the main door.

    b.Non-certified English translation of complain ‘application’ dated [in] October 2010 to the SHO. The applicant reported gunpoint harassment at the hospital he worked at [in] October 2010 by some people who told the applicant ‘They had to kill [Name 1]. The applicant reported he managed to escape harm and filed report of the incident following advice from the hospital administrator.

    c.Letter from [Mr B] dated 24 April 2017. The author stated he is the applicant’s uncle. He stated that the applicant had been victim of harassment and threats due to sectarian violence and radical extremism against Shia Muslims. The author of the letter states that he supported the applicant financially while in Australia as a student and was prepared to continue doing so. The author stated he continued to be victim of threats as Shia hospital administrator based in [Location 1], that he follows a security protocol and is based in [Country 5].

    d.Representative submissions citing extensive country and media reports on the killing of Shias in Pakistan, ineffective state protection, and impractical relocation options. The representative also cited past RRT decisions on Pakistani cases in respect of persecution against Shias from 2011-12.

    e.Applicant’s statutory declaration deposed on 5 December 2016 detailing the protection claims summarised above.

    The delegate’s decision

37. The delegate accepted that the applicant actively promoted Shia Islam, attended a Shia Mosque and organised and participated in Shia religious and social events in Karachi. The delegate accepted that the applicant joined the Shia student organisation, ISO, as a high school student, and continued his membership until he left university after attending the institution for less than a year. The delegate noted that an estimated 50 to 70% of all Shia students join the ISO, which operates in all four provinces and so the applicant’s membership did not distinguish himself from other Shia students in Pakistan. It was accepted that the applicant recited noha and manqabat during Shia religious events in Karachi, and continued to do so, on occasion, in Australia.

38. However, the delegate rejected that the applicant had a raised profile as a prominent Shia Muslim in Karachi or other areas of Pakistan. It was rejected that the applicant ever had a high-profile elsewhere in Pakistan.

39. The delegate rejected that the incidents the applicant described of a bomb blast and of sectarian violence and at the Shia hospital were targeting him personally.  That the two visits the applicant made to visit his family in 2013 and in 2015 when he stayed at the same family home and suffered no harm supported the proposition that the applicant would not be and was not a target of the Taliban in Karachi. That the applicant would experience sectarian violence himself in Karachi.

40. The delegate accepted that the protection the state could afford the applicant may not be effective to all the population, but it attended to reports and had attended to reports the applicant raised in the past.

41. The chance of the applicant suffering serious harm was remote. The risk of suffering harm did not relate to all areas of Pakistan as the applicant was employable, was found to be independent, skilful, resourceful, and independent.

42. The above was discussed with the applicant at hearings before the differently constituted Tribunal.

    The review application – first Tribunal in case no 1710847

43. On 22 May 2017, the applicant applied with the Tribunal – differently constituted – for review of the delegate’s refusal to grant him a Protection visa. The applicant attended two hearings, on 30 July 2021 and on 6 May 2022.

    Evidence submitted to the first Tribunal

1. As part of pre-30 July 2021 hearing submissions, the applicant via his representative submitted the following.

   a.Letter from a counsellor from a [medical] centre dated 25 January 2020. The letter states that the applicant is treated for depression and anxiety. It is noted that the applicant is a smoker and drinker, well educated, and self-employed.

   b.Letter from [Mr C], Imamia Students Organization Pakistan Karachi Division dated [in] July 2021 confirming the applicant’s membership since February 2007, the applicant’s reputation for reciting noha and naat and his participation at seminars, meetings, and natural disaster relief.

   c.Letter from [Mr A], Board Director, [Organisation 1] dated 19 July 2021 confirming the applicant’s noha and manqabats reciter, and his membership of the Dargah.

   d.Representative submissions dated 20 July 2021 regarding country information on persecution of Shias in Pakistan and terrorism by the TTP and Islamic extremists, and of sectarian violence.

   e.Letter from counsellor from a [medical] centre dated 21 July 2021. The letter states that the applicant continues to attend psychological treatment for depression and anxiety whenever he is in Sydney. He continues to be employed and is well educated.

   f.Letter from [Ms E], undated. The writer states that she is in a relationship with the applicant for over 10 years. They had planned to marry but her Sunni family had prevented this from happening, her mother attempted to kill her in her sleep after she refused to marry her cousin. She stated that she went to [Country 1] where she had been received financial support from the applicant for over three years while waiting for the applicant to be able to bring her to Australia under his visa.

2. In post-hearing submissions, the applicant’s representative submitted the following.

   a.Copies of transaction receipts of the applicant’s wire transfers to his girlfriend in [Country 1] dated July, August, September, and October 2020, and August 2021.

   b.Statement from [Mr B], applicant’s uncle dated 6 August 2021. The writer stated the sectarian violence experienced in Karachi in the form of killings and filing false cases. He stated that he has access to security guards funded by the government. He stated that the applicant is likely to follow his footsteps as a noha reciter as the author’s kids must complete their school before joining the activities and urges the applicant to seek protection from the Australian government.

   c.Document dated [in] August 2021 listing person to be restricted from speaking in the province of Sindh during the month of [specified month], granting the listed person the opportunity to appeal such prohibition. Applicant’s uncle is [named on] the list.

   d.Police report dated [in] April 2021 regarding cases against applicant’s uncle filed by Sunni people with English Translation.

   e.Photographic evidence of attack on premises [where] [Mr B] serves as [position].

   f.Letter from [Mr F] dated 2021, a poet confirming that the applicant engaged in Noha recitals.

   g.Medical reports of the applicant’s mother dated August 2020.

   h.Applicant’s statement of claims dated 16 August 2021 reiterating his claims for protection and citing country information reporting on the Sunni Islamic extremism, violence against Shias major cities including Rawalpindi, Islamabad, Lahore, Peshawar and Karachi.

   i.Copy of recording of the applicant’s noha recital in Australia.

   j.DFAT country report on Pakistan 25 January 2022 accompanying the applicant’s statement dated 29 April 2022 regarding the fluid situation in Afghanistan creating a dangerous environment in Karachi for the Shias.

   k.A large volume of various news articles reporting on the volatile political and sectarian situation in Pakistan.

3. In pre-5 May 2022 hearing submissions, the following was submitted by the applicant’s representative.

   a.Psychological support and treatment progress report for the applicant dated 29 April 2022. It is reported that the depression and anxiety the applicant suffered were caused by the uncertainty of his migration status. It is noted that the applicant was successful in establishing his business called [Company 1] and continued to be independent, resourceful and self-employed.

4. In post-hearing submissions, the applicant’s representative submitted the following.

   a.Letter from [Mr B] dated 9 May 2022 to the applicant urging him not to return to Pakistan as the Shias are being targeted. The author states that he has had false cases filed against him, his legal case adviser was murdered, and has had his son go to [Country 6] to continue his studies.

   b.Addendum dated 18 May 2022 to the psychological support and treatment progress report for the applicant dated 29 April 2022. It is reported that while the applicant continues to run a successful business on his own for which he has to travel interstate, he continues to show signs of depression and anxiety, and low moodiness due to the recent bomb explosion where his mother and brother live in Karachi. It is reported that the applicant attended two psychology sessions in 2021 and three in 2022. It is recommended the applicant attends his treatment regularly to achieve acceptable adjustment.

   The first Tribunal’s decision and reasons

5. Regarding his mental health, the applicant’s stress-related symptoms were found to be of minimal probative value as evidence that he genuinely feared returning to Pakistan, or as evidence of any particular past event(s).

6. Regarding his profile as a religious person, the applicant was found not to be credible and genuine in his claims for protection. This, considering his history of substance and alcohol excess, his migration history in Australia, the considerable time lapse between his active association with his uncle in Pakistan and his current religious profile, and his delay in applying for protection.

7. Regarding his profile as a Shia Muslim, the applicant’s evidence was found to be weak. He left Karachi at the age of [age], his immediate relatives remaining in the local area may have participating helping the ‘needy’, however, this did not support an ongoing profile as a Shia who is targeted by extremists.

8. Regarding his perceived profile as the successor of his uncle, the applicant’s oral evidence that his work at [work area] in the hospital, from 2009 to 2011, and the possibility that he had seen other parts of the hospital, were to prepare him for any senior management position was not credible. That the argument that the applicant’s participation in [Mr B]’s religious activities (the noha recitals); and the general community expectation that the applicant would succeed [Mr B] as a community leader, if he returned to Pakistan was not credible.

9. Regarding his profile as a noha reciter, the applicant was found not credible in that he performed noha recitals in any professional capacity; that they were any more than occasional, as a warm-up for his uncle’s performance; that he gained any kind of profile (including through his links with his uncle, or the circulation of any materials); or that he performed ‘all over Pakistan’. The recording material presented to the Tribunal was scant and not supporting the claim of a long-standing profile as a noha reciter for the years claimed.

10. Regarding his ISO profile, Tribunal accepted that the applicant was involved with the ISO while at school, up to 2009. That the applicant kept some contacts from that time. However, it did not accept that he had any ongoing profile as a result of, or interest in, the ISO.

11. Regarding his adverse experiences in Pakistan, the Tribunal accepted that general security concerns, as well as incidents of sectarian violence, were unsettling for the applicant and his family in Karachi, However, it did not accept on the available evidence that he was subject to repeated threats or violence, or directly affected by such incidents (including that any incidents at [location] were sectarian attacks by extremists).

12. Regarding the attack in February 2010, the applicant did not offer detailed information or recount of the events he claimed he witnessed, other that the broad information available to the public at large through the international media reports of the incident.

13. Regarding the attack to the hospital [in] October 2010, the Tribunal found the applicant’s oral evidence lacking detail and inconsistent in the few details offered at hearing. It was noted that the applicant obtained his passport day before the claimed incident.

14. Regarding the attack during his visit to Pakistan in April 2015, the Tribunal found that the inconsistencies between two separate attacks detailed at hearing: a robbery outside the house on 7 April 2015, and a shooting at the front door on 8 April 2015 were such that the applicant did not experience the harm and was victim as he claimed. The police reports tendered did not offer details that corroborated the oral evidence given at hearing.

15. Regarding the claimed incidents involving the applicant’s uncle, the Tribunal found that they were of no material impact on the applicant’s personal safety or decision-making. The Tribunal did not accept on the available evidence that the applicant’s uncle was subject to prosecution on blasphemy charges or any other religiously motivated charges; that he had been banned from appearing in public at any time; that he or his son were fleeing Pakistan for their safety (though [Mr B]’s regular travel abroad and his son’s plans to study in [Country 6] may well be influenced by security and similar issues); or that there have been any other associated harm (such as the murder of the [Mr B]’s lawyer).

16. Regarding his Mohajir ethnicity, the applicant did not raise this claim at hearing except when prompted by the Tribunal. It was the Tribunal’s opinion that the applicant had given little thought to this claim; he provided no specific examples of mistreatment; and his family’s circumstances.

17. Regarding the interfaith relationship, the Tribunal found that the applicant and his girlfriend did not give conclusive and compelling evidence that they sought a future together and that, therefore, it was not likely the applicant would suffer harm at the hand of his Sunni girlfriend’s family.

    The present Tribunal proceedings

    Pre-hearing submissions

18. On 25 August 2023, the applicant was invited to appear before the present Tribunal to give evidence and present arguments as his case was being reconsidered by an order of the Court on 25 August 2023.

19. The applicant continues to be represented by Parish Patience Lawyers.

20. On 4 and 9 October 2023, the applicant’s representative submitted the following material in support of the applicant’s claims

    a.Representative submissions dated 4 October 2023. The representative reiterates the applicant’s claims for protection for reason of his religious beliefs, his personal profile and his difficulties in relocating within his home country. The representative cited media reports to argue the continuous harassment and attack against Shias from the TTP, ISIS and that the sectarian violence is on the rise in Pakistan. That the protection the applicant could seek is ineffective as the judiciary and law enforcement systems are corrupt and/or under threat not to support an anti-Sunni movement.

    b.Regarding relocation, the representative argued that it is impracticable for the applicant to relocate elsewhere within Pakistan as his family name would continue to identify him as a Shia and will continue to face risk of harassment and difficulties in settling in. It was argued that the applicant would have to adjust his behaviour to avoid harm from different agents in his home country.

    c.Copies of country and media reports from 2022-2023 including US Department of State Report on Human Rights in Pakistan and various other newspapers articles.

    d.Applicant’s statement of claims dated 4 October 2023. The applicant reiterates his claims of being a noha reciter promoted by his uncle [Mr B], his family is Shia and actively promote Shia religion. He has continued his involvement in Shia Muslim and Islamic events throughout Australia. He states that his relocation opportunities have worsened since the Afghani collapse based on the reports from country information sources about ISIS and Taliban fighting. The new Blasphemy Law in Pakistan prohibits speaking of a Muslim history that may contradict Sunni Islam and this prevents the applicant and others from reciting noha. His family has relocated to [a specified neighbourhood in] Karachi for their safety albeit fenced and guarded by security. He financially supports his ill mother based in Pakistan from his business earnings in Australia. Should he relocate within Pakistan, he would travel to visit his ill mother and be identified on his travels and therefore harmed.

    e.Letter from [Organisation 1] dated 6 September 2023. [Mr A], the writer, states that the applicant is an active member of [named Dargah] in [Suburb 1] NSW.

    f.Photographic evidence depicting the applicant at various gatherings and events dated 17 February 2022, 14 May 2021, and blood donation events.

    g.USB stick showing recordings of applicant in which he appears to be reciting noha.  The videos are dated 4 October 2023 and 27 September 2023.

    h.Photgraphic evidence depicting the applicant on a walk in Perth on 6 September 2023.

21. The following is a summary of the oral evidence taken at hearing on 11 October 2023.

22. The Tribunal explained the process and explained that it had the evidence and information the applicant had provided to the previously constituted Tribunal and would consider that information and evidence as well as information held on Department file provided by the applicant.

23. The applicant confirmed his migration record that he has been in Australia for 12 years.  He was first on a student visa and when a further Student visa was refused, he lodged an application for a protection visa in 2016. 

24. The applicant stated that he had his mother, two sisters and one brother still in Pakistan.  He stated that they are still living in Karachi however have moved to another area about 15-20 kilometres from where they lived previously

25. He confirmed that one sister is married.  His other sister, brother, and mother all live together.  His Uncle and sister live nearby.

26. His Uncle is [an Occupation 1] and a poet.  He claims his uncle is still running the hospital he has referred to in his submissions.  He said he still has some relatives working at the hospital with his uncle.

27. He confirmed that he has previously travelled to [Country 4] and transited through [Country 2] and [Country 1].

28. The Tribunal asked the applicant to go through why he still feels he cannot return to Pakistan.  The Tribunal noted that he had returned twice when he was on a student visa.

29. He agreed he had returned in 2015.  He stated that he returned at that time as his mother was sick.

30. The Tribunal then addressed the issue of why the matter had been remitted.

31. The Tribunal discussed with the applicant that the issue of COVID was now resolved, and he would be free to move around Pakistan as country information indicates there are no restrictions anymore.

32. The applicant agreed that this was the case.  He responded that he still had to look after his mother.  He stated that his mother is paralysed.  His brother and sister still live with her however his sister is to be married soon and his brother is an asthmatic and has sleep apnoea.  His evidence is that due to these concerns his brother rarely leaves the house.

33. The Tribunal discussed with the applicant that his mother and brother have been without him for 12 years and seem to have managed.  He said he has been financially supporting his family.

34. The Tribunal discussed with the applicant country information which was considered at the previous hearing that there are other cities in Pakistan where “mohajirs “have assimilated well such as Lahore, Peshawar and Quetta and due to this are not at risk of harm.  They have communities who are living safely.

35. He responded that he did not agree with that country information and provided his own information that there have been instances in Peshawar and Quetta where Shia have been targeted.  His evidence is that he would not be able to relocate.

36. The Tribunal invited the applicant to discuss other claims about why he may not be able to return to Pakistan.  He stated that he was in a relationship with a girl from a Sunni family.  He stated that her whole family were against the relationship.  He reiterated that her whole family were against the relationship.

37. He stated that he has never met her face to face however they have been in a relationship for 12 years.

38. The Tribunal reminded him that previously he had stated that her sisters did approve and had helped her.  He then changed his evidence to say that her sisters had assisted her to move to [Country 1].  He said this happened about 4 or 5 years ago. 

39. The Tribunal queried why she moved to [Country 1].  He stated that her sister lived in [Country 1].  His evidence is that she has a job in a large company as [an occupation] in [Country 1].  His evidence is that she lives by herself in [Country 1]. 

40. The applicant stated that his family are happy with the match and would go to speak to her family however her family will not accept it.  He claims they tried to marry her off to her cousin and when she refused, she was subjected to violence.

41. The applicant claims he financed her move to [Country 1] and regularly sends her money.  The Tribunal queried why she did not apply for a student visa so they could be together.

42. He responded that she did not speak English and could not pass the English test.

43. The Tribunal discussed with the applicant that if she was working in [Country 1] as [an occupation] then normally, she would have English skills.  He then changed his evidence to say she had some skills but could not get a high enough score.

44. The Tribunal discussed its concerns that it found it hard to accept that a young woman from a conservative Sunni family who were controlling would allow her to move to [Country 1] and work and live on her own. 

45. He responded with words to the effect that her sister lived nearby. 

46. The Tribunal queried what his plan would be if his attempts to stay in Australia failed.  He responded he would continue to seek a visa for her.

47. The Tribunal explained that it was looking for some commitment from him whether he would move to [Country 1] or another area of Pakistan to be with her.

48. He responded he could not move from Australia.

49. The Tribunal then discussed with the applicant the issue of him relocating to another area in Pakistan.  He responded that he would face the same issues in all of Pakistan.

50. He claims is an active Noha reciter.  He claims he has been active in Australia and will continue this in many areas.  He further claims he cannot travel freely as he will be Identified by his Name which is a well-known Shia name.

51. The Tribunal then discussed that he would mainly conduct his recitals in a Mosque or with other Shias.  The Tribunal queried how those who may be hostile to his recitals will become aware of his activities if he only recites in Mosques and with other Shia.  He then claimed he posts on-line. 

52. The Tribunal discussed that he is a Shia in Pakistan.  

53. The Applicant stated that he is living in Australia and running his own business, he is in a [specified] company and employs three people. 

54. The applicant discussed that he wanted to get a skilled visa however he had an outstanding warrant for drink driving.

55. The applicant discussed that he was attacked in 2010, he claims that he was working in his uncle’s hospital and people came looking for his uncle.  They could not find his uncle and bashed him and fired guns.  He claims that when he was studying at university, he suffered threats.  He claims that in 2015 he was at home and people came and smashed his place and fired guns in the air.

1. He claims that his family are living in a walled security complex.  He claims that in that complex they have armed security guards.  He claims they support Shia organisations.

100.   The applicant at hearing stated he had worked extensively in his uncle’s hospital.  He claimed he worked in [work area] as well as in operating theatre.  When queried about working in the operating theatre without any medical skills he stated he did a course.

101.   The Tribunal discussed with the applicant that the authorities provided some protection.  He agreed however, responded with words to the effect that they were broken into many times.

102.   The Tribunal discussed with the applicant that he still had some issues related to his problems with not getting a visa.  He stated that he is on medication for anxiety. 

103.   The Tribunal discussed that the applicant claims he is participating in charity work in Australia.  He is providing free drinks and refreshments and participates in recitals. 

104.   The Tribunal discussed the letter from the applicant’s uncle.  In that letter he states that an action was launched against him for blasphemy and that his advocate was murdered.

105.   The applicant claims at hearing that his uncle was bailed, and the complaint was removed.

106.   The Tribunal took evidence from a witness for the applicant.  He is a partner in the applicant’s [business].  He attends Mosque with the applicant and attests to his charitable work.

107.   He did not know the applicant in Pakistan. 

Nationality

The applicant claims to be a citizen of Pakistan. A copy of the applicant’s passport was provided. The applicant is a Pakistani citizen. The Tribunal has assessed the applicant’s claims against Pakistan as his country of nationality for the purposes of the Convention and his receiving country for the purposes of s.36(2)(aa).Profile in Pakistan.

108.   The applicant was born on [date].  He arrived in Australia [in] April 2011.  The applicant was [age] when he left Pakistan.

109.   He claims he is at risk as he has a high profile in Pakistan due to his being perceived as his uncle’s successor in his Hospital and Charity work which is connected to being a Shia.

110.   At hearing the applicant claimed he worked in all areas of the hospital from [work area] to the operating theatre.  When queried about how he was allowed to work in the operating theatre with no medical expertise he responded that he did a course.  The Tribunal does not accept that if his Uncle was [an Occupation 1] as claimed by the applicant and running two hospitals and setting up a third that he would have relied on a nephew who was below the age of [age] at the time he claims he was involved in the hospital to be his successor and run the hospital especially as earlier evidence stated that his Uncle had fled and was living in [Country 5].

111.   His brother, sisters and mother have continued to live in Pakistan.  At hearing he stated they had only recently moved with other members of the family to a compound which has security outside Karachi. 

112.   When earlier queried by a differently constituted Tribunal as to why he would be the successor other than his older brother he stated that his older brother would not listen.  In later submissions he claims his brother has asthma and sleep apnoea and will not leave the house.

113.   The Tribunal accepts that the applicant may have worked for his uncle in some capacity appropriate for a student however does not accept that the applicant would be seen as the successor to his uncle’s hospital business if he returns to Pakistan as the uncle has a son of his own who he claims is currently studying overseas.  The Tribunal does not accept that the applicant alone and not his older brother or the uncle’s son is the successor to the hospital and any charitable work undertaken by the uncle including being a noha reciter.

114.   The Tribunal does not accept that the applicant had the profile he claims put him at risk of attacks in Pakistan. 

115.   The applicant claims he as part of a Shia student organisation the Imamia Student Organisation (ISO).  The applicant claimed in previous submissions to work for ISO when he was a teenage student he did not elaborate on those claims at hearing with the present Tribunal.   The Tribunal has considered the previous evidence in relation to his claim and accepts, independent country information that many Shia are members of the organisation however he was between the ages of [age] to [age], has been in Australia since he was [age] and the Tribunal is not satisfied on the evidence and the effect of the passage of time, that he would be at risk of any serious harm due to any student Shia organisation he was part of.   Due to his age at the time the Tribunal does not accept he had a high-profile as a Shia or was a leader of the organisation.

116.   The Tribunal does not accept that the applicant before the age of [age] had a high profile in relation to his being Shia.

Relationship

117.   The applicant claimed that he is in a relationship with a Sunni girl and therefore will be at risk if returned due to her family being hostile to him.  His evidence, in relation to this claim, at hearing was vague and lacked any logic at hearing.  He has never met her face to face.  His evidence is that she is from a strict conservative family who seek to control her and have inflicted violence on her, yet she has moved to [Country 1] is living on her own and working.  The applicant may have had some online conversations or interaction with a woman in [Country 1] however the Tribunal does not accept that the relationship is a serious relationship.

118.   The applicant provided evidence of some money transfers however those alone are not evidence of a committed relationship.   He provided some letters and a person claiming to be her who spoke to the previous tribunal however that does not convince the Tribunal of the truth of the claims that he would be at risk of harm if he returns to Pakistan from her family due to any committed relationship.

Noha

119.   The applicant claims he will be at risk of harm due to being a reciter of Noha.  The applicant has provided photographs and some untranslated video of him reciting what appears to be Noha either on his own or in the company of others.  He provided to the present Tribunal some videos which had English subtitles.  The videos are not proof that he is a high profile Noha.  In the videos he is seen reciting passages.  These videos could be easily produced.   He had provided evidence of being a Noha reciter to the previous Tribunal however it was only his and his uncle’s assertions.

120.   At hearing the applicant agreed that his recital was done at religious and other events.  When queried how others who were not Shia would know about his recitals, he stated he posted his recitals online.  No independent evidence was provided of any online recitals.

121.   The Tribunal accepts that while in Australia the applicant is mixing with other Shia from Pakistan and has attended social and charity events and recited Noha.  The Tribunal finds that he is mixing for social and community events.  The Tribunal is not satisfied that the applicant, due to his young age in Pakistan, has any high profile in Pakistan as a reciter. 

122.   The Tribunal on the evidence before it is not satisfied that having been a Noha reciter in Australia would bring him to the attention of hostile persons in Pakistan.  The Tribunal finds he is not a high profile Noha reciter and if he chose to become a Noha reciter he would be able to live and work in Pakistan as he claims his uncle is currently doing.

Mohajir ethnicity

123.   The applicant claimed in previous submissions he is at risk due to being Mohajir.  He did not elaborate on this claim at hearing.  His family have had the resources to fund him on a student visa and send him overseas to study.  The Tribunal accepts his family have financial resources available to them and have been able to afford medical care for family members and to educate their children overseas.  The Tribunal is not satisfied that the applicant suffers any disadvantage or serious harm due to being from Mohajir.

Prominent Shia family

124.   The applicant claims he is at risk due to being part of a prominent Shia family.  He claims that he and his uncle have been the subject of violence and his false charges.  The applicant claims he had to flee to Australia due to these threats and violence.  The Tribunal notes that his passport was issued before the day of claimed attacks and that he returned to Pakistan twice spending more than six months there.  His accounts of violence to differently constituted Tribunals and the written evidence is not consistent and persuasive.  The Tribunal does not accept that the applicant was the victim of attacks or violence due to being from a prominent Shia family or any other convention reason.

125.   The applicant claimed his uncle has security guards.  No independent evidence of this was provided. 

126.   To earlier Tribunals he claimed his uncle had relocated to [Country 5] due to threats to his safety.  This contrasts with evidence to the current Tribunal which is that his uncle is in Pakistan, is living in a compound with other members of his family and continuing to run hospitals and participate in the Shia community in their local area and has the funds to travel and finance his son’s study in [Country 6].  The applicant’s family have moved however it is still relatively close to their original home and appears from the available evidence to be safe and affluent.

127.   This contrasts with previous evidence including a letter dated 9 May 2022 which was provided to the previous Tribunal which claimed his uncle’s legal advisor was murdered, he was the subject of false charges had fled to [Country 5] and the applicant should not return. 

128.   At hearing when queried for further information on these serious claims including the claim of being open to Blaphemy the applicant was vague, did not appear to know the status of any false charges against his uncle and referred to his uncle getting bail and the complaint being removed.

129.   The Tribunal accepts that there was a law passed in Pakistan in relation to Blasphemy. The Bill seeks to amend Section 298 A of the Pakistan Penal Code (PPC) which specifically aims to protect the sanctity of revered personalities. but the amendment has ambiguity in the definitions of ‘holy personages.  Given the evidence that the applicant’s family are in a privileged position, have previously been supplied with security guards by the government (Uncle’s statement dated 6 August 2021) and according to the applicant able to get any police complaints removed, the Tribunal does not accept they are at risk of being subjected to any serious harm due to charges of Blasphemy.

130.   On the evidence before it the Tribunal does not accept that the applicant or his uncle have been the subject of any false charges including Blasphemy charges.

131.   The Tribunal accepts that Karachi has significant security problems, some of which are attributable to sectarian or ethnic conflict, but many of which are more complex and reflect broader law and order issues. The Tribunal finds that the applicant’s claims of being targeted on his return to Pakistan are exaggerated and does not sit well with the evidence his family are affluent, he is well educated has had a privileged upbringing and previously returned to Pakistan for a period of over six months and was not harmed.

132.   the Tribunal does not accept that the applicant faces a real chance of serious harm, for reasons of his religion or any related reason (such as his uncle’s profile).

Medical Issues

133.   The applicant provided evidence that he suffers from depression. The previous letters from the practitioners, claiming he suffers from depression, also state that he is receiving medication.  No updated medical report was provided. The applicant is able to work, set up a business and function within his community and travel within Australia.  The Tribunal is satisfied that if he returns to Pakistan, he has the support and resources of his family and will be able to source any treatment or medication he currently takes to treat any anxiety or depression.

Relocation

134.   The applicant claims that he has to care for his mother and brother including sending them money.  The applicant has been in Australia since 2011.  He was on a student visa for some time and would have been unable to send to any money to his family.  From the evidence he has provided, his mother and brother continued to receive assistance from and live with other members of their family.  They have lived without the applicant for twelve years there is no evidence that they have been harmed by hostile persons or not been able to have the daily necessities of life provided to them.  The Tribunal does not accept that the applicant is needed to provide ongoing care or financial resources to his mother or brother as they have managed since 2011 and not come to any harm. 

135.   The applicant claimed that COVID was an issue and would not allow him to move within Pakistan.   

Independent information indicates that “There are no current reports on specific road blockages or restrictions in place of any nature during the pandemic in Pakistan.” Sources consulted: Pakistani Consulate in Sydney, Smartraveller, and DFAT reports.

136.   The Tribunal finds that the applicant would not suffer any serious harm if returned to Pakistan due to any COVID restrictions.   If the applicant so chose, he could re-locate.  He is educated, bilingual and shown himself able to adjust to life in a different culture and the Tribunal is satisfied he could re-locate with ease however as the Tribunal has found he is not at risk of any serious harm he could also stay with his family and visit his mother without being at risk of serious harm.

137.   The previous differently constituted Tribunal discussed with the applicant whether he would face a risk in places such as Lahore, Rawalpindi and Islamabad, given country information that the treatment of Shia is markedly better in these cities and taking into account his other claims (eg. relating to [Ms E], his Mohajir origins, etc.) It also discussed whether it would be reasonable for him to relocate in his particular circumstances. Part of the applicant’s responses related not to the issue of relocation within Pakistan, but rather why his removal from Australia would cause him hardship, eg. he would have to abandon his business interests, and start over with minimal assets, in a country where he has been absent for a long period and would face discrimination as a Shia. 

138.   The applicant claims that his surname marks him as a Shia and simply being known by his name would allow forces that are hostile to Shia to find him and cause him harm.  This contrasts with the evidence that his family, who share his surname, have been able to live in Pakistan and not suffered serious harm.  When queried why his brother, who is the eldest son, is not targeted he gave a simplistic explanation that he is difficult, has asthma and insomnia.  The Tribunal does not accept that if he has persons who he claims are still wanting to harm him even after him being away for twelve years would allow his close family members to live safely in Pakistan.  If such persons were so intent on causing harm to the applicant, the Tribunal would expect that his family are at risk of harm.  This is not the case as his evidence is that they are all living in a compound together and able to continue their lives.

139.   The Tribunal finds that he could relocate if he chose to.

140.   The applicant provided a large number of letters, documents including those which he held out as official reports to police and had persons provide oral evidence to the Tribunal.  The evidence could easily be manufactured, and those documents and evidence considered in relation to other concerns do not allay the Tribunal’s concerns as set out above.  The Tribunal has considered independent information in relation to fraudulent documents as set out below.

DFAT Country Information Report – PAKISTAN - January 2022

5.52 Document fraud is widespread in Pakistan, other than for identity documents issued by NADRA, which are generally reliable. CNICs, SNICs and passports contain security features which have reduced the incidence of document fraud. Authorities have put in place measures to combat the fraudulent issuance of documents and can cancel fraudulent CNICs. 5.53 Due to the relative ease in acquiring fraudulently obtained genuine documents, such documents are common in Pakistan. Genuine documents such as CNICs and passports can be obtained with fraudulently altered or counterfeit feeder documents. Fraudulent documents in Pakistan can include, but are not limited to, academic degrees and transcripts, bank statements, agreements, references, and ownership deeds.

5.54 Union councils and NADRA can verify whether documents are genuine, but they may not be able to identify fraudulently obtained genuine documents. NADRA issues birth certificates, but fraudulently obtained, fraudulently altered or counterfeit certificates are still available from hospitals. FIRs (First Information Reports, an initial police record of a complaint or reported crime) use standard forms with the relevant information written in by hand and are relatively easy to counterfeit. Reports exist of police accepting bribes to verify fraudulent FIRs. DFAT does not consider the existence of an FIR as conclusive evidence the events described in the FIR actually occurred.

141.   Given the applicant’s migration history and stated desire to stay in Australia the Tribunal finds that the evidence was manufactured to assist the applicant to achieve his desired migration outcome.

142.   The Tribunal accepts that many of the applicant’s family and friends would want to assist him to stay in Australia.  He has, according to his business partner, who provided oral evidence, set up and is running a successful business in Australia.  He is connected to his local community and as pointed out by the applicant is employing several persons in Australia. 

143.   While these things may be commendable, they are not relevant to the task which has to be undertaken by the Tribunal. 

144.   The Tribunal has to consider whether the applicant would if returned to Pakistan face a real chance of serious harm.  On the evidence before it as set out above the Tribunal is not satisfied that he faces a real chance of serious harm if he returns to Pakistan now or in the reasonably foreseeable future.  

145.   Considered overall, the Tribunal is not satisfied that there is a real chance the applicant will suffer serious harm for any reason set out in s.5J(1)(a) if he goes to Pakistan. It is not satisfied there is a real chance he will suffer serious harm for any of the reasons claimed or for any other reason if he goes to Pakistan. Accordingly, it is not satisfied he has a well-founded fear of persecution. The Tribunal is, therefore, not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.

Does the applicant meet the complementary protection criteria?

146.   As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, it has considered whether he may nevertheless meet the criterion for the grant of a Protection visa under the complementary protection criterion.

147.   As indicated above, the applicant claims he is at risk of harm in Pakistan as he is a high-profile Shia, his family connections and name, if of Mohajir ethnicity, a Noha reciter, in an interfaith relationship and has mental health issues.  As set out above, the Tribunal has considered all the evidence in relation to his claims and does not accept on the evidence provided that he has a real risk of suffering significant harm in Pakistan. 

148.   The Tribunal does not accept that the applicant will suffer significant harm due any of the issues set out above.   The Tribunal does not accept that he is suffering from stress or depression which impacts his ability to work, study, and undertake daily activities of living if he was to return to Pakistan.   The Tribunal finds that he will have the support of his family in Pakistan.  His family are educated and have the resources to assist with the treatment of any mental health condition he may be diagnosed with.

149.   On the evidence before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

150.   There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a Protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

DECISION

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

Catherine Carney-Orsborn
Member

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country,  in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)     conceal an innate or immutable characteristic of the person; or

(c)     without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and

(c)     the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)     a threat to the person’s life or liberty;

(b)     significant physical harassment of the person;

(c)     significant physical ill‑treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)     the characteristic is not a fear of persecution.

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)     protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)     the person can access the protection; and

(b)     the protection is durable; and

(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

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