2410979 (Refugee)

[2024] AATA 3326

2410979 (Refugee) [2024] AATA 3326 (19 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Munashe Rusamo

CASE NUMBER:  2410979

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Amanda Goodier

DATE:19 August 2024

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s36(2)(a) of the Migration Act.

Statement made on 19 August 2024 at 2:51pm

CATCHWORDS

REFUGEE – protection visa – Pakistan – particular social group – women – separated women – victim of family violence – fear of honour killing – gender-based violence – internal relocation – state protection – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424, 499
Migration Regulations 1994, Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 May 2019 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 29 May 2018. The delegate refused to grant the visa on the basis that the delegate did not accept that the applicant faced a real chance of serious harm from the authorities or any other person on her return to Pakistan for reasons of her race, religion, nationality, political opinion or as a member of a particular social group. The delegate also did not accept that there was a real risk the applicant would face significant harm for any reason on her return to Pakistan. A copy of the delegate’s decision was provided to the Tribunal  by the applicant.

3. The applicant was scheduled to appear before the Tribunal on 14 August 2024 to give evidence and present arguments. Having considered the material submitted by the applicant by way of pre-hearing submissions, the Tribunal considered it should make a favourable decision to the applicant on the materials available to it without the need for a hearing.

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

   CRITERIA FOR A PROTECTION VISA

5. 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.

6. 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.

7. 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).

8. 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.

9. 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

10. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in this case is whether the applicant is 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. For the following reasons, the Tribunal  has concluded that the decision under review should be remitted.

    Country of nationality

12. The applicant travelled to Australia on a genuine passport issued by the Islamic Republic of Pakistan, a copy of which is contained on the Departmental file. She has at all times stated that she is a citizen of Pakistan and has been assessed on that basis by the Department. The Tribunal  finds she is a Pakistan citizen and has assessed her claims against Pakistan as the country of nationality and the receiving country.

    Background information

13. The applicant applied for the protection visa as the secondary applicant of an application by her husband. She made no claims of her own and relied on her husband’s claims. Following the decision of the delegate, the applicant separated from her husband and made claims of her own. The Tribunal received a detailed submission from the applicant’s representative. The Tribunal also received a sworn statement from the applicant detailing the violence experienced from her husband as well as a sworn statement from her support worker attesting to assistance provided to the applicant as a victim of family violence. The applicant also provided a copy of her interim Family Violence Restraining Order dated [in] February 2020 and Conduct Agreement Order dated [in] May 2020.

14. The applicant claims that if returned to Pakistan she will face persecution and significant harm for the reasons of her gender, her profile as a victim of family violence, as a woman who has left her husband and a woman with no male protector.

15. The applicant claims to be a victim of longstanding and serious family violence perpetrated by her husband in Pakistan and Australia.

16. DFAT reports that Pakistan has one of the worst records for gender equality in the world, ranking 153 out of 156 countries. While the Constitution prohibits discrimination on the basis of sex, many discriminatory laws exist including on issues such as inheritance, property rights, family law, and civil and traditional judicial processes. Women’s participation in society in Pakistan is heavily curtailed by their social circumstances, which restrict many women’s personal, social and economic activities outside the home. Rates of gender-based violence are high and it often goes unreported due to stigma and a lack of privacy for victims. Domestic violence is commonly seen as a private family issue with police reluctant to intervene.[1]

    [1] DFAT Country Information Report: Pakistan 25 January 2022 at 3.89 – 3.100

17. In view of the above information, together with the written evidence submitted by the applicant and supporting documents, the Tribunal accepts that the applicant has experienced family violence in Pakistan and Australia perpetrated by her husband since at least 2011. The Tribunal further accepts that if the applicant returns to her home in Punjab, Pakistan, there is a real chance the applicant’s husband will again be violent towards her.

18. The Tribunal also finds that there is a real chance the applicant will face harm from her ex-husband’s family because she has left her husband and bought shame upon them.

19. The Tribunal also accepts the applicant’s written evidence that she is unable to return to her mother’s home as her stepfather is extremely conservative and will refuse to allow her to stay and likely to return her to her ex-husband’s family for bringing shame upon her mother’s family for leaving her husband.

20. In making that assessment the Tribunal notes DFAT’s advice that women and girls in Pakistan face a high level of official discrimination and a high risk of societal discrimination and violence, particularly domestic violence, because of their sex.[2] The DFAT advice is consistent with other reliable sources of country information. Human Rights Watch reports that women and girls in Pakistan continue to be subject to gender-based violence including honour killings and acid attacks, and traditional justice systems at times arrive at verdicts to carry out honour killings and mutilation. While the Anti-Honour Killing Act 2016 declared murders in the name of family honour a criminal offence, it has failed to prevent such crimes.[3]

    [2] DFAT Country Information Report: Pakistan 25 January 2022 at 3.100

    [3] ‘World Report 2021. Events of 2020’, Human Rights Watch, 13 January 2021, p. 520; ‘44 women killed in the name of ‘honour’ in Swat’, Pakistan Today, 19 October 2019; ‘Ending violence against women in Pakistan’, Asia and the Pacific Policy Society, 7 February 2018; ‘Honor’ Killings Continue in Pakistan Despite New Law’, Human Rights Watch, 25 September 2017; ‘Couple shot dead in suspected ‘honour killing’ in Lahore’, Geo TV, 5 June 2018; ‘Honour’ killings in Karachi shock Pakistan’s largest city’, The Guardian, 27 December 2017; ‘Two men killed for honour in Islamabad’, Express Tribune, 7 March 2017

21. The controlling and violent behaviour that the applicant has experienced from her husband is properly characterised as family violence, a complex pattern of controlling and abusive behaviours that seek to isolate, degrade, exploit and control victims. Family violence often takes place between intimate partners but may also occur between immediate and extended families and other communal or extended kinship relationships of mutual obligation or support. While family violence can affect a person irrespective of gender, it is widely acknowledged that the overwhelming majority of these behaviours are perpetrated by men against women, and that the most significant risk factor for experiencing family violence is being a woman.[4]

    [4] Australian Government Attorney General’s Department, Australian Institute of Judicial Administration,  University of Queensland & University of Melbourne National Domestic and Family Violence Bench Book June 2021 at 3.1 Contents - National Domestic and Family Violence Bench Book (aija.org.au)

22. Country information indicates that Pakistan is a patriarchal society in which gender disparity is widespread and extends to political and state institutions.[5] The vulnerability of women to violence by men is heightened by their exclusion from social, economic and political institutions in Pakistan as a structural cause of inequity:

    A significant source of women’s vulnerability to violence is their financial dependence on their fathers, brothers or husbands. Tradition assigns women all household chores and discourages them from working outside the home. Work environments and public spaces that are hostile to women obstruct them from both the formal and informal economy. The few women who do participate in the workforce largely constitute the informal economy, where wages are abysmally low and economic vulnerability to external shocks like the pandemic is higher. Men’s monopoly over household income and assets, combined with a belief that women should tolerate violence to keep the family together, leaves women not only more vulnerable to violence but also incapable of escape.[6]

    [5] Gender discrimination worsened poverty in Pakistan’, ANI News, 11 December 2021; ‘Country Policy and Information Note - Pakistan: Women fearing gender-based violence’, UK Home Office, 16 February 2020, p. 7,Pakistan: A Rising Women’s Movement Confronts a New Backlash | United States Institute of Peace (usip.org)

    [6] US Institute of Peace Pakistan: A Rising Women’s Movement Confronts a New Backlash 17 March 2021 Pakistan: A Rising Women’s Movement Confronts a New Backlash | United States Institute of Peace (usip.org)

23. The Tribunal accepts the violence perpetrated upon the applicant by her husband is gender-based and is directed at her because she is a woman and that such gender-based harm is extensive in Pakistan.

24. For these reasons, the Tribunal is satisfied that the harm the applicant fears from her husband involves systematic and discriminatory conduct directed at her for the essential and significant reason of her gender and her membership of the particular social group ‘women in Pakistan.’ The Tribunal considers that the group of ‘women in Pakistan’ is identifiable by the characteristics of gender and nationality and the common characteristics or attributes are not a shared fear of persecution.

25. Having accepted that the applicant faces a real chance of serious harm in Punjab, Pakistan for reasons of her membership of the particular social group of ‘women in Pakistan,’ the Tribunal has considered whether the real chance of serious harm relates to all areas of Pakistan.

26. DFAT reports that internal relocation within Pakistan depends on having both the financial means and family, tribal or ethnic networks to establish themselves in a new location and that single women find it especially difficult to relocate. DFAT assesses that without support it is extremely difficult for a woman to relocate to escape an abusive relationship and that women who leave their families face physical risk, stigma and steep economic barriers, with reports of widespread sexual harassment of women and girls in public places.[7] It reports that women in Pakistan face a high level of official discrimination in the form of inadequate state protection from gender-based violence.

    [7] DFAT Country Information Report: Pakistan 25 January 2022 at 3.89 – 3.100

27. In this case the applicant has no means of financial support other than her husband. She has limited education and has never worked outside the home. She is unable to return to live in her mother’s home and has no other family to assist her. The applicant’s passport identifies her as being the spouse of her husband and she would need to obtain new identity documents which may be difficult without the approval of her ex-husband or official notice of a divorce which may also be difficult for her to obtain in Pakistan.[8]

    [8] Zainab Durrani “Identity Crisis” Roadblocks in Women’s Access to basic ID Documentation in Pakistan” GENDERIT (2023) >

    The Tribunal accepts that any attempted relocation within Pakistan would expose her to significant economic as well as other kinds of harm for the essential and significant reason of her gender, noting the country information cited above that indicates women’s exclusion from Pakistan’s social, economic and political institutions is both a structural cause of inequity and a significant source of their vulnerability to violence from men.[9] For these reasons the Tribunal accepts that the real chance of persecution relates to all areas of Pakistan.

    [9] US Institute of Peace Pakistan: A Rising Women’s Movement Confronts a New Backlash 17 March 2021 Pakistan: A Rising Women’s Movement Confronts a New Backlash | United States Institute of Peace (usip.org)

    Effective state protection

28. A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s 5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.

29. A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s 5LA(2).

30. Country information indicates that state protection is not effective for women in Pakistan. Rather DFAT assesses that the inadequacy of state protection from gender-based violence for women and girls in Pakistan itself constitutes a high level of official discrimination.[10] Other sources indicate that laws designed to protect women from violence are rarely enforced and in some cases those seeking protection have had their movements restricted, been pressured to return to their abusers or exploited into prostitution or trafficking.[11] In these circumstances the Tribunal finds that effective state protection is not available to the applicant.

    [10] DFAT Country Information Report: Pakistan 25 January 2022 at 3.100

    [11] ‘Country Reports on Human Rights Practices for 2019 - Pakistan’, US Department of State, 11 March 2020, pp 36-37; see also ‘Over 5,000 women approach Darul Aman in KP during last 5 years’, Tribal News Network, 23 January 2021.

31. For these reasons, the Tribunal is satisfied that the applicant faces a real chance of persecution if she returns to Pakistan, now or in the reasonably foreseeable future. Therefore, she is a person in respect of whom Australia has protection obligations under s 36(2)(a).

    CONCLUDING PARAGRAPHS

32. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

    DECISION

33. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

    Amanda Goodier
    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.

    …