2439872 (Refugee) - [2024] ARTA 750

2439872 (REFUGEE) [2024] ARTA 750 (19 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2439872
Tribunal:Denis Dragovic
Date:19 December 2024

Place:Melbourne
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act.

Senior Member D. Dragovic

Statement made on 19 December 2024 at 3:02 PM

CATCHWORDS
REFUGEE – protection visa – Pakistan – religion – Shia Muslim – sectarian land disputes and extremist attacks – country information – escalation of attacks in recent years – state protection not available – relocation to city reasonable – particular social group – partner a Hindu from another country – religious laws and social norms – partner would not travel and live with applicant – political opinion – increased activities in Australia and now committee member of party – threatened by embassy official – less than real chance of harm as general member – mental health – separation from partner due to refugee attribute (religion) – cumulative real chance of serious harm – modification of behaviour not reasonable – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (2), (3), (4)(a), (c), 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
BFM16 v MIBP [2016] FCCA 2037
MIAC v SZQOT [2012] FCAFC 141

S395/2002 v MIMA (2003) 216 CLR 473
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 November 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a national of Pakistan. He applied for the visa on 21 July 2016. The delegate refused to grant the visa on 28 November 2018.
The matter was first heard by the Immigration Assessment Authority who affirmed the decision in January 2020. The applicant then appealed the decision to the Federal Circuit and Family Court of Australia. The court remitted the decision for reconsideration in September 2024.
As the Immigration Assessment Authority was abolished in October 2024 the case was transferred through the operation of legislation to the Administrative Review Tribunal.
The applicant appeared before the Administrative Review Tribunal on 18 December 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner.
BACKGROUND
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant is a Shia man, [Age]-years-of-age, from Parachinar city within Kurram district, Pakistan. He is in a long-term relationship with a Hindu woman from [Country].
An Al Jazeera piece explains the context of Parachinar:
Kurram, a mountainous area that shares a long border with Afghanistan in the northwestern province of Khyber Pakhtunkhwa, is home to about 700,000 people, of which more than 42 percent belong to the Shia community.
It is closer to Afghanistan’s capital Kabul than any major city in Pakistan but also borders Afghanistan’s Khost, Paktia, Logar and Nangarhar provinces, which are considered havens for anti-Shia armed groups such as ISIL (ISIS) and the Pakistan Taliban (TTP).
The area has a history of sectarian conflict between the Shia and the Sunni majority groups and has also faced militancy during the past decade, with frequent attacks by TTP and other armed groups targeting the Shia community.[1]
[1] >
The applicant provided considerable documentary evidence of being from Parachinar including his passport identifying his place of birth as Parachinar. I accept that he is from Parachinar and that he is Shia.
The applicant provided country information regarding the situation in Parachinar. The Tribunal in addition sought its own additional sources.
In reviewing the situation in Parachinar there is what can best be described as a siege of the area with critical supplies having to be brought in by helicopter.[2] This situation has been ongoing for some months with a recent attempt to break the siege by sending a large convoy out of Parachinar to the closest large town, Thal.
[2] >
On November 21, a convoy of 200 vehicles moved from Parachinar to Thal and was attacked resulting in 43 civilians being killed. Prior to this incident the South Asia Terrorism Portal records 5 security incidents and 8 civilian deaths in 2024, 27 civilian deaths in 2023 from 11 incidents and zero civilian deaths in 2022.
Other reports claim 130 deaths in the past months. The difference being that the South Asia Terrorism Portal does not record deaths from land dispute conflicts which is one of the underlying bases of the tensions.[3]
[3] >
Land disputes being one of the bases of dispute is described in reporting about the conflict showing different perspectives on whether the dispute can be categories as purely land-based or sectarian:
The District Police Officer says the conflict is related to land disputes rather than sectarian issues. The government also says they are working on a land commission to adjudicate the land disputes, which will bring enduring peace in the area. “Several reports have been received that some miscreants are giving it the colour of a sectarian clash and propagating false news on social media,” the Home Department said, adding that strict monitoring of social media is in place and such acts “will be dealt severely.” However, local residents say the issue is purely sectarian and terming it as a land dispute will do nothing to resolve the matter.
Reporting on the latest fighting indicates that it arose because of a dispute over land but the two sides were divided by their sects. The Shia tribe owned a tract of land and leased it to a Sunni tribe but when the lease ended the Sunni refused to hand it back for various reasons.[4]
[4] >
In examining the nature of these incidents, I find that they are targeted and arise from a low intensity conflict between Sunni and Shia groups. While the genesis of the dispute may well be land based, when someone is targeted or killed, such as the 43 who died in the convoy, they were not targeted because they owned land or worked on some land but rather because they were Shia. As no one has claimed responsibility it is not clear whether they were targeted by the Pakistan Taliban for sectarian and ideological reasons or by Sunni tribes for reason of retribution and animosity, either way, it remains for reasons of being Shia. For this reason, I find that any harm that is encountered by the applicant, for the purposes of this review, would be for reasons of being Shia.
I note that the Pakistan Human Rights Commission commented unfavourably about the ability of journalists reporting from Parachinar.[5] While this doesn’t limit news of violence being reported through Facebook groups such as Parachinar Press[6] it does lessen the likelihood of all relevant incidents of violence being reported.
[5] >
One news report notes that four people were killed and three wounded after their vehicle was shot at, an incident recorded in the South Asia Terrorism Portal, but of note the report states that it was the fifth such attack in less than two weeks. None of the earlier attacks are mentioned in the SATP portal for the most likely reason that it didn’t lead to injury or death but nevertheless is relevant to my considerations as it includes serious/significant harm.[7]
[7] >
Also quoted in the same article, an elder who states, ‘On Sunday, a lady doctor was also among those killed by the terrorists and there is a list of professionals and students either killed on the spot or kidnapped and later killed.’[8] These incidents aren’t recorded in the SATP database. It could be that the elder was mistaken or possibly that SATP didn’t find credible reporting of it. The relevant point is that under these unique circumstances data from a single source should be used with care.
[8] ibid
The conclusion from the limited reports available to the Tribunal and the data is that the situation in Parachinar and its surrounds has escalated in recent years and there is no sign of it abating into the reasonably foreseeable future. While the sectarian tensions over land are a historical feature of the area, extremist groups have capitalised on the disputes to foment further tensions and are directly involved in some. Despite the multifaceted nature of the conflict and its volatility, I find that the applicant, as a Shia, faces a real chance of serious harm for reasons of his religion.
I find that his religion is the essential and significant reason for the harm (see Migration Act s 5J(4)(a)).
In considering whether the harm he faces would be systematic and discriminatory (see Migration Act s 5J(4)(c)) I find that it is. This is because the nature of the conflict is sectarian and is being used by the Taliban, a Sunni Islamist group that identifies Shia as apostates, and Sunni tribesmen who intentionally target Shia tribesmen, collectively making the harm the applicant faces discriminatory and because it is persistent and not ad hoc, it is systematic.
The applicant cannot seek protection from the state as the area of Parachinar has been experiencing this low-level conflict for many years and despite numerous attempts at conflict mediation including by the state[9], the authorities have been unable to suppress the violence. (see Migration Act 5J(2)).
[9] >
I also find that the applicant cannot modify his behaviour as it is his characteristic, fundamental to his of being a Shia and from Parachinar, that will lead him to face serious harm (see Migration Act s 5J(3)).
As such I now turn my mind to consider whether the applicant can relocate to another area of Pakistan.
Relocation
We discussed the security situation in Kohat, a city and district further east from Kurram. Kohat has a Shia population, a large presence of the applicant’s tribe, the Bangash, and security information indicates that it is not experiencing sectarianism. Kohat appears on the face of the evidence before me the most appropriate location to consider whether the applicant can relocate.
I put to the applicant that data from the South Asia Terrorism Portal shows minimal violence from sectarianism: 2024 three incidents leading to two civilian deaths, 2023 zero civilian deaths; 2022 one incident and four civilian deaths. In the five years before 2022 there was only one incident leading to one death.
The applicant claimed that the situation was worsening. I noted that there are specific areas that are Shia and asked whether they are also worsening. The applicant brought the attention of the Tribunal to an incident in December 2023 an incident that was claimed to be close to the Shia areas. He described it as being between Hangu, another town/district, and Kohat. This incident was reported in the South Asia Terrorism Portal.[10] The applicant said that his cousin was in that incident and that his cousin was shot in the right arm. I noted that in the last ten years in Hangu district 14 people have died from sectarianism and terrorism. I put to the applicant that relative to the population this indicated a low rate of incidents and hence low risk. The applicant said that it cannot be guaranteed that he would not be harmed.
[10] >
We discussed the situation of Shia in general. The applicant claimed that they are being targeted and are victims even in Kohat. He said that he is particularly at risk as he is easily identifiable as a Shia due to his name being [Surname]. I accept this. I note that the DFAT report on Pakistan notes that ‘Shi’a face rising religious intolerance and official discrimination in the form of blasphemy accusations,’ and that ‘Sectarian tensions often flare during Muharram, when Shi’a mourn the killing of the Prophet Mohammad’s grandson and his family, a key event in the Sunni-Shi’a schism.’[11]
[11] DFAT Country Information Report – PAKISTAN - January 2022 at [3.58]-[3.59]
Relevantly, DFAT notes that although historically there has been evidence in Pakistan of the targeting of Shia by Sunni extremist groups, the frequency of these attacks has been reducing.[12] This was put to the applicant in the form of data on the number of incidents and deaths of Shia across Pakistan reducing.[13] The applicant disagreed that the targeting of Shia was reducing.
[12] Ibid [3.60]
[13] >
Based on the evidence before me, I am satisfied that the applicant faces less than a real chance of serious harm in Kohat for reasons of being Shia.
I now turn to the situation of the applicant having a partner who is Hindu religion and [Country] citizenship.
At the hearing I asked the applicant and his partner, as the witness, what they would do if the applicant had to return to Pakistan. The partner said that she could not travel to Pakistan as she is afraid for reasons of her Hindu faith. The applicant’s partner celebrates Hindu customary days and adorns herself with the customary clothes, paint, and accessories. She fears that not only would she be easily identifiable but that she would be unable to practice her faith. I accept this.
The applicant is a practicing Shia Muslim. He prays regularly.
The applicant said that they are inseparable giving the example that when she goes away even for a brief time, they are on the phone together.
There are two elements to this consideration. Firstly, whether and to what degree the applicant faces harm for reasons of having a partner who is Hindu and secondly, what impact is there on the applicant if he is separated from his partner for reasons of her religion.
With regards to the applicant having a Hindu partner, there are a number of societal, religious, historical and geopolitical forces working against the applicant. The social and religious norms in Pakistan are not accepting of a Muslim-Hindu marriage. Muslim marriage laws do not allow men to marry Hindu women[14] because marriages to polytheists are not considered valid.[15]
[14] ‘Country Information and Guidance - Pakistan: Interfaith marriage’, UK Home Office, 7 January 2016, s. 7.1.1,
[15] Prohibition of Interfaith Marriage', Law Library of Congress (United States), September 2015, 2
Although not representative of the applicant’s situation but insightful into the cultural dynamics in the broader Pakistan community, an example of the outcome of Muslim-Hindu relationship was reported:
One interviewee told us about a marriage between a Hindu boy and Muslim girl in a village called Gadapur, near Karachi. The boy and girl ran away. When it was discovered she had run off with a Hindu boy, about two hundred armed Muslims landed up at all Hindu homes in the area to pick up their girls. Hindu people started fleeing to a nearby village. Eventually, the boy and girl were found and presented to the local sardar, Malik Asad Sikander. The girl admitted to running away of her own free will and said that she would do it again if she had to. However, she soon she realized that the boy’s community was being persecuted and was finally convinced that this union was too dangerous and would put the lives of the whole community at risk.[16]
[16] 'A Question of Faith: A Report on the Status of Religious Minorities in Pakistan', Jinnah Institute (Pakistan), 2011, p. 56,
Another article refers to such relationships as taboo throughout South Asia[17] and that they risk violence.[18]
[17] ‘This Hindu-Muslim couple did away with traditional ceremonies to celebrate their love’, Express Tribune (Pakistan), 9 May 2017,
[18] 'Pakistan: Information on marriage registration, including mixed marriages', Immigration and

Country information indicates that as the couple would not be married under a Muslim religious edict then they would be considered as engaging in an extra-marital affair and as such liable to harm for that reason.[19]
[19] ‘Sex Before Marriage: A Real Pakistani Woman’s Experience’, DESIblitz (United Kingdom), 5 December 2018, 'Country Information and Guidance – Pakistan: Women fearing gender-based harm / violence', UK Home Office, February 2016, p. 29,
In considering the risk the applicant faces in Kohat, I note that he comes from a lower socio-economic class and as such does not move in the more liberal upper echelons of Pakistan society. This strengthens his claims of fearing harm as a relationship with a Hindu would not be accepted socially. I find that in turn it would expose the applicant to some degree of harm. But without his partner being present and as such not living in an extra-marital relationship and not undermining the social sensibilities of the community, I find that the harm he faces does not amount to serious harm.
The applicant is a member of the [Committee] of the Victorian branch of [a Political party]. The [Party] is the party of [a Public figure]. The applicant described his political activities as being newly formed, over the past year. He described being motivated to become active in politics despite having no regard to politics for most of his life because when [Public figure] was [Official position], he recalled the situation for the Shia in Parachinar was good and that the government gave consideration to their plight. I accept that the applicant’s involvement in politics is for genuine reasons.
The applicant is on the [committee] in part because he has a high profile in Australia. He is the owner of a [business] that he described as being highly regarded in the Pakistan community. He described being invited to numerous high-profile events and he provided brochures and information of events being hosted in his [business]. The applicant claimed that he was threatened once by a Pakistan embassy official who told him that he’d be taken out upon arrival to Pakistan.
I find that upon return to Pakistan the applicant will continue his involvement with [the Party], particularly as the current leadership in Pakistan has overseen a deterioration in the situation in Parachinar which has been his motivation to become involved.
Country information indicates that supporters of [Public figure] and in particular members of the [Party] have experienced state directed harm. The most recent incident between federal authorities and [Party] supporters occurred on [Date] when [party members were arrested while protesting for Public figure].[20]
[20] [News source URL]
While there is evidence of [Party] members being arrested, it is also the case that Kohat is in Khyber Pakhtunkhwa which is a province [where the Party holds some power]. This does not, though, negate all risks which include risks from federal authorities and their security apparatus such as the army and intelligence agencies.
Nevertheless, noting that the applicant is relatively new to politics, has not had an established network in Pakistan and has no natural constituency in Kohat, I find that he would only be a general member and not a leader. While there is evidence of general members being harmed, I find that the chance of this occurring is less than a real chance.
A further consideration is the applicant’s vulnerability and the harm he would experience due to his already tenuous mental health. The applicant provided a psychological report from 2024 that outlined his diagnosis of severe PTSD and a recommendation that he seeks a referral to a psychiatrist for medication. His mental state is in part a result of himself having been involved in the past in a convoy that was attacked and having been the victim of repeated sectarian violence. This vulnerable state would experience the forced separation from his partner due to her religion more so than were he more mentally robust.
I note that there is considerable caselaw[21] that has identified psychological harm that arises from the separation of partners and family due to one of the five refugee protected attributes, in this case religion, as being a necessary consideration.
[21] MIAC v SZQOT [2012] FCAFC 141 and BFM16 v MIBP [2016] FCCA 2037
I also note that while I have found that the applicant faces less than a real chance of serious harm in Kohat for reasons of being Shia, it is not no chance. When I consider the applicant’s circumstances cumulatively, namely that he is in a relationship that is considered socially taboo, that he will be separated from his partner because of her fear of harm for reasons of her religion and that he faces an ongoing fear of harm arising from his Shia faith, in addition to being at risk for reasons of his political activity, I find combined that cumulatively the applicant faces a real chance of serious harm.
Having considered Kohat for reasons of it being the safest for a Shia from the Bangash tribe, I am satisfied that there are no other places in Pakistan that the applicant faces any less chance of serious harm. For this reason, I find that the applicant has a well-founded fear of persecution.
I also find that the harm he faces is systematic and discriminatory (see Migration Act s 5J(4)(c)) as it arises from ongoing differences in the interpretation of religious texts between the Sunni and Shia.
I find that the applicant cannot seek protection from the state (see Migration Act s 5J(2)) as the targeting of Shia or the social taboo of relationships between Muslims and Hindus is not new but rather has been a known source of tension for quite some time and yet the state has not been able to change the community’s behaviour nor prevent sectarian violence.
I now turn my mind to what changes the applicant could make to live in Kohat in a way that he would not face a real chance of serious harm. Section 5J(3) defines the considerations for decision makers when considering the reasonableness of a modification of behaviour:
(3)  A person does not have a well - founded fear of persecutionif 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.
In the Explanatory Memorandum accompanying the amendment that introduced the new subsection 5J(3) it was noted that the ‘Government considers that [it] is not inconsistent with the principles enunciated by the majority in the High Court‘s finding in S395.’ This is relevant as S395/2002 v MIMA (2003) 216 CLR 473 offers some further insight into the approach to be taken towards modification of behaviour.
In the case of S395 the High Court grappled with a situation in which the Tribunal had determined that as the appellants had not suffered harm in the past by acting discretely, they can similarly avoid harm in the future by acting discretely. This line of thinking was summarily dismissed in S395 by noting that living a discrete life because of fear is not a ground upon which a decision maker can set aside protection obligations.
In S395 Justices McHugh and Kirby noted at [40] that, ‘Persecution covers many forms of harm ranging from physical harm to the loss of intangibles, from death and torture to State sponsored or condoned discrimination in social life and employment.’ (Italics added) They then explain in the same paragraph that, ‘persecution does not cease to be persecution for the purpose of the Convention because those persecuted can eliminate the harm by taking avoiding action within the country of nationality.’
The modification that would be required for the applicant to face less than a real chance of serious harm would be for him to not tell anyone of his Hindu partner and not participate in politics. Would such a modification of behaviour conflict with a characteristic that is fundamental to his identity or conscience? It could be argued that his relationship is fundamental to his identity. The applicant has agreed to live with another person in a relationship that binds them together. His evidence was such that I am convinced that he feels a high degree of dependency upon her. While separation may be necessary, denial of their relationship would require a modification that could extend to a series of other falsities including ways of rejecting future offers of marriage. Even if it is beyond the intention of the Act to associate certain relationships with protected attributes, I find that his actions with the [Party] would unequivocally require an unacceptable modification of behaviour. For these reasons I find that the applicant cannot modify his behaviour.
I have also considered whether according to s 36(3) the applicant has a ‘a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.’ There is no evidence before me that citizens of Pakistan have a right to enter and reside in another country apart from Australia. As such I find that the exception to Australia’s protection obligations under s 36(3) is not met.
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
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
Date of the hearing: 18 December 2024
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.
…

Refugee Board of Canada, 14 January 2013, 'A Question of Faith: A Report on the Status of Religious Minorities in Pakistan', Jinnah Institute (Pakistan), 2011, p. 56