2440935 (Refugee) - [2025] ARTA 1575

2440935 (Refugee) [2025] ARTA 1575 (17 June 2025)
DECISION AND
REASONS FOR DECISION
Representative:  Ms Kristin Louise Robson (MARN: 1277227)
Respondent:  Minister for Immigration and Citizenship

Tribunal Number: 2440935

Tribunal:Shahyar Roushan
Date:17 June 2025

Place:Sydney
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:
·36(2)(aa) of the Migration Act.

Statement made on 17 June 2025 at 11:58am
CATCHWORDS
REFUGEE – protection visa – Pakistan – Federal Circuit and Family Court remittal – race – Turi – religion – Shia – imputed political opinion – resistance against the Taliban – significant escalation in sectarian violence and militant attacks – state protection – mental health issues – complementary protection – reasonableness of internal relocation – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 56, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
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
BACKGROUND

The applicant is [an age]-year-old national of Pakistan. He arrived in Australia [in] July 2013 as an unauthorised maritime arrival.
On 28 March 2017, the applicant applied for a Safe Haven Enterprise (subclass 790) visa (SHEV). The application was refused on 12 July 2021 by a delegate for the Minister under s 65 of the Migration Act 1958 (Cth) (the Act).
On 16 July 2021, the applicant applied for a review of the delegate’s decision to the former Immigration Assessment Authority (IAA). The IAA affirmed the delegate’s decision on 23 August 2021.
[In] October 2024, the Federal Circuit and Family Court of Australia remitted the matter by consent to be reconsidered and determined according to law. The basis for the remittal was IAA’s failure to have regard to critical country information relevant to the applicant’s claims and that such failure was material to the decision made.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. All matters that would have been referred or remitted to the IAA will instead progress on the same pathway as other reviewable protection decisions to the Tribunal.
This decision and statement of reasons is a review of the delegate’s decision by the Tribunal.
CLAIMS AND EVIDENCE
Evidence before the Department
SHEV application
According to the information provided in his SHEV application, the applicant was born in [Village 1], Parachinar, Pakistan. He is of Pushtu (or Pashto) ethnicity and adheres to the Shi'a branch of Islam. His parents and [siblings] currently reside in Pakistan. He is married with [number] children. His wife and children also live in Pakistan.
The applicant was self-employed in Pakistan, working as a farmer and [an occupation 1]. In March 2011, he relocated to [Country 1], where he worked as [an occupation 1] until March 2013.
In response to questions in relation to his reasons for claiming protection in Australia, the applicant stated it was ‘very dangerous’ in Pakistan because of the Taliban and that there were ‘bomb explosions’ everywhere. He was not safe working as [an occupation 1] and eventually departed Pakistan. The government of Pakistan supports the Taliban and provides no assistance to Shi'as. He cannot internally relocate as there is no area in Pakistan that is safe from the Taliban.
In a statement attached to his application form, the applicant stated that he grew up in his village with his parents and helped them farm and deliver produce to ‘different parts of the city as well as to other big cities.’ He was doing well until the ‘Taliban started killing [Shi’as] from April 2007 till now’, including on the routes leading to large cities. He claimed the Taliban might have suspected him of being involved in burning houses.
Pre-interview submissions
On 28 April 2021, the applicant submitted to the Department a further statement dated 8 July 2019. In the statement, which was prepared with the assistance of Refugee Advice and Casework Service (RACS), the applicant provided the following information.
He grew up in [Village 1] in Parachinar. He initially worked on the family farm and later as [an occupation 1] in the village.
He fears harm from the Taliban because he is a Shi'a Muslim. The Taliban can easily identify him as a Shi'a because they are ‘recognisable [by] appearance and language.’
He was not personally threatened, but the Taliban issued warnings to all Pakistani Shi'as, particularly those living in Parachinar.
Between 2007 and 2010, he often drove between Parachinar and Peshawar. The Taliban often looked for Shi'as on this route and he feared being stopped and harmed.
At one point, many of the Taliban's houses in Parachinar were burnt down. The Taliban suspected the Shi'as living in the area to be responsible for this act. He was ‘involved in resistance against the Taliban as [an occupation 1] transporting people’ but was not ‘directly involved in burning down the houses of the Taliban members.’
Due to fear of persecution, he travelled to [Country 1] in 2010 with his father and brother. He was not working as [an occupation 1] in [Country 1] but his ‘father and brother owned a [business 1] and were financially supporting’ him.
After returning to Pakistan in 2013, the applicant remained there for three months before departing for Australia. During this time, Shi'as continued to face threats from the Taliban. Although his family still resides in Pakistan, they are forced to live in hiding due to ongoing fears for their safety.
Internal relocation is not a viable option for him, as the Taliban maintain a presence throughout Pakistan, and he has no family support outside of Parachinar. He does not speak Punjabi or Hindi, which would further hinder his ability to find employment. In addition, his limited education and minimal work experience would make it difficult for him to secure employment. While he has previously worked as [an occupation 1], continuing in this role would require extensive travel across the country, exposing him to significant risk from the Taliban.
On 5 May 2021 the applicant’s then representative, Mr Siddique Panwala, submitted the following supporting documents.
·A medical certificate from [Hospital 1], stating that the applicant’s mother ‘collapsed and fell down when she heard the threats from Taliban side to his father’. She suffered from a [fracture] as a result of this fall.
·Copy and translation of a letter from [
Official A], [Community Organisation 1], dated 28 April 2013, stating that the applicant’s father, [Father A], was an ‘important member’ of [Community Organisation 1] and ‘last week’ he received a threat from the Taliban ‘that he should immediately stop working with the [Community Organisation 1]’ or ‘his family would be tormented.’ As a result, the applicants father resigned from his position in the organisation.
The interview
The applicant attended an interview with the Department on 6 May 2021 and was assisted by an interpreter. The delegate stopped the interview after the applicant became emotional and distressed. Subsequently, the Department invited him to respond in writing to concerns raised with him at the interview regarding his protection claims.
At the interview, the applicant submitted a psychologist’s report, authored by [Counsellor A] and dated 5 May 2021. [Counsellor A] stated in his report that the applicant attended ‘numerous counselling sessions in 2019.’ He was referred for therapy due to his diagnosis of ‘Major Depression and Anxiety’ and was prescribed antidepressant medication by his treating doctor. The medication has had ‘very little benefit’ as the applicant’s ‘negative symptoms are maintained [by] his concerns about his family.’ He is ‘extremely anxious about his family and their well-being.’ His elderly mother recently had a fall ‘due to dizziness experienced because of unpleasant news she had heard about [the applicant’s] safety.’ He has not seen his family for ten years and has never seen his youngest child. ‘He reported that his entire family relies on his financial and emotional support as his family members cannot work in the dangerous and economically poor conditions of his city.’ [Counsellor A] was of the view that the applicant’s ‘symptoms are likely to significantly improve once he is certain of being reunited with his family and gains control over his future.’
Post-interview submissions
On 31 May 2021 the applicant’s representative submitted the following documents in response to the Department’s s 56 request for further information.
·A copy of a prescription for anti-depressant medication issued in the applicant’s name.
·Country information (18 pages), including news articles and reports concerning the situation of Shi'as across Pakistan and in Khyber Pakhtunkhwa and incidents of violence against Shi'as.
In a further statutory declaration dated 29 May 2021, the applicant provided the following additional information.
He was ‘involved in the resistance against the Taliban as [an occupation 1]’. He transported people from Parachinar to the border areas of Afghanistan, where Shi'as were defending themselves against the Taliban. The Taliban believe he was involved in providing assistance to those who were resisting them.
His father is a ‘known elder person (Malak)’ in his village and people visit him to take advice on how to defend the Shi'a community, making him a Taliban target.
The applicant’s family ‘are not experiencing any harm from the Taliban directly because they are at home…but mentally they are stressed on a daily basis.’ If they leave their village or home, ‘they will face harm from terrorist groups’ operating in the area.
After returning from [Country 1], his father joined [Community Organisation 1], a Shi'a group formed to ‘protect our area from Taliban and Terrorists.’ Meanwhile, the applicant worked as [an occupation 1] to support his family. Two months later, his father informed him of plans to send him to Australia. At that time, his father did not disclose that he had received threats from the Taliban.
The Taliban believed that [Community Organisation 1] was acting against their interests and subsequently threatened the applicant’s father, warning that his family would be killed. In response to these threats, his father resigned from the group and changed his phone number in an effort to avoid further contact.
If he were to return to Pakistan, the applicant would likely work as [an occupation 1], farmer, or labourer. These jobs do not provide sufficient income to support his family. His family members do not leave the house for work and are entirely dependent on his financial assistance. He is unable to relocate internally within Pakistan due to limited language proficiency and the persistent risk of being identified as a Shi'a, which would expose him to further harm.
He has attended counselling sessions to address symptoms of ‘low mood’ and insomnia. His psychological distress stems from the ongoing threat to his life, past traumatic experiences, and his mother's illness. He relies on both family and mental health services for support. While he remains concerned for his family's well-being, he has made it clear that this concern does not mean he wishes to return to Pakistan or to bring his family to Australia.
Delegate’s decision
The delegate accepted that the applicant is a Shi'a Muslim of [Turi] Pashtun ethnicity and that he is from [Village 1], Parachinar, Kurram Agency, Pakistan. The delegate did not accept that the applicant was involved in transporting Shi'as to fight the Taliban or that he was transporting injured Shi'as to the hospitals in Parachinar. She also did not accept that the applicant’s father was a Malik (or Malak) or an elder who provided advice on how to protect the Shi'a community from the Taliban. Based on the country information available at the time, the delegate concluded that the applicant did not have a profile of particular interest to the Taliban and, therefore, there was no real chance that he would face harm if returned to Parachinar.
The delegate concluded that the applicant is not a refugee as defined by s5H(1) of the Act. She found that the applicant does not have a well-founded fear of persecution. The delegate also found that the applicant did not face a real risk of significant harm if removed to Pakistan. The delegate concluded the applicant was not a person in respect of whom Australia has protection obligations as provided for in s36(2)(a) and s36(2)(aa) of the Act.
Evidence before the IAA
On 30 July 2021, the applicant appointed Ms Alison Ryan of RACS as his representative.
IAA submissions
On 6 August 2021, Ms Ryan made submissions to the IAA, attaching a number of documents, including reports and news articles from various sources detailing violence perpetrated by the Taliban in Pakistan. Ms Ryan also submitted the following documents.
·A copy of FATA secretariat register dated [in] June 2008, which identifies the applicant’s father as [Father A variant].
·A copy of the applicant’s father’s government of Pakistan National Identity Card for overseas Pakistani’s. The card was issued in April 2004 and expires on April 2014 and indicates his country of residence as [Country 1].
In her covering submission, Ms Ryan referred to DFAT’s 2019 Country Information report in relation to Pakistan and submitted that the delegate did not adequately consider the information in the report. She expressed disagreement with the delegate’s assessment of the risk faced by Shi'as in Kurram Agency and submitted that the applicant’s father was an elder and community leader or Malik in Parachinar. Given his father’s role, ‘the applicant’s potential negative profile with the Taliban is amplified.’
Ms Ryan referred to previous decisions of the AAT with highly analogous facts and submitted that the applicant ‘faces a real chance of suffering serious harm at the hands of the Taliban (or other anti-government elements) simply by reason of being a Turi Shia from Parachinar (regardless of any increased profile).’ It was submitted that any lull in violence in Pakistan ‘is illusory…and insufficient to suggest the negation of a real chance of serious harm.’ ‘There are significant and real doubts regarding the capacity of Pakistani authorities to protect Shia’s against such violence (especially in the applicant’s home area).’ She also noted the security situation in Afghanistan and submitted that this is ‘directly relevant’ to Kurram Agency as the Allied Forces’ exit from Afghanistan has energised jihadist insurgents and increased the influence of pro-Taliban groups such as Tehrik-e Taliban Pakistan (TTP).
Finally, Ms Ryan submitted that the applicant cannot relocate internally within Pakistan to avoid the harm he fears because he has no social networks outside of Parachinar. The challenges of relocation are amplified for the applicant due to his diagnoses of depression and anxiety, which impact his mood and functioning. He has no formal education and faces ‘considerable difficulty conversing with individuals with minor differences in dialect from his home dialect of Pashto.’ His work experience in Australia and Pakistan is not transferable to make him competitive in the employment market if he were to return to Pakistan and he would not be able to secure suitable accommodation and sufficient income to support his wife and children.
IAA decision
The IAA accepted that the applicant is a Shi'a Muslim of [Turi] Pashtun ethnicity, that he is from [Village 1], Parachinar, Kurram Agency, Pakistan, and that it was plausible that he has anxiety and depression due to prolonged separation and concern for his family. The IAA, however, did not accept that the applicant was involved in resistance against the Taliban, including by transporting Shi'as to fight at the Afghan border, transporting injured Shi'as to the hospital or that he was suspected of burning Taliban houses. Despite new evidence from the applicant, the IAA also did not accept the applicant’s father was a Malik or an elder who provided advice on how to protect the Shi'a community from the Taliban.
Based on information regarding the general security and sectarian situation and the applicant’s cumulative profile, the IAA concluded that the applicant did not face a real chance of harm if he returned to Parachinar and therefore was not a refugee as defined by s 5H(1) of the Act and does not satisfy the criteria under s 36(2)(a). In relation to complementary protection, the delegate found that the applicant did not meet the criteria under s 36(2)(aa).
Evidence before the Tribunal
Following the remittal of the matter to the Tribunal, the applicant appointed Ms Kristin Louise Robson of KLR Migration Law Consultancy as his representative.
Pre-hearing submissions
On 24 February 2025, Ms Robson provided a submission to the Tribunal and attached the following documents.
·A statement by the applicant dated 30 January 2025.
·A psychological assessment report dated 19 December 2024, prepared by [Counsellor B].
·The applicant’s father’s Pakistani Identity Card issued in August 2023, identifying him as ‘Chairman’ of the [Village 1] council in Parachinar.
·Copies of election campaign posters related to his father’s candidacy for the position of village chairman.
·Five photographs depicting his father participating in various gatherings.
·Evidence of remittance payments made by the applicant to [Mr A] in Parachinar, Pakistan.
In his statement, the applicant stated that he fears harm as a Shi'a Pashtun from the Turi Tribe. He also fears harm on account of his actual and imputed political opinion of being opposed to the Taliban, and his membership of a particular social group, namely ‘Pashtun, Turi, Shi’a Muslim,’ and failed asylum seekers who have been a long-term resident in a Western nation.
He stated that his wife and [children] currently live with his brother in [Village 1]. Due to the prevailing insecurity, they are effectively confined to their home. His children are not attending school because it is too dangerous. He sends regular remittances from his earnings as a worker in a [factory] to support them.
He reported ongoing struggles with his mental health, which have intensified recently as the security situation in Parachinar has sharply deteriorated. Shi'a Turis, such as himself and his family, are being specifically targeted. The road in and out of the area remains closed, making it impossible for residents to access essential medicines, foods, and services. He is deeply concerned that these road closures and the worsening violence would place his family at further risk of harm or even death.
Before the outbreak of sectarian violence in 2007, many Sunnis lived in [Village 1] and the Upper Kurram. Sunnis who previously lived in the area were displaced when the fighting broke out between the two communities. As ‘[an occupation 1] with a suitable vehicle [the applicant] would take people to the Afghan border to fight against the Taliban.’ He is unable to provide direct evidence of his activities as [an occupation 1] in Parachinar.
He stated that the sectarian conflict in his area has escalated again in recent times and Shi'as are being targeted by Sunni extremists who are returning to the area ‘after having been previously displaced.’ He fears that if he returns to Pakistan, he will have no choice but to resume work as [an occupation 1], as he has no formal qualifications, limited education, and weak English language skills.

He believes relocation within Pakistan is not a viable option. His National Identity Card clearly identifies him as a Shi'a from Parachinar, making him easily recognisable and vulnerable to sectarian targeting. If he were to work elsewhere in Pakistan, he would still need to return periodically to visit his family in his village, exposing himself to the same risks. Moreover, he cannot afford to relocate his wife and children, nor does he wish to do so as he believes they would face even greater danger outside their village community.
In her psychological report, [Counsellor B] provided the following information.
The applicant ‘meets the DSM-5 criteria for major depressive disorder with mixed anxiety and depressed mood, with his distress directly linked to his prolonged immigration uncertainty and the critical condition of his family. The applicants’ symptoms include persistent low mood, feelings of hopelessness, severe sleep disturbances due to overthinking about his family, intense anxiety, social withdrawal, and ‘excessive reliance on monitoring news and social media for updates about the security situation in Parachinar.’
[Counsellor B] stated that the applicant’s mental health symptoms are further compounded by the ongoing humanitarian crisis in Parachinar and the threat to his loved ones.’ The applicant has been apart from his family for ‘over 11 years’ and ‘financial strain compounds [the applicant’s psychological distress, as he is unable to fully support his family in Pakistan or arrange for their safe relocation.’
[Counsellor B] expressed the opinion that resolution of the applicant’s his immigration status would allow him ‘to focus on rebuilding his life, improving his mental health’ and allow him to ‘plan for his future or achieve a sense of security.’
In her covering submission, Ms Robson referred to various reports and online news articles, including DFAT’s 2022 Country Information Report in relation to Pakistan and the Department’s Common Claims relating to Pakistan, dated 17 November 2020.
Ms Robson submitted that the applicant also fears harm because of his political opinion of being opposed to all Sunni extremist militia groups such as TTP, Lashkar-e-Jhangvi (LeJ), Sipah-e-Sahaba (SeS) and ISIS, and because he belongs to the social group of being a son of a local Malik and village chairman.
Ms Robson expressed disagreement with the IAA’s decision and relied on DFAT’s 2022 report and a 2024 report by the Pakistan Institute of Peace studies to highlight an increase in terrorism across Pakistan. In particular, she noted that the TTPs influence has increased as reflected in the frequency of attacks including anti Shi'a attacks since the Taliban seized power in Afghanistan. She also referred to a relifweb.int report and noted the return of IDPs to the Kurram area which has ‘become the trigger for yet another wave of sectarian conflict with 2024 being characterised by violence, bombings, ambushes, and targeted killings, once again devastating the Shia community.’ It was submitted that violence in Kurram has escalated in 2024,Ms Robson listed 19 instances and attacks on officials and civilians between January 2024 and February 2025.
Ms Robson submitted that the applicant faces a real chance of serious harm ‘in all areas of Pakistan’.
The hearing
The applicant appeared before the Tribunal on 29 April 2025 to give evidence and present arguments. He was assisted by an interpreter in Pashto and English languages. Ms Robson attended the hearing by video. Where relevant, the oral evidence at the hearing is discussed in the Tribunal’s analysis below.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
REASONS AND FINDINGS
I accept that the applicant is a Shi'a Muslim of [Turi] Pashtun ethnicity originating from from [Village 1], Parachinar, in the Kurram Agency region of Pakistan. I accept that his father holds the position of a village elder in [Village 1]. Furthermore, I accept the applicant’s evidence at the hearing that, although he did not [transport] individuals engaged in combat against the Taliban, he did assist by transporting injured persons to hospital when necessary. However, I do not accept that he ever held a profile that would have drawn adverse attention from the Taliban as a result of his activities or his father’s profile, nor do I accept that the Taliban currently have any interest in him, particularly in light of the considerable time that has elapsed since his departure from Pakistan.
Nevertheless, for the following reasons, I have concluded that the decision under review should be remitted for reconsideration.
The country information before me indicates that, in 2024, Pakistan experienced a significant escalation in violence, reversing the declining trends observed between 2015 and 2020. According to the Centre for Research and Security Studies (CRSS), 2024 was the deadliest year for Pakistan’s security forces in nearly a decade, with at least 685 fatalities among security personnel and a total of 444 terror attacks recorded.[1] Overall violence-related fatalities reached 2,546, representing a 66% increase from 2023, with injuries rising by over 55% to a total of 2,267.[2] The vast majority of these incidents occurred in Khyber Pakhtunkhwa and Balochistan, accounting for 94% of fatalities and 89% of all incidents nationwide. Khyber Pakhtunkhwa alone bore over 63% of the fatalities. November 2024 was the most violent month, recording 125 attacks, 450 fatalities, and 625 injuries.[3]
[1] CRSS Annual Security Report 2024, The Centre for Research and Security Studies (CRSS), and Pakistan Security Situation 2024, Office of the Commissioner General for Refugees and Stateless Persons, 25 May 2024,
[2] CRSS Annual Security Report 2024, The Centre for Research and Security Studies (CRSS).
[3] Ibid
A concerning disparity was observed: civilians and security personnel accounted for 1,612 fatalities, nearly 73% higher than the number of outlaws eliminated.[4] Terror attacks targeting civilians and security forces outnumbered counter-terror operations by nearly four to one.[5] The resurgence of militant activities, particularly by the Tehreek-e-Taliban Pakistan (TTP), and complex security dynamics contributed to this deteriorating environment.[6]
[4] Ibid.
[5] Ibid.
[6] Pakistan’s bet on Taliban backfires as violence surges, Financial Times, 17 January 2025,
In parallel, Pakistan witnessed a sharp escalation in sectarian violence. The Pakistan Institute for Peace Studies (PIPS) reported that 234 people were killed and 441 injured in 24 recorded sectarian incidents across the country in 2024, compared to only 43 fatalities in 2023.[7] The Kurram district emerged as the principal flashpoint, accounting for approximately 97% of the year’s nationwide fatalities linked to sectarian violence.[8] PIPS reported that sectarian-related attacks in 2024 were concentrated mainly in Kurram and Karachi, with four attacks reported in each location, and one attack each occurring in Islamabad, Peshawar, and Quetta. These attacks resulted in 64 fatalities and 27 injuries. In addition, 13 sectarian clashes were recorded during the year, 12 of which took place in Kurram and one in Karachi, leading to 170 deaths and 414 injuries.[9]
[7] Pakistan Security Report 2024: An Abridged Version, Pakistan Institute for Peace Studies (PIPS), January 2025,
[8] Ibid.
[9] Ibid
Kurram district has emerged as the epicentre of sectarian violence.[10] According to PIPS, two main forms of violence dominated Kurram: sectarian terrorist attacks and sectarian clashes. The incidents of sectarian violence in 2024 predominantly involved confrontations between Shi’a and Sunni groups, as well as rival tribal factions within Kurram.[11]
[10] Pakistan Security Situation 2024, Office of the Commissioner General for Refugees and Stateless Persons, 25 May 2024.
[11] Pakistan Security Report 2024: An Abridged Version, Pakistan Institute for Peace Studies (PIPS), January 2025.
The string of sectarian incidents in Parachinar during the first half of 2024 included a suicide bombing at Parachinar Bazaar in January that killed 25 people, an armed attack on a mosque in February killing 12, an IED explosion in March killing 18, targeted killings across villages in April resulting in seven deaths, a bombing of a Shi'a bus in May killing 40, and a militant ambush on a Shia convoy in June killing 15. These attacks underscored the scale and continuity of sectarian violence in the region.[12]
[12] Syed Eesar Mehdi, Understanding Attacks on the Shias in Parachinar, International Centre for Peace Studies, 14 December 2024,
Kurram District, located in Pakistan’s Khyber Pakhtunkhwa province and on the Afghanistan-Pakistan border, has historically been characterised by deep-seated sectarian and tribal divisions. Upper Kurram, where Parachinar serves as the administrative centre, is predominantly Shi’a, inhabited mainly by members of the Turi tribe and parts of the Bangash tribe. Central and Lower Kurram, in contrast, are largely Sunni areas, home to tribes such as the Bangash, Zaimukht, Mangal, Muqbal, and Musazai.[13]
[13] Afeera Firdous, Why is Parachinar Stuck in an Endless Loop of Violence?, South Asian Voices, 10 January 2025, >
Historical land disputes between Sunni and Shi’a Pashtun tribes in Kurram date back to the pre-colonial era and were exacerbated during British colonial rule, when selective patronage of certain tribes, notably the Shi’a Turis, deepened existing divisions. Sectarian tensions further intensified in the 1980s during the military regime of General Zia-ul-Haq, whose policies promoted Sunni Islamisation and who facilitated the influx of Sunni Afghan refugees into the region. External funding from Saudi Arabia and Iran during this period also contributed to the growth of sectarian militancy.[14]
[14] Ibid.
The US-led War on Terror introduced a new dynamic, as militants and extremist ideologies flowed into the Kurram Valley from Afghanistan, aggravating the region’s existing sectarian divisions.[15] Over the past two decades, Parachinar has been subjected to repeated waves of violence against its Shi'a population, leading human rights organisations and local activists to describe the phenomenon as a ‘Shia genocide’.[16]
[15] Syed Eesar Mehdi, Understanding Attacks on the Shias in Parachinar, International Centre for Peace Studies, 14 December 2024.
[16] Ibid.
Militant groups such as the TTP, Lashkar-e-Jhangvi (LeJ), and Islamic State-Khorasan Province (IS-K) have systematically targeted the Shi'a community in Kurram. IS-K, in particular, has actively exploited sectarian and tribal divisions, often targeting the Shi’a population to entrench their presence in Kurram.[17] Despite military operations intended to stabilise the region, the Pakistani state’s response has been widely criticised as ineffective, with impunity for perpetrators and a persistent lack of political representation and basic security for the Shi'a population.[18]
[17] Syed Eesar Mehdi, Understanding Attacks on the Shias in Parachinar, International Centre for Peace Studies, 14 December 2024; and Pakistan Security Report 2024: An Abridged Version, Pakistan Institute for Peace Studies (PIPS), January 2025.
[18] Ibid.
For decades, Kurram was governed under the colonial-era Frontier Crimes Regulation (FCR), which impeded its integration into Pakistan’s mainstream legal and political structures. Although the 25^th Constitutional Amendment in 2018 merged the former Federally Administered Tribal Areas (FATA) into Khyber Pakhtunkhwa and extended constitutional rights to residents, the promised administrative reforms and development funds have largely failed to materialise, allowing long-standing grievances and disputes to persist.[19]
[19] Afeera Firdous, Why is Parachinar Stuck in an Endless Loop of Violence?, South Asian Voices, 10 January 2025.
The culmination of the recent sectarian tensions occurred on 21 November 2024, when gunmen ambushed passenger buses traveling from Parachinar to Peshawar, killing at least 38 Shi’a travellers in Lower Kurram. The attack triggered widespread retaliatory violence between Sunni and Shi’a communities, resulting in more than 130 fatalities, hundreds of injuries, and the displacement of large numbers of civilians.[20] Despite a subsequent peace agreement, the situation remained volatile, with sit-ins staged by both Sunni and Shi’a groups demanding safe passage and enhanced government protection.[21] While government authorities publicly framed the incident as related to land disputes, PIPS emphasised that sectarian animosity played a significant and often underacknowledged role in the violence. Analysts further warned that the TTP, increasingly active in Lower Kurram, likely exploited and exacerbated the unrest.[22] The infiltration of Taliban militants from Afghanistan has also heightened Kurram’s exposure to violence,[23] placing Pakistani Pashtuns in a precarious situation, being viewed by the Pakistani army as working for the interests of the Afghan Taliban.[24]
[20] Afeera Firdous, Why is Parachinar Stuck in an Endless Loop of Violence?, South Asian Voices, 10 January 2025 and Pakistan Security Report 2024: An Abridged Version, Pakistan Institute for Peace Studies (PIPS), January 2025.
[21] Ibid.
[22] Pakistan Security Report 2024: An Abridged Version, Pakistan Institute for Peace Studies (PIPS), January 2025.
[23] Ibid.
[24] A Tale of Struggle and Resilience for Pashtuns in Pakistan, The Citizen, 17 February 2024,
In April 2024, the United States Department of State reported that:
Pashtuns were targeted and killed by both antistate militants and security forces because of their political affiliation or beliefs, antimilitancy stance, or criticism of the government. PTM leaders and activists claimed they had been threatened, illegally detained, imprisoned without trial, banned from domestic and international travel, and censored. Anti-Taliban Pashtun activists and political leaders were targeted and killed, allegedly by militants, in Sindh, Balochistan, and KP. Pashtuns from the former FATA complained they were frequently profiled as militants, based on their tribe, dress, appearance, or ancestral district of origin. Pashtun activists claimed that they were subject to military censorship and that sedition laws were used to stifle PTM and other Pashtun critics of the government.[25]
[25] USDOS, 'Country Reports on Human Rights Practices for 2023 - Pakistan', 22 April 2024, >
According to Anwar Bangash, Political and Information Assistant at the Embassy of Poland, violence in Kurram is a manifestation of terrorism, where any local dispute can escalate into acts of terror, distinguishing Kurram from other parts of the former FATA region. Bangash further noted tactical coordination between groups such as the Hafiz Gul Bahadur faction and IS-K, despite their historical rivalry, in operations against the Shi’a population. He highlighted the lack of coordination between Pakistan’s central and provincial governments, raising concerns about the state’s seriousness in addressing these issues.[26]
[26] Pakistan’s Militancy and Insurgency Landscapes In 2024-25, PIPS, January 2025, >
In a recent report, the Human Right Commission of Pakistan (HRCP) also noted the dire security situation in Kurram, including Parachinar, and referred to the significant escalation in November 2024. The report further noted that Shi’a Muslims in the region face a high risk of harm due to the persistent sectarian violence and militant attacks. The heavy presence of military and civilian armed forces has not effectively improved law and order, leaving residents in a constant climate of fear. The fact that local rival groups have access to heavy weaponry further indicates the state's inability to control the flow of arms into the region, exacerbating the risk of lethal confrontations. The HRCP categorised the situation as a humanitarian crisis and urged the government to ensure the protection of the right to life and security for Kurram's residents. [27]
[27] Human Rights Commission of Pakistan, State of Human Rights in 2024, 2025,

HRCP stated that the living conditions for Shi’a Muslims and other residents in Kurram have deteriorated significantly due to the ongoing conflict. Road blockades, implemented to contain the violence, have isolated the district, cutting off residents' access to essential goods such as food, fuel, and medical supplies. These blockades have led to the deaths of sick children and elderly persons who could not receive timely medical attention. Schools have also been intermittently closed.[28]
[28] Ibid.
In its January 2022 Country Information Report in relation to Pakistan, DFAT provided the following assessment regarding Pashtuns, Shi’as and Turis:
3.18 DFAT assesses Pashtuns in conflict-affected areas such as Khyber Pakhtunkhwa and Balochistan face a moderate risk of violence by state security forces, including enforced disappearance and extrajudicial killings. Elsewhere in Pakistan, Pashtuns generally face a low risk of official and/or societal discrimination and a similar risk of violence to other ethnic groups in the same locations, although the risk increases if they come to the attention of authorities for any reason. Pashtuns involved with the Pashtun Tahafuz Movement (PTM) or the Awami National Party (ANP) face specific, heightened risks, as do Shi’a Pashtuns.
3.61 DFAT assesses Shi’a in Pakistan face a moderate risk of sectarian violence, although the situation has improved considerably in recent years. Seventy per cent of blasphemy accusations, which carry the death penalty, are against Shi’a. They face a moderate risk of societal discrimination in the form of anti-Shi’a protests and community violence. Some Shi’a face specific, heightened risks.
3.66 DFAT assesses that Turis face a similar risk of official and societal discrimination to other Pashtuns based on ethnicity. Turis in Kurram face a moderate risk of sectarian violence from militant groups because of their Shi’a faith. Turis in other parts of the country face a similar risk of violence to other non-Hazara Shi’a (see Shi’a). [29]
[29] DFAT Country Information Report – Pakistan, DFAT, January 2022.
On 30 April 2025, the day after the hearing, DFAT published a new report on Pakistan. In that report DFAT offered the assessments below:
3.55 DFAT assesses Pashtuns living in more conflict-affected areas of Khyber Pakhtunkhwa (KP) and Balochistan face a moderate risk of violence by state security forces, including enforced disappearance and extrajudicial killings. DFAT assesses Pashtuns living in more conflict-affected areas of KP and Balochistan face a low risk of violence and extrajudicial killings from militant groups based in KP. Elsewhere in Pakistan, Pashtuns generally face a low risk of official and societal discrimination, similar to other ethnic minority groups in the same locations. Pashtuns involved with the ANP or PTM face specific, heightened risks, as do Shi’a Pashtuns.
…
3.60 DFAT assesses Turis living in KP face a low risk of official and societal discrimination, similar to other Pashtuns and Shi’a. DFAT assesses Turis living in KP face a low risk of violence from other Pashtun tribes and militant groups. DFAT assesses Turis living in KP do not generally face societal discrimination, as frequently they keep to their own communities and rely on their tribes for protection. In other parts of Pakistan, DFAT assesses Turis face a low risk of official and societal discrimination, similar to that of other Pashtuns and Shi’a.
…
3.120 DFAT assesses Shi’a are generally able to practise their religion freely in Pakistan. DFAT assesses Shi’a face a low risk of official discrimination on the basis of their religion in the form of unfair trials and prosecution for religious offences. DFAT assesses Shi’a face a low risk of societal discrimination in the form of anti-Shi’a protests, however some Shi’a face specific, heightened risks. Shi’a women and girls can also face higher risks.[30]
[30] DFAT Country Information Report – Pakistan, DFAT, 30 April 2025.
The report does not indicate that Kurram is one of the areas with high attacks or worsening security and DFAT appears to view the November 2024 attack as an isolated event. However, in my view, DFAT’s assessment in paragraph 3.60 (that Turis living in Khyber Pakhtunkhwa face a low risk of violence from other Pashtun tribes and militant groups) does not appear to be supported by other segments in the report and appears inconsistent with the reported security situation in Kurram throughout 2023–2024. Specifically, DFAT’s observations in relation to Kurram appear to be inconsistent with the assessment in paragraphs 3.55, where it is stated that ‘Pashtuns involved with the ANP or PTM face specific, heightened risks, as do Shi’a Pashtuns (see also Bangash, Turis).’ It is difficult to see how ‘specific, heightened risks’ here can be consistent with a low risk assessment for Turis as reflected in paragraph 3.60.
Paragraphs 2.89 and 3.31 of the same report highlighted the incidents of violence in 2024, which, as noted by other sources cited earlier, had marked an escalation in sectarian violence in the region. These incidents indicate not only persistent sectarian hostility but also the vulnerability of Turi movement even along major routes. While DFAT noted that security had ‘generally been good’ between Peshawar and Kurram prior to the November 2024 attack, the recurrence of targeted violence and sectarian tensions, which had flared up in Kurram in November 2024 and resulted ‘in at least 32 deaths’, raises questions as to whether DFAT’s overall risk assessment fully captures the evolving security situation.[31]
[31] Ibid, paragraphs 2.89 and 3.31.
Moreover, paragraph 3.57 of the report explicitly acknowledged that, while security for Turis has ‘improved significantly since 2019,’ ‘the underlying triggers for conflict remained present,’ including sectarian tensions and opposition from Sunni militant groups such as the TTP and IS-KP. Paragraph 3.58 further documented unresolved tension and disputed motives behind violent incidents, such as the May 2023 killings of eight Turis. While state authorities claimed these were part of a land dispute, Turi leaders linked them to terrorism, showing ongoing mistrust and contestation about the nature of anti-Turi violence.[32]
[32] Ibid, paragraphs 3.57 and 3.58.
Finally, paragraph 3.57 also acknowledged that while state protection against militant attacks is ‘adequate,’ local policing remains under-resourced, particularly in dealing with inter-tribal disputes. This qualification casts doubt on the ability of state forces to effectively prevent or respond to emerging violence, especially in remote or contested areas like Upper Kurram. More importantly, there appears to be a tension between the purported adequacy of state protection for Turis and DFAT’s broader assessment that Pashtuns living in more conflict-affected areas of Khyber Pakhtunkhwa face a moderate risk of violence by state security forces. Given that Turis are a Pashtun tribe, it is not immediately clear how they would consistently receive adequate protection while other Pasthuns in the same region face a moderate risk of harm from state actors.[33]
[33] Ibid.
Overall, the evidence before me paints a picture of intermittent but severe sectarian and tribal violence, limited state capacity, and ongoing vulnerability, all of which suggest a heightened risk, albeit episodically, for Shi'a Pashtun Turis in Khyber Pakhtunkhwa, particularly in Kurram District. On the basis of this evidence, I am satisfied that the applicant faces a real chance of persecution at the hands of the Taliban and other Sunni extremist groups if returned to Pakistan. I am satisfied that the harm the applicant fears involves systematic and discriminatory conduct as required by s 5J(4)(c). I also find that the essential and significant reasons for the persecution feared by him are his religion and ethnicity.
I have considered whether the real chance of persecution relates to all areas of Pakistan. According to DFAT, Pakistan is home to the world’s second-largest Shi’a population after Iran. An estimated 20 to 40 million Shi’a live throughout Pakistan.[34] Significant Shi’a populations can be found in Karachi, Lahore, Rawalpindi and Islamabad. These metropolitan areas, known for their religious and ethnic diversity, can provide a degree of anonymity for Shi’as fleeing sectarian violence by non-state actors in Khyber Pakhtunkhwa. DFAT has also assessed that Shi’a are generally able to practise their religion freely in Pakistan and only face a low risk of official discrimination on the basis of their religion. I have found that the applicant did not have a profile prior to his departure from Pakistan and I do not accept that he would be recognised as Shi’a and harmed as a result throughout Pakistan. I do not accept that the real chance of serious harm faced by the applicant relates to all areas of Pakistan. Therefore, I am not satisfied that the applicant has a well-founded fear of persecution. I find that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary protection
[34] DFAT Country Information Report – Pakistan, DFAT, 30 April 2025.
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa).
For the same reasons that I have found that the applicant faces a real chance of serious harm if her were to return to Parachinar, I find 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 by the same non-state actors in that area. I find that the harm he would be subjected to involves the intentional infliction of severe pain or suffering, either physical or mental, or an act or omission that causes, and is intended to cause, extreme humiliation, such as to meet the definitions of ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ in s 5(1) Act. As a Shi'a and a Pashtun, I find that the real risk is faced by the applicant personally.
I have considered whether the applicant can internally relocate for the purposes of s 36(2B) of the Act.
In relation to the refugee criteria, I found that the real chance of harm does not relate to all areas of Pakistan. Similarly, I find that if the applicant were to internally relocate, for example to Islamabad or Lahore, there is no real risk that he would face significant harm. However, I must also consider if in all the circumstances it would be reasonable for the applicant to internally relocate.
I accept that the applicant has been diagnosed with major depressive disorder, accompanied by symptoms of both anxiety and depressed mood. I also accept that he has experienced poor mental health over a prolonged period. Furthermore, I acknowledge that he has no formal education and would likely encounter significant difficulties in re-establishing himself without the support of his extended family. Finally, I have taken into account that his wife and [children] remain in [Village 1], and that their potential relocation to join him would further compound the challenges is likely to face and adjusting to life in a new environment.
Having regard to the applicant’s individual circumstances, I am not satisfied that it would be reasonable for the applicant to relocate to an area of Pakistan where there would not be a real risk that he would suffer significant harm. I also find that, for the purposes of s 36(2B)(b), there is no protection from an authority that reduces the risk of significant harm to less than a real risk.
For the above reasons, I find 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 would suffer significant harm. I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa). I also find that the applicant has no presently existing right, however expressed, to enter and reside in any other country and s 36(3) does not apply.
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies 36(2)(aa) of the Migration Act.
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.
…