2520959 (Refugee) - [2025] ARTA 1779

2520959 (REFUGEE) [2025] ARTA 1779 (23 JULY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship

Tribunal Number: 2520959
Tribunal:General Member B Butler
Date:23 July 2025

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)(aa) of the Migration Act.

Statement made on 23 July 2025 at 11:46am
CATCHWORDS
REFUGEE – protection visa – Pakistan – Federal Circuit and Family Court remittal – ethnicity, religion and political opinion – Pashtun Turi and Shia Muslim in Sunni majority area – anti-Taliban and anti-government opinions – work as recognisable occupation in community – travel restrictions and witness to violent attacks and deaths – fear of harm from extremist groups – unauthorised maritime arrival – low-profile participation in protests in Australia – mental health and treatment – returned failed asylum seeker – country information – recent sectarian violence and travel restrictions – real chance of serious harm does not extend to large cities – complementary protection – real risk of significant harm – relocation possible and reasonable despite some difficulties – limited mental health services or support, and protection from authority – risk of harm faced by applicant personally – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1), (5), 36(2)(a), (aa), (2A)(d), (2B), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
ABAR15 v MIBP (No 2) (2016) 242 FCR 11
BBK15 v MIBP (2016) 241 FCR 150
Chan Yee Kin v MIEA (1989) 169 CLR 379
FCS17 v MHA (2020) 276 FCR 644
MIAC v MZYYL (2012) 207 FCR 211
MIAC v SZQRB (2013) 210 FCR 505
MZAAJ v MIBP [2015] FCA 478
SZSPT v MIBP [2014] FCA 1245
SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362
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

The applicant is a [Age]-year-old man who is a national of Pakistan. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant him a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant arrived in Australia by boat [in] July 2013 as an unauthorised maritime arrival. The applicant applied for a Safe Haven Enterprise (subclass 790) visa, which is a protection visa, on 16 June 2017. The delegate refused to grant the visa on 5 May 2020. His matter was referred to the Immigration Assessment Authority (IAA). The IAA affirmed the decision of the delegate on 26 June 2020.
The applicant sought judicial review of the IAA’s decision. On 14 March 2025, the Federal Circuit and Family Court of Australia (Division 2) ordered, by consent of the applicant and the Minister, that the IAA decision…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2520959 (Refugee)

Details

AGLC: 2520959 (Refugee) [2025] ARTA 1779
Case: [2025] ARTA 1779
Decision Date: 23 July 2025

CaseChat Overview and Summary

The case involves a Pashtun Turi Shia Muslim man from Parachinar, Kurram Agency, Pakistan, who has applied for a protection visa in Australia. The applicant has claimed that he faces a risk of significant harm if returned to Pakistan due to his ethnicity, religion, and political views, including his opposition to the Taliban and the Pakistani government. The primary legal issues before the court were whether the applicant faced a real risk of significant harm if returned to Pakistan and whether he could reasonably relocate within Pakistan to avoid such harm. The Federal Circuit and Family Court had previously quashed the Immigration Assessment Authority's (IAA) decision, noting that the IAA did not consider the applicant's moderate risk of harm as a Shia Turi, based on a Department of Foreign Affairs and Trade (DFAT) report. The Tribunal considered the applicant's mental health, particularly his PTSD and Major Depressive Disorder, and the limited availability of mental health services in Pakistan. The Tribunal found that while mental health services were available in major Pakistani cities, the applicant would struggle to access them due to his mental health conditions and lack of support networks. Furthermore, the Tribunal concluded that the risk of harm faced by the applicant was not a general population risk but was specific to him due to his particular profile. Consequently, the Tribunal was not satisfied that the applicant met the refugee criterion under section 36(2)(a) of the Migration Act but found that he met the complementary protection criterion under section 36(2)(aa). The Tribunal set aside and remitted the application for a protection visa for reconsideration, determining that the applicant satisfied section 36(2)(aa) of the Migration Act.

The decision underscores the importance of considering an applicant's specific circumstances, including mental health and the availability of local support services, when assessing their risk of harm and potential for relocation within their country of origin. The court's focus on the individual nature of the risk faced by the applicant, as opposed to a generalized population risk, highlights the need for a nuanced and detailed examination of each claim.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The applicant was represented in relation to the review. The representative attended the Tribunal hearing.BACKGROUNDEvidence before the Department The applicant provided a statutory declaration, dated 24 May 2017, outlining his claims for protection. These are summarised as follows:·He is a Pashtun and a Shia Muslim who was born in [Village 1], Parachinar, Kurram Agency, Pakistan. He has [brothers] and [sisters]. His mother and one sister have passed away. His father remarried and he has [stepsisters].·His father owns agricultural land. The family uses the land for their own consumption sells the left-over harvest. They did not have many problems living in the region until 2007. In 2007, the fighting and conflict between the Sunni and Shia populations started. During this time, the applicant had to stop going to [his workplace] and it was difficult to travel. The road between Parachinar and Peshawar was closed and people were killed if they attempted to travel on the roads. They were surrounded by Sunni villages where people supported the Taliban.·He was [an occupation 1] for a number of years at a [workplace] for the Shia community and would be recognised as [an occupation 1] from the [workplace]. He was not able to continue his job as a full-time [occupation 1] as he had to travel through a neighbouring Sunni village and was fearful that he would be killed.·He also assisted with his family’s business which [did a work task] at [events]. He considers that he would be recognised because of his involvement in the business. He was fearful that he would be killed when he worked for the business.·He was traumatised by witnessing the death of many people, as explosions and bomb blasts happened often. He recalled witnessing an explosion at the [Location] in Parachinar and recalled seeing injured people. The situation deteriorated to the point that he was fearful to leave his house, and he was unable to work or support his family. These incidents have affected his mental health, and he has problems with anxiety and difficulty sleeping. He seeks counselling at [Health provider] in Melbourne.·He was issued a Pakistani passport in Parachinar in [2013]. He departed Pakistan [in] May 2013 and travelled to Australia via [Countries 1-4].·At the time of his statutory declaration, he feared harm from the Taliban, Daesh and other Sunni extremist groups if he returned to Pakistan, as they want to take revenge on Shia Muslims and follow the Taliban’s ideology. They do not consider Shias as Muslims. He fears that they would kill or kidnap him because of his religion.·He also feared being persecuted by the Pakistani government and the Pakistani Army, who may question him because of his absence from the country and because they may view his application for protection in Australia as bringing shame on the country.·He did not think that he could relocate within Pakistan to avoid harm because throughout Pakistan, the Taliban would identify him as a Shia as he is a Pashtun from Parachinar. He noted that he has an accent and physical appearance which would lead to people identifying him as a Pashtun Shia. He does not consider that there are any safe places for Shias in Pakistan. The authorities could not protect him as they are afraid of the Taliban. He also has no family or support networks elsewhere in Pakistan to assist him relocate.

Evidence

Evidence Before The Court

In quashing the IAA decision, the Federal Circuit and Family Court of Australia (Division 2) noted that the IAA did not consider an integer of a claim: that he faced a moderate risk of harm as a Shia Turi by not having regard to the DFAT report (dated 20 February 2019) which assessed that Turis in Kurram Agency faced a moderate risk of sectarian violence from militant groups because of their Shia faith.Evidence before the TribunalWritten material The applicant submitted documents in relation to his health, including a letter from his treating psychiatrist, [Dr A], of [Health provider], dated 31 March 2025. Her current positions include medical lead at [Health provider] and Consultant Psychiatrist at [Hospital and Mental Health service]. [Ms B] has been involved in the applicant’s care since being appointed to her position at [Health provider] in July 2024. In writing her report, she had regard to progress notes and psychiatric reports from 2017 onwards. She states that the applicant’s depressive symptoms date back to the applicant’s release into the community and were formally documented in 2017 when his GP diagnosed him with depression and referred him for assessment. His symptoms include low mood, poor sleep, fluctuating appetite, low energy, reduced motivation, and anxiety. PTSD symptoms reported include nightmares/flashbacks and intrusive memories of traumatic experiences; emotional numbing and avoidance of triggers which date back to at least to May 2017 when they were documented by another doctor. She states that the applicant has been in the care of psychiatrists at the service since 2017 and that he has an improved mood in response to a combination of medications. His recovery is described as partial and that gaining meaningful employment and building social connections are particularly difficult due to the severity of his symptoms. She reports that he displays ongoing low energy; sleep disturbance and every other day he experiences nightmares and flashbacks; as well as ongoing mood fluctuations. [Dr A] assesses that the applicant meets the diagnostic criteria for Post Traumatic Stress Disorder; with secondary Major Depressive Disorder (moderately severe) and partially treated. [Dr A] states that, in her opinion, the lack of certainty (about the refugee determination process) is an ongoing stressor that perpetuates his PTSD and removes his ability to plan ahead positively towards recovery. [Dr A] states that the nature of his diagnosis, PTSD, makes it likely that he will continue to experience episodic relapse related to social stressors; and require ongoing support and treatment. In her opinion, a return to Pakistan would almost certainly trigger a worsening in symptoms of nightmares and flashbacks; along with worsening the symptoms of the severe Major Depressive Disorder. During the hearing, the applicant was asked about the type of treatment he receives at [Health provider], and he was given the opportunity to provide further material in respect of his treatment. Following the hearing the applicant’s representative submitted a letter from [Dr A] dated 21 July 2025 which states that the applicant receives trauma informed supportive psychotherapy, which she reports is one of the best evidence-based modalities for PTSD. She states that the applicant has developed an excellent therapeutic alliance in his treatment and attends regularly, which is favourable for a good outcome. She concludes that, it is hoped with continued treatment, he will be able to meet his goals of further training to enable him to work in the future in Australia as [an occupation 1].

Decision

Reasons for decision

While mental health services may be limited in Pakistan, they are available in major cities.[60] For example, the UK Home Office reports that private facilities are available in Islamabad at the Shifa International Hospital for inpatient, outpatients and follow-up by both psychologists and psychiatrists, and that mental health services are now included in the Sehat Sahulat Program (a health insurance scheme for underprivileged citizens) but to a limited extent.[61][60] UK Home Office, ‘Country policy and information note: healthcare and medical treatment, Pakistan, July 2024,’ 12 Mental health < [61] UK Home Office, ‘Country policy and information note: healthcare and medical treatment, Pakistan, July 2024,’ 12 Mental health <>I have also considered whether being in Pakistan would affect his mental health, because it would enliven memories of previous incidents in Pakistan in Kurram. I find that he would not be in the same location as the previous events, if he was in Islamabad, and would be in an environment with a large security presence which is not connected to the previous events. However, I find that returning to Pakistan after a period of 12 years in Australia, even though he would not be in the same location as the past incidents, would likely lead to a deterioration in his condition given the relative proximity to his home region, being in the same country as where those incidents took place and the presence of Pakistani authorities, whom he blames in part for the current situation affecting the Turi Shias in Kurram. I find that this would adversely affect his mental health, which would have consequences for his ability to secure accommodation, form networks in the city, and to find employment.I note that he does not have any connections to any region in Pakistan outside Kurram. Accordingly, I find that he would be required to relocate to Islamabad alone. I find that it is likely that he would be able to make contact with other Pashtuns and Turis prior to arrival, however, I accept that it would be difficult for him to live in Islamabad, particularly if he is living alone or with unfamiliar people, given his mental health conditions if he is unable to continue accessing support.While I find that the applicant would be able to find accommodation (albeit with some difficulty) in Islamabad, he would be required to live alone or with unfamiliar people without ongoing family support. Based on the available information, I am concerned that he would not be able to obtain appropriate support for his mental health conditions. While there is a reported limited number of psychologists and mental health professionals in Pakistan generally, and I accept that mental health support is available in Islamabad, I find that it would be difficult for him to access the services which are available because of the applicant’s particular profile as a Pashtun man who has limited links to Islamabad. Such services are available to private patients and having regard to the applicant’s evidence that he sends money from Australia to Pakistan, it is not apparent that he would be able to continue to afford such services over time (noting the applicant has received consistent treatment in Australia since 2017 according to his psychiatrist report). If he is unable to source such mental health support, I find that this would affect his ability to obtain and maintain his employment, thereby inhibiting his ability to survive in Islamabad. His mental health diagnoses would also affect his ability to form the networks required in Islamabad to live in the city.I have considered the applicant’s situation cumulatively, including his mental health and his lack of family connections outside Kurram and find that, primarily having regard to the applicant’s mental health diagnosis (as evidenced by his ongoing and regular treatment, discussed above), it would not be reasonable, in the sense of practicable, for him to relocate to another city within Pakistan, such as Islamabad.Accordingly, I do not consider it reasonable for the applicant to relocate for the purposes of s 36(2B)(a).Could the applicant obtain protection from an authority?Under s 36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: MIAC v MZYYL (2012) 207 FCR 211. The provision requires consideration of the source and nature of the harm faced, the nature and degree of protection able to be afforded by the authorities from the specific harm faced, whether that protection could be obtained, and whether, upon obtaining that protection there would still be a real risk of significant harm: ABAR15 v MIBP (No 2) (2016) 242 FCR 11 at [60]–[61].The harm the applicant faces in Kurram is from the TTP and other Sunni extremist groups. In respect of obtaining protection from the police, DFAT reports that police capacity and effectiveness in Pakistan is limited by a lack of resources, poor training, cultural attitudes, and under-resourcing, and competing pressures from superiors, political actors, security forces and the judiciary.[62] The police would not provide ongoing protection to the applicant and it is apparent that they have been unable to protect Shias from sectarian attacks in Kurram or protect Shias travelling in a security convoy. While the applicant may be able to report any future attacks or threats to the police, I do not accept that this would mean he would have protection such that there would not be a real risk. He would only report to the police after he had been harmed or attacked, and this would not prevent the attack or reduce the risk to below a real risk.Is the risk faced by the population generally?[62] DFAT Report, para 5.12.Under s 36(2B)(c) of the Act there is taken not to be a real risk that an applicant will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally. The term ‘population of the country generally’ refers to the commonly understood concept of the general population, such that there is no requirement that the risk be faced by all members or every citizen of a country’s population for s 36(2B)(c) to apply: BBK15 v MIBP (2016) 241 FCR 150 at [32]. The reasoning in BBK15 and other Federal Court judgments (SZSPT v MIBP [2014] FCA 1245; MZAAJ v MIBP [2015] FCA 478) indicates that s 36(2)(c) will apply where a real risk is faced by an individual applicant but is the same as the risk faced by the general population. However, s 36(2B)(c) requires a decision-maker to determine whether the risk faced by an applicant is a risk faced by the population of the country generally, not to the population in a particular area of the country such as a particular city or province.The risk of harm is not faced by the population of Pakistan generally. It is a risk faced by the applicant personally because of his particular profile, which means he is at risk of harm from the TTP and other Sunni extremist groups.I have concluded that the applicant faces a real risk of significant harm in Kurram in the Khyber-Pakhtunkhwa province of Pakistan, and that none of the exceptions in s 36(2B) apply.For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).DECISIONThe 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)(aa) of the Migration Act.Dates of hearing(s): 16 July 2025Representative for the Applicant: Mr Walid BabakarkhilATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…

Ratio Decidendi

Legal Principle Established

The delegate accepted that the applicant is a Pashtun Turi Shia from Parachinar in Pakistan. They accepted that the applicant had worked as [an occupation 1] and in his family’s [work task] business and had witnessed violence in Pakistan. They also accepted that the applicant would return to Pakistan as a failed asylum seeker from the west, and that he has political views against the Pakistani state. However, having regard to country information at the time of the decision, the delegate concluded that the applicant did not face a real chance or real risk of harm on the basis of his particular profile.Immigration Assessment Authority The Reviewer accepted the applicant’s particular profile. Having regard to country information, the Reviewer found that the security situation in the Kurram District had improved, and that the applicant did not face a real chance or real risk of harm on the basis of his particular profile. The Reviewer also found that the applicant would not be denied medical treatment for his mental health conditions because of a reason in s 5J(1)(a) and, in relation to the availability of medical treatment for his mental health conditions, found that there was no intention to cause significant harm to the applicant. In quashing the IAA decision, the Federal Circuit and Family Court of Australia (Division 2) noted that the IAA did not consider an integer of a claim: that he faced a moderate risk of harm as a Shia Turi by not having regard to the DFAT report (dated 20 February 2019) which assessed that Turis in Kurram Agency faced a moderate risk of sectarian violence from militant groups because of their Shia faith.Evidence before the TribunalWritten material The applicant submitted documents in relation to his health, including a letter from his treating psychiatrist, [Dr A], of [Health provider], dated 31 March 2025. Her current positions include medical lead at [Health provider] and Consultant Psychiatrist at [Hospital and Mental Health service]. [Ms B] has been involved in the applicant’s care since being appointed to her position at [Health provider] in July 2024. In writing her report, she had regard to progress notes and psychiatric reports from 2017 onwards. She states that the applicant’s depressive symptoms date back to the applicant’s release into the community and were formally documented in 2017 when his GP diagnosed him with depression and referred him for assessment. His symptoms include low mood, poor sleep, fluctuating appetite, low energy, reduced motivation, and anxiety. PTSD symptoms reported include nightmares/flashbacks and intrusive memories of traumatic experiences; emotional numbing and avoidance of triggers which date back to at least to May 2017 when they were documented by another doctor. She states that the applicant has been in the care of psychiatrists at the service since 2017 and that he has an improved mood in response to a combination of medications. His recovery is described as partial and that gaining meaningful employment and building social connections are particularly difficult due to the severity of his symptoms. She reports that he displays ongoing low energy; sleep disturbance and every other day he experiences nightmares and flashbacks; as well as ongoing mood fluctuations.