1501782 (Refugee)

[2016] AATA 3784

1501782 (Refugee) [2016] AATA 3784 (14 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1501782

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Christopher Smolicz

DATE:14 April 2016

PLACE OF DECISION:  Adelaide

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

Statement made on 14 April 2016 at 2:48pm

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Pakistan, applied for the visa [in] February 2014 and the delegate refused to grant the visa [in] January 2015.

3. The applicant appeared before the Tribunal on 12 April 2016 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A].

4. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

5. The applicant was represented in relation to the review by her registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the applicant 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.

7. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

8. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

9. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection 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 the applicant 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’).

10. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT Pakistan Country Information Report dated 15 January 2016) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

11. The issue in this case is whether the applicant has a well-founded fear of persecution in Pakistan because of her Ahmadiyya (Ahmadi) religion.

12. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Background

13. The applicant was born in [Pakistan]. She is [age] years old. She has had limited education, no work history and is reliant on her family for support.

14. [In] November 2013 the applicant arrived in Australia on a validly issued Pakistani passport as the holder of a [temporary visa]. The applicant travelled to Australia to visit her [children] who are Australian permanent residents.

15. The applicant travelled to Australia from [Country 1] where she was visiting her [children] who are working in [Country 1]. The delegate was concerned that the applicant did not claim refugee status in [Country 1] but waited until she arrived in Australia. The delegate however, accepted that the applicant’s [Country 1] visa had since expired and found that the applicant did not have effective protection in a third country as set out in s.36(2) of the Act.

16. At the hearing the applicant said she did not understand that she could apply for protection in [Country 1] and wanted to travel to be with her [children] who were successful in applying for asylum in Australia.

17. The Tribunal finds the applicant to be a citizen of Pakistan and that she presently has no existing right to enter and reside in any other country. The Tribunal finds that Pakistan is the country of reference for the purpose of the Refugee Convention. The Tribunal has considered whether the applicant could return to her home area of [City 1], Pakistan.

    The applicant’s factual claims and the Tribunal’s findings

18. The Tribunal found the applicant to be a credible witness and accepts that she had difficulty recalling dates some details of claims due to her age. 

19. The applicant said she is an Ahmadi Muslim and was living in [City 1], Pakistan. She has experienced mental harm and religious persecution in Pakistan. Whenever any of her family members leave the house they don’t know if they will come back alive.

20. The applicant claims that members of her community are killed in the name of Islam, their properties are destroyed and their places of worship set on fire and burned.

21. The applicant said that Ahmadi people are unable to call themselves Muslim, preach their religion or greet anyone in the Islamic way (Assalamoalaikum) in public. Ahamdis constantly fear being reported to the police and charged with blasphemy.  Due to the fear of religious persecution her children have now left Pakistan and settled in [country] and Australia.

22. Her parent’s house was burnt down [and] they were left homeless for a long time. In 1998 her house was almost burnt down and her husband was arrested and put in jail.

23. The applicant submitted that on one occasion her husband gave a book or received a book written by Sri Muhammad Safrullah Khan “My Mother” and was charged with blasphemy and jailed. [A relative] went to visit her husband in jail and was attacked with knives and shot. He was also arrested and charged. Her husband passed away in [year] and she is now left to look after herself with only distant family support.

24. The applicant said that living as an Ahmadi meant that her family had to keep their religion private. [A relative] wrote his religion as “Islam” on an application form which he filled for admission to college and was charged and sent to jail. The Tribunal said that prior to 1975 life used to be different for Ahmadi people and it used be safe.

25. The Tribunal questioned the applicant about how she is able to practice her religion in her home area. The applicant said she prays five times a day but is only able to pray in private at home because she fears attending the Mosque.

26. If she returns she fears harm from clerics and Jihadis groups such as the Muhafiz-e-Khatm-e-Nabuwat. She fears the government’s blasphemy laws which target Ahmadi Muslims.

27. The Tribunal took evidence from [Mr A], [from an] Ahmadi [Association].[1] [Mr A] said that he knows the applicant and her family in Australia and confirmed that the applicant and her family are Ahmadi Muslims. [Mr A] gave evidence about the religious persecution faced by the Ahmadi Muslims in Pakistan. [Mr A] said that it was not possible to openly identify as an Ahmadi in Pakistan and although there were places of worship for Ahmadi Muslims they could not be referred to as Mosques. [Mr A] said that it was dangerous to attend an Ahmadi Mosque for Friday prayer and people would travel in groups for their own protection. The Tribunal found [Mr A] to be a credible witness who’s evidence was supported by independent country information.

    [1] [Information deleted].

28. The Tribunal has had regard to the following country information about the persecution of Ahmadi Muslims in Pakistan prepared by DFAT:

    3.13 There are approximately 500,000 Ahmadis in Pakistan. Ahmadis mostly live in Punjab, including Rabwah, the location of the movement’s headquarters. A larger population of Ahmadis lives outside Pakistan, including Africa, Indonesia, the United Kingdom (UK) and the United States. This includes the Supreme Head of the movement, who has lived in the UK since 1984.

    3.14 Pakistan’s Ahmadi community is comparatively well-educated and relatively prosperous. Although there are no formal restrictions on entry into Pakistan’s civil service or security forces, Ahmadis reportedly experience difficulties regarding promotion into the senior levels of these organisations. Unlike some Shia names, it is generally not possible to identify Ahmadis by name alone.

    3.15 A number of discriminatory laws inhibit Ahmadis’ rights to practise their religion openly. Although Ahmadis identify as Muslim, the Constitution describes them as non-Muslim. Under Ordinance XX – upheld by the Supreme Court – Ahmadis may not identify, or ‘pose,’ as Muslims. They are also barred from worshipping in non-Ahmadi mosques or public prayer rooms; performing the Muslim call to prayer; using the traditional Islamic greeting in public; publicly quoting from the Quran; preaching in public; seeking converts; or producing, publishing and disseminating religious materials. These acts are punishable by imprisonment for up to three years. Ahmadis also have no representation in Pakistan’s Council of Islamic Ideology. Ahmadis are exempt from the otherwise mandatory 2.5 per cent zakat deductions on personal income.

    3.16 Ahmadis continue to experience political discrimination. Changes to the electoral system in 1985 established a separate registration list for non-Muslims. While electoral reforms in 2002 removed the distinction between Muslims and non-Muslims, Ahmadis must still register on a separate, Ahmadi-specific list. In the 2013 general elections, many Ahmadis refused to register on this list and were therefore unable to vote.

    3.17 The Ahmadi community has told DFAT that Pakistani authorities have demolished, restricted access to, or forcibly occupied Ahmadi places of worship. Mobs have also reportedly set fire to some Ahmadi places of worship, and Ahmadi graves have been desecrated and their dead disinterred. The Ahmadi community has also reported the closure of Ahmadi publications, removal of Ahmadi students from schools and universities, and reporting of Ahmadi communities en masse to local police forces for unspecified crimes.

    3.18 Since the promulgation of Ordinance XX, there has been an increase in the number of physical attacks against the Ahmadi community in Pakistan. According to the Human Rights Commission Pakistan  (HRCP), 11 Ahmadis died in sectarian violence in 2014. On 17 July 2014, for example, an Ahmadi grandmother and her two granddaughters died when a mob set fire to their house in Gujranwala, Punjab.

    3.19 According to the Ahmadi community, authorities have colluded and participated in some of these attacks. The leaked Abbottabad Commission report also suggests that police in Lahore protected perpetrators of violence against Ahmadis in 2010. DFAT is unable to verify these claims.

    3.20 DFAT assesses that Pakistan’s Ahmadi community is subject to a high level of official discrimination, which impacts their ability to freely practice religion and limits the extent of their political engagement.  Ahmadis are also subject to a moderate level of societal discrimination and a low level of violence, although this violence is generally mitigated by Ahamadis’ relatively high socio-economic status.

29. The Tribunal accepts the applicant is a member of the Ahmadi Muslim community in .Pakistan and that she would be perceived as such. The Tribunal accepts DFAT’s assessment that the Ahmadi community in Pakistan is subject to a high level of official discrimination, and that they are unable to freely practice their religion.

30. The Tribunal accepts the applicant was personally unable to freely practice her religion in Pakistan, on the basis of her claims and the consistent country information such as the DFAT report. 

31. The Tribunal accepts the applicant’s evidence that her husband had been targeted by the authorities because of his religious beliefs and was charged under the blasphemy law. The Tribunal accepts that members of the applicant’s family have been arrested and assaulted and have fled Pakistan to seek asylum in other countries.

32. The Tribunal accepts that in Pakistan the applicant has been forced to modify her behaviour and practice her religion discreetly in order to avoid harm.  Such modification has included not praying in public and not being able to call herself Muslim, and not being able to attend non-Ahmadi Mosques.  The Tribunal accepts she has done so out of fear of the threat of harm, and that this need to modify her behaviour in relation to her personal religious belief in itself amounts to persecution.  Further the Tribunal accepts it is not farfetched or fanciful to find that the applicant may suffer serious harm as a victim of breaching the anti-Ahmadi law should she return to Pakistan, such that the Tribunal accepts there is a real chance of persecution.

33. The Tribunal finds the applicant’s religious beliefs and practice would be the essential and significant reasons for the fear of persecution as required by s.91R(1)(a). The Tribunal is satisfied that the persecution she is at risk of suffering involves systematic and discriminatory conduct, as required by s.91R(1)(c), in that it is deliberate or intentional and involves selective harassment for a Convention reason.  The Tribunal finds the fear of harm is well-founded.

34. Given the authorities in Pakistan are the agents of the discriminatory anti-Ahmadi laws, the Tribunal finds the applicant has a well-founded fear in relation to her country of nationality as a whole and that issues of internal relocation and state protection do not arise.

35. The Tribunal finds, based on the country information, that the applicant would not be able to avail herself of effective state protection against such harm.

36. In conclusion, the Tribunal finds that if the applicant were to return to her home area, in the reasonably foreseeable future, there is a real chance she would be subjected to serious harm amounting to persecution on account of her Ahmadi Muslim religion. The Tribunal finds the applicant’s fear of persecution from the authorities of Pakistan is well-founded.

37. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

    DECISION

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

    Christopher Smolicz
    Member