1512047 (Refugee)

[2017] AATA 43

1512047 (Refugee) [2017] AATA 43 (6 January 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1512047

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Nicole Burns

DATE:6 January 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 06 January 2017 at 11:23am

CATCHWORDS

Refugee – Protection visa – Pakistan – Religion – Christianity – Credibility – Not a genuine convert – Sole purpose of strengthening refugee claims  

LEGISLATION
Migration Act 1958, ss 36(2)(a), (aa), (b), (c), 499

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] March 2014 and the delegate refused to grant the visa [in] August 2015.

3. The applicant appeared before the Tribunal on 10 November 2016 to give evidence and present arguments.

4. The issues in this review are whether the applicant will face a real chance of persecution or a real risk of significant harm on return to Pakistan from extremists and others on account of his claimed conversion to Christianity from Islam.  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.  An extract of the relevant law is attached. 

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. It is not in dispute that the applicant is a Pakistani national and the delegate recorded in the decision record (a copy of which the applicant provided to the Tribunal on review) that the applicant travelled to Australia on a Pakistani passport that was lost and he considered his new passport the delegate sighted at interview to be genuine.  The Tribunal is satisfied that the applicant is a national of Pakistan and has assessed his protection claims accordingly. 

6. According to information on the Departmental file and confirmed at the Tribunal hearing, the applicant is a [age] man from Quetta, Balochistan in Pakistan.  He moved to Multan, Punjab with his family when he was around [age].  He came to Australia as a student [in] February 2010 and has not returned to Pakistan since.

7. The applicant claims to have converted to Christianity from (Sunni) Islam whilst in Australia. He fears harm from religious extremists on return to Pakistan as a result, including Sipah-e-Sahaba (SSP) and from some of his relatives. 

8. In his oral evidence to the Tribunal the applicant said he was baptised by [a pastor] from [Church 1] in [City 1] (which he described as Pentecostal), specifically at [Venue 1] in [suburb] [in] July 2015.  Another pastor ([name]) was in attendance along with a fellow church member called [name].  As evidence the applicant has provided a copy of his record of baptism, a short video and photographs. 

9. The applicant told the Tribunal that he was born into a Sunni Islamic family and was brought up following that faith, however he did not practice much, only attending Friday prayers.  When asked at hearing if his parents were strict Muslims, the applicant said that his father was a bit strict and his mother was moderate.  He said that his father belonged to the ‘Tableeghi jamat’ which involved going door-to-door to preach about Islam in their home area of Multan, the Punjab.  The applicant described his siblings – [composition] – as ‘liberal’ in their religious practice and beliefs.  The applicant has not practiced his Muslim religion at all since coming to Australia to study in February 2010. 

10. The applicant said he started exploring alternative religions in 2011, including Hinduism and Buddhism as well as Christianity.  He noted that he actually first started exploring Christianity in Pakistan when he used to discuss religion with his Christian friends.  In Australia in 2011 he read blogs and visited websites about Christianity.  He also met a Nepalese woman called [Ms A], through his girlfriend, who had converted to Christianity from Hinduism and who introduced him to a number of her Christian friends.  He said observing her family’s lifestyle and the way they treated him with respect and kindness which they attributed to the teachings of Jesus Christ influenced him in his decision to convert to Christianity. 

11. In Australia the applicant said he attended meetings with others at [Ms A]’s house[1] every Thursday where those present would talk about daily issues and seek solutions with the help of the teachings of Jesus Christ.  He started attending the meetings after he first met [Ms A] sometime in 2011, until she moved to [city] in March 2016.  They discussed the Bible at these meetings, but not in depth.  The applicant said he only started reading each chapter of the Bible after he was baptised, noting that he is currently reading the Revelations.  He explained that those members of [Church 1] – which he said comes under the Pentecostal denomination - only study the New Testament in the Bible, which distinguishes them from other Christian denominations such as Anglicanism.  Currently the applicant said he attends church service held at [Venue 1] every Sunday from 11 am to 5pm.  He was introduced to [Church 1] by [Ms A] in early 2015.  Prior to that he said he used to go to a church in [Suburb 1] in 2011, then clarified that it was actually a gathering at the home of [name] in [Suburb 1] which he had mistakenly thought was a church when interviewed by the delegate. He said the type of Christianity they discussed at [name] house was Anglican, which he said was close to [Church 1]. After he moved to [suburb] he attended gatherings at [name] house in [another suburb] usually twice a month, on Sunday, where they would meet, discuss aspects of life and bring new people who wanted to convert.  He said this took place in 2012 and 2013.  Later in the hearing when asked if he attended ‘church’ during 2014, the applicant replied that he was not sure of the dates when he attended church meetings at [name] house and that it could have been in 2014 also.

    [1] At [address]

12. The applicant told the Tribunal that his girlfriend, whom he currently lives with, is a Sunni Muslim from Sialkot, Punjab in Pakistan.  They met in Australia when she was a student.  He said she has applied for a temporary [visa] to stay in Australia.  He said she goes with him to [Venue 1] once in a while and he feels she is on the verge of converting although she has not said as much.  Their respective parents know about their relationship and approve.  Her parents know about his conversion to Christianity and have no issues with it because they are liberal, as is his girlfriend. 

13. The applicant said his parents know that he has converted to Christianity and have disowned him.  He told his [sibling] of his intention to convert in 2014 who then told his parents. His mother rang the applicant a few times afterwards and was depressed.  He has not had contact since, or any contact with his father since his [sibling] told him about his intention to convert.

14. The applicant said after he heard about his plans to convert his father became upset and spoke about the matter to his friends at a local mosque.  Subsequently his father started receiving threatening notes thrown into their house.  The notes allegedly warned that the  applicant would not be spared when he returns (to Pakistan).  His father and [sibling] reported the matter to the police, suspecting the threats may have come from a militant organisation active in the region such as the SSP (earlier in the hearing the applicant identified other possible groups including the Haqqani network and/or “Dawat Ulaharar”).  He said the police are still investigating the matter.  The applicant said the threats continue - two more notes wrapped in stone were thrown at their parent’s home this year (2016).  Also a ‘random’ person approached his father at the mosque during Eid festival a couple of months prior to the hearing and asked about the applicant, enquired when he was returning from Australia, and laughed when his father asked how he knew his son was in Australia.    

15. The applicant said somehow the news of his conversion has spread to his relatives in Multan, where his parents reside, as well as other parts of Pakistan including Lahore and Quetta.  When asked if he fears serious harm from any of his family members on return to Pakistan because of his alleged Christian conversion, the applicant said although his father will not accept it, he will not harm him.  However he fears that other relatives will: specifically his [relative] and his [relative]’s [children] who live in Multan and who told the applicant’s father sometime in 2016 that if the applicant returns they will “beat the hell out of him”.  He added that all of his [male relatives] in Multan are against him, and his [other relatives] there, as well as his [relatives] in Lahore, his [relatives] in Quetta, and his [sibling]’s [spouse]’s relatives who live in Karachi. 

16. The Tribunal accepts the applicant was born and raised a Muslim and that his parents and siblings in Pakistan are adherents to (Sunni) Islam. 

17. At the Tribunal hearing the applicant was asked a range of questions about his religious beliefs and practices in Australia, including reasons why he decided to convert. These were intended to give him the opportunity to demonstrate aspects of his knowledge of the Christian faith and the progression of his religious belief to the point of conversion. The Tribunal found his description of what he understands to be a Christian was fairly general and lacking in detail.  For example when asked the main beliefs of [Church 1] where he claimed to have attended for a couple of years and was baptised in 2015, the applicant said that they are Pentecostal and believe that after repentance one has to feel Jesus Christ within them, get the holy spirit, then start speaking in tongues, but he did not provide any particular details.  When asked about the main beliefs in the Anglican Church, given his claims to have also attended church gatherings run by Anglican Church members, the applicant said they are the same as [Church 1]: that is seeking refuge from evil things.  The main difference, the applicant said (as mentioned), was that Anglicans believe in the Old and New Testament whereas [Church 1] only believe in the New Testament. He displayed some basic knowledge of the New Testament, telling the Tribunal that it contains four books (Matthew, Mark, Luke and John), for example, and quoted a verse from the book of Matthew.   Despite these concerns, the Tribunal acknowledges that people can follow a particular faith for a number of reasons and without having detailed knowledge of its main tenets.  For this reason it does not find that the applicant’s lack of detailed knowledge of Christianity to be determinative of whether or not he genuinely decided to convert.  

18. The Tribunal accepts the applicant was baptised [in] July 2015 by members of [Church 1] in [City 1], having regard to a copy of the record of baptism provided, as well as the video which shows the applicant in a bathtub and three men present, one of whom immerses him in water, as well as various photographs of the baptism and the applicant praying with others (at a Sunday meeting, according to the applicant).  The Tribunal has significant concerns however, about the applicant’s motivation to convert to Christianity and claimed religious practice in Australia for the reasons that follow. 

    a.The applicant was unable to adequately explain, in the Tribunal’s view, the reasons why he allegedly decided to convert from Islam to Christianity.  At hearing he made vague and sweeping statements about his motivation to convert, for instance about observing [Ms A]’s family and finding them honest and humble and also about  Christians showing pure love which is different to Islam.  However he did not provide any specific reasons as to why he was attracted to Christianity.

    b.The Tribunal found the applicant’s oral evidence about his alleged exploration and research into Christianity to be vague and unconvincing.  For example he stated that when he started exploring Christianity in 2011 he read blogs and websites but he was unable to state which ones or provide any examples, explaining that he could not recall because it was a long time ago.  The Tribunal accepts it was some time ago however it would expect the applicant to remember at least one particular blog or website given the importance of converting to Christianity (and exploring religion) in his life, which allegedly commenced when he started reading the blogs and websites.

    c.The applicant’s evidence about his alleged religious practice in Australia has changed over the course of the visa application and review application in some respects.  That is he told the Department (as set out in the delegate’s decision record, a copy of which the applicant provided to the Tribunal on review) that he attended Anglican churches in [Suburb 1] and [another suburb] in Australia, naming the churches and addresses (incorrectly).  However, as mentioned, he told the Tribunal that whilst he thought they were churches at the time of the delegate’s interview, they were actually just gatherings at various people’s homes, noting that such ‘home churches’ take place in a number of different religions.  Whilst the Tribunal agrees that ‘home churches’ do take place, it notes that the applicant told the delegate at interview[2] that he attended a number of churches in this period, including the [Suburb 1] Anglican Church which he identified as its official name, provided an address, and identified the alleged priest.  If the applicant had attended a traditional Anglican Church for example it would be clear from signage and architecture that that was the case, rather than meetings of Christians at a private home to discuss their faith.  Yet the applicant made no mention of attending these gatherings at people’s houses at all to the delegate, which casts doubts on his church attendance, including privately. 

    d.There are some inconsistencies between the applicant’s oral evidence to the Department (as set out in delegate’s decision record, a copy of which he provided to the Tribunal on review) and his oral evidence to the Tribunal about his religious practice in Australia in significant respects.  For example, he told the delegate at interview [in] May 2015 that he started reading the Bible in 2011; he regularly reads the Bible and attends Bible studies every Thursday.  However at the Tribunal hearing he said he only started reading the Bible in depth (that is “each chapter”) after he was baptised in early July 2015.

    e.The applicant’s oral evidence about his family members and others’ in Pakistan alleged reaction to his plans to convert was vague, lacking in detail and at times implausible.  For instance, he was unsure when his father told his friends at the mosque about the applicant’s intention to convert, or when his parents received threatening notes at their home.  As well, the applicant was vague about his parents’ specific reaction and objection.  For instance when asked what his mother said over the telephone after the applicant’s [sibling] told her about the applicant’s conversion plans, the applicant said she was depressed but was unable to recall her specific objection for example, or any particular concerns.  

    f.Finally, the Tribunal finds it implausible that the applicant’s father would tell his friends at the mosque that his son was thinking of converting to Christianity, particularly given the applicant’s initial claims at hearing that they belonged to the SSP who have an explicit anti-minority agenda (later in the hearing the applicant revised his evidence and said his father’s friends were linked to the SSP and his father did not know at the time).  The Tribunal is not persuaded by the applicant’s explanation at hearing that they were his father’s good friends and his father was not calm at the time.  Combined with other concerns with the applicant’s evidence as discussed above, the Tribunal does not accept that the applicant’s father told his friends at the mosque of his son’s intention to convert to Christianity. 

    [2] As recorded in the delegate’s decision record, a copy of which the applicant provided to the Tribunal on review. 

19. The combination of these concerns causes the Tribunal to find that the applicant has not been truthful in his evidence concerning the reasons for his conversion to Christianity in Australia, and the resultant issues from his family, other relatives, and members of the local mosque (with alleged links to the SSP, for example) in Pakistan and claimed fears about the reaction of these people and extremists groups on return to Pakistan.  The Tribunal discussed its concerns with the applicant at the hearing, and explained that if not satisfied that he had engaged in conduct in Australia in relation to his Christian conversion and activities otherwise than for the sole purpose of strengthening his refugee claims, the Tribunal is required by law to disregard that conduct.  In response the applicant told the Tribunal it could go to the [Church 1 member], [pastor] and ask about his conversion.  The Tribunal accepts that the applicant was baptised in July 2015 in what appears to be a revivalist ceremony of sorts, based on the video and photographs provided.  What is of concern to the Tribunal, as discussed for reasons above and below, is the motivation behind the applicant’s reason to convert to Christianity.

20. On the cumulative evidence, on matters set out above, the Tribunal accepts that the applicant was baptised in [City 1] [in] July 2015, has attended some Christian gatherings in Australia, may have talked about Christianity, and has exhibited some basic knowledge of some tenets of the Christian faith.  However, due to the concerns in significant aspects of the evidence before the Tribunal as discussed above, the Tribunal doubts his religious beliefs and alleged motivations to convert.  The Tribunal does not accept that the applicant genuinely holds Christian beliefs and finds that his conversion to Christianity and attendance at church and other gatherings was for the sole purpose of strengthening his claim to be a refugee.  The Tribunal is not satisfied that the applicant engaged in the conduct otherwise than for the purpose of strengthening his claim to be a refugee within the meaning of the Convention.

21. Given such findings the Tribunal is not satisfied that the applicant converted to Christianity and engaged in ongoing church related activities in Australia otherwise than for the sole purpose of strengthening his claim to be a refugee within the meaning the Refugees Convention as amended by the Refugees Protocol.  Accordingly, as required by s.91R(3), the Tribunal has disregarded this conduct in considering the applicant’s protection claims.

22. Given these findings the Tribunal does not accept that the applicant has a subjective fear of persecution in Pakistan because he holds actual or imputed Christian beliefs or has converted to Christianity.  Nor does the Tribunal accept that he has renounced Islam.  It follows that the Tribunal finds that there is no real chance that the applicant will be persecuted on return to Pakistan, either now or in the reasonably foreseeable future, by reason of religion, or as a religious convert, or as an apostate, or for any Convention reason, by religious extremists, his family members, relatives, mosque members or anyone else. 

1. In reaching this conclusion the Tribunal has had regard to the translated copy of a first information police report (FIR) allegedly lodged by the applicant’s [sibling] in Pakistan [in] September 2014 following the “life threats” received from “unknown people” directed at the applicant in the form of scrap notes and verbal threats provided. At hearing the applicant did not know the date of the FIR and when asked the year he stated that it was 2014, and then changed it to 2015, which is incorrect, casting doubt as to the veracity of the police report as well as the alleged threats.  The applicant also provided the original plus a translation of one of the scrap notes in which it is stated, “If your brother loves his life, then advice him to rest a Muslim otherwise, will lose his life.”  The Tribunal notes that this is a handwritten note on a scrap piece of paper with no date or other identifying marks that could have been written by anyone. Combined with the serious credibility concerns with the applicant’s evidence as set out above, the Tribunal gives this note little weight.  With respect to the FIR, the applicant said the Tribunal could verify the report with the police in Pakistan.  However given the Tribunal does not accept the applicant’s claims that he has been threatened by mosque members via his family members in Pakistan for the above reasons, and noting country information referred to in the delegate’s decision and in the most recent DFAT report that indicates that document fraud is endemic in Pakistan[3], the Tribunal gives this FIR little weight.  

   [3] DFAT Country Information Report, Pakistan 15 January 2016 at 5.46

   Complementary protection criterion

2. The Tribunal has also considered the application of s.36(2)(aa) to the applicant’s circumstances. On the basis of the applicant’s Pakistani passport (a copy of which is on the Departmental file), the Tribunal finds that Pakistan would be the receiving country if the applicant were returned because he is a national of Pakistan.  

3. The Tribunal has considered if the applicant faces a real risk of significant harm from his family members, other relatives, mosque members, or members of extremist or other groups on return to Pakistan on the basis of having converted from Islam to Christianity in Australia, and attended church.   

4. The applicant claims to fear serious harm on return to Pakistan as a Christian convert from Islam by extremists groups and some of his relatives; that minorities have been attacked by extremists groups; and that he will not be able to freely practice his Christian religion in Pakistan on return. 

5. For reasons set out above and relying on the reasoning and evidence presented in relation to his refugee claims, the Tribunal accepts that the applicant has converted from Islam to Christianity in Australia.  However the Tribunal does not accept that the applicant holds Christian beliefs nor is a genuine Christian convert.  Given this finding the Tribunal does not accept that the applicant will practice his Christian religion on return to Pakistan.  The Tribunal therefore finds the applicant does not face a real risk of significant harm as a Christian or a Christian convert from his family, his community or extremist groups or anyone else as a necessary and foreseeable consequence of being removed from Australia to Pakistan.

6. The Tribunal has accepted that the applicant did convert to Christianity, has attended church and religious gatherings at people’s houses, and has held himself out to be a Christian in Australia since around 2011.  However given the Tribunal does not accept that the applicant is a genuine Christian convert and is not satisfied that he will practice Christianity on return to Pakistan, the Tribunal is not satisfied that the applicant’s family members (immediate and extended) will have any issues with the fact that he converted to Christianity in Australia, was involved in church activities, or may have told people about Christianity.  The Tribunal found the applicant’s oral evidence about his family and other relatives’ reaction to his alleged conversion vague and lacking in details (as discussed above) and does not accept that they have reacted adversely, nor threatened to beat him on return, for instance.  The Tribunal therefore finds he does not face a real risk of significant harm from family members or relatives if removed from Australia to Pakistan on this basis.

7. In terms of risk of significant harm from members of extremist groups such as the SSP, the Tribunal does not accept that they would even come to know that he had converted to Christianity, possibly talked about Christianity, and practiced the Christian religion for a period of time in Australia, particularly given the Tribunal’s finding that the applicant would not practice his Christian religion on return to Pakistan.  As well, for the reasons above the Tribunal does not accept the applicant’s claims that his father told his friends at the mosque about the applicant’s plans to convert to Christianity and that these friends may have been linked to extremist groups such as the SSP.  Given these considerations, the Tribunal finds the applicant does not face a real risk of significant harm from such groups on the basis of his conversion to Christianity and practice of Christian beliefs and involvement with church activities in Australia as a necessary and foreseeable consequence of being removed from Australia to Pakistan.

8. Having considered the applicant’s claims singularly and cumulatively, the Tribunal finds that that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Pakistan, there is a real risk that the applicant will suffer significant harm. The Tribunal therefore finds the applicant does not satisfy the criterion set out in s.36(2)(aa).

   CONCLUSIONS

9. The Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

10. 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 not satisfied that the applicant is a person to whom Australia has protection obligations under s.36(2)(aa).

11. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) for a protection visa.

    DECISION

12. The Tribunal affirms the decision not to grant the applicant a Protection (Class XA) visa.

    Nicole Burns
    Member

    
    

    ATTACHMENT – RELEVANT LAW

    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.

    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).

    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.

    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’).

    In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.