1512096 (Refugee) - [2017] AATA 1197

1512096 (Refugee) [2017] AATA 1197 (25 June 2017)
CORRIGENDUM
DIVISION:Migration & Refugee Division
CASE NUMBER:  1512096
DIBP REFERENCE(S):  CLF2014/56644
COUNTRY OF REFERENCE:                  Pakistan
MEMBER:Rea Hearn-Mackinnon
DATE OF DECISION:  25 June 2017

DATE CORRIGENDUM
SIGNED:  3 August 2017
PLACE OF DECISION:  Melbourne
AMENDMENT:  The following corrections are made to the decision:

The words ‘25 June 2016’ on the front page of the Decision Record should be replaced with ’25 June 2017’.

Denis Dragovic,
Senior Member

DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1512096
COUNTRY OF REFERENCE:                  Pakistan
MEMBER:Rea Hearn Mackinnon
DATE:25 June 2016
PLACE OF DECISION:  Melbourne
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 25 June 2017 at 4:11pm

CATCHWORDS
Refugee – Protection visa – Pakistan – Religion – Atheist – Rejection of Islam – Un-Islamic lifestyle
LEGISLATION
Migration Act 1958, s 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Prakash v MIMA [2001] FCA 57

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

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).
The applicant, who claims to be a citizen of Pakistan, applied for the visa [in] April 2014 and the delegate refused to grant the visa [in] August 2015.
The applicant appeared before the Tribunal on 2 February 2017 to give evidence and present arguments.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
The issue in this case is whether the applicant will be harmed in Pakistan because he has rejected Islam. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Background and nationality
The applicant, who uses the name [name] in Australia, was born on [date] in Rawalpindi in Punjab province. He is an ethnic Punjabi. He has provided a copy of his Pakistan passport and other identity documents and the Tribunal is satisfied he is a national of Pakistan.
The applicant’s mother has been deceased for some years. His father, who passed away [in] February 2016, was [an occupation] in [a government agency]. He retired in 1992 or1993.
He has [siblings]. [Details of siblings deleted].
The applicant completed a [qualification] in Islamabad in 2006/7. He arrived in Australia [in] February 2008 on a student visa. In Australia, he has completed [various courses]. He was granted a Temporary Skilled Graduate visa [in] March 2011 on the basis of his nominated [occupation]. This visa expired [in] April 2014. He has held several jobs in [Australia].
The applicant claims he has not been able to work for some time because he has become very anxious about his visa. He can’t sleep and is drinking and gambling on poker machines. He is suffering psychological problems and was seeing a psychologist at [a certain organisation] but [that organisation] would not book any more appointments. He doesn’t know why. It might be because he was homeless about a year and a half ago and slept on their verandah. He is not seeing a doctor now because it is difficult as he is awake all night and sleeps all day and his Medicare has expired. He is still depressed and doesn’t want to go out. He feels his brain is frozen completely. He told the Tribunal he had just been evicted from his [accommodation] because he couldn’t pay the rent. He asked Tribunal staff for food and was given packets of biscuits which he ate during the hearing. He subsequently informed the Tribunal he had become homeless again.
Relationship with family
The applicant claims he has limited contact with sister in [Australia]. She called him a couple of days ago and this was their first contact since his father died. He told her he was injured in [an] incident [and] she was concerned about him and has phoned him a few times since then. He claims he has not visited her since being in Australia as her husband is a rigid Muslim and sees him as a Satan because he does things which are not permitted such as drinking, fornicating and eating pork. His sister’s marriage was arranged. She wears a hijab and also disapproves his behaviour and her [child] attends an Islamic school. He never tells his sister his problems. She knows he has applied for protection and told him he should return to Pakistan.
The applicant claims he has not had contact with his [siblings] in Pakistan since his father’s death either because they don’t approve of his behaviour. He [one sibling] has also cut him off because he told her she had not looked after their father [properly]. He is not in contact with [a sibling who is overseas].
The applicant claims his father formally disowned him before his death and did not leave him any money or property. After his father was diagnosed with [a medical condition], he to reconcile but his father cut him off when he tried to phone him.
Claims
The applicant claims to fear harm in Pakistan from his family, the authorities, extremists, mullahs and the community in general because he has rejected Islam and is an atheist and wants to live an un-Islamic lifestyle. He claims people in Pakistan are often killed for admitting they are not Muslim. He claims he will not receive any protection from the police or his family. He claims [a relative] is a police [officer] in Punjab who is very powerful and has connections and could arrange to have the applicant arrested and falsely charged. He fears Customs officials will question him on return and ask him about his religion and arrest him when they discover he is not Muslim. He fears being harmed or killed in prison.
Religion – loss of faith and anti-Islamic behaviour
The applicant claims his family are practicing Sunni Muslims. His father was a moderate but became more religious in last 15 years of his life. He did the Umrah before his mother died then did the Haj in 2006/07. The applicant went to mosque every Friday when he was growing up. His father went twice a day.
The applicant claims he turned against Islam in about year [grade] or year [grade] when he was [age] or [age] years old. He told the Tribunal that Islam didn’t make sense to him. He wanted the freedom to party and have girlfriend and explore the world around him. He couldn’t do this because of his strict father. He lived at home whilst attending university. He didn’t go to mosque. His father was too old to force him. He had to pretend to be a Muslim by wearing a shalwar kameeze. He pretended to fast during Ramadan but ate food in his room. He was developing his own mind but was being forced by society to pretend otherwise. He was also drinking alcohol from time to time. His father had some awareness of his views and told him to be careful in regard to sister’s future as no one would marry them. He told the delegate his family did not force him to attend mosque or practice Islam but yelled at him and were persistent.
The applicant claims he had a fight with parents, went out and consumed alcohol in 2006/07 and returned home drunk. He told the Tribunal the argument was about following Islam and he told his father he was going to go out and do something very un-Islamic. He took 500 rupees from his father, went to the Christian colony and bought alcohol and went home drunk. The next thing he knew, police were in his room and took him to police station. He told the Tribunal he believes his father reported him to the police to teach him a lesson. He claims he spent three nights in [a] Jail in Rawalpindi. [Details deleted]. He told the Tribunal he believes his father was a bit ashamed he had reported [him]. [Details deleted]. He had an acquittal summary but has lost it and has no other paperwork about his arrest or court case. He tried to contact the police in Pakistan but it is difficult to get paperwork. He asked the Tribunal to subpoena the court records and ask his [lawyer].
The applicant told the Tribunal he tried to join the Army after he completed year 12. He applied twice and passed the tests but was refused. He claims his father made inquiries and was told he had been refused because [of certain reasons]. He said his father would insult him and accuse him of saying something in the interview to suggest he should not be selected [for certain reasons].
The applicant claims that, after the Army rejected him he wanted to oppose Muslims and to leave Pakistan. When asked how the Army rejection related to Islam, the applicant said religious people have a mark on their foreheads from praying which he doesn’t have and the Army asked applicants to recite from the Koran because it wants fighters who are prepared to sacrifice themselves as martyrs. The Tribunal noted he had studied Islam at school and could recite the Koran. The applicant said he got poor marks.
The applicant said his father provided financial support for him to come to Australia and paid his university fees but not his living allowance. His father stopped paying his fees after the applicant argued with him over the phone and told his father he was eating pork and drinking. His father said Allah would not forgive him and the applicant swore at Allah.
The applicant claims he borrowed $[amount] from his landlord [Mr A]. When asked why the landlord gave him such a large amount, the applicant said he saw that the applicant was working hard and going to university. [Mr A] also took him to doctor who gave him drugs for depression which he didn’t take. He has paid back nearly half of the money. He hasn’t spoken to [Mr A] for a while. [Mr A] wrote a letter to the immigration department in support of him when he applied for protection however he didn’t give the letter to the department. When asked why, the applicant gave differing evidence: he had lost faith with the department and he was moving house. He said he still had the letter then said he doesn’t have it with him; that he got drunk the night before the hearing and ripped up papers and might have ripped up the letter.
The applicant claims he has never been to mosque in Australia; never prays; doesn’t observe Ramadan; has casual relationships with girls when he can but doesn’t have a regular girlfriend; and drinks alcohol. He said that since his protection visa was rejected, he drinks until he collapses. He drinks because he fears returning to Pakistan. All his money goes on drinking and gambling. He claims he was drunk the night before the hearing. The delegate noted he had been drinking at the primary interview.
When asked what he believes, the applicant said he does not follow any religion. His religion is to have a good time, to be good to people, to party, to be free and to have girlfriends. The applicant has a beard which he said is just fashion and girls like it. He has no religion. He respects other people’s religious beliefs but they can’t convince him. If people talk to him about Islam, he will be the first to argue or walk away. God was introduced to him through Islam and when he rejected Islam, he decided there is no God. His mother and father died of [a medical condition], his sister [had issues], and he was rejected by the Army. He decided there is no God and people just have to work hard and do it themselves. He hasn’t explored other religions. Islam is the worst religion to be born into as it doesn’t allow people to be free or to express views openly and it discriminates between the poor and rich: the rich have to give alms to the poor thereby showing the poor they are better. Islam teaches jihad, it treats women poorly in terms of dowry, inheritance and clothing. The exaggeration of the Prophet’s powers is not scientifically possible. The Haj, the biggest Islamic religious event, is commercialised by Saudi Arabia so the poor can’t afford to go. He thinks parts of Islam are a joke but he can’t express his views in Pakistan. He thinks Islam is a series of funny stories which are not respectable. If his family or others try to impose Islam on him he will tell them that Islam is wrong.
The applicant told the Tribunal he never publically criticised Islam in Pakistan but does in Australia when he talks to people he meets and drinks with. He puts Islam down. He tells Christians Islam is a crazy religion and that he believes Islam was forced on him.
The Tribunal noted that no one forced him to go to mosque or to pray in Pakistan. The applicant said people will talk about why is he not praying or going to mosque for special occasions. He can’t live a double life. He wants a single life and don’t want to be associated with Pakistan. The Tribunal noted that apostasy is not a crime in Pakistan. The Tribunal also noted that alcohol is widely drunk by Muslims in Pakistan. The applicant agreed but noted it is illegal and people do get caught and punished. People have to bribe courts and judges and some go to jail.
The applicant sent an email to the Tribunal the day before the hearing which he appears to have copied to the email address of [a government agency], Punjab, except the email address is not quite correct.[1] In the email, he states he is committing blasphemy, that everything written in the Quran is wrong and untrue, that there is no Allah or maybe 100 Allahs and that the Prophet Mohammad is not a prophet at all. The Tribunal discussed the operation of s.91R of the Act with the applicant who stated he wrote the email as a last resort to convince the Tribunal he is not a Muslim.
[1] The email address of the [government agency] is [deleted]. The email address on the applicant’s email is [deleted].
The applicant claims he will be arrested and prosecuted for blasphemy if he returns to Pakistan because of the email. When asked if he would send such an email to police if he was in Pakistan, the applicant said he will commit suicide if he has to return. He said he plans to send more emails to different authorities and hopes he will be killed by the authorities as he doesn’t want to live in Pakistan.
Put blasphemy charges limited and often arise in context of personal disputes and communal violence and target religious minorities. He referred to the Governor who was charged with blasphemy. If you do something illegal, you are a criminal and you can be charged. Still blasphemy charges, Mullahs trying to impose power, women being killed, terrorists trying to bring down the society – these things still exist. There is a dark side in Pakistan. Public talking law in their own hands – eg honour killings – not being well recorded.
Findings
Having considered all of the applicant’s evidence, the Tribunal accepts the applicant has rejected Islam and no longer believes in God. The Tribunal notes that atheism is a growing trend in Pakistan, possibly in response to the ongoing militancy, and the majority of atheists are young and well-educated and predominantly from urban areas. [2] Country information indicates however that young atheists are reluctant to reveal their atheism for fear of being ostracised, of being charged with blasphemy and of being identified and harmed by extremists.[3] A 2014 report indicates that persons expressing atheist views in Pakistan have been threatened, forced to flee and killed.[4]
[2] Hussain, G 2012, ‘The rise of atheism in Pakistan’, The Commentator, 9 January October
[3] Sohail, M 2014, ‘Young Pakistanis Are Asking: If There Can Be Secular Jews, Why Not Atheist Muslims?’, Tablet, 10 March; Shahid, H 2014, ‘Pakistan’s Big Secret: Atheists and Agnostics’, Literaty Pakistan, 20 February
[4] Sohail, M 2014, ‘Young Pakistanis Are Asking: If There Can Be Secular Jews, Why Not Atheist Muslims?’, Tablet, 10 March;
The Tribunal accepts the applicant holds anti-Islamic views and that he regularly publically expresses these views in Australia. The Tribunal accepts he holds strong views which are critical of Islam and that he may express these views if he is challenged about his religious beliefs and practices by his family, the authorities or anyone else in Pakistan.
The Tribunal gives the applicant the benefit of the doubt and accepts the email he sent to the Tribunal was to convey his genuinely held views and to demonstrate how far he would go in expressing his views rather than an attempt to create a sur place claim. The Tribunal notes the email does not appear to have reached the Punjab Police in any event.
The Tribunal notes the applicant appears to have somewhat fragile mental health which may be impacting on his lifestyle and which may also lead him to be more recklessly outspoken in Pakistan.
The Tribunal accepts the applicant had a falling out with his father over his views and behaviour and that he may have been alienated from his sisters for the same reasons. The Tribunal accepts the applicant may have been arrested for drinking alcohol in 2006-07. Despite some small inconsistencies in his evidence to the delegate he has provided a reasonably detailed and plausible account of the incident and of the ensuing court case.

The Tribunal does not accept the applicant will face harm from his family because he has rejected Islam. His father is deceased so any fears he held in relation to his father are no longer relevant. His [siblings] are educated [and] the Tribunal does not accept they will cause him harm but does accept they may disown him or reject him or fail to protect him from harm from other sources.
The Tribunal notes that the consumption of alcohol and sex outside marriage are Hudood offences in Pakistan under the Hudood Ordinances introduced in 1979. The Tribunal accepts the applicant drinks alcohol, eats pork, does not fast during Ramadan and engages in sex outside of marriage and that these behaviours, as well as being Hudood offences may be perceived as an insult to Islam.
The Tribunal notes that blasphemy is an offence under Pakistan’s Penal Code and that the punishment for insulting Islam extends to death or life imprisonment. As at January 2016, there were 38 people on death row for allegedly committing blasphemy although no executions had been carried out. Although blasphemy laws are often used to settle personal scores and are most often used against members of religious minorities,[5] they have reportedly fostered an atmosphere of religious intolerance and have fuelled violence and targeted attacks against members of religious minorities. Individuals accused of blasphemy have reportedly been subject to death threats, assaults and assassination by community members and others have been killed or tortured in custody. Hard line groups have opposed reform of the blasphemy laws and high profile activists and politicians have been killed for their opposition to the laws. [6] The US State Department has reported on ongoing arrests, charges and convictions under the blasphemy law[7] and the USCIRF has reported that violent extremists threaten citizens who do not follow their authoritarian interpretation of Islam or who dissent from Islam.[8]
[5] DFAT, 2016, DFAT Country Information Report Pakistan, 16 January
[6] UNHCR, 2017, UNHCR Guidelines for Assessing the International Protection Needs of Members of Religious Minorities from Pakistan, January
[7] US Department of State, 2016, Pakistan 2015 International Religious Freedom Report
[8] US Commission on International Religious Freedom, 2014, Annual Report Pakistan, 30 April
The UNHCR has noted that the death penalty for blasphemy has been deemed to be disproportionate punishment which may amount to persecution. Police, lawyers and judges often demonstrate bias against persons accused of blasphemy thus infringing on the right to a fair trial. The blasphemy provisions are themselves open to interpretation and therefore allow judges to apply their own interpretation in accordance with their own Islamic beliefs. Lawyers and judges involved in blasphemy cases have themselves been threatened and intimidated making it difficult for those accused to obtain legal representation or limiting the arguments lawyers will make in their defence.
The Tribunal accepts the applicant faces a more than remote chance of harm from extremist members of the community and possibly the authorities or if he openly commits Hudood offences or refuses to comply with religious practices and publically expresses his views about Islam. The Tribunal is therefore satisfied the applicant faces a real chance of serious harm in Pakistan because of his religion. Under Australian law, this Convention ground extends to non-belief with the Federal Court noting that “the Convention protects people in relation to the subject matter of religious belief. It does not protect believers and leave non-believers to the wolves”.[9] The Tribunal is satisfied that such harm involves systematic and discriminatory conduct and that the essential and significant reason for the harm is the applicant’s religious belief and his expression of his religious belief.
[9] Prakash v MIMA [2001] FCA 57
The Tribunal is satisfied the applicant will not be able to access adequate state protection. Whilst the government has taken steps to crack down on extremism, and has been known to arrest blasphemy perpetrators to protect them from mob violence, their capacity to protect the applicant is limited by resource shortages, poor training and manipulation by superiors, politicians and the judiciary. Even when arrests occur, successful prosecutions of perpetrators of religious violence are rare because of inadequate police investigations and intimidation of judges and witnesses. [10] USCIRF has also reported that the police have failed to protect victims of religiously motivated violence.
[10] DFAT, 2016, DFAT Country Information Report Pakistan, 16 January
The Tribunal is satisfied that the chance of harm exists across Pakistan and that internal relocation is not available to the applicant.
CONCLUSION
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
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Rea Hearn Mackinnon
Member