1512101 (Refugee)

Case •

[2019] AATA 4541

•

15 October 2019

1512101 (Refugee) [2019] AATA 4541 (15 October 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  1512101

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:  Frances Simmons

DATE:  15 October 2019

PLACE OF DECISION:  Sydney

DECISION:  The Tribunal remits the matter for reconsideration

with the direction that the applicants satisfy s.36(2)(a) of the Migration Act.

STATEMENT MADE ON 15 OCTOBER 2019 AT 6:55PM

CATCHWORDS

REFUGEE – protection visa – Pakistan – religion – minority Christians in Muslim-majority country – attacks and threats by extremist groups – credibility – inconsistent evidence – voluntary travel to home country – work and travel in other countries without applying for protection – delay in applying for protection – country information – fear well founded – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 36, 65, 91R

Migration Regulations 1994 (Cth), Schedule 2

CASES

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379

Kopalapillai v MIMA (1998) 86 FCR 547

MIMA v Rajalingam (1999) 93 FCR 220

MIMA v Respondents S152/2003 (2004) 222 CLR 1

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559

MZAFZ v MIBP [2016] FCA 1081

Randhawa v MILGEA (1994) 52 FCR 437

Selvadurai v MIEA & Anor (1994) 34 ALD 347

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

In accordance with s.431 of the Migration Act 1958, the Tribunal will not publish any statement which may identify the applicant or any relative or dependant of the applicant.

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 and Border Protection to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act). The applicants are citizens of Pakistan. The applicants are a family and they applied for the visas on 15 December 2014.

  2. The applicants are Christians and they claim to have been persecuted by Muslim extremists and fundamentalist groups because of their faith in Pakistan and because of their membership of a family that have been targeted by extremists for reasons related to their religion. For the reasons that follow, the Tribunal has concluded that the matter should be remitted to Department for reconsideration.

    RELEVANT LAW

  3. 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.

  4. 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).

  5. 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.

  6. 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’).

  7. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of 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.

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CONSIDERATION OF CLAIMS AND EVIDENCE
Background

  1. The applicants are citizens of Pakistan. The first and second named applicants are husband and wife and the third, fourth and fifth named applicants are their children, all of whom are now teenagers. The first named applicant, Mr [A], and the second named applicant, [Ms B] married in November 1999. The third named applicant was born in Pakistan on [date]. The fourth named applicant was born in Pakistan on [date]. The fifth named applicant was born in Pakistan on [date].

  2. Mr [A] arrived in [Country 1] in July 2006 holding a working visa. In February 2017 the second, third , fourth and fifth named applicants moved to [Country 1]. On 24 February 2011 he was issued with a [Country 1] multiple entry employment pass that was valid until 23 February 2013. On 18 January 2012 Mr [A] travelled to [Country 2] on a multiple entry tourist visa and returned to [Country 1]. On 5 February 2013 Mr [A] was issued with a [Country 1] Multiple entry visa (employment pass) valid until 1 February 2015.

  3. On 23 November 2013 the applicants travelled to Australia as a family holding tourist visas. On 7 January 2014 the applicants departed Australia and returned to [Country 1]. In September 2014 Mr [A] left [Country 1] and travelled to [Country 2] before returning to [Country 1] the same month. [In] November 2014 the applicants returned to Australia holding visitor visas and on 15 December 2014 the applicants lodged protection visa application

    Summary of claims

  4. The applicant’s claims can be summarised as follows.

    ·Mr [A] was born into a protestant family but switched to Catholicism when he married his wife [Ms B]. Mr [A]’s father,[Mr ZA], was [an official] at [Church] in Rawalpindi. Mr [ZA] was targeted by Muslim extremists because they believed he was converting Muslims to Christianity. In 1998 Mr [ZA] sought asylum in [Country 2]. He was granted protection based on his claims of religious persecution.

    ·In 1999 a group of Muslim extremists came to the applicant’s family home in Rawalpindi and enquired about his father’s whereabouts. A fight broke out between these men, Mr [A] and Mr [A]’s brother. He was injured during this incident and sought medical assistance at [Hospital] in Sadar, Rawalpindi. He attended the police station in [Suburb 1] Rawalpindi but the police refused to help him suggesting he settle the matter the personally.

    ·The applicant moved his family to another location (near [Location]) on the advice of his father). Nine months later the applicant moved the family back to [Village] because the landlord would not rent the house out to them due to their religion. In 2000, five men came to Mr [A]’s house in [Village], Rawalpindi and told his family they had to convert to Islam or leave. These threats worried him and he lost his job because he could not concentrate on his work. Mr [A] stopped attending church in Rawalpindi because of safety concerns.

    ·In April 2001 he moved into a relative’s house because he was afraid of threats of forced conversion. Then they lived in Jhelum for one year and none months. The family moved again to another house in Sargodha for one year and six months. In October 2005 the applicant and his family moved back to Rawalpindi.

    Case Number 1512101  Page 3 of 19

.Two months after Mr [A]’s return to Rawalpindi his brother, [Mr YA], disappeared. The applicant and his family did not report [Mr YA] as missing to the police.

.Two days following the disappearance of his brother, the applicant’s wife, [Ms B], received a phone call threatening the family with conversion to Islam. She was told not to go to the police and threatened that the family home would be burned or the general Muslim community would be informed that they had offended the prophet Mohammad and the Holy Quran. These threatening phone calls continued and demands were made that the family convert to Islam.

.In July 2006 Mr [A] left his wife and children with his in-laws in Pakistan and travelled to [Country 1] for employment. His eldest son stopped going to school as he was scared he might be kidnapped. The threatening calls to his wife in Pakistan continued. In December 2006 his wife was approached by Muslim extremists in in [Suburb 2] in Rawalpindi. She was questioned her about the location of Mr [A] and threatened her, saying that she must convert to Islam or they would kidnap her daughter.

.In February 2007 the second, third, fourth and fifth named applicants moved to [Country 1]. The applicant’s in-laws and elder sister in Pakistan continued to receive threats. The family home in [Village] was robbed. In 2008 the applicant’s request for a tourist visa to travel to [Country 2] was refused. In January 2012 the applicant visited his family in [Country 2] after being granted a visa on his second application.

.In December 2012, six years after [Mr YA]’s disappearance, the applicant received a call from his brother’s friend [Mr C], in [City] Pakistan, saying that he had seen [Mr YA]. On 21 December 2012 the applicant and his family returned to Pakistan to search for [Mr YA]. His wife demanded she accompany him, despite the known risks of returning to Pakistan. Mr [A] did not find his brother. The family departed Pakistan in January 2013.

.[Ms B] received threatening calls in [Country 1] from Pakistan warning that [Country 1] is not far from Pakistan and that they could still reach the family.

.In September 2014 Mr [A] returned to [Country 2] to attend his mother’s funeral. He did not apply for protection in [Country 2] because his family were not with him and he did not want to be in the same situation as his father who fled Pakistan to apply for protection in [Country 2].

.[Ms B] was driving in [Country 1] one night and her car was rammed. They do not know who was responsible for this but think the incident is connected to the threats made against them.

.The family travelled to Australia in 2013 to visit his [sibling] who was a temporary resident. He did not apply for protection in Australia at that time as his [sibling]’s [child] was sick and he was worried it might affect his [sibling]’s case for residency.

.If he returns to Pakistan he and his family may be killed by Muslim extremists and their [child] might be kidnapped. The Pakistani government is unable to protect him and his family from Muslim extremists as they were unable to do in the past.

  1. The adult applicants attended a protection visa interview with the delegate. Mr [A] gave evidence in English, a language in which he is fluent. Mr [A] claimed that he is easily recognised as the son of [Mr ZA], a church [official] in [Village] in Rawalpindi. He claimed that his brother, [YA], was kidnapped by Muslim extremists [in December]

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2005. He believes the kidnappers might have killed his brother or that his brother may have converted to Islam.

  1. The applicant and his family landed in Karachi [in] December 2012 and then drove to [City] to search for his brother [Mr A]. While searching for his brother in Pakistan, [Ms B] and children remained in a friend’s house in a village called [City]. His wife and children lived in the school premises and didn’t leave the house during this period. The family departed [City] on 4 January 2013 and went to [Village] in Rawalpindi to visit family members. The family remain in Rawalpindi for 8 days and then left Pakistan from Karachi airport.

  2. Mr [A] claims that he left [Country 1] because of threatening phone calls. He claims that only his wife received threatening phone calls in [Country 1]; he never personally received any phone threats. There were several occasions where the call ended after he picked up. He enquired about the possibility of a working visa in Australia but the agent demanded $AU[amount]. [Company] [Country 1] sent him an offer for work commencing [in] January 2015. He did not take this offer and instead travelled to Australia. Mr [A] told the delegate that he believes that his family is being threatened because Muslim extremists think his father has converted many people from Islam to Christianity and they want to convert his family to Islam so that they, the Muslim extremists, will go to heaven.

  3. After the delegate’s interview, the applicant’s representative submitted that the applicant should be assessed as a member of a particular social group, being ‘the member of family unit targeted by Muslim extremists because of his religion’, referred to country information about attacks on churches in Pakistan, and argued that ‘even in Christian enclaves Mr [A] and his family will be harmed’.

  4. The delegate accepted the applicant is a practising Christian and a membership of a particular social group which the delegate identified as ‘family member of [Mr ZA]’. The delegate accepted that the applicant’s father, [Mr ZA], faced harassment by unknown people and successfully sought asylum in [Country 2]. The delegate accepted that the applicant’s family own property in [Village], Rawalpindi. The delegate found that the applicant encountered low level harassment/discrimination in [Village] from unknown people and moved to several locations outside of [Village] where he did not receive threats based on his religion or relationship to his father. The delegate was not satisfied that the applicant’s claims about the disappearance of his brother were credible.

    Evidence before the Tribunal

  5. The Tribunal has considered all the evidence on the Departmental files and the Tribunal file.

  6. A certificate purportedly issued pursuant to s 438(1)(a) of the Act has been placed on folios 223-227 and 262-263 of the Departmental file restricting the disclosure of the information contained therein on the grounds that its disclosure would be contrary to the public interest because as the relevant folios contain ‘information relating to an internal working document and business affairs’. Following the reasoning in MZAFZ v MIBP1, the Tribunal finds that s. 438 certificate is invalid and that the information that was the subject of the invalid certificate was not relevant to the issue of whether they were owed protection obligations.

    1 MZAFZ v MIBP [2016] FCA 1081 (Beach J, 7 September 2016) at [37] (finding that the Tribunal had erred in treating a non-disclosure certificate as valid where the reason given for restricting disclosure was that the relevant folios contained information ‘relating to an internal working document and business affairs’ as this had never been a sufficient basis for public interest immunity whether at common law or under statute and did not identify the harm that could be done to an agency if the information was disclosed); see also BXD15 v MIBP [2017] FCA 1209 (Flick J, 12 October 2017) at [46]-[48].

    Case Number 1512101  Page 5 of 19

  1. The additional evidence before the Tribunal includes a statutory declaration from Mr [A] dated 15 June 2018. This declaration reiterates the claims that Mr [A] made before the Department, responds to concerns expressed by the delegate, and states that the situation for Christians in Pakistan and other religious minorities is worsening. Mr [A] also states that his three children have not lived in Pakistan since 2007 and the two youngest children do not speak Urdu. His children are now very westernised in their dress, behavior and have distinctive accents. Mr [A] fears that should they have to return to Pakistan and that his children could be kidnapped or targeted and killed. 2

  2. The Tribunal has also considered a statement from Mr [ZA], father of the first named applicant, and a statement from Ms [D], sister of the first named applicant. These statements provide a detailed account of the circumstances in which Mr [ZA] and Ms [D] fled Pakistan and sought asylum in [Country 2] in the late 1990s. Mr [ZA] and Ms [D] also state that [Mr YA] has been missing for many years and that they believe Christians in Pakistan are persecuted. The Tribunal has also considered a letter of support from Father [E], Parish Priest of [Parish], dated 22 May 2018; and submissions from the migration agent, dated 22 June 2018.

  3. The Tribunal has also considered various documents that were submitted by Mr [ZA] Gill and [Ms D] to the authorities in [Country 2] with their application for asylum in 1998 and notes that these documents state that the ‘entire family’ received death threats. The Tribunal has also considered a translation of a handwritten letter from the first named applicant to the Police Station Rawalpindi, dated [December] 2005, reporting his brother [Mr YA] missing; an unaccredited translation of a) missing person newspaper advertisement on the [Newspaper], dated [the next day] stating that [Mr YA] was missing ‘since yesterday evening’ and a hospital record of Mr [A], dated 10 December 1999.

  4. The applicants appeared before the Tribunal on 23 July 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages. The Tribunal has recently reviewed the audio recording of the hearing and regrets the delay in finalising in this matter. The applicants were represented in relation to the review by their registered migration agent. After the hearing the Tribunal received written submissions from the second named applicant, Ms [B], dated 23 July 2019 stating she is afraid her children will be killed or kidnapped if they return to Pakistan. The Tribunal also received a letter of support from the first named applicant’s sister, [Ms F], dated 24 July 2018, which states that the extremists who targeted their father is still active and that the applicant and his children might be targeted. She also states it is hard for her daughters to attend school as some boys are abusive towards them and claims she has been harassed by extremists and on one occasion her bag was stolen and she was injured.

    Country information

  5. The Tribunal has considered the most recent country information concerning the situation of Christians in Pakistan.

  6. An estimated 2.6 per cent of the population in Pakistan are Christian, while the vast majority are Muslim (97.4 per cent). In February 2019 DFAT assessed that Christians in Pakistan face a moderate risk of societal discrimination, societal violence and sectarian violence and a low risk of official discrimination. DFAT reported that:

    In 2018, Christian support group, Open Doors, ranked Pakistan fifth (out of fifty) most difficult country to be a Christian on its World Watch List. Many Pakistanis refer to Christians as ‘bhangi’ meaning dirty or sweepers. In 2018, politician Arif Abbasi reportedly referred to Christians as ‘churna’ in a National Assembly debate (meaning low-caste, but also with

    2 Tribunal file, f.70-71

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connotations of cleaning/sanitation work). Some advertisements for low-status work ask for Christian applicants only. Many Christians are bonded labourers with little education and thus limited access to legal remedies. Christians are also disproportionately represented in blasphemy cases.

  1. The 2017 UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities from Pakistan indicates that asylum claims made by Pakistani nationals who are members of religious minorities require particularly careful examination of the possible risks. UNHCR assesses that, depending on the individual circumstances of the case,

    ...members of the Christian community, including in particular those targeted by militant groups or charged with criminal offences under the blasphemy provisions, victims of bonded labour, severe discrimination, forced conversion and forced marriage, as well as Christians perceived as contravening social mores, may, depending on individual circumstances be in need of international refugee protection .3

  2. Although there are many churches in Pakistan and Christians are generally able to practice their religion without official interference or discrimination, in recent years there has been a trend towards intolerance and violence from non-state actors and Christians have been targeted in sectarian attacks against churches.4 According to DFAT:

    Militant groups target Christian individuals, churches, residences or other places where Christians congregate. A suicide bomber attacked a park in Lahore on Easter Sunday in 2016, killing 74 people—including many women and children. Jamaatul Ahrar claimed responsibility for the attack, and said it deliberately targeted Christians. 5

  3. In June 2018, unknown assailants shot dead a Christian couple in Mardan, Khyber Pakhtunkhwa.6 On 15 April 2018, Islamic State (IS) claimed responsibility for an attack that killed two Christians and injured five others after they were shot at while leaving a church service in Quetta’s predominately-Christian neighbourhood of Esra Nagri.7 On 2 April 2018, four members of a Christian family were shot and killed while travelling in a rickshaw near a church in Quetta’s Shah Zaman road area.8 IS claimed responsibility.9 Nine people were killed and nearly 60 injured in a suicide bombing in a church in Quetta in the lead up to Christmas 2017.10 In August 2017, a Christian student was lynched by a Muslim classmate at a school in Vehari district, Punjab after he drank water from the same glass as him.11

    3 UN High Commissioner for Refugees (UNHCR), UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities from Pakistan, January 2017, HCR/EG/PAK/17/01.

    4 ‘Country Policy and Information Note Pakistan: Christians and Christian converts’, UK Home Office, 01 September 2018, p.41, OG9EF767941; UN High Commissioner for Refugees (UNHCR), UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities from Pakistan, January 2017, HCR/EG/PAK/17/01.

    5 'DFAT Country Information Report: Pakistan', Department of Foreign Affairs and Trade, 19 February 2019, p.42

    6 ‘Police Find Bullet-Riddled Bodies Of Christian Couple In Mardan’, Tribal News Network, 06 June 2018, CXBB8A1DA28888

    7 ‘At least 2 dead, 5 injured in attack on Christian community near church in Quetta’, Dawn, 15 April 2018, CXBB8A1DA25582; ‘Pakistani Christians Killed In Drive-By Shooting’, Radio Free Europe / Radio Liberty,16 April 2018, CXBB8A1DA26106

    8 ‘4 Christians among 7 killed in separate firing incidents in Quetta’, Dawn, 2 April 2018, CXBB8A1DA24717; ‘Four Christians killed in Quetta terror attack’, Pakistan Today, 02 April 2018, CXBB8A1DA28997

    9 ‘Four Christians killed in Quetta terror attack’, Pakistan Today, 02 April 2018, CXBB8A1DA28997; ‘Islamic State claims attack on Christian family in Pakistan’, Reuters, 3 April 2018, CXBB8A1DA26517

    10 'Pakistan church attack: Twin suicide bombers kill nine with explosives and guns', ABC News, Reuters, Associated Press, 18 December 2017, CXC90406619495; ‘International Religious Freedom Report for 2017 – Pakistan’, US Department of State, 29 May 2018, p.25, OGD95BE927601

    11 ‘State of Human Rights in 2017’, Human Rights Commission of Pakistan, 16 April 2018, p.89, CIS7B83941935; ‘Christian teenager beaten to death by classmates in Pakistan’, UK Independent, 8 September 2017, CXC90406621007

    Case Number 1512101  Page 7 of 19

  1. Most Christians reside in Punjab province, especially in big urban centres like Lahore, Rawalpindi and Faisalabad.12 According to DFAT, Christians tend to live in concentrated areas or an enclave, which mitigates their risk of societal discrimination but increases their vulnerability to violence. 13 Christians in Pakistan have traditionally been part of an underprivileged class, partly because of employment and education discrimination, and, as noted above, tend to live in isolated communities.14 The Tribunal has considered reports of tensions between Christian and Muslim residents of Rawalpindi’s old town neighbourhood15 as well as reports of that Christian sanitary workers were murdered in Rawalpindi (although the report indicates the officers investigating the murders stated they were not religiously motivated16) as well as the use of blasphemy laws against religious minorities in Punjab province, including in Rawalpindi.

  2. Blasphemy and other offences relating to religion are criminalised in Pakistan under the Pakistan Penal Code (Act XLV of 1860). Article 295C outlaws the use of ‘derogatory remarks’ against the Holy Prophet. Punishment for blasphemy is death. Under Article 295B, ‘defiling’ a copy of the Quran is punishable by life imprisonment, and under Article 298A, defiling ‘the sacred name of any wife, or members of the family, of the Holy Prophet, or any of the righteous Caliphs’ carries a maximum punishment of three years in prison, which may also be accompanied by a fine.

  3. The UNCHR reports that criminal provisions, particularly the blasphemy laws, are reportedly used by militant organizations and members of some Muslim communities to intimidate and harass Christians, and also to exact revenge or to settle personal or business disputes.17

  4. The most notorious case of blasphemy is that of a Christian woman, Ms Aasia Bibi, who was convicted of blasphemy and sentenced to death in 2010 following a dispute with her Muslim neighbours. In October 2014, the Lahore High Court upheld Ms Bibi’s death sentence, however in October 2018, after Ms Bib had spent eight years on death row, the Supreme Court of Pakistan acquitted Ms Bibi and she later fled to Canada where she was granted asylum. Before she was acquitted her family were in hiding and her acquittal prompted violent protests by anti-blasphemy extremists including in Islamabad/Rawalpindi calling for her to be put to death and her lawyer was forced to flee Pakistan for his own safety.18 Islamabad and parts of Punjab were effectively shut down as anti-blasphemy protesters blocked main arterial routes leading into the city. A hard-line cleric organised the three weeks of blockades and riots in November 2017.19

  5. While the majority of blasphemy cases are brought by Muslims against Muslims, DFAT assesses implementation of laws against blasphemy, and the potential for communal violence following an accusation of blasphemy disproportionately affect religious minorities,

    12 ‘Freedom of Faith in Pakistan: Contextualizing Programmatic and Policy Orientation’, Pak Institute for Peace Studies, p.20, 2 August 2018, CIS7B839418866; ‘Country Policy and Information Note Pakistan: Christians and Christian converts’, UK Home Office, 01 September 2018, p.40, OG9EF767941

    13 'DFAT Country Information Report: Pakistan', DFAT, 19 February 2019, p.42

    14 'European Asylum Support Office Pakistan Conference', Cyril Almedia, Assistant Editor of Dawn, 16 – 17 October 2017, p.45, CIS7B83941393, 'Black hole in Rising Sun?', The Friday Times, 2 June 2017, CXC9040668557; ‘Freedom of Faith in Pakistan: Contextualizing Programmatic and Policy Orientation’, Pak Institute for Peace Studies, p.28, 2 August 2018, CIS7B839418866; ‘World Directory of Minorities and Indigenous Peoples - Pakistan : Christians’, Minority Rights Group International (MRG), 01 June 2018, CXBB8A1DA35838

    15 ‘Rawalpindi: Tension arises between Christians, Muslims in New Town neighborhood’, Christians in Pakistan, 3 October 2017, CXC90406621065

    16 ‘Sanitary workers murder: Christians were not the only targets intelligence agency claims’, Christians in Pakistan, 8 September 2017, CXC90406621066

    17 UN High Commissioner for Refugees (UNHCR), UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities from Pakistan, January 2017, HCR/EG/PAK/17/01.

    18 BBC News, Asia Bibi: Pakistan’s notorious blasphemy case, 19 February 2019.

    19 Pakistani law minister quits after weeks of anti-blasphemy protests, The Guardian, 27 November 2017, CXC90406618955.

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including Christians. The 2019 United States Commission on International Religious

Freedom (USCIRF) Annual Report notes that during the reporting period, ‘there were dozens of reports of arrests and charges for blasphemy, especially in Punjab Province where many religious minorities reside and the majority of blasphemy cases occur’. According to the USCIRF:

... the arrests and charges occurred in an atmosphere of societal harassment or violence. For example, in February 2018, two teenage Christians were arrested in Lahore after one of them posted an allegedly “sacrilegious photo” to a Facebook group. During the interrogation with police, one of the arrested teenagers jumped from a window in order to evade torture by the interrogators. Subsequently, religious extremist groups carried out violent protests in the teenagers’ predominantly Christian neighborhood, threatening to burn down the entire area and its inhabitants. Nearly 800 Christians living in the area fled for fear of attacks, and the families of the accused have fled the area for the same reason. In another instance, a Hindu teenager in Sindh was charged with blasphemy after he shared allegedly “controversial” images relating to Muslims on Facebook.20

  1. Even where the allegations of blasphemy do not result in blasphemy charges, those individuals who are accused of blasphemy may be at risk of vigilante and mob attacks. For instance, in April 2017, a mob attack against a man at Friday prayers saw six police officers injured after they refused the mob access to the alleged blasphemer.21 A 10-year-old boy was killed in an attempted blasphemy-motivated lynching of a Hindu man in May 2017.22 In relation to communal violence following blasphemy accusations, DFAT reports:

    In November 2014, a mob burned a Christian couple to death in the brick kiln where they worked as bonded labourers after they were falsely accused of throwing out pages of the Quran with their household rubbish. In November 2016, a military anti-terror court sentenced five people to death for their murder. In July 2014, an angry mob burnt several houses and vehicles in Gujranwala, eastern Punjab, killing an Ahmadi woman and two young girls, and injuring eight others. An allegedly blasphemous social media post by an Ahmadi reportedly triggered the incident. In April 2017, hundreds of university students beat and fatally shot a journalism student at a university campus in Mardan, allegedly for blasphemous social media posts. Observers note the student had criticised the university administration and actively participated in open debates. A judicial inquiry found no evidence of blasphemy. 23

  2. The evidence before the Tribunal indicates that blasphemy charges and accusations are increasingly raised in the context of digital content, with at least one person in 2017 receiving a death sentence for alleged blasphemy on Facebook. 24 In its 2071-2018 annual report Amnesty International reported that ‘attacks on freedom of expression continued, particularly against those posting comments online’. Eight hundred Christians in the town of Shahdara, Punjab were driven out by angry mobs after a teenage boy was accused of spreading blasphemous content on social media in February 2018.25 In May 2017, a Christian man from Rawalpindi was sentenced to life in prison for allegedly sending blasphemous text messages.26 Bhatti has been imprisoned since 2012 when he was arrested and charged with

    20 United States Commission on International Religious Freedom Annual Report 2019, United States Commission on International Religious Freedom (USCIRF), 29 April 2019, 20190508143726

    21 'Mob attack over blasphemy claim in Pakistan's Chitral', Aljazeera, 22 April 2017, CXC9040667019

    22 Boy, 10, killed in attempted blasphemy lynching in Pakistan, The Guardian, 5 May 2017, CXC9040666960; see also reports that a Christian student was lynched in August 2017: ‘State of Human Rights in 2017’, Human Rights Commission of Pakistan, 16 April 2018, p.89, CIS7B83941935; ‘Christian teenager beaten to death by classmates in Pakistan’, UK Independent, 8 September 2017, CXC90406621007

    23 'DFAT Country Information Report: Pakistan', DFAT, 19 February 2019, p.34-35.

    24 'DFAT Country Information Report: Pakistan', DFAT, 19 February 2019, p.34-35.

    25 'FIR for blasphemy registered against Christian teenager in Shahdara', Express Tribune (Pakistan), 20 February 2018, CXBB8A1DA22592

    26 ‘International Religious Freedom Report for 2017 – Pakistan’, US Department of State, 29 May 2018, p.12,

    OGD95BE927601; “Travesty of Justice’: Blasphemy accused Christian sentenced to lifelong incarceration’, Christians in Pakistan, 5 May 2017, CXC90406621068

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sending blasphemous text messages in Rawalpindi.27 A Christian man was sentenced to death in September 2017 after allegedly insulting the prophet Mohammed on mobile phone app, ‘WhatsApp’.28

  1. With respect to the situation of Christian women and children, the UNHCR Guidelines report:

    Amongst the most marginalized sections of society, Christian women and girls are reportedly particularly at risk of sexual and gender-based violence, forced conversion to Islam and forced marriage to Muslim men, as well as other forms of discrimination and violence.302 It is reportedly difficult to estimate the prevalence of forced

    conversions and forced marriage due to a lack of reporting and monitoring of these cases; estimates range from 100 to 700 Christian girls being subjected to forced conversion and/or marriage each year in Pakistan;303 while Christian men may reportedly also be victims of forced conversion.29

  2. DFAT assesses that Pakistanis do not face a ‘significant risk of societal violence or discrimination as a result of their attempt to migrate, or because of having lived in a western country.’30 However, the Tribunal notes reports that Christians are often pejoratively labelled as ‘working for’ (being associated with) western countries.31

    ASSESSMENT OF CLAIMS AND EVIDENCE
    Nationality

  3. The applicants arrived in Australia on passports issued to them in Pakistan by the Pakistani government. There are copies of their Pakistani passport biodata pages on the Departmental file and the birth certificates of the children.32 The delegate had no concerns about their claimed nationality and identities. The Tribunal accepts the applicants are citizens of Pakistan and their identities and relationships with each other are as claimed. The Tribunal finds that the applicants do not presently have an existing right to enter and reside in any other country.

    Findings and reasons

  4. In determining whether the applicants are entitled to protection in Australia, it is necessary to make findings of fact on relevant matters. In assessing the credibility of the applicants’ claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims33 and it has had regard to the Tribunal’s guidelines on the assessment of credibility in protection visa matters. If the Tribunal makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true.34 However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not

    27 “Travesty of Justice’: Blasphemy accused Christian sentenced to lifelong incarceration’, Christians in Pakistan, 5 May 2017, CXC90406621068

    28 'Pakistan man sentenced to death for ridiculing Prophet Muhammad on WhatsApp' The Guardian,16 September 2017, CXC90406615025; ‘International Religious Freedom Report for 2017 – Pakistan’, US Department of State, 29 May 2018, p.11, OGD95BE927601

    29 UN High Commissioner for Refugees (UNHCR), UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities from Pakistan, January 2017, HCR/EG/PAK/17/01.

    30 'DFAT Country Information Report: Pakistan', DFAT, 19 February 2019, p.34-35.

    31 ‘Freedom of Faith in Pakistan: Contextualizing Programmatic and Policy Orientation’, Pak Institute for Peace

    Studies, p.8, p.20 & p.24, 2 August 2018, CIS7B839418866; ‘World Directory of Minorities and Indigenous Peoples - Pakistan : Christians’, Minority Rights Group International (MRG), 01 June 2018, CXBB8A1DA35838

    32 Departmental file, f.32-35 (birth certificates for the third, fourth and fifth named applicant)

    33 The United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at [196].

    34 MIMA v Rajalingam (1999) 93 FCR 220.

Case Number 1512101  Page 10 of 19

required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.35

  1. The Tribunal has concerns that Mr [A] and [Ms B] have exaggerated and embellished aspects of their evidence. However, in light of the Tribunal’s findings about the applicants’ religious identity as practising Catholics, what it has accepted of their past experiences and the experiences of Mr [A]’s family members, their extended period of residence outside of Pakistan in [Country 1] and then Australia, and the country information about the risks facing Christians in Pakistan, the Tribunal’s concerns that the applicants have embellished some aspects of their claims are not fatal to their application for review. This is because in the particular circumstances of the applicants and having regard to country information about the risks facing Christians in Pakistan, the Tribunal is unable to make a confident finding that the chance of the applicants suffering serious harm for reasons related to their religious beliefs and profile is remote or far-fetched, or that it is based on mere speculation. Therefore, for the reasons that follow, the Tribunal has concluded that there is a real chance the applicants would face persecution in the reasonably foreseeable future.

    The religious identity and practice of the applicants

  2. The Tribunal accepts that the applicants are practising Christians (Catholics). The applicants’ passports identify the applicants as Christians. The Tribunal accepts that he applicants practise their faith in Australia by regularly attending church and raising their children in the Catholic faith and that their three children attend Catholics schools in Australia. The Tribunal accepts that Mr [A] has resided outside Pakistan in 2006 and the second third and fourth named applicants resided in [Country 1] from February 2007 before relocating to Australia in 2014.

0.The Tribunal accepts that the first named applicant married the second named applicant in 1999 and together they had three children, the youngest of whom was born in Pakistan in [tear]. The Tribunal accepts that Mr [A] comes from [Village], Rawalpindi in Punjab province and that his parents and siblings are all of the Christian faith as are the parents and siblings of [Ms B]. The Tribunal accepts that Mr [A] has three [siblings]: [one] lives in [Country 2], [one] lives in Australia having migrated to Australia via partner migration, and [one] lives in Rawalpindi in Pakistan.

The treatment of Mr [A] and his family members in the 1990s

  1. The Tribunal accepts that the applicant’s father, Mr [ZA], was [an official] at [church] in Rawalpindi in the 1990s, and that in 1998 he sought asylum in [Country 2] on the grounds of his religion and that he is now a [Country 2] citizen. The Tribunal accepts that he sought protection in [Country 2] because he was a devout Christian and, along with his entire family, became the target of physical and verbal abuse from some Muslims in his area. The Tribunal accepts that Mr [ZA] is still resident in [Country 2] and has not returned to Pakistan. The Tribunal accepts that Mr [ZA] informed the authorities in [Country 2] that his entire family received death threats after Mr [ZA] was accused of trying to convert Muslims to Christianity but that it was not possible for all the family to travel to [Country 2] at the same time. The Tribunal accepts that Mr [ZA] informed the authorities in [Country 2] that, due to his religious profile, his daughter [Ms D] was stalked and threatened with rape. The Tribunal accepts, based on the evidence before it, that the applicant’s sister, [Ms D], fled Pakistan with her father in 1998 after she was targeted by religious extremists in Rawalpindi and that she is now a [Country 2] citizen.

  2. The Tribunal accepts that after the applicant’s father sought asylum in [Country 2] the applicant and his family were the subjects of threats, violence and discrimination in [Village]. At the hearing the applicant gave evidence that his father left Pakistan in 1998 and that he was assaulted

    35 Randhawa v MILGEA (1994) 52 FCR 437, 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347, 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.

    Case Number 1512101  Page 11 of 19

in December 1999, over a year after his father left Pakistan. The applicant told the Tribunal that this was the last time he was physically harmed in Pakistan and, on the advice of his father, he relocated away from [Village]. The Tribunal accepts that the applicant has previously experienced religious persecution that it led him to act discreetly and modify his religious practice. However, the issue the Tribunal has to consider is whether there is a real chance that the applicant will face serious harm if he returns to Pakistan now or in the reasonably foreseeable future.

  1. The Tribunal finds, based on the applicant’s evidence, that his religious profile is different from that of Mr [ZA]. Mr , along with his wife and children, are practicing Catholics who regularly attend church in Australia as they did in [Country 1] and have elected to educate their children at Catholic schools. Unlike his father Mr [A] does not engage in evangelical activity and he does not have any formal role in a Christian ministry. His evidence indicates that he is a practicing Catholic who attends church and raised his children in the Catholic faith.

  2. The Tribunal accepts Mr [A]’s account of the difficulties he experienced in Pakistan in the years immediately after his father sought asylum in [Country 2], including the assault that he described in 1999. The Tribunal accepts that the applicant was scared of freely expressing his faith because his father had been beaten because of his religious practice and that he relocated away from [Village] to avoid religious persecution. However, the Tribunal found Mr [A]’s account of his difficulties securing employment in the decade before he left Pakistan in 2006 less persuasive. It was suggested that his employment history was limited due to safety reasons and that during this period he had support from his father and sister. However, while there are reports of discrimination against Christians in employment, the Tribunal found improbable that Mr [A] would have been able to secure an [work] role in [Country 1] after participating in a two stage interview process if his past employment in Pakistan was limited to working as [an Occupation 1] and working from home assisting others to fill out forms.

  3. The Tribunal also considers it significant that in the years after Mr [ZA] travelled to [Country 2], Mr [A] and [Ms B] had three children and, after Mr [A] relocated to [Country 1] in July 2006, his wife and three children remained in Pakistan until February 2007. While the Tribunal accepts the applicant’s account of the harassment and threats that were levelled at him and his family members in the years immediately after his father sought asylum in [Country 2], the Tribunal is concerned that the applicants have embellished the difficulties that he and his family members faced in Pakistan in years immediately before he relocated to [Country 1] in July 2006, including his claims that his brother was kidnapped by religious extremists in December 2005. In this context, the Tribunal also has concerned about the credibility of Mr [A]’s evidence that he decided to leave Pakistan because he feared persecution after his brother was kidnapped in December 2005.

    Claims that Mr [A][A]’s brother disappeared in December 2005

  4. The Tribunal found Mr [A]’s evidence about his brother’s disappearance in December 2005 problematic. The applicant’s evidence was that he returned to [Village] in October 2005 and that his brother went missing on Christmas Eve in 2005 and – apart from one reported sighting of his brother by a former friend in 2012 – his brother has not been seen since. Mr [A] has suggested that his brother had been kidnapped by religious extremists and either forced to convert to Islam or killed and he claims that those responsible for the disappearance of [Mr YA] made anonymous and threatening calls to his family members warning them against reporting [Mr YA]’s disappearance to the police. Mr [A] told the Tribunal that before the family received these calls, he and his mother approached the police about his brother’s disappearance on Christmas day and they were advised to wait 24 hours before making a first information report. Mr [A] produced to the Tribunal a handwritten note that he claims he gave to the police on 25 December as well as an ad, placed in a newspaper on 26 December 2005 stating his brother was missing.

Case Number 1512101  Page 12 of 19

  1. The Tribunal was concerned that Mr [A]’s account of how he responded to his brother’s disappearance has evolved over time. Mr [A] was unable to credibly explain why he omitted to tell the Department that he went to the police station to report his brother missing on Christmas day in 2005 or why he omitted to mention that on he had placed an advertisement in a newspaper, which appeared on 26 December 2005, stating his brother was missing. His explanation for these omissions was that the delegate did not ask him about these matters. However, Mr [A] is an educated man who was represented before the Department. The Tribunal does not accept that he was unaware of the importance of providing documentary evidence to support his case or would not have appreciated the importance of informing the Department that he had sought police assistance the day after his brother disappeared. The Tribunal has considered the copy of the hand written letter he claims he provided to the police on Christmas day, but this letter could easily have been manufactured and lacks probative value. The Tribunal has also considered the newspaper advertisement but, having regard to Mr [A]’s unsatisfactory evidence about why it was not provided at an earlier point in time as well as information about the availability of fraudulent documentation in Pakistan, the Tribunal gives it little weight.

  2. The Tribunal found unconvincing the adult applicants’ evidence that they returned to Pakistan for three weeks in 2012 to search for Mr [A]’s missing brother, notwithstanding the claimed risks. When asked why all the family members returned to Pakistan, Mr [A] said his wife did not allow him to return alone. Asked why she would put her children in a risky situation, [Ms B] said that she remained indoors with her children in [City] when Mr [A] was searching for his brother. However, the Tribunal considers that the decision of [Ms B] to return to Pakistan with her children makes little sense, particularly as the only information that Mr [A] had to investigate was a report that his brother was spotted at a marketplace and then ran away and the applicants’ evidence indicates that after travelling to [City] to search for [Mr YA] they then they drove to Rawalpindi where they claim they had previously been targeted by extremists. The Tribunal also found it difficult to reconcile Mr [A]’s evidence that his family did not report [Mr YA]’s disappearance to the police because they received anonymous phone calls threatening retaliation if they did so with his evidence that the applicants all voluntarily returned to Pakistan so that Mr [A] could search for his missing brother in [City]. The Tribunal has considered Mr [A]’s evidence that he approached the Australian office of the Red Cross to search for his brother but was informed the Red Cross could not trace this type of case. However, as discussed at the hearing, Mr [A] did not provide any documentation from the Red Cross confirming that he made such an approach or that Red Cross advised that they could not assist him. Overall, the Tribunal found Mr [A]’s evidence about his attempts to find [Mr YA] unpersuasive.

  3. Also of concern: the applicant did not apply for a protection visa when he first arrived in Australia in 2013. The Tribunal has considered the applicant’s evidence that at this time he was aware he could apply for a protection visa but did not do so as he still had a right to enter and reside in [Country 1] and gives this explanation some weight. However, this situation had not changed when he returned to Australia in 2014 as his [Country 1] employment pass was valid until 2015. When asked to explain why he decided to apply for protection in 2014, Mr [A] referred to threats made against his wife in [Country 1]. However, the Tribunal found his evidence that the same extremists in Pakistan who he claimed were responsible for kidnapping his brother in 2005 acquired his contact details and began threatening his family in [Country 1] in 2013 and 2014 to be highly improbable and contrived.

    Conclusions on credibility of claims

  4. The Tribunal accepts that the applicants are practising Catholics from Rawalpindi. The Tribunal accepts that Mr [A]’s father and sister fled Pakistan in 1998 to avoid religious persecution. The Tribunal accepts that after Mr [ZA] fled Pakistan Mr [A] was subject of threats and harassment because of his religious identity as a Christian and his identity as a

Case Number 1512101  Page 13 of 19

member of Mr [ZA]’s family. The Tribunal accepts that Mr [A] was assaulted in 1999 and, as a result of harassment and threats, modified his religious practice in an attempt to reduce the risk of persecution. However, the Tribunal is of the view that Mr [A] has exaggerated the difficulties he faced in Pakistan after 2001 and, while the Tribunal is prepared to accept that he relocated away from [Village], the Tribunal did not find his evidence about his difficulties securing employment in Pakistan in the five years before he travelled to [Country 1] in 2006 to be credible.

  1. The Tribunal is not satisfied that the trigger for Mr [A]’s decision to leave Pakistan in July 2006 was the disappearance of his brother. On the evidence before it, the Tribunal is not satisfied that Mr [A]’s brother was kidnapped by religious extremists as claimed or that Mr [A] returned to Pakistan between 21 December 2012 and 13 January 2013 to investigate a sighting of his missing brother. The Tribunal also found contrived and unpersuasive the evidence of Mr [A] and [Ms B] that they travelled to Australia and sought asylum because they had received threats from religious extremists in Pakistan while living in [Country 1].

  2. The Tribunal accepts, having regard to the country information about the risks facing

    Christians in Pakistan and what it has accepted of the applicants’ claims, that the applicants have genuine fears about the risks facing their family if they are required to return to Pakistan in the reasonable foreseeable future. Notwithstanding the concerns set out above and having regard to the country information set out above, the Tribunal found genuine the first and second named applicants’ concern that their family will be at risk of harm if they return to Pakistan on a permanent basis. The Tribunal accepts that Mr [A] and [Ms B] hold genuine concerns about the future risks facing their three children, all of whom are

    Christians who have resided outside of Pakistan for over a decade and who have studied in

    western schools, if they were to return to Pakistan now or in the reasonably foreseeable future.

    Whether there is a real chance that the applicants will be persecuted if they return to Pakistan now

  3. In light of the above findings, the Tribunal must consider whether, on the basis of the circumstances that exist now, the applicants’ fears of being harmed on return to Pakistan are ‘well-founded’. The High Court of Australia has held that a person has a ‘well-founded fear’ of persecution if he has a genuine fear founded on a ‘real chance’ of being persecuted for a Convention reason. In Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389 (Chan), the former Chief Justice of the High Court, Sir Anthony Mason stated that the expression ‘a real chance’:36

    ... clearly conveys the notion of a substantial, as distinct from a remote chance, of

    persecution occurring ... If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a fifty per cent chance of persecution occurring. This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin.

  4. The High Court’s decision in Chan establishes that a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50%. Indeed, the High Court has prescribed a low threshold for determining whether an applicant’s fear is “well-founded” and it can be reached even if the event feared is “unlikely to occur” and has only a “10 per cent chance” of occurring, however, the chance of it occurring must be more than “far-fetched” or “remote”,37 and the evidence must indicate “a real

    36 Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389.

    37 Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 429 (McHugh J).

    Case Number 1512101  Page 14 of 19

ground for believing that the applicant ... is at risk of persecution”; a fear “is not well-founded if it is merely assumed or if it is mere speculation”.38

  1. The Tribunal accepts the applicants are practising Christians (Catholics). In considering whether the applicants’ fears of future harm are well-founded the Tribunal has had regard to independent information about the risks facing Christians in Pakistan. As noted above, in February 2019 DFAT assessed that Christians face a moderate risk of societal discrimination, societal violence and sectarian violence and a low risk of official discrimination. Recent reports indicate that there is a growing trend of Christians leaving Pakistan.39 Several sources, including DFAT, suggest that while the overall security situation in Pakistan has improved the country information set out above indicates that the risks facing religious minorities, including Christians, have increased in recent years and religious intolerance is growing. However, the country information also indicates that there are significant communities of Christians living in Rawalpindi and in other urban centres in Pakistan, including Lahore, where the second named applicant’s siblings live.

  2. The Tribunal accepts that Mr [A] was subject to serious harm in the immediate aftermath of his father’s flight to [Country 2] but was then able to remain in Pakistan. These events occurred over two decades ago and some years later, in 2006, Mr [A] relocated to [Country 1] where he was joined by the other applicants in 2007. The task of predicting the risks facing Mr [A] in the future is complicated by the fact that he and his family have now lived outside of Pakistan for well over a decade. While the applicants returned to Pakistan for a brief visit in 2012, this temporary stay 7 years ago is not predictive of the future risks facing the applicants on a permanent basis which must be assessed with reference to the current country information. Therefore the issue for determination is whether, on the basis of the circumstances that exist now, the applicants have a well-founded fear of persecution.

  3. The Tribunal accepts that if Mr [A] were to return to Pakistan he would be perceived as a Christian returnee from a western country as would the other applicants. The applicants have resided outside of Pakistan since 2007 and have been resident in Australia since 2014. The Tribunal accepts that the third, fourth, and fifth named applicants have attended Catholic schools in Australia and would be returning to Pakistan as failed asylum seekers from a western country. The Tribunal has had regard to DFAT’s assessment regarding Pakistanis who have spent time in Western countries, but notes DFAT does not identify whether the risk differs for religious minorities returning as failed asylum seekers. The Tribunal has considered the post-hearing statement provided by Mr [A]’s sister about the difficulties she and her children have experienced in Pakistan because of her religious identity and membership of a particular social group of family members of Mr [ZA] as well as her assertion that religious extremists might target the applicants and that the second, third and fourth named applicants might be harmed because of their life style and accents.

  4. The Tribunal accepts that the risk facing Mr [A] because of his religious identity and practice is elevated by the fact his father’s profile may still be known within his home area and his family’s extended absence from Pakistan and residence in a Western country. As discussed at the hearing, DFAT assesses that western influence is pervasive in many parts of

    Pakistan, particularly in large urban centres. Both Urdu and English are official languages, and English is taught in many schools and is widely spoken among Pakistan’s elite. The Tribunal put to the applicant that DFAT assesses that individuals in Pakistan are not subject to additional risk of discrimination or violence on the basis of having spent time in western countries or because of perceived western associations (such as clothing), despite a generally increasing conservatism and religiosity across the country. However, the Tribunal

    38 Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572.

    39 ‘Country Policy and Information Note Pakistan: Christians and Christian converts’, UK Home Office, 01 September 2018, p.41, OG9EF767941

    Case Number 1512101  Page 15 of 19

notes according to some reports, Christians are often labelled as ‘working for’ (being associated with) western countries40 and hostility to Christians has been further aggravated by a growing animosity towards the United States and the West.41

  1. Having regard to the country information set out above and what the Tribunal has accepted of the applicant’s claims, the Tribunal considers it prudent to adopt a cautious approach when called upon to make a prediction of future risk. Since the delegate made her decision, multiple sources, including DFAT, suggest that while there have been some improvements in the general security environment in Pakistan, the risks facing religious minorities have increased, not decreased. In particular, there has been an increase in blasphemy-related violence and, more broadly, in violence against religious minorities (including Christians), who are disproportionately at risk of communal violence following blasphemy accusations. The Tribunal acknowledges that the applicant wants to be able to practice his faith freely and that it is impermissible for the Tribunal to require any of the applicants to act discreetly to reduce the risk of facing religious persecution.

  1. The Tribunal therefore accepts that there is small but real chance that the applicant will face serious harm in his home area of Rawalpindi in Pakistan for the essential and significant reason of his religious identity and beliefs. The Tribunal has carefully considered what it has accepted of the applicant’s profile, the past experiences of his family in his home area, and the most recent country information as a predictive guide to the likelihood of events occurring in the reasonably foreseeable future. The Tribunal has struggled with decision but has ultimately reached the view that there is a small but real chance that the applicant will face serious harm from non-state actors for the essential and significant reason of his religion and his father’s religious profile if he returns to his home area now or in the reasonably foreseeable future.

    State protection

  2. The harm the applicants fear is from non-state actors, including extremist groups and individuals who have previously targeted Mr [A] and his family members in their home area. Harm from non-state agents may amount to persecution for a Convention reason if the motivation of the non-State actors is Convention-related, and the State is unable to provide adequate protection against the harm. Where the State is complicit in the sense that it encourages, condones or tolerates the harm, the attitude of the State is consistent with the possibility that there is persecution: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [23].

  3. The Tribunal finds the applicant will not be able to access adequate protection against harm feared. According to the UNHCR Guidelines, law enforcement authorities reportedly provide inadequate protection for religious minorities, including Christians and Christians accused of blasphemy. 42Furthermore, the introduction of blasphemy laws in the Penal Code have ‘reportedly fostered fostered an atmosphere of religious intolerance and has contributed to the institutionalization of discrimination against religious minorities’ and have been criticised ‘for fuelling extremist violence and targeted attacks against individuals from religious minority groups’. Multiple sources acknowledge that Pakistan’s blasphemy laws disproportionately affect religious minorities43.

    40 ‘Freedom of Faith in Pakistan: Contextualizing Programmatic and Policy Orientation’, Pak Institute for Peace

    Studies, p.8, p.20 & p.24, 2 August 2018, CIS7B839418866; ‘World Directory of Minorities and Indigenous Peoples - Pakistan : Christians’, Minority Rights Group International (MRG), 01 June 2018, CXBB8A1DA35838

    41 'Is Pakistan Safe for Christians?', Foreign Policy, 16 May 2016, CX6A26A6E4426; UN High Commissioner for Refugees (UNHCR), UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities from Pakistan, January 2017, HCR/EG/PAK/17/01, p.40 fn 167.

    42 UNHCR, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities from Pakistan, January 2017, HCR/EG/PAK/17/01, p/40

    43 UNHCR, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Members of

    Case Number 1512101  Page 16 of 19

  1. As noted above, DFAT’s overall assessment is that Christians face a moderate risk of societal violence and, along with other religious minorities, are at disproportionate risk of being accused of blasphemy. With respect to protection for Christians who are the target of religious motivated violence, DFAT reports that since 2013, police have provided additional security to major churches during religious services, which has reduced, but not eliminated the risk of violence. DFAT also reports that police ‘provide some protection to Christian enclaves in major cities, to complement the community’s own security arrangements’. However, DFAT also reports that community members claim that police have, on occasion, not responded adequately to attacks on Christians. The US State Department has also reported that police often failed to protect religious minorities, including Christians.

  2. DFAT notes that in 2017 the independent Human Rights Commission of Pakistan (HRCP) reported an increase in blasphemy-related violence, use of religious rhetoric, incitement of hatred, and discrimination against minority groups and the failure by the government to repeal discriminatory laws. Local and international observers report increasing misuse of blasphemy laws, and a widening of actions considered chargeable blasphemy offences. Whilst in some cases the authorities reportedly arrest blasphemy perpetrators to protect them from mob violence, there are also reports that persons accused of blasphemy have been tortured or killed while in police custody or detention and that the blasphemy laws are reportedly frequently used by members of society to threaten and harass members of religious minorities, with many allegations made to settle personal scores or carry out personal vendettas, within a climate of impunity.

  3. The country information before the Tribunal indicates that police have failed to protect victims of religiously motivated violence. In 2018 the USCIRF reported:

    The continued operation of terrorist groups like Lashkar-e-Taiba (LeT), Lashkar-e-Jhangvi (LeJ), the Islamic State Khorasan Province (ISKP), and Tehrik- e-Taliban (Pakistani Taliban) challenges the overall security of the country. These groups threaten not only members of religious minority communities but also anyone who attempts to advocate on their behalf. This has resulted in politicians and judges avoiding the public promotion of rights for religious minorities, which has fostered the spread of an increasingly divisive and anti-minority narrative among the public. The government of Pakistan has not addressed the spread of sectarian or religiously motivated intolerant speech and has not prosecuted perpetrators of violent crimes against religious minorities. 44

  4. The Tribunal accepts that anti-blasphemy violence against religious minorities occurs in a climate of impunity where regressive State sanctions for blasphemy help fuel extremist violence against religious minorities, including Christians. Having regard to the country information set out in this decision record about religiously motivated violence and discrimination against Christians, which manifests in both low level official discrimination and moderate level of societal discrimination and violence, together with information indicating that the blasphemy laws in Pakistan create a climate of impunity in which members of religious minorities are at risk of being threatened and harassed, the Tribunal finds that the level of protection available to the applicant from the Pakistani authorities does not meet the level of protection which citizens are entitled to expect as discussed by the High Court in MIMA v Respondents S152/2003 (2004) 222 CLR 1.

    Relocation

  5. The question then arises as to whether it is reasonable for the applicant to relocate to another part of Pakistan where there is no appreciable risk of the occurrence of the feared persecution. While DFAT’s assessment that Christians face a moderate risk of societal and sectarian violence is not

    Religious Minorities from Pakistan, January 2017, HCR/EG/PAK/17/01, p.11.

    44 ‘United States Commission on International Religious Freedom Annual Report 2018’, US Commission on

    International Religious Freedom, 25 April 2018, p.68, CIS7B83941863

    Case Number 1512101  Page 17 of 19

confined to any particular area of Pakistan, the Tribunal acknowledges that the level of risk facing the applicants may vary in different locations and DFAT reports that while living in a Christian enclaves can mitigate against the risk of societal discrimination it also increases Christians vulnerability to violence.45 At the hearing the second named applicant gave evidence that she had four siblings living in Lahore and, when asked whether they had experienced problems because of their faith, she responded that they had not shared any problems with her recently. The Tribunal notes that the first and second named applicants are educated professionals and, unlike many Christians in Pakistan, their vulnerability to religiously motivated attacks is not compounded by economic marginalisation and disadvantage.

  1. However, having regard DFAT assesses that Christians face a moderate risk of societal violence in Pakistan and the particular circumstances of the applicants, who are practising Catholics who have lived and – in the case of the third, fourth and fifth named applicants – studied outside of Pakistan – for over a decade, the Tribunal finds that would not be reasonable for Mr [A] to relocate to an area without a Christian community. The Tribunal also considers that the risk of societal discrimination, societal violence and sectarian violence which Mr [A] would face as a Christian, while not necessarily rising to the level of a real chance of persecution in all parts of Pakistan, is a practical reality which makes relocation to a Christian enclave in an urban centre unreasonable. It would therefore not be reasonable for the applicant to relocate within Pakistan to avoid the persecution he would face in his home area.

  2. In conclusion, the Tribunal finds that it is not reasonable for the applicant to relocate to any other part of Pakistan to avoid his risk of Convention based persecution. Given the above, the Tribunal finds that Mr [A]’s has a well-founded fear of persecution for reasons of religion and therefore are refugee as defined in the Refugees Convention. The Tribunal is therefore satisfied that Mr [A] is a person in respect of whom Australia has protection obligations under the Refugees Convention. The first named applicant therefore satisfies the criterion set out in s.36(2)(a).

    The second, third, fourth and fifth named applicants

  3. Having concluded the applicant is a refugee, the Tribunal turns to the situation facing the other applicants if they return to Pakistan in the reasonably foreseeable future. The first and second named applicants have claimed that their children will be at risk of serious harm if they return to Pakistan and the Tribunal is satisfied on the claims and evidence before it that the applicants have a subjective fear of being persecuted in Pakistan. If the second, third, fourth and fifth named applicants were to return to Pakistan they would do so as practising Catholics who has resided overseas for an extended period of time. The Tribunal accepts that the other applicants would be returning in Pakistan in the company of Mr [A] who, for the reasons given above, the Tribunal accepts has a well-founded fear of persecution for reasons in his home area. The wife and children of the applicant cannot be expected to reside away from him to avoid the risk of harm.

  4. Having regard to what it has accepted of the applicant’s personal profile and the country information concerning the situation of Christians in Pakistan, the Tribunal accepts that if the second, third fourth and fifth named applicants were to return to Pakistan, there is a real chance that they would face serious harm from extremist groups or individuals in their home area. While the risks facing the applicants are elevated by their membership of a Christian family group that has previously been targeted by extremists in their home area and their extended residence (and in the case of the three children education) in a western country, the essential and significant reason that the applicants are at risk of harm is their religious identity and practice.

    45 'DFAT Country Information Report: Pakistan', DFAT, 19 February 2019, p.34-35.

    Case Number 1512101  Page 18 of 19

  1. The Tribunal finds that there is a real chance that the applicants in their individual circumstances would face serious harm amounting to persecution from extremist groups or individuals for the essential and significant reason of their religion in their home area. State protection is not available. The Tribunal finds for the reasons given above at para 69-71 it would not be reasonable for the applicants to relocate within Pakistan to avoid the persecution that they would fear in their home area. The Tribunal finds that the second, third, fourth and fifth named applicants have a well-founded fear of persecution and are persons in respect of whom Australia has protection obligations under the Refugees Convention.

  2. There is no evidence before the Tribunal that indicates that the applicants have a right to enter and reside in any third country for the purposes of s.36(3) of the Act and the Tribunal finds that they do not.

    CONCLUSION

  3. For the reasons given above the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants satisfy the criterion set out in s.36(2)(a).

    F. Simmons
    Member

Case Number 1512101  Page 19 of 19

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MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081
BXD15 v MIBP [2017] FCA 1209
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198