1512111 (Refugee)

[2017] AATA 513

1512111 (Refugee) [2017] AATA 513 (7 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1512111

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Rachel Westaway

DATE:7 March 2017

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 07 March 2017 at 2:28pm

CATCHWORDS
Refugee – Protection visa – Pakistan – Particular social group – Homosexual men – Opposition from Conservative Muslim family – Threats of killing – Physical assaults – Forced marriage – Internal relocation

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 91R(1)(b), 499
Migration Regulations 1994 Schedule 2

CASES
Appellant S395/2002 v Minister for Immigration[2003] HCA 71; (2003) 216 CLR 473

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant who claims to be a citizen of Pakistan, applied for the visa [in] September 2013 and the delegate refused to grant the visa [in] August 2015.

3. The applicant appeared before the Tribunal on 7 March 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

4. The applicant was represented in relation to the review by his registered migration agent.

   RELEVANT LAW

5. 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.

   Refugee criterion

6. 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).

7. 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.

8. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

9. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

10. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

11. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

12. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

13. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

14. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

15. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

16. 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’).

17. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

18. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

19. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. The issue in this case is whether the applicant has a well-founded fear of persecution with consideration specifically given to the objective requirement of ‘a real chance’ that the applicant will be persecuted. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

21. The applicant applied for a protection visa on the basis of claiming to be a national of Pakistan and that he is a member of a particular social group (homosexual males in Pakistan).

    ·     He claims he will suffer harm and persecution if he returns to Pakistan.

    ·     He claims to come from a conservative, religious Pashtun family.

    ·     He fears harm from his family, friends and community. He claims that Sharia Law forbids homosexuality and he will be punished if found to be homosexual. He states that the punishment is stoning, whipping, jail or death. He claims his father could kill him.

    ·     He claims his family are very conservative, fundamentalist Muslims. They pray five times a day and are strict adherents to Islam.

    ·     His family support an arranged marriage system between cousins. [Specified number of siblings] are married and on his return he will be expected to marry.

    ·     He claims he was attracted to men from the age of [age].

    ·     He claims that when in Australia, his flat mate discovered a gay chat site on his laptop. He told his other flat mates and friends and he was exposed. His flat mates were also from Pakistan. This was in April 2011.

    ·     He claims that he cannot seek state protection because Sharia law applies across Pakistan and he would be required to hide his sexuality.

    ·     He claims he cannot relocate for the same reason and also because he has family everywhere.

22. The applicant supplied a statutory declaration with his protection visa application which provided the following background information.

23. He came to Australia when he was [age] years of age in November 2003 on a student visa to study [course]. After eight months of being in Australia he joined a gay dating site called [website name] and met a few men. He met three men and had his first sexual experience. He was able to explore his sexuality and he was unable to do this in Pakistan.

24. He had a more serious relationship with a man called [Mr A] which commenced in May 2007. The relationship became a committed relationship around August 2007. In March 2009 they moved in together in a house in [Suburb 1]. However he continued to pay rent at his old place, his mail was delivered there and he would sometimes stay there. They were about to lodge a partner visa but the relationship ended [in] March 2011. They then got back together around August 2012. The relationship lasted until May 2013.

25. He does not want another relationship yet but he has been on dating websites and met other men for casual sex.

26. He did not apply for protection earlier as he was initially in Australia to study. He then thought that he would apply for a partner visa. His visa expired [a date in] February 2011and his explanation was that his migration agent told him incorrect information. He was unlawful between [that date in] February 2011 and [a date in] September 2013 when he applied for a protection visa and was granted a bridging visa. He was unlawful for two years and seven months. He claims the he and [Mr A] were in the process of applying for a partner visa until the relationship ended in March 2011.

27. He claims he is stressed and anxious and cannot sleep or eat. He is seeing [a named] psychologist to assist him.

28. The delegate made a finding that the applicant was a homosexual man and of Pashtun ethnicity. The delegate was unable to make a finding of fact that he was in a long term relationship with [Mr A]. The delegate made a credibility finding based on the applicants unlawfulness and concluded that he did not have a genuine, subjective fear of harm in returning to Pakistan as he did not apply immediately. The delegate was satisfied that the applicant’s family are conservative and religious but could not make a finding of fact that he would be harmed by them or that they would strongly disapprove of his sexuality. The delegate was satisfied based on country information that the applicant’s family would expect him to marry and marry a cousin.

29. The delegate made an adverse finding pertaining to whether the applicant has a well-founded fear of persecution and if there is a real chance on the basis of available country information. In summary, whilst the information quoted confirms homosexuality is considered a sin, unlawful and punishable, research quoted stated that homosexuals are rarely prosecuted. Further resources quoted by the delegate referred to “don’t ask, don’t tell”.

    COUNTRY INFORMATION - DFAT Country Information, Report, Pakistan, 15 January 2016

30. Consensual same-sex sexual conduct (referred to as ‘carnal intercourse’) is a criminal offence in Pakistan, punishable by imprisonment for two years to life. Pakistani Islamic (Sharia) law calls for the punishment of ‘unnatural lust’ in extramarital sexual relations by 100 lashes or stoning to death, depending on whether the accused is married. In May 2011, for example, a homosexual couple caught having sexual intercourse was lashed publicly in Khyber Agency. In practice, however, there are relatively few prosecutions or convictions for same-sex sexual conduct.

31. Homosexuality is not widely discussed or acknowledged in Pakistan. The freedom to publically identify as being homosexual is constrained by cultural and societal mores. However, the practice of homosexuality itself is generally more widespread. A number of community based organisations in Lahore, Rawalpindi, Islamabad and Karachi provide a range of medical and other support services to homosexual and transgender persons.

32. DFAT assesses that discrimination and, in some cases, violence on the grounds of sexual orientation is prevalent in Pakistan, particularly in rural areas, and that it is rare for Lesbian, Gay, Bisexual, Transgender and Intersex persons in Pakistan to live openly.

33. The applicant appeared before the Administrative Appeals Tribunal to provide further evidence. He confirmed he is [age] years of age and has been living in Australia for twelve years. He stated that he came to study [course] and he completed his courses. He has been doing [specified occupations] jobs. He stated that he did have some experienced in his chosen profession when he worked for [a company] and was doing [specified duties] however the owner sold the business and he no longer had a job.

34. The applicant’s confirmed that his parents are alive. His father was [an occupation 1] in Pakistan but has since retired and his mother has always been a housewife. He said his parents have recently built a house and they grow [crops]. They hire people to work on the farm.

35. The applicant has [a specified number of siblings]. The applicant calls his family once a week and confirmed that no one has come to Australia. He stated that he is the only one of his siblings to have travelled overseas.

36. The applicant and his [one sibling, aged] are not married. The other siblings are. The applicant confirmed that he receives ongoing pressure from his family to return to Pakistan and marry. The applicant’s parents tell the applicant on the phone that he should come home and get married. He stated that that is why they built a [number] bedroom house. The sisters live with their partner’s family and the house is for him and his family when he marries. He confirmed that no one in Pakistan knows he is gay.

37. The applicant provided a detail history of identifying as a homosexual male in Pakistan and also in Australia. He detailed his first experiences and explained his reluctance to be ‘out’ both in Pakistan and Australia. He confirmed that he was open about his sexuality with his former partner’s family. The Tribunal asked the applicant to describe the family and identify them in photographs originally supplied to the Department.  

38. The applicant confirmed he has never had a relationship with a female.

39. He stated that he was too afraid to do anything with friends when he was in Pakistan. He did say that he was first able to acknowledge his homosexuality when he and a friend went to an abandoned house in his village and played hide and seek. He claims that this was his first and only sexual experience in Pakistan and that he quickly dismissed it and never acknowledged it with his friend. He claims that he does not know of anyone in Pakistan that is gay and he stated that his friends are not gay.

40. The applicant stated he wanted to study and he was excited by the freedom of coming to Australia. He said he was new to the country and didn’t start to date for a while but then he explored websites.

41. He started a relationship with [Mr A]. However he was treated badly and was not told about his partner’s plans to move to [another country]. The applicant provided some detail about this and his interaction with [Mr A’s] family.

42. Since the end of that relationship and in the last two years he confirmed that he has meet guys on a regular basis through [website name]. This is the extent of his involvement in the gay community in Australia but it is on a semi regular basis. He lives in a shared house with people from [specified countries]. He said he is not ready to tell them because he fears that will ostracise him. He said that he will wait until he is in a committed relationship.

43. The applicant was asked why he has not become openly gay in Australia and he said he worries about how his friends will treat him. He feels that if he can find the right person in Australia he can be open about the relationship which he wants to do but he cannot do that in Pakistan. Hence he explained why he is discrete. He stated that when he was with [Mr A] then he was open.

44. He fears he has no freedom to explore relationships with men in Pakistan or build an ongoing relationship in Pakistan.

45. The applicant stated that in Australia he has two mobiles. He said that one is for friends and family and the other is for his homosexual friends. He said that because he lives with people from other cultures he keeps this phone hidden as his casual relationships are private and he does not want them to know. He confirmed again that if he was in a long term relationship with another man he would tell people but he stated that he has not because he has not founds the right person. The Tribunal notes the screen shots of the applicant’s online activity in regards to the gay community which supports his claims of being active.

46. The applicant said he is afraid of his father. He is afraid of being forced into marriage if he returns to Pakistan and his father is very strict and may hurt him. He used an example of his father’s strictness and said that his father has hit him in the past for little things such as a snooker game. He was [age] years of age but he was a very strict [occupation 1].

1. The applicant stated that he cannot return to Pakistan and live as an openly gay man and seek a long term committed relationship. He fears he will be forced into marriage and must hide his sexuality or if he discloses it he fears harm from his father and the community as a whole.

2. The applicant confirmed during the course of the hearing that he relies on the information in his submissions.

   Country of Reference

3. The Applicant claims to be a Pakistani national. Based on the information before the Tribunal on the Department and Tribunal file, the Tribunal accepts this and finds that Pakistan is his country of nationality and his receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act. There is no evidence before me to suggest that the applicant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.

   REASONS AND FINDINGS

4. The Tribunal accepts on the basis of all of the evidence before it that the applicant is homosexual. The Tribunal has considered the evidence set out above, including the applicant’s written claims regarding his homosexuality, his oral evidence to the Department and the Tribunal, independent country information regarding the situation for homosexuals in Pakistan, as well as the submissions provided by the representative. The Tribunal has a copy of the delegate’s decision and has read this. The Tribunal notes that the delegate considered the applicant’s failure to seek protection for several years whilst in Australia and his unlawfulness indicates he does not have a genuine fear of harm in his country. However, the Tribunal accepts that the applicant is a homosexual man who essentially began exploring his homosexuality when he arrived in Australia and had no urgency to apply for protection because he was on a valid student visa and then intended to apply for a partner visa. Whilst the Tribunal does have concerns about the reasons given for being unlawful, notwithstanding these, the Tribunal accepts the applicant’s reasons for not seeking protection earlier. The Tribunal also accepts the applicant’s explanation for returning to Pakistan and that he did not disclose his sexuality and had no reason to.

5. The Tribunal has considered whether there is a real chance (namely more than a remote chance) that the applicant will suffer serious harm in Pakistan for reasons of his membership of a particular social group - homosexuals. The Tribunal has had regard to the evidence cited by the delegate stating that homosexuality is an offence in Pakistan, but that the law is rarely enforced. That evidence indicates that persons found to be homosexuals risk serious harm, including beatings and the religious laws make homosexuality punishable with death by stoning. Homosexual intercourse is also a criminal offence, although prosecutions are rare and sodomy is illegal and punishable with imprisonment for between two and ten years. Religious groups consider homosexuality is a serious and immoral offence and sexual minorities do not have recourse against discrimination, abuse or violence. Homosexuals are subject to extortion, illegal detention and sexual abuse. However the Tribunal notes the delegates further research which the delegate presented showed that some in roads were being made in Pakistan for homosexual support groups and an LGBT website and that “same-sex activities and gay events are very common, and not as discrete as previously cited sources suggest..”.

6. The Tribunal has also taken into account the most recent DFAT Country Report, dated January 2016, which states that consensual same sex conduct (referred to as ‘carnal intercourse’) is a criminal offence in Pakistan, punishable by two years’ imprisonment. Pakistani Islamic (Sharia) law calls for punishment of ‘unnatural lust’ in extramarital sexual relations by 100 lashes or stoning to death, depending on whether the accused is married. The DFAT report indicates that homosexuality is not widely discussed or acknowledged in Pakistan and the freedom to publicly identify as being homosexual is constrained by cultural and societal norms. However, DFAT has reported that the practice of homosexuality itself is generally widespread and there are a number of community organizations in Lahore, Rawalpindi, Islamabad and Karachi which provide a range of medical and other support services to homosexual and transgender persons. DFAT has assessed that violence on the grounds of sexual orientation is prevalent in Pakistan and it is rare for lesbian, gay, bisexual, transgender and intersex persons in Pakistan to live openly.[1]

   [1] Department of Foreign Affairs and Trade 2016, Country Report: Pakistan, 15 January, pp. 14 to 15.

7. The Tribunal places significant weight on the recent DFAT report and notes that homosexuals can live in Pakistan with harm and that even if exposed may not be prosecuted but that in order to reduce this risk one cannot live openly for risk of violence towards them.

8. It is well established that a putative refugee should not be asked to modify his or her behaviour in order to avoid persecution in his or her home country. In the case of Appellant S395/2002 v Minister for Immigration[2003] HCA 71; (2003) 216 CLR 473 the High Court was concerned with findings by the Tribunal with respect to a claim by the applicants that they would suffer harm if they were to return to Bangladesh, where that harm would arise from their homosexuality. Gummow and Hayne JJ said at [80]:

   It is no answer to a claim for protection as a refugee to say to an applicant that those adverse consequences could be avoided if the applicant were to hide that fact that he or she holds the beliefs in question. And to say to an applicant that he or she should be 'discrete' about such matters is simply to use gentler terms to convey the same meaning.

9. The Tribunal accepts that the applicant fears harm due to his sexual orientation if he returned to Pakistan. The Tribunal accepts that the applicant has, since soon after his arrival in Australia, lived as a gay man and mixes with the gay community. The Tribunal accepts that the applicant would have considerable difficulty concealing his homosexual identity especially given that he states he wishes to find a long term partner and if forced to live ‘discreetly’ he would be doing so only in order to avoid serious harm. The High Court of Australia has held that in such circumstances a person seeking Australia’s protection falls within the Refugee Convention.[2] The Tribunal is satisfied that if the applicant did not act discreetly upon his return to Pakistan that there is a real chance he would suffer serious harm amounting to persecution for a Convention reason. Whilst the Tribunal finds that this is not a given or high, the Tribunal finds that it is more than remote.

   [2] See S395/2002 v MIMIA [2003] HCA 71 in which McHugh and Kirby JJ held that “persecution does not cease to be persecution for the purposes of the Convention because those persecuted can eliminate the harm by taking avoiding action within the country of nationality”.

10. The Tribunal notes the applicant’s concerns pertaining to his father. He states that an indication that his father is conservative and capable of forcing him into marriage, beating him or potentially killing him is very real because his father has previously beaten him for playing snooker when he was [age] years of age. The Tribunal accepts that the applicant’s father is conservative and relies on country research to support the finding that arranged marriages are the norm and that homosexual activity is only tolerated if it is not open but hidden. Similar to that which the delegate noted, the Tribunal has also founds that there is no useful information available on honour killings due to homosexual family members. However this underpins the Tribunals previous findings that in order to remain safe from serious harm homosexuals in Pakistan cannot live openly. The Tribunal is not able to make a finding of fact on the applicant’s family members harming him but relies on its findings in regards to society and the state.

11. The Tribunal also accepts that relocation is not a reasonable option for the applicant as it will become apparent wherever he resides in Pakistan that he is a homosexual man and there is a real chance that he will suffer serious harm. The Tribunal also accepts that State protection is not available for homosexuals who experience discrimination or violence from members of society, and therefore the applicant could not obtain protection from the Pakistan authorities. The Tribunal is also satisfied that the harm the applicant fears is because he is a member of a particular social group of homosexuals and there is a real chance that if living as an openly gay man the applicant would be beaten or assaulted by members of the community or the police and that such harm amounts to serious harm. The Tribunal finds, therefore, that there is a real chance that the applicant will suffer serious harm for a Convention reason if he returns to Pakistan now or in the reasonably foreseeable future.

    CONCLUSIONS

12. 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

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

    Rachel Westaway
    Member