1512955 (Refugee)

1512955 (Refugee) [2018] AATA 2927 (18 July 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1512955
COUNTRY OF REFERENCE:                  Pakistan
MEMBER:Melissa McAdam
DATE:18 July 2018
PLACE OF DECISION:  Sydney
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 18 July 2018 at 11:17am

CATCHWORDS
Refugee – Protection visa – Pakistan – Social group – Homosexual men – Real chance of serious harm – Discovered with a sexual partner in Pakistan – Physically assaulted – No state protection available – Credible witness – No right to enter and reside in another country – Decision under review remitted for reconsideration
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K-LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 14 August 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Pakistan, applied for the visa on 18 December 2014.
CRITERIA FOR A PROTECTION VISA
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, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments 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.
SUMMARY OF CLAIMS AND EVIDENCE
Protection visa application
The following is a summary of the claims and information provided by the applicant in his Protection visa application:
a.The applicant was born on [date] in [Town 1] Abbottabad, in KPK, Pakistan. He submitted a copy of his Pakistani passport issued on 16 December 2010.
b.His parents [and siblings] are living in Pakistan.
c.He left Pakistan due to his homosexuality.
d.Some people found him sexually attached to a boy and punched him. He escaped but his family do not know about the incident and he can’t tell them.
e.He arrived in Australia on 19 June 2012 on a Student visa.
f.Pakistan is an Islamic state where homosexuality is not allowed.
g.If they find the applicant they will put him in jail. Homosexuality is not acceptable to people and the applicant’s family.
Departmental Interview
According to the Department’s file and Decision record the applicant did not attend the scheduled Interview to which he was invited.
Delegate’s Decision
The Delegate found the applicant was not able to substantiate his claims. The Delegate was not satisfied that the applicant’s fear of persecution was well-founded. The Delegate was not satisfied that there was a real risk the applicant would suffer significant harm in Pakistan.
Information to the Tribunal
Written Submission, 31 May 2018.
The applicant provided the following written submissions to the Tribunal on 31 May 2018:
a.Photographs of [Australian city 1] gay clubs and the applicant at gay clubs.
b.Phone screen shots of Grindr Messages to and from the applicant.
c.A photograph of the applicant in a Rainbow coloured hat and tie.
d.A psychological report, dated 25 May 2018, by a [psychologist].
e.A prescription for medication.
f.An excerpt from the DFAT country report on Pakistan.
g.Articles regarding homosexuality in Pakistan.
h.The Death Certificate for the applicant’s father.
i.A photo of the applicant’s [gay club] Membership Card.
j.Excerpts from Departmental Guidance policy.
k.A support letter from a friend of the applicant.
l.A submission from the applicant’s Agent.
m.A Statutory Declaration from the applicant, dated 30 May 2018.
The Statutory Declaration from the applicant contains the following:
I fear that if I return to Pakistan I will suffer persecution and harm from members of my own community as I am a homosexual man.
I first met [Mr A] 4 years before this incident. [Mr A] and I met through cricket tournaments. He used to come to the cricket grounds in [Town 1], [Abbtobad]. We used to play tournaments and play casual cricket. At these games, usually 50-60 people were playing. In cricket tournaments, I played for my town's cricket team and [Mr A] played for the cricket team in the town next to ours, called [Town 2]. I found him a bit girly, for example, the way he walks. I liked him — he was attractive and nice. We were friends at the time. He looked gay and I guessed that he was gay.
On 19 June 2010, I went to the grounds in [Mr A]'s hometown, [Town 2], early in the morning at 10am with five guys. Afterwards, [Mr A] invited me to go to his house with him. He asked "Would you like to come over to my house?". I said yes. It is common for people to invite their friends to their houses.
In Pakistan, some families have two houses - one for the family and one for the guest. He took me to his guest house at his family home around 1pm and we began talking and chatting. We were sitting inside on the sofa at the time. At the back of my mind, I felt like something would happen between us. Everything was normal when we arrived at his house. We were sitting inside with the door open. We began to talk about cricket, mostly about the tournaments and who was going to play for which team and which position we were going to play.
We were sitting on the sofa and [Mr A] started to talk about sex, and whether I had ever tried it. I told him yes. He asked me if I wanted to try it again and I said "yes, sure". I was wearing a white cricket shirt and green pants, and we got sexual in the room. He left the main door open, which was a mistake. At the time nobody was outside the guest house. We started unrobing ourselves and we forgot about the main door.
After ten minutes of having sex, I saw that three guys had come into the house from the main door. [Mr A] told me that they are friends of his [brother]. They started abusing us. I quickly got up and separated from [Mr A]. I quickly pulled up my pants and I was still wearing the white shirt and went straight outside, They called us "gando" (that can be translated to "poofta" in English). Two men came to me as I had come outside the room. They grabbed me, punched me on the right side of my head and started punching me outside. I was bleeding in my head. Then I was punched in the right side of my ribs and my right forearm.
One went after [Mr A]. I saw that [Mr A] was bleeding from his right leg when he came outside the room. I thought someone had stabbed him with something sharp. I heard the men beating him as well.
At this point, I was very scared for my life. I tried to find a way out. I ran around inside the house. I saw some stairs going up onto the roof and ran up the stairs to the roof of the building. One of the men was following me so I jumped off the roof and onto the street. I ran to the bushes across from the house that were next to the main road. The man who followed me didn't jump off the roof because of the height and came after me from the door. That is how I got some time to run to the main street and get into a vehicle. In Pakistan, a vehicle is like a bus that we jump on and fits around 10 people. I found a vehicle and jumped in it. In the vehicle, the driver saw that I was bleeding and asked me what happened. I just told him that I was in a fight. The driver told me to report it to the police but I told him I just wanted to go home first. I didn't tell the driver the truth because I was scared that he might report me to the police because I had sex with a man. I believe that if the driver had told the police, I would be arrested as it is illegal to have sex with a man in Pakistan. I grew up as a Muslim so I understand that this law.
I went to my friend's house first. This friend is called [Mr B]. We were close friends and I knew [Mr B] since I was [age] years old. We used to play together and he used to live near my house. His house was next to [a main road]. I went to him because I wanted him to come to the Doctor's with me. I explained to my friend that I was in a fight but did not tell him the whole truth because I hadn't told him that I was gay. I told him that I started the fight and the other person hit me back in self-defence because I didn't want to involve the police. [Mr B] was also a Muslim so I was afraid to tell him the truth. I arrived at my friend's house around 1:40pm.
After staying for 10 minutes, I went straight to my General Practitioner [and] [Mr B] went with me. I also did not tell the truth to the Doctor because I was scared that he might report it to the police and I did not want the doctor to report the fight to the police. The doctor treated my wounds and gave me medicine, and sent me home.
I went home, my father opened the door and asked me what happened. I told him that I was alright and I was in a fight but I started the fight and that they had hit me in self-defence. I asked him to let it go. I told my parents this because I did not want them to investigate the matter further and report the fight to the police. I did not want to get the police involved because they would arrest me for doing a homosexual act. In Pakistan, homosexual activity is illegal. Also, I was scared to tell my parents the truth because they are strict Muslims.
Since the incident, I never saw [Mr A] again and never went back to [Mr A]'s town. I also stopped playing cricket because I was always scared that I would be attacked again. I used to just study and college and go straight home after college. I stopped socialising with my friends and even stopped seeing [Mr B].
I started telling my parents that I wanted to go overseas. They did not agree to it in the beginning because they thought I was too young. I said that it will be okay because I have two cousins in Australia who would look after me. I lived with my [cousins]. When I lived with them, I was not openly gay. I waited till I settled down and applied for the protection visa without my cousins knowing about it. I was not open in front of them because I was scared that they would have told their parents and it would be shameful for my family in Pakistan.
I told my family that I was gay in January 2015 after I had applied for my protection visa. I called them around 10 pm from [Australian city 1] in January 2015. When I called them, my sisters [and] my mum were sitting together. I told them that I like men and that I can't change myself. I told them that this was the reason why I wanted to leave [Pakistan], why I was pushing them to let me travel overseas and why I was uncomfortable in Pakistan. When I got my student visa, they were not comfortable with me travelling overseas because they thought I was too young. My mother said that I had caused my father's death because he was depressed. He had died in July 2014. They believed that I had told my father that I was gay before he had died. My mother told me that I had caused the [condition] that caused my father to die. My father had suffered from depression. Seven years before his death he suffered from [another medical condition] and died in July 2014. My family believes that I had caused it. Since I have told them, they have not contact me at all and have stopped giving me financial support. They told me to never come back, that I had "disgraced the family" and cut me off from them.
As an openly gay man, I believe that if I return to Pakistan, I will be attacked and harmed by members of the Pakistani community. If I return to Pakistan, I believe that people will beat me up in the street and even try to kill me because homosexuality is not allowed in Pakistan. Because Pakistan is an Islamic country and they can't make laws against Islam and homosexuality is against Islamic law. As well as my own experience of being beaten because of my sexuality, I heard two or three stories of men being beaten up because they were homosexual, but never saw these beatings myself.
When I was in Pakistan, no one talks about gays in Pakistan and there is no gay persecution on the news. No gay man would go to the police if they were being hurt because they could go to prison for 23 years, if they were found to be gay. Pakistan is an Islamic country. They do not make any laws that are against Islam and homosexuality is against Islam.
I also could not go to other places in Pakistan as the law exists throughout the country and 97% of the population are Muslims.
As mentioned before, my family has stopped communicating with me. I know if I return to Pakistan, I will not have any support from my family. I have not talked to my family since January 2015 and they have completely cut me off.
I believe that there is no acceptance of gay people in Pakistan and that my life is in danger as I do not have the protection, from authorities. As mentioned therefore homosexual acts are illegal and punishable by death. If I return to Pakistan and the authorities find out that I am gay, they will prosecute me.
As a gay man, I can be myself and I have the choice to be whoever I want to be with. Australia gives me lots of liberty to be a gay man with freedom of expression and choice. Australia is multicultural and allows different kinds of religion, so they do not have laws based on religion, particularly against gay people. Now Australia has the new law since 2017 with gay marriage, I feel like I can be myself and no one will judge me for that.
I go on Grindr (a dating app) once per week. I casually flirt with other men on the app. Sometimes I approach the men and other times I get approached. At least once a month, I go out with someone I have been talking to them. We usually meet at the station [or other venues] to have casual sex. We do not talk a lot. Mostly it is one time thing, sometimes I see them more than once. At the moment, I do not feel settled and am not ready for a relationship.
I also go clubbing at [locations deleted], I go once a month, mostly by myself. I tend to meet people there for casual sex. Most of the time, I do not get the chance to see these people again. I attended [an LGBTI event] in 2017 and 2018.
The Department sent the letter inviting me to an interview to my nominated address at [address deleted]. I never received the letter from the Department about attending the interview because no one from the [Suburb 1] house forwarded my mail or let me know that I received any mail from the Department because the people living there are my cousins from my father's [side]. They didn't know that I had submitted my protection visa application. I used to live with them for two and a half years when I first arrived in Australia and when I lived with them, I couldn't be openly gay. They are from the same community in Pakistan and I had a feeling they would not accept me for my sexuality. I also believed that it would be embarrassing for my family if my cousins found out that I was gay.
However, I was dearly waiting to receive an email from the Department about the status of my
application. I provided my email address [at] Question 20 of the 866 Visa Application form where I expressed my wish to have all communications directed to this email address. I honestly thought they were going to contact me via email because I had provided my email address in the application. I never received an email from the Department.
Six months after lodging my application, I called the Department directly. The person on the phone told me that they had already refused my protection visa application because I didn't attend the interview and I had one 1 or 2 days to apply for review. Had I received an email from the Department about my interview, I would have responded and attended the interview.
Tribunal Hearing, 6 June 2018
The applicant appeared before the Tribunal on 6 June 2018 to give evidence and present arguments. The following is a summary of the information provided by the applicant at the hearing on 6 June 2018:
a.The applicant confirmed that all the information in his Protection visa application is correct and there was nothing he wished to change or add.
b.His [sisters], mother and brother are living in Pakistan. He has another sister who lives in [another country].
c.He does not want to return to Pakistan because it is an Islamic country. Homosexuality is a sin. He is a gay man.
d.He realised he is homosexual at high school when he was about [age] years old. His friends would watch pornography and he realised he was not interested in girls. No one openly admitted they were gay but he had an interaction with a boy in the school.
e.He feels he is different from normal people. When he was young he felt it was okay to be gay as he was not mature. He considered it fun and did not take it seriously. When he grew up he heard people were beaten or punished for being gay so he became worried. He felt depressed in case someone found out he had this thing.
f.He was the school proctor or monitor. The other school boys would go to the assembly but he would be in the classroom by himself. Another boy would stay back and the applicant would have relations with him. When the applicant would touch or feel him he would feel happy. It was not on a regular basis, just occasionally. The boy left the school when the applicant was in [grade deleted].
g.In 2010 the incident occurred with [Mr A]. The applicant was [age] years old then. Friends of [Mr A]’s [brother] discovered them together. He and [Mr A] were in the guest house at [Mr A]’s place. It was a little distance from the main house. It was a space just for males. The men who discovered them only knew [Mr A], not the applicant. [Mr A] lived in [Town 2], about [distance] drive from the applicant’s village.
h.The applicant never saw [Mr A] again after the incident. He doesn’t know what happened to [Mr A]. The applicant was scared to go out after this. He would just go to school then go home.
i.He had two cousins in Australia so he asked his parents if he could travel to Australia to study. They told him he was too young. When he turned [age years old] he was allowed to come to Australia. For the two years he remained in Pakistan he just attended school and stayed home. He continued to go to school so he could get a visa. He had good marks so it was easy to get the visa. In Australia he studied for only the first four months.
j.In Australia he had a gay friend. The applicant thought he could apply for a partner visa through his gay friend. His friend’s name was [Mr C]. The applicant met him on a dating application about a year, or year and a half, after arriving in Australia. [Mr C] lived in [another suburb]. He would meet with [Mr C] at least once every two or three weeks over a period of almost a year.
k.The applicant thought he could get a partner visa with [Mr C] because initially [Mr C] said that if the applicant’s student visa expires, he would try to get a partner visa for the applicant. But later he changed his mind. [Mr C] ended the relationship and stopped responding to the applicant’s messages. He told the applicant he could not help the applicant obtain a partner visa, but he explained the protection visa process to the applicant.
l.The applicant and [Mr C] did not live together. They would have coffee and go out together and sometimes have sex. It was an ‘on and off’ relationship. At the time the applicant was still living with his cousins. He moved out after he received his Protection visa refusal.
m.He did not receive the Department’s interview invitation because it was sent by registered post and no one gave him a card to inform him that there was registered post for him. He wrote in his statement that no one ‘forwarded’ him the letter but meant that no one gave him the card.
n.When he left his cousins place he moved into a room [in] a house [with] several other people. None of the other people were gay. He now lives in [Suburb 2] with a Pakistani friend, [Mr D]. [Mr D] is not gay but he knows the applicant is gay. Now the applicant tells everybody he is gay. When he first told [Mr D], about three years ago, [Mr D] thought the applicant was joking. He found out it was not a joke but he is quite open minded so it is okay. [Mr D] has Pakistani friends but they don’t know the applicant is gay. [Mr D] does not tell them or anyone else. They visit the house but they don’t know. If they find out the applicant is gay he does not mind.
o.The applicant does not keep in contact with Pakistanis or Muslims, only [Mr D] who he shares a house with. [Mr D] is [a westernised] Pakistani so he is okay. The applicant has not considered sharing a house with other gay people. He has developed a friendly relationship with his current housemate and feels comfortable with him. [Mr D] helps the applicant with his questions about visas.
p.The applicant asked [Mr D] for a letter of support for his visa application but [Mr D] said he doesn’t want to get involved. His own immigration application is being processed, and he thinks if Immigration see a letter from him they will have a problem with him. [Mr D] is currently on a Bridging visa. The applicant has some gay friends but they also don’t want to write a letter for him.
q.The applicant uses a dating application in Australia to see men. Some of the men he has met with a number of times. For example he has met with [Mr E] and [Mr F] three or four times. He uses the application to meet with someone every two or three weeks. He is currently not in a relationship because he has not found the right person. He just has sex with a man and goes home.
r.He is interested in gay culture in Australia. He has learned that gay men are very comfortable and no one physically attacks them. He has three or four gay friends in Australia. He met them through the dating application. He doesn’t know of any organisation in Australia that supports gay men of South Asian background. He would not be interested in such an organisation anyway. He likes people from Australian culture.
s.He is a member of an organisation in [Suburb 3]. It is [an Australian city 1] gays and lesbians community group. They have an office in [Suburb 3]. He doesn’t think they have any specific name. He submitted his membership card for the organisation.
t.He does not appear in [an LGBTI event] photos he submitted but he was there. There was no specific reason why he took the photographs. The party was after the [event]. They all gathered [around the area] for a party. He was there with [Mr E] and [Mr F]. They are not in any of the photos either. There were some other photos too but he has changed his phone so no longer has all his photographs. There is drinking and music at the after party. He drank and danced and stayed until the morning. There were gay performers on a stage. He enjoyed the party.
u.He went to [an LGBTI event] after party this year too. It was in mid-February.[Sentence deleted]. He was there with [Mr F] and [Mr E] again. He doesn’t know their full names. [Mr F] lives in [suburb deleted] and [Mr E] lives in [suburb deleted]. He often visits them. He thinks they are Australian citizens. He has no photos of them. He asked them to support his visa application but they said they don’t want to be involved in immigration matters.
v.He is not in the photographs of [another event]. It happened the day after the parade. He just took photos. He took a lot of photographs by himself at clubs because he mostly visited them by himself. Sometimes [Mr F] and [Mr E] were there. Mostly he goes by himself to drink and dance and have sex with a boy. The other person with him in the photo from [is] a hotel employee. The applicant took the photo because the man was interestingly dressed.
w.He took a photograph of himself on the day of the marriage equality plebiscite result because he was wearing a rainbow hat. He thinks he was at [Mr E]’s place then. That night they went to [Suburb 3] to [a pub] to join in the celebrations. He went to [a show] by himself. He went to it because he is a member of the gay and lesbian organisation which sent him an email about it. The organisation is details deleted]. He has also been to [other events].
x.He became a member of the [Australian city 1 LGBTI] organisation two years ago. His membership expired and he has a second membership. The only name the organisation has is ‘[name deleted]’. He became a member to get event discounts and updates. He asked them for help but they said they only organise events. It was through the organisation he received a discounted ticket to [two events].
y.The Grindr photos he submitted include one he took of himself after he had sex. He took the photo for evidence in his visa application.
z.He saw [the] psychologist, two weeks ago. He has seen her 6 or 7 times. He first started seeing her about 5 or 6 months ago.
Written Submission, 8 June 2018

On 8 June 2018 the applicant sent the following documents to the Tribunal:
a.   An undated letter from [Mr D], with a note of his availability to provide oral evidence. In the letter [Mr D] states he has known the applicant for the past few years as a very close friend and lived with him for the last two years. He refers to the applicant’s homosexuality and states he has seen the applicant with a few of his partners.
b.   The telephone number of [Ms G] and a note indicating her availability to provide oral evidence.
c.   Three photographs of the applicant standing next to another man.
Written Submission, 12 June 2018
On 12 June 2018 the applicant sent the following document to the Tribunal:
A letter from [Mr H], dated 12 June 2018, with a note of his availability to provide oral evidence. In the letter [Mr H] states he met the applicant through a dating application on social media; that they made arrangements to meet up together on several occasions; and that on each of those occasions they had sexual relations as they are both homosexual.
Tribunal Hearing, 3 July 2018
The applicant appeared again before the Tribunal on 3 July 2018 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr H], [Ms G] and [Mr D].
The following is a summary of the information provided by the applicant at the hearing on 3 July 2018:
a.The applicant met [Mr D] about 5 or 6 years ago when they lived at the same address in [Suburb 1] with the applicant’s two cousins. [Mr D] knows one of the applicant’s cousins. He was still living there when the applicant moved out. They remained friends and started sharing a house again about two years ago.
b.[Mr D] found out the applicant is gay about three years ago, when the applicant told him. [Mr D] is open minded and not religious. The applicant feels comfortable with him. [Mr D] sees the applicant with other gay men, casual sexual partners, at their home. [Mr D] does not interact much with the applicant’s guests.
c.[Mr H] is a casual sexual partner. They met on Grindr. The first time was in May 2017 at [Suburb 4] Station where they had coffee and then went back to the applicant’s place. They have seen each other three times. [Mr H] lives in [suburb deleted] but he works in [Australian city 2] so he lives there as well. He is [age] years old. The second occasion they met was in around September 2017. [Mr H] came from [Australian city 2]. They met at [Suburb 4] and went back to the applicant’s place. They last saw each other in January 2018 at [Suburb 4] station for about ten or fifteen minutes. They just had coffee together.
d.[Mr D] is married but he has other girlfriends. The applicant met [Ms G] through [Mr D]. [Mr D] works at [Club 1]. [Sentence deleted].
e.[Ms G] knows the applicant is gay because she would see him with partners at [Club 1]. She would also visit the applicant’s house. She goes there about twice a month. She is in a casual relationship with [Mr D].
The following is a summary of the information provided by the witness [Mr D] at the hearing:
a.The applicant lives with him. The applicant sometimes brings his partners home. He last saw the applicant with a partner at their place maybe a couple of months ago.
b.He works at night so does not see much of the applicant’s partners.
c.When he moved to Australia one of the applicant’s cousins was his best friend.
d.The applicant goes to the sporting club where [Mr D] works. He goes there with his friends for a few drinks and to gamble sometimes.
e.He found out the applicant is gay a couple of years ago. The applicant was struggling with some things and asked him to move in with him. [Mr D] was shocked at the time but he supports the applicant with his choices.
f.He and the applicant are a bit far from the Pakistani community in Australia.
g.The applicant has struggled mentally for a few years because of his family and what he is going through.
h.Boys in Australia call the applicant ‘[Applicant’s Alias 1]’.
The following is a summary of the information provided by the witness [Mr H] at the hearing:
a.He is a citizen of Australia.
b.He met the applicant on a gay dating application last year, in about mid-September or earlier. He has met with the applicant three times. The second time was in September. The first time they met was in about May in the early evening. They spoke together on a chat website. He asked the applicant if he wanted to meet for coffee. The applicant invited him back to his house and [Mr H] went there. They had a couple of drinks and things happened.
c.The applicant lives in [Suburb 2]. His name is [Applicant’s Alias 1].
d.The last time he met the applicant was in January this year. They just had coffee at [Suburb 4] station. They have not seen each other since then.
e.The applicant did not ask [Mr H] to write a letter for him. [Mr H] asked the applicant if he wanted [Mr H] to write a letter of support. This was in about March. They were talking on the phone together on Grindr. They keep in touch. [Mr H] calls the applicant to see how he is going. They just talk together about random things, mostly sexual chat.
f.[Mr H] lives in [suburb deleted] but he travels a lot. He works in [Australian city 2]. When he comes to [Australian city 1] he sees the applicant but not always.
The following is a summary of the information provided by the witness [Ms G] at the hearing:
a.She knows the applicant because they have friend in common, [Mr D].
b.The applicant goes to the club where [Ms G] works as the club is open most of the night, til 6 am. The applicant goes there about once a month with friends and guys, who seem to be his partner. They hold hands.
c.[Ms G] is [an occupation]. The applicant goes there to play pokies and have a beer. It is not a gay venue, [but] gay people go to the club. They had a Pride show at the club recently.
Country Information
DFAT’s September 2017 ‘Country Information Report – Pakistan’, states:
Sexual Orientation and Gender Identity
Homosexual sex between men is illegal in Pakistan. Section 377 of the Penal Code outlaws consensual ‘carnal intercourse against the order of nature with any man, woman or animal’, punishable with imprisonment for two years to life. It is unclear whether Section 377 of the Penal Code applies to sexual relations between women, because of its language around penetrative ‘carnal intercourse’. Section 377 is rarely enforced in practice, although there are reports of men being threatened with prosecution as a means of extracting a bribe. Homosexuality is not widely discussed or acknowledged in Pakistan. Same-sex attracted people are highly constrained by cultural, religious and social intolerance of homosexuality. These people are often not accepted by their families, and can be thrown out of home and forced into sex work. They face significant societal discrimination and, in some cases violence. In April 2014, a man was arrested in Lahore for killing three gay men he met online. He reportedly told police he wanted to send a message about the evils of homosexuality.
As with many other issues, the extent of familial and societal discrimination and violence faced by lesbian, gay, bisexual, transgender and intersex (LGBTI) people tends to be inversely proportional to their socio-economic status. Credible sources told DFAT that wealthy individuals from influential families in large urban centres face fewer constraints than poor people in rural areas. Nonetheless, even wealthy individuals face high levels of discrimination, and are often forced into a heterosexual marriage to preserve the family’s reputation and social standing.
As is common across South Asia, the Pakistan government formally recognises transgender people as a ‘third gender’. This designation appears on national identity cards. Transgender people have full voting rights and can inherit property. However, they still face high levels of societal discrimination and, in some cases, violence. Transgender people tend to live together in poorer communities within large urban centres. According to the US State Department, they often survive by begging or dancing at carnivals and weddings. In carrying out this work, transgender people are highly visible and are therefore vulnerable to physical and sexual violence. Muslim transgender people are not permitted to undertake hajj.
LGBTI issues are slowly achieving greater visibility, if not tolerance, in Pakistan, albeit from a very low base. A number of community organisations exist in some major urban centres to provide medical and support services to the LGBTI community. However, significant challenges remain. One medical support group told DFAT that only around a quarter of the HIV-Positive people who have the active support of community groups can access HIV health services; those without access to support groups have almost no chance of receiving the necessary treatment. A pro-LGBTI event hosted by the US Embassy in Islamabad in 2011 led to a significant backlash from religious groups and the broader community. In 2017, DFAT participated in and supported several low-key LGBTI events in conjunction with the International Day Against Homophobia, Biphobia and Transphobia (IDAHOT).
DFAT assesses that LGBTI people in Pakistan face high levels of official and societal discrimination in Pakistan. To the extent that violent incidents are rarely reported, DFAT assesses that this is due in part to a lack of recognition of LGBTI issues in Pakistan, and in part to the efforts of LGBTI people to conceal their sexual orientation and/or gender identity. DFAT assesses that openly LGBTI people would be subject to a high risk of societal violence.
The UK Home Office report, ‘Country Information and Guidance - Pakistan: Sexual orientation and gender identity’, published in April 2016, contains the following:
2.3.3 Same-sex sexual acts are illegal in Pakistan. The Pakistan Penal Code does not explicitly refer to homosexuality. However, ‘carnal intercourse against the order of nature’ is punishable under Section 377 of the Penal Code by a fine and/or imprisonment for a period of two years to life. The Offence of Zina (Enforcement Of Hudood) Ordinance of 1979 criminalises any form of penetration outside of a conventional understanding of heterosexual sexual contact. In practice the authorities rarely prosecute cases, but police use the laws for harassment and extortion. There is no law prohibiting discrimination on the basis of sexual orientation.
2.3.4 Lesbian, gay and bisexual (LGB) persons in Pakistan can be subject to societal discrimination as well as harassment and violence – most commonly within the family – and, depending on the facts of the case, are unlikely to be able to seek effective protection from the authorities.
2.3.5 Some LGB persons from privileged backgrounds (in that they are in the highter socio-economic groups and reside in cities) may enjoy a degree of openness and some level of acceptance from their family and close friends, provided they live discreetly; if their sexual orientation becomes known outside of these close circles they may be exposed to abuse or blackmail. Most same-sex relationships tend to remain secret due to the social stigma attached.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant submitted his Pakistani passport. On the basis of this document and the applicant’s oral evidence the Tribunal is satisfied the applicant is a citizen of Pakistan. The Tribunal assesses the applicant’s claims against Pakistan as his country of nationality and receiving country.
Credibility
The applicant has submitted a detailed written statement, oral evidence, photographs of himself at gay venues and events in [Australian city 1], a psychologist’s report, and evidence from witnesses, in support of his claim to be gay. In view of the breadth of available evidence and the lack of substantial concerns arising from the evidence, the Tribunal gives the applicant the benefit of the doubt that he is homosexual. The Tribunal accepts he is a gay man who was discovered with a sexual partner in Pakistan, and punched.
Fear of Harm in Pakistan
The Tribunal has considered available country information regarding the treatment of homosexuals in Pakistan. As assessed by DFAT “LGBTI people in Pakistan face high levels of official and societal discrimination in Pakistan” and “openly LGBTI people would be subject to a high risk of societal violence.”
The Tribunal is satisfied on the basis of the available information that there is a real chance of serious harm to the applicant in Pakistan if he is openly gay there, or if he is discovered to be gay. The Tribunal is also satisfied that the need to conceal his homosexuality would amount to an intolerable situation for the applicant in Pakistan, and further entail a real fear and risk of discovery leading to violence and discrimination. The Tribunal is therefore satisfied there is a real chance the applicant will be seriously harmed if he returns to Pakistan.
On the basis of the available information the Tribunal is satisfied that state authorities are a source of harm for homosexuals in Pakistan so that there is no available state protection for the applicant within Pakistan. The Tribunal is also satisfied that the real chance of serious harm to the applicant as a homosexual exists throughout Pakistan.
The Tribunal is satisfied that homosexual men are a particular social group in Pakistan in that they share a characteristic, their sexual orientation, which distinguishes them from the rest of Pakistani society. The Tribunal is satisfied that the applicant’s homosexuality is the essential and significant reason for the harm he is at risk of in Pakistan and that the harm arises from systematic and discriminatory conduct.
For the above reasons the Tribunal is satisfied that the applicant has a well-founded fear of persecution in Pakistan as a member of a particular social group, homosexual men in Pakistan, now and in the reasonably foreseeable future.
There is no indication that the applicant has a right to enter and reside in any other country and the Tribunal accordingly finds that he has no such right.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Melissa McAdam
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:    For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:    For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)    the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2018] AATA 2927

18 July 2018

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