1517280 (Refugee)

[2019] AATA 5833

1517280 (Refugee) [2019] AATA 5833 (25 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1517280

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Mila Foster

DATE:25 June 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 25 June 2019 at 9:55am

CATCHWORDS
REFUGEE – protection visa – Pakistan – religion – Christian – social group – family –missionary work – blasphemy – state protection inadequate – not reasonable to relocate in home country – inconsistent evidence – credibility issues – unable to ascertain with confidence veracity of claims – legally required to proceed on basis events occurred – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), r 1.12, Schedule 2

CASES
MIMA v Respondents S152/2003 (2004) 222 CLR 1
Randhawa v MILGEA (1994) 52 FCR 437
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51

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 and Border Protection to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of Pakistan, applied for the visas on 24 November 2014. The applicants claim to be Christians. The first named applicant applied for the visa on the basis that she would be harmed for reasons of religion if she returned to Pakistan. The second and third named applicants applied for the visas on the basis that they were a member of the family unit of the first named applicant, namely, her husband and daughter.

   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).

4. An applicant for the protection 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. These criteria are outlined in the attachment to this decision.

5. In considering these criteria, the decision maker is not limited to considering the basis on which the claims were made in the protection visa application. Thus, a person originally claiming the visa on the basis of family membership may nevertheless, in light of subsequent claims and evidence, meet the alternative criterion at time of decision – that they are a person to whom Australia has protection obligations.

   Section 499 Ministerial Direction

6. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. DFAT issued such a report in relation to Pakistan on 20 February 2019.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The claims and evidence in this case were presented in the applicants’ protection visa application, during an interview with the delegate and at a hearing before me.

8. The issues in this case are the credibility of the first named applicant and her claims, whether there is a real chance she would be persecuted for reasons of religion if she returned to her home area in Pakistan and, if so, whether it would be reasonable for her to relocate to another part of Pakistan where she would be safe from the persecution. A further issue is whether the first named applicant’s claims and evidence indicate that there is a real chance the other applicants would also face persecution in Pakistan. For the reasons I give in my consideration of the claims and evidence further below, I have concluded that this matter should be remitted for reconsideration.

   Protection visa application

9. According to information provided in the protection visa application, the first named applicant is [from] the city of Karachi in the Pakistan province of Sindh. She completed high school and obtained a [diploma]. She can speak, read and write Urdu and English. Between 2007 and 2014 she worked as [Occupation 1] at various churches.

10. The second named applicant is [also] from Karachi. He lived in Australia [from] 2010 until he applied for the protection visa application in November 2014.

11. The first named applicant was granted a dependent [temporary] visa in September 2013. She entered Australia in February 2014, departed June 2014 before she returned again in September 2014. 

12. The third named applicant is the first and second named applicants’ [age] year old daughter.

13. The first named applicant set out her reasons for claiming protection in a detailed written statement which included a list of news articles said to support her claims.

14. It is relevant to note at this point that there is a direct connection between the claims made by the first named applicant and those of another protection visa applicant whose review application I have considered concurrently with that of the applicants.[1] The other protection visa applicant is the first named applicant’s sister-in-law by marriage. Specifically, the sister-in-law is married to the second named applicant’s brother. The sister-in-law and the second named applicant’s brother applied for protection visas [before] the applicants. The sister-in-law applied for the protection visa on the basis that she had her own claims for protection while her husband applied for the visas on the basis of family membership. The sister-in-law’s claims are set out in a written statement containing essentially the same claims as the first named applicant.

    [1] Tribunal file 1517281, Department of Home Affairs file [specified].

15. The key claims made by the first named applicant in her written statement are as follows:

    a.She has been a Christian since birth. She lived with her parents in the neighbourhood of [deleted] in Karachi.

    b.Her father is retired but he had worked for [different organisations].

    c.Like her father she is very religious. Her father was involved in their church in[and] wanted his children to serve the church as well. She [undertook a specific task] on a daily basis. She [also undertook various other duties].

    d.She completed [an] Examination in 2010 and began working as a [Occupation 2]. During that time she met the second named applicant. He went to Australia [but] they kept in touch. After the second named applicant returned to Pakistan for a visit they married in December 2012.

    e.After marrying, she moved to [Neighbourhood 2] (hereafter [Neighbourhood 2]) in Karachi and became very close to her sister-in-law.

    f.Her sister-in-law’s father was a pastor at a church in [Neighbourhood 3] of Karachi. Her in-laws, her husband and her sister-in-law’s husband encouraged her and her sister-in-law to get involved in church activities but told to be careful. She continued her activities with her church and became involved in the activities of her sister-in-law’s father’s church in [Neighbourhood 3] and other nearby churches.

    g.Terrorists and police roamed the streets of [Neighbourhood 3] demanding money and expected Christians to convert to Islam; those who refused were abducted, forcibly converted and given in marriage to (ethnic) Pathans and elderly Muslims in tribal area. She was scared to move around on her own. She visited the poor with her sister-in-law and other Christians to distribute food and clothing. 

    h.During that time, Pakistani Taliban militants called the Therik-e-Taliban (TTP) had infiltrated Karachi and were involved in the abduction, harassment and forced conversion of Christians. The pastors ensured that men went along when the Christian community group travelled to serve the poor.

    i.Her in-laws would not permit her to travel to serve the Christian poor once she became pregnant. She [undertook a different task] instead.

    j.In February 2013 after her husband returned to Australia, she, her sister-in-law and her sister-in-law’s husband were on their way to her sister-in-law’s father’s church when they were stopped by police and a group of unknown men. The unknown men had photographs and appeared to be trying to identify someone. When one of the men came near her she pushed him away because of his foul breath. One of the men then held her by the neck and pushed her against the car. Her sister-in-law’s husband became angry and pushed the unknown man holding her. The unknown man tried to punch her sister-in-law’s husband but hit her instead. The police officers told them to leave and take her to a doctor.

    k.Her husband returned to Pakistan the following month and they went to the [Neighbourhood 2] Police station to make a complaint about the person who had hurt her. The police refused to take the complaint and ordered them to leave saying complaints had been received about her and her sister-in-law’s involvement in taking Muslim children to church and converting them. They decided to leave before they were arrested.

    l.Her sister-in-law’s husband returned to Australia in April [2013]. Her husband remained in Pakistan until June 2013 when he returned to Australia as well. She was unable to go with him because of her pregnancy.

    m.She remained at home with her daughter (who was born in September 2013) while her sister-in-law continued to travel with the church group to serve the poor.

    n.Her husband got her a [temporary] visa and she left Pakistan for Australia with her daughter (in February 2014).

    o.Her sister-in-law and other members of the Christian community continued to travel to areas where there were poor Christian children who had been taken away from their parents, forcibly converted to Islam and forced to work as slaves by radical Muslims. With the permission of the parents of the children, they would find and bring the children back, reconvert them to Christianity, and accommodate them in Christian seminaries and hostels. She had previously done this work with her sister-in-law and other church members.

    p.In May 2014, while out collecting such children, her sister-in-law and some church members were stopped and beaten by a group of men with beards and wearing kaftans similar to those of TTP militants. The radical Muslim men screamed that they would be taught a lesson for converting Muslim children to Christianity. The men disappeared with the children.

    q.She and her husband were shocked when they heard about the incident. Her sister-in-law’s husband wanted to immediately get her sister-in-law out of Pakistan. Her husband and her sister-in-law’s husband asked her to travel back to Pakistan and stay with her sister-in-law until a visa was arranged. She did so because she also missed her family.

    r.She returned to Pakistan in June 2014. In July 2014, police came to their house and arrested her and her sister-in-law. They were taken to the [Neighbourhood 2] police station where they were questioned about their involvement in converting Muslim children to Christianity. She and her sister-in-law were beaten repeatedly in the stomach and they vomited blood the whole night. They were also sexually harassed by police officers who threatened to hand them over to TTP militants. TTP men visited their cell during the night, screamed at them, called them infidels and vowed to kill them.

    s.The police refused to release them unless their husbands surrendered as well but their husbands could not return to Pakistan at the time. Her sister-in-law’s father, along with other pastors, approached a senior mullah in the area to help them and the other Christians who had been arrested. The mullah warned they could be tried under sharia law for converting Muslim children and found guilty of blasphemy.

    t.The senior mullah secured their release upon payment of money including a payment to the TTP which had been the cause of their arrest. They were warned by the police when they were released that the payment did not end the matter, that the police could not stop the TTP abducting them and taking them to sharia court for punishment, and that they had to either convert and face punishment or leave the country.

    u.After their release the police and TTP made calls threatening to kill them. Their neighbours were also talking about their treatment in custody and called them foul names.

    v.She fled Pakistan because she could not practice her religion and feared being taken away by the police and TTP. She was also concerned about her child being abducted by the TTP in revenge.

16. The protection visa application included copies of the applicants’ Pakistani passports, national identity cards and the third named applicant’s birth certificate.

    Interview with delegate

17. The first named applicant was interviewed by the delegate in relation to her claims for protection. I have listened to a recording of that interview. The interview was conducted with an Urdu speaking female interpreter.

18. The first named applicant also presented a letter from [an official] of [Organisation 1] at the interview. The [official] stated that he had known the first named applicant since 2009, and that she and her family were faithful and very strong Christians.

    Evidence submitted on review

19. The applicants were all invited to appear before the Tribunal on 23 November 2018 to give evidence and present arguments. Only the first named applicant appeared. She stated that her husband did not attend because he had to take care of their two young children. The hearing was conducted with an Urdu speaking female interpreter.

    Country of nationality

20. The applicants stated in their protection visa application that they are nationals of Pakistan and no other country. On the basis of their passports and national identity cards and in the absence of any evidence to the contrary I find that they are nationals of Pakistan and no other country.

    Applicants’ relationship

21. The first named applicant’s national identity card identifies the second named applicant as her husband. According to the delegate’s decision record the first named applicant was granted a [temporary] visa as a dependent of the second named applicant on the basis that she was his wife. I thus accept that the first and second named applicants are spouses.

22. The third named applicant’s birth certificate identifies the first and second named applicants as her parents. I thus find that the third named applicant is the child of the first and second named applicants.

    Applicants’ religion

23. The applicants stated in their protection visa application that they are Christian. The [Organisation 1] letter states that the first named applicant is a Christian. Their passports identify them as Christians. I thus find that the applicants are Christians.

    Credibility and claims of past harm

24. The first named applicant was not a good witness. 

25. The oral evidence she gave at the interview and hearing was often unforthcoming, vague, and hard to follow. There were inconsistencies in her evidence and inconsistencies with the oral evidence of her sister-in-law. Given the first named applicant provided a detailed statement of claims, has had a good level of education, can speak English and Urdu, and had the assistance of a female Urdu interpreter at the interview and hearing I expect she would have been able to provide clearer, more direct and consistent testimony. The issues with the first named applicant’s testimony and other matters which I refer to in the following paragraphs raise doubts about her credibility and the credibility of her claims.

26. In her written statement the first named applicant claimed that she came to the adverse attention of the police and TTP because of the work she did with her sister-in-law and other church members retrieving poor Christian children who had been taken from their parents and forcibly converted to Islam. According to the letter from the [official] of [Organisation 1] the first named applicant actively worked with the church in Pakistan [undertaking various duties]. There was no indication in the letter that the first named applicant had engaged in any church related activity in Pakistan which involved travelling to help poor Christians let alone to rescue poor Christian children who had been converted to Islam. Nor was there any indication in the letter that the first named applicant had been harmed in Pakistan for reasons of religion. If those claims were true I expect that the first named applicant would have communicated them to the [official] and that he would have referred to them in his letter.

27. The responses the first named applicant gave to the delegate’s questions about her written claim that that she participated in rescuing the forcibly converted Christian children was unforthcoming, changed and was hard to follow. Initially she seemed to say she was not involved in such activity, then that she would go out to help poor children but she did not know what kind of children they were, then that they would help forcibly converted children if they found them, then that she found two such children but that it was other senior church members who converted the children back to Christianity, and then that she and her sister-in-law just looked after and helped the children. What she told the delegate about how the converted children were located and identified as having been forcibly converted was equally hard to follow. I expect the first named applicant would have been able to give far more direct and clear evidence to the delegate about her involvement in such activity given it is a significant basis of her claim for protection.

28. The first named applicant claimed in her written statement that she began travelling to different areas to help poor Christian children with her sister-in-law and other church members after she married and stopped once she became pregnant. That would have been a very short period of time. The first named applicant married in early December 2012 and gave birth to her daughter just over 9 months later in late September 2013. Thus, it would only have been a matter of a few weeks or a month or so that she travelled to different areas to help poor Christian children. In light of that and that she indicated to the delegate that she only came across one of two forcibly converted children and that it was the senior church members who converted the children back to Christianity, it would appear that the first named applicant had a very limited role in rescuing forcibly converted Christian children. Yet at the hearing the first named applicant testified that she and her sister-in-law were picked up by the police in July 2014, almost 18 months after she had ceased her involvement in rescuing Christian children,  because they were major supporters of the church and did major work for the church. It appeared to me that the first named applicant sought to exaggerate her profile and the profile of her sister-in-law at the hearing.

29. The first named applicant gave inconsistent evidence about who harmed her during the February 2013 incident. According to written statement it was one of the unknown men but told the delegate it was one of the police officers. Further, she seemed very evasive when I questioned her about it. Initially she said she could not identify who it was but later that it was a police officer. I expect that the applicant would have been able to recall whether she was harmed by a police officer or one of the unknown men.

1. If it was true that the [Neighbourhood 2] police told the first named applicant in March 2013 that they had received complaints that she and her sister-in-law were involved in converting Muslim children to Christianity, I expect that her husband would have given some evidence – either written or oral – to support the claim given he was present at the time. The fact he has not done so leads me to question whether the claims about the incident in February 2013 and the response of the police in March 2013 are true.

2. I do not find it credible that after the applicant’s sister-in-law was beaten by suspected TTP militants in May 2014 the first named applicant would have put herself and her infant child at risk by returning to Pakistan to support her sister-in-law given she claims she too engaged in that sort of activity in the past. Further, her sister-in-law was not without support. Her sister-in-law was living with her in-laws at the time and her parents’ lived relatively close by. Further, as the decision for the first named applicant’s return seems largely to have been a decision made by her husband and brother-in-law I expect that her husband would have provided some corroborating evidence to support the claim that she returned to support her sister-in-law after the May 2014 incident.

3. Finally, the first named applicant and her sister-in-law gave inconsistent oral evidence to the delegate about what time of day the police arrested them in July 2014, where the sister-in-law’s child was when they were arrested, what the police said when they came to arrest them, and what time of day they were released the next day.

4. As a result of the above issues I do not believe that the first named applicant has given an entirely truthful about her church activities in Pakistan or the events she alleges occurred in February and March 2013, and July 2014. However, having regard to the fact that the claims involve the first named applicant being subjected to serious harm – specifically that she was beaten and sexually harassed in detention by police officers, it is possible that she had difficulty recalling and recounting those events accurately. Further, while there were inconsistencies between the oral evidence of first named applicant and her sister-in-law they have also to a degree corroborated each other’s claims including their claims about their detention. In addition, the following information from DFAT and other sources I have consulted indicate that her claims are not inherently implausible.

5. Pakistan is a majority Muslim country.[2] It is estimated that just over 96% of the population is Muslim and 1.59% is Christian.[3] Pakistan’s constitution establishes Islam as the state religion but also protects religious freedom[4] and there are no specific laws that discriminate against Christians.[5] While Pakistanis are generally able to practice their religious without official interference or discrimination, there has been a trend towards intolerance of religious minorities including Christians who face a risk of discrimination and violence from non-state actors including militant Islamic groups although the risk varies across locations.[6]

   [2] Department of Foreign Affairs, DFAT Country Information Report - Pakistan, 20 February 2019 (DFAT Report), [2.7].

   [3] DFAT Report, [3.72].

   [4] DFAT Report, [3.70].

   [5] United Kingdom Home Office, Country Policy and Information Note, Pakistan: Christians and Christian converts, September 2018 (UK Home Office Report), [5.1.1].

   [6] DFAT Report, [3.80]; European Asylum Support Office, EASO COI Meeting Report – Pakistan, February 2018 (EASO 2018 Report), pp.45,48; UK Home Office Report, [8.2.1], [8.1.1]-[8.1.5].

6. A small number of Christians in Pakistan are relatively prosperous but most are economically vulnerable and many are bonded labourers with little education.[7] The information the applicants provided in their protection visa application about their education and employment and the testimony the first named applicant gave about her family and her husband’s family, indicates that the applicants and their families are among the small number of relatively prosperous Christians. Given the large number of very poor Christians in Pakistan it not inherently implausible that as a relatively prosperous Christian the first named applicant engaged in some activities with other church members to help poor Christian children.

   [7] DFAT Report, [3.136]-[3.137]; EASO 2018, p.45; United Nations High Commissioner for Refugees, Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities from Pakistan, January 2017 (UNHCR Report), p.40.

7. Many children in Pakistan, especially girls, face a moderate risk of domestic and social violence.[8] Economically disadvantaged children (as most Christian children are) are particularly vulnerable.[9] Child labour is legal and over 2 million people including children are trapped in slavery mostly due to debt bondage.[10] It is thus plausible that some poor Christian children in Pakistan become the victims of slavery. I am less satisfied about the extent to which such children might be forcibly converted to Islam given the sources report on Christian (and Hindu) women and girls being forced to convert for the purpose of being married to Muslim men.[11]

   [8] DFAT Report, [3.245].

   [9] DFAT Report, [3.245].

   [10] DFAT Report, [3.243].

   [11] DFAT Report, [3.149]; UK Home Office Report, [6.3.1]-6.3.5]; UNHCR Report, pp.44-45.

8. DFAT assesses that Christians face a low level of official discrimination, a moderate level of societal discrimination, and a moderate risk of societal violence and sectarian violence.[12] Militant and extremist groups target Christian individuals, churches, residences and other places where Christians congregate.[13] In recent years Sindh province has been infiltrated by militant and extremist elements[14] and Karachi has experienced significant sectarian violence caused by Taliban and sectarian groups including the TTP.[15]

   [12] DFAT Report, [3.143].

   [13] DFAT Report, [3.139], European Asylum Support Office, EASO Country of Origin Information Report  - Pakistan – Security Situation, August 2017 (EASO 2017 Report), pp.17, 35; EASO 2018 Report, p.34; UNHCR, pp.41-42.

   [14] EASO 2018 Report, [1.2.4].

   [15] EASO 2017 Report, p.66; EASO 2018 Report, p.92.

9. Blasphemy is criminalised in Pakistan.[16] Conversion from Islam, while not illegal, is often view as blasphemous.[17] Blasphemy laws have been misused by militant groups and members of some Muslim communities to intimidate, threaten and harass religious minorities to settle personal, business or property disputes.[18] The implementation of laws against blasphemy disproportionally affects religious minorities including Christians.[19] Further, not only are the legal penalties for blasphemy serious, the mere accusation of blasphemy can carry serious risks for a person accused of a blasphemy offence. For example, they can face death threats, assaults and assassinations by members of the community and security forces before they are arrested or even after they have been acquitted, and have even reportedly been tortured or killed in police custody or detention.[20] Further, the families of those accused of blasphemy are at serious risk of harm facing, for example, arbitrary detention by police or vigilance violence by zealous Muslims.[21]

   [16] DFAT Report, [3.81].

   [17] DFAT Report, [3.81]; UK Home Office Report, [6.1.1]-[6.1.2].

   [18] DFAT Report, [3.84], UK Home Office Report, [8.2.1]; UNHCR Report, p.43.

   [19] DFAT Report, [3.89], [3.143]; EASO 2018 Report, p.34.

   [20] UNHCR, p.16; UK Home Office Report, [8.2.2].

   [21] UNHCR, p16; UK Home Office Report, [7.3.1], [8.2.2].

10. In this context it is not implausible that Christians involved in trying to return Christian children allegedly working as slaves to their parents could attract adverse attention from the Muslims they are working for, other Muslims or militant Muslim groups and that the blasphemy laws may be used to discourage or stop those activities or punish the Christians involved. Further, the first named applicant claimed that the areas that she and her sister-in-law travelled to were religiously mixed areas. It is thus not implausible that even if they were not assisting converted children that their activities in mixed neighbourhoods may have raised questions about whether they were trying to convert non-Christian poor to Christianity and hence attracted adverse attention.

11. In conclusion, while I have real doubts that the first named applicant has been entirely truthful about the nature and timing of the events she claims to have occurred, I am unable to say with confidence that there is no truth to her claims or to ascertain with confidence which claims are true and which are not. I am thus legally required to proceed on the basis that the past events alleged by the first named applicant occurred.

    Risk of future harm - first named applicant 

12. Given the considerable period of time that has elapsed since the first named applicant left Pakistan and thus last came to the adverse attention of the local police and TTP in [Neighbourhood 2], the possibility that she would come to their adverse attention if she returned to the area does not seem high. However, the information referred to above from the sources I have consulted indicates that the situation for Christians in Pakistan has not improved. Religious intolerance grew in 2018 and the misuse of the blasphemy laws has in fact escalated.[22] Therefore, in my view there is a real chance the first named applicant’s return to [Neighbourhood 2] would be noticed and that having faced an accusation of blasphemy in the past and been threatened with further harm if she did not leave, she would face the kind of harm she was subjected to and threatened with in the past by the TTP and local police if she returned there. I find that being beaten, mistreated physically or sexually harassed amounts to persecution involving serious harm. I further find that being subjected to such persecution for activities engaged in in connection with her religion and to target her because she is a Christian amounts to persecution for reasons of religion.

    [22] DFAT Report, [3.82]; UK Home Office Report, [8.2.7].

13. As the local police are among the perpetrators of the harm the first named applicant would face the issue of state protection does not arise. Even if she was only harmed by TTP members or individual police officers misusing their power, the sources indicate that state protection in Pakistan is limited by various factors including limited resources and inefficiency.[23] Further, while some police efforts have been made to provide security to major churches and protect Christian enclaves in major cities, the government is considered to have failed to adequately protect religious minorities.[24] In addition, police, lawyers, and judges are reported to frequently demonstrate bias against persons accused of blasphemy, and to provide inadequate protection to Christians accused of blasphemy.[25] Thus, I find that adequate state protection would not be available to the first named applicant against harm from the TTP or individual police officers acting beyond their authority.

    [23] DFAT Report, [5.1]; EASO 2017 Report, p.45.

    [24] DFAT Report, [3.78], [3.139]; UK Home Office Report, [7.3.2], [7.3.10]; UNHCR Report, p.39.

    [25] UK Home Office Report, [7.3.10]; UNHCR, p.40.

14. The persecution the first named applicant would face is localised. It arises because of activities she engaged in in her local area which came to the attention of the local police and TTP. Although she was accused of blasphemy it does not appear that she was charged or that there is any pending investigation. The evidence does not suggest to me that if the first named applicant returned to a different part of Pakistan she would be detected there by the TTP or police from her former local area and hence pursued on blasphemy charges or otherwise harmed by them.

15. The question thus arises whether it would be reasonable for the first named applicant to relocate to another part of Pakistan where she would not face the persecution. The first named applicant claimed that Christians face religious persecution throughout Pakistan. I am not satisfied there is a real chance the first named applicant would face serious harm amounting to persecution because she is a Christian throughout Pakistan. Firstly, while the information in the sources I have consulted indicates that Christians face a risk of societal discrimination, societal violence and sectarian violence it does not indicate to me that the risk of harm amounting to persecution rises to the level of real chance for Christians generally across Pakistan. Secondly, the first named applicant had not been subjected to serious harm prior to engaging in activities helping poor Christian children. Thirdly, I do not believe the first named applicant would resume her previous activities helping poor Christian children in the reasonably foreseeable future. Her evidence indicates she engaged in that activity at the behest of family members and that she ceased after she became pregnant.

16. However, given the general conditions for Christians in Pakistan I do not consider it reasonable for the first named applicant to relocate to an area without a Christian community. DFAT reports that while Christian enclaves in which Christians tend to live mitigate against the risk of societal discrimination it also increases their vulnerability to violence.[26] Further, I find that the risk of societal discrimination, societal violence and sectarian violence which the first named applicant would face as a Christian, while not rising to the level of real chance of persecution for the purposes of assessing well-founded fear, is a practical reality which makes relocation to a Christian enclave in Pakistan unreasonable. It would thus not be reasonable for the first named applicant to relocate within Pakistan to avoid the persecution she would face in her home area in Karachi.

    [26] DFAT Report, [3.139].

17. Given the above, I find that the first named applicant has a well-founded fear of persecution in Pakistan for reasons of religion and hence that she is a refugee as defined in the Refugees Convention. I am thus satisfied that the first named applicant 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 other applicants

18. Even though the second named applicant has not presented claims or evidence that he fears being harmed if he returns to Pakistan, I conclude on the claims and evidence presented by the first named applicant that he holds a subjective fear of being persecuted if he returns to Pakistan because he is a Christian and the first named applicant’s husband. Further, while the third named applicant is a child, the first named applicant has claimed on her behalf that she fears the third named applicant would be harmed as an act of revenge against the first named applicant. Further, I find there is a real chance that the second and third named applicants would be persecuted because they are a member of the first named applicant’s family. My reasons for those conclusions are as follows.

19. It is well established that a family is capable of constituting a particular social group within the meaning of the Refugees Convention. I find that a family is a particular social group and that as the first named applicant’s husband and child the second and third named applicants are members of her family. The second and third named applicants are thus each a member of the particular social group of the first named applicant’s family.   

20. As noted above the mere accusation of blasphemy can carry serious risks not just for the accused person but their families as well. Furthermore, in this case the first named applicant claims that when she was detained the police initially refused to release her unless her husband surrendered himself to them and that following her last departure from Pakistan her in-laws were harassed by the police. I thus find that the second named applicant has a subjective fear and that there is a real chance he would be assaulted by the TTP and/or detained and assaulted by the police in his local area because he is member of the particular social group of the first named applicant’s family. Further, I find that there is a real chance that in the course of attempting to assault or detain the first named applicant, the third named applicant would also be subjected to serious physical harm by the police and/or TTP. As the persecution the first named applicant faces in her local area is for a Convention reason the exception in s.91S does not apply to the second or third named applicant.

21. As indicated above in relation to the first named applicant, the issue of state protection does not arise because the potential persecutors of the second and third named applicants include the local police and they would not have adequate state protection against harm from their non-state persecutors. 

22. Finally, as the second and third named applicants are Christians, I find for the reasons I have given above in relation to the first named applicant that it would not be reasonable for them to relocate within Pakistan to avoid the persecution they would face in their home area.

23. I therefore find that the second and third named applicants have a well-founded fear of persecution for reasons of their membership of a particular social group and hence are refugees as defined in the Refugees Convention. I am thus satisfied that the second and third named applicant are each a person in respect of whom Australia has protection obligations under the Refugees Convention. Consequently, the second and third named applicants also satisfy the criterion set out in s.36(2)(a).

    DECISION

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

    Mila Foster
    Member

    
    

    ATTACHMENT

    Refugee criterion

    Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

    Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

    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.

    There are four key elements to the Convention definition.

    First, an applicant must be outside his or her country.

    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. 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.

    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.

    The meaning of the expression ‘for reasons of ... membership of a particular social group’ was considered by the High Court in Applicant A’s case and also in Applicant S. In Applicant S Gleeson CJ, Gummow and Kirby JJ gave the following summary of principles for the determination of whether a group falls within the definition of particular social group at [36]:

    … First, the group must be identifiable by a characteristic or attribute common to all members of the group.  Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution.  Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large.  Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a "social group" and not a "particular social group". …

    Whether a supposed group is a ‘particular social group’ in a society will depend upon all of the evidence including relevant information regarding legal, social, cultural and religious norms in the country. However it is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution. The persecution must be for reasons of the person’s membership of the particular social group.

    It is well established that a family is capable of constituting a particular social group within the meaning of the Convention. However, this is subject to s.91S of the Act, which provides that the following matters must be disregarded in determining whether a person has a well-founded fear of being persecuted for reasons of membership of a particular social group that consists of the person’s family:

    (a)       any fear of persecution, or any persecution, that any other family member has experienced, where the fear or persecution is not for one of the Convention reasons; and

    (b)      any fear of persecution, or any persecution, that the applicant or any other family member has 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 (a) above had never existed.

    Therefore, a person who is pursued only because he or she is a relative of a person targeted for a non-Convention reason will not have a well-founded fear of persecution under Australian law.

    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.

    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. The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country: Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 440-1.

    Depending upon the circumstances of the particular case, it may be reasonable for a person to relocate in the country of nationality or former habitual residence to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. Thus, a person will be excluded from refugee status if under all the circumstances it would be reasonable, in the sense of ‘practicable’, to expect him or her to seek refuge in another part of the same country.

    What is ‘reasonable’ in this sense must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country. However, whether relocation is reasonable is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic rights. The Convention is concerned with persecution in the defined sense, and not with living conditions in a broader sense: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.

    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]. Where the State is willing but not able to provide protection, the fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify an unwillingness to seek their protection: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [28]. In such cases, a person will not be a victim of persecution, unless it is concluded that the government would not or could not provide citizens in the position of the person with the level of protection which they were entitled to expect according to international standards: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [29]. Harm from non-State actors which is not motivated by a Convention reason may also amount to persecution for a Convention reason if the protection of the State is withheld or denied for a Convention reason.

    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

    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’).

    Member of the same family unit criterion

    Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include a spouse and child.