1518016 (Refugee)

[2018] AATA 1741

1518016 (Refugee) [2018] AATA 1741 (14 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1518016

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:James Silva

DATE:14 May 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 14 May 2018 at 10:59am

CATCHWORDS
Refugee – Protection visa – Pakistan – Whether the applicant has a well-founded fear of persecution – Religion – Ahmadi Muslim – High level of official discrimination in Pakistan – Restriction of religious practices – ‘Socially banned in the neighbourhood’ – Gave speeches – Widow status and family members overseas or deceased – Would not be safe nor reasonable to relocate within Pakistan Credibility issues – Unhurried departure from Pakistan – Exaggerated claims – Remitted for reconsideration – Extensive travel to other countries – Opportunity to seek protection in another country

LEGISLATION
Migration Act 1958, ss 36, 65, 91R, 438, 499
Migration Regulations 1994, Schedule 2

CASES
MZAFZ v MIBP [2016] FCA 1081
MIMAC vSZRHU (2013) 215 FCR 35

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. The applicant is a woman in her early [age] who claims to be a citizen of Pakistan.

2. The applicant arrived in Australia on 22 March 2014, as the holder of a visitor (class FA) visa. She applied for a protection (class XA) visa on 4 May 2014. On 16 December 2015, the delegate of the Minister for Immigration and Border Protection (the delegate) refused the application pursuant to s.65 of the Migration Act 1958 (the Act).

3. This is an application for review of that decision.

4. The Tribunal has before it a range of material, and has concluded that it can make a favourable decision without the need for a Tribunal hearing.

5. For the reasons set out below, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CRITERIA FOR A PROTECTION VISA

6. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether she is entitled to complementary protection. A summary of the relevant law is set out in Attachment A

   CLAIMS AND EVIDENCE

   Protection claims

7. The applicant is an Ahmadi Muslim. She claimed that her family has experienced a long history of religious persecution. Her own home in Rawalpindi served as a prayer centre, and was subject to local harassment. She fears religious persecution if she returns to Pakistan.

   Background

8. The applicant is a [age] year old woman from Quetta, Pakistan. She speaks Urdu, and claims to be an Ahmadiyya Muslim.

9. The applicant attended secondary school in Quetta, and from [date] to [date], undertook her Higher School Certificate and later a Bachelor [degree] in Lahore. After marrying, she lived in Karachi, and from 1993 onwards in Rawalpindi. She has done home duties, and never had paid employment.

10. The applicant married in Sargodha in 1972. She has a daughter [living] in [Country 1], and a son [with] whom she is currently living in [Australia]. Her parents are deceased (her mother died in December 2016), and she has three younger siblings. A brother lives in Pakistan, a sister in [Country 2] and a second brother recently moved to [Country 3], where he has been granted refugee status.

11. The applicant’s most recent Pakistan passports was issued in [2010], and expired in [2015]. She indicated on the application form that she held a prior Pakistan passport.

12. The delegate’s decision sets out the applicant’s extensive travel history, which includes extensive periods spent in [Country 2] and [Country 1], with the applicant returning to Pakistan on each occasion:

    §  January 1984 – January 1993:         Resident in [Country 2] with her husband and children

    §  September-October 1998: [Country 2]          Visits to the [Country 2] were stated as being to visit her sister

    §  July-September 2000: [Country 1]               This and later visits to  [Country 1] were to see her daughter

    §  May-June 2001: [Country 2]

    §  June-August 2002: [Country 1]

    §  May-October 2007: [Country 1]

    §  April-June 2008: [Country 2]

    §  June-November 2008: [Country 1]

    §  April-October 2011: [Country 1]

    §  April-September 2013: [Country 1]

    §  January 2014 (two weeks): [Country 2]

13. In other words, the applicant has re-entered Pakistan after travel abroad on eleven occasions, and remained in Pakistan for periods ranging from about a week, to about five years. As noted in the delegate’s decision, the applicant was granted an Australian visitor visa on 12 December 2013. As noted above, she arrived in Australia more than three months later, on 22 March 2014.

14. The applicant’s most recent Pakistan passport was issued [in] 2010, valid for five years. At the time of her application, she held a [Country 1] ‘entry clearance’ (multiple entry visitor visa) that had been issued [in] June 2012 and was valid to [June] 2017. On 5 August 2015, the applicant’s then migration agent informed the Department that [Country 1] authorities had cancelled her entry clearance, as their ‘records show that [she had] sought further leave to remain in another country’.  

    Evidence

15. The evidence before the Tribunal includes the following relevant material:

    §  The applicant’s protection visa application, lodged on 5 May 2014. Attached to this were numerous documents, both personal and general country information. (see below). The applicant’s protection claims are set out in detail on the application form. There is also a covering submission received on 6 May 2014 from her [then-representative].

    § Identity documents: The applicant provided a photocopy (partial) of her most recent Pakistan passport (issued in [2010]); her national ID card, and the family registration form. The applicant also provided a photocopy of an earlier passport issued in [2005].

    §  Supporting documents: The applicant provided a letter from the Ahmadiyya Muslim Association Australia (AMAA), dated [May] 2014, verifying that she is a member of the Ahmadiyya Muslim community.

    -   [In] August 2015, she provided a copy of a letter from [Country 1] Embassy in[Country 2], advising that the entry clearance granted [in] June 2012 has been revoked, on the basis that [Country 1] records ‘show that [she had] sought further leave to remain in another country’.

    §  Country information: The applicant provided with her protection visa application a copy of the US Commission on International Religious Freedom’s Annual Report for April 2013, now outdated. (For other country information sources, see below, in the body of this decision.)

    §  The applicant attended a protection visa interview (‘Department interview’) on 3 December 2014.

    §  The delegate’s protection visa assessment record (‘delegate’s decision record’) of 16 December 2015.

    §  The review application lodged on 28 December 2015 had attached to it a copy of the decision record.

16. The Tribunal has received further material during this review, and made enquiries, as follows:

    §  On 11 January 2016, the Tribunal received a further copy of the AMAA letter of support.

    §  On 25 February 2017, the Tribunal received a detailed ‘statement’ which sets out the applicant’s claims in details (in part, addressing concerns in the delegate’s decision, and also presenting new claims), and a full copy of the UK Home Office’s February 2015 report on Ahmadis in Pakistan.[1]

    §  [In] April 2018, [an official] of the AMAA [confirmed] the validity of the AMAA’s letter of December 2014 (and, by implication, the applicant’s continued association with that community).

    §  On 6 May 2018, the applicant made a further submission with updated information. This included country information. She stated that her mother in Pakistan has now died (and provided of her death certificate) and that, following her death, her brother and his wife went to [Country 3], where they were granted a protection. [The immigration officials] of [Country 3] notice dated 12 December 2017 confirms that her brother and sister-in-law were found to be Convention refugees. On 13 May 2018, the Tribunal received a copy of the brief [Country 3] record summarising the oral decision to grant the applicant’s brother and sister-in-law refugee protection in [Country 3].

    [1] UK Home Office: Country Information and Guidance: Pakistan: Ahmadis, February 2015

17. The Department issued a certificate under s.438 of the Act, certifying that the disclosure of information on folios 97-116, and 93-96 of the Department file [number] was subject to paragraph 438(1)(a) of the Act. It stated that disclosure of the information would be contrary to the public interest, because it contains ‘details relating to internal business of the Department’. The relevant pages included internal records concerning the applicant’s application for a visitor visa in 2013, and internal records and correspondence concerning [Mr A]’s (her son’s) sponsorship of [Ms B] for a partner visa in 2011.

18. The Tribunal is of the view that the certificate is not valid, as it does not specify a reason that cold form the basis for a claim to public interest immunity, given the Federal Court decision in MZAFZ v MIBP[2], which considered a s.438 certificate with similar wording.The Tribunal wrote to the applicant on 7 May 2018, advising her of the existence of the certificate and inviting her comments on its validity, on natural justice grounds. In her submission of 13 May 2018, the applicant did not address these points directly.

    [2] MZAFZ v MIBP [2016] FCA 1081, Federal Court of Australia, Beach J, VID 461 of 2016

19. The Tribunal also noted that the records covered by the s.438 certificate indicate that she was granted a visitor visa on 12 December 2013, but did not arrive in Australia until 22 March 2014. It also noted that the relevance of the documents relating to [Mr A] is not immediately clear, but they may relate to his willingness to return to Pakistan for two months, from November 2009 to January 2010. The applicant provided some comments on both of these points, which the Tribunal has incorporated into the decision below.

20. The Tribunal has considered all the material, including the applicant’s submissions during the review application, which provide further, updated information. It has concluded that it is able to make a favourable decision on that information, without the need for a hearing.

    Country of reference / receiving country

21. The applicant claims to be a national of Pakistan. She entered Australia on a Pakistan passport (which expired on [date] 2015); she has travelled to and from that country extensively; she speaks Urdu, the main language of Pakistan; and she is familiar with that country. The Tribunal accepts that she is a national of Pakistan, and assesses her protection claims against that country.

    Assessment of claims: credibility

22. The Tribunal has taken into account the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility in evaluating the applicant’s claims and evidence as a whole. The Tribunal readily accepts that the applicant is an Ahmadi, as claimed. However, it has a number of concerns that she has exaggerated and embellished some of her claims. Moreover, it shares the delegate’s concerns that the applicant’s conduct – in particular, her travel to and from Pakistan over a long period, and her failure to seek protection in [Country 1]  – raises some questions about her need for protection. They suggest instead that she has elected to seek protection in Australia as a convenience.

    Ahmadiyya

23. The applicant has consistently claimed to be a member of the Ahmadiyya community, and has presented a range of evidence to support this claim. This includes the presentation of a letter from the AMAA in May 2014, stating that she is a member of that community. The Tribunal independently confirmed the continued validity of this advice, in April 2018.

24. The Department of Foreign Affairs and Trade (DFAT) recently provided the following summary of the Ahmadis in Pakistan[3]:

    Ahmadiyya is a religious movement based on Islam and founded in the Punjab region in the late 1800s by Mirza Ghulam Ahmad. Ahmadis consider themselves to be Muslims, and follow the teachings of the Quran. The Ahmadiyya believe that Ghulam Ahmad was the Mahdi (a prophet who, according to the hadith, would appear at the time of the second coming of Jesus Christ, and fill the world with justice and equity prior to the Day of Judgement). Sunni and Shi’a Muslims believe that the Prophet Muhammad was the last of the prophets, and many consider Ahmadis to be heretics.  

    Estimates on the number of Ahmadis in Pakistan vary, but most estimates lie between 2-4 million. Ahmadis live predominantly in Punjab province; Rabwah in Punjab is the location of the movement’s Pakistani headquarters. A larger number of Ahmadis live outside of Pakistan, including in Africa, Indonesia, the UK and the US. Leaders of the movement, including the current Supreme Head, Hazrat Mirza Masroor Ahmad, have resided in the UK since 1984.

    Unlike some other minority groups in Pakistan, Ahmadis are not readily identifiable by their appearance, language or names. Many Ahmadis choose to maintain a low profile in the community to avoid societal discrimination and violence, although community leaders and organisations are very active and vocal. Pakistan’s Ahmadi community is relatively well educated and prosperous.

    [3] DFAT, Country Information Report – Pakistan, 1 September 2017

25. In the decision under review, the delegate accepted that the applicant was registered as an Ahmadi, but expressed concerns (both at the Department interview, and in the decision) that the applicant’s passport identifies her as a Muslim. The applicant explained in her submissions that her husband recorded his religion as ‘Muslim’, in order to avoid discrimination and the possible loss of his job in [Country 1]. She followed suite. This accords with country information that Ahmadis face the difficult choice of either denying their religion, or risking being refused a passport. The United Nations High Commissioner for Refugees (UNHCR) noted in January 2017:

    Pakistani passports reportedly include information about the bearer’s religious affiliation. Muslims who apply for a passport are required to make a declaration to the effect that they denounce the Ahmadiyya movement’s founder as a false prophet and his followers as non-Muslims, and must declare that they believe the Prophet Muhammad is the final prophet. This declaration effectively means that Ahmadis must either deny their faith or forego the possibility of obtaining a passport.[4]

    [4] UNHCR, Eligibility Guidelines for Assessing the International Protection Needs of members of Religious Minorities from Pakistan, January 2017: HCR/EG/PAK/17/01: religious minorities

26. The applicant claimed that, following the death of her husband, she approached the National Database and Registration Authority (NADRA) office to request that her religion be changed to Ahmadi. She fled the building when NADRA officers looked at her menacingly. The applicant’s husband died in 2007. The Tribunal is not satisfied that the applicant made any such approach, even naively.

27. In sum, the Tribunal accepts that the applicant is an Ahmadiyya, and finds that the reference to her Muslim faith in her passport is consistent with this. 

    Past treatment as an Ahmadi

28. In her written statements and oral evidence, the applicant has alluded to a wide range of adverse treatment that she claims to have experienced (or witnessed) in Pakistan, as an Ahmadi. They include the following:

    §  Degrading attitudes and treatment, for instance, being referred to as a Qadiani/Mirzai; discrimination; and being ‘socially banned in the neighbourhood’, taunted by the local community, and prevented from doing normal business or trade. The applicant also claimed to live in fear at home, in particular as her servants could spread information about her in the wider community.

    §  Restrictions on her religious practice, such as being barred from non-Ahmadi mosques, attending festivals and giving speeches to promote the Ahmadiyya.

    §  The effect on her of experiences of other relatives, such as their involvement in the attack on Lahore mosques in 2010.

    §  Ongoing fear of persecution in Pakistan, arising from the country’s laws and policies (which include severe penalties for blasphemy), as well as societal attitudes.

    §  The applicant claimed that her fears intensified over time, particularly as she becomes frailer, and now that she has fewer living relatives in Pakistan (her husband and mother have died, and her brother is now living as a refugee in [Country 3]).

29. The Tribunal accepts, on the basis of country information about the treatment of Ahmadis in Pakistan, that at least some of these claims have a foundation in truth. The following excerpts from DFAT’s most recent report give examples of the nature and extent of mistreatment facing Ahmadis:

    While Ahmadis self-identify as Muslims, in 1974 the Pakistan government amended the Constitution to state explicitly that Ahmadis were considered non-Muslims. In 1984 the government of General Muhammad Zia-ul-Haq promulgated Ordinance XX, which banned Ahmadis from: publicly practising their faith; using non-Ahmadi mosques or public prayer rooms for worship; using Islamic texts for their prayers; performing the Muslim call to prayer; producing, publishing or disseminating religious materials; using the traditional Islamic greeting in public; seeking converts; or publicly quoting from the Quran. Ordinance XX also banned Ahmadis from identifying themselves or ‘posing’ as Muslims. Punishment for these activities is up to three years of imprisonment and a fine. Ahmadis are, however, exempt from the 2.5 per cent zakat deductions on personal income that are mandatory for Muslims in Pakistan.

    Ahmadis face high levels of official discrimination in Pakistan. Ahmadis are required to register to vote on a separate Ahmadi-specific list, which specifies that they are non-Muslim. Non-Muslim groups such as Christians, do not face such restrictions. In the lead-up to the 2013 elections many Ahmadis refused to register as non-Muslims on this list, and were therefore unable to vote. Applications for official documentation such as passports and national identity cards must contain information about religious affiliation (recorded on passport documentation). People who identify as Muslim have to explicitly denounce Ghulam Ahmad as a false prophet and Ahmadiyya followers as non-Muslims.

    Ahmadis are also not able to practise their religion freely. Credible sources told DFAT of cases where authorities, including police, have entered Ahmadi places of worship to dismantle minarets (symbols of Islamic mosques) and to remove Arabic inscriptions of Islamic texts from the walls. The Ahmadi community has told DFAT of examples where mobs have set fire to Ahmadi places of worship, desecrated graves and disinterred their dead. There are also credible reports of Ahmadi places of worship being given over to non-Ahmadi imams and their communities, and of authorities closing down Ahmadi publications. On 5 December 2016, officers from the Counter Terrorism Department of the Punjab Police raided the Ahmadi headquarters in Rabwah, arresting four Ahmadis on suspicion of publishing banned magazines. One security guard was reportedly beaten in the attack. On 12 December 2016, a crowd estimated at around 1,000 people attacked an Ahmadi place of worship in Chakwal, burning religious books and other items. One Ahmadi man died from cardiac arrest during the attack, while one non-Ahmadi man was killed by a stray bullet.

1. While this and similar reports generally support the applicant’s claims, the Tribunal has some concerns about the truthfulness and accuracy of her claimed personal experiences:

   §  First, the applicant’s several written statements present her claims in broad, often emotive or grandiose terms that seem to blur general country information, with her own experiences or those of persons near to her. Many of the claims, such as her assertion that she was ‘forced to stop’ [giving] ‘speeches on the propagation of Ahmadiyyat’[5]  are unsubstantiated and do not seem to accord with her personal profile or activities.

   §  Second, there is a disconnect between the applicant’s claimed experiences in Pakistan, and her conduct, in particular her extensive travel to and from Pakistan, and her lengthy stays in [Country 1]. 

   -   The applicant has provided various reasons for her visits to [Country 1], including to visit her daughter and to see religious leaders (although the Tribunal is disinclined to accept the latter in the absence of further details and evidence). She explained her returns to Pakistan by stating that her elderly mother needed her personal care, and the applicant thought she had ‘the strength to face the fear of persecution in Pakistan’, although this has now sapped.

   §  Third, the applicant was granted an Australian visa on 12 December 2013, notified to her the following day. She did not depart Pakistan until more than three months later. The applicant commented that she had to make arrangements for her ailing mother, and that her son had limited accommodation for her in [Australia]. The Tribunal is concerned that, even taking these factors into account, the applicant’s unhurried departure from Pakistan casts doubt on the degree of danger she perceived there.

   §  Finally, the very fact that, when seeking protection in Australia in May 2014, the applicant held an ‘entry clearance’ for [Country 1] that was valid till June 2017, adds to the impression that she was selecting a preferred migration destination, and not fleeing persecution. On 5 August 2015, her then migration agent to the Department, advising that [Country 1] authorities had cancelled her entry clearance. The accompanying letter dated 21 May 2015 from the Visas and Immigration section of [Country 1] Embassy in [Country 2] advised that she had ‘sought further leave to remain in another country’. This adds to the Tribunal’s concerns. In her statement of 25 February 2017, the applicant wrote that [Country 1] authorities relied on ‘information [about her having sought a protection visa application in Australia] that was not sourced from me’. However, it was the applicant’s own migration agent who advised the Department of the cancellation of her [Country 1] visa. If she had genuinely believed that a third party had divulged the fact of her Australian protection visa application to others, the Tribunal expects that she would have voiced concerns to this effect. The Tribunal disbelieves the applicant’s claim that she had nothing to do with the cancellation of her [Country 1] visa.

   [5] Page 5 of her statement of 25 February 2017

2. The Tribunal accepts, based on the applicant’s written claims, her statements at the Department interview and in light of country information, that she has experienced a range of adverse treatment in Pakistan, as an Ahmadi. Despite the concerns set out above – which go to her credibility and good faith – the Tribunal accepts that she has at least faced discrimination, restrictions on her religious practice and the intimidation and threats of harm that arise from official and societal discrimination. The Tribunal also accepts that the applicant has had to maintain a low profile, avoid identification as an Ahmadi and take other measures in order to avoid potential harm. The Tribunal also accepts that these have caused stress for the applicant, and that she has genuinely felt more vulnerable over time, particularly as close family members have died.

   ASSESSMENT: REFUGEE CRITERION

3. The Tribunal now assesses whether, on the basis of the findings of fact above, the applicant’s future conduct if she returns to Pakistan, and relevant country information, whether she has a well-founded fear of Convention-related persecution, now or in the reasonable foreseeable future.

4. Country information indicates that Ahmadis face high risks in Pakistani, arising from a wide range of official and societal discrimination.

   DFAT assesses that Ahmadis in Pakistan face a high level of official discrimination, which affects their ability to practise their religion freely and limits the extent of their political engagement. Ahmadis are also subject to a moderate level of societal discrimination, including accusations of blasphemy

5. In a similar vein, the UNHCR

   In light of the foregoing, UNHCR considers that members of the Ahmadi community, including those targeted by militant groups or charged with criminal offences under the blasphemy or anti- Ahmadi provisions, are likely to be in need of international refugee protection on account of religion, ethnicity, (imputed) political opinion, and/or other relevant grounds, depending on the individual circumstances of the case.[6]

   [6] UNHCR, Eligibility Guidelines for Assessing the International Protection Needs of members of Religious Minorities from Pakistan, January 2017: HCR/EG/PAK/17/01: religious minorities

6. The Tribunal takes into account the following factors, in assessing whether the applicant has a well-founded fear of persecution:  

   §Country information indicates that Ahmadis face high risks, arising from a wide range of official and societal discrimination, and volatile attitudes to Ahmadis

   §The Tribunal factors into this assessment DFAT’s advice, echoed in other sources, that many Ahmadis are well-off, that their community is active and vocal, and that in practice they conduct themselves in a way so as to reduce the risk of discrimination and violence. Furthermore, the applicant’s travel history, her failure to seek protection in [Country 1] and her continued property ownership in Pakistan all raise questions about the risks that she has faced in Pakistan, at least in the past.

   §The Tribunal must determine whether the applicant faces a real chance of persecutory harm in the reasonable foreseeable future. It therefore takes into account the change in her family circumstances in Pakistan, most notably the death of her mother in December 2016, her brother’s departure for [Country 3] (where he obtained refugee status in December 2017), and the fact that her son in Australia has not travelled to Pakistan since January 2014. All these factors suggest that the applicant no longer has the same degree of family support that may have provided her with some degree of protection in the past.  

7. The Tribunal is satisfied that the applicant faces a real chance of facing restrictions on her religious practice, and potentially, other harassment, including allegations of blasphemy. The Tribunal finds that, the feared harm, considered cumulatively, involves serious harm.

8. The Tribunal is satisfied that the State provides adequate and effective protection from such harm, and that the applicant’s fears are well-founded. In its view, the State’s involvement in devising and implementing harsh discriminatory anti-Ahmadi laws raises serious questions about its willingness to protect Ahmadis from harm inflicted by others. Numerous sources indicate that the police have raided Ahmadi offices, and arrested Ahmadis on the pretext of implementing blasphemy laws. And, as noted in the UNHCR’s Eligibility Guidelines[7]:

   State authorities are reported to frequently fail to provide adequate protection to Ahmadi individuals (see also Section IV, Situation of Religious Minorities in Pakistan).[8] Crimes and acts of violence against Ahmadis are reportedly not consistently investigated and perpetrators of such crimes are reportedly rarely brought to justice.[9] Intimidation tactics and pressure on authorities from Islamic fundamentalist groups reportedly contribute to the unwillingness of the State to intervene in, investigate, or to prosecute religious violence or crimes. For example, State authorities have reportedly failed to bring to justice those responsible for the attacks against members of the Ahmadi community which resulted in the deaths of a grandmother and her two grandchildren in July 2014.[10]

   [7] Ibid, no.6,

   [8] Canada: Immigration and Refugee Board of Canada, Pakistan: Situation of Ahmadis, Including Treatment by Society and Authorities; Legal Status and Rights with Regards to Political Participation, Education, and Employment (2013-January 2016), 13 January 2016, PAK105369.E, MRG, Searching for Security: The Rising Marginalization of Religious Communities in Pakistan, 9 December 2014, p. 7. [This is a representative sample only of the sources footnoted in the UNHCR excerpt.]

   [9] CERD, Concluding Observations on the Combined Twenty-First to Twenty-Third Periodic Reports of Pakistan, 3 October 2016, para. 15

   [10] Jinnah Institute, Persecution of Ahmadis in Pakistan 2012-2015, AHRC and IHRC, Report of the Fact Finding Mission to Pakistan, On the Rising Persecution of the Ahmadiyya Muslim Community,A Beleagured Community, 26 March 2015, pp. 32-33.

9. The Tribunal considers that the feared harm involves ‘serious harm’ as required by section 91R(1)(b) of the Act, and therefore amounts to persecution. The Tribunal considers that the applicant’s religion, ie her Ahmadi faith, is the essential and significant reason for the persecution she fears, as required by section 91R(1)(a), and that the persecution she fears involves systematic and discriminatory conduct, as required by section 91R(1)(c) of the Act.

10. Although the applicant’s past experiences relate to her home area of Rawalpindi, the Tribunal finds that it would be neither safe nor reasonable for her to relocate within Pakistan. It takes into account independent country information that Ahmadis face pervasive intolerance throughout Pakistan, including Rabwah, and that they are readily identifiable because they cannot attend the mosques of majority Muslims (and also because their religion is recorded on documents such as birth certificates). Also relevant is that the Pakistan authorities are responsible for the legislation and administrative acts that form the backdrop for much of this persecution, and their reach is nationwide. In the present case, there are additional factors that make it unreasonable for the applicant to relocate, including her widowed status, her age and the fact that her closest relatives are either deceased or living abroad. The Tribunal considers that these personal circumstances make it unreasonable for her to start a new life, unaccompanied, in Rabwah or another part of Pakistan.

11. Subsection 36(2), as qualified by subsections 36(3), (4), (5) and (5A), means that where a non-citizen in Australia has a right to enter and reside in a third country, Australia will not have protection obligations in respect of that person if he or she has not availed himself or herself of that right unless the conditions prescribed in either s.36(4), (5) or (5A) are satisfied, in which case the s.36(3) preclusion will not apply.

12. The Tribunal finds that the applicant does not have a current right to enter and reside in [Country 1] or any other third country. It observes that, at the time of application, the applicant held a [Country 1] ‘entry clearance’ (multiple entry visitor visa) originally valid to 21 June 2017 that was cancelled on or before 21 May 2015. The limited available evidence strongly suggests that [Country 1] authorities cancelled this visa at the applicant’s instigation, but this is now immaterial. The Tribunal concludes that s.36(3) does not apply to the applicant at the time of this decision.

13. In sum, the Tribunal finds that the applicant is outside her country of nationality, Pakistan. For the reasons stated above, the Tribunal finds that she has a well-founded fear of persecution for reasons of her religion if she returns to Pakistan, now or in the reasonably foreseeable future. The Tribunal finds that she is unwilling, owing to her fear of persecution, to avail herself of the protection of the Pakistan Government. There is nothing in the evidence to suggest that the applicant has a legally enforceable right to enter and reside in any other country other than the country of her nationality, Pakistan. The Tribunal therefore finds that the applicant is not excluded from Australia’s protection by subsection 36(3) of the Act.

    CONCLUSION

14. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

    DECISION

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

    James Silva
    Member

    
    

    ATTACHMENT A – RELEVANT LAW

    The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

    Refugee criterion

    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.

    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.

    Protection Obligations

    Subsection 36(2) of the Act, which refers to persons in respect of whom Australia has protection obligations, is qualified by subsections 36(3), (4), (5) and (5A) of the Act. They provide as follows:

    Protection obligations

    (3) Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.

    (4) However, subsection (3) does not apply in relation to a country in respect of which:

    (a) the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or

    (b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.

    (5) Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that

    (a) the country will return the non-citizen to another country; and

    (b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.

    (5A) Also, subsection (3) does not apply in relation to a country if:

    (a) the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and

    (b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.

    This means that where a non-citizen in Australia has a right to enter and reside in a third country, Australia will not have protection obligations in respect of that person if he or she has not availed himself or herself of that right unless the conditions prescribed in either s.36(4), (5) or (5A) are satisfied, in which case the s.36(3) preclusion will not apply.

    The Full Federal Court in MIMAC vSZRHU (2013) 215 FCR 35, has held that the term ‘right’ in s.36(3) should not be restricted to a right in the strict sense which is legally enforceable. Rather, it should include the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of enforcement; or a liberty, permission or privilege which does not give rise to any particular correlative duty upon the state in question.

    In determining whether these provisions apply, relevant considerations include: whether the applicant has a liberty, permission or privilege lawfully to enter and reside in a third country either temporarily or permanently; whether he or she has taken all possible steps to avail himself or herself of that right; and whether s.36(3) does not apply because of the operation of s.36(4), (5) or (5A).

    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’).

    Section 499 Ministerial Direction

    In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.