1600946 (Refugee)

[2019] AATA 1281

1600946 (Refugee) [2019] AATA 1281 (25 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1600946

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Frances Simmons

DATE:25 March 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 March 2019 at 5:23pm

CATCHWORDS
REFUGEE – protection visa – Pakistan – religion – Catholic – former priest – dispute with neighbour – allegations of blasphemy – no charges under blasphemy laws – known to anti-blasphemy militant groups – Lashkar-e-Jhangvi – Sipha e Sahaba Pakistan – death threats from anonymous parties – email account hacked by unknown persons – wife and two children twice returned to Pakistan since arriving in Australia – seriously ill family members – delay in applying for protection visa – internal relocation – profile of the applicant – presence of anti-blasphemy extremists throughout Pakistan – effective State protection not available – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5LA, 36
Migration Regulations 1994 (Cth), Schedule 2

CASES
Kopalapillai v MIMA (1998) 86 FCR 547
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

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

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 on 30 December 2015 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who are citizens of Pakistan, applied for the visas on 18 December 2014. The delegate found the first named applicant (the applicant) was a generally credible witness. The delegate accepted that the applicant was a practising Catholic and he had been accused of blasphemy after the escalation of a dispute with a neighbour and that, before he left Pakistan in January 2014, he received death threats. The delegate accepted that the applicant had a well-founded fear of persecution in Rawalpindi/Islamabad but found he could relocate to another part of Pakistan where there would be no real chance he would face serious harm either because he had been accused of blasphemy or as a practising Catholic. The delegate refused to grant the applicants protection visas.

3. The Tribunal accepts that the applicants are practising Catholics and that they left Pakistan after [the first named applicant] (the applicant) was accused of blasphemy by his neighbour. The Tribunal accepts that the [first named applicant] was not charged under Pakistan’s blasphemy laws, but that his neighbour told others that [the first named applicant] has engaged in blasphemy and [the first named applicant] received death threats from anonymous parties and went into hiding in the month before he left Pakistan.  For the following reasons, the Tribunal has concluded that the applicants are refugees and the matter should be remitted for reconsideration.

   CRITERIA FOR A PROTECTION VISA

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

5. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

6. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a) of the Act. In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

7. Under s.5J(1) of the Act, a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA of the Act, which are extracted in the attachment to this decision.  

8. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

9. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration (the Department) – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background

10. The applicants are a husband, wife and their two adult [children]. The applicants travelled to Australia on passports issued in their own names. These passports record the applicants’ religion as ‘Christianity’. It is not in dispute that the applicants are citizens of Pakistan and practising Catholics.

11. On 25 July 2011 the applicant lodged an application for a [student] visa application. This visa was granted in October 2011 and was valid until 15 March 2016.  [In] October 2011 the applicant arrived in Australia. On 30 March 2012 [student] subsequent entrant visas were granted to [the first named applicant]’s wife and children, and [in] May 2012 they arrived in Australia.

12. [In] January 2013 the applicants departed Australia. The applicants returned to Australia [in] February 2013. [In] November 2013 the applicants departed Australia.

13. The applicants returned to Australia [in] February 2014.  In 2014 the fourth named applicant travelled to [two countries] for a [tour] and returned to Australia. [In] November 2014 the second and third named applicant travelled to Pakistan and returned to Australia [in] December 2014.

14. On 18 December 2014 the applicants lodged an application for a protection visa.

    Summary of claims for protection

15. The applicant’s claims, as presented in his written claims and in his interview with the delegate and before the Tribunal, can be summarised as follows:

    a.[The first named applicant] was a Catholic priest in Islamabad/Rawalpindi from 1987 until 1992 when he decided to leave priesthood, as he felt unsupported by other priests. The applicant did not receive dispensation from the priesthood but left because he was not on good terms with his fellow priests.  

    b.Between 1993 and 2002 [the first named applicant] held [various] positions with companies in Rawalpindi. While he was employed by a [specified] company he obtained a [specified qualification]. He expected this additional qualification would lead to a promotion but instead he was demoted to a lesser [position].

    c.The applicant felt humiliated and with no future in this company he obtained a position as a [professional] at [Organisation 1] in Islamabad where he had been [working]. Before his probation period ended he was informed by the [management] that a complaint had been received that he was preaching Christianity and his permanent appointment would not be confirmed. The applicant asked if there was evidence of this and he was advised that there was not.

    d.The applicant declared that if you are accused of preaching Christianity it can endanger your life, so he began looking for other jobs. He was advised his appointment would not be confirmed so he had to leave in [2011] (if he did not leave he would be expelled). His immediate supervisor was kind but was bound by [management]. He was [a] Christian [employee] and he was very conscious of his position as a minority, he did not take part in any activities that could endanger his future as a [professional] and tried his ‘level best’ to avoid any religious activity. However, he was still accused of preaching his religion at [work].

    e.The applicant and his family lived at [a named neighbourhood] in around 1999 in Rawalpindi. The applicants were the only Christian family and surrounded by Muslims, but he had not anticipated any problems. He bought the land and built a house on it. Initially he had good relations with his neighbour, Mr B, who lived [nearby]. Mr B said he had a good position in society and would suggest that he should convert to Islam and the applicant would politely decline. His neighbour used to discuss religion with him and one day he offered him a ‘huge sum of money’ if he and his family converted to Islam, but the applicant refused saying he had a comfortable life and he did not want to change his religion. When his neighbour offered him money if he converted to Islam he would have been motivated by the concept that if a Muslim person converted another person to Islam they will assured of going to ‘janat’ (heaven).

    f.The applicant commenced work on a renovation of his property in 2007. His neighbour was furious and lodged a complaint with the [local authority] concerning construction plans the applicant had to add a storey to his house. His neighbour complained the addition of another storey would block his light and the air next door. The [local authority] confirmed the applicant’s plan did not violate any regulations, but told him that he and his neighbour had to settle the problem between them, whereas they could have asked the neighbour to stop calling them with regard to his complaint. His relationship with his neighbour deteriorated and in 2011 he took the opportunity to study [in Australia]. While he and his family were in [Australia] he tried to sell their house, but his neighbour told potential buyers the house was ‘haunted’ and the property did not sell.

    g.In November 2013 the applicants returned to Pakistan to visit family. They stayed with his mother-in-law in Rawalpindi. On [date] December 2013, he visited their house, which had recently been vacated by its tenant. His neighbour began discussing life in Australia and then the topic turned to religion, and he asked why Christians refer to Jesus as the son of God as this was blasphemy.  His neighbour annoyed him by taunting him about his bible and beliefs, insisting he should become a Muslim. The applicant was provoked and asked his neighbour why he did not become a Christian. His neighbour became irate, accused him of blasphemy, and threatened to kill him.

    h.The applicant returned to the house to remove rubbish left behind by the tenant. He did not examine this rubbish closely. The next day, on [date] December 2013, he again returned to his house and on this date, his neighbour accused him of disgracing Islam by throwing out pages from the holy Qur’an in the bin and again threatened to kill him. He then went inside and reappeared carrying his double-barrelled gun. The applicant decided to travel to Australia as soon as possible.

    i.On [date] December 2013 he received a telephone call from a man threatening ‘action’ against him for insulting the Prophet Muhammad and the Qur’an. On [date] December 2013, in his car on the way to his mother-in-law’s, a few ‘Maulvis’ approached his car and repeated the accusations.  He managed to escape. On [date] December 2013 he was phoned by an unknown person who accused him of blasphemy. He believes that his neighbour ‘passed on the blasphemy accusation to the two groups known to be imposing blasphemy law’, Lashkar-e-Jhangvi (LeJ) and Sipha e Sahaba Pakistan (SSP). When he received threatening anonymous calls he did not change his number because his number was one he used in relation to his house sale and he was also in a state of shock, which affected his mental facilities.

    j.Shortly before the applicants left for the airport [in] January 2014 to fly to Australia they discovered their passports were missing. The applicants lodged a First Information Report (FIR) with the police (the FIRs were provided). Then the applicant’s email was hacked by a person who wrote to the [Australian university] and to the Department that he did not wish to continue his [course], but was unable to establish his identity and so failed to cancel the enrolment (copies of these emails were attached).

    k.When lodging a FIR about the lost passports he was advised to state they were lost at the district court rather than at home to facilitate a speedy investigation. The family may have misplaced the passports. However, he thinks someone wanted to harm him by doing everything possible to ruin his studies and his future. It is easy for anyone to gain access to the upstairs of the house because the neighbouring roofs are all joined together.

    l.Although he tried to change his email password it was not possible because his email address had been set up in Pakistan when he had a phone number which, unused during his stay in Australia, had been reallocated to another person. He visited the company, which he named, three times in his attempt to have his password changed.

    m.The applicant confirmed his enrolment intentions with the university by telephone, applied for new passports and updated his details with the Department. On [date] January 2014 the hacker sent him a threatening message – ‘[details deleted]’ (a copy of the email was provided). The family hardly moved from the house and left [in] January 2014.

    n.The applicant fears that he will be a victim of the blasphemy law, signifying death or life imprisonment, as extremists believe action against a blasphemer will lead them to ‘janat’ (heaven). He believes that his neighbour has passed on his details to organisations such as LeJ or SSP, and he fears he and his family might be killed on the basis of their Christian faith and their having received life threatening messages. The authorities are ‘helpless’ in cases where the blasphemy law is invoked and extremists who have killed under this law are considered heroes.

    o.The first and second named applicants have both experienced discrimination because of their Christian faith. The second named applicant was [an occupation] who received awards for her [work] but she was denied permanent status at any [employer] and discriminated against because of her faith as he had been at his university post.

16. The applicant has provided documentation in support of his claims including a transcript of his seminary studies at [named institute] in Karachi, photos of himself as a Catholic priest, letters of support from clergy, a church issued marriage certificate, a baptismal certificate for the fourth named applicant, and e-ticket itineraries for their initial return to Australia [in] January 2014. He has provided email exchanges between the applicant and the Department in 2014 and copies of the emails sent by the hacker. The applicant also provided copies of police reports regarding lost passports and downloaded translations, a deed of the Rawalpindi property sale, and copies of the passports of the applicants that were issued [in] 2014 and record the applicants’ religion as ‘Christianity’ and their previous passports as ‘lost’. The applicant also provided country reports about the situation of Christians and Christians accused of blasphemy, as well as SSP and LeJ.

    The delegate’s decision

17. The delegate found the applicant to be a generally credible witness. The delegate accepted that the applicant was a practising Catholic and a priest from 1987 to 1992. The delegate accepted that he had been accused of blasphemy by his neighbour and threatened with a gun. The delegate accepts on several occasions the applicant was threatened and accused of blasphemy by unknown phone callers and he was harassed and accused of blasphemy by unknown men (described as Maulvis) in December 2013. The delegate accepted that the applicants’ passports were not be found as they prepared to travel to Australia [in] January 2014 and that the applicant’s email was hacked by an unknown person with malevolent intent to disrupt his travel plans, and that he received a threatening email [in] January 2014. The delegate also accepted that the applicant had experienced discrimination in employment because of his Christian faith but found that this did not rise to level of persecution.

18. The only claim that the delegate did not accept was that the money offer from the neighbour was conditional on the applicant converting from Islam. The delegate noted that no country information could be located supporting the applicant’s claims that Muslims believe that if they if they convert a person to their religion they will be assured of a place in heaven and, while the delegate found the applicant to be a generally credible witness, the delegate could not rule out that, while the applicant perceives the main cause of the rift between his neighbour and himself to be religious differences, the real motivation behind the money offer, which occurred just before his neighbour lodged complaints regarding the house extension, may have been to persuade the applicant to abandon his plan to build an additional storey on his house.

19. The delegate accepted that the applicant had a well-founded fear of persecution for the essential and significant reason of his religion in his home region of Rawalpindi/Islamabad but found he could relocate to another part of Pakistan where there would be no real chance he would face serious harm either because he had been accused of blasphemy or as a practising Catholic. The delegate refused to grant the applicants protection visas.

    Application for review

20. The applicants supplied a copy of the delegate’s decision with the application for review. In submissions to the Tribunal the applicant disagreed  with delegate’s conclusion that the applicant could relocate to avoid the harm he feared in Rawalpindi, and argued that the Christian community are under consistent and systematic attacks in all parts of Pakistan, and that militant groups such as LeJ and SSP have sophisticated and strong networks throughout Pakistan. Furthermore, as an academic and former priest the applicant will be easily identifiable wherever he goes in Pakistan.

1. The applicant provided extensive reports about the situation of Christians in Pakistan and the situation of members of religious minorities who are accused of blasphemy. In addition to these materials the Tribunal has also considered independent country information reports (discussed below) and the DFAT report on Pakistan published on 19 February 2019.

2. The Tribunal has considered a letter of support dated [August] 2018 from [a priest] confirming the applicants are dedicated Catholics and supporting their applications for protection visas as well as documentation of the applicant’s part-time employment by [named organisation].

3. The applicants appeared before the Tribunal on 13 August 2018 to give evidence and present arguments. In evidence to the Tribunal the applicant reiterated his claims that he believed that if he returned to Pakistan his life would be at risk because he had been accused of blasphemy by his neighbour. He acknowledged that his neighbour did not make the blasphemy allegation to the police, but claimed that his neighbour had informed militants who would take matters into their own hands. He claimed that the authorities were powerless to protect him from militants such as LeJ and SSP. He would take up positions [where] he could easily be identified, as in the past he could count on his hands the Christian members of [his workplace]. He had a strong fear for his life, and the lives of his family members would be at risk in Pakistan.

4. The applicant gave evidence that the main reason he has sought asylum in Australia is because he has been accused of blasphemy. He is also concerned that as a Christian he has experienced discrimination and that the authorities will be unable to protect him. He said it didn’t matter if you were of high or low social status if you were accused of blasphemy. No proof is required in relation to blasphemy allegations and that he believes that these allegations were passed on to members of militant groups. He claimed that Mr B wanted revenge and he spread the allegations of blasphemy to harm the applicant.

5. The applicant was questioned about the credibility of his claims that he would still be at risk of harm because of the allegations made against him by Mr B. The second named applicant, returned to Pakistan for a week in 2017, with the third and fourth named applicant, to see her mother who was ill. In 2014 she went to see her brother who was on life support; he survived but then he died in 2016. A death certificate has been provided.  

6. The Tribunal also explored with the applicants whether they could avoid the risk of harm by relocating to another part of Pakistan. The tribunal discussed with the applicant the situation of his wife’s family members and his own family members, all of whom are professionals living in Pakistan and some of whom live in Karachi. The applicant claims that anonymous people have been calling him and chasing him. He believes he is on a hit list and they will take revenge on him and his family. He recalled receiving anonymous threatening phone calls in December 2014 during which he was accused of having spoken against the prophet and disgracing the holy book, and believes that those targeting him tried to stop him leaving Pakistan. He took the discrimination as a routine matter but the blasphemy allegations meant he was now at risk, as extremists won’t forget their enemies.  Where relevant the Tribunal’s concerns and the applicant’s evidence at the hearing are discussed further below in the assessment of claims and evidence.

   ASSESSMENT OF CLAIMS AND EVIDENCE

   Nationality

7. The applicants entered Australia on Pakistani passports. There are copies of their Pakistani passport biodata pages on the Departmental file. The delegate had no concerns about their claimed nationality and the Tribunal accepts they are nationals of Pakistan.

   Whether the applicant’s claims are credible

8. In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of fact on relevant matters. In assessing the credibility of the applicants’ claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims[1] and it has had regard to the Tribunal’s guidelines on the assessment of credibility in protection visa matters. If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true.[2] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[3]

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

   [2] MIMA v Rajalingam (1999) 93 FCR 220.

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

   Practising Catholics from Punjab province

9. The tribunal readily accepts that the applicant is a practising Catholic and that between 1987 and 1992 he served a priest. The applicant gave detailed evidence about his faith, his training and work as a priest in Karachi, his employment in Pakistan and the instances of discrimination he faced in the workplace because of his religion and his religious practice in Rawalpindi. This evidence was supported by a transcript of the applicant’s seminary studies, photographs of the applicant as a Catholic priest and letters from the clergy. The Tribunal accepts that since the applicant left the priesthood in 1992 he has held [various] positions in private companies and [worked] at [Organisation 1]. When he was a priest he was preaching all over Pakistan, however, his evidence was that preaching is not part of his current religious practice. The Tribunal accepts he is a practising Catholic who regularly attends church in Australia as he did in Pakistan and publicly identifies as a person of Christian faith.

10. The Tribunal accepts that the applicants are practising Catholics from Rawalpindi in Punjab province, Pakistan. The Tribunal accepts that the second, third and fourth named applicants are practising Catholics and that the family attended [church] in Rawalpindi and [church] in [Australia].

11. The tribunal accepts that the first and second named applicant have experienced discrimination in employment because of their Christian faith. The Tribunal accepts the applicant held [various] positions in private companies and [worked] at [Organisation 1], Islamabad before he was accused of preaching [Christianity]. The tribunal accepts that he was a denied a permanent position [even] though he had the support of his immediate supervisor because an unsubstantiated allegation had been made that he was preaching [Christianity], and [management] was not prepared to support him. The applicant denied preaching Christianity when he was employed at [the workplace], as he said that he was very aware of his position as a Christian and he was a target.

    Dispute with neighbour and blasphemy allegations

12. The Tribunal accepts that religious minorities in Pakistan, including Christians, face a disproportionate risk of being accused of blasphemy.[4] Blasphemy accusations are commonly used to attack people or escalate disputes that may not relate to religion at all.[5] Between 70 and 80 per cent of blasphemy cases occur in Punjab.[6] In spite of their very small populations, Ahmadis, and Christians especially, are disproportionately affected by blasphemy laws.[7] The Constitution affords every citizen the right to practice their religion, however blasphemy laws operate to limit this right.[8] Christians, Ahmadis, Hindus, and Muslims have been charged with blasphemy, with individuals reportedly using the threat of blasphemy laws to intimidate vulnerable people in personal disputes, to appropriate property and to attack particular sects.[9] Lawyers, judges, police and politicians have been threatened or killed due to actual or perceived defence of people accused of blasphemy or criticism of the blasphemy laws.[10]

    [4] ‘Freedom of Faith in Pakistan: Contextualizing Programmatic and Policy Orientation’, Pak Institute for Peace Studies, p.24, 2 August 2018, CIS7B839418866

    [5] 'DFAT Country Information Report: Pakistan'. Department of Foreign Affairs and Trade, 1 September 2017, p.26 CISEDB50AD5515; ‘International Religious Freedom Report for 2017 – Pakistan’, US Department of State, 29 May 2018, p.9, OGD95BE927601; ‘Freedom of Faith in Pakistan: Contextualizing Programmatic and Policy Orientation’, Pak Institute for Peace Studies, p.24, 2 August 2018, CIS7B839418866; ‘Human Rights & Democracy: The 2017 Foreign & Commonwealth Office Report’, United Kingdom: Foreign and Commonwealth Office, 16 July 2018, p.45, CIS7B839411734

    [6] ‘Freedom of Faith in Pakistan: Contextualizing Programmatic and Policy Orientation’, Pak Institute for Peace Studies, p.25, 2 August 2018, CIS7B839418866; ‘Country Policy and Information Note Pakistan: Christians and Christian converts’, UK Home Office, 01 September 2018, p.41, OG9EF767941

    [7] 'A brief history of the anti-blasphemy laws', Herald by Dawn, 14 March 2018, CIS7B83941461

    [8] ‘International Religious Freedom Report for 2017 – Pakistan’, US Department of State, 29 May 2018, p.4, OGD95BE927601; ‘2015 Report on International Religious Freedom—Pakistan’, US Department of State, 10 August 2016, p. 1, OGD95BE926774; ’As Good as Dead’: The impact of the blasphemy laws in Pakistan’, Amnesty International, 21 December 2016, pp. 16 to 20, CIS38A80123222

    [9] ‘State of Human Rights in 2017’, Human Rights Commission of Pakistan, 16 April 2018, p.32, CIS7B83941935; 'DFAT Country Information Report: Pakistan'. Department of Foreign Affairs and Trade, 1 September 2017, p.25, CISEDB50AD5515;

    [10] ‘’As Good as Dead’: The impact of the blasphemy laws in Pakistan’, Amnesty International, 21 December 2016,

13. The Tribunal accepts that the applicant owned a house [in a named neighbourhood], Rawalpindi. The Tribunal accepts that, over an extended period   of time the applicant’s neighbour, Mr B, sought to engage in discussion about religious matters and encouraged him to convert to Islam. In evidence [the first named applicant] said that relations between the two men were initially cordial. [The first named applicant] told the Tribunal that Mr B was a very religious man and he always wanted to discuss religion, whereas [the first named applicant] tried to avoid religious and political discussions as people become emotional about these issues. Mr B would tell him his bible has been changed and that Islam was the way to get to heaven. [The first named applicant] was always polite when Mr B raised religious matters, as he wanted to keep living there. Later other Christian families moved there but at that time they were the only the Christian family there. Sometimes Mr B would offer him money to convert but [the first named applicant] had no intention of changing his religion and did not take these offers seriously. The relationship remained polite for some years but deteriorated after Mr B sought to add a second storey to his home.

14. The Tribunal accepts that Mr B engaged the applicant in discussions about religion and once offered him money ostensibly on the condition that he converted to Islam. Following applicant’s refusal to accept the money offer the neighbour lodged formal complaints with the [local authority] about the applicant’s proposed second storey addition to his house. These complaints were not upheld but the applicant was advised by the [local authority] to resolve the issue with his neighbour. The applicant’s relationship with his neighbour deteriorated and in 2011 the applicant relocated to Australia to pursue [study].

15. The Tribunal accepts that in December 2013, during a return trip to Pakistan, the applicant returned to the neighbourhood to clean his house after a tenant vacated the property. The Tribunal accepts that Mr B accused the applicant of throwing out pages of the Holy Koran, which had been amongst materials left by a tenant of the property and which the applicant had disposed of the previous day. The Tribunal accept that Mr B accused the applicant of blasphemy and threatened him with a gun. The Tribunal accepts that Mr B made these allegations known to other third parties and that the applicant received death threats.  The Tribunal acknowledges that the precise identity of the extremists who have threatened him is not known to the applicant. The Tribunal accepts that on several occasions the applicant was threatened and accused of blasphemy by unknown phone callers and a man stopped him on the roadside on [date] December 2013, making a similar accusation and threats.

16. The Tribunal finds that Mr B did not report the applicant to the authorities and that he has not been charged with offences in relation to the blasphemy law. The Tribunal accepts that Mr B made the allegations of blasphemy known to religious extremists and that the applicant received threatening phone calls as claimed and was confronted on the road by men accusing him of blasphemy.  The Tribunal accepts, based on the documentary evidence and oral evidence before it, that someone hacked the applicant’s email before he departed Pakistan with the apparent intention of having the visa he held to travel to Australia cancelled. The Tribunal accepts that the applicant believes the hacker was connected to the same extremists who targeted him as a result of the blasphemy allegations.

17. The Tribunal acknowledges that the applicant’s evidence has been detailed, consistent over time and is plausible in the context of reports that  blasphemy laws are used by militant organizations and members of some Muslim communities to intimidate and harass Christians, and also to exact revenge or to settle personal or business disputes.[11] The Tribunal accepts that the applicant had a dispute with his neighbour Mr B about the applicant’s proposed second storey renovations, which culminated in Mr B accusing the applicant of blasphemy in December 2013. However, the Tribunal did have some concerns that the applicant may have exaggerated the risk posed to him and his family as a result of Mr B’s allegations and, in particular, the credibility of the applicant’s claims that he was targeted by unknown militants immediately before he left Pakistan and that he would be at risk of harm from militant groups if he returned to Pakistan.  

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

18. The Tribunal raised with the applicant its concerns that it was difficult to reconcile the applicant’s fears for himself and his family with the decisions of his family members to return to Pakistan twice, in 2014 when his wife and daughter returned to see her terminally ill brother and in 2017, when his wife and two children returned to see his mother-in-law who had been hospitalised as a result of illness. The Tribunal was told on both occasions his family members stayed with his brother-in-law in a protected area for a short period of time and that they only returned because family members were seriously ill. His wife’s brother subsequently passed away and his wife’s mother was elderly and had been hospitalised. Tribunal acknowledges that the applicants have provided medical documentation to support their evidence that two family members were seriously ill as claimed.

19. The Tribunal put to the applicant it was difficult to understand why his wife and two adult children would travel to Pakistan even for short periods of time if they had left in the circumstances that the applicant described. The Tribunal was informed the applicants stayed with the brother of the second named applicant, who is [details deleted], and he also arranged for protection during their stay. The Tribunal acknowledges that the applicants have produced evidence that the relatives were ill as claimed and that it was [the first named applicant], not his wife or two children, who was accused of blasphemy. While the Tribunal considers that the family members return travel to Pakistan does cast some doubt on the depth of the applicant’s concerns that he and his family members are still at risk of being targeted by religious extremists as claimed, having considered all the evidence before it, the Tribunal does not consider it sufficient to make adverse credibility findings against the applicants.

20. The applicant has explained his delay in applying for a protection visa because he believed he would have other immigration pathways, but then he learnt that the permanent skilled pathway, made possible by a sponsorship offer from [an Australian employer], was no longer possible. The Tribunal is prepared to accept, as did the delegate, this explanation for his delay in applying for a protection visa. The Tribunal does not consider that the mere fact that applicants may pursue more than one immigration pathway as a pathway to remain in Australia undermines or negates otherwise credible claims for protection.

21. The applicant gave evidence that the house in which his family lived [near] Mr B had now been sold. The Tribunal questioned why, given he would not be returning to this house, he would still be of interest to Mr B. He said the people Mr B had given this information to would come after him. The Tribunal sought further information about on what basis he believed Mr B passed information to extremist groups. The applicant stated he did not focus on the details and reiterated his claims about the threats he received, his claims his email was hacked and that his passports were taken before he travelled to Australia. The Tribunal expressed doubt as to whether the loss of the passports was connected to the militants. The Tribunal put to the applicants if the militants knew where they were living and could obtain the passports then why would they not take action against the applicants. The applicant suggested that they must be waiting for a time to kill or harm them and they did not know the time of their departure. Sometimes gunmen wait.

22. The Tribunal accepts that the passports for the applicant and his family were not to be found as they prepared to depart from Islamabad for Australia [in] January 2014. The Tribunal has doubts as to whether the loss of the passports is related to blasphemy allegations against the applicant, but is prepared to accept that the applicant believes this to be the case. The Tribunal also accepts that the applicant’s email account was hacked by unknown persons with malevolent intent to disrupt the applicant’s travel and study plans and the hacker sent him a threatening email [in] January 2014. The Tribunal accepts that the applicant believes that his email was hacked and he was sent threatening email because he had been accused of blasphemy.

    A well-founded fear of persecution

23. The Tribunal accepts, as did the delegate, that there is real chance that the applicant will face serious harm in his home area of Rawalpindi/Islamabad in Pakistan for the essential and significant reason of his religion. The Tribunal acknowledges that the delegate accepted that the applicant had been accused of blasphemy by his neighbour and, as a result, was persecuted by his neighbour and ‘other men’ that the neighbour ‘enlisted in his cause’. However, the delegate found that there was no evidence that this ‘local dispute’ extended beyond Rawalpindi/Islamabad or that word had spread to any other region. The delegate considered it was speculative to claim that the localised problems he faced would continue if he relocated to Lahore, Guriranwala Faisalabad or Karachi and, furthermore, that the country information did not support the proposition that if he did relocate to one of these cities he would face persecution for reasons of his Christian faith.

1. The applicant did not attempt to relocate to another part of Pakistan but instead fled to Australia. In assessing whether there is a real chance that the applicant would face a real chance of serious harm if he were to relocate to another part of Pakistan, the Tribunal has carefully considered the country information about Christians in Pakistan and Christians accused of blasphemy. The Tribunal observes that since the delegate made her decision, reports indicate that there has been an increase in blasphemy-related violence and, more broadly, in violence against religious minorities (including Christians), who are disproportionately at risk of communal violence following blasphemy accusations.

2. The UNHCR Guidelines for assessing the protection needs of  religious minorities in Pakistan  published in January 2017 state that members of the Christian community, including in particular those targeted by militant groups or charged with criminal offences under the blasphemy provisions, victims of bonded labour, severe discrimination, forced conversion and forced marriage, as well as Christians perceived as contravening social mores, may, depending on the individual circumstances of the case, be in need of international refugee protection on account of their religion,  ethnicity, (imputed) political opinion, and/or other relevant grounds. The UNCHR reports that:

   Criminal provisions, particularly the blasphemy laws, are reportedly used by militant organizations and members of some Muslim communities to intimidate and harass Christians, and also reportedly to exact revenge or to settle personal or business disputes.[12]

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

3. The most recent DFAT report, published in February 2019, reports that blasphemy and other offences relating to religion are criminalised in Pakistan under the Pakistan Penal Code (Act XLV of 1860). Article 295C outlaws the use of ‘derogatory remarks’ against the Holy Prophet. Punishment for blasphemy is death. Under Article 295B, ‘defiling’ a copy of the Quran is punishable by life imprisonment, and under Article 298A, defiling ‘the sacred name of any wife, or members of the family, of the Holy Prophet, or any of the righteous Caliphs’ carries a maximum punishment of three years in prison, which may also be accompanied by a fine. Article 295A prohibits insulting any religion, not just Islam, and carries a sentence of up to ten years’ imprisonment, which may also be accompanied by a fine.

4. According to DFAT, individuals have used blasphemy laws to settle personal or property disputes. In 2010, a Christian woman, Ms Aasia Bibi, was convicted of blasphemy and sentenced to death following a dispute with her Muslim neighbours. In October 2014, the Lahore High Court upheld Ms Bibi’s death sentence, however in October 2018, the Supreme Court of Pakistan acquitted Ms Bibi. DFAT reports that:

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

   The government has applied the blasphemy law to digital content, with at least one person in 2017 receiving a death sentence for alleged blasphemy on Facebook. Internet bloggers who criticised the military, disappeared and later emerged in police custody facing blasphemy charges. While the Islamabad High Court acquitted the bloggers, they left Pakistan fearing for their safety.[13]

   [13] 'DFAT Country Information Report: Pakistan', Department of Foreign Affairs and Trade, 19 February 2019, p.34-35.

5. While DFAT reports that the majority of blasphemy cases are brought by Muslims against Muslims, DFAT assesses implementation of laws against blasphemy, and the potential for communal violence following an accusation of blasphemy disproportionately affect religious minorities, including Christians. According to DFAT, it is not culturally acceptable for non-Muslims to make accusations of blasphemy in Pakistan.

6. The applicant is a well-educated person who works in [a certain] sector. As discussed with the applicant, reports suggest that most Christians accused of blasphemy are from poor backgrounds and unable to defend themselves.[14] Christians in Pakistan have traditionally been part of an underprivileged class, partly because of employment and education discrimination, and tend to live in isolated communities.[15] According to some reports, Christians are often labelled as ‘working for’ (being associated with) western countries.[16] Most Christians reside in Punjab province, especially in big towns like Lahore, Rawalpindi and Faisalabad.[17]  

   [14] 'DFAT Country Information Report: Pakistan', 1 September 2017, p. 24, CISEDB50AD5515; ‘Freedom of Faith in Pakistan: Contextualizing Programmatic and Policy Orientation’, Pak Institute for Peace Studies, p.20, 2 August 2018, CIS7B839418866

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

   [16] ‘Freedom of Faith in Pakistan: Contextualizing Programmatic and Policy Orientation’, Pak Institute for Peace Studies, p.8,  p.20 & p.24, 2 August 2018, CIS7B839418866; ‘World Directory of Minorities and Indigenous Peoples - Pakistan : Christians’, Minority Rights Group International (MRG), 01 June 2018, CXBB8A1DA35838

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

7. In response to the suggestion that his wealth and social status might reduce the risk he would be harmed, the applicant told the tribunal that it didn’t matter what your background was if you were accused of blasphemy in Pakistan you were at risk of harm, and he pointed to the murders of lawyers and politicians and reports of blasphemy allegations made against university lecturers. He also he argued that as a [professional], he would be publicly identifiable because of his position.

8. The Tribunal has located reports of [professionals] imprisoned in relation to blasphemy charges. In 2018 the United States Commission report on International Religious Freedom (USCIRF) reported:

   [Details deleted].[18]

   [18] [Source deleted].

9. The Tribunal notes that there is a growing trend of Christians leaving Pakistan.[19] Christians in the town of Shahdara, Punjab were driven out by angry mobs after a teenage boy was accused of spreading blasphemous content on social media in February 2018.[20] In May 2017, a Christian man was sentenced to life in prison for allegedly sending blasphemous text messages in 2012.[21] A Christian man was sentenced to death in September 2017 after allegedly insulting the prophet Mohammed on mobile phone app, ‘WhatsApp’.[22] In November 2010 Aasia Bibi, a Christian, who was sentenced to death for blasphemy after an argument with fellow farmhands who refused to drink water she had touched because of her religion, was acquitted of blasphemy after eight years on death row. Before she was acquitted her family were in hiding and her acquittal prompted violent protests by anti-blasphemy extremists including in Islamabad/Rawalpindi calling for her to be put to death and her lawyer was forced to flee Pakistan for his own safety.[23]  

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

   [20] 'FIR for blasphemy registered against Christian teenager in Shahdara', Express Tribune, 20 February 2018, CXBB8A1DA22592

   [21] ‘International Religious Freedom Report for 2017 – Pakistan’, US Department of State, 29 May 2018, p.12, OGD95BE927601

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

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

10. In February 2019 DFAT assessed that Christians face a moderate risk of societal discrimination, societal violence and sectarian violence and a low risk of official discrimination. When the delegate made her decision DFAT assessed that Christians in Pakistan were generally subject to a low level of communal and sectarian violence. Since that time there has been uptick in anti-blasphemy violence and violent incidents against Christians in Pakistan.  DFAT reported that:

    In 2018, Christian support group, Open Doors, ranked Pakistan fifth (out of fifty) most difficult country to be a Christian on its World Watch List. Many Pakistanis refer to Christians as ‘bhangi’ meaning dirty or sweepers. In 2018, politician Arif Abbasi reportedly referred to Christians as ‘churna’ in a National Assembly debate (meaning low-caste, but also with connotations of cleaning/sanitation work). Some advertisements for low-status work ask for Christian applicants only. Many Christians are bonded labourers with little education and thus limited access to legal remedies. Christians are also disproportionately represented in blasphemy cases.

11. The country information indicates that although there are many churches in Pakistan, many of which are safe, they can be targets for extremist actions targeting Christians.[24] According to DFAT:

    Militant groups target Christian individuals, churches, residences or other places where Christians congregate. A suicide bomber attacked a park in Lahore on Easter Sunday in 2016, killing 74 people—including many women and children. Jamaatul Ahrar claimed responsibility for the attack, and said it deliberately targeted Christians. Christians tend to live in concentrated areas or enclaves, which mitigates their risk of societal discrimination but increases their vulnerability to violence. [25]

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

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

12. In June 2018, unknown assailants shot dead a Christian couple in Mardan, Khyber Pakhtunkhwa.[26] On 15 April 2018, Islamic State (IS) claimed responsibility for an attack that killed two Christians and injured five others after they were shot at while leaving a church service in Quetta’s predominately-Christian neighbourhood of Esra Nagri.[27] On 2 April 2018, four members of a Christian family were shot and killed while travelling in a rickshaw near a church in Quetta’s Shah Zaman road area.[28] Nine people were killed and nearly 60 injured in a suicide bombing in a church in Quetta in the lead up to Christmas 2017 with IS claiming responsibility for the attack.[29]

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

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

    [28] ‘4 Christians among 7 killed in separate firing incidents in Quetta’, Dawn, 2 April 2018, CXBB8A1DA24717; ‘Four Christians killed in Quetta terror attack’, Pakistan Today, 02 April 2018, CXBB8A1DA28997

    [29] 'Pakistan church attack: Twin suicide bombers kill nine with explosives and guns', ABC News, Reuters, Associated Press, 18 December 2017, CXC90406619495

13. Recent reports suggest that has been an increase anti-blasphemy violence against religious minorities, including Christians. A spate of vigilante and mob attacks against individuals accused of blasphemy occurred in 2017. In April 2017 police were present when Marshal Khan, who was accused of blasphemy, was murdered by students at a university campus but took no action to stop it.[30] Also in April 2017, a mob attack against a man at Friday prayers saw six police officers injured after they refused the mob access to the alleged blasphemer.[31] A 10-year-old boy was killed in an attempted blasphemy-motivated lynching of a Hindu man in May 2017.[32] Allegations of blasphemy sometimes lead to violent and disruptive protest action. Islamabad and parts of Punjab were effectively shut down as anti-blasphemy protesters blocked main arterial routes leading into the city. A hard-line cleric organised the three weeks of blockades and riots in November 2017.[33]

    [30] ‘Country Reports on Human Rights Practices for 2017 – Pakistan’, US Department of State, 30 April 2018, p.11, OGD95BE927478;

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

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

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

14. The applicant has not been charged with an offence against blasphemy laws. However, as the UNHCR Guidelines note:

    Accusations of blasphemy may carry serious risks for the person accused as well as their families, irrespective of whether the person concerned is subsequently charged with an offence against the blasphemy laws. Individuals accused of blasphemy have reportedly been subject to death threats, assaults, including mob attacks, and assassinations by community members or members of the security forces, either before they are arrested and tried in court, or even after they have been acquitted,  forcing some to go into hiding or to flee in fear of their lives. [34]

    [34] UNHCR, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities from Pakistan, January 2017, HCR/EG/PAK/17/01.

15. The legal penalties for blasphemy are serious and more people are on death row or serving life sentences for blasphemy in Pakistan than in any other country.[35] One hundred people are currently serving prison sentences for blasphemy charges, 40 of whom are awaiting the death penalty or serving life sentences.[36] According to the UNHCR, some people accused of blasphemy are reportedly tortured or killed while in police custody or detention. [37]

    [35] ‘2016 Annual Report—Introduction’, US Commission on International Religious Freedom, 2 May 2016, p. 2, CIS38A80121753; ‘’As Good as Dead’: The impact of the blasphemy laws in Pakistan’, Amnesty International, 21 December 2016, CIS38A80123222

    [36] ‘United States Commission on International Religious Freedom Annual Report 2018’, US Commission on International Religious Freedom, 25 April 2018, p.67, CIS7B83941863

    [37] UNHCR, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities from Pakistan, January 2017, HCR/EG/PAK/17/01 (noting indicate that detainees accused of or convicted of blasphemy are at high risk of attacks by other detainees or even prison staff and in many cases, individuals are reportedly kept in solitary confinement or isolation as a form of protection, sometimes for many years at a time)

16. The Tribunal accepts that the applicant’s former neighbour has accused the applicant of the blasphemy and made these allegations known to anti-blasphemy extremists. In response to the Tribunal’s questions about whether he could avoid the harm he feared in another part of Pakistan, he pointed to the presence of anti-blasphemy militant groups, including LeJ and SSP in other areas of Pakistan and said the authorities did not protect Christians accused of blasphemy. When the Tribunal put to him that there would be no real chance if he would be harmed in a city such as Karachi, he disagreed. He agreed he had siblings in Karachi but argued that his situation was different because he had been accused of blasphemy and further, as a [professional], would be readily identifiable wherever he was in Pakistan.

17. The Tribunal put to the applicants that internal relocation may be a viable option for Christians in Pakistan, unless a person faces an accusation of blasphemy that is being seriously pursued. [38] The Tribunal raised with the applicant he had not been charged with offences under the blasphemy laws, some time had passed since he fled Pakistan, he was no longer in possession of the house located [near] Mr B, and his evidence that the allegations were known to militant groups appeared speculative. The applicant acknowledges that no charges of blasphemy were brought against him but referred to cases where people have been charged under blasphemy laws and reiterated the authorities would not protect him. He also argued anti-blasphemy militants reach extends throughout Pakistan. The Tribunal discussed with the applicant the situation for Christians in Pakistan and it was put to him that while the Tribunal accepted that it may encounter discrimination as a Christian, as he and his wife had in the past, on one view of the country information there was no real chance that he would face serious harm or significant harm as a result of his Christian faith. The applicant gave evidence he was concerned about discrimination against Christians but his primary concern was that his life would be at risk as a Christian who had been accused of blasphemy.

    [38] UK Home Office, "Country Policy and Information Note Pakistan: Christians and Christian converts", 01 September 2018, OG9EF767941

18. The Tribunal accepts that country information indicates that consequences of being publicly identified as a blasphemer can place Christians in Pakistan at risk of serious harm from state and non-state actors.[39] With respect to geographic reach of non-state actors, the UNHCR observes that some non-state agents of persecution, including armed militant groups, reportedly have links with influential actors in local and central administration, law enforcement or judiciary and, as a result, often operate with impunity and their reach can extend beyond the areas under their immediate control. In this respect, DFAT reports that LeJ and its faction LeJ Al-Alami, a Sunni paramilitary terrorist group, conducted multiple terrorist attacks in 2018 and 2017 killing 132 people. DFAT reports that the LeJ’s objective is to establish an Islamist Sunni state in Pakistan, to have Shi’a declared non-believers and to eliminate other religious groups, including Christians. While LeJ primarily targets Shi’a,  it also acts against Christians, Ahmadis and Sufi Muslims.

    [39] UK Home Office, "Country Policy and Information Note Pakistan: Christians and Christian converts", 01 September 2018, OG9EF767941

1. The Tribunal acknowledges that it is not apparent how long the applicant’s public identification as a person who has committed blasphemy will persist or how far beyond his home area this identification will extend. While the Tribunal accepts that the applicant was the subject of death threats as claimed and that he believes the allegations of blasphemy are known to militant organisations including LeJ and SSP, he cannot positively identify the religious extremists who accused him of blasphemy and threatened him on the road or made threats by telephone or email. However, having accepted that Mr B made his allegations of blasphemy against the applicant known to religious extremists who then threatened to kill the applicant, the Tribunal is unable to reach the same conclusion as the delegate which was that Mr B was ‘unlikely to spread the allegation to the wider community’ as it is apparent Mr B had no concern for the applicant’s safety and wanted to do him harm.  In these circumstances and having regard to the country information concerning blasphemy allegations against religious minorities and the profile of the applicant as a former priest, who works in [a certain] sector and who the Tribunal accepts has attracted the adverse attention of religious extremists in Pakistan in the past, the Tribunal cannot confidently find that the risk that the applicant will be targeted by anti-blasphemy extremists/militant groups throughout Pakistan is remote.

2. Having considered the country information set out above, the Tribunal considers it is appropriate to take a cautious view of the risks facing the applicant.  Having regard to the personal profile of the applicant, the Tribunal cannot discount the possibility that the blasphemy allegations against him would become known beyond his home area. Accordingly, having regard to the country information, which indicates there has been an increase in blasphemy related violence and violence against Christians finds that there is a real chance that he would be subject to violence from religious extremists wherever he was in Pakistan for the essential and significant reason of his religion.  For these reasons, the Tribunal is satisfied that there is a real chance that the applicant will face serious harm because of his religion throughout Pakistan.

   Effective protection measures are not available

3. A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s.5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.  A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s.5LA(2).

4. The Tribunal finds the applicant will not be able to access effective protection measures. The UNHCR Guidelines state that  accusations of blasphemy are made within a climate of impunity:

   The introduction of the blasphemy laws in the Penal Code has reportedly fostered an atmosphere of religious intolerance and has contributed to the institutionalization of discrimination against religious minorities. The blasphemy laws have also come under strong criticism for fuelling extremist violence and targeted attacks against individuals from religious minority groups.  Although Pakistan’s blasphemy laws apply to all its citizens, irrespective of religious belief or affiliation, it is reported that such laws disproportionately affect religious minorities[40].

   [40] UNHCR, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities from Pakistan, January 2017, HCR/EG/PAK/17/01, p.11.

5. According to the UNHCR Guidelines, law enforcement authorities are reportedly provide inadequate protection for religious minorities, including Christians and Christians accused of blasphemy. [41]

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

6. DFAT notes that in 2017 the independent Human Rights Commission of Pakistan (HRCP) reported an increase in blasphemy-related violence, use of religious rhetoric, incitement of hatred, and discrimination against minority groups and the failure by the government to repeal discriminatory laws. Local and international observers report increasing misuse of blasphemy laws, and a widening of actions considered chargeable blasphemy offences. DFAT notes:

   Although under the law, courts cannot impose a death sentence based on a police First Information Report (FIR, an initial written record of a complaint or reported crime), this occurs and judges often accept reports of blasphemy at face value. Extremist groups and individuals have targeted politicians and judges who advocate on behalf of minorities or seek to change the blasphemy laws. Former governor of Punjab, Salman Taseer, was assassinated by Mumtaz Qadri, a member of his security detail, for calling for reform of blasphemy laws. Large numbers of people protested when Qadri was executed in February 2016. The media also fears reporting on blasphemy due to the significant personal risk involved.

7. With respect to protection for Christians who are the target of religious motivated violence, DFAT reports that since 2013, police have provided additional security to major churches during religious services, which has reduced, not eliminated the risk of violence. DFAT also reports that police ‘provide some protection to Christian enclaves in major cities, to complement the community’s own security arrangements’.  However, DFAT also states:

   Community members claim that police have, on occasion, not responded adequately to attacks on Christians. In December 2017, ISIL claimed responsibility for a suicide attack on the Bethel Memorial Methodist Church in Quetta, killing nine worshippers and injuring at least 35. Four hundred worshippers were attending a service, but Christians claim no police were in the area, which was unusual. The US Department of State’s 2017 Country Report on Human Rights Practices also reported that police often fail to protect religious minorities, including Christians.

8. As noted above, DFAT’s overall assessment is that Christians face a moderate risk of societal violence and, along with other religious minorities, are at disproportionate risk of being accused of blasphemy. Whilst in some cases the authorities have been known to arrest blasphemy perpetrators to protect them from mob violence, there are also reports that persons accused of blasphemy have been tortured or killed while in police custody or detention and that the blasphemy laws are reportedly frequently used by members of society to threaten and harass members of religious minorities, with many allegations made to settle personal scores or carry out personal vendettas, within a climate of impunity.

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

   The continued operation of terrorist groups like Lashkar-e-Taiba (LeT), Lashkar-e-Jhangvi     (LeJ), the Islamic State Khorasan Province (ISKP), and Tehrik- e-Taliban (Pakistani Taliban)         challenges the overall security of the country. These groups threaten not only members of     religious minority communities but also anyone who attempts to advocate on their behalf. This      has resulted in politicians and judges avoiding the public promotion of rights for religious      minorities, which has fostered the spread of an increasingly divisive and anti-minority      narrative among the public. The government of Pakistan has not addressed the spread of      sectarian or religiously motivated intolerant speech and has not prosecuted perpetrators of           violent crimes against religious minorities. [42]

   [42] ‘United States Commission on International Religious Freedom Annual Report 2018’, US Commission on International Religious Freedom, 25 April 2018, p.68, CIS7B83941863

10. DFAT notes that militant groups and anti-Shia groups, including LeJ and SSP, continue to operate across Pakistan despite government and military operations disrupting their activities.[43]

    [43] 'DFAT Country Information Report: Pakistan', Department of Foreign Affairs and Trade, 1 September 2017, p. 24, CISEDB50AD5515

11. The Tribunal accepts that anti-blasphemy violence against religious minorities occurs in a climate of impunity where regressive sanctions for blasphemy help fuel extremist violence against religious minorities, including Christians. The Tribunal finds that effective protection measures are not available to the applicant.

    Conclusions

12. In summary, the Tribunal accepts that the real chance the applicant will be persecuted by extremist individuals/groups relates to all areas of the receiving country and that the persecution involves serious harm as required by s.5J(5) and systematic and discriminatory conduct. The Tribunal finds that protection against the persecution the applicant fears cannot be provided  by the State because effective protection measures as defined in s.5LA of the Act are not available to  him throughout Pakistan: s.5J(2). The Tribunal accepts that the persecution he is at risk of suffering for the essential and significant reason of his religion involves serious harm and systematic and discriminatory conduct, as required by s.5J(4). 

13. For the reasons given above the Tribunal is satisfied that the applicant has a well-founded fear of persecution as defined in s.5J of the Act. Therefore, he meets the meaning of ‘refugee’ set out in s.5H of the Act.

14. Having concluded the applicant is a refugee, the Tribunal has considered the circumstances of his family members. If the second, third, and fourth named applicant were to return to Pakistan they would do so as practising Catholics and in the company of the first named applicant who, for the reasons given above, the Tribunal accepts has a well-founded fear of persecution arising from the blasphemy allegations that were made against him and his Christian faith.  The wife and two children of [the first named applicant] cannot be expected to reside away from him to avoid the risk of harm.

15. In the circumstances of the applicants and having regard to the country information concerning the situation of Christians and the UNHCR’s advice that accusations of blasphemy may carry serious risks for the person accused as well as their family, the Tribunal accepts that if the second, third and fourth named applicants were to return to Pakistan with [the first named applicant], there is a real chance that they would face serious harm from extremist groups throughout Pakistan for the essential and significant reason of their religion.

16. The Tribunal finds that there is a real chance that the applicants in their individual circumstances would face serious harm amounting to persecution from extremist groups for the essential and significant reason of their religion throughout Pakistan. State protection is not available.  Their fear of persecution is well-founded and they are refugees.

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

    CONCLUSION

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

    DECISION

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

    Frances Simmons
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation
    …
    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)that is not inconsistent with Article 7 of the Covenant; or

    (d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)that is not inconsistent with Article 7 of the Covenant; or

    (b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)for the purpose of intimidating or coercing the person or a third person; or

    (d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    receiving country,  in relation to a non-citizen, means:

    (a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5J Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)    the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)    conceal an innate or immutable characteristic of the person; or

    (c)    without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)    the persecution must involve serious harm to the person; and

    (c)    the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)    a threat to the person’s life or liberty;

    (b)    significant physical harassment of the person;

    (c)    significant physical ill‑treatment of the person;

    (d)    significant economic hardship that threatens the person’s capacity to subsist;

    (e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K  Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)    disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)    disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L  Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)    a characteristic is shared by each member of the group; and

    (b)    the person shares, or is perceived as sharing, the characteristic; and

    (c)    any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)    the characteristic is not a fear of persecution.

    5LA  Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)    protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)    the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)    the person can access the protection; and

    (b)    the protection is durable; and

    (c)    in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    ..

    36Protection visas – criteria provided for by this Act

    …

    (2A)A non‑citizen will suffer significant harm if:

    (a)   the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)   the death penalty will be carried out on the non‑citizen; or

    (c)   the non‑citizen will be subjected to torture; or

    (d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)   the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …

    
    

"United States Commission on International Religious Freedom Annual Report 2018", US Commission on International Religious Freedom, 25 April 2018, p.1 & p.67, CIS7B83941863

pp. 9 to 10, 34 to 40, CIS38A80123222