1610517 (Refugee)

[2017] AATA 702

1610517 (Refugee) [2017] AATA 702 (29 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1610517

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Stuart Webb

DATE:29 March 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 29 March 2017 at 2:28pm

CATCHWORDS
Refugee – Protection visa – Pakistan – Religion – Renounced Islam – Concealed religious beliefs – Particular social group – Fornication – Alcohol use – Legal proceedings – Mental health – Credibility issues

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

CASES
SZTFI v Minister for Immigration and Border Protection & Anor (2015) 231 FCR 222
Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Kopalapillai v MIMA (1998) 86 FCR 547

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant who claims to be a citizen of Pakistan, applied for the visa [in] September 2013 and the delegate refused to grant the visa [in] September 2014.

3. The matter was remitted by consent from the Court because in making its decision, the first Tribunal fell into jurisdictional error of the type identified in SZTFI v Minister for Immigration and Border Protection & Anor (2015) 231 FCR 222 and Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 because it failed to consider whether the applicant’s behaviour in keeping his religious views private had been influenced by the threat of harm.

4. The applicant appeared before the Tribunal on 4 October 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages. The applicant provided a copy of the delegate’s decision to the Tribunal.

   RELEVANT LAW

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

   Refugee criterion

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

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

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

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

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

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

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

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

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

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

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

    Complementary protection criterion

16. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

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

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

    Section 499 Ministerial Direction

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. The previous Tribunal summarised the applicant’s claims as follows. The present Tribunal has reviewed the information and considers them an accurate summation of the claims presented to that point.

    He was caught red handed by the police fornicating with his girlfriend [Ms A] on [a date in] May 2013. They were also under the influence of alcohol. According to the Pakistan ‘rule’ fornicating and alcohol is a big crime.

    He was very shocked when the police came to arrest him. At first he was not aware who had complained about his ‘affair’, but then he came to know that his girlfriend had previously had an affair with his [Relative 1], [named], who is [occupation] in [Town 1]. When [Relative 1] came to know about the affair he was not happy so complained to the police.

    The punishment for alcohol and fornication is nearly 7-10 years, lashes and a small fine.

    He was so upset that he had a true love with his girlfriend and was caught for no reason. He was loving her so much that he converted his religion from Islam to ‘all common religions’ because he was not able to live without her.

    He was locked up for [number] days, starved and not allowed to make phone calls for the first [few] days. He was bailed on [a date in] May. He had to ‘files’ (sic) the city 3 days before he was due to appear in the court.

    [In] July he went to his [Relative 2’s] house. She is married to an army officer [and] they live in [Town 2]. The police cannot enter the cantonments. After a couple of weeks his [Relative 2’s husband] asked him to leave because [they] would be court martialled if someone came to know the applicant had stayed there. [In] August the applicant left the cantonment for Karachi, stayed in a cheap hotel for [a few] nights and then came to Australia.

    He fears that if he returns to Pakistan he will be tortured and killed by the police. He has evidence from newspapers and ‘everything’ which he will bring to the hearing.

21. The applicant’s advisor provided the following materials in support of the application.

    A statutory declaration by the applicant, declared on 31 March 2014;

    A First Information Report dated [in] May 2013 and translation;

    An Arrest Warrant and translation;

    A newspaper article from the [name] Urdu newspaper and translation;

    A GP Mental Health care plan for the applicant dated [in] October 2013;

    A copy of the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities From Pakistan, dated 14 May 2012;

    An article on the Drinking age in Pakistan;

    An article entitled ‘The Freelance Monotheist’ – An interview with Karen Armstrong;

    Three articles regarding Pakistan’s blasphemy laws and religious minorities;

    An excerpt from the ‘Law of Pakistan’ website regarding section 496B of the Pakistan Penal Code (Fornication); and

    A copy of a medical certificate dated [in] March 2014 indicating that the applicant has a ‘history of [specified conditions], and currently under regular medical follow up. He claims that all the stress he got after been in lock up in Pakistan. He also suffers from [a further condition]. this letter issued as per his advice.’ (sic).

22. The Statutory Declaration provided the following information. He was ill-treated while he was locked up, and bailed [in] May 2013. He is a convert. He has officially converted in Australia. The Punishment for Apostasy in Pakistan is death. The reasons for his conversion include ‘disillusionment, and its inhumane’. His whole life is ruined and if he returns to Pakistan he will be tortured by police and killed. In Australia he is living a life according to his beliefs.

23. The previous decision also identified that the applicant ‘he believes in a god, however does not currently identify with any religion’.

24. A further statement was provided to the previous Tribunal. This was accurately summarised by the previous Tribunal as:

    The applicant has a well–founded fear of persecution because of imputed religious beliefs. The applicant will have to conceal his religious beliefs on return to avoid general rebuke from society. Covert comments by the ex-Governor of Punjab against the practices of Sunni Muslims in Pakistan and the mis-use of blasphemy laws resulted in his unlawful killing and the applicant must not expect something different.

    The First Information Report indicates that the applicant was charged under the Prohibition of Drugs Order. That crime is punishable with imprisonment and lashes.

    The delegate has correctly identified that fornication complaint has to be lodged before court, not to the police authorities at the outset, but nothing precludes the prosecution in Pakistan initiating such a complaint at any stage of the trial.

    The applicant’s passport describes his religion and the delegate has failed to comprehend that the applicant risks intense rebuke from the local community because of his imputed religious beliefs. The delegate has ignored that the applicant’s home town, [Town 3], is very well known for religious intolerance.

    The delegate did not dispute the genuineness of the First Information Report and in the absence of any contrary evidence it is unreasonable and unsafe to draw an adverse credibility conclusion.

    Taken cumulatively, these factors mean the applicant’s life would be at risk and the level of risk meets the threshold of ‘significant harm’ under the Complementary Protection Criterion.

25. The applicant also provided additional materials, including medical reports, country information , including reports of arrests for ‘merrymaking’ and blasphemy charges. The medical reports noted that the applicant had a history of being on [a type of medication] while in Pakistan and noting that ‘he has been referred to see a psychologist for counselling and cognitive behavioural therapy, and also for risk assessment’.

26. The applicant provided a more detailed medical report from a Clinical Psychologist that stated he required ongoing psychological assistance, and ‘presented with a range of clinical symptoms, consistent with [specified conditions]. These included [multiple symptoms listed]’.

27. Prior to the hearing of the first Tribunal, the applicant provided another statement and further medical evidence and country information about adultery and a man killed in custody because of an allegation of blasphemy.

28. The pre-hearing statement is found on the previous Tribunal file[1]. Again, the previous Tribunal provided an accurate summary of additional claims identified in that statement.

    [1] See folios 78-82 of Tribunal file 1416227

    He is afraid to return to Pakistan as he fears serious harm because of his religious beliefs. He used to consider himself a Sunni Muslim but he was a Muslim by default, raised in a Muslim family. After his mother died in 2005 he could not identify with it anymore. He started reading books about comparative religion and it was at this time that he renounced Islam to himself privately. He joked with his [Relative 2’s] husband that he did not identify as a Muslim and that he is a Christian and drinks red wine. Since arriving in Australia he has formally renounced Islam in writing, having written it on his Protection visa application. Now he is not a Muslim and he fears being treated as an apostate. Blasphemy laws are used to persecute people who leave Islam.

    He was disillusioned with organised religion and did not believe in many of the rules set down by Islam. He does not believe in The Prophet. He believes in God and reincarnation. He was interested in [a specific religion] but doubts he would convert to [that religion].

    He has [shared] a number of posts and articles on [social media] in support of people who have been convicted of blasphemy in Pakistan. He did this to express himself. Acquaintances in Pakistan could view these posts. If they did it would be obvious to them that he is no longer a Muslim.

    If he returned he would no longer engage in any Islamic activities and it would become obvious that he is no longer a Muslim. The penalty for apostasy is exile and for blasphemy is death.

    He is also afraid that he will face harm because of the crimes for which he was arrested in May 2013. He is concerned about the severe penalties. These offences are considered anti-Islam and he wants to defend himself by stating that a non- Muslim should not be charged for such crimes because they are crimes against the religion of Islam.

    He is also concerned that he will be viewed as anti-Islamic because information about the arrest was written in the local newspaper and he knows people were talking about it.

    When he first applied for his visa to Australia around March or April 2013 he was not afraid to stay in Pakistan but he simply wanted to visit Australia. He had felt very sad since the death of his [family member] in 2012 and he wanted some time to be more free and have fun.

    He had been spending time with [Ms A] since approximately March 2013. He met her at [a location]. They met at his house approximately 6 or 7 times before they were arrested. She stayed for approximately 4 to 6 hours before leaving. This happened once or twice a fortnight over a couple of months. Each time they drank alcohol and had sex. There is a sentence of 5 years for those found guilty of sex before marriage. Muslims who are found drinking alcohol are sentenced to two years in jail, fined and receive lashes. Since he was [age] he would drink alcohol occasionally, obtained through a bootlegger. He estimates he drank once every two months on average.

    The police came at approximately 8 pm [in] May 2013. His employee let them into the house and led them to his bedroom where he was with [Ms A]. They had had sex earlier and drunk a few glasses of alcohol. He only had boxers on. They were asked to get dressed, taken to the police station and then he was taken to the hospital where he was examined, including a ‘per rectum’ examination, and had to undertake a blood test. He believes this was to see if he had had sex and had been drinking, but he is not sure about this. He was never provided with the test results. He was held for [number] days.

    [In] May 2013 he was released on bail after [a relative], whom he had called, consulted a local lawyer and paid for his bail, which was PKR [amount].

    His lawyer told him that he would likely be convicted and face up to five years in prison for the fornication charge and 2 years in prison for the alcohol consumption charge, in addition to monetary fines.

    When he was released on bail he was given a copy of the First Incident Report (FIR). He went home. A few weeks later he received the ‘arrest warrant’ document as he had anticipated. This required that he attend the court in [Town 3] on [in] June 2013.

    He was very stressed and worried. He told his [Relative 2] and her husband, with whom he is friends, what had happened and asked if he could stay with them at the army residence in [Town 2], which was about [number] hours’ drive away. He understood that the police were unable to enter the military cantonment.

    He arrived there on or about [date] June 2013 and ended up staying for approximately 7 weeks. He did not attend court on [a date in] June 2013 as required by the arrest warrant.

    He saw a doctor at the cantonment because he [had various symptoms]. He prescribed [a medication] which he began taking.

    He has not contacted [Ms A] since the night of [that date in] May 2013, nor is he in contact with any mutual friends back in Pakistan. He did, however, learn that she attempted to commit suicide in June 2013, when one of his [relatives] sent him a local newspaper.

    He could not stay at his [Relative 2’s] house permanently because of the risks [her husband] was taking by housing him, including being court-marshalled. After a month or so, when he was a bit less stressed, he started making plans for what he would do when he left his [Relative 2’s] place. He decided to come to Australia.

    When he departed he was sure he was not on the Exit Control List (ECL), because it is discussed all the time in the Pakistani media whenever a senior official is charged with corruption. He was sure that people who committed the type of crime that he committed would not be on the ECL.

    He is aware that a complaint of fornication must be lodged with the court before the police can make an arrest. However, he knows they can make an arrest when there is alcohol or drugs present. He has provided an article illustrating this.

    He suspects his [Relative 1], who is [occupation] at [Town 1], alerted the police. This is because his [Relative 1] had an affair with [Ms A] for two or three years and he thinks the [Relative 1] was jealous of him.

    If he had to return to Pakistan to face the charges against him he would tell the judge that the charges should not apply to him as he is not a Muslim. He thinks that someone would probably kill him for saying that.

    He could not relocate within Pakistan. The crimes he was charged with are Federal crimes and he is liable to be arrested anywhere in Pakistan. He could only afford to go back to his father’s house in [Town 3]. If he went there he would be found and arrested by the [Town 3] police.

    He is presently in good physical health. He had [tests for a condition] about a year ago. He has been told that if the pain returns he should go back to the hospital.

    In 2014 he started getting assistance with [his conditions]. He was prescribed medication which he is still taking. He currently feels crushed. He [experiences various symptoms]. Stress makes these symptoms worse. He was studying but had to stop due to illness and then could not re-enrol due to lack of funding. Most of the time he [suffers from a condition] so he doesn’t do much.

1. The applicant had a hearing with the previous Tribunal. The applicant reiterated he no longer identified as having a religion. His [Relative 2] is the only close family remaining in Pakistan. Prior to coming to Australia the applicant managed the family farm of [number] acres, where [produce] are grown. He fears returning to Pakistan because he has a case there and will face a sentence of 7 years, and he has officially renounced his religion and can be executed as a consequence.

2. The applicant provided evidence regarding his arrest [in] May 2013 and subsequent detention, bail and residence at his [Relative 2’s] home. The Tribunal discussed what may have occurred to [Ms A]. The Tribunal discussed with the applicant his comments that he was not on a warning list to stop him fleeing the country.

3. At the previous hearing the Tribunal member put adverse information to the applicant arising from inconsistent evidence as provided by him to the delegate, in particular that he had stated that his staff ‘had left’ and ‘no one else was there’, and that he and the girl were ‘modestly dressed’, which contradicted the information the applicant had provided about a staff member opening the door for the police and leading them to him, and the applicant and the girl being found in underwear.

4. The previous Tribunal expressed its concern with the translation of the FIR and newspaper article, which provided inconsistent information to the applicant’s claims. The Tribunal discussed the applicant’s charges, including the country information about the process of being charged with fornication.

5. The previous Tribunal discussed the applicant’s religious beliefs and claim that he would be charged with blasphemy. The Tribunal member noted that the applicant had not practiced Islam for 10 years prior to coming to Australia, with no harm arising from that. The applicant stated he was an apostate and other Muslims would murder him. He has officially renounced Islam in Australia. The applicant stated that there would be a witch hunt and those who harmed him would be pardoned.

6. The applicant provided a supporting statement from a witness to the present Tribunal. This stated that the person had known the applicant since May 2016 in her role as a caseworker. The statement said the applicant did not believe he could access psychological support in Pakistan. He discussed religious and secular matters with the witness, including Christianity. It also stated that the applicant was very clear about rejecting the Muslim faith, and does not call himself a Muslim. The statement said that due to his strong opinions on religion he would find it very difficult to hide his views on return to Pakistan.

7. The applicant provided evidence of treatment of blasphemers in Pakistan. The applicant provided information about the Hadd Order in Pakistan.

   FINDINGS AND REASONS

   Country of nationality

8. The applicant claims to be a citizen of Pakistan and has consistently claimed this. The applicant has provided documentary evidence that show he is of Pakistani background.  The Tribunal finds that the applicant is a citizen of Pakistan, that Pakistan is the applicant’s country of nationality for the purposes of the Refugees Convention, and that Pakistan is his receiving country for the purposes of complementary protection.

   Third country protection

9. There is no evidence before the Tribunal to suggest that the claimant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.

   Credibility

10. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

11. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

12. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

13. The Tribunal must bear in mind that if it 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 (see MIMA v Rajalingam (1999) 93 FCR 220).

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

15. The Tribunal discussed with the applicant his views on religion. The applicant stated he has no religion, that in 2005 or 2006 he stopped believing. He does not describe himself as a Muslim. The applicant stated he stopped going to religious events and did not attend the mosque. The applicant stated that no-one took any notice of the fact that that he was not practicing being a Muslim.

16. The applicant stated that he had now officially renounced Islam. The Tribunal notes that the applicant had previously described this as converting from Islam, though he has not in fact converted to any other religion. The Tribunal questioned how he renounced his old faith. The applicant’s evidence was limited as to how he had disclosed information about his renunciation of Islam. The applicant stated that he made comments and said things on [social media], he also shared other information and ‘liked’ postings of other people. The applicant stated it was not a secret that he did not like Islam. The applicant stated that there were threats against apostates, and as he lived in a conservative area, his pronouncements would be noticed. The applicant stated that he would continue to post on [social media] about it.  The Tribunal questioned who viewed his [social media] page where he was stating these views. The applicant stated he had about 20 acquaintances on [social media].

17. The Tribunal has considered the applicant’s claims with respect to his religious beliefs. The Tribunal accepts that the applicant is a non-believer, and does not practice as a Muslim any more. He has not done so for an extended period, including for an extended period in Pakistan, from 2005 or 2006 until having left Pakistan in mid-2013. He stated at the hearing that no-one raised any concern regarding his non-practice.

18. The Tribunal accepts that the applicant has now gone further and now considers that he is not a Muslim, that he has renounced his religion but that he has not converted to any other religion. As the applicant’s witness discussed, the applicant has talked about various religions and thoughts of writers, while not in fact supporting any such belief.

19. The Tribunal discussed what it would be like in Pakistan for the applicant as a non-believer. The applicant stated that he may get into an argument and make comments that people found offensive about Islam. He could be harmed because of this. The applicant also stated he would continue to post his comments on his [social media] page. The Tribunal questioned whether people would have concerns with the applicant’s postings on [social media], they were not concerned with it at present, they have not raised issue with the applicant’s commentary, so the Tribunal questioned whether they would do so in the future on his return to Pakistan. The applicant stated he did not know what his acquaintances thought of his [social media] postings.

20. The Tribunal discussed the issue of apostasy and blasphemy with the applicant. The Tribunal noted that the applicant had claimed that he would be harmed as an apostate, that he could be charged by the police or identified by the community as a blasphemer, which could lead to his being sentenced to death, or harmed by Muslims who did not like blasphemers, who believed that they could harm such people. The Tribunal also noted the applicant’s belief that there was a level of impunity for people who harm non-believers.

21. The Tribunal has considered the applicant’s religious views, and his expression of these. He has not been targeted for harm arising out of his religious views or practices in Pakistan in the past, despite being someone who did not practice a religion and spent time researching and learning about comparative religions. He expressed his renunciation of Islam on his [social media] page, which was viewed by a small number of people the applicant was acquainted with, and he was not threatened because of his expressed view and renunciation on this site.

22. The Tribunal notes that the applicant has discussed his views on religion and other subjects with people in Australia, including the witness. He has not done so in Pakistan, he has not claimed that he spoke to others outside his family about his views. The applicant stated he joked about Christianity to his [Relative 2’s] husband, but that nothing came of that. The applicant has said he would do so in the future.

23. The Tribunal questioned the applicant’s claim that he would express his personal beliefs, or argue against Islam, in his home area, which he has described as an intolerant area. The Tribunal does note that there was violence against Christians in [Town 3] in 2009 where [Christians] were killed. However as noted above, the applicant had lived in his home area for a significant period of time without practicing his religion. He had provided evidence previously that he had the opportunity to read widely in comparative religions while residing in Pakistan. The Tribunal notes the article provided to the Department from Karen Alexander titled ‘The Freelance Monotheist’, an extract of which was provided in the previous Tribunal decision. It demonstrated that the applicant was a broad thinker about various religions, and had been for some time. He was not harmed because of this in Pakistan, the Tribunal questioned whether he would be in the future. The applicant believed he would be.

24. The Tribunal questioned whether the applicant would have to keep his religious views private, and whether this might be influenced by the threat of harm if he was to disclose his thoughts. The Tribunal notes that the applicant has in fact not been keeping his religious views private, he was posting on [social media], but that he was not someone who spoke directly to other people about his religious views. The Tribunal notes that the applicant’s religious practices and beliefs are not of a proselytising nature, they are more in keeping with an academic exercise in gathering knowledge and information about other faiths and religious practices. He has been doing this for some time, in Pakistan and in Australia.

25. The Tribunal also notes that the applicant has some characteristics that raise some question as to what his behaviour would be like on return to Pakistan, such that his views on certain aspects of religion may become known more broadly. The applicant and his witness both attested that he engaged in discourse regarding comparative religions. These discussions have occurred not in a public setting, but with a friend who has been receptive to such conversations. The applicant stated that he would not change this behaviour, that he would continue to have such conversations in his home area of Pakistan. The Tribunal further notes that the applicant has to a limited extent expressed his opinion in public through his [social media] postings, though has not had any negative responses to these expressions of his views.

26. The Tribunal does not consider that the applicant will be forced to restrict his expressions of his beliefs in Pakistan, or that the threat of harm would lead him to keep private about what he thinks about comparative religions. As noted, the applicant’s expression of his thoughts have been manifested through his [social media] postings, which have led to no negative comments or threats from the few acquaintances the applicant has engaged with on this site. This public expression, which the applicant states he will continue to post in, has not led him to be threatened or harmed. The Tribunal considers that the applicant will be able to continue to post in Pakistan, which will be viewed by the people who he has given permission to access. It would appear that the applicant has displayed no fear in posting his thoughts or concern as to what might happen to him for posting his thoughts or ‘liking’ a variety of progressive thinking and articles. He has not hidden his thoughts in this forum, it would appear that this is not a concern to the applicant. The Tribunal does not consider the applicant’s posting of his thoughts or liking items on [social media], should he choose to do so on his return, will mean that the applicant has a real chance of serious harm or a real risk of significant harm on his return to Pakistan.

27. His more personal expressions of his thoughts and attitudes towards Islam have been conducted in his own private space, in his own home and one on one with friends interested in discussing such topics. The applicant was not an observant Muslim, he did not attend the mosque for either daily or weekly prayers, or during major religious festivals. This absence of the applicant was not remarked upon or caused anyone within his community any concerns. He was not threatened or harmed for his failure to be an observant Muslim for the many years that he was in Pakistan. The Tribunal considers that this is an expression of the ambivalent attitude of the applicant to Islam, and the lack of concern from others regarding this position of the applicant. The applicant did not attend the mosque, no-one cared about this. The Tribunal considers that this would continue on his return to Pakistan.

28. With respect to his having conversations with like-minded individuals about aspects of life, belief and religion, something the applicant has engaged in primarily in Australia, the Tribunal considers that the applicant  has the capacity to do this in Pakistan with a group of people also interested in such things. The Tribunal does not accept that it is impossible for the applicant to have such conversations with other people, or that by having such conversations he would be harmed. The Tribunal does not consider that he would have to be secretive in these conversations, he would not modify his behaviour in having these discussions, or keep the fact secret, but would conduct such behaviour in his private realm, as he does today in Australia. The Tribunal does not consider such behaviours to be restrictive, or caused by a fear for his safety, but arise out of the applicant’s own desire to have these conversations in comfortable locations controlled by him or like-minded friends. He will not hide this expression of his beliefs or thoughts because of any fear that might arise from expressing them, he will do so because it is a more convivial environment for such discourse.

29. The Tribunal discussed country information with the applicant regarding sectarian and general violence in Pakistan. The most recent DFAT report identified that the level of violence had decreased significantly over the past few years, as the Pakistani authorities had taken steps to decrease the influence and activities of militant groups. While there has been violence, and there are continuing operations to restrict the influence of the militant groups that has caused reprisal attacks, the Tribunal considers on balance that the security situation in Pakistan is more stable and convivial for divergent views, like that of the applicant, to be held. The report in particular states:

    2.28 Pakistan continues to face security threats from terrorist, militant and sectarian groups. Since the commencement of the assertive counter-terrorism military operation Zarb-e-Azb in June 2014, however, Pakistan military operations against terrorist and militant groups in FATA and Karachi have substantially reduced the level of generalised and sectarian violence throughout the country. This trend increased over the course of 2015. Credible sources have reported a 75 per cent reduction in the number of sectarian and terrorist attacks throughout Pakistan from September 2014 – September 2015. Militant groups – particularly the Tehreek-e Taliban Pakistan (TTP) – are divided and disrupted, and no longer have access to safe-havens in Khyber and North Waziristan Agencies. The Pakistan Military has indicated an intention to remain in North Waziristan for some years to come.

    …

    2.30 The security situation varies between Pakistan’s provinces and autonomous regions. Punjab remains relatively free of sectarian and generalised violence.[2]

    [2] DFAT Country Information Report Pakistan January 2016

30. The applicant is from the [Town 3] Punjab region of Pakistan, a location relatively free of sectarian and generalised violence in recent years.

31. The Tribunal has also consider the issue of blasphemy in the context of the applicant’s circumstances. He has stated that he will either be charged with blasphemy, because of his opinions on religion, or will be attacked by someone acting with impunity because of the perceived blasphemous comments. The applicant provided the example of the personal security guard who killed the Governor of Punjab because of his stated views on the use of the blasphemy laws. The Tribunal notes that the perpetrator of this act has been charged and convicted of murder and terrorism charges in Pakistan, demonstrating that the impunity is limited. The applicant has provided articles about blasphemy to this and the previous Tribunal.[3] The applicant identified the issue of the [Town 3] riot in 2009 where a number were Christians were killed as an example of people using religious difference and rumour to cause violence between religions. The articles identified a few examples of specious use of blasphemy accusations against individuals in Pakistan.

    [3] RRT File Folios 48-50, AAT File Folios 36-55

32. DFAT makes the following statements regarding the application of blasphemy laws in Pakistan.

    3.25 Pakistan’s Penal Code makes it an offence to ‘defile a place of worship, with intent to insult the religion of any class.’ Although this law applies to all religious groups, punishments for insulting Islam are greater than other religions, extending to death or imprisonment for life. As of September 2015, a total of 38 people are on death row for allegedly committing blasphemy, although there have been no executions of blasphemy offenders to date (see ‘Death Penalty’ below).

    3.26 Blasphemy laws are often misused to settle personal or property disputes. In October 2014, for example, the Lahore High Court upheld the death sentence for a Christian woman, Asia Bibi, who was convicted of blasphemy following a dispute with her Muslim neighbours in 2010. On 22 July 2015, Pakistan’s Supreme Court suspended Ms Bibi’s death sentence pending further appeal proceedings. Pakistani courts have dismissed several blasphemy cases based on the dubious nature of accusations or the ineffectiveness of official investigations. As of September 2015, the Pakistani Parliament is considering a draft bill which introduces severe penalties for those who make false allegations of blasphemy.

    3.27 Those accused of blasphemy are often targeted in communal violence. In November 2014, for example, a mob in Kot Radha Kishan, rural Punjab, murdered a Christian couple accused of blasphemy. There is also limited space for public debate about blasphemy laws. The assassinations of Punjab Governor Salman Taseer in January 2011 and Pakistan’s Minister for Minorities Shahbaz Bhatti in March 2011 were linked to their public views on the need to reform Pakistan’s blasphemy laws. Authorities subsequently arrested Taseer and Bhatti’s attackers (Taseer’s attacker, Mumtaz Qadri, has been convicted on murder and terrorism charges and sentenced to death).

    3.28 While blasphemy laws apply to Muslims and non-Muslims, DFAT assesses that these laws disproportionately affect religious minorities in Pakistan.[4]

    [4] Ibid

1. The Tribunal accepts that the use of blasphemy laws against individuals has occurred in Pakistan. However the Tribunal considers that the examples of this being used are not common, and that the circumstances of the applicant are not conducive to him being targeted in this manner. As detailed, the applicant has not identified as Muslim in Pakistan for an extended period of time, he has not practiced as a Muslim and has researched and commented upon different religious and academic theories in Pakistan. He was not harmed or threatened because of this in the past. The Tribunal does not consider that this would happen in the future, even with the applicant returning with an even more developed consideration or expression of his personal belief structures. The Tribunal does not consider that the beliefs and practices of the applicant would lead to his being identified as a blasphemer within his community, or that he will face any charges or violence because of his practices and beliefs. The Tribunal does not accept that anyone will seek to harm the applicant arising out their attitude towards perceived blasphemous activities, the Tribunal considers that this is mere speculation on the part of the applicant, and not something that has a real chance or real risk of occurring.   

2. The Tribunal has considered whether the applicant’s behaviour, renunciation of Islam and general expression of his present beliefs would cause him to be harmed on his return to Pakistan. The Tribunal has also considered whether the applicant would be required to keep his behaviour and beliefs hidden because due to a fear of being harmed. The Tribunal, for the reasons expressed above, does not consider that he will be harmed for these reasons. The Tribunal finds that the applicant will not be harmed for his renunciation of Islam, or as a blasphemer. The Tribunal finds that the applicant will be able to behave in the manner he chooses and express his beliefs without being harmed on return to Pakistan, and will not be required to hide his practices or beliefs. The Tribunal finds that the applicant does not have a real chance of serious harm for these reasons, now and in the reasonably foreseeable future. The Tribunal finds that the applicant does not have a well – founded fear of persecution for these reasons.

   Criminal Charges

3. The Tribunal has considered the applicant’s behaviour and claim that he has had sex with an unmarried woman and drunk alcohol. The Tribunal discussed its concerns with the applicant’s evidence regarding the circumstances and of being found with a woman he was not married to while consuming alcohol. The applicant stated that he had not really had relationships in the past, and he was not in any arranged marriage.

4. The applicant stated that the relationship started in March 2013, having met her at [a location]. He saw he 6 or 7 times in the short period before coming to Australia, in August 2013. The applicant stated that the intimate relationship commenced within a week of his meeting [Ms A]. He claimed to have caught up with her once or twice a fortnight, and had sex and alcohol with her on these occasions.

5. The Tribunal questioned that a relationship of this nature, that the applicant stated was completely illegal in Pakistani society, would proceed to such an extent so quickly. The applicant stated that they were human, it was possible. The applicant stated she may have had relationships before she met the applicant. The Tribunal has concerns regarding this aspect of the claim of the applicant.

6. The applicant stated that his staff would let her in to see him. It was these staff who subsequently let the police in in May when he was found with her. The applicants stated that he believes he was informed upon, he did not know who, perhaps an ex-partner of hers. The applicant suspected his [Relative 1], [as] she had been seeing him. The Tribunal notes that the applicant had previously noted he did not know if she had previous relationships, yet now identified a jealous ex, a [Relative 1] of his, as a possible informer upon them. This contradiction of the applicant as to [Ms A’s] previous history is a concern to the Tribunal, which the Tribunal noted at the hearing. The applicant contended he was telling the truth.

7. The Tribunal noted the discussions with the Department and previous Tribunal with respect to the events of the arrest. The Tribunal noted that the applicant had provided alternating versions as to who was present at his home at the time of the arrest, that he had said his staff had left, yet had also stated that his staff had let the police in. The applicant stated that the staff were there, they were conservative so were willing to let the police in. This information provides quite a contradictory circumstance, given the applicant’s stated lack of interest in Islam, and that the relationship had been sexually active since March 2013. The Tribunal does not consider that the applicant would have conservative staff given his own attitude towards Islam himself. The Tribunal has concerns with the applicant’s evidence regarding his staff on the night of this supposed arrest, which was not allayed by the evidence of the applicant when questioned about this. The Tribunal does not consider that the applicant’s evidence about these circumstances was affected for any reason, including his stated mental health concerns. The applicant appears to have changed his version of events when recounting what he states occurred.

8. The Tribunal discussed the practice of the police at the time of the arrest. The applicant stated he was taken to the city police station and charged immediately. The Tribunal notes the discussion with the Department and previous Tribunal about the practice of having a Court issue such charges, not the police, after a fornication complaint is lodged. The Tribunal notes that the applicant has argued that the police did not follow the proper procedure in his circumstances, and has provided an article about a police raid and arrest of [number] people for immoral activities, arguing that alternative processes can occur. The applicant stated he believes that [Ms A] was also charged.

9. The applicant claims that he was detained for about [number] days before being bailed by his [relative]. The applicant was not aware of any conditions on his bail. The Tribunal asked the applicant why he then received a subsequent arrest warrant, if he had been charged and bailed to appear at court at a later date. The applicant stated that this was what his lawyer had told him, his lawyer had given him these documents.

10. The Tribunal asked what the applicant did after he received the arrest warrant. The applicant stated he decided that he did not want to go to court, so he decided not to go. He instead drove to his [Relative 2’s] home, about [number] hours away. He stated that he was not in a mental state to go. The Tribunal noted that the applicant had a valid visa to come to Australia at that time, but did not do so, he instead stayed with his [Relative 2] and her husband at the army cantonment for 6 to 7 weeks. The applicant stated he was not mentally fit at the time. The applicant stated he saw [a] doctor who provided him with assistance. The Tribunal expressed its concern regarding the delay in leaving Pakistan, given that he had a valid visa and was purportedly in breach of his bail conditions by not appearing at court. The applicant stated that it was not an easy decision to leave.

11. The Tribunal asked if he was aware of what was happening with respect to the criminal proceedings. The applicant stated he was only in touch with his [Relative 2’s] husband, he was not in touch with the lawyer. His [other relative] had sent him the documents, including the article about [Ms A] harming herself.

12. The Tribunal discussed the documentary material that the applicant had provided to the Tribunal regarding the criminal proceedings that he states he has faced in Pakistan. The Tribunal noted that there were concerns regarding the FIR that the applicant had provided to the previous Tribunal, that the applicant was charged under 496 B/PPC (Pakistan Penal Code) and 11 Narcotic Control.[5]  The FIR discusses ‘a boy and a girl were drinking alcohol, they both were naked and the smell of alcohol was coming from their mouths. … Both the accused persons have committed drinking and sexual immorality crimes…’

    The Tribunal noted the relevant provisions of the Acts that are mentioned in the FIR. The relevant section of the Pakistan Penal Code (PPC) is section 496B states:

    496B. Fornication:

    (1) A man and a woman not married to each other are said to commit fornication if they willfully have sexual intercourse with one another.

    (2) Whoever commits fornication shall be punished with imprisonment for a term which may extend to five years and shall also be liable to fine not exceeding ten thousand rupees.[6]

    [5] RRT File Folios, 27, 30

    [6] Pakistan Penal Code (Act XLV of 1860) sourced at

13. However Section 11 of the Control of Narcotic Substances Act (XXV of 1997), outlines penalties for owning or operating premises or machinery for the manufacture of narcotic drugs, as detailed at section 10 of the same Act.[7]

    [7] Pakistan, Control of Narcotic Substances Act (XXV OF 1997), sourced at

14. The Tribunal noted at the hearing that the provisions regarding the consumption of alcohol were quite different, the FIR as provided by the applicant included a reference that was not relevant to the applicant’s circumstances as he claimed.

15. Asked to comment on this, the applicant sated that the FIR was given to his lawyer after he had been released. He had been charged with the sexual offences, and then charged with something quite similar to the alcohol offences. The applicant stated that these laws were very serious and could not be withdrawn.

16. The applicant provided the present Tribunal with a copy of ‘The Prohibition (Enforcement of Hadd) Order 1979’.  This discusses penalties for people who drink ‘an intoxicant’, and the penalties for the section 8 offence of ‘Drinking liable to Hadd’; and the section 11 offence ‘Drinking liable to Tazir’.[8]  It would appear that there is a section 11 of an Act which discusses an offence to drink alcohol. This has a potential penalty of imprisonment up to 3 years and/or 30 lashes of a whip. The applicant has stated that he faced being imprisoned and lashes, as detailed in the statement provided to the previous Tribunal.[9]  However the Tribunal notes that this is not what is referenced in the FIR with mentions specifically ‘Narcotic Control’. The Tribunal has concerns regarding this error in the FIR. As discussed with the applicant, there is an issue with fraudulent documents coming out of Pakistan, including FIRs. The applicant stated his [relative] had sent him this information having got it from the applicant’s lawyer.

    [8] AAT Folios 59 – 63

    [9] RRT Folio 36

17. The Tribunal also questioned the hand written arrest warrant that the applicant provided to the previous Tribunal[10]. This was purportedly issued by the Court for the arrest of the applicant. The Tribunal questioned why this was hand written and why was it necessary to be issued. The applicant stated that it was difficult to get typewriters that typed in Urdu. The Tribunal expresses its concern that an official document of this nature would be handwritten if it was being produced by an official source, even with this availability issue. Given Urdu is a national language in Pakistan the failure of a Court to have such a facility is very questionable.

    [10] RRT Folios 27, 31

18. The Tribunal identified further concerns about the nature of these documents, given the errors on the face of them. The Tribunal does not accept that such a significant error in relation to the charges against the applicant would be made in an official document of this nature. The Tribunal does not accept that the police would make an error confusing a Narcotics Act Offence with a Hadd Order offence in such circumstances.

19. The DFAT report identifies that:

    5.46 Document fraud is endemic in Pakistan, particularly in those forms of documentation not issued by a competent central authority such as NADRA. For example, it is relatively simple to fraudulently produce police-issued FIRs using existing FIR book numbers. FIRs are hand-written standard forms. There is credible evidence of police in Pakistan accepting bribes to verify fraudulent FIRs. The existence of an FIR does not therefore constitute evidence that the described events actually occurred.

20. The Tribunal also notes information is available that other documents are also fraudulently created, including newspaper reports. A Canadian report states that that "fraudulent documents are quite prevalent" including "manually generated documents" and that, in referencing newspapers, that ‘English-language newspapers are much less likely to print fraudulent stories, but that it is not impossible’ and ‘that it was noted that fraudulent newspaper stories are more prevalent in Urdu-language newspapers’.[11]

    [11] Immigration and Refugee Board of Canada, PAK103917.E, 13 December 2011.

21. The Tribunal considers that the documents as provided by the applicant in support of his claims, including the FIR, arrest warrant and the newspaper articles regarding this are fraudulent documents. This includes the articles as provided regarding [Ms A], which was the source of the applicant’s information about this woman, and the article naming him. The Tribunal considers these documents have been contrived to support the claims of the applicant.

22. The Tribunal has considered the claim by the applicant that he had a relationship with an unmarried woman and that he was arrested by the police in her company and with alcohol. The Tribunal does not accept that this occurred. The applicant’s evidence regarding this aspect of his claims has been contradictory over the various explanations, from his written application, to the Department, the first Tribunal and this Tribunal. He has changed information as to the background and relationship with [Ms A], including her past history; the circumstances of his arrest in May 2013 regarding what happened at the arrest, who was there and how he was found; and information about the arrest process which does not accord with known information about police practices in fornication cases. He provided documents that have significant errors included in them which has not been explained, and have been determined by the Tribunal to be false. The Tribunal finds that the applicant has contrived this claim that he was in a relationship with [Ms A], and finds that he was never arrested and charged with any crimes arising out of a relationship with an unmarried woman or alcohol related charges. He did not alter his outlook on religion because of any girlfriend. The Tribunal finds that there is no ongoing court case against the applicant in Pakistan.

23. The Tribunal has considered the claim by the applicant that he occasionally drinks alcohol, he has stated once every two months on average. The applicant has been consistent that he has done so in Pakistan for a number of years, in the privacy of his own home. He has not found it difficult to obtain alcohol, despite his statement that he comes from a conservative area. The Tribunal notes that the applicant has never been in trouble for this reason, noting the finding above that he has not faced criminal charges. The Tribunal considers that the applicant’s past experience is illustrative of the circumstances that would exist on the applicant’s return. The Tribunal accepts that the applicant would continue to occasionally drink alcohol in his own home, and that he will continue to do so without concern for the laws that exist but are rarely applied regarding the consumption of alcohol. The applicant has occasionally consumed alcohol without issue for many years and the Tribunal considers that this will continue on his return. The Tribunal does not accept that the applicant will get into trouble for his occasional consumption in the future. The Tribunal does not accept that the applicant has a real chance of serious harm or a real risk of significant harm for this reason.

24. The Tribunal finds that the applicant does not have a real chance of serious harm or a real risk of significant harm on return to Pakistan arising out of any criminal charges or proceedings in Pakistan.

    Delay in Departing Pakistan.

25. The Tribunal discussed the applicant’s delay in departing Pakistan. The applicant confirmed that in April 2013 he had a visa granted allowing him to enter Australia. However the applicant did not in fact arrive in Australia until [August] 2013, over four months after he was entitled to arrive. The Tribunal questioned this delay, given the applicant’s claims that he had to leave because of the issues around his attitude to religion in Pakistan, and the subsequent claims arising out of his claimed relationship with [Ms A] and subsequent criminal matters. The applicant stated that he was not mentally able to travel.

26. The Tribunal notes that this contradicts the evidence regarding his [Relative 2] and [her husband’s] support for the applicant, that they in fact had asked the applicant to leave the cantonment soon after his arrival. The Tribunal notes the information as provided by the applicant that he placed his [Relative 2’s husband] at risk because of his presence, avoiding the criminal charges that he claimed to face.

27. The Tribunal does not accept that the applicant would remain in Pakistan in such circumstances if he truly had concerns about his welfare, either because of a criminal matter, or because of his thoughts about religion. The Tribunal does not accept that the applicant not feeling well would explain why he chose not to exercise his right to leave Pakistan for such a period of time.  The Tribunal considers that the applicant remained in Pakistan for this extended period after being granted the visa because he did not fear being harmed for the reasons he has claimed. The Tribunal considers that the applicant was not concerned for his safety in Pakistan during this period.

    Health claims

28. The Tribunal discussed the applicant’s health. He had claimed that he saw [a] doctor in 2013 for [specified conditions], and was provided with [medication]. In Australia he has seen a counsellor and a doctor and had been provided some medication for [his condition]. The applicant provided some medical documentation to the previous Tribunal about his condition.[12] The applicant claimed he would face stigmatisation regarding his mental health concerns on return to Pakistan.

    [12] RRT File Folios 70-71, 51-55, 32-34

29. The Tribunal is concerned as to the objectivity of the medial material as provided. The letter from [the first doctor][13]  makes statements as to the protection claims that are not for the doctor to make, it is not an impartial statement. A more reasoned short report was provided by [a] psychologist who engaged with the applicant, who provided a clearer report as to the applicant’s health concerns.[14] The Tribunal considers the evidence or [the psychologist], as supported by the witness who attended the Tribunal hearing, demonstrates that the applicant will require ongoing medical assistance on return to Pakistan.

    [13] RRT File Folio 71

    [14] RRT File Folio 70

30. The Tribunal noted that the applicant had in fact approached a medical practitioner regarding his mental health in Pakistan. The applicant stated it was [a] doctor, he had not approached a normal doctor for this assistance. The Tribunal does not accept that there is any difference; the Tribunal considers that the applicant’s willingness to approach a medical practitioner about his mental health concerns is the relevant factor, and that he could approach an ordinary doctor on his return to Pakistan to discuss his illness and be prescribed medication as required to treat him.

31. The Tribunal notes that the provision of medical services in Pakistan is not as developed as that in Australia, there are concerns as to the limited number of psychiatrists available in the country for the number of people needing assistance. However the Tribunal does note that there are medical services that are available, that the EASO report shows that medications are available at either low or no cost, and that medical assistance is available through public hospitals.[15]

    [15] EASO Country of Original Information Report, Pakistan, Country Overview, August 2015, Section

1. A 9 October 2011 article from Dawn, provides the following information on mental health in Pakistan as given by the President of the Pakistan Association for Mental Health (PAMH), Dr S. Haroon Ahmed:

   In Pakistan, there were four mental health hospitals in Hyderabad, Lahore, Peshawar and Mansehra with a total capacity of 3,000 beds, while small psychiatric units were attached to teaching hospitals and private psychiatric hospitals had a capacity of about 4,000 beds for patients reporting with mental disorders, he said. He lamented that there were only 419 psychiatrists in the country, concentrated mostly in urban areas, while there were no trained psychiatric nurses and community mental health workers. There had been a longstanding demand for a meaningful investment in the mental health sector, development of workforce and infrastructure.[16]

   [16] Alam, Mukhtar 2011 ‘100 per cent rise in mental disorders’, Dawn, 9 October  <

2. There are reports as viewed by the Tribunal that discuss positive developments in the area of mental health services in Pakistan. For example, the Mayo Hospital Lahore, which according to its website has – in collaboration with the King Edward Medical University – the biggest purpose built psychiatric unit in the country, provides free services and medicine to all patients.[17] Similarly, the websites of the Lahore Psychiatric Hospital and Ghurki Trust Teaching Hospital note that they provide free or subsidised treatment to needy patients.[18]

   [17] Mayo Hospital Lahore (n.d.), About us < Mayo Hospital Lahore (n.d.), Academic Department of Psychiatric & Behavioural Sciences KEMU/MAYO Hospital Lahore <

   [18] ‘Treatment for Needy Patients’ (n.d.), Lahore Psychiatric Hospital < Medical Facilities at LPH’ (n.d.), Lahore Psychiatric Hospital < ‘Achievements’ (n,d.), Ghurki Trust Teaching Hospital < < ‘Psychiatry And Behavioral Sciences’ (n.d.), Ghurki Trust Teaching Hospital <

3. The Tribunal accepts that the applicant has been diagnosed with [specified conditions]. The Tribunal notes that reports of [these conditions] were not uncommon in Pakistan, and that people often resorted to medications rather than treatment, and that it appeared medication for [his conditions] were readily available.[19] The Tribunal notes that in urban areas there was better access to mental health services than in some other locations.[20] As noted, there are a number of mental health treatment services available in locations like Lahore, including the Punjab Institute of Mental Health, considered a leader in treatment in Pakistan, which has an outpatient department which provides free consultation, drugs and psychotherapeutic interventions and deal with [specified conditions] amongst other illnesses.[21] Fountain House in Lahore also treats patients with mental health issues.[22] This is not far from the applicant’s home city of [Town 3]. The Tribunal accepts that mental health is an issue in Pakistan, but there are services available. The Tribunal accepts that there should be more resources devoted to mental health in Pakistan, but notes that this is an issue in all countries, including Australia. Having considered the evidence of the applicant, the reports provided by the representative and the information set out above, the Tribunal considers that there is a reasonable level of mental health services available to the applicant.

   [19] [Information deleted].

   [20] and also [Information deleted].

   [22]

The Tribunal considers that the applicant’s claims of there being a stigma against mental health sufferers is not correct, based on the evidence and country information before it, and notes that the applicant has not suffered in Pakistan because of his illness. The Tribunal does not accept that the applicant will be mistreated because of any stigma against mental health in Pakistan, the Tribunal notes that the applicant was willing to approach a doctor in Pakistan to be provided with assistance for his mental health concerns in the past, and was provided with medications. The Tribunal considers that the applicant will be able to do so in the future on return to Pakistan.

On the basis of the applicant’s willingness to seek and receive treatment in the past and the country information cited above about the assistance available, the Tribunal is satisfied that the applicant can receive appropriate mental health care in Pakistan. The Tribunal finds that the applicant does not face a real chance of serious harm or a real risk of significant harm for this reason.

Does the applicant have a well-founded fear of persecution if he returned to Pakistan?

Having considered the applicant’s claims individually and cumulatively, for the reasons given above, the Tribunal does not accept that the applicant faces a real chance of serious harm for the reasons he has claimed, now and in the foreseeable future. The Tribunal finds that the applicant does not have a well-founded fear of persecution for these reasons.

Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

Complementary protection

Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative complementary protection criterion in s.36(2)(aa).

100. Having regard to the findings of fact set out above, the Tribunal also does not accept that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that the applicant will suffer significant harm, on his return. The Tribunal therefore is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

101. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

DECISION

102.   The Tribunal affirms the decision not to grant the applicant a Protection visa.

Stuart Webb
Senior Member

1.7.4 Mental health