1611434 (Refugee)

[2020] AATA 2577

1611434 (Refugee) [2020] AATA 2577 (7 April 2020)

Corrigendum

DIVISION:Migration & Refugee Division

CASE NUMBER:  1611434

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Gabrielle Cullen

DATE OF DECISION:  7 April 2020

DATE CORRIGENDUM

SIGNED:30 April 2020

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

1. At paragraph 70, the numerals ‘1’ and ‘2’ should be deleted so that the phrase is ‘one or two’. The phrase ’one or two’ should not be underlined or in a different colour to the rest of the decision text.

2. At paragraph 71 the letter ‘h’ in the word ‘where’ in italics in the sentence ‘It does not accept the reasons he claims for the delay in applying for protection where in anyway due to the difficulties he claims happened to him in Pakistan and why he fears return’ should be deleted so that the new word is ‘were’.  As such the sentence becomes;

·     ‘It does not accept the reasons he claims for the delay in applying for protection were in anyway due to the difficulties he claims happened to him in Pakistan and why he fears return.’

3. At paragraph 72 the punctuation and words ‘; or that’ and ‘applicant’s’ should not be underlined or in a different colour to the rest of the text so that the two sentences are as follows;

·     ‘It follows it does not accept the Mullah arrived at the applicant’s home with the police looking for the applicant; or that the police officers searched the house for the applicant. It follows it does not accept the applicant’s claims his family fear that the police and the Mullah haven’t forgotten about the applicant and that they could arrest the applicant on return.’

4. At paragraph 73 the word ‘[Location 1]’ should be replaced with ‘[Location 1]’ and ‘or’ should not be underlined or in a different colour to the rest of the text so that the sentence is as follows:

·     ‘It follows it does not accept that following this the local [Location 1] police officers visited his father’s home and beat his family for blaming them for the drugs found in the residence, or the Mullah went to their home and threatened to get all of the applicant’s family members arrested if any of them mentioned their names to the Rangers.’

5. At paragraph 73 the word ‘PKR’ should not be underlined or in a different colour to the rest of the text; and the word ‘rupees’ should be deleted so that the sentence is as follows:

·     ‘It follows it does not accept that the Mullah ordered that the applicant should be permitted to convert to Islam on his return and the applicant’s father should inform him, the Mullah, when the applicant returns to Pakistan or that his father had to pay the Mullah PKR[Amount] for sending the applicant out of the country without the Mullah’s permission.’

6. The word ‘and’ should be deleted and the word ‘or’ not underlined or in a different colour to the rest of the text so that the heading is as follows:  

·     ‘Does the applicant have a well-founded fear of persecution in relation to Pakistan and meets the refugee protection provisions of the Act; or does the applicant meet the protection obligations under the complementary protection provisions of the Act?’

7. At paragraph 79, the  following sentence  ‘The Tribunal has found neither the applicant nor his family were and are of interest to the police, Rangers, Muslims, [Mullah A], [Mr C] and [Mr D], [Ms B], the TTP, Taliban, militants, the locals or anyone else as because he is a Christian who refused to convert to Islam or as he offended or insulted [Mullah A], Islam, Mohammad and Muslims or as he is perceived or accused of violating the blasphemy law or as he is involved in drugs or as he fled to Australia or for any of the reasons he claims.’, should be replaced with:

·     ‘The Tribunal has found neither the applicant nor his family were and are of interest to the police, Rangers, Muslims, [Mullah A], [Mr C] and [Mr D], [Ms B], the TTP, Taliban, militants, the locals or anyone else because he is a Christian who refused to convert to Islam or he offended or insulted [Mullah A], Islam, Mohammad and Muslims or he is perceived or accused of violating the blasphemy law or he is involved in drugs or he fled to Australia or for any of the reasons he claims.’

8.At paragraph 80 the words ‘The Tribunal therefore finds that the applicant will not face a real chance of persecution involving serious harm if he returns to Pakistan in the reasonably foreseeable future as because he is a Christian who refused to convert to Islam or as he offended [Mullah A], Islam and Muslims or as he is perceived or accused of violating the blasphemy law or as he will be charged and prosecuted for trafficking drugs, as or that his family will be targeted for these reasons or for any of the reasons he claims. The Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm as defined in s.36(2A) as because he is a Christian who refused to convert to Islam or as he offended [Mullah A] Islam and Muslims or as he is perceived or accused of violating the blasphemy law or as he will be charged and prosecuted for trafficking drugs, as or that his family will be targeted for these reasons or for any of the reasons he claims.’  should be replaced with:

·     ‘The Tribunal therefore finds that the applicant will not face a real chance of persecution involving serious harm if he returns to Pakistan in the reasonably foreseeable future because he is a Christian who refused to convert to Islam or he offended [Mullah A], Islam and Muslims or he is perceived or accused of violating the blasphemy law or he will be charged and prosecuted for trafficking drugs, or that his family will be targeted for these reasons or for any of the reasons he claims. The Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm as defined in s.36(2A) because he is a Christian who refused to convert to Islam or he offended [Mullah A], Islam and Muslims or he is perceived or accused of violating the blasphemy law or he will be charged and prosecuted for trafficking drugs, or that his family will be targeted for these reasons or for any of the reasons he claims.’

9.In the first sentence of paragraph 84 the word ‘notes’ should be deleted so that the sentence is as follows:

·     ‘The UK Home Office in its September 2018 report Country Policy and Information Note Pakistan:’

10. At paragraph 85 the sentences ‘As raised with the applicant via s.424AA the evidence in his 2013 student visa application indicates his parents have over PKR [Amount] rupees in their bank account. The evidence from the applicant is that his family continue to attend their Cchurch, [Name] and celebrate Christian festivals in Pakistan.’ should be replaced with:

·     ‘As raised with the applicant via s.424AA the evidence in his 2013 student visa application indicates his parents have over PKR[Amount] in their bank account. The evidence from the applicant is that his family continue to attend their Church, [Name] and celebrate Christian festivals in Pakistan.’

11. At paragraph 85 in the last sentence the word ‘in’ should be deleted so that the sentence is as follows:

·     ‘It also does not accept based on the applicant’s complete lack of credibility that the applicant’s family have been questioned or approached by the Rangers.’

12. At paragraph 87 the words ‘of the Act’ should be added, not underlined and in the same colour as the rest of the text so that the sentence reads as follows ‘:

·     Therefore, on the basis of the above information and what is accepted of the applicant’s circumstances, the Tribunal does not accept that the difficulties the applicant will face as a result of he and his family being Christian followers and engaged in Christian activities such as attending Church and celebrating Christian festivals amounts to serious harm outlined in s.5J(5) of the Act or meets the definition of significant harm as defined in s.36(2A) and s.5(1) of the Act.

13. In paragraph 88 the words ‘of on account’ and ‘as’ should be deleted and ‘that’ should not be underlined and be in the same colour as the rest of the text so that the sentence reads as follows:

·     ‘The Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm as defined in s.36(2A) as a result of his religion as a Christian follower, believer, supporter and being involved in Christian activities, or that he will be prevented from practising his religion.’

14. In paragraph 89 the word ’her’ should be deleted so that the sentence reads as follows:

·     ‘The Tribunal has considered whether the combination of each of the individual claims raised by the applicant would together create a real chance of him being subjected to serious harm in Pakistan in the reasonably foreseeable future.’

Gabrielle Cullen
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1611434

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Gabrielle Cullen

DATE:7 April 2020

PLACE OF DECISION:  Sydney

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

Statement made on 07 April 2020 at 4:05pm

CATCHWORDS
REFUGEE – protection visa – Pakistan – religion – Christian – pressured to convert to Islam in order to join sport club – fear of radical Muslim individuals and groups – threats to family – voluntary return to Pakistan – arrest, beating and rape – credibility – inconsistent evidence – no harm to family – country information – status of Christians – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 5J, 36, 65, 424AA, 438
Migration Regulations 1994 (Cth), Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 24 June 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who is a citizen of Pakistan, claims to fear return as he is a Christian who claims he will be targeted on return by [Mullah A], the police, the Taliban and others as he refused to convert to Islam and as he insulted the Mullah in front of everyone by not converting.

3. The applicant arrived in Australia [in] May 2013 as the holder of a student visa granted [in] April 2013. He applied for the visa [earlier in] April 2013. The applicant departed Australia [in] December 2014, travelled to Pakistan and re-entered Australia [in] January 2015. On 29 June 2015 the applicant applied for a protection visa to which this decision relates.[1]

   [1] As raised with the applicant via s.424AA at hearing

4. On 23 February 2016 the applicant was interviewed by the Department. The Tribunal has listened to a recording of that interview and where relevant the evidence from that interview appears in this decision.

5. The delegate refused to grant the visa on 24 June 2016 on the basis that the applicant was not credible as to his claims.

6. The applicant appeared before the Tribunal on 16 March 2020 to give evidence and present arguments. He was assisted with an interpreter in the Urdu and English languages.

7. The issues to be considered in this case are as follows:

   ·Is the applicant credible as to his claims?

   ·Does the applicant have a well-founded fear of persecution in relation to Pakistan and meet the refugee protection provisions of the Act?

   ·Does the applicant meet the protection obligations under the complementary protection provisions of the Act?

   Criteria for a protection visa

8. The relevant criteria for a protection visa are outlined in the Appendix.

   CONSIDERATION OF Claims and evidence

9. The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision and other material available to it from a range of sources. This includes, but is not limited to, the following.

   ·The applicant’s protection visa application dated 29 June 2015, including claims outlined in an attached statement and identity documents.

   ·Oral evidence of the applicant provided at the Department interview on 23 February 2016 and Tribunal hearing on 16 March 2020.

   ·Country information submitted by the applicant as follows:

   oAttacks against journalists in Pakistan: Facts and Figures dated 30 April 2014

   o Pakistan must investigate Inter-Services Intelligence over attacks against journalist dated 29 May 2014

   o Pakistan: Upholding blasphemy death sentence against Christian woman ‘a grave injustice’ dated 16 October 2014

   oA public statement from Amnesty International, Still no justice for Pakistan’s murdered journalists dated 31 May 2015

   oAmnesty International ‘Pakistan: Justice needed for mob killing of Christian couple’ dated 4 November 2014

   oPakistan Christian dated 24 June 2015 Increasing Persecution is Pakistan’s Greatest Betrayal for Pakistani Christian

   oIslamic Clerics Fight Against Reform to Pakistan’s Notorious Blasphemy Laws dated 24 June 2015

   oIslamic Clerics Fight Against Reform to Pakistan’s Notorious Blasphemy Laws; dated 24 June 2015

   oIncreasing Persecution is Pakistan’s Greatest Betrayal for Pakistani Christians; Export date: 24 June 2015

   oPakistan Christian Post – Lahore: 3 June 2015. (PCP) The Anti-terrorist court of Pakistan has denied bail to 18 Christians who are in custody in connection with the lynching of two Muslims in Youhanabad and a violent attack on the Metro.

   oLahore: 24 May 2015. (PCP) The CTS, a Christian NGO led by Katherine Sapna reaches DhoopSaari and presents the situation of Christian residents as very serious who are hiding in their homes and Muslim mob of thousands is pelting stones on homes of Christians and looting valuables from homes vacated by fleeing Christians.

   oMuslim extremists attempt to burn alive a Christian youth in Pakistan Lahore: 11 April 2015. (PCP).

   oPCC condemn attack on Christian Journalist in Islamabad Karachi: 3 April 2015. (PCP) Dr Nazir S Bhatti, President of Pakistan Christian Congress PCC strongly condemned attack of Christian journalist Shamim Masih in Islamabad.

   oPCC condemn firing on brother of human right activist advocate Mushtaq Gill Karachi: 1 April 2015. (PCP) The Central Executive Council of Pakistan Christian Congress PCC in a press strongly condemned the firing on Mr Pervaiz Gill by Muslim criminals involved in the rape case of Christian girl in Bhai Phero.

   oAmnesty International 30 April 2014. Pakistan: Journalists under siege from threats, violence and killing’ and Pakistan: A bullet has been chosen for you.

   oAmnesty International 30 May 2014. Pakistan must investigate Inter-Services Intelligence over attacks against journalists.

   oChristian Today 8 March 2014. ‘Netherlands hears plea to grant Pakistani Christians special status’. Members of the British Pakistani Christian Association (BPCA) were in the Netherlands to ask for greater efforts to protect persecuted Christians in Pakistan and make it easier for them to receive asylum in the country.

   oChristians in Pakistan 17 February 2014. Pakistan’s Blasphemy Laws Became Easy Route For Christian Harassment. Forged allegation of blasphemy, forced marriages, and social opposition are problems faced by Christians in Pakistan.

   o250 Christian families driven from their homes, 21 May 2013.

   oIslamic Clerics fight against reform to Pakistani Blasphemy Laws. Persecution.org 24 June 2015.

   oMuslim mob set on fire the Church and Christian properties on allegation of burning Quran pages — Pakistan Christian Post 24 June 2015

   oBahawalpur Church carnage 2001, she still fears to speak. The Chrtistian Post 24 June 2015

   oAnti-terrorist court denies bail to victims of Youhanabad The Pakistani Christian Post 24 June 2015

   oMuslim mob looting and setting on fire Christian homes after allegation of Blasphemy — Pakistan Christian Post 24 May 2015

   oMuslim extremists attempt to burn alive Christian youth in Pakistan —Pakistan Christian Post 11 April 2014

   oPCC condemn attack on Christian journalist in Islamabad - The Pakistan Christian Post 3 April 2015

   oFCC condemns firing on brother of Human Rights Activist advocate Mushtaq Gill — Pakistan Christian Post 1 April 2015

   oJustice needed for mob killing of Christian couple - Amnesty International report 4 November 2014

   oStill no justice for Pakistan murdered journalists - Amnesty International 31 May 2015

   oAmnesty International report on Pakistan sentencing of Christians; 10 October 2014

   oAttacks against journalists in Pakistan: facts and figures — Amnesty International report 30 April 2014

   oChristians CP world Muslims NGO highlights forced conversion of Christian women — World Watch Monitor 9 June 2014

   oPakistan must investigate Inter-Services Intelligence over attacks against journalists — Amnesty International Press Release 30 May 2014

   oPakistan: Human rights lawyer shot dead in his officer: Rashid Rehman 19 May 2014

   oPakistan: Journalists under siege from threats, violence and killings; Amnesty International 30 April 2014

   oMinority Report: A matter of faith: Christians In Pakistan 9 April 2014

   oPakistani blasphemy law used against popular TV channel, Jehovah's witnesses and more; Open Door USA 27 May 2014

   oNetherlands hears petition to grant Pakistani Christians special status; Christians In Pakistan 8 March 2014

   oPakistan's blasphemy laws became easy route for Christian harassment; Christians in Pakistan 17 February 2014

   oPakistan: Muslims torture Christian to force him to convert to Islam and threaten to kidnap his children; Jihad Watch 15 February 2014

   oPersecution of Christians in the Muslim World: We are what we tolerate; The Jerusalem Post 30 January 2014

   ·Submission from the applicant dated 9 March 2020.

   ·Department of Foreign Affairs and Trade (DFAT), Country Report Pakistan, 20 February 2019.

   ·‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the Department).

10. For the reasons that follow, the Tribunal has concluded that the decision under review should be affirmed.

    Section 438

11. The Department issued a certificate under s.438 of the Act, certifying that the disclosure of information at folio 85 of the file would be contrary to the public interest, because it contains information relating to an internal working document and business affairs. In light of the Federal Court decision in MZAFZ v MIBP[2], which considered a s.438 certificate with similar wording, the Tribunal finds that the certificate is not valid as it does not specify a reason that could form the basis for a claim to public interest immunity. The Tribunal further notes that the information in folio 85 relates to the applicant’s signatures and a chronology of significant dates including his date of birth, application dates, biometrics and interview dates. It also contains information as to the dates he returned to Pakistan which were raised by the applicant via s.424AA at hearing.

    Is the applicant credible as to his claims?

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

    The applicant’s claims

1. The applicant claims in his protection visa application that he fears return to Pakistan as he is a Christian.

2. The applicant claims he is a Pakistani Christian born in Karachi and lived with his parents in their family-owned home at [Location 1], Karachi, Pakistan. He claims his father is working in Baluchistan and in Islamabad for private [companies]. He claims his mother is working in [company] and looked after them in Karachi. He claims his elder brother is [an Occupation] and he helps their mother to run the house while their father is away.

3. The applicant claims at school he was the captain of the [sport] team and radical Muslim students felt so jealous that they harassed and humiliated him on a daily basis as he was a Christian. He claims that after he joined the club members playing [sport], the radical college boys were warned to stay away from him. He claims that in his locality he continued to face harassment and humiliation and the club’s Muslim members couldn't stop them. He claims that he got to know his club members through his Islamic scripture teacher [Ms B]. He claims that unlike other Christian students who gave up their studies in fear of humiliation, he continued to attend Islamia scripture classes.

4. The applicant claims he was unable to become a permanent member at the [sport] club because he was forced by the teacher and her nephews, [Mr C] and [Mr D] who also attended scripture classes, to convert to Islam. He claims that as he was very good in Islamic studies, the teacher persuaded him and even brainwashed him to become a Muslim and to attend the [Name] Mosque situated near the [sport] club. The applicant claims the teacher told the Mullah [A] that he was good in Islamic scripture and would like to become a Muslim.

5. The applicant claims that even at the playground belonging to the club all the players had to say the verse ‘Kalma’ before the game started. He claims even at school all the Christian students had to say the verse ‘Kalma’ to pass an exam. He claims he was forced to wear the hat when they did Muslim prayers. He claims the Muslim teacher was very loving towards him, but she gave the wrong impression about him to the Mullah. He claims around July 2012 the Mullah visited the teacher’s home to meet him. He claims the Mullah asked him whether he was involved in the church to which he replied that he is very much involved in the church. The applicant claims that the Mullah was informed by local Muslims and the [sport] club members that the applicant was interested in converting to Islam. However, the applicant claims he only displayed interest and enthusiasm in Islam to pass his scripture class and because he wanted to become a member of the [sport] club. He claims he loves his church and never had any intention to become a Muslim. He claims that the Mullah told him if he converted to Islam, he could become a permanent member of the [sport] club. He claims the Mullah told him if he feared his parents, the Mullah would speak to his parents and warn them to leave the applicant alone. The applicant claims he thought he was getting his parents into trouble with the Mullah because of his wish to join the [sport] club.

6. The applicant claims he told his family members about his chat with the Mullah and his father and brother advised him to leave the country as soon as he could before the Mullah forcibly converted him. He claims he started to apply for a student visa for different countries with the help of his brother through an agent.

7. The applicant claims that around August 2012, [Mr C] and [Mr D] (his classmates as well as his teacher’s nephews) visited his home to speak to him privately. He claims they asked him to speak to the club directors as to his permanent membership. He claims that when he went with them to the club, he saw the Mullah seated along with the senior members who wanted to interview him. He claims he was asked to pray along with them as well as say the verses ‘Kalma’ and ‘Azan’. He claims they told him that he would be an asset to the [sport] team if he joined them. He claims they told him that the Mullah and his teacher had recommended he should be made a permanent member in the club. He claims they said he had to attend the Maddrasse [Name] where he would be trained with other skills. He claims they told him once he was converted to Islam by the Mullah, he would meet them at the Madrassa School for training on a daily basis. He claims the Mullah asked him whether he had spoken to his parents about his conversion. The applicant claims he denied it to the Mullah. The applicant claims he started to fear that he could be converted forcibly without his parents’ knowledge. He claims he realized the mistake in playing [sport] with radical Muslims. He claims he told the Mullah that once he completed his studies, he would be able to fully concentrate on his games.

8. The applicant claims his father and brother were furious after hearing about the discussion. He claims that as he is the last member of his family, his elder sister and his brother urged his parents to send him out of the country as soon as they could. He claims his family feared that he would be leaving the home permanently and would not return in the future. The applicant claims that his brother told him a couple of Christian youths in their area had been converted [to Islam] and were kept away from their family and were involved in the Tehrik-e-Taliban Pakistan (TTP) shooting and killing. The applicant claims [Mr C] and [Mr D] frequently visited him to check on him; however, he claims he pretended to be normal until he received his visa to leave Pakistan.

9. The applicant claims that he moved to Islamabad with his father so that he could complete his studies. He claims he was happy to spend time with his father in Islamabad and moved with his father in the hope that the Mullah would leave him alone. The applicant claims that after he left for Islamabad, the Mullah reprimanded his brother on the streets saying that his father had brainwashed the applicant not to convert to Islam. He claims his brother told the Mullah that the applicant only wanted to join the [sport] team and did not intend to become a Muslim. He claims the Mullah told his brother that the applicant had told them a lie and had promised to become a Muslim in front of many senior Muslims at the club. The applicant claims being Christians they fear that they could be targeted by radical Muslims and TTP militants if they antagonise them. He claims his brother told him to get out of the country and travel to Australia as a student. He claims all his family members came forward to send him money for his studies and insisted that the applicant study hard and stay in Australia permanently, applying for skilled migration following the agent’s advice.

10. The applicant claims he went to Karachi to obtain his visa and left the country once his visa was granted. He claims until he flew out of Karachi, he feared that the local Muslims could inform the Mullah. He claims in Australia he studied hard to complete his course knowing that he could apply for permanent residence status at a later stage. He claims that after he left Pakistan, the Mullah met his brother on the streets and questioned his brother about his whereabouts. He claims his brother told the Mullah that he had left the country to further his studies. He claims the Mullah reprimanded his brother for sending the applicant away. He claims that a few weeks later [Mr C] and [Mr D] had visited his father in Islamabad and searched for the applicant at his residence. The applicant claims that [Mr C] and [Mr D] even questioned his father’s Christian house mates about the applicant’s whereabouts. The applicant claims they, [Mr C] and [Mr D], told his father that the applicant had cheated and disgraced all of them, especially the Mullah. They said that they are members of the TTP and will meet the applicant once he returns to Pakistan.

11. The applicant claims his father told him to stay away from Pakistan until the perpetuators forgot about him. The applicant claims his brother who knew about the protection visa in Australia advised him not to make a protection visa application as he would not be able to visit his family in the future.

12. The applicant claims after telephone calls with his family members in Pakistan, he realized that the Mullah or the teacher’s nephews did not visit their house for some time.

13. The applicant claims he was becoming homesick and wanted to see his family during his holidays. He claims that when his brother told him it was safe to return, he flew back to Pakistan [in] December 2014. He claims he was enjoying Christmas celebrations with his family. He claims that for a couple of weeks, he feared getting out of the house so he only visited church by car.

14. He claims that [in] January 2015 while he was driving to the church with his mother and brother, [Mr C] and [Mr D] along with the police officers stopped their car and ordered them to get out of the car. The applicant claims that he was arrested by the police when he got out of the car and was taken to the [Location 1] Police Station. He claims his mother and brother were allowed to go. He claims the two police officers beat him for disgracing Islam, the Mullah and his senior members. He claims they said he promised to become a Muslim and pray alongside them but instead cheated them and disgraced their Lord. He claims they told him he would be punished for deceiving their Mullah.

15. The applicant claims while he was interrogated, [Mr C] and [Mr D] came along with the Mullah and after speaking to the police officers, they took him to a dangerous area in their district known as [Location 2] where he was handed over to three TTP men armed with handguns. He claims the Mullah told him he would make arrangements to convert the applicant and afterwards be taken away by [Mr C] and [Mr D] to the Tribal area where the applicant would be studying scripture and obtain military training to serve in the TTP. The applicant claims he was thrashed repeatedly for deceiving him and the TTP men during ‘my’ detention. He claims he was raped by the Mullah and TTP men during his detention. He claims two days later [Mr C] and [Mr D] took him away from the house and brought him to the Mosque. He claims they left him to stay in a room and they themselves left to go get the Mullah. The applicant claims a Muslim man entered the room and he asked to be taken to the toilet. He claims as soon as he was shown the back of the mosque for the toilet, he left the Mosque and ran to the street and took the first auto to escape. He claims he stopped at a shop to call his brother and his brother ordered him to stay at his brother’s friend’s place until he came. 

16. The applicant claims when he met his brother, he relayed everything that happened to him. He claims his brother made plans to get him out of the country. He claims he was at his brother’s friend’s place until he fled from Pakistan. He claims he was worried the police officers could get him at the airport if he left immediately. The applicant claims that when he arrived in Australia, his brother told him that the police officers had come in search of him and told the family that the applicant would be charged under Blasphemy law for disgracing and defaming Islam and Mohammed. He claims the Mullah had planned to try him under Sharia law and the locals demanded that he should be killed for disgracing Allah.

17. The applicant claims despite telling his brother about the harassment and abuse he underwent, his brother continued to convince him that he should study hard and obtain a permanent residence in Australia under the skilled category so that he could sponsor his brother and sister later on. The applicant claims his brother was prepared to spend any amount of money on the applicant’s studies. The applicant claims he was studying very hard but felt he was unable to concentrate on his studies any further. He claims he was traumatized and started to smoke to forget about his worries. He claims he became a chain smoker as he was unable to come to terms with the abuse he underwent. He claims rather than worrying too much, he asked his father whether he was permitted to lodge a protection visa application to which his father agreed.

18. The applicant claims that if he does not get permanent residence status in Australia or in another country and he returns to Pakistan, he runs the risk of being killed, forcibly converted to Islam or end up as a militant. He claims he is a good Christian and never wanted to become a Muslim. He claims he loves his Lord Jesus and wants to be saved from radical Muslims. He claims he cannot study any further as he cannot concentrate due to the abuse he suffered. He claims he was unable to tell his worries to anyone and only after obtaining legal advice, did he decide to tell the truth about his fear of death upon return to Pakistan.

19. At the Department interview held on 23 February 2016 the applicant reiterated his claims to fear return from the Mullah and others on account of his refusal to convert. In addition to the above he claimed that a few months prior to the interview [Mr C] saw his first cousin, [Mr E], on the street, they had eye contact and [Mr C] asked when the applicant was coming back, to which his cousin replied that he had no information. The delegate raised a number of concerns as to the consistency and plausibility of the applicant’s evidence, and where relevant these concerns and the applicant’s responses are outlined below.

20. The applicant made the following claims in a submission to the Tribunal dated 9 March 2020:

    ·Around February 2019 to December 2019, the Rangers were arresting many criminals in Karachi during their raids and as a result many people are behind bars for their involvement in drug smuggling, possession of arms and looting items and weapons. He claims the people in Karachi including his family members were shocked to find that many criminals had been arrested.

    ·Around November 2019, [Ms B], his scripture teacher phoned his father and accused him of providing information to the Rangers about [Mullah A] and her nephews [Mr C] and [Mr D] in relation to their involvement in drugs and weapon smuggling. She said that the Rangers had arrested both [Mr C] and [Mr D] and that the applicant’s father had to face the consequences in the near future. He claims his father denied that he ever contacted the Rangers and within a week the police officers along with the Mullah arrived at the applicant’s home and ordered all his family members to assemble in the hallway. While they were assembled before the Mullah, the Mullah asked them where the applicant was. He claims when his father told them that the applicant had not returned from overseas, three police officers started to search the whole house for the applicant. The Mullah said that they received information from their men that the applicant had returned back from Australia as his visa was rejected. The applicant’s father denied it. The applicant claims once the police officers returned back after a few minutes, the Mullah and the officers left the house in a hurry. The applicant claims his family fear that the police and the Mullah haven’t forgotten about the applicant and that they could arrest the applicant on return.

    ·[In] December 2019, the Rangers arrived at his home and a few officers went around their house in search of drugs, weapons and looted items. He claims when the officers completed their search, they brought with them two sachets of drugs and a pistol from their store room and gave them to the senior officer standing in front of his family members.

    ·The applicant claims the senior officer ordered the other Rangers to arrest his father and brother. He claims they were taken to Karachi police station for interrogation. He claims they were tortured. He claims his father told the officers that he suspected the Mullah and the local police officers hid the drugs and the pistol in their residence when they visited the house the previous week. He claims his father told the Rangers about the phone call from the applicant’s scripture teacher and the threats he received from her. The applicant claims the Rangers told his father that the same local [Location 1] police officers informed them that the applicant had been involved in drug trafficking along with the applicant’s teacher’s nephews, [Mr C] and [Mr D] who were behind bars.  The Rangers further said that when they interrogated [Mr C] and [Mr D], they confirmed that the applicant worked along with them in arms and drug smuggling.

    ·The applicant claims his father tried to convince the officers that the applicant fled from Pakistan before he was converted to Islam by the Mullah and the teacher. The applicant claims the Rangers took down his father’s and brother’s statements and released them on the condition that, until they complete their investigations, they should not leave the country. He claims the Rangers told his father that they had enough evidence to prosecute the applicant along with [Mr C] and [Mr D]. He claims they ordered his father to inform them immediately when the applicant returns back from Australia.

    ·The applicant claims within a few days of his father and brother’s release, the local [Location 1] police officers visited his father’s home and beat them for blaming them for the drugs found in the residence. He claims his father pleaded with the officers not to hurt them as none of the family members had ever dealt with drugs in the past. He claims the officers spoke to the Mullah by phone and when the Mullah went to their home, he threatened to get all of the applicant’s family members arrested, if any of them mentioned their names to the Rangers.  He claims the Mullah ordered that the applicant should be permitted to convert to Islam on his return and the applicant’s father should inform him, the Mullah, when the applicant returns to Pakistan. The applicant claims the Mullah ordered his father to pay him PKR[Amount] for sending the applicant out of the country without the Mullah’s permission. He claims his father paid the money to live safely from the police and the Mullah. 

    ·The applicant claims he is happy that [Mr C] and [Mr D] are behind bars. He claims he still fears that the Rangers could arrest him at the airport on his return.

21. The applicant also submitted news articles which refer to the Rangers’ arrests of drug and arms dealers around 2019 which have been considered by the Tribunal.

    ·The Nation, Rangers arrest 20 outlaws dated 12 December 2019.

    ·Dawn.com, Rangers crack down on drug racket; two killed, several arrested Pakistan dated 8 March 2020.

    ·The News International, Rangers arrest 10 suspected criminals

22. The applicant claims the decision of the delegate of the Department is unreasonable and was made with legal errors as the delegate ignored the main claims and the exceptional circumstances under which the applicant was forced to flee from Pakistan.

23. The applicant claims the delegate did not mention about the police brutality that he faced before he fled Pakistan. He claims the delegate in her reasons completely ignored the harassment and torture the applicant faced from the police officers, who worked along with the Mullah and the TTP terrorists including the teacher’s nephews. The applicant claims the fear he had was mainly from the police officers who worked with the Mullah and the TTP militants. He asks how he could get protection in his country when the police officers were involved with the Mullah and the TTP militants. He claims the delegate did not understand the fact that he had to flee in fear of the police officers who handed him over to the Mullah and armed TTP militants who detained him and raped him under their orders. He claims the police officers were aware of the rape and never took any steps to arrest the Mullah or the TTP militants. He claims it is a well-known fact that police officers fear to work against the TTP and Mullah as those who ‘acted against their orders were shot and killed’.

1. The applicant claims the delegate failed to note that the Mullah was seated along with the senior club members to decide as to the applicant’s permanent membership in the club. The applicant claims the delegate already knew that the Mullah was trying hard to convert him to Islam which he, the applicant, never agreed to but asked for more time to think about it. He claims he was informed afterwards that once he completes training at the Madrassa [Name] and after conversion to Islam, he could be made a permanent member of the club. He claims his love for sports and his membership in the club made him learn Islamic scripture. He claims he had no clue he would be taken to Federally Administered Tribal Areas (FATA) for military training by the TTP.

2. The applicant claims the delegate failed to take into consideration the following “exceptional circumstances” which prompted him to flee from the country.

   ·He does not have adequate safety to lead his life peacefully in any part of Pakistan while the police, Mullah and TTP are in control of the whole country.

   ·He will not be able to escape arrest under the blasphemy laws by the police on false grounds that he disgraced Islam and disrespected the Mullah and failed to stand by his promise to convert to Islam. He claims he never told the Mullah that he is willing to convert to Islam at any point in time. He claims he told the Mullah he needed time to think about it so that he could flee from the country.

   ·He claims he cannot escape from the police, Mullah and the TTP who are determined to ruin his life by raping, torturing and detaining him until he converts to Islam.

   ·He claims the police officers who are Muslims themselves work along with the Mullah in arresting Christians contravening blasphemy laws by refusing the conversion to Islam. He claims he will be forced to convert or be threatened with abduction to FATA.

   ·He claims he cannot escape from the TTP and police officers who are determined to trace the Christians who can easily be recruited to the TTP or converted to Islam.

3. The applicant claims due to the above exceptional circumstances, he could not lead a peaceful life in his country. He claims he could not follow his religion, his parents were forced to give full approval for his conversion to Islam, and he would face persecution for not converting to Islam under blasphemy laws and Sharia laws in Pakistan. He claims the delegate completely ignored the above exceptional circumstances in her decision to reject his claims.

4. At the Tribunal hearing held on 16 March 2020 the applicant reiterated his claims to fear return as outlined above. The Tribunal raised a number of concerns as to the credibility of his claims, including internally inconsistent evidence and where relevant these have been outlined below. It raised with him a number of matters via s.424AA of the Act, which where relevant are outlined below. After being given the options according to s.424AA as to how he wished to comment or respond, he chose on all occasions to respond orally at hearing. The Tribunal also raised with him information as to the treatment of Christians in Pakistan, as well as in Karachi and questioned whether he, considering his and his family’s profile, would face a real chance of serious harm or real risk of significant harm on return to Pakistan as a Christian.

   Assessment of credibility of claims

5. Having sighted a copy of the applicant’s identity documents and based on his consistent evidence as to his identity, the Tribunal accepts that the applicant is a national of Pakistan for the purposes of s.36(2)(a) of the Act. For the purposes of s.36(2)(aa) the Tribunal accepts that Pakistan is the receiving country.

6. As to the applicant’s credibility, for the reasons that follow the Tribunal does not accept that the applicant is a credible witness as to either he or his family having faced the difficulties he claims and fearing return for the reasons he claims. It follows the Tribunal does not accept either he or his family ever faced any of the difficulties he claims from [Mullah A], [Mr C] and [Mr D], the police or Rangers due to his failure to convert to Islam or for any other reasons he claims. It finds his testimony to be inconsistent as to these claims and is of the view that he has fabricated claims and concocted evidence to achieve an immigration outcome.

   Events leading to the applicant to depart for Islamabad in September 2012

7. The applicant has provided the following inconsistent evidence as to the events which led him to depart from Karachi to Islamabad in September 2012 as a result of [Mullah A]’s persistence that he converts to Islam.

   ·In both his statement and at hearing he claims he came to know [Mr C] and [Mr D], the [sport] club members, through his Islamist teacher from his school[3], [Ms B] as they were her nephews. However, he has provided inconsistent evidence as to the details of how they met and came to know each other. In his statement attached to his protection visa application he claims that he was very close to his teacher, [Ms B] and went to her home to study scripture. He claims when he visited her home, she introduced him to her nephews, [Mr C] and [Mr D]. However, at the Tribunal hearing, in contrast to his statement, when asked how he met and came to know [Mr C] and [Mr D], he said that he met them in College when [Ms B] introduced them, and they told him after one meeting about the [Name 2] [Sport] Club. When asked why they were at College, he said he did not know. He confirmed he only met [Mr C] and [Mr D] at College once after lessons and after that he met them at [Name 2] [sport] ground. When the inconsistency was raised with the applicant, he responded that he went to [Ms B]’s house for tuition and met them at College. The Tribunal does not accept the applicant’s response as explaining the inconsistency. His inconsistency adds to the finding he is not a credible witness.

   ·While the applicant has been consistent between his statement and the Tribunal hearing as to [Ms B] introducing him to [Mullah A] and telling him he was interested in Islam, he has provided inconsistent evidence as to where they met and when the Mullah first talked to him as to converting to Islam to become a member of the [sport] club. In his statement he claims that around July 2012 [Mullah A] came to the teacher’s home to meet him. He said the Mullah mentioned to him his (the applicant’s) interest in converting to Islam. He claims the Mullah told him if he converted to Islam, he could be made a permanent member of the [sport] club. He claims the Mullah said he could speak to his parents about converting. However, as raised with the applicant at hearing, in contrast he said at the Tribunal hearing that in March/April 2012 he was approached by [Mullah A] at the [sport] club and the Mullah asked him whether he wanted to be a member, how [Ms B] had told him of his, the applicant’s, interest in Islam and that if he wanted to play he had to convert to Islam. When asked whether he had only met the Mullah at the sports club he answered in the affirmative. The inconsistency adds to the finding the applicant is not a credible witness.

   ·Further, in contrast to his statement, the applicant said at the Tribunal hearing that at this meeting in March/April 2012 he was taken to a small room by [Mullah A] where two other people from the sports club were present and he had a conversation with them about becoming a member and converting. He said at the Tribunal hearing that they advised him that if he wanted to become a member, he had to convert to Islam. He said he told them he wanted to speak to his father. He said he spoke to his father who told him to get his mark sheet in September from College and then apply overseas to study. He said he did not listen but continued training with the [sport] club and [Mr C] and [Mr D] tried to convince him to convert and become a member of the club. He said when it was September he travelled to Islamabad and when asked why, he said because his father said if he stays, he will have to convert. When asked what happened next, he said [Mr C] and [Mr D] came to his home many times while he was in Islamabad and he was not there and then referred to [Mullah A] stopping his brother on the street.  He then referred to leaving the country and when asked if he had described all that had happened before he left Pakistan for Australia the first time in May 2013, he answered in the affirmative. In his statement, in contrast, he provided a different version of events to that outlined at hearing. He claims in his statement that in addition to the July 2012 meeting referred to above where he met [Mullah A] at the home of [Ms B], around August 2012, [Mr C] and [Mr D] visited his home and asked him to speak to the club directors as to his permanent membership. He claims that when he went with them to the club, he saw the Mullah seated along with the senior members who wanted to interview him. He claims he was asked to pray along with them as well as say the verses ‘Kalma’ and ‘Azan’. He claims they told him that he would be an asset to the [sport] team if he joined them. He claims they told him that the Mullah and his teacher had recommended he should be made a permanent member in the club. He claims they said he had to attend the Madrassa [Name] where he would be trained with other skills. He claims they told him once he was converted to Islam by the Mullah, he would meet them at the Madrassa School for training daily. He claims the Mullah asked him whether he had spoken to his parents about his conversion. The applicant claims he denied it to the Mullah. The applicant claims he started to fear that he could be converted forcibly without his parents’ knowledge. He claims he realized the mistake in playing [sport] with radical Muslims. He claims he told the Mullah that once he completed his studies, he would be able to fully concentrate on his games. He then claims he told his family about what happened, and his father ordered him to travel with him to Islamabad. When the Tribunal raised as of concern the applicant’s inconsistencies in his evidence as to whether there were one or two meetings, what was said at the meeting with the Mullah and two directors and the different version of events he had provided, he responded  that he had told the Tribunal about the first meetings and at the second meeting they said he was to get training in FATA, he said that the Mullah and the two people sitting next to him said first he had to learn the verses and then have training. He said he remembers it happening in summer so that is why he said it happened in July/August 2012. The Tribunal views the applicant’s response as inconsistent with his earlier evidence at hearing, where he had not referred to a second meeting and said the meeting was in March/April 2012 and does not accept it as explaining the inconsistency.

   [3] [Name 1] College

8. Further, in his statement he claims that at his school when he was captain of the [sport] team, radical Muslim students felt so jealous that they harassed and humiliated him daily as he is a Christian. At hearing he said he was targeted by the Muslims and there were many fist fights. When asked what the school response was he said, they said these things happen and asked them to shake hands. However, as raised with the applicant, the evidence indicates that his school, [Name 1] is a private Catholic school run by the Archdiocese of Karachi and the Catholic Education Office. The applicant indicated at hearing that about 30% of the students are Catholics. He said the principal of the College at the time was Brother [F], a religious man. When the Tribunal raised that it found it difficult to believe that radical Muslims would attend a Christian School, he responded that the College was run by the government and they had to have a quota of Muslims and Hindus. The Tribunal questioned this as the information indicates the College is not run by the Government and in 2005 was handed back to the Archdiocese of Karachi and Catholic Education Office. He said as the exam papers are marked by the government, they have to demonstrate the quota. The Tribunal does not accept the applicant’s response as explaining why radical Muslims, even if there were quotas, which the Tribunal questions, would attend a Catholic school.

   Islamabad – September 2012 to March 2013

9. The applicant has provided inconsistent evidence as to the difficulties his family faced from [Mr C] and [Mr D] while he was in Islamabad and prior to his departure in March 2013 as follows. In his statement he claims, prior to leaving for Islamabad, [Mr C] and [Mr D] frequently visited him to check on him and he claims he pretended to be normal until he got his visa to leave for Pakistan. He does not refer to [Mr C] and [Mr D] coming to his home or interacting with his family while he was in Islamabad. He only refers to the Mullah’s discussion with his brother. However, in contrast, at the hearing he said [Mr C] and [Mr D] came to his home many times to check on him while he was in Islamabad. When asked if he was at home when they came, he said he was not. When asked if they came to check on him when he was at home, he said they only came to his home in Karachi when he was in Islamabad as before he left for Islamabad, he was training with them once or twice a week. When the inconsistency was raised with the applicant, he responded that they were visiting him at home as well as seeing him at the Club. He said they were coming to his home asking what he thought about it. The Tribunal is of the view that the applicant’s response does not explain the inconsistency as to whether they came before or during his time in Islamabad and whether he was home or not when they came. It adds to the confusion in his evidence. The applicant’s inconsistent evidence adds to the finding he is not a credible witness.

10. Further, the applicant gave oral evidence at the Tribunal hearing that from September 2012 to March 2013 he lived continuously with his father in Islamabad. He said his father encouraged him to move to Islamabad as he was concerned he would be forced to convert. The applicant said he stayed in Islamabad continuously from September 2012 to March 2013. However as raised with the applicant via s.424AA at hearing, information from his student visa application dated [April] 2013 in the form of an IELTS test indicates he undertook that test in Karachi [in] December 2012. In response to the Tribunal’s concern when raised at hearing the applicant stated that he only travelled to Karachi for one day to do the test and then returned to Islamabad. The Tribunal does not accept the applicant’s response for the inconsistency as he had previously stated that he remained in Islamabad continuously throughout this period to avoid [Mullah A]. The applicant’s inconsistent evidence in this regard adds to the finding he is not a credible witness.

    Delay in departure

11. The applicant’s delay in his departure undermines his claim that he faced the difficulties which he claims led him to depart Pakistan and why he fears return.

12. The applicant stated at hearing that he departed Pakistan in 2013 in fear of harm. He stated at hearing that he travelled to Islamabad and decided to go abroad after he told his father that [Mullah A] wanted him to convert. He said his father told him that if he stayed, they would force him to convert. He claims in his statement that he was urged by his brother to leave the country as a couple of Christian youths in his area had been converted, kept away from their family, taken to the North Western Frontier Province, brainwashed and were then involved in the TTP shooting and killing before being allowed to return to Karachi. He refers in his statement to the Mullah approaching his brother on the street saying that he, the applicant, had lied by saying he would convert. He claims in his statement that after hearing the discussion with the Mullah, his elder sister and brother urged his parents to send him out of the country as soon as they could. He claims as Christians they fear they could be targeted by radical Muslims and militants if they antagonise Muslims. He claims his brother told him to get out of the country as soon as he could, and all his family members came forward to send him money for his studies. He claims in his statement when he returned to Karachi, he feared that the local Muslims could inform the Mullah of his return. He said at hearing that [Mr C] and [Mr D] came to his home many times to check on him while he was in Islamabad.

13. However, undermining his claim to have faced these difficulties, and to have departed in fear for these reasons, he did not depart Pakistan for 17 days after the grant of his visa. In this regard, as raised with the applicant via s.424AA the evidence indicates he was granted a student visa [in] April 2013 but did not depart until [May] 2013, arriving in Australia [the next day]. When raised with the applicant he responded that after he returned from Islamabad it took time to gather his things and pack and that took a couple of weeks. He said the delay was also caused by his father not having the funds. However as further raised with the applicant via s.424AA, evidence of funds submitted with his student visa application in 2013 indicates his family was wealthy and had the money. In particular, the evidence from his student visa application from April 2013 indicates his family were earning good salaries and are able to support the family. He provided evidence of two residential houses, earning rental income and his mother having a personal bank account with a balance of PKR[Amount]. The Tribunal does not accept the applicant’s claim that his father had to gather funds and is of the view if he faced the difficulties he claims he would not wait 17 days after the grant of his visa to gather and pack his things. His delay in departure adds to the finding he did not depart in fear having faced the difficulties he claims for the reasons he claims. It adds to the finding he is not a credible witness.

    Harassment of family from May 2013 to December 2014

14. While the applicant has been consistent in his evidence to the Department and Tribunal with regard to [Mr C] and [Mr D] visiting his father and his father’s house mates at his place of residence in Islamabad to ascertain the applicant’s whereabouts, he has provided the following inconsistent evidence as to difficulties he claims his family faced from the Mullah following his departure from Pakistan in May 2013 until his return to Pakistan in December 2014. In his statement and at the Department interview, the applicant claims he was in constant contact with his family and after he left the Mullah met his brother on the street and questioned him. He claims his brother was stopped on the street by the Mullah and questioned where he was. He claims his brother told the Mullah that he had left the country to further his studies. He claims the Mullah reprimanded his brother for sending the applicant away. However, in contrast, at hearing when asked if the applicant’s family faced any other difficulties other than the visit by [Mr C] and [Mr D] to his father in Islamabad, he said and confirmed that this was only incident where anyone visited his family. When the inconsistency was raised with him he said he had not gone through the detail. The Tribunal does not accept this response as when it asked him at hearing whether his family had faced any other difficulties other than his father being approached by [Mr C] and [Mr D] in this period, he responded in the negative. His inconsistent evidence in this regard adds to the finding he is not a credible witness.

    Return to Pakistan from Australia in December 2014 and January 2015

15. As noted above the applicant claims he left Pakistan in fear when he departed in May 2013 for the reasons summarised at paragraph 46. He claims, as outlined above, his family were approached in both Karachi and Islamabad by [Mr C], [Mr D] and [Mullah A] when he was in Australia. However, as raised with the applicant via s.424AA that despite claiming to have departed in fear in May 2013 and his family being harassed in both Islamabad and approached as to his whereabouts in Karachi while he was in Australia, he returned to Pakistan in December 2014. He claims he returned as he was homesick, wanted to visit his family during the holidays and as his brother told him it was safe to return as he had departed 18 months previously. He also said in his statement that his family had told him that the Mullah had not visited their home for some time, and he said his brother convinced him that his parents were missing him. The Tribunal is of the view if he and his family faced the difficulties he claims, and he fled in fear he would not have returned to Pakistan because he was homesick or for any of the reasons he claims, especially being only 18 months after his departure.

1. His return to Pakistan adds to the finding he is not a credible witness as to the difficulties he claims he and his family faced which led him to depart Pakistan in fear in May 2013 and prior to his return in December 2014. It adds to the finding he is not a credible witness.

   Detention and harm in January 2015

2. The applicant claims [in] January 2015 he was picked up by police, released to the Mullah and subsequently detained and raped by the Mullah and members of the TTP/Taliban. While the applicant was consistent between his statement, the Department interview and Tribunal hearing as to being arrested by police, released on bail to the Mullah, taken to [Location 2], raped by the Mullah and members of the Taliban and escaping with the excuse of going to the toilet, he provided numerous internal inconsistencies, as outlined below, as to central aspects of these claims which leads the Tribunal to find he is not a credible witness as to these events and did not face the difficulties he claims. This adds to the finding he is not a credible witness.

3. Firstly, the applicant provided inconsistent evidence as to whether he was arrested by the police on his way to church or on his way back from church. In his statement, he claims that while driving to church [in] January 2015, [Mr C] and [Mr D] with the police stopped the car he was travelling in with his mother and brother and ordered them to get out of the car. He claims when he came out of the car he was arrested and taken to the police station, while his brother and mother were allowed to leave. However, in contrast at the Department interview and Tribunal hearing, he stated that he was stopped by the police and arrested after church. He said and confirmed at the Tribunal hearing that after church, the applicant together with his mother and brother got in the car and drove for a couple of minutes when they were stopped by the police and taken to the police station. When the inconsistency was raised with him at the Tribunal hearing he said it was a mistake in his statement. The Tribunal does not accept his explanation that it was a mistake in his statement as it is of the view if he was stopped and taken by police as claimed he would be consistent as to this detail due to the significance of the event. It adds to the finding he is not a credible witness.

4. Further, the applicant has provided inconsistent evidence as to whether [Mr C] and [Mr D] were with the police when he was stopped and arrested by the police [in] January when travelling with his mother and brother. In his statement attached to his protection visa application he states [Mr C] and [Mr D], along with the police officers stopped their car. However, in contrast, at the Tribunal hearing he stated there were six police officers who stopped and arrested him and later [Mr C] and [Mr D] came with the Mullah to the [Location 1] Police station. At the Department interview, he also said he was only stopped by police officers and did not refer to [Mr C] and [Mr D] being there. At the Department interview he said he was taken to [Location 1] police station and then [Mr C] and [Mr D] came with the Mullah to take him to another area. When the inconsistency was raised with the applicant at hearing, he responded that [Mr C] and [Mr D] were there when he was stopped by police and he saw them standing there. The Tribunal does not accept this explanation as explaining the inconsistency as he did not refer to them being with the police when explaining who stopped him at the Tribunal hearing. In particular, he stated that two police officers were in the front seat of the car and four in the back. At the Tribunal hearing he did not refer to [Mr C] and [Mr D] being there, only coming later to the police station with the Mullah. The inconsistency in his evidence adds to the finding he is not a credible witness.

5. The applicant has also provided inconsistent evidence as to how long he was detained for in total by the police and the Mullah. In his statement attached to his protection visa application, the applicant stated that two days after being raped by the Mullah he was taken to the mosque where he escaped. Whereas at the Department interview and Tribunal hearing he said and confirmed that he was detained for one day, that he was picked up by police after Mass at around 12.15pm on the Sunday and by the time he escaped it was approximately 4.10pm on Monday. When the inconsistency was raised with the applicant, he indicated that maybe he had forgotten. At the Department interview when the concern was raised, he said when he explained it to his lawyer, he said it was one and a half days. The Tribunal does not accept this explanation and is of the view if he was picked up and arrested by police, then detained by the Mullah he would be consistent between his statement at the interview and hearing as to how long that was for. It does not accept the mistake arose from his agent writing two days. This adds to the finding he is not a credible witness as to these claims. It adds to the finding he is not a credible witness.

6. Further he has provided inconsistent evidence as to whether he escaped from the same place he was taken to by [Mullah A] and the Taliban. In his statement attached to his protection visa application he claims two days after being raped and beaten by the Mullah and TTP men [Mr C] and [Mr D] in [Location 2], he was then moved by [Mr C] and [Mr D] to the mosque, whereupon he was left with a Muslim man who showed him the toilet at the back of the mosque which he then escaped from. At the hearing he gave similar evidence. However, at the Department interview, he stated that after being held at the police station and being transferred by [Mullah A] with [Mr C] and [Mr D] to [Location 2], he stayed there for about 24 hours and escaped from there. He said he stayed at the same place the entire time and when he was left with a Muslim man he asked to go to the washroom and then escaped. When the inconsistency was raised with the applicant at the Tribunal hearing, he said that maybe he had forgotten. The Tribunal does not accept this explanation and is of the view if he was detained and escaped, he would recall consistently where he escaped from and whether he was moved . It does not accept due to the significance of the event he would have forgotten.  This adds to the finding he is not a credible witness as to these claims. It adds to the finding he is not a credible witness.

7. Of further concern and undermining the applicant’s credibility as to these events and generally are posts to his [Social media] page on [Date] January 2015, being the day he claims he was arrested and held by the Mullah. The applicant’s [Social media] page[4] indicates that on [Date] January 2015 he celebrated his birthday and there are two pictures of the applicant posted on [Date] January 2015, one of the applicant with balloons and another of the applicant celebrating with friends. When raised with the applicant via s.424AA at hearing, he responded that he left his phone at home on that day and his sister had his password, so she used his phone to post the pictures. He confirmed that that she posted the photos after he was taken by the police. The Tribunal does not accept as plausible that the applicant’s sister would post the birthday pictures in the applicant’s name of the applicant on his [Social media] page when he had been arrested by police. This adds to the finding he is not a credible witness as to these claims. It adds to the finding he is not a credible witness.

   Harassment of family after his departure in 2015

   [4] [Detail deleted] and on the Tribunal digital file.

8. The applicant has provided inconsistent evidence as to difficulties faced by his family after his departure from Pakistan in January 2015 as follows.

9. In his statement, the applicant claimed his brother told him that after he left, police officers came to his home in search of him and said that he would be charged under the Blasphemy law for degrading and defaming Islam and Mohammad. He claims his brother told him that the Mullah planned to try him under Sharia law and the locals had demanded he should be killed for disgracing Islam. When the Tribunal asked at the hearing whether his family had faced any difficulties after he left in January 2015, he referred to difficulties faced in 2019 but did not refer to this incident.

10. Further at the Department interview, in contrast to his statement at the hearing he referred to his cousin, [Mr E] being approached a few months prior to the Department hearing, held in February 2016. He said he saw [Mr C] and [Mr D] and they asked when he, the applicant, was coming back. The applicant did not refer to this at the Tribunal hearing.

11. These inconsistencies add to the finding he is not a credible witness.

    Delay in applying for a protection visa

12. Further, the Tribunal also views the applicant’s delay in applying for protection in Australia as inconsistent with his claim that he fears return and that he departed Pakistan in fear both in May 2013 and January 2015. As raised with the applicant via s.424AA, he arrived in Australia on a student visa [in] May 2013 and again [in] January 2015, and only applied for a protection visa on 29 June 2015 being a period of over two years since he first arrived and 5 months since he returned following his claimed detention and rape. As reason for the delay, he said in his statement he was told by his brother not to apply for a protection visa as he wold not be able to visit his family in Pakistan in the future. He said his brother wanted him to study and complete his degree to obtain permanent residence. He said even after his return in January 2015 to Australia his brother continued to advise him not to make a protection visa application, to obtain permanent residence under the skilled category so he could sponsor his family and was prepared to spend any amount on his studies. He claims he was unable to concentrate on his studies, was traumatised and started to smoke and was unable to come to terms with what had happened. He said he then spoke to his father and he agreed that he could apply for protection as long as he continues with his studies. At the Department interview he said after he returned in January 2015 he was concentrating on his studies in February and March and then he spoke to his Pastor. At the end of April his Pastor told him to apply but his brother said no, as he was concerned if he, the applicant, applied he would not be able to come to Australia. He said his father then advised him he could apply if he continued his education. At the hearing when the concern was raised he said his brother convinced him not apply as he wants to be sponsored to Australia, he was disturbed with what happened to him in Pakistan and his church in Australia guided him to a lawyer and he spent a fair bit of time with his lawyer preparing the application.

13. An applicant’s delay in applying for refugee status is a relevant consideration in the assessment of credibility of an applicant’s claims for refugee status. The period of time that has elapsed between an applicant’s arrival in Australia and the time when he or she claims refugee status, may be considered when assessing the genuineness, or at least the depth, of an applicant’s subjective fear of persecution. As was suggested to the applicant by the Tribunal at hearing, such a delay may lead the Tribunal to conclude that the applicant is not genuine in his fear of persecution or that he faced the difficulties he claims prior to departing in May 2013 and again in January 2015, in that if he genuinely feared persecution he would have applied sooner. In particular, the Tribunal raised with the applicant that if he feared return because he fled in fear and has a fear of harm it expects he would apply for asylum on his arrival or soon after, rather than over approximately two years after his initial arrival and five months after arriving in January 2015, having been raped and detained in Pakistan.

14. The Tribunal has considered the applicant’s reasons for delay and does not accept it explains why it took him the time he did to apply for protection. At hearing the applicant stated that he stopped studying in 2014 and when the Tribunal raised concern as to why if he stopped studying in 2014 he did not apply sooner than June 2015 on the basis he should study hard or obtain a skilled visa so as to sponsor his brother, he responded that he was enrolled but couldn’t study because of what happened to him in Pakistan. While it accepts a short delay while talking to a lawyer, it does not accept this explains the five months delay, this is particiculary so as he claimed that the police and Mullah came to his home in February 2015.

15. As he claimed he departed Pakistan in May 2013 in fear and that the Mullah and his associates kept coming, the Tribunal does not accept he did not apply for protection for a further two years after his departure, even if he was studying on a student visa and his brother wanted him to study hard and gain permanent status. It is of the view if he faced the difficulties, he claims he would have applied sooner, even if his brother was urging him to not apply for the reasons he claims. This is particularly so as the student visa is only a temporary visa.

16. His delay, therefore, adds to the finding he is not credible as to his fear of return and as to the difficulties he claims he faced in Pakistan.

    Credibility summary

17. For all the above reasons, considered cumulatively, the Tribunal does not find the applicant to be a credible, truthful and reliable witness as to the difficulties he and his family faced in Pakistan, why he fears return and the difficulties he claims he will face on return. The Tribunal is of the view that the applicant has fabricated claims and concocted evidence to achieve an immigration outcome. On the basis of the above cumulative credibility concerns the Tribunal therefore does not accept that the applicant is a credible witness and cannot be satisfied on the evidence before it that the applicant is a truthful witness regarding his claims as to what happened to him in Pakistan and why he fears return.

18. Accordingly, for all of the above reasons, in light of its findings that the applicant is not a reliable witness, the Tribunal has no confidence that the applicant’s evidence about key aspects of his claims, including the harm he and his family have faced or the harm he claims he and his family will face, is based on personal or actual experience or because of his claimed situation. It considers it was fabricated to create a claim to be owed protection.

19. Therefore, on the evidence before it, the Tribunal does not accept that the applicant faced any difficulties, harassment or fist fights playing [sport] at school or in his locality as he was a Christian from radical Muslims or anyone else; that his Islamic scripture teacher [Ms B] ever introduced him to [Mr C] and [Mr D] or [Mullah A] either at school, in her home or at the Club, that in order to permanently join the [sport] club he had to convert, that [Ms B] brainwashed him to become a  Muslim and told [Mullah A] or gave him the impression of the applicant’s wish to convert to Islam. Based on his lack of credibility it follows that the Tribunal does not accept that the applicant was ever urged, threatened or advised that to join the [sport] club he had to convert to Islam. It follows, the Tribunal does not accept that either in March 2012 or July 2012 or August 2012 or at any time the applicant ever met or talked with [Mullah A], officials of the [Name 2] [sport] club or anyone else about converting to Islam, studying at a Madrassa or that he advised that he needed to speak to his parents. It follows it does not accept that the applicant went to Islamabad to avoid being converted or attending the Madrassa or being taken to Federally Administered Tribal Areas (FATA) for military training by the TTP or because he feared he would be forced to convert or to avoid [Mullah A], [Mr C] and [Mr D] and anyone else from the [sport] club. It follows it does not accept that [Mr C] and [Mr D]  ever visited the applicant at home while he was in Karachi or away in Islamabad or [Mullah A] met with and reprimanded his brother asking the whereabouts of the applicant or had any conversation with his brother as to the applicant converting to Islam or not. It follows it does not accept that the applicant left Pakistan in May 2013 in fear that he would be targeted as a Christian or because he had insulted the Mullah or Muslims or the locals or the Taliban or TTP or members of the [sport] club or anyone else, or because he had not converted to Islam or he had lied about converting or for any of the reasons he claims.

20. Based on the applicant’s lack of credibility the Tribunal does not accept while the applicant was in Australia [Mr C] and [Mr D] went to Islamabad and searched his residence looking for the applicant advising they were members of the TTP and enquiring as to his whereabouts, the Mullah reprimanded his brother for sending him away or anyone had any interest in the applicant while he was in Australia for the reasons he claims.

21. Based on the applicant’s lack of credibility the Tribunal does not accept the applicant returned home and due to a fear did not leave his home, was stopped by police, [Mr C] and [Mr D] or anyone else [in] January 2015 going to or coming from church, detained, beaten and brutalised by the police, released into the hands of the Mullah and/or [Mr C] and [Mr D], TTP militants and the Taliban, taken to any another place, tied up for one or two days or at all, raped, beaten, harassed, tortured, brutalised or told by the Mullah that he would be taken to another place and forced to convert by these people or anyone at all. It follows it does not accept he escaped when he asked to go to the toilet, then lived at a friend’s place until his departure in fear. It follows it does not accept when he departed Pakistan in January 2015 for Australia he was of any interest to anyone for the reasons he claims, including the [Mullah A], TTP, Taliban, Muslims, police, locals, [Ms B], [Mr C] and [Mr D], members of the [sport] club, militants or anyone else.

22. It follows it does not accept after his departure for Australia his cousin [Mr E] was stopped on the street by [Mr C] asking as to the applicant’s whereabouts.  It follows it does not accept that after he departed the police came to his home and [Mullah A] or anyone else came to his home in search of the applicant so he could be charged under the blasphemy law for disgracing and defaming Islam and Mohammad, or that they threatened he would be tried under Sharia law and the locals demanded he be killed for disgracing Islam. It follows it does not accept due to the difficulties he faced he was unable to study or started smoking, was traumatised, unable to forget what happened to him and unable to come to terms with it. It does not accept the reasons he claims for the delay in applying for protection were in anyway due to the difficulties he claims happened to him in Pakistan and why he fears return.

23. Based on the applicant’s lack of credibility, the Tribunal does not accept the applicant’s family has faced any of the difficulties he claims including in 2019 when [Ms B] phoned his father and accused him of providing information to the Rangers about [Mullah A] and her nephews [Mr C] and [Mr D] in relation to their involvement in drugs and weapon smuggling and threatened his father that he had to face the consequences in the near future.  It follows it does not accept the Mullah arrived at the applicant’s home with the police looking for the applicant or that the police officers searched the house for the applicant. It follows it does not accept the applicant’s claims his family fear that the police and the Mullah haven’t forgotten about the applicant and that they could arrest the applicant on return.

1. The UK Home Office in its September 2018 report Country Policy and Information Note Pakistan: Christians and Christian converts notes the following as to Christians in Karachi[7]:

   Many Christians were said to reside in Karachi, including the Goan Christian community. In May 2015, Bishop Sadiq Daniel, leader of the Church of Pakistan in Sindh province, told The Washington Post that about 1 million of Karachi’s 22 million inhabitants were Christian.

   [7]>

   The Tribunal has also considered the many articles submitted by the applicant as to the treatment of Christians in Pakistan but places more weight on the information from DFAT and the Department as to the treatment of Christians in Pakistan and Karachi. In this regard these sources assesses that Christians in Pakistan face a low level of official discrimination and a moderate level of societal discrimination. It further assesses that Christians face a moderate risk of societal violence and sectarian violence. While the applicant may have faced some low level societal discrimination in Pakistan, it does not accept, however, that there is anything in the applicant’s evidence, which it accepts, to indicate or suggest that he or his family faced any violence or discrimination due to his Christian faith amounting to persecution or significant harm.  In this context the Tribunal notes that the applicant attended a private Christian school in Karachi, completing a [course], his parents own their home, his brother and sister both have post-graduate degrees and his parents work in full time jobs. As raised with the applicant via s.424AA the evidence in his 2013 student visa application indicates his parents have over PKR[Amount] in their bank account. The evidence from the applicant is that his family continue to attend their church, [Name] and celebrate Christian festivals in Pakistan. The Tribunal has also considered the evidence that there are approximately a million Christians in Karachi and there have been no major large-scale attacks against Christian churches or gatherings in Karachi in recent years. It also does not accept based on the applicant’s complete lack of credibility that the applicant’s family have been questioned or approached by the Rangers.

2. Therefore, on the basis of the above information and what is accepted of the applicant’s circumstances, the Tribunal does not accept that the applicant will be killed, kidnapped, threatened, harassed, harmed, beaten, picked up and detained by police, have to pay bribes, be intimidated, have his property damaged, be prevented from following Christianity, be prevented from attending Church or celebrating Christian festivals, be unable to earn a livelihood, or due to any fear of harm, not be able to practise  his religious belief.

3. Therefore, on the basis of the above information and what is accepted of the applicant’s circumstances, the Tribunal does not accept that the difficulties the applicant will face as a result of he and his family being Christian followers and engaged in Christian activities such as attending Church and celebrating Christian festivals amounts to serious harm outlined in s.5J(5) of the Act or meets the definition of significant harm as defined in s.36(2A) and s.5(1) of the Act.

4. The Tribunal therefore finds that the applicant does not face a real chance of persecution involving serious harm if he returns to Pakistan in the reasonably foreseeable future on account of his religion as a Christian follower, believer, supporter and being involved in  Christian activities or as he will be prevented from practising his religion. The Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm as defined in s.36(2A) as a result of his religion as a Christian follower, believer, supporter and being involved in  Christian activities, or that he will be prevented from practising his religion.

   Summary

5. The Tribunal has considered whether the combination of each of the individual claims raised by the applicant would together create a real chance of him being subjected to serious harm in Pakistan in the reasonably foreseeable future. Having carefully considered the cumulative effect of these factors and attributes in light of the information and evidence before it, and given its reasons in relation to each factor, the Tribunal does not accept that there is a real chance the applicant would face serious harm for these reasons if he returns in the reasonably foreseeable future. The Tribunal therefore is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.

6. The Tribunal has considered whether the combination of each of the individual claims raised by the applicant would together create a real risk of him being subjected to significant harm on return to Pakistan. Having carefully considered the cumulative effect of these factors and attributes in light of the information and evidence before it, and given its reasons in relation to each factor, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Pakistan, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act.

   CONCLUSIONS

7. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

8. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

9. 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 any of the criteria in s.36(2).

   decision

10. The Tribunal affirms the decision not to grant the applicant a protection visa.

    APPENDIX - Criteria for a protection visa

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

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

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

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

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

    Mandatory considerations

    In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    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.

    …

    5H   Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)    in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)   in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:    For the meaning of well-founded fear of persecution, see section 5J.

    …

    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 the 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.

    …

    36    Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)   a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)    a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (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.

    …