1613414 (Refugee)

[2019] AATA 6738

1613414 (Refugee) [2019] AATA 6738 (20 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1613414

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Jason Pennell

DATE:20 September 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the first named applicant satisfies s.36(2)(a) and s.36(2)(aa) of the Migration Act.

Statement made on 20 September 2019 at 9:52am

CATCHWORDS
REFUGEE – protection visa – Pakistan – particular social group – practicing homosexuals – attacks, harassment and threats by families and police – high risk of societal violence – marriage of convenience in another country – complementary protection – member of the same family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 91R, 91S
Migration Regulations 1994 (Cth)

CASES
Applicant A v MIEA (1997) 190 CLR 225
Chan v MIEA (1989) 169 CLR 379
MIEA v Guo (1997) 191 CLR 559
MIEA v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.This is an application for review of a decision made by a delegate of the Minister for Immigration on 11 August 2016 to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 visa under s.65 of the Migration Act 1958 (the Act).

2.The visa applicant applied for the visa on 29 July 2014. The delegate refused to grant the visa on the basis that she was not satisfied that the applicant was a person to whom Australia has protection obligations as outlined in s.36(2)(a) or s.36 (2)(aa) of the Migration Act 1958 (the Act).

3.The applicants appeared before the Tribunal on 10 September 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

4.[The second applicant] confirmed that his claim for protection was based on the same factual circumstances as [the first applicant] and as such relied on [the first applicant]’s claim for a protection visa. He confirmed that his application for protection visa was based on being of the same family unit as [the first applicant].  As such, [the second applicant] will be considered as a member of the same family unit under s.36 (2)(b) of the Migrations Act 1958 (‘the Act’)

5.The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

6.For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

Criteria for a protection visa

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

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

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

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

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

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

   [1] s.91R(1)(b)

   [2] s.91R(1)(c) of the Act

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

7. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared.[3]

   [3] s.91R(1)(a) of the Act

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

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

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

Complementary protection criterion

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

2. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A).[4]  A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally.[5]

   [4] s.5(1) of the Act

   [5] s.36(2B) of the Act

Section 499 Ministerial Direction

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

CONSIDERATION OF CLAIMS AND EVIDENCE

The Applicants migration history

1. [The first applicant] was born on [date] in Lahore, Pakistan. He arrived in Australia [in] February 2014 as a holder of a [temporary] visa.  He has not departed Australia since his arrival. The applicant made an application for a protection visa on 29 July 2014 and was granted an associated bridging visa upon which he currently remains in Australia.

2. [The second applicant] was born on [date] in Lahore, Pakistan. He arrived in Australia [in] October 2013 as a holder of a [temporary] visa.  He has not departed Australia since his arrival. [The second applicant] was included in [the first applicant] application for a protection visa as a member of the same family unit on 29 July 2014.

Country of Reference

1. The Department's file ([number]) (‘the Department file’)[6] contains a photocopy of [the first applicant] and [the second applicant]’s passports from the Islamic Republic of Pakistan which confirm their respective date and place of birth. There is no evidence to suggest that they have the right to enter and reside, whether temporarily or permanently, in any other country.

   [6] Department's file ([number) @ f.37

2. Accordingly, the Tribunal finds that [the first applicant] and [the second applicant] are is a citizens of Pakistan and as such their protection claim will be assessed against Pakistan as the country of reference and 'receiving country' respectively.

The applicant’s protection claims

1. The issue in this case is whether the applicant meets the criteria set out in either of s.36(2)(a) or s.36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be remitted.

2. The applicants’ claims for protection at the Department level are contained in the [first applicant]’s protection visa application, dated 29 July 2014,[7] and undated written submissions by [the second applicant][8] and [the first applicant].[9] The applicants also attended a protection visa interview on 14 July 2016.

   [7] Department's file ([number]) @ ff21-24

   [8] Department's file ([number]) @ ff. 37-41

   [9] Department's file ([number]) @ ff. 126-129

3. Further claims and evidence were submitted by the applicants’ representative to the Tribunal on 3 September 2019.

4. The delegate summarised the [the first applicant]’s written claims as follows:

   (a)[The first applicant] is best friends with [the second applicant]. [The second applicant]’s father worked for his father at a business in [Suburb 1] in Lahore. In 2007, he asked [the second applicant] for help in preparing for his exams. About a month before the exam, he stayed over at [the second applicant]'s place. On the first night, they studied very hard and got very tired. [The second applicant] only had a single bed so they shared the bed. After a few minutes, they ‘started playing with each other’ and ‘it was a wonderful night’. The second night, they ‘touched each other everywhere’ and had sex. He enjoyed every night that he stayed over at [the second applicant]’s place.

   (b)When he passed his exam, he was very excited and wanted to celebrate with [the second applicant]. They wanted to go somewhere together without people knowing about their relationship because it is not allowed in their country. It is also forbidden in their culture and religion. If anyone found out it would be a great embarrassment for them and their family. They went to Murree together for six days and enjoyed it very much.

   (c)His relationship with [the second applicant] continued. In the meantime, his father joined Pakistan People’s Party (PPP) as a senior party member.

   (d)In July 2009 he and [the second applicant] decided to go to Murree again which was where their academic trip was held. When they arrived, they found out that they were not sharing the same room. So, they made plans to meet up at night.

   (e)[The first applicant] went to [the second applicant]’s room that night. They were both ‘enjoying [them]selves’ when everything became a nightmare. [The second applicant]’s roommate heard them and called the trip supervisor and police. The police took them to their van and ‘threw [them] like animals’. They were crying and had no clothes on. After begging the police, they were given their underwear.

   (f)He told the police that his father was a politician. Because of his father’s political power, he was released. When he got home, his father beat him with plastic pipes. He was beaten, slapped and kicked. His father told him that he will kill him if he continued his relationship with [the second applicant]. He found out later that [the second applicant] was assaulted physically and beaten while he was kept overnight at the police station. After that incident, he continued to see [the second applicant] in secret.

   (g)His father saw him having dinner with [the second applicant] one night and lodged fake charges against [the second applicant] in January 2010. The police took [the second applicant] to the station and ‘gave him third degree’. After that, he got scared and stopped seeing [the second applicant] for some time.

   (h)After his final exam in June 2011, his father sent him to [Country 1] for further studies. He travelled to [Country 1] [in] May 2012. His life in [Country 1] was meaningless and empty without [the second applicant]. In the meantime, his father was forcing him to marry ‘some girl’ which ‘irritated’ him. So, he spoke to [Ms A] who was his classmate in [Country 1] and she agreed to help him. [Ms A] is a [Country 2] national who was previously divorced. She was very nice and helpful so he shared everything with her. [In] December 2012, he married [Ms A] in [Country 1]. There is a [number] year age difference between them. His father did not object to this marriage.

   (i)One day, he found out that his father filed fake charge of robbery and attempted rape on [the second applicant] using his political power. He was very upset and was under a lot of mental pressure.

   (j)After some time, he received a call from [the second applicant] who was in Melbourne Australia. He was very happy for [the second applicant]. At the same time, he started to make plans to come to Australia to continue his studies and to be with [the second applicant]. His father supported his studies to Australia because his father did not know that [the second applicant] was in Australia.

   (k)Since arriving in Australia, he has been living together with [the second applicant]. Unfortunately, their parents found out about their relationship and have stopped talking to them.

   (l)He is seeking protection in Australia so that he and [the second applicant] can live a normal life without any danger or mental harassment.

5. The delegate summarises the additional claims in the written statement of the [the second applicant] as follows:

   (a)When he was detained by the police in July 2009, he was physically and sexually assaulted.

   (b)A few days after [the first applicant]’s father saw him and [the first applicant] having dinner [in] December 2009, the police came to his house with a search warrant. They arrested him and charged him with stealing mobile phones. [The first applicant] father was using his political power to put him in trouble. The case was later dismissed by the court and he was found not guilty.

   (c)A month later, he was attacked by a group of unknown men. He was assaulted and beaten. He found out that [the first applicant]’s father planned the attack but he does not have any evidence to support this.

   (d)In September 2012 he was arrested again and was given ‘third degree’. Meanwhile, [the first applicant]’s father sent four people to beat him. His father was with him and was beaten as well. He lodged a police report but did not receive any assistance. His father was worried about him and wanted to send him somewhere safe so he applied for a student visa to Australia.

   (e)When he arrived in Australia, he contacted [the first applicant] and told him that he was far away from all the trouble. [The first applicant] returned to Pakistan from [Country 1] and applied for a student visa to join him in Australia.

   (f)Their family have found out about their relationship and have stopped supporting them financially. They are seeking protection in Australia because this is the only place they can continue their relationship without being harmed.

6. [The first applicant] and [the second applicant] both claim that if they returned to Pakistan they will be forced to live a double life. Both [the first applicant] and [the second applicant] acknowledged that there is an active gay community in Pakistan, particularly in the larger cities such as Karachi and Lahore.[10] However, their evidence was that even in such communities a person had to remain ‘underground’ in that they could not be openly homosexual or identify as a homosexual.

   [10] BBC News, ‘Gay Pakistan: Where sex is available and relationships are difficult’, by Mobeen Azhar dated 27 August 2013 >

   [The first applicant] and [the second applicant] stated that in the event that they returned to Pakistan, despite being a homosexual, they will not be permitted to live openly as a homosexual couple and will be forced to live a double life. Both [the first applicant] and [the second applicant] fears being persecuted by members of their family and other members of the community more generally upon their return to Pakistan as people who identify as being a homosexual.

COUNTRY INFORMATION

1. In considering the applicants claims, the Tribunal has considered the country information available in relation to Pakistan, including the Department of Foreign Affairs and Trade Country Information Report, Pakistan dated 20 February 2019 (‘the DFAT Report’).

   People who identify as LGBTI

   3.217Sex between men is illegal in Pakistan. Section 377 of the Penal Code outlaws consensual ‘carnal intercourse against the order of nature with any man, woman or animal’, punishable by prison sentences ranging from two years to life. Uncertainty around the definition of ‘carnal intercourse’ makes it unclear whether this provision applies to sexual relations between women. Section 377 has rarely been enforced, although police reportedly threaten men with prosecution as a means of extracting a bribe. DFAT is aware of reports of lesbian women living together discretely without risk; local sources say less societal shame is associated with having a lesbian child than a daughter having sex with a male out of wedlock, although stigma remains common.

   3.218While sex between males is common, homosexual identity is not. Strong and widespread cultural, religious and social intolerance of homosexuality means it is not widely discussed or acknowledged in Pakistan. Same-sex attracted people are often rejected by their families, and can be thrown out of home and forced into sex work. They face significant societal discrimination and, in some cases violence. In April 2014, Muhammed Ejaz, a man from Lahore, killed three gay men he met online. He reportedly told police he wanted to send a message about the evils of homosexuality. Several community organisations in major urban centres provide medical and support services to the LGBTI community. The ’taboo’ nature of same-sex activity results in a lack of investment in treatment options for HIV/AIDS in Pakistan (see Health).

   3.219People identifying as LGBTI from wealthy and influential families in large urban centres face less discrimination and violence than poor people in rural areas. Nonetheless, even wealthy individuals face high levels of discrimination, and their families often force them into a heterosexual marriage to preserve the family’s reputation and social standing.

   3.220…………

   3.226Given social stigma associated with homosexuality in Pakistan, advocacy efforts on behalf of the LGBTI community generally advance under the umbrella of the transgender community. Those that advocate for the LGBTI community are also vulnerable to attack. LGBTI advocacy groups claim the Taliban beheaded LGBTI human rights activists in 2013. They further claim the Taliban captured LGBTI activists and held them for a year in 2014; and captured other LGBTI activists and held them for 75 days in 2017. An LGBTI event hosted by the US Embassy in Islamabad in 2011 led to protests from religious groups and the broader community. Since then, international sources note LGBTI groups have participated in and supported several low-key LGBTI events in Pakistan.

   3.227DFAT assesses that LGBTI people face a high risk of official and societal discrimination. The lack of media reporting on violence against LGBTI people reflects in part a lack of recognition of LGBTI issues in Pakistan, and in part the efforts of LGBTI people to conceal their sexual orientation or gender identity. DFAT assesses that openly LGBTI people and advocates for LGBTI rights face a high risk of societal violence.

   ‘Prevalence of Fraud[11]

   5.70 CNICs, SNICs and passports contain a number of security features, which have reduced the incidence of document fraud. Authorities have put in place measures to combat the fraudulent issuance of documents, and can cancel fraudulent CNICs.

   5.71 Document fraud is widespread for forms of documentation not issued by a competent central authority such as NADRA. Due to the relative ease in acquiring fraudulently obtained genuine documents, such documents are common in Pakistan and are generally preferred over counterfeit documents, as they are difficult to detect. Fraudulently obtained genuine documents, such as CNICs and passports, can be obtained with fraudulent (altered or counterfeit) feeder documents. Types of documents historically found to be fraudulent in Pakistan include, but are not limited to, documents regarding academic qualifications such as degrees and transcripts, bank statements, agreements, references, and ownership deeds.

   5.72 Union councils and NADRA can verify fraudulent documents, although detection is difficult where genuine documents were obtained with fraudulently altered or counterfeited primary documents. NADRA now issues birth certificates, but fraudulently obtained, fraudulently altered or counterfeit certificates are still possible as long as hospitals retain the authority to issue birth certificates.

   5.73 FIRs use standard forms with the relevant information written in by hand, and are relatively simple to counterfeit. Reports exist of police accepting bribes to verify fraudulent FIRs. DFAT does not consider the existence of an FIR to constitute evidence that the events described in the FIR actually occurred.

   5.74 Fraudulently altered or counterfeit school records, birth certificates, death certificates, medical records, bank records and other documents are common. Local sources report instances where influential people have paid news organisations to publish false stories.

   5.75 As self-declaration as an Afghan is the only requirement to apply for an ACC, it is possible for an individual not in either the NADRA or MORR databases to fraudulently obtain an ACC (see Afghan Refugees).

   5.76 Corruption is also common (see Corruption), however in August 2015, the FIA reportedly investigated allegations of NADRA officials issuing fake CNICs to militants in return for bribes as low as USD 100. Since then, MoI has increased its oversight of NADRA and implemented tough measures against fraud within NADRA. DFAT assesses that government efforts have reduced the incidence of bribery and fraud, but have not eliminated it.’

   [11] DFAT Report @p.71

CONSIDERATION OF CLAIMS AND EVIDENCE

Credibility

1. When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. All this is taken into account in these findings.

2. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim[12]. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[13]

   [12] s.5AAA Migration Act 1958.

   [13]  MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

3. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[14] Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

   [14]   Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J @ p482

4. If the applicant's account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[15] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

Applicant’s Refugee Claim

Relevant Grounds

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

1. [The first applicant] submits that his claim falls within the scope of the Refugee Convention by reason of his membership of a particular social group, specifically as a homosexual. It is necessary that as a result of the applicant’s membership of a particular social group that he share a certain characteristics or elements which unite him with a particular group which sets it apart from society at large. That is to say, not only must the applicant with his group exhibit some common element, it must unite them, making them a cognisable group within their society.[16]

   [16]   Applicant A v MIEA (1997) 190 CLR 225 per Dawson J at 241, McHugh J at 264-266 and Gummow J at 285.

2. In this case the Tribunal accepts that the applicant, as a Pakistan national homosexual, does share a certain element or characteristic which unite him with a particular social group as required.

Applicant’s well-founded fear.

1. In Chan v MIEA[17] the Court held that ‘well-founded fear’ involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution. Justice Dawson noted that the phrase ‘well-founded fear of being persecuted...’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[18]

   [17] (1989) 169 CLR 379 at 396.

   [18] (1989) 169 CLR 379 at 396. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ.

2. The subjective element of ‘well-founded fear’ concerns the state of mind of the applicant. That is, whether an applicant has a genuine fear is a question of fact. To hold a ‘well found fear of persecution’ on an objective basis the applicant’s claim must be more than merely plausible or credible. In Chan v MIEA, Dawson J [19]stated:

“Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.’

[19]  Chan v MIEA (1989) 169 CLR 379 per Dawson J at p.397

1. In MIEA v Guo, the Court stated that: ^[20]

   ‘Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.’

   [20]  MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293.

2. Accordingly, the [first applicant] claims that he is a person who has a well-founded fear of persecution, pursuant to s.91R(1)(a) of the Act by reason of him being  a person who identifies as an open, practicing homosexual. He states that, in the event he returns to Pakistan, there is a real chance he will suffer serious harm from members of his family and from the community more generally.

3. Based on [the first applicant] and [the second applicant]’s evidence, together with the available country information, the Tribunal accepts that the applicant has a subjective fear of being persecuted for a reason mentioned in s.91R(1)(a) of the Act. 

The Applicant as a Homosexual

1. The applicant claims that he grew up in Lahore, Pakistan. He was friends with [the second applicant] whose father at a business in [Suburb 1] in Lahore owned by [the first applicant]’s father. While the Tribunal has some difficult with some of the events described by [the first applicant] and [the second applicant] in this statement for a protection visa, the Tribunal does accept that [the first applicant] and [the second applicant] have known each other from around 2007 and formed a relationship as a result of studying together.

2. [The first applicant] claimed that his father used his political position to influence the police to lay fake charges against [the second applicant]. [The first applicant]’s evidence to the delegate was that his father became a member of the Pakistan People’s Party (PPP) in 2007 but that he was not a Member of Parliament and has not contested any election. [The first applicant]’s evidence was that his father was involved in social work and assisted the community if they have issues with [specified services]. In addition [the first applicant] was not able to explain to the delegate what his father position or responsibilities were within the PPP. As a result, while the Tribunal is prepared to accept that is father was a member of the PPP, it does not accept that he had any political influence over the authorities as claimed.

3. [The first applicant] and [the second applicant] provided various documents to the department purporting to be First Information Reports (FIR) and court documents in support of their claim that [the second applicant] was falsely charged and attacked.  The country information reports that FIRs use standard forms with the relevant information written in by hand, and are relatively simple to counterfeit. It notes that there are reports of police accepting bribes to verify fraudulent FIRs. As a result DFAT does not consider the existence of an FIR to constitute evidence that the events described in the FIR actually occurred.[21] As a result based on the country information the Tribunal places no weight on the FIR’s provided by the applicant’s.

   [21] DFAT Report @ p.71

4. [The first applicant] and [the second applicant] claim that their relationship was exposed because of an incident that occurred in July 2009. [The first applicant] and [the second applicant] claim that as a result of not sharing a room themselves [the first applicant] went to [the second applicant] room in the middle of the night. They say that they while they were together [the second applicant]’s roommate heard them and called the trip supervisor and police. This is contrary to the FIR dated [in] July 2019.[22] It states that the manager of the hotel called a security guard as a result of having seen [the second applicant] exit his room and go to [the first applicant]’s room. Notwithstanding the fact that it seems unlikely that the authorities would be called merely because [the first applicant] and [the second applicant] were in each other’s room, due to the fact that the FIR contradicts their evidence in relation to the incident, the Tribunal does not accept their evidence. Rather it appears to the Tribunal that the applicants have invented the incident in an attempt to boost their claim.

   [22] Department's file ([number]) @ f.75

5. In addition [the first applicant] claims that his father filed fake charge of robbery and attempted rape on [the second applicant]. The delegate notes that when [the second applicant] was questioned about the pending charges against him he provided vague and general responses. The Tribunal notes [the second applicant] evidence to the delegate was that he had not attended any court hearing but that he was found not guilty in relation to some of the charges. Given [the second applicant]’s vague response to the delegate and the fact that the Tribunal has given no weight to the FIR’s provided, it does not accept [the first applicant]’s evidence and finds that his father did not filed false charges against [the second applicant]. Once again this claim appears to have been made to boost the applicant’s claim for a protection visa.

6. However, the Tribunal accepts the [the first applicant]’s evidence that he travelled to [Country 1] [in] May 2012. He claims that life in [Country 1] was meaningless and empty without [the second applicant] and that at that time his father was forcing him to marry ‘some girl’ against his wishes. As a result a class mate in [Country 1] agreed to help him and as a result he entered into an arranged marriage with [Ms A]  [in] December 2012.  [Ms A] was a divorced woman and [number] years older than [the first applicant].  The applicant provided a copy of the marriage certificate to the department.[23] As such the Tribunal accepts that the applicant married [Ms A] as claimed.  [The first applicant]’s evidence was that the marriage was one of pure convenience and that he never had any form of relationship with Ms [A]. He said that he does not know where she is now but believes she is living in Pakistan.

   [23] Department's file ([number]) @ f.95

7. [The first applicant] evidence was that after some time, he received a call from [the second applicant] who was in Melbourne Australia. As a result he started to make plans to come to Australia to continue his studies and to be with [the second applicant]. His evidence was that his father supported his studies to Australia because his father did not know that [the second applicant] was in Australia. [The first applicant] arrived in Australia on a student visa [in] February 2014. [The first applicant] and [the second applicant] evidence was that since [the first applicant] arrived in Australia they have been living together as a couple. They claim that their parents now know of their relationship and have stopped talking to them.

8. The applicants provided the Tribunal with statutory decelerations by [Mr B] and [Mr C] confirming that [the first applicant] and [the second applicant] are homosexual and in a relationship. In addition at the hearing two witnesses presented themselves prepared to give evidence as the applicant’s sexuality and the fact that they are in a same sex relationship. 

9. The applicants have provided the Tribunal with photos of the [the first applicant] and [the second applicant] in social situations which indicate that they are in a relationship. In addition they have provided utility bills and bank account statements in their joint names as evidence of their relationship. Finally, the applicant’s claim that they were married [in] May 2018 at a small ceremony conducted at the Melbourne Registry. Their evidence was that they had a small celebration after the ceremony at a [hotel] in Melbourne. They provided photos[24] of both the ceremony and the gathering of friends at the hotel together with a copy of the marriage certificate dated [in] May 2018[25] in support of their evidence of their marriage. 

   [24] Tribunal file 1613414 @ f.161

   [25] Tribunal file 1613414 @ f.24

10. However, [the first applicant]’s evidence was that as a result of the circumstances of his marriage to Ms [A] and the fact that they never had a relationship he had forgotten to divorce her. The applicant’s agent confirmed that steps had been taken to rectify the position to ensure that the applicants were properly married. The Tribunal accepts that the applicant had forgotten to divorce Ms [A] as claimed and that the proper steps are being taken to ensure that the applicants are properly married.     

11. Therefore, based on the based on the applicant’s evidence to the Tribunal, it accepts that [the first applicant] and [the second applicant] are homosexual and in a relationship. It accepts their evidence that they identify as a homosexual people and that they are a practicing homosexuals.

12. The applicants’ evidence is that if they return to Pakistan they will not be able to be open about their sexuality and would not be able to continue their relationship in an open and honest manner. That is they will be forced to live separately and to enter marriages of convenience for the purposes of maintaining a façade of being in and maintaining a heterosexual relationship.  The Tribunal notes that the DFAT report assesses that openly LGBTI people and advocates for LGBTI rights face a high risk of societal violence. Accordingly, relocation does not appear a viable alternative for the applicant given his particular circumstances as there is a real chance he will be seriously harmed by the community throughout Pakistan as a person who identifies as a homosexual.

13. Based on the country information, the Tribunal accepts that in the event that the applicants return to Pakistan they are likely to be forced by their families to marry against their wills and to live a double life. It also accepts that as people who identify as a homosexual, there is a high risk they will be physically harmed by members of their families and/or members of the community generally. Accordingly,  the Tribunal finds that the there is a real chance the applicants will suffer serious harm in the event they are returned to Pakistan by reason of them identifying as homosexual.

14. Therefore, in all the circumstances, the Tribunal finds that the applicants do have well-founded fear of persecution based on their membership of a particular social group and as such it is satisfied that the applicants are people in respect of whom Australia has protection obligations under s.36(2)(a).

Complementary protection

1. The applicant claims that, without conceding in any way his claims under the Refugee Convention, that the same factual matrix may invoke Australia’s protection obligations under complementary protection criteria pursuant to s.36(2)(aa) of the Act. Accordingly, the Tribunal has also considered the application of s.36(2)(aa) to the applicants circumstances. That is, the Tribunal has considered if the applicants face a real risk of significant harm upon their return to Pakistan as a result of them being people who identify as being homosexual and who are in a homosexual relationship.

2. Having considered his evidence and the available country information, for the reasons detailed above, the Tribunal accepts their claims and finds that there is a real risk that the applicants will suffer significant harm as a result of identifying as a homosexual people and who are in a homosexual relationship to the extent that it constitutes degrading treatment or punishment pursuant to section 36(2A) of the Act.

3. At no stage did the applicants advance any other reason, such as his nationality or religion, in the written or oral claims that they are owed Australia’s protection obligations. The Tribunal therefore finds there are no more residual claims, including based on the applicants accepted circumstances, to be considered.

4. Having regard to all the circumstances and findings above, considered individually and cumulatively, the Tribunal finds that there are grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Pakistan, there is a real risk they will suffer significant harm as required by s36(2)(aa).

CONCLUSIONS

1. For the reasons given above, the Tribunal is satisfied that the applicants are people in respect of whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

2. Having concluded that the applicant does met the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa) and is satisfied that the applicants are people in respect of whom Australia has protection obligations under s.36(2)(aa).

3. [The second 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 applicants do satisfy the criterion in s.36(2).

DECISION

1. The Tribunal remits the matter for reconsideration with the direction that the first named applicant satisfies s.36(2)(a) and s.36(2)(aa) of the Migration Act.

Jason Pennell
Senior Member