1619551 (Refugee)
[2019] AATA 5306
•5 September 2019
1619551 (Refugee) [2019] AATA 5306 (5 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1619551
COUNTRY OF REFERENCE: Pakistan
MEMBER:Jason Pennell
DATE:5 September 2019
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) and s.36(2)(aa) of the Migration Act.
Statement made on 5 September 2019 at 4.00pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – particular social group – homosexual – delay in seeking protection – lack of evidence in relation to applicant’s previous relationship – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 91R, 91S
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan v MIEA (1989) 169 CLR 379
MIEA v Guo (1997) 191 CLR 559
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 10 November 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 11 September 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 applicant appeared before the Tribunal on 4 September 2019 to give evidence and present arguments.
4.The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
5.For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Criteria for a protection visa
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
‘owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.’
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant,[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
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared.[3]
[3] s.91R(1)(a) of the Act
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
‘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
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
The applicant arrived in Australia [in] March 2012 as the holder of a [student] visa. He has not departed Australia since his arrival.
The applicant made an application for a further student visa on 22 June 2013, which was granted on 18 November 2013. The applicant’s student visa expired on 31 July 2015. The applicant made an application for a protection visa on 11 September 2014 and was granted an associated bridging visa upon which he currently remains in Australia.
Country of Reference
The Department's file ([file number]) (‘the Department file’)[6] contains a photocopy of the applicant's passport from the Islamic Republic of Pakistan issued [in] 2011. It shows he was born on [date] in [City 1], Pakistan. There is no evidence to suggest that he has a right to enter and reside, whether temporarily or permanently, in any other country.
[6] Department's file ([file number]) @ f.37
Accordingly, the Tribunal finds that the applicant is a citizen of Pakistan and as such his protection claims will be assessed against Pakistan as the country of reference and 'receiving country' respectively.
The applicant’s protection claims
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.
The applicant’s written claims for protection are set out in a statement attached to his protection visa application dated 12 September 2014 and are summarised by the delegate’s decision dated 10 November 2016 as follows:
(a)The applicant was born in [City 1] in Punjab province of Pakistan on [date]. His parents and [siblings] continue to reside in Pakistan.
(b)In approximately 1999, when he was [age] years old, the applicant began having sexual encounters with another student at his all male high school. Later that same year he began a relationship with one of his male classmates at school. This boy was also a neighbour of the applicant.
(c)The applicant and his neighbor remained in a relationship from 1999-2015. They did not tell their respective families who thought that they were like brothers.
(d)The applicant came to Australia to study in 2012. His boyfriend from Pakistan then came to join him approximately five months later.
(e)They moved in together in Melbourne and in April 2014 the applicant informed his parents that he was homosexual. His partner also told his own family. Both the applicant and his partner’s family were extremely upset and angry. The applicant has not spoken to his family since then and they stopped funding his studies in Australia.
(f)In 2016, the applicant’s partner ended their relationship and married a female. The applicant claims that it was due to pressure from his family.
(g)The applicant fears that he will be harmed by both his family and fundamentalist Muslims in Pakistan if he was to return due to their knowledge of his homosexuality.
The Applicants’ evidence.
The applicant’s evidence to the Tribunal was that he was born in [City 1] in Punjab province of Pakistan on [date]. His parents and [siblings] continue to reside in Pakistan. His father is a business person, being the owner and operator of [Business 1] and [Business 2]. His mother is engaged in home duties. The applicant’s evidence was that his [Sibling A] was a [Occupation 1] and his [Sibling B] was married and engaged in home duties.
The applicant stated that he attended [a specified] High school in [City 1] until [year]. In 2009 the applicant then attended [Institute 1] in [City 1] completing a [Qualification 1] in [year].[7]
[7] Applicant’s protection visa application, Department's file ([file number]) @ f.27
The applicant’s evidence was that, when he was living in Pakistan, he and [Mr C] (‘the applicant’s partner’) lived with their respective families in the same neighbourhood. He said that they saw each other every day and spent most of their time together. When asked how they socialised he said that they would see each other at school, visit each other’s houses and mix with their group of friends. The applicant said that their families were strict and they were limited as what they were allowed to do. For example, the applicant said that he was required to be home each evening at 9.00pm. The applicant’s evidence was that he and his partner were not open about their relationship in Pakistan and as a result their families and friends were not aware they were in a homosexual relationship.
The applicant arrived in Australia [in] March 2012 on a student visa, upon which commenced a [specified] course at [Institute 2] in Melbourne. The applicant then completed a [Qualification 2] and a [Qualification 3] at [Institute 3]. In 2014 the applicant attended [Institute 4] and completed a [Qualification 4] in 2014.
The applicant stated that upon his arrival he had no friends or family living in Australia. Initially he shared a house in [Suburb 1], Victoria with an acquaintance he had meet in Pakistan. After approximately six months, his partner arrived in Australia on a student visa. The applicant’s evidence is that his partner had enrolled in a [Qualification 5] at [Institute 5] but did not finish the course. The applicant said that initially his partner lived with a family friend close to [Suburb 1] for approximately 12 months. He said that at that time he was working in a [business] in [a named street], Melbourne and studying. As a result, they would see each other only one or two times per week.
In or about 2014 the applicant commenced working at a [workplace] in [Suburb 2], Victoria. The applicant claims that he subsequently secured a job for his boyfriend. As a result, they commenced sharing a house in [Suburb 3], Victoria. The applicant’s evidence was that despite living together and socialising with friends from within the Pakistani community in Melbourne, they were not open about their relationship and did not disclose that they were in a relationship. The applicant stated that as their friends were from the Pakistani community in Australia they held the same prejudices as existed in Pakistan. They feared that if they disclosed their relationship they would be rejected by their friends and as a result their families and friends in Pakistan would learn that they are homosexual. The applicant’s evidence was that since having split with his partner he no longer has anything to do with their friends from the Pakistani community
The applicant stated that in or about 2014 he informed his family that he was homosexual. He said that he did so in response to his parents insistence that he return to Pakistan to marry a girl (his cousin) they had chosen for him. He said that in response to repeated demands for him to return home and marry, he confessed to his parents that he did not wish to return to Pakistan and that he was a homosexual. The applicant’s evidence was that as a result of him disclosing his homosexuality to his parents they disowned him, including cutting off all contact with him and excluding him from their will. He says that his father and mother have threatened to harm him if he returns to Pakistan as a result of him being openly homosexual. In addition, he says that he will be harmed by the family of the girl he was arranged to marry. Despite having maintained that he no longer has any contact with his family, the applicant did say that he maintains irregular contact with his brother. He said that his brother is not concerned about him being homosexual due to the fact that he has been the beneficiary of the applicant’s exclusion from the family by inheriting the parent’s property.
The applicant says that, at about same time, his partner disclosed to his parents that he was homosexual. The applicant said that his partner’s parent’s reaction was far more severe, causing him to worry about his connection to his family. The applicant said that nether he or his partner disclosed to their respective families who they were in a relationship with. However, given the fact that they had similar stories and that they were sharing a house, it was not long before their families realised that they were together.
The applicant’s evidence was that soon after his partner disclosed to his family that he was homosexual their relationship began to deteriorate. His evidence was that after approximately three months his partner informed him that he was moving out. The applicant said that he does not know where his partner moved to and stated that he had not heard from him since. However, he said that he had been informed by a friend that his partner had married a girl from Pakistan who was a citizen of Australia. He said that he had been shown a [social media] photo of his ex-partner’s wedding. The applicant did not provide a copy of the photo to the Tribunal.
The applicant’s evidence is that since the breakdown of his relationship he has lived openly as a homosexual and that he identifies as a homosexual. His evidence that he is not in a long term relationship but openly seeks casual relationships from time to time. His evidence was that he attends a number of gay night clubs in Melbourne and when questioned, displayed a detailed knowledge of the various clubs he claims to have frequented. The applicant provided a statutory declaration dated 2 September 2019 by [Mr D][8] which, amongst other matters, confirmed that the applicant was homosexual and attended gay nightclubs as claimed. In addition, the applicant claimed that he often seeks causal relationships through a dating app known as ‘[App 1]’ and provided copies of messages between him and other individuals sent via the app.[9] The delegate did not have the benefit of these documents for the purposes of making his decision.
[8] AAT file No 1619551 @ f45
[9] AAT file No 1619551 @f.39
The applicant’s evidence was that if he returned to Pakistan he would be forced to live a double life. The applicant acknowledged that there is an active gay community in the larger cities of Pakistan, such as Karachi and Lahore.[10] However, he said that even in such communities a person had to remain ‘underground’ in that they could not be openly homosexual or identify as a homosexual. His evidence was that if he was to return to Pakistan, that despite being a homosexual, he would be forced to marry and to live a double life. He states that he fears being persecuted by members of his family and other members of the community more generally upon his return to Pakistan as a person who identifies as being a homosexual.
[10] BBC News, ‘Gay Pakistan: Where sex is available and relationships are difficult’, by Mobeen Azhar dated 27 August 2013 INFORMATION
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Credibility
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.
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[11]. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[12]
[11] s.5AAA Migration Act 1958.
[12] 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.)
A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[13] 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.
[13] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J @ p482
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.[14] 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.
Accepted Facts
[14] The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196
Based on the oral evidence provided at the hearing, the Tribunal accepts and finds that:
(a) The applicant was born in [City 1] in Punjab province of Pakistan on [date].
(b) The applicant’s parents and [siblings] continue to reside in Pakistan.
(c) The applicant attended [a specified] High school in [City 1] until [year].
(d) The applicant attended [Institute 1] in [City 1] completing a [Qualification 1] in [year].
Applicant’s Refugee Claim
Relevant Grounds
The 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.[15]
[15] Applicant A v MIEA (1997) 190 CLR 225 per Dawson J at 241, McHugh J at 264-266 and Gummow J at 285.
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.
In Chan v MIEA[16] 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.[17]
[16] (1989) 169 CLR 379 at 396.
[17] (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.
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. In this case based on the evidence of the applicant the Tribunal accepts that the applicant has a subjective fear of being harmed of being persecuted in the event that he returns to Iran.
However, 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 [18]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.’
[18] Chan v MIEA (1989) 169 CLR 379 per Dawson J at p.397
In MIEA v Guo, the Court stated that: [19]
‘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.’
[19] MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293.
Accordingly, the 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.
Based on the 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.
Applicant’s Delay
Delay in seeking a protection visa can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm.[20] Even a three month delay in lodging a protection visa application has been held to be a legitimate matter to be taken into account when assessing the genuineness or depth of an applicant’s fear of persecution.[21]
[20] Zhang v RRT & Anor [1997] FCA 423; Kavan v MIMA [2000] FCA 370.
[21] Subramanium v MIMA (1998) VG310 of 1997.
In this case, the applicant arrived in Australia [in] March 2012 as the holder of a [student] visa for the purposes of study. The applicant made a further application for a student visa on 22 June 2013, which was granted on 18 November 2013. He did not make his application for a protection visa until 11 September 2014. The applicant’s evidence is that it was initially his intention to return to Pakistan upon completing his course. However, after having advised his family that he was homosexual, it became clear to him by their reaction to the news that he was not going to be able to return to Pakistan as a person who identifies as a homosexual. As such, the applicant submitted that his protection application came relatively quickly after his realisation that he would be harmed in the event he returned to Pakistan.
Therefore, while the Tribunal acknowledges that there has been delay in the applicant making his application for protection visa, it accepts that the application was made within a reasonable time of the applicant having informed his family that he was a homosexual.
The Applicant as a Homosexual
The applicant claims that he grew up in [City 1] in Punjab and that he attended a boy’s school. He said that at about the age of [age] years he had several sexual encounters with various male students. The applicant’s evidence was that Pakistan is a very strict society and that the boys are not allowed to mix with the girls. As a result, sexual activity often occurs between the males in or around their mid to late teens. The applicant claims however, while at school he formed a relationship with his partner. He said that they lived in the same neighbourhood and that would see each other every day. Their families were aware that they were good friends but not aware they were in a physical relationship. The applicant claims that the relationship continued when the applicant and his partner travelled to Australia to study.
Save for a photograph on the Department file of the applicant and his partner, the applicant was not able to provide any photographic evidence of their time together. He explained that all his photos on [social media] had been deleted in or about 2016 and provided copies of reports by other [social media] users who had had their photos deleted by [social media] around the same time. The applicant stated that he was not able to obtain a written statement from his former partner in relation to their relationship, as he no longer knew where he was; in any event, he feared that his partner would not provide any such statement as he would not want to compromise his new marriage. Nevertheless, the applicant did provided a copy of [a] bank account in the name of the applicant and his partner.
Despite the lack of evidence in relation to the applicant’s relationship with his partner, the Tribunal accepts that he did have a relationship with [Mr C]. However, given the applicant’s evidence, it appears his relationship with [Mr C] was more an immature flirtation rather than a lasting mature homosexual relationship that the applicant would lead the Tribunal to believe. The Tribunal notes that country information[22] shows that in Pakistan men are discouraged from having girlfriends and as a result, their first sexual experience is often with a male friend or cousin. It states that this is often seen as part of growing up and generally overlooked by families. The applicant and his partner were both very young at the time their relationship is said to have commenced. Their lives were determined greatly by their parents. As such, the fact that that they did not travel to Australia together, they did not initially live together upon the partner’s arrival in Australia, they did not publicly admit to their relationship at any time and that the partner married a female indicates that their relationship was more a youthful flirtation than a lasting mature homosexual relationship.
[22] BBC News, ‘Gay Pakistan: Where sex is available and relationships are difficult. by Mobeen Azhar dated 27 August 2013 >
Nevertheless, based on the applicant’s evidence to the Tribunal, it accepts that the applicant is a homosexual. It accepts his evidence that he identifies as a homosexual person and that he is a practicing homosexual. The applicant’s evidence is that if he is to return to Pakistan he will not be able to be open about his sexuality and will be forced to marry. 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.
Based on the country information, the Tribunal accepts that in the event that the applicant returns to Pakistan he is likely to be forced by his family to marry against his will. It also accepts that as a person who identifies as a homosexual person, there is a high risk he will be physically harmed by members of his family and/or members of the community generally. Accordingly, the Tribunal finds that the there is a real chance the applicant will suffer serious harm in the event he is returned to Pakistan by reason of him identifying as a homosexual person.
In all the circumstances, the Tribunal finds that the applicant does have well-founded fear of persecution based on his membership of a particular social group and as such it is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
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 applicant’s circumstances. That is, the Tribunal has considered if the applicant faces a real risk of significant harm upon his return to Pakistan as a result of him being a person who identifies as a homosexual person.
Having considered his evidence and the available country information, for the reasons detailed above, the Tribunal accepts his claims and finds that there is a real risk that the applicant will suffer significant harm as a result of identifying as a homosexual person to the extent that it constitutes degrading treatment or punishment pursuant to section 36(2A) of the Act.
At no stage did the applicant advance any other reason, such as his nationality or religion, in his written or oral claims that the applicant is owed Australia’s protection obligations. The Tribunal therefore finds there are no more residual claims, including based on the applicant’s accepted circumstances, to be considered.
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 applicant being removed from Australia to Pakistan, there is a real risk he will suffer significant harm as required by s36(2)(aa).
CONCLUSIONS
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the 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).
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 applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
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.
Jason Pennell
Senior Member
Key Legal Topics
Areas of Law
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Immigration
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Jurisdiction
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Natural Justice
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Procedural Fairness
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Standing
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Statutory Construction
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