1701354 (Refugee) - [2020] AATA 2003

1701354 (Refugee) [2020] AATA 2003 (24 February 2020)

DECISION RECORD

DIVISION: Migration & Refugee Division

CASE NUMBER: 1701354

COUNTRY OF REFERENCE: Pakistan

MEMBER: Dr Colin Huntly

DATE AND TIME OF

ORAL DECISION AND REASONS: 24 February 2020 at 11:35 am (WA time)

DATE OF WRITTEN RECORD: 15 May 2020

PLACE OF DECISION: Perth

DECISION: The Tribunal remits the decision under review

with the direction that the applicant satisfies s.36(2)(a) of the Act.

Statement made on 15 May 2020 at 9:57am

CATCHWORDS
REFUGEE – protection visa – Pakistan – particular social group – former Muslims and imputed apostates embracing and advocating for secular humanist ideologies in Pakistan – delay in seeking protection – voluntary return to Pakistan – blasphemy laws in Pakistan – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5L, 5LA, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
Appellant S395/2002 v MICA [2003] HCA 71; 216 CLR 473
Croome v Tasmania [1997] 191 CLR 119
MIAC v SZONJ [2011] FCAFC 85
MIMA v Kandasamy [2000] FCA 67
MIMA v Khawar (2002) 210 CLR 1
MIMA v Respondents S152/2003 (2004) 222 CLR 1
MMM v MIMA (1998) 90 FCR 324

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.

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 16 December 2016 to refuse to grant the applicant a protection visa under the Migration Act 1958 (the Act).
At the hearing on 24 February 2020 the Tribunal made an oral decision and gave an oral statement of decision and reasons.
STATEMENT OF DECISION AND REASONS
Attached to this statement is a corrected transcript of the reasons for decision delivered at the hearing on 24 February 2020.
DECISION
The Tribunal remits the decision under review with the direction that the applicant satisfies s.36(2)(a) of the Act.
Dr Colin Huntly
Member

Corrected Transcript

ORAL DECISION OF MEMBER HUNTLY [11:03 AM]
MEMBER: This is an oral decision with reasons delivered to the applicant in person.
INTRODUCTION

The criteria for a protection visa are set out in s.36 of the Act in Sch.2 to the Migration Regulations 1994. The applicant must either be a person in respect of whom Australia has protection obligations under the refugee criterion or on complementary protection grounds. Where relevant the Tribunal has taken into account the policy guidelines prepared by the Department on refugee law and complementary protection, together with any country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) in accordance with Ministerial Direction No.84.
PROCEDURAL BACKGROUND
The applicant appeared before the Tribunal on two occasions to give evidence and present arguments. Firstly, on 4 February 2020 and then on 24 February 2020.
The applicant was not represented in this application by a registered migration agent and these hearings were held in the English language.
MIGRATION HISTORY
According to his movement record the applicant arrived in Australia [in] August 2012 travelling on [a] Student Visa. [In] January 2014 the applicant departed Australia and returned to Pakistan. He returned to Australia [in] March 2014 and, [in] March 2016, his student visa ceased.
[Later in] March 2016 a visitor visa was granted to the applicant and on 30 March 2016 that visitor visa ceased. On 18 May 2016 the applicant lodged an application for a protection visa. That application for a protection visa was refused by a delegate of the Minister on 16 December 2016. The applicant applies to this Tribunal for a review of that decision.
IDENTITY
The applicant claims to be a citizen of Pakistan and has provided copies of his passport to the Department with this application.
On the basis of the evidence before it the Tribunal finds the applicant is a citizen of Pakistan, which is also his receiving country for the purposes of the refugee and complementary protection assessments.
There is no evidence before the Tribunal to suggest that the applicant has a right to enter and reside in a third country for the purposes of s.36(3) of the Act.
APPLICANT CLAIMS
First hearing
At the first hearing, I explained to you what documents I had in my possession. I asked you if there was any information in those documents that should be changed. You said ‘No’.
I asked you if there was anything you would like to add to your claims for protection and you said ‘No’. I asked you if you were happy for me to proceed on the basis of the information I had before me and you said ‘Yes’.
Also at the first hearing, I read to you the summary of your protection claims that appears in the delegate’s record of decision at Part 4, which states:
· The applicant claims that after coming to Australia he became fed up with all religions and found peace in being an atheist.
· The applicant claims that he will be harmed by his family members who would kill him on account of becoming an atheist.
You agreed that this was a fair and accurate summary of your claims for protection as made in your original application for protection.
I discussed with you the fact that the delegate had not accepted that your claim to be an atheist was credible and that, on this basis, you were refused a protection visa.
I indicated at this first hearing that we would need to discuss what you mean by your claims to be an atheist, and also the fact that your return to Pakistan voluntarily in 2014 tended to undermine your claims to fear persecution in that country.
We also discussed the fact that I would need to be satisfied about circumstances relating to your failure to complete your student visa through to satisfaction, in terms of graduating from a degree; and, you would need to also explain why you have taken so long – between 2012 and 2016 – before applying for protection.
After giving these warnings to you at the first hearing, we concluded those proceedings.
Second hearing
At the second hearing I reminded you what had happened at the first hearing and I once again reminded you of your answers to my opening questions and that you had agreed that the summary of your protection claims as included in the delegate’s decision record was fair and accurate.
In the course of the second hearing you explained to me that you are the third youngest of [number] children born to your mother and father, both of whom currently are alive and resident in Peshawar in Khyber Pakhtunkhwa in northern Pakistan; and that your older sister suffers from anxiety and depression and lives with your mother.
Sister No.2 lives in your home village of [Village 1], is married and has [number] children. She is qualified as a [Occupation 1]. Your sister’s husband is a [Occupation 2] in that town.
Sister No.3 is also married and her husband runs a [shop] in Peshawar, not far from your mother and father. She has [number] children.
Your youngest sister lives in Peshawar and is a [Occupation 1].
You have a younger brother, who is an Australian permanent resident, is married and living in Melbourne. I note that your brother was, himself an unsuccessful applicant for protection and that he obtained permanent residence on the basis of his relationship with an Australian citizen.
Your youngest brother lives in Peshawar and is studying at the local university.
I asked you about your contact with your family in Peshawar. You indicated that you had been cut off from your family by your father from around the end of 2015, after you disclosed to him your decision not to continue in the Shia Muslim faith.
You indicated that, since around about that time, you have struggled with depression and anxiety. It is evident that you are suffering from a depressive episode at the present time. You have given undertakings to me that you will explore online support modalities for this depressive episode here in Australia.
We discussed your personal exploration and struggle to come to terms with religious belief. You became aware of the persecution of the Shia minority in Pakistan and its potentially devastating effects through the experience of certain members of your family, who had been either present at religious feasts where bombs had exploded, or who had themselves been the subject of shootings. You described two violent religious conflicts in your home region of Pakistan.
I asked you about your decision to disclose your religious beliefs and the changes to your attitude towards religion to your father. You indicated that, in the course of your regular discussions with your father about your life in Australia, this had come up and you had been surprised by your father’s decision to cut you off when you disclosed to him that you had abandoned your Shia Muslim faith.
I asked you about your experience of belief. You indicated to me that, over time, you had become less satisfied with religious explanations for the universe and life and God, and more and more attracted to, and accepting of, the scientific explanation of life and the universe in which we live.
You have engaged in robust conversations with friends and family about the existence of God and the fact that the amount of misery and strife in the world is enough to convince you of the non-existence of a deity.
You told me that you had first explored these ideas in Pakistan, however, they had crystallised for you in Australia when you had experienced a civil society, structured on a secular basis. You felt free to be yourself here in a way that you did not feel free in Pakistan.
You formed the conclusion that religious arguments about God creating the world and the universe were unsatisfying and unsatisfactory. You were convinced of the proof of a scientific explanation for the existence of life and the cosmos.
I asked you when this crystallised for you and you indicated to me that this awareness emerged at a time of a personal crisis arising from the breakdown of a long-term relationship with a girlfriend in Pakistan whom you had hoped to marry. This relationship was of about six years’ duration, and around 2013 it became apparent to you that this relationship had ended.
It was at approximately the same time that you became afflicted with anxiety and depression, and you found no comfort in the religion of your birth. Instead, you found much more comfort in the secular and atheist explanation for life.
At that time, you had thoughts of self-harm and ending your life, but the ongoing relationship you have with your brother in Australia and your secular humanist belief brought you enough comfort to continue with day-to-day life.
You fear returning to Pakistan because it is a society based on a religious ideology and you believe that the sectarian strife in that country is an expression of a belief system that you reject. Accordingly, you would feel the need to speak out about, and openly question this faith-based belief system if you returned to Pakistan.
FINDINGS
I accept your evidence in the terms in which it was given. It was credible, straightforward and appeared to me to be an authentic recounting of lived experience. I accept and find that you are a sincere secular humanist and that you have indeed abandoned your former Shia Muslim religious ideology.
I find that your claims amount to membership of a particular social group, being former Muslims and imputed apostates embracing and advocating for secular humanist ideologies in Pakistan.
As to the potential credibility questions around delay, I note that, shortly after articulating your newfound faith/belief in secular humanism to your father, he cut you off, and within six to eight months of that discussion, you applied for protection in Australia. Your earlier return to Pakistan in 2014 is, therefore, not something which should be considered to be adverse to your claims for protection in 2016.
Accordingly, I also find that there is no significant delay in seeking protection that would warrant an adverse credibility finding against those claims.
I have explored with you the details of your claim to be a member of the particular social group, former Muslims and imputed apostates embracing and advocating for secular humanist ideologies in Pakistan in some detail.
Your narrative has been credible and convincing. Your evidence regarding your personal journey of self-acceptance was wholly credible. I note in particular that, at one point in the second hearing, I asked you about how your secular humanist faith/belief had impacted on your depression. You indicated that your belief in the scientific explanation of life and its meaning and its engagement with the cosmos was of considerable consolation to you, in moments of depression and anxiety, in a way that religion could not be, and that it is an ideology that has allowed you to find meaning in life.
Accordingly, for the purposes of s.5L of the Act I find that you are a member of a particular social group, being former Muslims and imputed apostates embracing and advocating for secular humanist ideologies in Pakistan and that these are innate or immutable characteristics that you share with members of the group, and which are not a fear of persecution.
I accept that you would be unable to live openly as a former Muslim and imputed apostate embracing and advocating for secular humanist ideologies in Pakistan as you would wish to, now or in the reasonably foreseeable future, without fear of persecution.
Country information
I also note that, in this respect, country information contained in the most recent DFAT Country Information Report, Pakistan, dated 20 February 2019,[1] makes it quite clear that while Article 20 of the Pakistan Constitution allows for the right to profess, practise and propagate religion, this must be read down in light of the blasphemy laws that are found in Articles 259 and 298 of the Pakistan Penal Code 1860. I note that this legislation is enforced and actions taken in Pakistan alleging blasphemy are sanctioned by the police and judiciary in that country.[2]
[1] At [3.70]–[3.89].
[2] Cf: Country information dated 6 March 2019 and 5 May 2017 both referred to at this point.
The information contained in credible country information sources is, therefore, entirely consistent with your evidence to me about life as you experienced it in that country, and how you would anticipate experiencing it on return to that country.
Well-founded fear
I note that an applicant for protection does not have to show past persecution in order to demonstrate a well-founded fear of persecution. For example, depending on the circumstances an applicant who belongs to a persecuted group might establish a well-founded fear even though an applicant has not personally suffered harm in the past.
Having said that, I do believe that the mental health difficulties you have experienced in Australia and since 2015 have, at least partially, been due to an anticipation of the harm you would experience if you were to return to Pakistan. While I find that disagreements within families do not constitute persecution for the purposes of the Act,[3] religiously motivated persecution may nevertheless amount to persecution for the purposes of the Act even if it is exercised by agents of harm in one’s own family.[4]
[3] MMM v MIMA (1998) 90 FCR 324 at 327 per Brennan CJ.
[4] MIMA v Respondents S152/2003 (2004) 222 CLR 1; and, MIMA v Khawar (2002) 210 CLR 1.
An applicant who has not been persecuted in the past might also establish a well-founded fear because their own circumstances have changed, such as a conversion experience, or because circumstances have changed in the applicant’s country during their absence.
In this respect I note that you have provided a compelling narrative of your process of religious enquiry and your changed views relating to questions of faith and belief while in Australia since 2013.
The country information I have reviewed and referred to above suggests that the agents of harm you would claim to fear include the Pakistan state; non-state religious actors; and, members of the wider Pakistan community (including members of your own family).
I find that discrimination, harassment and intimidation of the particular social group, being former Muslims and imputed apostates embracing and advocating for secular humanist ideologies in Pakistan is for the essential and significant reason that they form the particular social group. I further find that the legal and institutional nature of such persecution is both systematic and discriminatory in the relevant sense, and amounts to serious harm for the purposes of s.5J(4) of the Act.

The existence of a real chance of significant physical harassment and significant physical ill treatment in Pakistan of the particular social group, former Muslims and imputed apostates embracing and advocating for secular humanist ideologies in Pakistan, identified in the credible country information, is not reduced merely by the fact that a proportion of that community might choose to be open about their secular humanist views.
How an individual chooses to respond to a given chance of significant physical harassment and significant physical ill-treatment does not determine whether the chance is real or that such harm will occur.
I find that the above credible country information demonstrates that there is a real chance of significant physical harassment and significant physical ill-treatment in Pakistan for former Muslims and imputed apostates embracing and advocating for secular humanist ideologies in that country. This chance of significant physical harassment and significant physical ill treatment as a result of complex social and religious forces, find arch expression in the legal system, to which former Muslims and imputed apostates embracing and advocating for secular humanist ideologies would be subject.
I note the comments of the High Court (albeit in a different context) relating to the significant role played by legal systems in the case of Croome v Tasmania [1997] 191 CLR 119 at 127 per Brendan CJ and Dawson and Toohey JJ.
Effective protection
On the foregoing basis, I find that effective protection measures are not available to members of the particular social group, former Muslims and imputed apostates embracing and advocating for secular humanist ideologies in Pakistan, being innate or immutable characteristics of the applicant and which are shared by members of the particular social group. This is because adequate protection against persecution either cannot, or will not, be provided to members of the particular social group by the Pakistan state, and credible country information raises doubts about whether the Pakistan state is willing and able to offer such protection for the purposes of s.5LA of the Act. Any assessment under this provision requires consideration as to whether the state, organisation or party effectively turns a ‘blind eye’ to personally motivated actions.
Accordingly, for the purposes of s.5J(5) of the Act, and on the basis of country information, I find that the applicant would face a real chance of significant physical harassment and significant physical ill treatment in Pakistan now and for the reasonably foreseeable future for the essential and significant reason that he is a member of a particular social group, former Muslims and imputed apostates embracing and advocating for secular humanist ideologies being innate or immutable characteristics of members of the group that are also shared by the applicant.
I note that harm from non-state actors may amount to persecution for the purposes of the Act if the motivation of the non-state actors relates to one of the reasons contained in s.5J(1)(a) of the Act and the state is unable to provide adequate protection against the harm where the state is, for example, complicit in the sense that it encourages, condones or tolerates the harm.[5] The attitude of such a state is consistent with the possibility of there being persecution.
[5] MIMA v Khawar (2002) 210 CLR 1 at [31] Per Gleeson CJ; and, MIAC v SZONJ [2011] FCAFC 85 at [32] and [33].

When the state is willing but not able to provide protection the fact that authorities, including the police and the courts, may not be able to provide an assurance of safety so as to remove any reasonable basis for fear does not justify an unwillingness to seek protection.[6] In such cases a person would not be a victim of persecution unless it is concluded that the government would not or could not provide citizens in that position with the level of protection they are entitled to expect according to international standards.
[6] MIMA v Kandasamy [2000] FCA 67.
Section 5J(3) of the Act provides that a person does not have a well-founded fear of persecution if they could take reasonable steps to modify their behaviour so as to avoid a real chance of persecution in the receiving country.
However, I note that s.5J(3) provides that this does not apply to a modification that would conflict with a characteristic that is fundamental to a person’s identity or conscience, or that would conceal an innate or immutable characteristic or to a modification that would require a person to alter their religious beliefs, their sexual orientation, their gender identity, or conceal their true sexual orientation, gender identity or intersex status.
In the context of what is reasonable I note the well-founded fear of persecution cannot be regarded as being restricted to a single part of the receiving country if relocating carries with it the need to avoid persecution by living discreetly or otherwise being invisible.[7]
[7] Appellant S395/2002 v MICA [2003] HCA 71; 216 CLR 473 at [40], per McHugh and Kirby JJ.
CONCLUSIONS
I have considered each of the integers of your claim for protection individually and cumulatively on the basis of the foregoing evidence and findings. Taken together with relevant country information I have referred to above, I find your evidence is credible and materially consistent with the country information.
I find, therefore, pursuant to s.5J(1)(a) of the Act, that you do have a well-founded fear of persecution in Pakistan, now and in the reasonably foreseeable future, for the essential and significant reason that you are a member of the particular social group, former Muslims and imputed apostates embracing and advocating for secular humanist ideologies in that country, being innate or immutable characteristics shared by members of the group that you also have.
The real chance of significant physical harassment and significant physical ill treatment I find that you face on return to Pakistan is systematic and discriminatory and relates to all areas within Pakistan.
I further find that pursuant to s.5J(3)(b) of the Act, it would not be reasonable to require you to be invisible or to be discreet in order to reduce your real chance of significant physical harassment and significant physical ill treatment due to your membership of the particular social group, former Muslims and imputed apostates embracing and advocating for secular humanist ideologies in that country.
Based on all of this, I further find that you would not be able to secure effective state protection for the purposes of s.5LA of the Act.
Accordingly, I find that you are a person in respect of whom Australia has protection obligations because you satisfy the criteria set out in s.36(2)(a) of the Act.
DECISION
The Tribunal remits the decision under review with the direction that the applicant satisfies s.36(2)(a) of the Act.
END OF ORAL DECISION [11.30 AM]