1703405 (Refugee)

[2017] AATA 983

1703405 (Refugee) [2017] AATA 983 (5 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1703405

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Susan Pinto

DATE:5 June 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

Statement made on 05 June 2017 at 2:05pm

CATCHWORDS
Refugee – Cancellation – Protection visa – Pakistan – Provision of incorrect information – Ahmadiyya – Khatam-E-Nabuwat – Muslim extremists – Imprisonment or execution – No intention to re-avail himself of his country of nationality’s protection – Titre de Voyage – Visiting ill family members – Family plans for applicant’s marriage – Modifying behaviour to avoid persecution

LEGISLATION
Migration Act 1958, ss 101, 107, 109(1)
Migration Regulations 1994

CASES
S395 v MIMA 2003 216 CLR 473
Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235
Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555
Sun v Minister for Immigration and Border Protection [2016] FCAFC 52

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.

INTRODUCTION

1. The applicant is a citizen of Pakistan. He was born in Quetta, Pakistan on [date]. He has claimed that his religion is Ahmadiyya Muslim. He left Pakistan in July 2006 as the holder of a Student visa, valid for study in [Country 1]. He resided in [Country 1] from [September] 2006 until [February] 2012. He sought asylum in [Country 1] in November 2008 and this application was refused in November 2011. The applicant’s Pakistani passport was retained by [Country 1] authorities and [in] February 2012 he arrived in Australia using a false [Country 2] passport in the name of [an alias]. He declared this upon his arrival in Australia. He was detained at [an] Immigration Detention Centre.

2. The applicant made an application to the Department of Immigration for a Subclass 866 (Protection) visa [in] February 2012. The applicant made claims to fear harm on the basis of his Ahmadiyya Muslim religion. The application was refused by the delegate of the Minister for Immigration [in] March 2012. The applicant applied to the Refugee Review Tribunal (RRT) for a review of the delegate’s decision to refuse to grant him a Protection visa. On 22 June 2012, the Refugee Review Tribunal found that the applicant had a well founded fear of persecution for reasons of his Ahmadi religion and set aside the delegate’s decision. The applicant was granted a Protection visa [in] August 2012.

3. Following the grant of the Protection visa the applicant returned to Pakistan on two occasions. The first period was between [March] 2015 and [May] 2015 and the second period was between [September] 2015 and [December] 2015.

4. The delegate of the Minister for Immigration made a decision to cancel the applicant’s Subclass 866 (Protection) visa under s.109(1) of the Migration Act 1958 (the Act [in] February 2017. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act, which require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances. The applicant’s Protection visa was cancelled on the basis that he had provided incorrect information in his Protection visa application. The delegate found that the applicant’s claims that he feared harm in Pakistan on the basis of his religion were incorrect. The delegate found that the applicant’s return to Pakistan on two occasions for period of almost three months on each occasion was not consistent with his claims to fear harm on the basis of his religion.

5. The issue in this case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled. The relevant law is attached to this decision.

   RELEVANT EVIDENCE

   The applicant’s application for a Protection visa

6. When lodging the application to the Department, the applicant responded to questions on the application form stating that he was subject to extreme persecution in Pakistan and had received death threats. He claimed that the “extreme” Mullahs and the Khatam-E-Nabuwat wanted to kill him and he may be arrested on his return to Pakistan by the authorities and imprisoned for life, or executed under the Penal Code sections 295C, 296C (Blasphemy provisions).

7. The applicant provided documentation to the Department and the RRT supporting his claims to be of the Ahamdi faith. This included a letter, dated [in] March 2012, signed by the [Representative] of [an Ahmadiyya Group], who stated that the applicant is a member of the Ahmadiyya faith. During the hearing with the RRT, the applicant also provided various documents in relation to his identity; copies of various identity cards issued to him in [Country 1]; and documents relating to his application to [a review tribunal] in [Country 1]. The documents indicated that the [review tribunal] in [Country 1] accepted that the applicant was an Ahamdi on the basis of the information he had provided and inquiries that they undertook, but found that his fear of persecution was not well founded.

8. The applicant’s evidence to the Department, given during an interview with the delegate [in] February 2012, and to the RRT during the hearing held on 5 June 2012, was essentially that he attended high school in Lahore and from approximately 1996 he was bullied and harassed at his school when students and teachers found out that he is of the Ahmadi faith. The applicant stated that prior to that time, he was not asked about his religion and he had not disclosed it. The applicant stated that he gradually increased his involvement in the Ahmadi mosque and began attending classes and prayer groups. His friends in the local area found out about this and they disapproved of him and bullied him further. The applicant completed high school in [year] but due to continuing harassment and bullying he moved to a different area. The students subsequently found out that he was Ahmadi and would follow him and harass him. The applicant also claimed that a Sunni Mullah at the college he tried to enter told him he would kill him if he gained entry. There were also people from the Khatam-e-Nabuwat who threatened him. For that reason, the applicant’s uncle arranged for him to attend a college in Rawalpindi, but he was subsequently expelled when the administrator found out that he was an Ahamadi. The applicant again returned to live with his family in Lahore and studied privately before gaining admission to a college in Lahore in 2003 where he commenced a [degree]. He resumed his activities in the local Ahmadi community and again came to the attention of the Nabuwat in the area and he was threatened and told to convert to the Sunni religion. The applicant ceased his studies after he received threats at the College and he eventually decided to leave Pakistan when he continued to receive threats, and on a few occasions people came to his family home and threatened him there. The applicant moved to [Country 1] in 2006.

9. The applicant returned to Pakistan in 2008 to visit his family, and resumed his activities at the Ahmadi centre in his local area. When the people from Nabuwat found that he had returned they again began following him and made threatening telephone calls. The applicant returned to [Country 1], cutting short his stay in Pakistan. He resumed his studies, but when he learned that extremist groups were making increasing threats to the Ahmadi community which indicated that their safety was becoming increasingly threatened, he decided to lodge an application for a Protection visa. He had joined the Ahmadi community whilst in [Country 1] and he had learned that members of his community had applied for refugee status and had been able to remain in [Country 1] permanently. The applicant stated that it was only after his return visit to Pakistan and the deterioration of the condition for Ahmadis that he decided that he should pursue permanent residence by applying for asylum. The applicant came to Australia on a false passport after his application for refugee status in [Country 1] was unsuccessful.

10. As indicated above, the Department of Immigration refused the applicant’s application for a Protection visa, finding that although the applicant is an Ahmadi, he did not face a real chance of persecution in Pakistan. The RRT also found that the applicant is an Ahmadi but found on the basis of the applicant’s “broadly similar claims”, which were advanced to the [Country 1] authorities, and the account of events he claimed occurred before he went to [Country 1] in 2006 and again when he returned to Pakistan in 2008, that he was threatened and harassed whilst in Pakistan and the harm he feared involves a “threat to his life or liberty or significant physical harassment or mistreatment”. The RRT also found that “such harm involves systematic and discriminatory conduct for the essential and significant reason of his Ahmadi religion”. In reaching this decision, the RRT referred to relevant independent evidence which examined the treatment of Ahmadis in Pakistan. It is unnecessary to set out the evidence in full in this decision, beyond recording that the RRT accepted that blasphemy laws in Pakistan have been used to harass Ahmadis and this has been condoned by the government. More generally, the RRT accepted that Ahmadis are at risk of persecution on the grounds of their religion and that extremist organisations such as the Nabuwat could operate with impunity in persecuting Ahmadis, and the police and State organisations did nothing to protect them.

11. The RRT also referred to the Eligibility Guidelines for assessing the international protection needs of members of religious minorities from Pakistan, issued by the United Nations High Commissioner for Refugees (UNHCR) in May 2012. In these Guidelines, UNHCR accessed available country information and concluded that Ahmadis were subject to the most severe legal restrictions and officially sanctioned discrimination of all the religious minorities in Pakistan. In particular, they are the subject of harassment and harm through the application of the blasphemy laws. UNHCR also recorded an increase in violence against Ahamdis, with little protection provided by the state authorities, and concluded that Ahmadis are “likely to be in need of international refugee protection on account of their religion depending on the individual circumstances of the case”. 

    The section 107 notice

12. Prior to the cancellation of the applicant’s Subclass 866 visa, the applicant was sent a s.107 (Notice of Intention to Consider Cancellation) of his visa. In the s.107 notice the delegate referred to the applicant’s Protection visa application and his responses to question 42 of Form 866 (Protection visa application form) in which he was asked why he left Pakistan, to which the applicant had responded:

    Because I am was subject to extreme persecution in Pakistan and have received death threats. Even moving did not help as extreme Mullah in Pakistan found where I had moved and continued to persecute me. 

13. The delegate also referred to the applicant’s response to question 45 of the Form 866 in which the applicant was asked what he fears would happen if he returned to Pakistan. In response to that question, the applicant had stated:

    Mullah and Khatam-E-Nabuwat want to kill me. If I am lucky, I may only be arrested on my return to Pakistan by the authorities and imprisoned for life. But I may be executed under Penal Code 295C, 296C.

14. The delegate referred to Departmental records and the applicant’s Titre de Voyage which indicated that he entered Lahore airport in March 2015 and again in September 2015. The delegate referred to the applicant’s length of time in Pakistan and stated that [in] June 2015 his [spouse] lodged an application for a Partner visa for which he was the sponsor. The delegate stated that [the applicant’s wife] provided a statement to the Department in which she stated that she and the applicant were married [in] March 2015 and visited friends and relatives who lived in other cities, including Karachi, Rawalpindi, Islamabad, Faisalabad and Sargodha. The delegate referred to photographs provided to the Department and stated that [the applicant’s wife] told an officer from the Department’s [Pakistan] office [in] February 2016 that whilst in Pakistan “my husband used to go for Jumma Prayers at the mosque near their house. His brothers and other male members used to gather there”. The delegate stated that this demonstrates that the applicant was able to freely practise his Ahmadiyyan faith without suffering harm, as he had claimed in his Protection visa application. The delegate also stated that the applicant spent a total of six months in Pakistan in 2015 without suffering any apparent harm, and his freedom of movement and practice of his faith contradicts his claim that he would be executed or at least imprisoned if he were to return to Pakistan. The delegate stated that the applicant’s claims were “fundamental to the determination” that he was a person to whom Australia has protection obligations.

    The applicant’s response to the s.107 Notice

15. The applicant’s representative provided a submission to the Department, dated 6 October 2016, in response to the Notice of Intention to Consider Cancellation of the applicant’s Subclass 866 (Protection) visa. The representative submitted that the applicant maintains that his responses to question 42 of Part C were correct, but he did not provide sufficient details of his claims. The representative submits that the applicant was in a detention centre whilst preparing his application and he provided only minimal details of his claims. The representative refers to the applicant’s note at question 42 of Part C of Form 866 whereby he stated “see my full statement of claims to be submitted shortly. Also see the submission from my Migration Agent to be submitted shortly”. The representative submits that during his interview with the delegate of the Department of Immigration, and during his hearing with the Refugee Review Tribunal, the applicant explained that he had death threats and that is why he fled to [Country 1] in 2006 and again in 2008 after he returned to Pakistan. The representative further submitted that the applicant fled from [Country 1] to Australia in 2012 by obtaining a counterfeit passport and his claims of death threats from mullahs and the fanatic Khatam-e-Nubuwat are correct, and he experienced such threats and feared serious harm in Pakistan because of his various religious activities. It is submitted that the applicant maintains that this information is correct.

16. The representative also submits that the applicant’s response to question 45 on the application form did not provide any background information or sufficient details, but he was in the detention centre and had limited time to explain how and why he had become a target for religious persecution from fundamentalists in Pakistan. The representative submits that the applicant had become a target for extremists and he was aware that people from the Ahmadi community had been killed or executed, and a false allegation from a Mullah can easily lead to an Ahmadi being killed or executed or subject to life imprisonment which is commonly practised in Pakistan if the “fanatic Mullahs” make false allegations. The representative referred to the brutal murder of an American citizen who was a member of the Ahmadi community who returned to Pakistan for a visit and was shot dead “simply because he was a member of the Ahmadiyya community”.

17. In relation to his return to Pakistan on two occasions, the representative submitted that the applicant has acknowledged that he returned to Pakistan on two occasions and he now believes that this was “a wrong doing”. However, he returned on “compassionate grounds” because he had not seen his family since March 2008 when he escaped to [Country 1] and he remained there until February 2012 and he then travelled to Australia. The representative submitted that the applicant’s parents are in their old age, and his father is [age] years of age, has [medical conditions]. Since the time the applicant was granted a permanent visa in August 2012, his parents have insisted that he return to Pakistan so they could see him and organise his marriage. The applicant was not in a position to refuse his parents decision that he should marry, and in this situation he was willing to return to Pakistan in March 2015, and marry some five days after his arrival. The representative submits that whilst in Pakistan, the couple was invited to Ahmadi relative’s homes in different parts of Pakistan. The applicant was aware that he could be harmed at any time if he remained in the one location so he and his wife travelled to different places, visiting only family members and relatives who were members of the Ahmadi community. The applicant visited Pakistan again in September 2015 because his father was seriously unwell and hospitalised and he also formed an “emotional attachment” to his recently wedded wife. His wife fell pregnant during that period and recently their first baby was born.

18. In relation to his wife’s comments, during her interview for the Partner visa, that the applicant attended Jumma prayers whilst he was in Pakistan, the representative submitted that Ahmadis in Pakistan are prohibited to call their worship place a mosque, and must instead use a room or venue which is either rented or owned by members of the Ahmadi community, and they must privately and secretly perform their prayers at that location. The applicant has revealed that the “mosque” his wife referred to was a place which was privately owned by someone in a nearby Ahmadi neighbourhood and the house was used for Friday Jumma prayers. It was not a declared or affiliated mosque.

19. The representative concludes by stating that the applicant does not accept that he provided incorrect information in his Protection visa application. He submits that the applicant and his wife moved from place to place and did remain in any one location for any length of time. The applicant did so to avoid harm from the Mullahs and Khatam-e-Nabuwat members. The representative further submitted that it is “unfair to conclude that the applicant does not fear harm in Pakistan or that he has provided incorrect information in his Protection visa application by claiming that he received death threats from Khatam–e-Nubuwat members and Mullahs”. The representative submits that “three years after the grant of his protection visa, the visa holder visited Pakistan on the medical condition of his father and to meet his newly wedded wife” and he was lucky to return back to Australia unharmed, but this does not guarantee that he would not face persecution in Pakistan in the future if he were to live there on a permanent basis. In summary the representative submits:

    It is apparent that [the applicant] voluntarily visited Pakistan in two occasions and remained there for a period of six months and he accepts that his visiting to Pakistan was a mistake irrespective of whatever his circumstances was and he is deeply repentant for his mistake sincerely extended his apology to the authority with a promise that he wouldn’t’ even think of making similar mistake again in the future. However, he does not accept that he has provided incorrect information in his application by mentioning in his protection visa application that he received death threats from Khatm-e-Nubuwat members and Mullahs and he may be executed or imprisoned for life in Pakistan for being a member of the Ahmadiyya community. Also [the applicant] does not accept that he has provided incorrect information or non compliance with section 101(b) of the Act although he was able to return back to Australia unharmed after spending six months in Pakistan in 2015. [The applicant] further noted that “a person does not need to die to prove that he had serious persecutions in Pakistan”.

1. A similar submission as that set out above was provided to the Tribunal prior to the hearing which was held on 23 May 2017. At the Tribunal hearing, the applicant provided further evidence in relation to his circumstances prior to his departure from Pakistan and the reasons for his return. The applicant denied that he had breached s.101 of the Act when he made his initial application for a Protection visa. The relevant evidence is discussed below.

2. Following the Tribunal hearing, the representative provided various reports on the situation for the Ahmadi community in Pakistan.

   CONSIDERATION OF THE EVIDENCE

   Did the applicant breach s.101 of the Act in the way describe in the s.101 Notice?

3. The Tribunal must consider whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the Notice of the Intention to Consider Cancellation (NOICC). The non-compliance identified and particularised in the s.107 notice dated [in] September 2016, was non-compliance with s.101 of the Act which states as follows:

   A non-citizen must fill in or complete his or her application form in such a way that:  (b) no incorrect answers are given or provided.

4. In considering whether there was non compliance in the manner described in the s.107 Notice, the Tribunal has had regard to the terms of the s.107 Notice as it is described above, as well as the applicant’s response to the Department and the submissions to the Tribunal. In considering this issue, the Tribunal has had regard to judicial authority relating to the cancellation of a permanent visa. It is well established that decision makers must exercise considerable caution when making findings of fact which have “serious” or “grave” consequences for an applicant.[1] The Tribunal considers that it is appropriate to approach this matter with caution, given the possible grave consequences of the cancellation for the applicant, and to have regard to his individual circumstances and the reasons as to why he returned to his country of origin.

   [1] See Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235; Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555 and Sun v Minister for Immigration and Border Protection [2016] FCAFC 52.

5. In considering whether the applicant provided incorrect information when he lodged his application for a Protection visa, in which he claimed that he had been subject to “extreme persecution” and threats from extremist Mullahs and the Khatam-e-Nabuwat,  the Tribunal has had regard to the applicant’s evidence to the Department and the Refugee Review Tribunal[2] in relation to his Protection visa application, as well as relevant independent evidence in relation to the situation for the Ahmadi community in Pakistan. The Tribunal has also had regard to the applicant’s response to the s.107 Notice and his evidence to the Tribunal and his representative’s submissions. The Tribunal’s consideration of the evidence is discussed below.

   [2] RRT Number 1204400, 22 June 2012. As stated above, the Refugee Review Tribunal remitted the matter with a direction that the applicant satisfies s.36(2)(a) of the Act, and found that he is a person to whom Australia owes Protection obligations.

6. As indicated above, the applicant’s initial claims to the Department were brief and lacked detail in terms of his previous experiences and his fears relating to future harm. The applicant has explained his reasons for providing such scant details of his claims at his most recent hearing relating to the cancellation of his visa, which were essentially related to the limited time involved and his inability to meet with his former representative, and his representative’s failure to take more detailed instructions from the applicant. The applicant expanded on these general claims at a later time and was able to give evidence which satisfied the RRT that the situation for the Ahamdi community had become increasingly problematic and dangerous, particularly with the increase in the presence of extremist groups in Pakistan. The RRT also accepted that the applicant was required to severely modify and restrict the practise of his religion whilst he was in Pakistan, and found that the requirement for him to do so amounted to serious harm.

7. At the most recent hearing, the applicant confirmed his previous evidence as to his experiences in Pakistan, and told the Tribunal that whilst in Lahore it became known that he was a member of the Ahmadi community and he began to receive threatening telephone calls. He moved to a location near Rawalpindi and attended a private college. Although he was eligible for entry into the government college, because he is of the Ahmadi faith, he was refused entry. He first moved to a place near Rawalpindi, where he attended College. During that time he tried to return to Lahore permanently, but when he did the threats continued. The applicant stated that the threats were intended to undermine him and make it difficult for him to practise his religion. The applicant felt that it was only a “matter of time” before false charges were made and the blasphemy provisions were used to detain or execute him. He stated that the Pakistani authorities do not require “strong evidence” in order to use the blasphemy provisions against the Ahmadi community. The applicant confirmed that he left Pakistan in 2006 for [Country 1] because of the threats. He returned in 2008, but because of the threats he returned to [Country 1] and sought protection. The applicant’s application for [Country 1’s] protection was refused by the equivalent of the Refugee Review Tribunal in [Country 1]. The applicant told the Tribunal that although he had made an application to the [Country 1] High Court a deportation order had been issued to him, and he was fearful that he would be detained and deported to Pakistan.

8. The applicant told the Tribunal that he made the application for a Protection visa soon after he arrived in Australia because when he arrived at the airport and advised the authorities that his passport was not genuine he was detained and was subject to turnaround procedures unless he made an application for a Protection visa. Whilst at the airport, the applicant was given a copy of the Yellow Pages and he telephoned a migration agent who assisted him to lodge the application. The applicant did not see the migration agent prior to the lodgement of the application and he wrote his claims for him. The applicant attempted to delay the Department interview because he had not obtained the documentation from [Country 1] to support his claims, but the request was refused. However, he provided the relevant documentation to the Refugee Review Tribunal.

9. When asked by the Tribunal whether he considers he overstated his claims that he would be executed or imprisoned upon his return to Pakistan, the applicant denied that he had done so and stated that he is fearful of both execution and imprisonment in Pakistan because the blasphemy laws were “made for the Ahmadi community”. The applicant stated that Ahmadis have been declared non Muslims and both the Shia and Sunni communities in Pakistan share a common belief that they should not be permitted to have their own mosques or to declare their places of worship as mosques. The applicant stated that in Pakistan he practises his religion only at people’s homes. The Ahmadi community previously had prayer centres, but these have gradually been taken over by Sunni Muslim groups or destroyed. They now practise at different people’s homes and change the location every so often to avoid detection. They also limit the number of people who attend the prayer location and rather than practising five times a day, they only practise “Jumma prayers” which is prayers on a Friday. The applicant stated that members of the Ahmadi community have to be vigilant at all times.

10. The Tribunal accepts, on the basis of the applicant’s consistent evidence to the Department, this Tribunal, the RRT, and the [Country 1] [review tribunal] that when he made the application to the Department for a Protection visa in 2012 he had experienced considerable threats from several persons who were opposed to him on the basis of his Ahmadi religion, and this affected his ability to study and reside safely in Pakistan. The Tribunal accepts that the applicant’s evidence is consistent with the independent evidence set out in the decision of the Refugee Review Tribunal and confirmed in the most recent Department of Foreign Affairs and Trade Report which describes the situation for the Ahmadi community:

    A number of discriminatory laws inhibit Ahmadis’ rights to practise their religion openly. Although Ahmadis identify as Muslim, the Constitution describes them as non-Muslim. Under Ordinance XX – upheld by the Supreme Court – Ahmadis may not identify, or ‘pose,’ as Muslims. They are also barred from worshipping in non-Ahmadi mosques or public prayer rooms; performing the Muslim call to prayer; using the traditional Islamic greeting in public; publicly quoting from the Quran; preaching in public; seeking converts; or producing, publishing and disseminating religious materials. These acts are punishable by imprisonment for up to three years. Ahmadis also have no representation in Pakistan’s Council of Islamic Ideology. Ahmadis are exempt from the otherwise mandatory 2.5 per cent zakat deductions on personal income.

    Ahmadis continue to experience political discrimination. Changes to the electoral system in 1985 established a separate registration list for non-Muslims. While electoral reforms in 2002 removed the distinction between Muslims and non-Muslims, Ahmadis must still register on a separate, Ahmadi specific list. In the 2013 general elections, many Ahmadis refused to register on this list and were therefore unable to vote.

    The Ahmadi community has told DFAT that Pakistani authorities have demolished, restricted access to, or forcibly occupied Ahmadi places of worship. Mobs have also reportedly set fire to some Ahmadi places of worship, and Ahmadi graves have been desecrated and their dead disinterred. The Ahmadi community has also reported the closure of Ahmadi publications, removal of Ahmadi students from schools and universities, and reporting of Ahmadi communities en masse to local police forces for unspecified crimes.

    Since the promulgation of Ordinance XX, there has been an increase in the number of physical attacks against the Ahmadi community in Pakistan. According to the Human Rights Commission Pakistan (HRCP), 11 Ahmadis died in sectarian violence in 2014. On 17 July 2014, for example, an Ahmadi grandmother and her two granddaughters died when a mob set fire to their house in Gujranwala, Punjab.

    According to the Ahmadi community, authorities have colluded and participated in some of these attacks. The leaked Abbottabad Commission report also suggests that police in Lahore protected perpetrators of violence against Ahmadis in 2010. DFAT is unable to verify these claims.

    DFAT assesses that Pakistan’s Ahmadi community is subject to a high level of official discrimination, which impacts their ability to freely practice religion and limits the extent of their political engagement. Ahmadis are also subject to a moderate level of societal discrimination and a low level of violence, although this violence is generally mitigated by Ahamadis’ relatively high socioeconomic status.[3]

    [3] Department of Foreign Affairs and Trade 2016, DFAT Country Information Report: Pakistan, 15 January, pp. 10 to 11.

11. The applicant’s claims made to the Department in his initial application, which are the subject of the material set out in the s.107 Notice, were very general in nature. The Tribunal accepts that the applicant did not claim, either in his statement to the Department, his oral evidence during the Department interview, or in his evidence to the RRT, that he would be subject to immediate imprisonment or execution upon his return to Pakistan. Indeed, his oral evidence indicated that his fears related to his ability to live, work and practise his religion without attracting attention, and he has since claimed that when he returned in 2015 he was able to do so only because it was a visitor, with permanent residence in Australia, and therefore an ability to leave at short notice if required. His evidence to both the Department and the Tribunal was also consistently that when he lived in Pakistan permanently he was threatened with harm, but he was not specifically harmed. However, each time he lived in a particular place for any length of time, he eventually came to the attention of groups such as the Nabuwat or extreme Mullahs, and this affected his ability to continue to study and work, and he held general fears for his safety as a member of the Ahmadi community who wished to participate in his community. The Tribunal is satisfied, therefore, that there was nothing in the applicant’s initial claims which were inconsistent with evidence provided to either the Department or the Refugee Review Tribunal in relation to his experiences in Pakistan, and the harm he feared at the time he made the application for a Protection visa.

12. The Tribunal has considered whether the applicant’s return to Pakistan on two occasions in 2015, and his ability to travel and worship at the “Jumma mosque”, detracts from his consistent account of his experiences to the [Country 1] Refugee Tribunal, the Department, the RRT, and during the most recent hearing in May 2017, such that it establishes that he was not threatened by extreme Mullahs, Kahtahm–e-Nabuwat and feared execution or imprisonment under relevant sections of the Penal Code which refer to blasphemy. The delegate concluded that although the applicant claimed he would be executed or imprisoned for life “he returned on two occasions and resided there for six months without either of these events occurring”. The delegate concluded that this “proves that the information he provided in his initial Protection visa application was incorrect”.

13. The Tribunal agrees with the delegate that the applicant’s return to Pakistan for two relatively lengthy occasions raises concerns about his claims to fear imprisonment, or execution upon his return to Pakistan. However, the Tribunal considers that much will depend on the circumstances of the case and the claims that were made. This is not, for example, a case where the applicant has claimed he fears he will be arrested and detained immediately upon arrival at the airport, or that he was stateless and was unable to obtain a passport. Additionally, although the Tribunal is not bound by the Guidelines of the United Nations High Commissioner for Refugees (UNHCR), in the absence of any Australian judicial consideration of issues relating to persons who return to their country of origin having obtained Australia’s protection, the Tribunal considers it pertinent to consider the UNHCR’s view on persons who return to their country of origin after have obtained the protection of another country. The UNHCR Guidelines refers to Article 1C(1) of the Convention, an exclusion clause for persons who have “voluntarily re-availed himself of the protection of the country outside his nationality”. This cessation clause implies three requirements: that the person has “voluntarily returned”; the person has intended by his action to re-avail himself of his country of nationality; and a person must actually obtain such protection. UNCHR has stated that in terms of the re-availment:

    Where a refugee visits his former home country not with a national passport, but for example, with a travel document issued by his country of residence, he has been considered by certain States to have re-availed himself of the protection of his former home country and to have lost his refugee status under the present cessation clause. Cases of this kind should, however, be judged on their individual merits. Visiting an old or sick parent will have a different bearing on the refugee’s relations to his former home country than regular visits to that country spent on holidays or for the purposes of establishing business relations.[4]

    [4] UNHCR, Reissued in, Geneva, December 2011, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status Under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, at paragraphs 118 to 125. 

14. In the Tribunal’s view, the circumstances of the applicant’s return to Pakistan do not establish that he sought to re-avail himself of his country’s protection. The applicant returned to Pakistan on a Titre de Voyage, granted by the Australian authorities to enable him to travel outside of Australia. His return to Pakistan did not necessitate, apart from his initial entry and exit, contact or assistance of any kind from the Pakistani authorities.

15. The Tribunal notes the comments by the UNHCR that each case should be “judged on their individual merits” and considers that the applicant’s circumstances and his conduct whilst he returned to Pakistan are relevant in determining whether he breached s.101 of the Migration Act. When asked by the Tribunal why he returned to Pakistan, if he feared execution or imprisonment, the applicant stated that he only returned because of compassionate grounds. His father was in poor health and has [medical conditions]. Although his mother is only [age] years of age, the average life expectancy in Pakistan is 60 years of age, and she is also in poor health. The applicant’s parents also wanted him to marry someone of the Ahmadi faith in Pakistan and they had arranged for him to marry his current wife. The applicant stated that he returned to Pakistan for the first time in March 2015 and he was married some five days later. When asked about his wife’s comments during the interview in relation to the Partner visa application that he attended the Jumma mosque whilst in Pakistan, which indicated that he did not have to suppress his religious beliefs, the applicant stated that the “Jumma mosque” his wife referred to means praying at someone’s home on a Friday, as he had previously described to the Tribunal. The applicant stated that whilst they may refer to it in that manner, the “mosque” is simply rented private premises because members of the Ahmadi community are not permitted to have their own mosques.

16. The applicant also told the Tribunal that when he was in Pakistan he met relatives of himself and his wife and some friends, but he did not associate with anyone outside of the Ahmadi community because he could not trust even former friends or associates to not divulge that he had returned to Pakistan. The applicant also avoided participating in activities such as attending prayers too often or anything that would bring himself to the attention of the Mullahs or extremists who had threatened him in 2008. The applicant stated that when he returned to Pakistan he had been out of the country for some seven years and the persons who had previously targeted him not have known he had returned to Pakistan because they would not have expected that he would do so. The applicant also stated that he believes there is a difference between visiting for short periods and living in a place, and he was aware that if he stayed in Pakistan permanently he would at some point again come to the attention of the people who had threatened him in the past. The Tribunal also asked the applicant about his claims to fear imprisonment or execution, to which he stated that whilst in Pakistan he was moving around and he would go in and out of Lahore and he would only stay there for a few days at a time. The applicant stated that when he was living in Pakistan permanently he had also moved from place to place when he was threatened.

17. The representative submitted that the applicant was granted a Protection visa in August 2012, and had not previously expressed any intention to return to Pakistan. The applicant did not want to return at any time. He obtained a travel document to return to Pakistan approximately three years after he was granted a Protection visa and returned only for compassionate reasons because of the ill health of his parents, and their desire to see him married, given he was at that time in his early [age]. The representative submitted that the applicant was willing to take the risk to return to Pakistan, not only because he was not going on a permanent basis, but also because he had not been in the country for seven years and the “elements” who had previously sought to harm him would no longer be vigilant in terms of their expectation that he would return to Pakistan. The applicant did not remain in the one location and travelled to different locations to ensure he did not come to their attention. He also avoided contact with friends or acquaintances not part of the Ahamdi community. The representative also submitted that the fears the applicant has as someone who is a “casual visitor” are different to those he would have as an Ahamdi who lived in Pakistan permanently, because the latter would require him to find work, support his wife and practise his religion. He submitted that it is important that a distinction be drawn in relation to the applicant’s willingness to return to Pakistan temporarily as a visitor who has permanent residence in Australia, and one who is required to live in Pakistan permanently.

1. The Tribunal accepts the applicant’s evidence and his representative’s submissions in relation to not only the manner in which he modified his conduct to avoid harm whilst in Pakistan, but also his reasons for returning to Pakistan. The Tribunal also accepts that although the applicant’s wife’s evidence to the Department for the Partner visa application indicated that he attended “Jumma prayers”, that he in fact visited only relatives or persons within the Ahmadi community, restricted his movements and the attendance at a “Jumma mosque” was as he described, which was essentially prayers at the private home of a member of the Ahmadi community, in accordance with the continuing severe restrictions placed on Ahamdi places of worship in Pakistan. The evidence set out above establishes that the existence of ‘Anti-Ahmadi’ laws severely inhibits its followers’ ability to practise in Pakistan, and Ahmadis are required to modify their behaviour for fear of harm. The Tribunal is satisfied that the applicant was willing to modify his religious activities for the relatively brief periods he resided in Pakistan. The Tribunal is satisfied that the applicant’s willingness to do so does not detract from the fact that he is a person to whom Australia owes Protection obligations and who genuinely fears harm on the basis of his religion. The High Court has found in S395/2002 v MIMA[5] that the need to act discreetly to avoid the threat of serious harm for a Convention reason may in itself constitute persecution. In that case, the High Court found that an applicant cannot be required to take steps, reasonable or otherwise, to avoid offending his or her persecutors or to modify some attribute or characteristic to avoid persecution. According to S395 v MIMA where an applicant may avoid persecution by acting discreetly or otherwise modifying their behaviour, the decision-maker must consider why the applicant will act in that way; and what would happen to the applicant if she or he did not do so. If the reason for the modification is the applicant’s fear of persecution, and that fear is well founded that person may be a refugee within the meaning of Article 1A(2).

   [5] 2003 216 CLR 473 per McHugh and Kirby JJ at [40].

2. The Tribunal also considers that it is relevant that the applicant’s claims made for protection in 2012 to the Department were made on the basis of his experiences prior to 2006 when he left for [Country 1], and again when he returned to Pakistan in 2008, when he again experienced threats of harm. The applicant made claims in 2012 to continue to fear harm on the basis of his experiences in Pakistan some four years earlier, as well as on the basis of his knowledge of the situation for the Ahmadi community more generally, and as a result of one of as the application for blasphemy laws against Ahmadis. The Tribunal accepts that the applicant returned to Pakistan at a time that he was aware that the persons who had previously threatened, targeted him and severely compromised his ability to study and reside safely in Pakistan, did not expect him to return. The Tribunal accepts that when the applicant returned to Pakistan twice in 2015, although it was for a relatively lengthy period of three months each time, that he did so as a visitor, and he did so some seven years after he had left Pakistan in 2008 at which time he had become known to extremists and had been targeted.

3. The Tribunal also accepts the applicant’s evidence as to his reasons for returning to Pakistan, which were to see his father and mother and to comply with their wishes that he marry his wife. The Tribunal accepts that having married in March 2015, that although the marriage was arranged that he and his wife quickly developed a close relationship and were anxious to be reunited on a second occasion and it was for that reason he again returned to Pakistan. The Tribunal accepts that it was as a result of these circumstances that he was willing to return to Pakistan, and take calculated risks to avoid alerting the persons who had previously targeted him to his return, and to modify the practise of his religion during that time. The Tribunal is satisfied that his willingness to do so does not detract from his initial claims that he was threatened by the Nabuwat and extremist Mullahs and feared execution and imprisonment by the application of the blasphemy laws.

4. Accordingly, the Tribunal is satisfied, having considered the applicant’s initial claims, the manner in which he subsequently elaborated on those claims, the circumstances of his return to Pakistan, and his reasons for returning, that the information he gave in the application form was not incorrect. The Tribunal is satisfied, therefore, that the applicant did not give incorrect information in 2012 when he claimed to fear execution, imprisonment and to have been threatened by the Nabuwat and extremist Mullahs. Accordingly, the Tribunal finds that there was not non-compliance with s.101 by the applicant in the way described in the s.107 notice. As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.

5. The Tribunal notes that there is a s.428 certificate (non-disclosure certificate) on the Department file. As discussed during the hearing, this relates to internal working documents and the Tribunal finds that the certificate is invalid.

   DECISION

6. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

   Susan Pinto
   Member

   
   

   ATTACHMENT – Relevant Extracts from the Migration Act 1958:

   5Interpretation

   (1)In this Act, unless the contrary intention appears:

   bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

   (a)     purports to have been, but was not, issued in respect of the person; or

   (b)     is counterfeit or has been altered by a person who does not have authority to do so; or

   (c)     was obtained because of a false or misleading statement, whether or not made knowingly.

   97Interpretation

   In this Subdivision:

   application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

   passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

   Note:Bogus document is defined in subsection 5(1).

   98Completion of visa application

   A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

   99Information is answer

   Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

   100Incorrect answers

   For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

   101Visa applications to be correct

   A non‑citizen must fill in or complete his or her application form in such a way that:

   (a)all questions on it are answered; and

   (b)no incorrect answers are given or provided.

   107Notice of incorrect applications

   (1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

   (a)     giving particulars of the possible non‑compliance; and

   (b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

   (i)if the holder disputes that there was non‑compliance:

   (A)shows that there was compliance; and

   (B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

   (ii)if the holder accepts that there was non‑compliance:

   (A)give reasons for the non‑compliance; and

   (B)shows cause why the visa should not be cancelled; and

   (c)     stating that the Minister will consider cancelling the visa:

   (i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

   (ii)if the holder gives the Minister a written response within that period—when the response is given; or

   (iii)otherwise—at the end of that period; and

   (d)     setting out the effect of sections 108, 109, 111 and 112; and

   (e) informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

   (f)     requiring the holder:

   (i)to tell the Minister the address at which the holder is living; and

   (ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

   (1A)The period to be stated in the notice under subsection (1) must be:

   (a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

   (b)     otherwise—14 days.

   (1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

   (a)     visas of a stated class; or

   (b)     visa holders in stated circumstances; or

   (c)     visa holders in a stated class of people (who may be visa holders in a particular place); or

   (d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

   (2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.