1708390 (Refugee)

1708390 (Refugee) [2021] AATA 2781 (18 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1708390
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:James Silva
DATE:18 May 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 18 May 2021 at 5:10pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – homosexuality – delay in protection application – fear of honour killing – family’s knowledge of sexuality – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65, 424A
Migration Regulations 1994, Schedule 2
CASES
Randhawa v MILGEA (1994) 52 FCR 437
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

The applicant is a man in his [age range] from Pakistan, who claims to be a citizen of Pakistan.
He arrived in Australia [in] March 2012 as the holder of a student visa. He applied for a protection (class XA) visa on 18 November 2016. On 16 March 2017, the delegate of the Minister for Home Affairs refused the application pursuant to s.65 of the Migration Act 1958 (the Act).
This is an application for review of that decision.
For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
CRITERIA FOR A PROTECTION VISA
The issue in this case is whether Australia has protection obligations in respect of the applicant. This occurs if the applicant meets the refugee criterion, and if not, if he is entitled to complementary protection. A summary and excerpts of the relevant law are at the attachment to this decision.
CLAIMS AND EVIDENCE
Protection claims
The applicant claims to be a gay man. He claims that someone in Australia informed his family in Pakistan and, after initial disbelief, they have since made credible threats to harm or kill him for having brought shame on the family. He also claims to fear harm at the hands of the Pakistan authorities (given that homosexual acts are illegal), religious authorities and the community at large.
The applicant claims that he will be unable to live openly as a gay man anywhere in Pakistan, given criminal law. He claims to fear persecution or significant harm at the hands of his family, religious extremists, the general community and the Pakistan authorities.
Background
The applicant is [an age] year old man from [Punjab] state, Pakistan. He identifies as a non-denominational Muslim. His languages are Urdu, English and Punjabi.
The applicant accompanied his family to [Country 1], where he attended kindergarten and school until 2008. On his return to Pakistan, he went to [a] School, completing Year 12 in [year].
The applicant’s parents and [siblings] live in [his home state]. His father had worked in [Country 1].On his return to Pakistan, he opened a [store] and later on, dabbled in [another industry]. The applicant claims to have no contact with his father in the past four or five years. He has occasional contact with his siblings. The applicant suggested that his rift with his family is linked with his protection claims.
The applicant holds a now-expired Pakistan passport. He said that his representative had advised him against approaching the Pakistan authorities to renew it, and that, in any event, he anticipated some problems because his Pakistan ID card was no longer valid.
The applicant entered Australia on a student visa in 2012. As noted in the delegate’s decision record, the Department cancelled this visa in November 2015, and the AAT affirmed the decision in October 2016. The applicant lodged his protection visa application one month later.
The applicant told the Tribunal that he studied for about three years, but did not have certificates or other evidence of his participation. He spoke vaguely about his activities in Australia, stating that he was new to Australia; that he attended college and worked on assignments; and that he otherwise mainly socialised with other young men from South Asia. He said that he had lived in share houses with South Asians and other non-citizens, and worked mainly in [workplaces].
Evidence
The evidence before the Tribunal includes the following relevant material:
§ The applicant’s protection visa application form, lodged on 17 November 2016. The applicant included on Form 866C his reasons for seeking protection (partly typed, partly handwritten).
§ A statutory declaration dated 13 March 2017 with a more detailed account of the applicant’s protection claims.
§ The file includes screenshots of some [social media] pages, which the delegate appears to have found and placed on file.
§ The applicant provided a partial photocopy (biodata page only) of his Pakistan passport, issued in [2010] and valid until [2015].
§ The applicant attended a protection visa interview (‘Department interview’) on 15 March 2017. The Tribunal has listened to the audio recording of the 39-minute long interview.
§ The protection visa assessment (delegate’s decision record) of 16 March 2017, a copy of which the applicant submitted to the Tribunal.
§ The review application form, lodged on 18 April 2017. On 15 February 2021, the applicant forwarded to the Tribunal a copy of the delegate’s decision record.
§ The Tribunal received the following materials on 21 April 2021:
-   Pre-hearing submission with a summary of the applicant’s claims and relevant country information.
-   The applicant’s supplementary statement dated 21 April 2021.
-   Statement of support by [Mr A].
-   Letter from [Organisation 1] (author not identified), dated 30 March 2021.
-   Series of screenshots from [dating site], an LGBTI[1] social networking and dating app, purportedly showing the applicant’s interactions with other app users (these do not appear to show the applicant’s name or any other identifier).
[1] The materials before the Tribunal variously refer to LGBTI, LGBTQIA+ and similar variants. The Tribunal uses the term ‘LGBTI’ for consistency and ease of reference.
The applicant appeared before the Tribunal on 27 April 2021, to give evidence and present arguments. The hearing was conducted in English, in which the applicant is fluent. The applicant’s representative[attended] the hearing. A Tribunal Member also attended as an observer, with the applicant’s consent. The Tribunal took evidence from the applicant’s witness, [Mr A].
Following the hearing, the Tribunal wrote to the applicant pursuant to s.424A, inviting his comments/responses in writing to information that would be the reason, or part of the reason, for affirming the decision under review. Essentially, the information related to his evidence at a hearing before the AAT in September 2016, in a matter relating to his student visa cancellation.
Emails dated 11 and 12 May 2021 contain a covering submission, the applicant’s comments/response to the information, and further supporting materials as follows:
§ Screenshots of emails addressed to the applicant relating to his purchase and use of gay social networking and dating apps, namely [dating site](March 2014), [dating site] (July 2014), [second dating site] (July 2012), [third dating site] (October 2014); and [fourth dating site] (January 2015).
§ A log of the applicant’s [social media] activity history (to show that he infrequently changed his profile, and that an earlier entry indicating his interest in women was not an accurate reflection of his sexual orientation).
§ Printouts of [social media] chat with [Mr A], covering the period January 2018 to January 2021, ranging from social exchanges to explicit material.
The Tribunal has before it a range of country information. This includes the Department of Foreign Affairs and Trade’s (DFAT’s) most recent country information report on Pakistan, dated 20 February 2019, which it is required to take into account under Ministerial Direction No.84. This includes a section ‘People who identify as LGBTI’[2]. The submission of 21 April 2021 includes a survey of recent country information about the treatment of LGBQIA+ individuals in Pakistan which is broadly consistent with the earlier DFAT assessment, and not in dispute in this matter.
[2] DFAT Country Information Report – Pakistan, 20 February 2019, paras. 3.217-3.227.
Receiving country
The applicant claims to be a national of Pakistan. He has held and travelled on Pakistan passports (although he does not currently hold one, on the advice of his representative), and his oral and documentary evidence is consistent with this claim. There is nothing to suggest he has the nationality of any other country.
The Tribunal is satisfied that the applicant is a Pakistan national, and assesses his protection claims against Pakistan as the receiving country.
CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS
Credibility of the applicant’s claims and evidence
The Tribunal has taken into account the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole.
The Tribunal notes the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal appreciates the need for particular care in assessing claims relating to sexual orientation. By their very nature, such claims involve private matters of self-identity, sexual conduct or other personal experiences. They may be difficult for applicants to substantiate and for decision-makers to evaluate; and they may touch on personal issues that are stressful and unresolved. The applicant alluded to such matters during the review, including social pressures.
The applicant gave his evidence in English, presenting as an articulate, confident person. He spoke fluently, but also tended to digress and repeat himself. This may have reflected some nervous energy at hearing, but the Tribunal also sensed that he avoided answering questions directly, or addressing inconsistencies or omissions in his evidence.
During the course of this review, the Tribunal flagged concerns about the applicant’s delay in seeking protection, more than four years after his arrival in Australia, and one month after the AAT affirmed the cancellation of his student visa. Also, there was a paucity of evidence about his protection claims earlier than March 2017, when the delegate refused the protection visa application on credibility grounds. Other specific concerns were: (a) his earlier online statement that he is interested in women; (b) his failure to mention any fear of persecution or significant harm during the course of his student visa cancellation, including at an AAT hearing just two months prior to his lodgement of his protection visa application; and (c) inconsistent statements in his protection visa application (lodged in November 2016) and his later statutory declaration (March 2017) as to whether his family knew about his sexuality, and whether they had made threats towards him.
In the submission of 11 May 2021, the applicant’s representative wrote: ‘Ultimately, we submit any significance attributed to [adverse information] should be weighed against the substantial amount of evidence … provided by the Applicant as to his sexuality, including the evidence … demonstrating that the Applicant was using gay dating apps as early as 2012’. The Tribunal acknowledges and takes this point into account.
While the Tribunal accepts as plausible that the applicant is a gay man, as claimed, it considers that he has done himself few favours by presenting claims that in its view are untruthful.
The applicant’s sexual orientation
At hearing, the applicant spoke emphatically about the challenges he had in coming to terms with his sexuality and disclosing it to others, in Pakistan and to some extent in Australia. This reflected in part the taboos and family pressure he experienced in Pakistan; his socialising mainly with other South Asian men in Australia; and his own personality (for instance, his early caution about meeting men through dating apps).
The assessment below addresses the applicant’s experiences in Pakistan; his activities in Australia (including online activities, visits to gay venues and contacts with LGBTI individuals or groups); and the circumstances that led him to seek protection in Australia in late 2016.
Experiences in Pakistan
Original statement: The applicant wrote that he felt same-sex attraction in Pakistan, but never ‘came out of the closet’. He described his family’s conservative values and harsh discipline, such as beatings, and his fear that they would react violently if they discovered he is gay. He wrote that one friend, a fellow student, was gay. He was the applicant’s ‘secret bf’[sic]. Some other students once beat him up when he expressed support for his gay friend.
Statutory declaration: The applicant wrote that while in boarding school (when he was between [age range] years old), he noticed his attraction to boys. He said that, at boarding school and later when he moved back in with his parents, he continued to have feelings for men. However, he never acted on them, as he realised it would have been too dangerous. At the Department interview, the applicant briefly restated these claims.
At the hearing, the applicant confirmed that he felt attracted to men while growing up, but said he did not really identify as LGBTI, as there was no reference point for that in Pakistan. Asked about any contacts with or knowledge of LGBTI persons in Pakistan, he said that he had just heard some things in the news. He did not know anyone who was gay, and because of social taboos, could not confide in or trust anyone with his own feelings.
The Tribunal asked about the reference in the original statement to him having had a ‘secret boyfriend’ for whom he stood up. In reply, he spoke of a friend named [Mr B], in a separate class, with whom he had ‘clicked’. [Mr B] was somewhat more open and confident than the applicant. The applicant went on to say that they were both young at the time, and they did not really think of themselves as ‘gay’. They used to meet between classes, and sometimes go to secluded spaces like a sportsground. He said they used to ‘interact’, suggesting that this was initially as close friends and later on some degree of physical intimacy. The applicant said vaguely that he believes [Mr B] went to [another country], and has now returned to Pakistan and married. He did not think [Mr B] had ‘come out’ as gay.
The Tribunal then asked about the reference to him (the applicant) having been beaten up for supporting a gay student (presumably [Mr B]). In reply, the applicant recalled that [Mr B] had once hinted to a friend that he was interested in men. The news soon spread. The other students labelled and bullied [Mr B], despite his protestations that he was not gay. One day, the applicant came to [Mr B]’s defence during a fight in a carpark. The assailants then turned on the applicant, and bashed him, for defending a gay person.
Assessment: The applicant’s description of coming to terms with his sexual identity and dealing with social pressures in Pakistan is plausible, and possibly a reflection of his own experiences.
However, he gave inconsistent evidence as to whether or not he met any LGBTI individuals in Pakistan, whether or not he ‘acted on’ his feelings (i.e. sexual or other intimate contacts); and whether or not he had any specific adverse experiences. The discussion at hearing involved straightforward questions, and the applicant’s evidence was changeable. The Tribunal has considered his explanations for his inconsistent statements - that he did not think of his contacts with [Mr B] in an ‘official manner’, and that they did not really identify as ‘LGBTI’ – but finds them contrived and unconvincing. Moreover, they fail to explain the applicant’s contradictory oral statements, within a short space of time, first that he only knew about homosexuality through hearsay and the media, and later that he knew [Mr B] as a more open person. The Tribunal accepts that the applicant may have engaged in some sexual activity in Pakistan, but it does not accept his account of his contacts with [Mr B], or that they were subject to bullying (including assaults) at school.
The applicant’s activities and profile in Australia
The applicant described his sense of relief when arriving in Australia in 2012, to be in a place where he could act more independently, without scrutiny or family pressure. In the early years, he became aware of Australia’s liberal environment, but he mainly mixed with other South Asians, and was not open about his sexuality.
The Department interview
The Department interview in March 2017 was brief, and narrowly focused on issues such as whether the applicant had a gay partner or support from LGBTI groups, to which he stated ‘no’. He also said that he had not disclosed his homosexuality to close friends. While he claimed to have attended a previous Sydney Gay and Lesbian Mardi Gras, he did not have photographs or other evidence, and appeared confused about when it was in fact held. In the Tribunal’s view, the brief interview is of limited probative value, although overall the applicant did not impress.
[social media] profile
Asked at the Department interview about his [social media] profile, stating that he is ‘single, male, interested in females’, the applicant explained that he created the profile in Pakistan and had not updated it (although he had posted photographs from Sydney onto his timeline).
At hearing, the applicant explained that he entered the information about being ‘interested in women’ in Pakistan, in 2008. At the time, he was still not sure about his sexuality. He added that he has barely updated his profile since that time, only to give his place of residence as Sydney, and his places of work. After the hearing, he submitted a copy of his [social media] activity log, to support his claim that he only infrequently updated his personal information.
The Tribunal accepts, on the one hand, that people post inaccurate information on public social media profiles for various reasons (including to meet others’ expectations, or for humour). On the other hand, the applicant speaks English and appears IT-savvy, and the Tribunal does not accept that he thought he had to provide details (one way or the other) about his sexual orientation on his social media profiles, or that he overlooked it when changing his profile information or photographs. In the Tribunal’s view, the profile page tends to undermine the applicant’s claims.
Delay in seeking protection, and information given at the AAT hearing in September 2016
The applicant arrived in Australia in March 2012, but did not seek protection until November 2016, more than 4½ years later. This delay raises significant questions about his need for protection, and potentially the credibility of his claimed homosexuality.
The applicant’s evidence to the AAT on 13 September 2016, at a hearing during a review application of his student visa cancellation, compounds these concerns. A key issue during that review was whether there were reasons why he could not return to Pakistan. He gave two reasons for being unable to go back – his family’s intense disappointment if he returned to Pakistan without having achieved a qualification in Australia; and a financial dispute between his father and an uncle and cousins, in which the applicant was implicated. In addition, the applicant promised that if he were granted a student visa and failed to comply with the visa conditions, he would agree to return to Pakistan. There was no mention of any fear of persecution or significant harm in Pakistan (for reasons of sexuality or for any other reasons), and no mention of harm from his family, the Pakistan authorities or others.

The applicant and his representative addressed these concerns in the pre-hearing ‘supplementary statement’ and the response to the Tribunal’s s.424A letter. Essentially, he claimed that, despite his fluent English and education, he was not familiar with Australian migration law and was not aware that he could seek protection on the basis of his homosexuality. He went on to explain that, at that point, he had not engaged with LGBTI advocacy groups and did not know many people in the LGBTI community.
The Tribunal finds the delay in seeking protection significant, as the applicant had the language skills and education to at least make enquiries, with the Department or others. His evidence at the AAT hearing in September 2016 is even more problematic. In his response to the Tribunal’s s.424A letter, the applicant stated that he felt it ‘wasn’t appropriate to talk about his fears regarding his sexuality’, as this was his problem to deal with. He again alluded to his lack of knowledge of the availability of protection for LGBTI people. The Tribunal finds this unconvincing. As noted above, he declared various family issues preventing his return and even promised to return to Pakistan if he failed to abide by the conditions of his student visa. He gave no hint of fearing more serious harm, for any reason or from any source. The Tribunal does not accept that the applicant’s reluctance to discuss or disclose his sexuality adequately explains these omissions.
Evidence relating to the applicant’s homosexuality, prior to 2017
During this review, the Tribunal signalled the potential value of evidence relating to the applicant’s homosexuality that pre-dated his lodgement of the protection visa application in November 2016, to displace any concerns that he may have set about gathering evidence after the Department’s visa refusal in March 2017.
The applicant claimed that after arriving in Australia, he started to explore his sexuality, for instance by accessing materials online (he referred specifically to [dating site], and occasionally going to clubs on Sydney’s Oxford Street. He said that, although he went online, he was hesitant about meeting people in person or joining support groups at that stage. He attributed this to his background, coming from a society where homosexuality is taboo and there is a reluctance to access support services. He claims to have told a few friends about his sexuality, in particular one who worked as [an occupation] on Oxford Street, who used to offer him a lift home. The Tribunal found the applicant’s evidence as to what exactly he did, and when he undertook these activities, to be vague. His repeated references to the conservative nature of Pakistani society, and its impact on him, came across as rehearsed.
Following the hearing, the Tribunal received a number of documents from the period before 2017, all of which relate to gay social networking and dating apps, and are addressed to the applicant using his [email] address. These are:
§ Email from [a second email], advising of new chat messages in the [second dating site] app, in July 2012.
§ Copy of an iTunes receipt for the purchase of the [dating site]app, in March 2014.
§ Email for the re-setting of the applicant’s [dating site] account password, in July 2014.
§ Email from [third dating site] with promotional material, in October 2014.
§ Email from [fourth dating site] with promotional material, in January 2015.
An independent online search of the identifiers linked with the applicant has produced results showing his activity on other gay-related websites, including explicit material. The Tribunal places considerable weight on this as evidence that the applicant was exploring his sexuality, and that he identifies as gay.
More recent evidence
The applicant also provided more recent evidence relating to his sexuality. This includes:
§ Attending gay venues on Oxford Street, and the Sydney Gay and Lesbian Mardi Gras: The applicant mentioned his occasional visits to these events. In the pre-hearing submission, he explained that he did not embrace ‘gay culture’, in part due to his experiences in Pakistan and also because he did not find the gay community supportive.
§ LGBTI social or support groups: The applicant wrote that an important part of his ‘coming out’ was his disclosure to [Organisation 1]) of his sexuality, in the course of lodging his protection visa application. He provided an unsigned letter of support from the [Organisation 1]’s ‘LGBTIQ Peer Support Group’, describing its role in supporting asylum seekers who have concerns about their stigma and safety, and describing the applicant’s participation in various activities since November 2018.
§ The Tribunal explored with the applicant whether his friends, housemates, work colleagues or others might be aware of his sexuality (including if he had disclosed it to them); or whether he had other relevant evidence. He responded that some of his contacts might know that he is gay.
The Tribunal found the applicant’s evidence overall weak. With the exception of his contacts with [Mr A] and another man (see paragraph 52 below), he did not appear to engage seriously in exploring what detail or corroboration there might be to support his claims, but focusing instead on why there was none. In relation to the [Organisation 1], his recent claim to have come out to them during the course of making his protection visa application (i.e. around November 2016) does not sit well with his evidence at the Department interview (in March 2017) that he had made no contact with LGBTI support groups. Rather, it appears that he contacted the [Organisation 1] following the delegate’s decision. This in turn suggests that he did so, not to seek support as a gay person, but rather to address a concern raised in the delegate’s decision record.
In relation to the [Organisation 1] letter, the Tribunal accepts that the applicant has associated with the LGBTIQ Peer Support Group and participated in various activities. However, it places no weight on it as independent corroboration as to the applicant’s sexuality. First, the letter does not identify its author. Second, there is no supporting evidence (such as photographs or correspondence) to provide context for these activities. Finally, the letter merely indicates that the applicant has sought the company and mutual support of other persons seeking protection on the basis of their sexuality. It is unclear whether participants are subject to any evaluation as to the genuineness of their claims. And it is also unclear why the applicant, a fluent English speaker who has lived, studied and worked in Australia for a number of years, engaged with the LGBTI community primarily in the context of seeking asylum.
The applicant and [Mr A] gave reasonably detailed and consistent accounts of their relationship, initially sexual encounters from January 2018 and, over time, a platonic friendship. They supported this with a 79-page transcript of their [social media] chat history, which shows the intimate nature of their links. In other evidence, the applicant spoke about a former casual relationship with a former colleague[and] confirmed his readiness to speak to the Tribunal. At hearing, he also named some other colleagues who are aware of his sexuality; and that some of his friends and housemates know, but do not discuss or make an issue of it. All of this material amounts to persuasive evidence of the applicant’s homosexuality.
Family’s discovery of his sexuality
The Tribunal accepts that a LGBTI person’s ‘coming out’ to their family is a significant, and in many cases, a traumatic event. In his original statement (November 2016), the applicant expressed concerns about his parents’ and family’s reaction if they were ever to discover he is gay. He wrote, for instance, of his fears of being subject to an honour killing ‘if anyone within my family or even my social circle found out about my sexual orientation’. In other words, in November 2016, he based his fears on the future possibility of his family learning about his sexuality.
In his statutory declaration (March 2017), the applicant claimed that already in the latter half of 2015, his parents had unexpectedly confronted him and asked if he was gay. He surmised that one of his friends in Sydney must have contacted them and informed them. The applicant initially denied being gay, but eventually told his parents about his sexuality. Over the following week or ten days, his parents tried to ‘convince [him] to change’. They then suggested the idea of an arranged marriage, which the applicant rejected. His parents’ tone then became threatening, and they accused him of bringing shame on the family. The applicant knew this was tantamount to a threatened honour killing.
The applicant claimed that his parents must have told other family members. Two cousins, one of whom was religious and had links with militants, threatened him more directly with an honour killing. They also threatened to get the religious authorities involved, meaning that the entire community would be licensed to harm the applicant.
At hearing, the applicant restated that his parents learned about his sexuality in 2015. The Tribunal explored aspects of this claim:
§ The applicant said that his parents had pressed him about his sexuality, because his friend had told them that the applicant had told him in person. In other words, they did not regard it as ‘hearsay’.
§ The applicant said that he initially tried to dismiss the suggestion, by saying that he did not know and perhaps someone had a grudge against him. In truth, however, he was feeling emotional and worried.
§ Asked who might have gone to the trouble of contacting his parents, the applicant said that his parents did not name the person, and he did not enquire and had not thought about it much. He said that some of his friends have his parents’ contact details; this is a common precaution, in case friends need to contact his family members. In response to the Tribunal’s observation that this person had committed a huge breach of trust and potentially put him in harm’s way, the applicant said that there was no point in confronting the person, as they would simply deny it anyway. He thought that the person might have just let it slip (implicitly, during the course of talking to his parents about some other topic). The Tribunal formed the strong impression that the applicant was not drawing on personal experience at all, and in fact had not turned his mind to what would happen if a friend in Sydney had ‘outed’ him to his family.
The applicant recounted his parents’ reactions in the subsequent weeks and months – initial disbelief, then suggestions it could be a passing phase, then attempts to ‘assist’ him, and later concerns about the applicant’s welfare and the family’s honour. He recalled that after perhaps two or three months, their threats became ‘very explicit’. The applicant said that his brother had been present in some of the calls, and he also spoke to him directly.
Asked how the news of this spread further, among his extended family, the applicant that he started to receive calls from others. He suspects that his mother was adversely affected by his news, and confided in her sister, who in turn may have told his two cousins. Again, the Tribunal was struck that the applicant did not appear to have enquired about this (for instance, from his younger siblings), or indeed to have even turned his mind to it.
In his response to the s.424A letter and post-hearing submission, the applicant claimed that he ‘does not recall stating at any point that his family were not aware of his sexuality at the time of his protection visa application’, and surmised that there was some confusion between his ‘immediate family’ and ‘extended family’. The submission also points to the consistency of the applicant’s claim about his family’s knowledge since his statement of March 2017. However, this does not overcome the Tribunal’s concerns regarding this inconsistency.
Taking all of the above concerns together, the Tribunal does not accept that the applicant’s family knew about his sexuality, or have made threats against him. However, it accepts that he may fear that they would do so if they indeed were to find out.
Findings of fact
The Tribunal accepts, albeit with reservations, that the applicant identifies as a gay man, and is a member of a particular social group consisting of ‘male homosexuals in Pakistan’. It places particular weight on the applicant’s evidence of his relationship with [Mr A], his encounters with other men, and his online activities (including social networking and dating apps). It accepts he had some difficulties coming to terms with this in Pakistan, and after his arrival in Australia. It does not accept that he was assaulted in Pakistan (while defending his friend [Mr B]); that his family has received news from friends in Australia confirming that he is gay; or that he has been subject to intrusive questioning, pressure or threats from his immediate or extended family, or anyone else. It accepts, however, that his visa status in Australia and possible marriage have been topics of discussion with his family. It also accepts that the applicant is genuinely apprehensive about his prospects as a gay man if he were to return to Pakistan, or the measures he would have to take to conceal his sexuality.
ASSESSMENT: REFUGEE CRITERION
The Tribunal now assesses whether, in light of the above findings of fact, and having regard also to any other relevant factors, such as country information and the applicant’s future conduct, he has a well-founded fear of persecution within the meaning of s.5J. He must face a real chance of persecution; it must be for one or more of the reasons set out in s.5J(1)(a); and the real chance of persecution must relate to all areas of the receiving country.
For the reasons stated above, the Tribunal accepts that the applicant identifies as an LGBTI person, although it does not accept that his family have learned about his sexuality, confronted him about it and made explicit threats to harm him; or that he had other adverse experiences in Pakistan.
Asked about his future plans if he were to return to Pakistan, the applicant said that he had no idea. He thought he would initially go back to his home area. He added that he has family all over Pakistan (implying that he would be at risk of persecution or significant harm throughout the country).
DFAT’s most recent country information report on Pakistan[3] contains an assessment of the treatment of LGBTI individuals, including gay men. The report is now over two years old, and the Tribunal has checked other reliable sources from the period 2013-2021.[4] Although much of the reporting focuses on the treatment of the more visible transgender community, there is detailed and fairly consistent reporting about the situation for gay men. The key points are:
§ Homosexual acts are a criminal offence in Pakistan, punishable by fines or imprisonment (up to life). In addition, gay men can find themselves charged with other offences, such as ‘obscene acts’. Prosecution for such activity is said to be rare.
§ Male-to-male sex is reportedly commonplace and occurs in many settings. Sources indicate that young men who are discouraged from having girlfriends sometimes have casual sex with friends or relatives, although married and older men also engage in such activities.
§ However, this is a taboo topic. As DFAT puts it: ‘Strong and widespread cultural, religious and social intolerance of homosexuality means it is not widely discussed or acknowledged in Pakistan.’ Similarly, the 2013 BBC article ‘Gay Pakistan: Where sex is available, and relationships are difficult’ quotes one man in Karachi as stating: ‘Sex between men will be overlooked as long as no-one feels that tradition or religion are being challenged. At the end of it all, everyone gets married to a member of the opposite sex and nothing is spoken about.’
§ These sources also indicate that LGBTI persons rarely identify their sexuality in public, and that they can face hostility from their families, including outright rejection and violence. While the outlook for LGBTI persons in wealthy urban settings is more positive, they still face high levels of discrimination, including forced heterosexual marriages ‘to preserve the family’s reputation and social standing’ (DFAT).
[3] DFAT, Country Information Report – Pakistan, 20 February 2019
[4] The Tribunal has also consulted the following sources (set out in chronological order): British Broadcasting Corporation online, Gay Pakistan: Where sex is available and relationships are difficult, 27 August 2013: Cyril Almeida (Assistant Editor of Dawn, European Asylum Support Office Pakistan Conference, p.45, 16-17 October 2017, Cyril Almeida, Assistant Editor of Dawn, 16-17 October 2017: Vice, Three Artists Tell Us What It’s Like To Be Queer, Muslim and Pakistani: 27 June 2019: US Department of State: Country Reports on Human Rights Practices for 2020 - Pakistan', March 30, 2021:
The Tribunal accepts as reliable, and consistent with other sources, DFAT’s overall assessment of the outlook for LGBTI persons in Pakistan, including gay men: ‘[…] 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.’ [Tribunal emphasis]
The Tribunal accepts as plausible that, while the applicant’s main interests in Australia have been casual sex and friendships with men, and some limited socialising in gay venues, he may well identify more openly as an LGBTI person, and seek a stable domestic relationship in the future. Country information indicates that there is a high risk of such overt identity as an LGBTI person attracting adverse attention from one’s family and community.
The Tribunal accepts that the applicant genuinely fears persecution if he returns to Pakistan (s.5J(1)(a)). Section 5J(1)(b) requires that there must be a real chance of persecution. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. Having regard to country information about the treatment of gay men in Pakistan, the Tribunal accepts that there is a real chance of the applicant facing serious harm amounting to persecution. Given the prevalence of anti-gay sentiment throughout Pakistan, the real chance of persecution relates to all areas of the country. The Tribunal finds that the applicant meets s.5J(1).
The Tribunal accepts that there exists a particular social group consisting of ‘male homosexuals in Pakistan’, of which the applicant is a member. Country information indicates that, in Pakistan, this group consists of those men who identify as gay and seek relationships on this basis (not merely men who have casual sex with other men). The Tribunal finds that the applicant’s sexual orientation is a characteristic that he shares with other members of the group, that it is an innate characteristic, and that it is not based on a fear of persecution: s.5L. The Tribunal is satisfied that the applicant’s membership of this particular social group is the essential and significant reason for the feared harm: s.5J(4)(a). It is also satisfied that the applicant faces a real chance of one or more of the following forms of harm: rejection by his immediate and extended family; threats; societal and official discrimination; physical violence and/or extortion or threats of prosecution by police. The Tribunal finds that such harm constitutes serious harm amounting to persecution, having regards to the instances cited in s.5J(5); and it finds that this involves systematic and discriminatory conduct. The applicant therefore meets s.5J(4).

Section 5J(2) provides that person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country. The US State Department (as recently as 30 March 2021) and other sources note that crimes against LGBTI persons often go unreported, and ‘police generally took little action when they did receive reports’. While there is some limited country information about LGBTI support groups in Pakistan, there is nothing to suggest that they have the resources to provide an effective level of protection against anti-gay violence. The Tribunal finds that there are no effective protection measures available to the applicant, within the meaning of s.5J(2).
Section 5J(3) 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. However, this does not apply to a modification that would (among other things), require the person to alter their sexual orientation or gender identity, or conceal their true sexual orientation, gender identity or intersex status: s.5J(3)(c)(vi). Country information suggests that many gay men in Pakistan marry women to appease their families, while continuing to have casual encounters with other men. In the present case, the applicant cannot be required to conceal his homosexual identity or forego the option of having a gay relationship, in order to avoid a real chance of persecution. Section 5J(3) therefore does not apply to his circumstances.
Section 36(3) provides that, subject to certain exceptions, Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail themselves of a right to enter and reside in any country apart from Australia. There is no evidence that the applicant has a right to enter and reside in any country apart from Pakistan.
In sum, the Tribunal is satisfied that the applicant has a well-founded fear of persecution within the meaning of s.5J, based on his membership of a particular social group (male homosexuals in Pakistan). It finds that he is outside his country of nationality, Pakistan, and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself of the protection of that country. He is therefore a refugee within the meaning of s.5H.
CONCLUSION
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
James Silva
Member

ATTACHMENT – RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Extract from Migration Act 1958
5 (1) Interpretation
…
receiving country, in relation to a non-citizen, means:
(a)    a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)   if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H   Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)    in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)   in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:    For the meaning of well-founded fear of persecution, see section 5J.
…
5J    Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)    the real chance of persecution relates to all areas of a receiving country.
Note:    For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:    For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)    without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)    the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)    a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)    significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5L   Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)    a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)    any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)   the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)    protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)    the person can access the protection; and
(b)   the protection is durable; and
(c)    in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36    Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)   a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)    a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)    the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)    the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)    the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)    it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)    the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2021] AATA 2781

18 May 2021

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness