1713289 (Refugee)

1713289 (Refugee) [2022] AATA 1736 (14 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1713289

COUNTRY OF REFERENCE: Pakistan
MEMBER:Scott Clarey
DATE:14 April 2022
PLACE OF DECISION: Melbourne
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 14 April 2022 at 5:17pm

CATCHWORDS
REFUGEE – protection visa – Pakistan – religion – Mormonism – The Church of Jesus Christ of Latter-day Saints – particular social group – Christian converts from Islam – blasphemy laws – fear of killing – familial and communal violence – mental health issues – delay in applying for protection – internal relocation – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2
CASES
MIMA v Respondents S152/2003 (2004) 222 CLR 1
Randhawa v MILGEA (1994) 52 FCR 437
SZATV v MIAC (2007) 233 CLR 18
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a protection visa under

s 65 of the Migration Act 1958 (the Act).
The applicant ([named]), who is a citizen of Pakistan, applied for the visa on 26 November 2014. On 31 May 2017, a delegate of the Department of Immigration and Border Protection, now the Department of Home Affairs (the Department), refused to grant the visa. On 22 June 2017, [the applicant] applied to the Tribunal for the review of this decision. [The applicant] provided the Tribunal with a copy of the delegate’s decision record.
I note that the process for hearing this case suffered from significant delays, including due to the multiple (and prolonged) lockdowns and restrictions imposed in Victoria by the State government related to the COVID-19 pandemic over the last two years. Due to the complexity and sensitivity of the matters raised by this case, and the particular circumstances of the applicant, this case was not deemed appropriate to be progressed through remote hearings, and that in-person hearings were required. I note that for extended periods over the last two years (and often at very short notice) the Tribunal was unable to hold in-person hearings due to COVID-19 restrictions that were imposed by the State government of Victoria. I note also that multiple scheduled hearings were cancelled/postponed at the applicant’s request for various valid reasons.
[The applicant] first appeared before the Tribunal on 4 March 2020 to give evidence and present arguments. After an extended period of lockdowns in Victoria, a second hearing was scheduled by the Tribunal for 15 July 2021. A request for postponement of this hearing was received by the applicant’s representative and the Tribunal ultimately accepted this request. The hearing was rescheduled for 22 July 2021 however this hearing was also subsequently cancelled due to the reimposition of COVID-19 restrictions in Victoria by the State government. The hearing was again rescheduled to 8 August 2021 but another request was received from the applicant’s representative to postpone the hearing to a later date. The Tribunal accepted this request and the hearing was rescheduled for 24 November 2021. A second in-person hearing was held on 24 November 2021. I note that this hearing was held at the earliest available opportunity upon the resumption of in-person hearing services at the Melbourne Tribunal registry following the lifting of both State and organisational COVID-19 related restrictions during that period.
I note that in a post-hearing submission dated 1 December 2021, the applicant’s representative gave updated submissions relating to [the applicant’s] mental health. In this submission, the applicant’s representative requested that the Tribunal delay making its decision until further evidence from [the applicant’s] new treating psychiatrist could be obtained and submitted to the Tribunal (this issue is discussed further below). I also note that on 25 January 2022, a new Department of Foreign Affairs and Trade (DFAT) country information report on Pakistan was published. Given that significant new information was contained in the report, including relating to the issue of blasphemy in Pakistan (discussed further below) and the highly fluid political climate in Pakistan that was potentially relevant to [the applicant’s] case and claims, it was initially deemed that a third hearing was necessary to discuss these issues and events with [the applicant], in addition to discussing issues relevant to [the applicant’s] mental health and treatment subsequent to the second hearing. After reviewing all of the information before the Tribunal relating to [the applicant’s] case, including the fluid and rapidly evolving current political and security situation in Pakistan (that has included the collapse of the Pakistan central government in recent weeks), I have concluded that a third hearing is no longer necessary and that a favourable decision can now be made.
The applicant was represented in relation to the review by his registered migration agent. The Tribunal hearings were conducted with the assistance of an interpreter in the Urdu and English languages.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this review are whether [the applicant] has a well-founded fear of being persecuted for one or more of the five reasons enumerated in the Convention and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to his receiving country of Pakistan, there is a real risk that he will suffer significant harm.
Identity
On the basis of the copy of [the applicant’s] Pakistani passport provided to the Department, I accept that the applicant is a citizen of Pakistan and that his identity is as he claims it to be. I accept that Pakistan is [the applicant’s] country of nationality for the purposes of the refugee assessment and the receiving country for the purposes of the complementary protection assessment.
Relevant background
[The applicant] is [an age]-year-old man who was born in the central Punjab region of Pakistan on [date]. He claimed that he was raised a Sunni Muslim in Pakistan but converted to Mormonism while in Australia. He was baptised into The Church of Jesus Christ of Latter-day Saints (LDS Church) in December 2014. [The applicant] stated that he [had specified family members]. His parents were both alive at the time of making the protection visa application. He claims to be in regular contact with his family in Pakistan. In his protection visa application, [the applicant] indicated that he could speak, read and write in both the English and Urdu languages. According to his protection visa application, [the applicant] graduated high school and went on to do further study at named tertiary institutions, graduating with qualifications in [specified subjects] between [specified years]. He did not claim to have ever married nor have any children. According to information on the Department’s file contained in the Department’s decision record, [the applicant] arrived in Australia [in] May 2012 on a [Student visa], which was granted on 11 May 2012 and which was valid until 15 March 2016. This visa was cancelled on 4 September 2013 when [the applicant] failed to re-enrol in his course. He appealed this decision which was ultimately affirmed by the Tribunal on 5 February 2014. [The applicant] then lodged an application for Ministerial Intervention. The case was not considered. He applied for a Protection visa (Class XA Subclass 866) on 26 November 2014, which is the subject of this review.
Claims from the protection visa application
[The applicant] set out his claims for protection in his application form as follows:
Q43:I am seeking protection in Australia so that I do not have to go back to:
A: Pakistan
Q44:Why did you leave that country?
A:To study in Australia
Q45:Have you experienced harm in that country?
A:No
Q46:What do you fear may happen to you if you return to that country?
I have converted to Christianity & left Islam. I am now a Mormon.
I will be accussed of blasphemy and I will be subject to harassment, threats and attacks by extremists because of my abandonment of Islam.
I will be in danger of inprisonment
Once it is known I have left Islam I will need to go into hiding or leave Pakistan
I will be dis-owned by my family and in danger of been killed by family members for blasphemy against the prophet and Islam and for bringing shame to the family
Q47:Who do you think may harm/mistreat you if you go back?
A:I am open to vigilantism from many quarters; including my family.
Any Pakistani Muslim who feels his or her religious feelings have been hurt, directly or undirectly, for any reason by a Pakistani citizen can accuse blasphemy and open a criminal case against that person. Frequently the agrieved person takes the law into their own hands.
Q48: Why do you think this will happen if you go back?
A:The vast majority of Pakistanis believe that converting from Islam is a religious crime punishable by death. Pakistan’s law carrys the death penalty for blasphemy.
Most Pakistanis consider leaving Islam is blasphemy.
There is no right to convert from Islam to another religion in Pakistan and the question defaults to Sharia law and this requires the death penalty.
Many people who have left Islam or who while they have not left Islam have been accused of leaving Islam have been killed.
Violence against people who have left Islam is primarily from individuals or groups that operate with impunity from the government and government authorities most of who sympathise with the people taking the action
Q49: Do you think the authorities of that country can and will protect you if you go back?
A:The Pakistan Penal Code prohibits blasphemy against the Quran and defaming the prophet Muhammad.
The majority of police are Muslims and are against people who leave Islam. Even where police try to help those who have been accussed the accussed is likely to be put in solitary confinement for their protection from other inmates and their guards.
In making my decision, I have had regard to all of the information in the written submissions provided to the Tribunal on the applicant’s behalf and to the information in the Tribunal’s file and in the Department’s file provided to the Tribunal. I note that extensive new information is before the Tribunal that was not before the Department at the time the delegate made their decision to refuse the visa application.
Various comprehensive submissions have been made to the Tribunal by [the applicant’s] representative. These include:
·     a detailed submission from the applicant’s representative dated 12 March 2020;
·     a statutory declaration signed by [the applicant] on 11 March 2020;
·     legal submission dated 18 November 2021;
·     a statutory declaration signed by [the applicant] on 18 November 2021;
·     a letter (dated 27 February 2020) in support of [the applicant’s] application from [Leader A] from the [Ward A] of the LDS Church;
·     a letter from [Mr B], an officeholding member of the [Ward A] of the LDS Church;
·    Baptism and Confirmation certificate for the LDS Church dated [in] December 2014;
·     [a specified] Ordination certificate dated [in] 2016 for the LDS Church;
·     a detailed submission from the applicant’s representative dated 18 November 2021;
·     a detailed submission from the applicant’s representative dated 1 December 2021;
I note that in his representative’s legal submission of 18 November 2021, [the applicant’s] claims are summarised as follows:
·[The applicant] is a citizen of Pakistan. He has a well-founded fear of being persecuted, were he to be returned to Pakistan, for reasons of his:
o Membership of a particular social group having previously been a follower of a Sunni Maulana and an active participant of proselytising in the Sunni religion.
o Religion, as a convert away from Islam and to Christianity, more specifically Mormonism.
·[The applicant] has provided consistent evidence about his engagement and activities with his friend and Maulana, [Mr C], and the resultant threats to his life and [Mr C’s] death. At his first Tribunal hearing, [the applicant] explained that he was receiving threats from different religious groups because he was working with Maulana [Mr C]. [Mr C] also received threats. He explained further in his Statutory Declaration that there were four or five of them who helped [Mr C] and he understood that they all left Pakistan after being threatened for proselytising. Only [Mr C] stayed to stand up for his beliefs and he was killed. He more recently found out that one of those friends either never left Pakistan or returned and has recently been killed. [The applicant] has consistently maintained that, while he came to Australia to study, he left Pakistan because he was in danger and receiving threats.
·[The applicant] also alluded to family matters at the first Tribunal hearing and struggled to discuss it further. He revealed subsequently in his Statutory Declaration that his parents believed he had been cursed with black magic and believed by leaving Pakistan, the troubles would stop. We refer to and rely on paragraphs 20 and 32-36 of our Submission dated 12 March 2020 and reiterate that [the applicant’s] difficulty to discuss this issue at his first Tribunal hearing relates more to his cultural and family ties than any deliberate evasiveness. This is still a topic that is difficult for [the applicant] to discuss but it is clear that his fear of the black magic curse contributed both to his decision to leave Pakistan and his motivation for converting to the LDS Church. He has provided more information in a further statutory declaration dated 18 November 2021 (attachment).
·[The applicant] has also clearly demonstrated his renouncement of Islam and commitment to the Church of Jesus Christ of Latter Day Saints (LDS Church). [The applicant] has provided documentary evidence of his conversion to the LDS Church. He described at the First Tribunal Hearing his journey away from Islam having witnessed and experienced threats from Islamic extremists. He described his journey to Christianity and the LDS Church, in particular what his baptism meant to him and how his decision to convert allowed him to feel refreshed and start his life anew. He gave evidence about the way he practices his faith. We refer to and rely to Section D of our Submission dated 12 March 2020 and reiterate that people practice their religion in varied and personal ways. Finally, in his Statutory Declaration he revealed his fear of a black magic curse, how it is sinful in his culture to believe in black magic, and how his baptism removed the black magic from him. This has bonded him to the LDS Church which he considers his church.
Evidence from the Tribunal hearing on 4 March 2020
At the hearing, [the applicant] told the Tribunal that he was born and raised in Mandi Bahauddin, a small city in the central Punjab region of Pakistan. He stated that his family all still live in Pakistan including his parents, [and specified family members]. He said his father owns a small [business] in the town. [The applicant] stated that he completed high school in Pakistan and went on to study a tertiary [qualification]. [The applicant] originally arrived in Australia in May 2012 on a student visa. [The applicant] stated that he did not commence his studies in Australia but when I questioned him about the reasons why this was the case, he refused to explain, stating words to the effect that there were private family matters involved and his family had forbidden him to discuss them. [The applicant] said that during this time he was working as [an Occupation 1] and at [Business 1]. He said that since arriving in Australia he has lived in various places including [various suburbs].
When asked specifically about what fears he held if he were to return to Pakistan in the foreseeable future, [the applicant] responded that he was receiving threats from a religious group that he was involved with in Pakistan and that had initially motivated him to seek refuge outside the country. He said that since arriving in Australia he had decided to change religions, and was now a member of the LDS Church, having been baptised into the faith in December 2014. He stated that he was born into a Sunni Muslim family and raised in the Sunni Muslim faith. He said that while he was at college he started working with a named man, who was a Muslim missionary that proselytised his particular branch of the Islamic faith. [The applicant] stated that he began preaching Islam with this man, which brought him to the attention of rival Islamic groups, which he said were both Shia and Sunni. He said that he began to be threatened by these rival groups and they told him he should leave the country. When asked why he was threatened by these rival groups, [the applicant] responded by saying words to the effect that the Shia groups did not like Sunni Muslim missionaries preaching their faith and that the Sunni groups that were threatening him did not like missionaries such as himself. [The applicant] stated that he was threatened multiple times both face to face and on the phone. He also stated that friends had been attacked by these groups and one of them was killed.
I discussed at length with [the applicant] his claimed estrangement from the Islamic faith and his claimed conversion to Christianity in Australia. [The applicant] stated that the claimed events prior to his departure for Australia in Pakistan related to his Muslim faith had traumatised him and made him question his beliefs. He said that he decided to stop practising his Islamic faith when he came to Australia. He said that he remained curious about faith in general and said words to the effect that Australia’s liberal society allowed him to explore other faiths in a way that he had not felt he was able to before. When asked how he came to convert from being (by his own admission) a devout, proselytising Sunni Muslim into a new faith, and ultimately become baptised into the LDS Church, [the applicant] said that while he had been raised a Muslim, because other Muslims had threatened him prior to arriving in Australia he had decided to leave Islam behind. He said that he decided to start a new life in Australia that included a new faith. He started exploring his options and learned about the idea that being baptised into Christianity was like being born again, which appealed to him given the traumatic experiences he had left behind in Pakistan. He said he felt ‘like a newborn baby’ after his baptism in December 2014.
I asked [the applicant] at length about why he had chosen the Mormon faith in particular, including what aspects of the church had attracted him to it. [The applicant] stated that he had originally attended [Church 1] with a friend and met church members there. He said he began to study more about the Christian faith in general and also began attending an LDS Church near his home. He said he attended classes about the faith and about their approach to life, which included classes that helped him with his English. He said in 2013 he met LDS Church elders who explained the Church’s teachings to him. I pressed [the applicant] on what specific aspects of the LDS Church’s teachings had appealed to him. I note that [the applicant] at times struggled to articulate his reasons for exploring and ultimately converting to the Mormon faith (this is discussed further below). [The applicant] stated that the LDS Church ‘sisters’ were very friendly and welcoming to him and he had learnt a lot from them. He said it was a very friendly environment that had felt like a family to him. When asked if there were any particular aspects of the Mormon faith that had appealed to him, [the applicant] spoke in very general terms and said words to the effect that the thing he liked was that Mormons were sensitive and thoughtful toward others.

When I asked [the applicant] how he expressed his Mormon faith and how it affected his life, he responded that he went to church every Sunday, and attended Sunday sacrament and Sunday school. He said that he participated in something called [specified leadership training]. He said this involved two hours of study every Sunday including one hour of Bible study. He said that he also attended a [different denomination] church where he went on Thursdays to a Bible study class. When I pressed [the applicant] on how his new faith had impacted his life, he responded in very general terms stating words to the effect that there were certain bad things that he did not like about his former Muslim faith including that it was highly restrictive, and he believed the Mormon faith gave him more freedom. When asked to elaborate on this response, [the applicant] stated that he did not like various Sharia laws that restricted his freedom and he did not like rituals like fasting or that there were Shia festivals in the Muslim community. He said that in the LDS Church, the rules are less restrictive and he was told that it was up to him if he followed them. When I questioned [the applicant] about this response and explained to him that it was my understanding that the LDS Church also had a number of strict rules, including relating to fasting, he said that in Islam you are forced to fast but in the LDS Church you weren’t compelled to. I asked [the applicant] if he had thought about becoming a less observant Muslim when in Australia, rather than renouncing his previously strongly held faith and converting to Christianity. [The applicant] gave a generalised response again stating words to the effect that the rules were not as strict in the LDS Church and that Muslims were required to follow strict rules wherever they were. He that he was a strong believer in God, that he believed in Jesus, and he believed that he was getting help from God and that he could feel this. I note that [the applicant] struggled at various times to specifically articulate in detail both why he had decided to convert from Islam to Christianity, and provide details about why he had been attracted to the Mormon faith in particular.
I raised with [the applicant] his frequency of church attendance since converting to the Mormon faith. I asked [the applicant] how often he had attended church in the previous three months. After a long pause, [the applicant] stated that he could not remember how many times, and there were times that he had missed church due to rain or some other circumstance. When I asked if he attended any social events related to the church, [the applicant] stated that there was a social gathering on Mondays at the LDS Church [at Location 1]. When I asked how often he attended this gathering, [the applicant] gave a vague response stating that he used to go quite frequently but that he had not attended for around 12 months. [The applicant] stated that he also had friends from the Uniting church and the Catholic church and reiterated that he had previously attended the [Church 1] with some friends. I asked [the applicant] if he had considered other religions when he was initially exploring his faith options in Australia including for example Hinduism or Buddhism. [The applicant] stated words to the effect that he had no interest in other religions as they worshipped ‘animals’ and ‘statues’. He said that he knew of these faiths but had no interest in following them.
I asked [the applicant] about the process involved in his ordination as [a specified leader] within the church, and what exactly this meant. [The applicant] spoke about receiving the certificate confirming his ordination and what was written on the certificate. He demonstrated some knowledge of the church hierarchies and levels of [leadership] but could provide little detail about what this meant in practice. He claimed that he was taking classes that would allow him to advance within the church hierarchy.
Given that [the applicant] had claimed to have attended multiple, regular Bible study sessions with the church, I asked him about his knowledge of particular aspects of the Mormon faith, and the LDS Church. He knew some information about the Church’s founder, but did not know things such as where the church was founded. When I asked [the applicant] about how the LDS Church’s central beliefs differed from other religions or other denominations of the Christian faith, he initially struggled to provide an answer, eventually stating words to the effect that followers of the LDS Church did not drink coffee or alcohol, or smoke cigarettes. He demonstrated some rudimentary knowledge about the LDS Church’s practice of baptising people after they had died. I note that [the applicant] demonstrated some knowledge of key religious texts that he had claimed to have studied with the church.
In the context of this discussion, [the applicant] relayed an incident in 2015 when a copy of the LDS Church’s newsletter had been sent to the share house he was living in. He said his housemates, who are Muslims, reacted angrily to this and kicked him out of the house. [The applicant] said he became homeless for a period and sought help from the Salvation Army, had lived for a period in a caravan park. When [the applicant] was asked why he had not sought help from the LDS Church during this period of hardship, he said it had not occurred to him that they could offer help.
I discussed with [the applicant] the timing of his protection visa application, including why it has taken him more than two years to lodge it after arriving in Australia, after he had been unsuccessful in applying for other visas. [The applicant] gave a vague response stating words to the effect that his parents had told him that he should not apply for a protection visa and that he should pursue his studies here. He said that when his student visa was cancelled he was confident at the time that it would be reinstated. When I asked [the applicant] why none of his claims for protection had been mentioned in his request for Ministerial Intervention in his student visa case, he gave a brief response stating words to the effect that he did not believe it was important or relevant to the student visa matter.
Evidence from the Tribunal hearing on 24 November 2021
At the Tribunal hearing held on 24 November 2021, I discussed with [the applicant] a number of specific concerns I had about his case, including concerns relating to previous evidence he had provided to the Tribunal. For example, I explained to [the applicant] that I had concerns about the depth of his knowledge of the Mormon faith in the LDS Church, particularly in light of the fact that [the applicant] had told the Tribunal that he had engaged in extensive Bible study as part of his participation in the church. [The applicant] responded that he didn’t have anything more to add to what he had already told the Tribunal about that issue at the previous hearing and in subsequent submissions made on his behalf. I discussed with [the applicant] potential inconsistencies related to his answers about how frequently he engaged with the church. I noted that he had told the Tribunal previously that he had been a regular attendee at church services, classes and/or events, including engaging with the church on a weekly basis for periods of time. I highlighted to him the letter dated 27 February 2020 from [Bishop A], that stated that [the applicant] had attended church services or events ‘intermittently’ since 2016 and that ‘we see him maybe once our [sic] twice every three months on average’. [The applicant] responded by saying that he attended more than one LDS Church, including the one [at Location 1], and his attendance depended on things such as the weather or if he missed his bus. I also discussed with [the applicant] issues related to other claims he had made, including in relation to events that had occurred in Pakistan before he arrived in Australia, and issues related to the delay in him lodging his protection visa application after he had arrived in Australia.
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, the applicant 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.
Refugee criterion
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s 91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s 91R(1)(b)), and systematic and discriminatory conduct (s 91R(1)(c)). Examples of ‘serious harm’ are set out in s 91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s 91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
FINDINGS AND REASONS
The issues in this review are whether [the applicant] has a well-founded fear of being persecuted for one or more of the five reasons enumerated in the Convention and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to his receiving country of Pakistan, there is a real risk that he will suffer significant harm.
Is the applicant a genuine Christian convert?
I have weighed and considered this question carefully, and note, as outlined above, that I held considerable doubts related to various aspects of the evidence presented by [the applicant] about his reasons for converting to Christianity and the sincerity of his motivations for doing so. I share to a point concerns first raised by the Department about the timing of this conversion, given [the applicant’s] previous visa history in Australia. While I retain these concerns related to the timing of [the applicant’s] decision to convert from Islam to Christianity, I accept that he was baptised into the Mormon faith/LDS Church in 2014 and has participated in and engaged with various elements of the church periodically since that time. I note that, as outlined above, [the applicant] may have embellished and/or exaggerated his level of engagement with the church, however I also note that there is evidence before the Tribunal (including in the form of correspondence from church officials) that [the applicant] has engaged with and participated in church activities over a period of several years, even if the frequency and intensity of the engagement was not as high as [the applicant] had previously claimed.
In terms of his religious practice in Australia, I accept that [the applicant] has attended various churches on numerous occasions and has engaged in various church related activities associated with his conversion and consistent with somebody seeking to learn more about a new faith. I have formed the view that even if [the applicant’s] original motivations for seeking to join the church were not sincere or authentic, that through engagement with the church over time, it has come to form a significant part of his life here in Australia, including (and perhaps especially) through the community and social aspects of the church’s activities.
I acknowledge that the Tribunal is not an arbiter of doctrine. I understand that people can follow a faith for various reasons and that it is not necessary for an applicant to possess a detailed knowledge of its central tenets. As outlined above, at both Tribunal hearings [the applicant] was asked a range of questions (and at length) about his religious beliefs and practices in Pakistan and Australia, including reasons why he decided to convert and how his new faith has impacted his life. These questions were intended to give [the applicant] the opportunity to demonstrate aspects of his knowledge of the Christian faith and the progression of his religious belief to the point of conversion. As outlined above, [the applicant] demonstrated some knowledge of specific aspects of Christianity in general and the Mormon faith in particular. I note [the applicant] at times struggled to articulate specific knowledge of the faith and his reasons for wanting to convert from Islam to Christianity, however I note that he did provide answers to these questions that were largely consistent to previous submissions made on this issue. I accept that [the applicant] has provided some credible reasons why he had chosen to convert to Christianity from Islam and that he has held himself out to be a Christian in Australia, including by attending various church services and events over several years. I accept that [the applicant] has found a sense of community and belonging within the church, that he described to the Tribunal as feeling like a ‘family’. I accept on the evidence before me, that [the applicant] has formed relationships with people in the church, and that it is perhaps these aspects of the church, rather than doctrinal or theological ones, that has sustained his interest in the church.
Accordingly, I accept [the applicant] is a genuine Christian convert from Islam. I accept he is a practising Christian and would likely continue to practise his Christian faith if returned to Pakistan, if not for fear of persecution in doing so.
Are the applicant’s fears as a Christian convert well founded?
In order to determine whether [the applicant] faces a well-founded fear of persecution from the community, extremists or others in Pakistan as a result of his Christian faith and/or conversion to it, I have had regard to various sources of country information concerning the situation facing Christians and/or Christian converts in Pakistan. This includes information from DFAT’s country information report on Pakistan (updated in January 2022) and a Country Policy and Information report from the UK Home Office on Christians and Christian converts in Pakistan.

The DFAT country information report on Pakistan states that religious conversion from Islam (apostasy) while not illegal, is often seen as blasphemous and can result in prosecution under blasphemy laws, and/or familial or communal violence. According to DFAT, article 259A of the Penal Code prohibits insulting any religion (not just Islam) and carries a sentence of up to 10 years’ imprisonment, which may be accompanied by a fine.[1] I note that there have been numerous, documented incidents of communal violence carried out against Christians accused of blasphemy, including a highlighted case in [the applicant’s] home area of Punjab. I note that the report stated that the incidence of violent attacks motivated by blasphemy have escalated dramatically in recent years, with blasphemy cases hitting an all-time high in Pakistan in 2020. According to the report ‘accused blasphemers are at risk of extrajudicial killing, before, during, and after being taken into custody’[2]. The DFAT report[3] stated:
Religious extremism and intolerance are on the rise in Pakistan. A record number of blasphemy cases were filed in 2020, and public and online hate speech has increased. While the number of sectarian attacks decreased from 2013-20, in line with an overall improvement in the security situation, violence has recently increased, and attacks on religious minorities, their places of worship and festivities continue. Multiple interlocutors told DFAT the government overlooked religious extremism to avoid antagonising powerful religious lobbies (such as the TLP).
Blasphemy and other offences relating to religion are criminalised in Pakistan under Articles 295 and 298 of the Pakistan Penal Code (Act XLV of 1860). Article 295C outlaws the use of ‘derogatory remarks’ against the Holy Prophet. The punishment for blasphemy is death. Under Article 295B, ‘defiling’ a copy of the Quran is punishable by life imprisonment, and under Article 298A, defiling ‘the sacred name of any wife, or members of the family, of the Holy Prophet, or any of the righteous Caliphs’ carries a maximum punishment of three years in prison, which may also be accompanied by a fine.
Religious conversion from Islam (apostasy) while not illegal is often seen as blasphemous and can result in prosecution under blasphemy laws, or in familial or communal violence. Article 295A prohibits insulting any religion, not just Islam, and carries a sentence of up to 10 years’ imprisonment, which may also be accompanied by a fine.
The Centre for Social Justice (CSJ) reported 200 blasphemy cases in 2020, an all-time high which has been widely linked to rising religious intolerance. Of these 35 were sentenced to death. Religious minorities are disproportionately affected: in 70 per cent of the cases the accused was Shi’a, 20 per cent Ahmadi and 3.5 per cent Christian. False accusations of blasphemy are used to settle personal disputes, as in the case of Asia Bibi, a Christian woman sentenced to death for blasphemy in 2010 after a dispute with Muslim neighbours in which they refused to share water with her because she was a Christian. Bibi was acquitted and released from prison in 2018 and fled to Canada. People have been charged with blasphemy for online speech; for instance, three men were sentenced to death by an Islamabad court in 2021 for sharing ‘blasphemous’ material on social media. In July 2021, an eight-year-old boy was charged with blasphemy in Eastern Punjab after allegedly urinating in a Madrassa library.
The conviction rate for blasphemy in the lower courts is high, and judges are often under enormous public pressure to deliver a guilty verdict. A Pakistani legal expert told DFAT most blasphemy convictions were overturned by the higher courts, but an accused blasphemer was likely to spend years in prison even if the accusation was eventually found to be baseless. Judges and defence lawyers are often reluctant to take on blasphemy cases due to the personal security risks involved, resulting in appeals being delayed until a new bench is constituted.
Accused blasphemers are at risk of extrajudicial killing, before, during, and after being taken into custody. In December 2021, a Sri Lankan man was beaten to death and his corpse set on fire after being accused of blasphemy due to removing posters from the wall of the factory in Sialkot, Punjab, where he worked. During the murder his killers chanted slogans popularised by Tehreek-e-Labbaik Pakistan (TLP), an Islamic extremist group. Afterwards they posed for selfies with his corpse and shared video of his murder on social media. In August 2020 a US national on trial for blasphemy, Tahir Naseem, was gunned down in a Peshawar courtroom by a 15-year-old boy. Thousands rallied in the streets to support Naseem’s killer, and politicians visited the killer’s home and police posed for selfies with him. Extremist groups and individuals have targeted politicians, lawyers and judges who have spoken out against blasphemy laws. The former governor of Punjab, Salman Taseer, was assassinated by one of his bodyguards for calling for reform of blasphemy laws. Large numbers of people protested when his assassin (whom they considered a hero) was executed in February 2016.
DFAT assesses that people accused of blasphemy are at high risk of extrajudicial violence and the death penalty, and high risk of societal and official discrimination in the form of popular denunciation, unfair trials and inadequate state protection. The risks are especially acute for members of religious minorities, including Shi’a, Ahmadis, Christians and Hindus.
[1] DFAT Country Information Report, Pakistan, 25 January 2022, section 3.33
[2] DFAT Country Information Report, Pakistan, 25 January 2022, section 3.36
[3] DFAT Country Information Report, Pakistan, 25 January 2022, sections 3.31–3.37
I note the following information from the DFAT country information report about the treatment of Christians in Pakistan more generally[4]:
According to the 2017 census there are about 2 million Christians in Pakistan, although NGOs claim the actual figure is higher. Most are descendants of low-caste Hindus who converted during the British era. Most Christians live in Punjab, with sizeable populations in Sindh, Islamabad and Khyber Pakhtunkhwa. Pakistani law does not restrict Christians from practising their religion and they are generally able to do so without government interference, although they sometimes face difficulties in establishing new churches.
Christians are among the most economically vulnerable groups in Pakistan. Many live in slums and are employed as ‘sweepers’ (sanitation workers), household servants or bonded labourers in brick kilns. Christians face significant societal discrimination from the Muslim majority. Job advertisements, including those for municipal and other government agencies, often specify sanitation work can only be done by Christians or other ‘non-Muslims’. Other forms of discrimination include refusal to touch or share facilities with ‘unclean’ Christians, the use of derogatory terms such as ‘infidel’ or Chura (‘dirty’), and denial of emergency relief. Christians are also disproportionately targeted by blasphemy accusations.
Christians are targeted by militant groups in Pakistan. Police provide security for major Christian churches during Christmas and Easter, reducing but not eliminating the risk of violence. Four members of a Christian family were killed by an IS gunman in Quetta in April 2018, while an IS bombing at a Christian church killed nine people in December 2017. Christians are also victims of community violence, often sparked by religious or personal disputes. In February 2021, a 22-year-old Christian man, Saleem Masih, was beaten to death for ‘polluting’ water by bathing in it. In November 2020, a woman and her son were shot dead by a Muslim neighbour who claimed they ‘defiled’ an Islamic shrine with wastewater.
Christian girls are targeted for forced and underage marriage and forced conversion, and are also targeted by people traffickers. In 2019 a report by Associated Press revealed at least 629 women, most of them Christians, had been trafficked from Pakistan to China as forced brides since 2018. Many were allegedly raped and beaten, and some forced into prostitution. Christian pastors often acted as brokers for the trafficking. The Federal Investigation Agency arrested 31 Chinese nationals in connection with these crimes in October 2019, but they were later acquitted, allegedly under pressure from officials concerned about damage to the Pakistan-China relationship. Activists allege the trafficking continues.
DFAT assesses that Christians face a moderate risk of official discrimination (mainly in the form of employment discrimination) and societal discrimination, and a moderate risk of violence throughout Pakistan.
[4] DFAT Country Information Report, Pakistan, 25 January 2022, sections 3.45–3.49
In a recent report titled ‘Pakistan: Christians and Christian converts’,[5] the UK Home Office stated that while there is no law against religious conversion in Pakistan, renouncing Islam (apostasy) is widely considered a form of blasphemy;[6] that the situation is far more difficult for a person who is known to have converted from Islam to Christianity than for a person born Christian; and that it is rare for a person to openly convert as it is likely that a person’s conversion will become well known within their community with potential repercussions.[7]
[5] UK Home Office, Country Policy and Information Note, Pakistan: Christians and Christian converts, February 2021, Pakistan: country policy and information notes - GOV.UK (
[6] Ibid at 2.5.32
[7] Ibid at 2.5.33
With regard to societal treatment of Christian converts, the UK Home Office report stated that in general, society is extremely hostile towards converts to Christianity and that a Mullah may issue a fatwa calling for a death sentence against a convert who has been deemed an apostate.[8] It states that people who are known to have converted to Christianity suffer acts of violence, intimidation and serious discrimination from non-state actors, which can, in individual cases, amount to persecution and/or serious harm, and that such treatment is prevalent throughout Pakistan.[9] The report states:
In general, a person who is known or is likely to be known to have converted from Islam to Christianity and is open about their faith and conversion is likely to face societal discrimination and harassment that by its nature and repetition amounts to persecution.[10]
[8] Ibid at 2.5.34
[9] Ibid at 2.5.34
[10] Ibid at 2.5.37
The UK Home Office report stated that according to sources consulted by the Immigration and Refugee Board (IRB) of Canada’s Research Directorate in 2012, Pakistani society in general is extremely hostile to converts with reports of converts being harassed, attacked and ‘tortured’. The sources stated that ‘attacks on those who have converted can re-occur years or even decades after they have changed religion’.[11] In addition, according to sources consulted by Christian Solidarity Worldwide (CSW), in a 2015 report, when a Muslim decides to become a Christian and their conversion becomes known, their life is at risk. Sources informed the CSW that a Mullah who hears of apostasy can issue a fatwah ordering the death of the convert.[12]
[11] IRB, ‘Pakistan: Religious conversion, including treatment of converts…’, 14 January 2013 cited in UK Home Office, Country Policy and Information Note, Pakistan: Christians and Christian converts, February 2021
[12] CSW, ‘House of Lords Hearing’, (pages 2-3), 10–11 November 2015, cited in UK Home Office Country Policy and Information Note, Pakistan: Christians and Christian converts, February 2021
In a letter regarding conversion to Christianity, dated 15 February 2021 (included in the UK Home Office report), the British High Commission in Islamabad stated it was ‘difficult to corroborate the real situation, as this is a frequently hidden problem; our view is that converts would probably not want to draw additional attention to themselves.’ Nonetheless the High Commission stated that anecdotal evidence from its local contacts in Pakistan reported that:
… it would be difficult for Christian converts to live freely and openly in Pakistan, as converts over and above being Christian. It is our view that people who are known to have converted to Christianity suffer serious discrimination, for example in the workplace or by the authorities. It is far more difficult for people in Pakistan who are known to have converted to Christianity, than it is for people who were born Christian. We understand that it would be rare for someone to convert to Christianity, or at least to do so openly, in Pakistan. It is therefore something of note for the community, with potential repercussions.[13]
[13] BHC, ‘Letter to CPIT’, 15 February 2021, cited in UK Home Office Country Policy and Information Note, Pakistan: Christians and Christian converts, February 2021
In a more general sense, country information from a variety of sources report on increasing attacks against religious minorities in Pakistan, including Christians.[14] Although there are many churches in Pakistan and Christians are generally able to practise their religion without official interference or discrimination, in recent years there has been a trend towards intolerance and violence from non-state actors and Christians have been targeted in sectarian attacks against churches. According to DFAT:
Christians are targeted by militant groups in Pakistan. Police provide security for major Christian churches during Christmas and Easter, reducing but not eliminating the risk of violence. Four members of a Christian family were killed by an IS gunman in Quetta in April 2018, while an IS bombing at a Christian church killed nine people in December 2017. Christians are also victims of community violence, often sparked by religious or personal disputes. In February 2021, a 22-year-old Christian man, Saleem Masih, was beaten to death for ‘polluting’ water by bathing in it. In November 2020, a woman and her son were shot dead by a Muslim neighbour who claimed they ‘defiled’ an Islamic shrine with wastewater.[15]
[14] For example, DFAT Country Information Report Pakistan, 20 February 2019, and UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities from Pakistan, January 2017
[15] DFAT Country Information Report, Pakistan, 25 January 2022, section 3.47
I also note very recent developments in Pakistan, including the highly volatile and fluid political situation that resulted in the ousting of Pakistan’s Prime Minister on 10 April 2022.[16] I note also that human rights groups, including Human Rights Watch, have voiced concerns that the political instability currently being experienced in Pakistan could result in increased violence and unrest throughout the country, and noted several explicit threats of violence voiced by politicians.[17] I note also country information that highlights a surge in political violence including religiously motivated terrorism in recent weeks. For example a suicide attack took place on 7 March 2022 at a cultural festival in Sibi, Balochistan killing several members of a local police force, and a bomb was detonated at a Shia mosque in Peshawar on 4 March 2022. Country information suggests that this violence is evidence of a resurgence of militancy across the country that is seeking to take advantage of the political instability and leadership vacuum related to the recent political crisis.[18]
[16] BBC NEWS, ‘Imran Khan ousted as Pakistan’s PM after vote’, 11 April 2022. Available at:
[17] Patricia Gossman, ‘Pakistan’s No-Confidence Vote Should Respect Democratic Process’, Human rights Watch, 16 March 2022. Accessed at:
[18] The Associated Press, ‘Pakistan says 4 troops killed in attack claimed by Taliban’, 25 March 2022. Access at:
Taking into account such country information about the specific risks faced by Christian converts (from Islam) in Pakistan from non-state actors, including the possibility of being accused of blasphemy and apostasy, the general risk faced by Christians in Pakistan, and the general rise in militancy and associated violence across the country, in addition to the acute political instability currently being experienced in Pakistan, I accept that if [the applicant] were to return to Pakistan and attempt to practise his Christian faith, or even if it became known that he had converted to Christianity from Islam, he is likely to come to the attention of the community and possibly members of extremists groups. If this were the case, I accept that [the applicant’s] conversion to Christianity from Islam would soon become known – particularly given that his passport and presumably his national identity documents list his religion as Islam. I accept that Christian converts (particularly those from Islam) are at a significantly heightened risk of persecution than Christians who were born into the faith in Pakistan.[19]
[19] Neha Ansari, ‘A terror redux in Pakistan?’, The Atlantic Council, 15 March 2022. Accessed at:
Having considered the available country information and [the applicant’s] specific circumstances, particularly (as detailed above) the information relating to the treatment of Christian converts from Islam, I am satisfied that in these circumstances [the applicant] would face a real chance of serious harm from extremists – groups and/or individuals – who would consider him an apostate, if he were to return to Punjab for reasons relating to his religion and his membership of a particular social group, namely that of ‘Christian converts from Islam’ as required by s 91R(1)(b) of the Act in that it would involve a threat to his life or liberty or significant physical harassment or ill-treatment. I also consider that [the applicant’s] religion and his membership of a particular social group of Christian converts from Islam is the essential and significant reason for the persecution he fears, as required by s 91R(1)(a), and that the persecution which he fears involves systematic and discriminatory conduct, as required by
s 91R(1)(c), in that it would be deliberate or intentional and involve his selective harassment for reasons of his religion and membership of that particular social group.
Relocation
In SZATV v MIAC (2007) 233 CLR 18 the High Court endorsed the proposition that a person will not be excluded from refugee status merely because he or she could have sought refuge in another part of the same country, if under all the circumstances it would not be reasonable to expect him or her to do so. The Court further held at [24] that what is reasonable, in the sense of practicable, must depend on the particular circumstances of the applicant and the impact upon that person of relocating within their country. As Kirby J stated at [97], the supposed possibility of relocation will not detract from a ‘well-founded fear of persecution’ where any such relocation would, in all the circumstances, be unreasonable.
I am satisfied that [the applicant], as a citizen of Pakistan, has the right to relocate within Pakistan. I note that the range of factors which may be relevant in any particular case to the question of whether relocation is reasonably available will be largely determined by the case sought to be made out by an applicant.[20]
[20] Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at [443]; per Whitlam J at [453]
I have considered if [the applicant] faces a real chance of persecution in all areas of Pakistan. As noted, [the applicant] originates from the central Punjab region in Pakistan where he lived prior to coming to Australia in 2012. This is where his siblings and parents still live. I have therefore considered whether the real chance of serious harm from the community, family members or extremists as a Christian and/or a Christian convert (from Islam) in Punjab relates to all areas of Pakistan.

In considering [the applicant’s] circumstances and the ‘reasonableness’ of him relocating within Pakistan, I have considered DFAT’s assessment that ‘groups facing official discrimination (see relevant sections) will face discrimination in all parts of the country’.[21] I note also the relevant section of the above referenced UK Home Office report that assesses that while in general those people born Christian in Pakistan are likely to be able to relocate to avoid persecution from non-state actors, this is unlikely to be a reasonable option for Christian converts ‘given that ill-treatment towards Christian converts is prevalent throughout Pakistan’.[22]
[21] DFAT Country Information Report, Pakistan, 20 February 2019, at [5.32]
[22] UK Home Office, Country Policy and Information Note, Pakistan: Christians and Christian converts, February 2021
As noted earlier, [the applicant’s] Pakistani passport and presumably his ID card indicate he is Muslim. I do not consider it would be possible for [the applicant] to move away from Punjab to another area of the country and not reveal his faith or conversion as I accept that if [the applicant] returned to Pakistan he would wish to continue to observe and practise his Christian faith, including by attending church, as he has in Australia, and that were he to do so he would be identifiable to the authorities, and the community at large, as a convert, based on the fact that his national ID card would continue to identify him as a Muslim. If so, country information suggests that Christian converts face serious threats of harm from non-state actors throughout Pakistan. For these reasons I am satisfied that [the applicant] would face a real chance of persecution in all areas of Pakistan.
Accordingly, the Tribunal accepts [the applicant] has a well-founded fear of persecution in Pakistan for reasons of his religion and his membership of a particular social group, namely that of ‘Christian converts from Islam’, from the community and/or extremists.
The availability of effective protection measures
I note that harm from non-state agents may amount to persecution for a Convention reason if the motivation of the non-state actors is Convention-related, and the State is unable to provide adequate protection against the harm. Where the State is complicit in the sense that it encourages, condones or tolerates the harm, the attitude of the State is consistent with the possibility that there is persecution: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [23]. Where the State is willing but not able to provide protection, the fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify an unwillingness to seek their protection: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [28]. In such cases, a person will not be a victim of persecution, unless it is concluded that the government would not or could not provide citizens in the position of the person with the level of protection which they were entitled to expect according to international standards: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [29]. Harm from non-state actors which is not motivated by a Convention reason may also amount to persecution for a Convention reason if the protection of the State is withheld or denied for a Convention reason.
Country information indicates that in general Pakistan has an effective criminal justice system capable of detecting, prosecuting and punishing acts of persecution from non-state actors. The UK Home Office in their recent report on Christians and Christian converts note that the police provide security at churches, sometimes complementing communities’ own security arrangements; the government has taken steps to counter terrorism and limit the capacity of groups that target religious minorities; and the police have intervened on numerous occasions to suppress mob violence directed at persons accused of blasphemy, including Christians. However, it is also noted that:
…the correct procedures are not consistently applied by police when investigating blasphemy cases, lower courts do not always apply the correct evidential standards and judges are often reluctant to decide blasphemy cases due to fear of violent retribution (see Accusations of blasphemy and Justice system). The government has also sometimes intervened and provided assistance through the courts and law enforcement in situations of attempted kidnapping and forced conversion.[23]
[23] UK Home Office, Country Policy and Information Note, Pakistan: Christians and Christian converts, February 2021 at 2.6.4
As noted earlier, although there is no law against religious conversions in Pakistan, renouncing Islam (apostasy) is widely considered to be a form of blasphemy. The aforementioned UK Home Office report does not elaborate on whether there is state protection for those at risk from non-state actors as apostates. However, the United States State Department International Religious Freedom report of 2019 stated that the ‘penal code does not explicitly criminalize apostasy, but renouncing Islam is widely considered by clerics to be a form of blasphemy, which can carry the death penalty’.[24]
[24] USSD, ‘IRF Report 2019’ (section I), 10 June 2020, cited in UK Home Office, Country Policy and Information Note, Pakistan: Christians and Christian converts, February 2021 at [5.3.3]
In a letter (referenced earlier) regarding conversion to Christianity, dated 15 February 2021 (included in the UK Home Office report), the British High Commission in Pakistan noted that there is limited protection of religious minorities by the Pakistani government; the Ministry of Religious Affairs and Interfaith Harmony primarily deals with Hajj participation and has been ineffective in protecting the rights of religious minorities. In May 2015, a National Commission for Human Rights was established, though it has been redundant since 2019 due to the lack of serving Commissioners.[25]
[25] ‘Letter to CPIT’, 15 February 2021 cited in UK Home Office, Country Policy and Information Note, Pakistan: Christians and Christian converts, February 2021 at [6.1.1]
More broadly, country information suggests that while Pakistan has a legal framework offering protection and a functioning criminal justice system, its effectiveness varies widely. DFAT advise that although Pakistan’s formal legal framework provides for state protection of people’s property and lives (among other things), it is limited due to ‘resource shortages, corruption, socio-economic factors at the individual level, and political will’.[26]
[26] DFAT Country Information Report, Pakistan 22 January 2022 at [5.1]
In terms of police capacity more generally in Pakistan, DFAT report that it is limited due to ‘lack of resources, poor training, insufficient and outmoded equipment, and competing pressures from superiors, political actors, security forces and the judiciary’.[27] They also state that sectarian violence and domestic terrorism divert resources from community ‘policing’ to a more incident response and security/guarding role and that the popular perception of high levels of police corruption is widespread. With respect to the effectiveness and impartiality of Pakistan’s judiciary, DFAT state that the system is overburdened with a backlog of cases; and that local and international observers report corruption in the judicial system as well as intimidation of judges.[28]
[27] Ibid at [5.11]
[28] Ibid at [5.22]
Based on the country information set out above, when considered in the context of the particular circumstances of [the applicant’s] case, I am not satisfied that the state (or any other entity) is willing and able to offer protection from non-state actors as a Christian convert (from Islam). Neither am I satisfied that effective protection measures provided by the state (or any other entity), to the level of protection which citizens are entitled to expect as discussed by the High Court in MIMA v Respondents S152/2003 (2004) 222 CLR 1, are available to [the applicant] in Punjab. Based on this country information, I find that [the applicant] would not be able to access effective protection if returned to Pakistan.
Mental health issues
I note the Tribunal does not have before it any substantive recent information relating to [the applicant’s] mental health, such as a report from a treating doctor or a mental health professional. I also note submissions made to the Tribunal about [the applicant’s] mental health, including the following excerpt from the submission dated 12 March 2020:
While it is not our area of expertise as migration agents or lawyers, our observations of many asylum seekers lead us to believe that the applicant has mental health considerations that have not been recognised by the Applicant himself and therefore have not been raised. Post-hearing, the Applicant has not consented to us assisting him to seek psychological assistance.
We do not have any material from his health professionals as the client has only engaged with us once prior to his AA T Hearing. We have only been able to provide limited assistance to him and gain limited information about his psychological state.
I note the following excerpt from the submission dated 1 December 2021:
In recent months the Applicant has begun attending a psychiatrist. We are endeavouring to urgently obtain information from his psychiatrist however, in the meantime we attach photographs of the Applicant’s medication prescribed by this psychiatrist in August 2021 and in November 2021 as evidence of the Applicant’s ongoing mental health struggles. The medication is Mirtazapine, indicated for major depressive disorder. We ask the Member not to make a decision until we submit evidence from the Applicant’s psychiatrist.
I note that an email from [the applicant’s] representative received on Tuesday, 7 December 2021, attached a ‘Medical Summary’, that makes a very brief reference to [the applicant] currently being prescribed a known antidepressant medication for the treatment of depression. Although I have very little medical information before me related to [the applicant’s] mental health, I’m prepared to accept that he does suffer from a mental health condition. I also accept that this could expose him to a greater risk of harm in the future, including for the reasons that he may be incapable at certain times, owing to his condition, of acting to avoid people and/or situations that may place him at greater risk.
Conclusion
Considering [the applicant’s] particular circumstances cumulatively, and in the context of the relevant country information, I find that there is a real chance that he will suffer persecution involving serious harm, from the community and/or extremists, if he returns to his home in the central Punjab area in Pakistan. I am satisfied that the real chance of serious harm [the applicant] will face if he returns to his home area in central Punjab will be a result of systematic and discriminatory conduct in that it will be done to him selectively and intentionally. I find that the essential and significant reason for the serious harm [the applicant] faces is for reasons relating to his religion and his membership of a particular social group, namely that of ‘Christian converts from Islam’.
For the reasons given above, I am 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.
Scott Clarey
Member

[2022] AATA 1736

14 April 2022

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