1715660 (Refugee)

1715660 (Refugee) [2021] AATA 856 (25 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1715660
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Nicole Burns
DATE:25 March 2021
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 25 March 2021 at 4:01pm

CATCHWORDS
REFUGEE – protection visa – Pakistan – religion – Muslim convert to Christianity – Catholicism – non-practising Sunni family – low-level, private church membership and activity in home country – membership and increasing activity in Australia – credibility – explanations for inconsistent claims and evidence, and timing of conversion – knowledge and progression of faith – real chance of serious harm by extremist groups or individuals – official and societal discrimination – state protection – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5LA, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
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 on 30 June 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Pakistan, applied for the visa on 3 August 2015 based on fearing persecution as a Christian convert (from Islam).
The applicant appeared before the Tribunal on 22 February 2021 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A] and [Ms B], friends from the applicant’s church. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.
The issues in this review are whether the applicant faces a real chance of persecution or a real risk of significant harm on return to Pakistan from extremists or others on account of her claimed conversion to Christianity from Islam. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. An extract of the relevant law is attached.
CONSIDERATION OF CLAIMS AND EVIDENCE
Receiving country
It is not in dispute that the applicant is a Pakistani national and the delegate recorded in the decision record that the applicant travelled to Australia on a Pakistani passport to undertake studies here in 2009. The Tribunal is satisfied that the applicant is a national of Pakistan and that Pakistan is her receiving country for the purposes of assessing her protection claims.
Claims and evidence
According to information on the Departmental file and confirmed at the Tribunal hearing, the applicant is a [age]-year-old woman from Karachi, Sindh province in Pakistan. She came to Australia as a student in May 2009 and has not returned to Pakistan since. Her father moved to [Country 1] in 1990 and is a permanent resident there. Her mother, who stayed in Pakistan, died in 2015. She has three brothers: one lives in Karachi, one lives in [Country 1], and the other lives in [Country 2].
In summary, the applicant – born into a Sunni Muslim family – claims to have attended a [Christian] church and been baptised there before coming to study in Australia. She claims to have been baptised at a Catholic church in Australia in late 2015. She has been practising in Australia since around May 2015, regularly attending church here. She fears harm from religious extremists on return to Pakistan as a result, at the hands of some of her relatives, and the community generally. Further, she claims she will not be able to practice her (Christian) religion freely in Pakistan.
In her oral evidence to the Tribunal the applicant said whilst she was born into a Sunni Muslim family in Karachi, she and her other family members did not practice much. Her father moved to [Country 1] in around 1990 where he worked as [an Occupation 1], sending financial remittances to his family in Pakistan. On one of her mother’s visits to her father in [Country 1], they attended church together. After her mother returned to Pakistan the applicant said she was curious and they both started to attend church: a [Christian] church in [Location 1], Karachi, starting around the end of 2008, once or twice a month. Once there the applicant said she was attracted to the way the congregants (and pastor) listened and behaved: they were friendly and warm. She wanted to have the Eucharist, but the pastor advised she could not without being baptised. Then [in] March 2009 the pastor anointed her forehead with oil and certified her as baptised. The applicant told the Tribunal she wanted to convert because she felt her prayers were being answered, particularly about being able to study in Australia, which she was preparing for at the time.
The applicant confirmed that apart from her mother, no one knew she had converted to Christianity, or even had attended church in Pakistan at that time. Accordingly, she never received any threats or experienced any problems whilst in Pakistan. Noting this is inconsistent with what she stated in her application form – that she had received threats from ‘Islam people’ – the applicant said she thinks that was written by her then agent, who did not inform her properly.
In Australia the applicant said she started attending a Catholic church – [Parish] Church in [Suburb 1] – from around May 2015. She was baptised in that church by [Father C] in December 2015, following a 12-week study course led by [Brother D] at his home, for an hour each week. [Brother D] taught the applicant (and another student) about Christianity, the Bible (the old and new testaments), church practices, and the relationship between Jesus and his disciples and what they teach (among other things). She wanted to be baptised because the sermons and fellow congregants calmed her and gave her comfort and support.
The applicant said she did not attend church before May 2015 despite being in Australia for many years for several reasons, including being busy with her studies then work. Her mother was sick for some time which she was dealing with (emotionally), as well as career worries. The applicant said her mother died in August 2015. She did not return to Pakistan for her funeral because of fear of being harmed by family and/or community members as a Christian convert there. She had told [Mr E] – her brother in Karachi – about her conversion over the phone before the funeral and she thinks he told her other brothers. [Mr E] questioned why she converted and said he could not protect her if people found out (in Pakistan). Her father came to know about her conversion around the time of her mother’s death, but he was not bothered.
The applicant said it is her community in Karachi that she is afraid of if she returns home and is concerned that she will not be able to go to church or otherwise practice freely. If she does, they will harm her, and her brother will not be able to protect her.
The applicant told the Tribunal she regularly attends church in [Suburb 1] and is involved in other church activities. Her only friends are those involved in the church. Her baptism and holy communion sponsor, [Mr A] and other fellow church member (and secretary of the church) [Ms B] confirmed at hearing the applicant’s involvement with the church since May 2015. Both attested to her commitment to the church and their belief that she is a genuine Christian convert, reiterating what they had stated in their letters provided earlier.
Is the applicant a genuine Christian convert?
The Tribunal accepts the applicant was born and raised a Muslim in Pakistan, although largely non-practising. It accepts her brothers remain adherents to (Sunni) Islam, although not overly strict. It is unclear if her father has converted (to Christianity) although the Tribunal accepts the applicant’s evidence that he participated in some Christian activities in [Country 1] where he has resided for over 30 years, including attending church. It also accepts her mother attended church on occasion whilst visiting [Country 1], and on occasion with the applicant in Pakistan.
The Tribunal has considered the applicant’s claims to have explored Christianity in Pakistan in late 2008/early 2009. Initially it held some concerns about the applicant’s motivations to become involved with the church in Pakistan given the timing – doing so just before she came to Australia to study – and because it found her oral evidence about why she attended church and was baptised was general and somewhat vague. Nonetheless, having heard her evidence in full, the Tribunal considers her exploration of Christianity in Pakistan reflected a curiosity following her mother’s attendance at church in [Country 1], more so than a strong conviction that that is what she wanted to do at the time. Further, the Tribunal accepts the applicant’s evidence that neither she nor her family members were particularly religious growing up as adherents to the Muslim faith, and therefore she did not feel a strong connection to Islam. Given these considerations, the Tribunal considers it plausible the applicant explored Christianity in Pakistan prior to leaving the country, and her reasons for doing so were sincere.
The Tribunal notes, as discussed at hearing, a key inconsistency exists between the applicant’s written evidence to the Department and oral evidence to the Department and Tribunal, which is also a concern. Specifically, in her oral evidence to the Tribunal she said that she had told no one about her church attendance and conversion in Pakistan (apart from her mother) and therefore did not receive any threats. However, in her application form it states that she received threats from ‘Islam people’. At hearing the applicant attributed this mistake to her agent at the time, who did not inform her properly about what they had included. Given the applicant’s account is otherwise consistent, and noting she clarified this mistake at her interview with the delegate, the Tribunal is willing to accept her explanation for the inconsistency and does not draw an adverse inference from it.
Therefore, despite some concerns as noted above, the Tribunal accepts the applicant attended a [Christian] church several times in Karachi in Pakistan and was anointed by the pastor there – considered a ‘baptism’ – prior to coming to Australia in early 2009. A letter from the pastor from the [Christian] Church of Pakistan, in [Location 1], Karachi dated 15 February 2009 was provided to the Department that confirmed the applicant had converted to Christianity on 8 February 2009[1] and that she strictly follows Christianity. The delegate placed little weight on this letter, describing it as a word-processed document with zero security features, noting it was signed by a pastor without further details. Further the letter itself contained few details, apart from indicating that the applicant had converted and strictly followed Christianity. The delegate also noted the prevalence of document fraud in Pakistan. At hearing the applicant said she brought the letter with her to Australia, along with other certificates and was not sure why it did not include more details. Given the Tribunal overall accepts the applicant’s claims, for reasons set out above and below, it does not necessarily share the delegate’s concerns about the veracity of the letter from the pastor of the church the applicant claimed to attend in Pakistan. The letter broadly reflects the applicant’s claims about her involvement with that church in Pakistan.
[1] At hearing the applicant gave this date as 8 March 2009. Given the passage of time, the Tribunal considers this inconsistency understandable.
In terms of the applicant’s religious practice in Australia, the Tribunal accepts the applicant was baptised on 6 December 2015 by [Pastor C], [Parish] Church in [Suburb 1], having regard to a copy of the record of baptism provided, a copy of the church newsletter[2] announcing her baptism, photographs of the applicant being baptised, as well as letters from [Pastor C],[3] [Reverend Fr E][4] (who replaced [Pastor C] sometime in 2016), and the written and oral testimony of other church congregants. It accepts she regularly attends that church, since around May 2015 and attended religious education classes prior to baptism (and confirmation) in December 2015.
[2] Dated 13 December 2015
[3] Dated 23 September 2015
[4] Dated 16 June 2017 and 3 February 2021
At the Tribunal hearing the applicant was asked a range of questions about her religious beliefs and practices in Pakistan and Australia, including reasons why she decided to convert. These were intended to give her the opportunity to demonstrate aspects of her knowledge of the Christian faith and the progression of her religious belief to the point of conversion. Whilst her responses were not overly sophisticated, and in some respects limited – for example, her knowledge of the main differences between denominations she has been allegedly exposed to ([Protestantism] and Catholicism) – the applicant was able to broadly articulate her understanding of the Christian faith and her reasons for becoming Christian. The Tribunal understands that people can follow a faith for several reasons, and it is not necessary to have detailed knowledge of its main tenets. The applicant displayed a greater knowledge of Catholicism (than [Protestantism]), which is unsurprising given her studies leading up to baptism and being involved in church related activities at a Catholic church in Australia since May 2015 to date. Her limited knowledge of [specified Christian denomination], for example, can be explained by her limited exposure to that denomination in Pakistan, given her evidence that she only attended church there a few times before coming to Australia (and did so discretely). Taking into account these considerations, the Tribunal does not find that the applicant’s lack of detailed knowledge of Christianity to be determinative of whether she genuinely decided to convert.
The Tribunal accepts the applicant has exhibited some basic knowledge of some tenets of the Catholic faith and has held herself out to be a Catholic in Australia.
The Tribunal notes the comments expressed by the delegate in relation to the timing of the applicant’s involvement in religious activities in Australia, which appears to have begun at a time when the applicant had all but exhausted her options for remaining in Australia. Whilst the Tribunal initially shared these concerns, having had the benefit of listening to the applicant’s oral evidence and that of the witnesses from the church at hearing, the Tribunal has reached a different view to the delegate in relation to the applicant’s motivations. It became clear at hearing that she finds solace and company through the church, particularly after her mother died. Even if there may have been multiple reasons why the applicant decided to attend church initially in Australia, the Tribunal considers her commitment has grown over the past five years or so and she derives a sense of belonging and hope through the church. For these reasons, combined with the fact the Tribunal accepts the applicant’s curiosity (at least) in Christianity in Pakistan was genuine and she was largely a non-practising Muslim there, it is satisfied the applicant engaged in such conduct related to attending church and becoming baptised otherwise than for the purpose of strengthening her claim to be a refugee. Accordingly, such conduct is not disregarded when determining whether the applicant has a well-founded fear of persecution for a refugee reason as per s.5J(6) of the Act.
In reaching this conclusion the Tribunal has given weight to the letter of support from the church’s current pastor, [Reverend Fr E] who states that his impression of the applicant is that she is genuine, sincere, and that her choice to become a Christian and her faith in God is an important part of her journey. The Tribunal has also given weight to the letters of support[5] and oral testimony of [Ms B] who works in the church office, and another practitioner who was the applicant’s baptism/confirmation sponsor, [Ms A]. Both [Ms B] and [Ms A] impressed the Tribunal as honest, forthright, and confident that the applicant’s interest in and adherence to Christianity was long standing and genuine. The representative noted they had also attended the Departmental interview hoping to give evidence in support of the applicant but were not given the chance to do so.
[5] Dated 4 February 2021 ([Ms B]) and 5 February 2021 ([Ms A])
Accordingly, the Tribunal accepts the applicant is a genuine Christian convert from Islam. It accepts she is a practising Catholic and would continue to practice her Catholic religion if returned to Pakistan, if not for fear of persecution in doing so.
Are the applicant’s fears as a Christian convert well founded?
Nothing has happened to the applicant yet because of her conversion to Christianity from Islam, which is understandable given no one apart from her mother knew of her religious practices in Pakistan prior to coming to Australia to study in early 2009. Only a few family members now know that she has converted and regularly practices her Christian faith in Australia. Her father and three brothers found out around the time of her mother’s death in 2015, and her brother in Pakistan expressed his incredulity at her actions and concern that he will not be able to protect her from members of the Islamic community if she returns to Pakistan. The Tribunal accepts the applicant’s evidence in this respect.
To determine whether the applicant faces a well-founded fear of persecution from the community, extremists or others in Pakistan as a result of her Christian conversion, the Tribunal has considered independent country information about the situation for Christian converts there.
DFAT’s most recent 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, 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 ten years’ imprisonment, which may be accompanied by a fine.[6]
[6] DFAT Country Information Report, Pakistan 20 February 2019 at 3.81
In a recent report on this topic from the UK Home Office,[7] it is stated that whilst there is no law against religious conversions in Pakistan, renouncing Islam (apostasy) is widely considered a form of blasphemy;[8] 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.[9]
[7] UK Home Office, Country Policy and Information Note, Pakistan: Christians and Christian converts, February 2021, Pakistan: country policy and information notes - GOV.UK (
[8] Ibid at 2.5.32
[9] Ibid at 2.5.33
With respect to societal treatment of Christian converts, the UK Home Office in the same report states 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. 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.[10] The report goes on to state that:
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.[11]
[10] Ibid at 2.5.34
[11] Op cit at 2.5.37

The UK Home Office report 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’.[12]
[12] IRB, ‘Pakistan: Religious conversion, including treatment of converts…’, 14 January 2013 cited in UK Home Office report, op cit
Furthermore, according to sources consulted by Christian Solidarity Worldwide (CSW), reporting in 2015, 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 will issue a fatwah ordering the death of the convert.[13]
[13] CSW, ‘House of Lords Hearing’, (pages 2-3), 10-11 November 2015, cited in UK Home Office report, op cit
In a letter regarding conversion to Christianity, dated 15 February 2021 (included in the UK Home Office report), the British High Commission’s (BHC) Political Section indicated 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 they state that anecdotal evidence from the BHC’s external 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.[14]
[14] BHC, ‘Letter to CPIT’, 15 February 2021, cited in UK Home Office report, op cit
More broadly country information from a variety of sources report on increasing attacks against religious minorities in Pakistan, including Christians.[15] Although there are many churches in Pakistan and Christians are generally able to practice 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:
Militant groups target Christian individuals, churches, residences or other places where Christians congregate. A suicide bomber attacked a park in Lahore on Easter Sunday in 2016, killing 74 people—including many women and children. Jamaatul Ahrar claimed responsibility for the attack, and said it deliberately targeted Christians.[16]
[15] For example, DFAT County 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
[16] DFAT County Information Report Pakistan, 20 February 2019 at 3.136 to 3.143
Taking into account such country information about the risks Christian converts (from Islam) face in Pakistan from non-state actors including being the potential to be accused of blasphemy and apostasy, the Tribunal accepts that if the applicant were to return to Pakistan and attempt to practice her Catholic faith, she is likely to come to the attention of the Muslim community and possibly members of extremists organisations. If so, it accepts her conversion from Islam would soon become known – particularly given that her passport and presumably her National Identity documents list her religion as Islam. Based on the treatment of Christian converts from Islam as set out in the country information above, the Tribunal is satisfied if this occurred the applicant faces a real chance of serious harm by extremists – groups and/or individuals – who would consider her an apostate, if she returns to Karachi for reason of her religion and membership of a particular social group of ‘Christian converts’ as required by s.5J(4)(b) of the Act in that it involves a threat to her life or liberty or significant physical harassment or ill-treatment. The Tribunal considers that the applicant's religion and membership of a particular social group of Christian converts is the essential and significant reason for the persecution she fears, as required by s.5J(4)(a), and that the persecution which she fears involves systematic and discriminatory conduct, as required by s.5J(4)(c), in that it is deliberate or intentional and involves her selective harassment for reason of her religion and membership of that particular social group.
The Tribunal also considers the fact the applicant is a Christian convert and a woman may add to her risk profile, noting country information indicates that Christian women and girls face multiple and intersecting forms of discrimination due to their minority status, gender and class. Also, because they may be identified by their attire, for example, not wearing a head covering, and face harassment as a result.[17] UNHCR in their 2017 guidelines for assessing the international protection needs of religious minorities from Pakistan assessed that Christian women and girls are reportedly particularly at risk of sexual and gender-based violence, forced conversion to Islam and forced marriage to Muslim men, as well as other forms of discrimination and violence.[18]
Effective protection measures
[17] UK Home Office, Country Policy and Information Note, Pakistan: Christians and Christian converts, February 2021 at 2.5.22
[18] UNHCR, Eligibility Guidelines for Assessing the International Protection Needs of Member of Religious Minorities from Pakistan, January 2017, p.44, Refworld | UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities from Pakistan
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s.5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.
A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s.5LA(2) of the Act.
The Tribunal has considered if effective protection measures are available to the applicant in Karachi as required by s.5LA. The harm that the applicant fears from community members and extremists is from non-state actors and the applicant claims that the Pakistani authorities will not protect her from that harm.
The representative in his written submission to the Tribunal argues that country information (which he references) demonstrates that effective protection measures are not available in the applicant’s case. Due to weak governance and instability with respect to the country’s security situation the authorities are unable to prevent atrocities from occurring against its Christian minority community, he submits.
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 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.[19]
[19] UK Home Office, Country Policy and Information Note, Pakistan: Christians and Christian converts, February 2021 at 2.6.4
As noted earlier, whilst there is no law against conversions in Pakistan, renouncing Islam (apostasy) is widely considered a form of blasphemy. The UK Home Office report does not mention whether there is state protection for those at risk from non-state actors as apostates. However, in the United States State Department International Religious Freedom report of 2019, it states 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’.[20]
[20] 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’s political section noted that there is limited protection of religious minorities by the Pakistani government; the Ministry of Religious Affairs and Interfaith Harmony (MoRH) primarily deals with Hajj participation and has been ineffective in protecting the rights of religious minorities; and 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.[21]
[21] ‘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 indicates that whilst Pakistan has a legal framework offering protection and a functioning criminal justice system, its effectiveness varies. DFAT advise that whilst 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’.[22]
[22] DFAT Country Information report, Pakistan 20 February 2019 at 5.1
In terms of police capacity overall, 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.’[23] They also state that sectarian violence and domestic terrorism diverts 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.[24]
[23] Ibid at 5.11
[24] Op cit at 5.22
Based on the country information set out above the Tribunal is not satisfied that the state, party or organization is willing and able to offer protection from non-state actors as a Christian convert (from Islam). The Tribunal is not satisfied that effective protection measures as per s.5LA provided by the state, party or organization are available to the applicant in Karachi. Based on such country information, the Tribunal finds that the applicant would not be able to access effective protection if returned to Pakistan for the purposes of s.5LA(2).
Whether the real chance of persecution relates to all areas of Pakistan
The Tribunal has gone on to consider if the applicant faces a real chance of persecution in all areas of Pakistan as required by s.5J(1)(c) of the Act. As noted, the applicant originates from Karachi, Sindh Province where she lived until coming to study in Australia in 2009. This is where her brother remains living, whilst the rest of her family members reside in different countries. It has therefore considered whether the real chance of serious harm from community members or extremists as a Christian convert (from Islam) in Karachi relates to all areas of Pakistan.
It is submitted that the applicant faces danger as a Christian convert from extremists throughout Pakistan, evidenced by country information, including DFAT’s assessment that ‘groups facing official discrimination (see relevant sections) will face discrimination in all parts of the country’.[25]
[25] DFAT County Information Report Pakistan, 20 February 2019, at 5.32
In their report on this topic the UK Home Office assess that whilst in general those born Christian in Pakistan is 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’.[26]
[26] UK Home Office, Country Policy and Information Note, Pakistan: Christians and Christian converts, February 2021.
As noted earlier, the applicant’s passport and presumably her ID card indicates she is Muslim, and the Tribunal considers it would not be possible for her to move away from Karachi to another area and not reveal her conversion. The Tribunal accepts that if the applicant returns to Pakistan she would wish to continue to attend church as she has in Australia, and that were she to do so she would be identifiable to the authorities, and the community at large, as a convert, based on the fact that her national ID would continue to identify her as Muslim. If so, country information indicates that Christian converts face threats of harm from non-state actors throughout Pakistan. For these reasons the Tribunal is 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 her religion and membership of a particular social group of Christian converts from the community and/or extremists.
Whether the applicant could take reasonable steps to modify her behaviour
The Tribunal notes that s.5J(3) of the Act states a person does not have a well-founded fear of persecution if the person could take reasonable steps to modify their behaviour so as to avoid a real chance of persecution in the receiving country, other than a modification that would conflict with a characteristic that is fundamental to the person’s identity or conscience, or conceal an innate or immutable characteristic. In this case the Tribunal is satisfied that the modification would require the applicant to alter her religious beliefs, including by renouncing a religious conversion, or conceal her true religious beliefs, or cease to be involved in the practice of her faith as per s.5J(3)(c)(i). Therefore s.5J(3) does not apply and the Tribunal is satisfied the applicant’s fears of persecution for the reasons set out above are well founded.
CONCLUSION
It follows that the Tribunal accepts that the applicant has a well-founded fear of persecution for the purposes of s.5J of the Act. In considering whether she comes within the definition of a refugee contained in s.5H of the Act, it accepts that she is outside the country of her nationality and unable to return to it owing to her well-founded fear of persecution. Therefore, she meets the criteria in s.5H(1). There is no information before the Tribunal to indicate that any of the exclusions set out in s.5H(2) apply to the applicant. The Tribunal finds, therefore, that for the purposes of s.36(2)(a) of the Act, the applicant is a refugee.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Nicole Burns
Member
ATTACHMENT A - CRITERIA FOR A PROTECTION VISA
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 the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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.
ATTACHMENT B - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)   severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)   pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)   that is not inconsistent with Article 7 of the Covenant; or
(d)   arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)   that is not inconsistent with Article 7 of the Covenant; or
(b)   that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)   for the purpose of obtaining from the person or from a third person information or a confession; or
(b)   for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)   for the purpose of intimidating or coercing the person or a third person; or
(d)   for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)   for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
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.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)   disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
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
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(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.
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[2021] AATA 856

25 March 2021

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