1725349 (Refugee)

1725349 (Refugee) [2021] AATA 2241 (18 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1725349
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Peter Vlahos
DATE:18 May 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.

This Statement was made on 18 May at 7.30AM
CATCHWORDS
REFUGEE – protection visa – Pakistan – particular social group – gay Pakistani males – same-sex relationship with an older Australian male for the last three years – fear of ‘vendetta’ by former criminal and child abuser – sexually abused as a child – perpetrator now released from jail and political figure locally – credibility issues – inconsistencies in recollection – delay in seeking protection – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 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 16 October 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 11 September 2017. The delegate refused to grant the visa on the basis that application did not satisfy s.36(2) of the Act.
The applicant made an application to review the Department’s decision to refuse his application for Protection visa on 17 October 2017.
A hearing of the applicant’s application for review by the Tribunal was scheduled for the 21April 2021 at which the Tribunal heard the applicant’s submissions and arguments.
At the hearing, the applicant was not assisted by a registered migration agent or legal counsel/representative.
There was no need for an interpreter because the applicant was fluent in the English language.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether Australia has protection obligations in this matter towards the applicant. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Applicant’s country of Origin
Based on a copy of the applicant’s passport, which was provided to the Department and the Tribunal and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of the Islamic Republic of Pakistan and has had his claims assessed against that country in relation to s.36(2)(a) and 36(2)(aa) of the Act. Therefore, based on the information before the Tribunal, the Tribunal further accepts the applicant’s identity as a national of the Islamic Republic of Pakistan as claimed.
Third country protection
There is no evidence before the Tribunal that the applicant has a right to enter and reside in a safe third country.
Department (‘Home Affairs’) file
The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to material referred to in the delegate’s decision. The applicant provided a copy of the Department’s record of decision to the Tribunal with his application for review.
Background – Migration History of the applicant
[In] July 2013 the applicant arrived in Australia on [a Student] visa and [in] February 2014 the applicant departed Australia on [a Student] visa. [In] February 2014 the applicant arrived in Australia on [a Student] visa. On 16 June 2014 the applicant’s [student visa] was cancelled under s.116. [In] February 2015 the MRT (Migration Review Tribunal) affirmed the applicant’s cancellation of his [Student visa] and on 3 February 2015 the applicant became an ‘unlawful non-citizen’ to date. On 26 June 2017 the applicant was detained at the MITA under s.189(1). On 30 June 2017 the applicant lodged a Bridging visa E. On 4 July 2017 the applicant’s Bridging E visa application was refused by the AAT. On 4 September 2017 the applicant lodged a second application for Bridging E visa. On 5 September 2017 the applicant’s second Bridging E visa application was withdrawn. On 11 September 2017 the applicant lodged a Permanent Protection visa (subclass 866) application.
EVIDENCE AT THE HEARING
Background – personal
The applicant is [age] years-of-age and is not married. He was born and lived [in] the Punjab province, Pakistan. He has family currently living in Pakistan which includes his parents and siblings. The applicant completed all of his studies while in Pakistan up-to and included high school matriculation and thereafter his family decided that he pursue further education in Australia from 2013 (July) onwards. While in Australia, the applicant enrolled in the [specified] course which was offered by the private education college, [Institute 1]. However, he did not complete his studies.
The reasons for not completing his studies in Australia according to the applicant was because he could not ‘come around’ to studying while in Australia. Everything the applicant encountered here, in this country was ‘new’ and difficult in those days to comprehend and try to ‘do something.’ The applicant told the Tribunal that he returned to Pakistan in order to try to work things out for himself – in 2014 and then came back to Australia to try again but again had difficulties.
The applicant acknowledged as correct his visa history as scheduled in the Department’s decision record and admitted that his Protection visa application was wholly concerned about his “sexuality” which he was happy to discuss with the Tribunal in the course of the hearing.
The applicant’s claims for Protection
The applicant has provided written claims which are on the Department of Home Affairs (departmental) file [number]. The applicant’s claims can be summarised as follows:
§The applicant is a Muslim and gay.
§Homosexuality is not tolerated in Pakistan and that is why the applicant is claiming protection in Australia.
§The applicant cannot share or express his feelings with “anyone” in Pakistan because Pakistan is a Muslim country and has an Islamic Constitution and does not tolerate homosexuals.
§The applicant’s family is active religious Muslims and they follow Islamic teachings and traditions in the proper manner. The applicant respects his religion but cannot change who is and his religion and country do not accept him as ‘who is’ – a gay male and a Muslim.
§When the applicant was of a very young age, he could not support his right to be who he wanted to be. He was afraid and could not share his inner beliefs with others. He could not separate himself from his family because of the Pakistani cultural mores that dominate Pakistani society.
§The applicant could not admit who he was to his family members or seek alternatives in other parts of Pakistan.
§If the applicant returns to Pakistan, there is no chance for him to live with safety and with his rights secured. There is no such law that protects LGBT people in Pakistan. Pakistan society will harm him or even kill him – because of ‘honour’.
The Tribunal asked the applicant if he had any other claims other than those he had presented to the Department in his Application, for the Tribunal to consider. The applicant had no additional claims to make and was content for the Tribunal to consider what was before the Tribunal.
The Tribunal confirmed with the applicant that he ‘Protection Application’ dealt with issues involving his ‘sexuality’. The applicant confirmed that this was the case. He then explained to Tribunal, that he originates from a very typical but traditional middle-class Pakistani family which was also very strict about the teaching of the Quran and the societal mores that prevail throughout society in Pakistan. According to the applicant, tolerance of ‘certain things’ or attitudes is just not the ‘acceptable’ in Pakistan, which includes his immediate family members – in particular, his parents.
The Tribunal asked the applicant to explain his personal feelings as a young Pakistani male and Muslim. The applicant re-called for the Tribunal an incident that he had suffered when he was [age]-years-of-age. The Tribunal was told that the applicant (at [age]) had fallen victim to “sexual abuse” another Pakistani male (older in years) and as a result of this, this individual had been detained, successfully prosecuted and imprisoned.
The Tribunal was told that this individual was the cause for him to seek his education “outside Pakistan” and “in Australia” so he could be at safe distance from his criminal when he was eventually released from prison.
The Tribunal was told that this individual now had been released from prison and after a number of years of activity in political circles in Pakistan, he was no a “very influential person” in Pakistani regional politics and in the city of Karachi (where the applicant’s family resided). This former criminal the applicant said was now an influential member of [a Pakistani political party].
Then, the Tribunal was asked to explain in detail what had occurred when he was [age]-years-of-age. The Tribunal was told that this individual (now political figure locally) had “sexual intercourse” with applicant – a boy then. It was not consent to and after it happened a distraught applicant rushed home and told his parents. After DNA test were done, the perpetrator was identified and charged. Following a trial, the perpetrator was jailed for A period of eight years – that being from 2008 to 2016. The Tribunal was told by his family that this criminal had been released in [2016].
The applicant told the Tribunal that he has great apprehension returning to Pakistan in the future and running the prospect of having his former assailant searching form in order to extract his own retribution against the applicant for reporting him to the Police.
The applicant explained to the Tribunal that this former criminal and child abuser was now a very influential local figure [and] could extract his revenge against the applicant at any time and could engage any amount of minions to do his work for him. That is eliminate if required the applicant.
The applicant told the Tribunal that he is in a very difficult position now (in 2021) first and foremost, he no longer has the support of his family to count on if and when a difficulty surfaced with this individual – if the applicant was to return to Pakistan. This was because the entire family “knew that he was a homosexual”.
The applicant, the Tribunal was told his mother about his sexuality and expressing her disapproval, she then told his father. The eventual result of all this was that the applicant parents would not have much to do with him because he is not “straight”.
The applicant also told the Tribunal that if he was to return to Pakistan, in the near and reasonable future, if he had any type of difficulties, he could not rely on any local Pakistani police protection. The reason for this according to the applicant was part local corruption, that is, police in Pakistan can be compromised with money stopping them from carrying out their duties towards upholding law and order and also, there is a major societal discrimination for male or female homosexuals.
How can the applicant describe his openness as a male homosexual? The applicant told the Tribunal that about three years ago, he opened to all his friends with the fact – that he was gay and a Muslim and felt relieve that he did so. Moreover, he has for the last three years been in a “relationship” with another male.
The same-sex relationship, according to the applicant has continued now for three years. The applicant told the Tribunal that his partner had been married before but had been separated from his spouse for the last three years.
The applicant told the Tribunal that ever since he met his partner (now of three years) his life has been overall ‘happy’ and ‘peaceful’.
The applicant was asked by the Tribunal – why had his partner of three years not accompanied him to the hearing to support him and to testify on his behalf? The applicant’s response was that that he “he was willing to come and wanted to but he (the applicant) thought that the hearing should be done by him and not involve others.” Accordingly, the applicant stated that “Did not want him (the partner) to do this, I wanted to do it on my own.”
The Tribunal asked the applicant to explain why, while in detention he wanted to return to Pakistan. The applicant explained to the Tribunal, that being in detention for a period, was a very low time in his life. He was generally depressed about the present and could not really think clearly about the future. At that very moment, the Tribunal was told, the applicant was happy to return “home” – to Pakistan. However, after a period of reflection and reconsideration of his circumstances, the applicant decided otherwise. He reflected on the fact that he had not spoken with his father – who considered him a disappointment for not choosing to follow tradition – that is in marrying and having children. The applicant also spoke about “coming out to his mother” over the telephone about his sexuality and being told that its was “disease” which will eventually leave him. After, the applicant disputed this fact with his mother, his mother ended their telephone conversation.
Thereafter, he told the Tribunal, he has tried to speak to his father, but he has refused to talk to him. The Tribunal was told that the applicant that he had no “emotional support” from wither of his parents.
How has the applicant coped while being in Melbourne?
From the outset, the Tribunal was told that the applicant’s being in Melbourne ‘all this difficult time’ for him emotionally speaking, has helped him understand who he really is. ‘Life’ in Australia is so ‘open’ and ‘free’ was the description provided to the Tribunal by the applicant. He was able to actually understand ‘his sexuality’ in a way that it would not have been possible to do so if he was living in Pakistan. The applicant told the Tribunal, that he enjoyed the ‘night life’ here in Victoria. He was “clubbing” regularly with women companions who accepted his homosexuality. He frequently attended the night club, the Tribunal was told known as the “[name redacted]” which is to be found in [street name], Prahran. He also frequented at various times the “gay spa” on “[street name], Melbourne.” Indeed, during this period (from 2014 onwards) the applicant told the Tribunal, that he was greatly supported – “financially” by a few “good friends”.
During this period of time, the applicant spoke to the Tribunal about his “relationship” with another male. He described this male friend as his companion and had been living with this person for the last three years. The two considered the relationship as a “couple”. The Tribunal was told that the applicant’s partner makes sure that all of his personal needs are met. The applicant in response is responsible for the maintenance of their household and the ‘cooking’. The two, socialise with their close circle of friends and attend when they can social events that are organised by their friends. The two have gone to on a trip to Sydney in 2019 (before the Covid-19 Pandemic crisis) and intend according to the applicant to visit Queensland in June of this year as a celebration for the applicant’s “birthday.”
The applicant could not speak in definite terms about his future but he told the Tribunal that his feeling of “absolute freedom” he has felt and “lived” in Australia as a male Muslim gay would not have been possible to live so in his homeland, Pakistan. The applicant explained to the Tribunal that he did not wish to “live his life with boundaries” imposed by “others”. This was what was the reality in his homeland, Pakistan. The Tribunal was told by the applicant that if he was to return to Pakistan ‘whenever’ it would not be possible for him to carry on living as he is – a Muslim gay male. According to the applicant, if he was to return to Pakistan, he would “have to disappear”, “would not live freely” within society ‘anywhere in Pakistan’ and would have to be “careful and at all times “hide his feelings.” The “openness experienced in Australia could not be repeated {anywhere} in Pakistan” according to the applicant.
Since his ‘coming out’ the applicant told the Tribunal that he has had some contact with his mother but no other contacts with his other family members. He told of “messaging his sister” on her birthday ([date in] 2021) but “received no response.”
The applicant’s ‘delay’ in applying for protection

The Tribunal sought an explanation from the applicant as to why his Protection visa application was delayed. The applicant told the Tribunal that once after receiving pressures from his parents to return to Pakistan and get married and to live a traditional life and telling him that he was ‘gay’ and receiving their disapproval, then, he realised he could not return and he applied late “because he never thought of apply for it.” For a period, the Tribunal was told that the applicant felt “confused” and just could not “do anything”. The applicant provided no other reasons.
The Tribunal received no further evidence from the applicant. Nevertheless, the Tribunal expressed interest in receiving further submissions from the applicant and his partner concerning their same-sex relationship. The Tribunal allowed for two weeks (from the date of the hearing) for such submissions to be submitted.
On 13 May 2020, the applicant provided the following statement from his ‘partner’ – a Mr [name withheld] (DOB [date]):
Late September 2018, we met through the app named [App 1]. After some time, we both realize that our liking and interests are the same so we both keep meeting and starting to understand each other. As a man older man with kids which they do not live with me same as my wife. 6 years ago, I and my ex-wife get separated but we have not officially divorced yet.
I and Mr …….. are very close to each other, we both love each other and look after as well. Since Mr …….. does not have a job so I personally look after his financial needs.
Last year when we all were at lock down Mr……… came to stay with me at my house. We enjoy our company and help each other with the home Chores. Mr ……… have no family here in Australia except me. He loves me and I love him.
We have so many memories together going out for lunches and dinners together, but I preferably love his cooking at home.
We both have mutual understanding for more than 2 and half years. We both respect our spaces sometimes. I could not think of living without him anymore. Our social life is very simple. We invite our friends to come at my place to play bridge or sometimes for drinks and snack or over a nice dinner.
In 2019, I took him to Sydney for Mr ………..’s Birthday and this year we planned to go to Gold Coast which we already booked tickets and arrange our stay at the hotel. We both are really looking forward for this trip. As we both grow older, we both love each other more day by day. I could not explain in words the love I have for Mr ………..
Every relationship has their ups and downs but, in our relationship, we never argue or fight on anything as far as I remember, just because we both understand each other very well and we both respect that. We both are thinking to take our relation to the next level so we would stay together.
If this statement, make him to stay in Australia with me I will be really thankful to the Australian Appeal Tribunal and the Immigration of Australia.
I would love him stay with me for the rest of my life.
COUNTRY INFORMATION – ISLAMIC REPUBLIC OF PAKISTAN – ISLAM AND HOMOSEXUALITY
DFAT’s Country Information (2020) reports the following on the plight of the LGBT comm unity in Pakistan:[1]
[1] Department of Foreign Affairs & Trade Country Information – Pakistan, 20 February 2020, at pp.53-54
People who identify as LGBTI
Sex between men is illegal in Pakistan. Section 377 of the Penal Code outlaws consensual ‘carnal intercourse against the order of nature with any man, woman or animal’, punishable by prison sentences ranging from two years to life. Uncertainty around the definition of ‘carnal intercourse’ makes it unclear whether this provision applies to sexual relations between women. Section 377 has rarely been enforced, although police reportedly threaten men with prosecution as a means of extracting a bribe. DFAT is aware of reports of lesbian women living together discretely without risk; local sources say less societal shame is associated with having a lesbian child than a daughter having sex with a male out of wedlock, although stigma remains common.
While sex between males is common, homosexual identity is not. Strong and widespread cultural, religious and social intolerance of homosexuality means it is not widely discussed or acknowledged in Pakistan. Same sex attracted people are often rejected by their families and can be thrown out of home and forced into sex work. They face significant societal discrimination and, in some cases violence. In April 2014, Muhammed Ejaz, a man from Lahore, killed three gay men he met online. He reportedly told police he wanted to send a message about the evils of homosexuality. Several community organisations in major urban centres provide medical and support services to the LGBTI community. The ’taboo’ nature of same-sex activity results in a lack of investment in treatment options for HIV/AIDS in Pakistan (see Health).
People identifying as LGBTI from wealthy and influential families in large urban centres face less discrimination and violence than poor people in rural areas. Nonetheless, even wealthy individuals face high levels of discrimination, and their families often force them into a heterosexual marriage to preserve the family’s reputation and social standing.
The government formally recognises people identifying as transgender as ‘third gender.’ The Transgender Persons Protection of Rights Act (2018) gives individuals identifying as transgender full access to rights and documentation such as national identity cards, driver’s licenses and passports, in accordance with their self-perceived gender. The Act provides for inheritance laws to apply according to an individual’s self-perceived gender as marked on their CNIC. A biological male who self-identifies as female will therefore lose some inheritance and property rights. Transgender Muslims may not undertake Hajj (pilgrimage to Mecca), and a biological male who elects for an ‘X’ CNIC or passport may lose his inheritance under sharia.
Many transgender individuals live together in poorer communities within large urban centres. The US State Department reported in 2016 that many transgender people earned their income by begging or dancing at carnivals and weddings. Such work is highly visible, and workers are vulnerable to physical and sexual violence.
In January 2018, the Khyber Pakhtunkhwa government distributed health care Sehat Insaf (also referred to as Sehat Sahulat) card to members of the transgender community in Peshawar, which entitles the holder to PKR 540,000 (AUD 5,900) per person per year of health services at public and private sector hospitals free of charge. However, later media reports the Sehat Insaf cards are inactive and do not work when submitted in the hospital for treatment due to a lack of funds attached to the cards. Transgender people are eligible for assistance under the Benazir Income Support Scheme (BISP). Notwithstanding government support, transition health care remains poorly regulated, posing a risk to individuals. DFAT is aware of reports of illegal gender reassignment surgery supported by unregulated hormone drugs.
State-run women’s shelters (see Women) accept women only on a court order and will not admit transgender women. Informal shelters exist within the LGBTI community, at the homes of community members. The transgender community claims that male rape, including rape of male children, is common in Khyber Pakhtunkhwa (see Children). In one case, the community claimed a young Afghan male raped by 14 men was denied access to a shelter, as he was ‘not a child.’ DFAT is also aware of, but cannot verify, a report that 15 people raped a transgender person for 35 consecutive days and then killed the victim. In January 2018, media reported that nine people raped an 18-year-old transgender person in Peshawar. According to the media report, the victim requested a medical examination, but police failed to register a FIR of the incident and to organise an examination. Human rights advocacy groups, particularly in Khyber Pakhtunkhwa, report many attacks on the transgender community and its property, including abuse in police custody.
In 2009, the Supreme Court called for improved police response to cases involving the transgender community. Violent attacks in Khyber Pakhtunkhwa on activists for transgender rights, and on people identifying as transgender and intersex spiked in 2016. Transgender advocacy groups report more than 50 transgender people were killed in Pakistan in 2015 and 2016. In September 2016, the National Commission for Human Rights called on the government to investigate attacks against the community.
Transgender advocacy groups say the community is especially vulnerable to targeting by organised criminal gangs. They report that at least 44 cases currently before the courts relate to gangs specifically targeting the transgender community for extortion or murder.
Given social stigma associated with homosexuality in Pakistan, advocacy efforts on behalf of the LGBTI community generally advance under the umbrella of the transgender community. Those that advocate for the LGBTI community are also vulnerable to attack. LGBTI advocacy groups claim the Taliban beheaded LGBTI human rights activists in 2013. They further claim the Taliban captured LGBTI activists and held them for a year in 2014; and captured other LGBTI activists and held them for 75 days in 2017. An LGBTI event hosted by the US Embassy in Islamabad in 2011 led to protests from religious groups and the broader community. Since then, international sources note LGBTI groups have participated in and supported several low-key LGBTI events in Pakistan.
DFAT assesses that LGBTI people face a high risk of official and societal discrimination. The lack of media reporting on violence against LGBTI people reflects in part a lack of recognition of LGBTI issues in Pakistan, and in part the efforts of LGBTI people to conceal their sexual orientation or gender identity. DFAT assesses that openly LGBTI people and advocates for LGBTI rights face a high risk of societal violence.
REASONS FOR DECISION
The applicant claims persecution and harm because he a Muslim male homosexual. He also claims that his family members do not approve of his life choices and refuse (except for his mother) to have anything to do with him. He claims he cannot return to Pakistan to live freely as he would wish. He also in a same-sex relationship with an older Australian male for the last three years. Finally, he claims that he is also in harm’s way because of a ‘vendetta’ that exist against him by a Pakistani male who “sexually abused him” when he was a fourteen years of age and was tried and convicted for this crime and after eight years in prison, the person is now free and politically influential and determined to extract some form of retribution against the applicant. The applicant also claims that he cannot feel secure in any city or region if he was to return to Pakistan either because of his homosexuality and/or due to the ‘vendetta’ that exists (as he claims) from the male (who now is a political personality) with ‘influence’.
The Tribunal has also considered the Department Guidelines regarding homosexual claims. These guidelines state the following:
17.1      Gender-related claims may relate to sexual orientation and/or gender identity
Human rights abuses and gender-related persecution can also be experienced by people on the basis of their sexual orientation and/or gender identity. As such, an applicant’s gender-related claims may include claims relating to their sexual orientation and/or gender identity. In these cases, claimants face persecution for not adhering to socially or culturally defined roles or expectations of behaviour attributed to their sex.
For example, in some societies, homosexuality is considered illegal, with the imposition of severe criminal penalties, such as the death penalty. Where homosexual practices are not criminalised, many States may condone or tolerate extreme public hostility, or abuse being perpetrated against such claimants.
While these cases may be in the minority, decision makers should nevertheless apply the same principles presented in these guidelines when assessing these applications as they would with applicants that do not have gender-related claims relating to sexual orientation and/or gender identity.
17.2      Claims involving sexual orientation
Applicants from countries where homosexuality is illegal or criminally punished may find it difficult to discuss openly the subject of homosexuality with state officials of another country. Applicants with claims relating to their sexual orientation and/or gender identity may therefore be reluctant to make such claims.
Unlike other persecuted groups, sexual orientation and gender identity is not a readily visible characteristic and has to be revealed by the individual. Homosexual and transexual applicants may therefore have only spoken to a handful of people, or none at all, about their sexuality and have kept it a secret before lodging a claim. Interviewers and decision-makers should therefore not be surprised if an applicant suddenly raises the issue of sexual orientation or gender identity late in an application process, prefaced perhaps by an earlier weak or false claim on other grounds.
17.3      Potential issues facing these applicants
In claims involving sexual orientation, an applicant may have “passed” himself (or herself) as a heterosexual to avoid potentially threatening situations in his own home country. Therefore, there may not be evidence that he had any homosexual relationships before lodging a claim. An applicant may also not necessarily be “out” even after leaving a persecutory environment, or perhaps may be “out” only to selected individuals but remain closeted to family members or members of the same ethnic community.
The applicant’s experiences in the development of his sexual identity and/or knowledge of certain homosexual cultural icons may also be different to what may be common within a Western cultural context. Similarly, the applicant’s sexual and gender identity could still be in a state of uncertainty.
Decision makers should therefore avoid drawing negative inferences on an applicant’s credibility where there is a lack of ‘visible’ demonstrations of one’s sexual orientation.[2]
Sexual abuse by a now influential person and the issue of a vendetta
[2] PAM3 – Refugee and Humanitarian > PAM – 17 Sexual Orientation and gender identity.
The Tribunal has read the Department’s delegate’s conclusions concerning the applicant’s recollections of the sexual abuse incident and the events that followed. It is clear from the extensive written commentary provided by the delegate, that he concluded that “…the ostensibly minor yet numerous inconsistencies in the applicant’s various accounts of the same incident lead me to doubt his credibility”. The delegate then proceeded to conclude (in his opinion) that the applicant was not credible and also was not a ‘homosexual’ as he claimed.
The Tribunal understands that a number of ‘minor yet numerous inconsistencies’ in the recollection of events that happened a long-time ago (in 2008, according to the applicant) could injure the credibility of an applicant’s claim. Truth is often a difficult commodity to trade in such circumstances. Recollections of events can and do become blurred with the passage of time. Indeed, the events that the applicant has attempted to describe to both the delegate and to the Tribunal occurred in 2008 and a significant period of time has passed and as a consequence of this occurring, memory does become fractured, disjointed and at times lacking a totally clear and logical explanation to the listener. What is certain from what the applicant told the Tribunal in his evidence at the hearing was that this person (sexually assaulted him) was apprehended, charged, convicted, and imprisoned for eight years. Now, with regards to specific details about the events, the passage of time does take its toll. From the evidence provided by the applicant to Department and Tribunal it is clear that he was a victim of sexual abuse in 2008 at a very young age and had suffered this in a country which these matters occur and are not often reported or recorded and rarely prosecuted. In this instance, we are told (but in absence of documents) that there was a trial and a conviction of an individual that perpetrated a sexual crime. The Tribunal is of the view, that the applicant was a victim of sexual abuse whether it was random, specific, as with regards to who perpetrated it and who went to prison for it, the Tribunal cannot come to a particular position. In other words, there are “ostensibly minor yet numerous inconsistencies’ in the accounts provided but the account to the Tribunal was that it happened in 2008 and that incident obviously caused much hurt and anxiety on the victim – the applicant in particular, and to his family. How, and what ensued is difficult to totally comprehend and to come to a definite conclusion. However, the Tribunal considers and is of the opinion that something did happen to the applicant and that he has since that date tried to deal with it in his own way.
The applicant’s claim that he is a male Muslim homosexual and would be harmed if he was to return to Pakistan
The applicant told the Tribunal that while here, in Australia, he has been able to live his life freely and without any hesitations as to who is as a person. The applicant admitted to the Tribunal, that in Australia he was able to come to terms with who he was sexually. He described himself to the Tribunal as a “gay Muslim male” from Pakistan. The Tribunal was told that the applicant could never ‘openly’ admit his sexuality in Pakistan. The applicant described Pakistan as being (society in general there) very intolerant with LGBT persons and most of these persons tend to live their lives with marked constraint and concealment and fear of harm if discovered.
The applicant described this situation as one where he was totally unable to “be who he actually was” and to still be a devout and “proud Muslim” As he is. The applicant expressed his disappointment in his religion for not being ‘a little more tolerant’ of ‘people like him’. He was also very disappointed in the general attitude that had been adopted towards him by his family. The applicant was at times talking with his mother but had no contact with his father of siblings. That being the case, the applicant told the Tribunal that his life has continued for ‘the better’ while he has been in Australia. In late September 2018, through the ‘app’ (gay dating app) described to the Tribunal as ‘[App 1]’, he met his current partner Mr […]. The two have lived and socialised together since their relationship was established. The Tribunal notes the statement of Mr [….] provided to the Tribunal which described in detail the way the applicant’s relationship with Mr […] commenced and what has ensued since their first meeting with each other. The two current live together as a gay couple. Indeed, Mr [….] is an older male (born [year]) and divorced. There is a significant age difference between the two which the applicant acknowledged to the Tribunal but according to the applicant, as long a two people cared and loved each other, ‘age’ as such was not a major issue. The Tribunal accepts this explanation of the age difference between the applicant and his current partner in his life. The Tribunal also accepts that there is in existence a same-sex relationship which is both caring and loving and one that both parties share life’s “ups and downs” together in particular, during the trial of the COVID-19 Pandemic. Their relationship is open to their friends who they have included in their social life.
Obviously, according to the evidence before the Tribunal – the admissions made, there is a same sex relationship between the applicant and his partner, a relationship which would not according to the country information referenced above by the Tribunal concerning Pakistan would have been possible – but not accepted in Pakistan. The applicant is correct in describing the intolerance that is evident within Pakistan’s diverse and religious society as far as it concerns gay individuals and any recognition of the existence of an LGBT community in that country. On the information before the Tribunal, for example, on how the applicant is living his life here in Australia, as ‘a male gay Muslim’ such a life would not be able to be replicated if the applicant was to return to Pakistan in the foreseeable future. The level of societal and religious intolerance for the homosexual or gay person – male or female or ‘transgender’ is less than tolerable in general terms. If the applicant wished to ‘out’ himself and live a normal existence as a ‘male gay Muslim’ (in his own country) he would obviously invite public angst, ridicule, societal condemnation and possibly an attack on his person with a view of a ‘warning harm’ or actual death. At best, the applicant would have to live life with a daily suppression and concealment of who he was. Moreover, from the information available to the Tribunal on Pakistan, there is doubt whether the authorities would be able – at the local or national level to provide him with some effective protection if and when he required it – if threatened by others because of who he freely chose to be. The levels of ‘corruption’ is high in the institutions of public protection and order and to make matters worse, the Pakistani state is captive in part and whole, to the conservative religious feelings that plays a significant, if not, a dominant role in the politics and decision-making of government in that country

The Tribunal considered carefully the commentary of the delegate concerning the “ostensibly minor yet numerous inconsistencies in the applicant’s various accounts” and understands how such inconsistencies may lead as they did, the delegate to conclude that the applicant’s credibility was to be doubted and in particular his claims of being a gay male. Nevertheless, the applicant has provided evidence from a third party that he is in a same-sex relationship and that relationship has continued for more than three years. Though, the applicant’s ‘homosexuality’ might not have been “a readily visible characteristic” the applicant has “revealed it” to the Tribunal with the evidence of an individual who is his partner and the two are living a life together as a same-sex couple. The relationship is open to others to see also. Though, the applicant may have carried his sexuality along a tortured and uncertain path, “decision-makers” – the Tribunal in this instance, “should therefore avoid drawing negative inferences on an applicant’s credibility where there is a lack of ‘visible’ demonstrations of one’s sexual orientation” – in this case, the relationship between the applicant and his partner Mr [….] is ‘visible’ admitted and consented to and open to the world to observe and the Tribunal accepts this. Accordingly, the Tribunal finds that the applicant, if he were to return to anywhere in Pakistan, does have a well-founded fear of persecution and harm based on his being a homosexual with a Muslim religious background or for any other related reason mentioned in s.5(1)(a) of the Act now, or into the reasonably foreseeable future.
The Tribunal is satisfied that cumulatively there is a real chance that the applicant is at risk of serious harm if he was to return to Pakistan now or in the reasonably foreseeable future and there is a real chance that persecution will happen. This is based on the applicant’s evidence about the attitude his family has displayed concerning his wish to live his life as a ‘gay male Muslim’ and the discrimination and harm as a gay Pakistani Muslim male and as a member of the LGBT community (a minority) and being singled out for particular attention by local or regional state and religious authorities because of his homosexuality and these support a conclusion that his fear is well-founded. The country information reports a general intolerance of Pakistani society towards members of the LGBT community and this intolerance is further enhanced by the strictness of the religious doctrine and belief plays at all levels of Pakistan society and the state apparatus. This all indicates to the Tribunal that violence occurs against such individuals as the applicant is and there has been no appreciable change in the treatment of persons like the applicant or other minorities and other elements of society in Pakistan.
In this instance, the Tribunal considers the applicant’s cumulative circumstances are grounds for a well-founded fear of persecution.
Therefore, the Tribunal finds that the treatment the applicant would face on his return to Pakistan amounts to serious harm on cumulative grounds. Therefore, the Tribunal finds he satisfies s.91R(1) of the Act. Furthermore, the Tribunal is of the view that there is a real chance of persecution on the grounds in the applicant’s way he wishes to live his life, as an openly gay male Muslim which will be unacceptable to his conservative-minded religion and his membership of a particular social group – gay Pakistani males or members of the LGBT community in Pakistan and this is further compounded by the fact that the Pakistani society in general and the Pakistani state in particular do not recognise or tolerate such differences.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention and therefore, the applicant satisfies the criterion for refugee as set out in s.36(2)(a) of the Act.
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Peter Vlahos
Member

ATTACHMENT - 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
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2021] AATA 2241

18 May 2021

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